Citizens Independent Telephone Co. v. Davis

• Decision Date: 17 October 1950
• Docket Number: No. 18036,18036
• Citation: 94 N.E.2d 495,121 Ind.App. 20
• Parties: CITIZENS INDEPENDENT TELEPHONE CO. v. DAVIS et al.
• Court: Indiana Appellate Court

Page 495

94 N.E.2d 495

121 Ind.App. 20

CITIZENS INDEPENDENT TELEPHONE CO. v. DAVIS et al.

No. 18036.

Appellate Court of Indiana, in Banc.

Oct. 17, 1950.

Kiplinger & Kiplinger, Rushville, for appellant.

Vance M. Waggoner, Rushville, for appellees.

CRUMPACKER, Judge.

The appellees are the widow and minor child of one Ralph Davis who was struck and killed by lightning in the course of his employment with the appellant. They were awarded compensation by the Full Industrial Board of Indiana upon the following evidence which, in its essential details, is not disputed.

At the time said Davis was killed there was a cluster of frame buildings known as Diekman's Camp located about three and one-half miles west of Rushville, Indiana. Said 'camp' consisted of Diekman's residence, a number of small cabins and a tool house all of which were supplied with electricity through a transformer and the usual lead wires running from a distribution pole to the various buildings including said tool house which had two electric outlets in the form of light sockets in the ceiling, a cement floor and stood on a hill. This electric service was not furnished by the appellant and it was in no way connected with the ownership, management or control thereof. The appellant, however, was then engaged in extending telephone service from its line on Old State Road No. 3 to the Diekman Camp and in the process had set a number of poles but as yet had installed no wiring of any kind. The crew performing this work consisted of a foreman and three linemen of whom Ralph Davis was one. They were engaged in setting a pole about 75 feet distant from said tool house, which stood facing them with the door open, when it began to rain. In the course of a few minutes the rain increased in intensity and was accompanied by thunder and lightning. Thereupon the foreman of the crew said, 'lets get out of this' and ran to the appellant's service truck, which was parked about 25 feet away, and took refuge in the cab thereof. The three linemen sought shelter in the tool house where Davis stood under one of the light sockets above mentioned. Approximately five minutes later he was struck by a bolt of lightning and died immediately. The appellant company has no published rules or instructions governing the conduct of its outdoor employees during electric storms nor had its foreman been advised by the company in respect thereto. After the foreman said, 'lets get out of this' each man was left to his own devices and was free to go where he pleased. The day was hot and humid and their work had caused the men to perspire somewhat and their clothes were damp from the rain.

The courts of Indiana always have drawn a distinction between the terms 'out of' and in the 'course of' the employment as used by the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., and have held that both elements must be shown to exist before an award of compensation can be made for any accidental injury. Neither is sufficient without the other. E. R. Burget Co. v. Zupin, 1948, 118 Ind.App. 644, 82 N.E.2d 897: Tom Joyce 7 Up Co. v. Layman, 1942, 112 Ind.App. 369, 44 N.E.2d 998. The present case presents no difficulties in connection with the essential that the accident which caused the decedent's death occurred in the 'course of' his employment. The foreman's words 'lets get out of this' must be construed as an instruction to seek shelter from the storm and the decedent's act in doing so amounted to nothing more than a temporary detachment from duty and in no way broke or suspended the course of his employment. However, when we come to the question of if and when an accidental injury due to a true Act of God in the form of a bolt of lightning arises 'out of' the employment we meet with a diversity of judicial opinion expressed by the courts of the land. See Annotations: 13 A.L.R. 977; 49 A.L.R. 401; 46 A.L.R. 1218; 53 A.L.R. 1084; 83 A.L.R. 235.

In workmen's compensation cases it is well settled that 'there must be some substantial link running from the employment, or one of its incidents, through the accident to the particular harm for which compensation is sought' if such accident is to be considered as having arisen 'out of' the employment. Small, Workmen's Compensation Law of Indiana § 6.2, p. 110. In other words the claimant must prove that there is a phase of causation between the employment and the injury or the claim will fail. Dye & Son v. Nichols, 1924, 81 Ind.App. 13, 141 N.E. 259; Luckey v. LaSalle Steel Co., 1943, 114 Ind.App. 48, 50 N.E.2d 883. This jurisdiction is committed to the doctrine that a man's employment cannot be the cause of an accidental injury due to...