DeCanales v. Dyer Const. Co.

• Decision Date: 07 October 1970
• Docket Number: No. 470A54,No. 1,470A54,1
• Citation: 147 Ind.App. 537,262 N.E.2d 543
• Parties: Hermelinda Carvajal De CANALES, as his widow, and Letitia Canales, Sandra Canales, Norberto Canales, Marco Antonia Canales and Rojelio Canales, minor children of Rogelio Canales Cantu, deceased. by the said Hermelinda Carvajai De Canales, their Mother and Natural Guardian, Appellants, v. DYER CONSTRUCTION COMPANY, Inc., Beemsterboer Slag and Ballast Corp. Joint Venture, Appellees
• Court: Indiana Appellate Court

Page 543

262 N.E.2d 543

147 Ind.App. 537

Hermelinda Carvajal De CANALES, as his widow, and Letitia Canales, Sandra Canales, Norberto Canales, Marco Antonia Canales and Rojelio Canales, minor children of Rogelio Canales Cantu, deceased. by the said Hermelinda Carvajai De Canales, their Mother and Natural Guardian, Appellants, v. DYER CONSTRUCTION COMPANY, Inc., Beemsterboer Slag and Ballast Corp. Joint Venture, Appellees.

No. 470A54.

Appellate Court of Indiana, Division No. 1.

Oct. 7, 1970.

Rehearing Denied Nov. 17, 1970.

David P. Stanton, Gary, David S. Stevens, East Chicago, for appellants.

Charles K. Whitted, Gary, for appellees; Strom & Whitted, Gary, of counsel.

PER CURIAM.

This matter comes to us for a judicial review of a finding and denial of recovery made by the Full Industrial Board of Indiana. Appellants, the widow and minor children of Rogelio Canales Cantu, deceased, brought this action against the appellees, Dyer Construction Company, Inc., and Beemsterboer Slag and Ballast Corp., for death benefits under the Indiana Workmen's Compensation Act. Hearing was had before a single member of the Industrial Board on November 18, 1969, and the appellants were awarded nothing by way of their application. Thereafter, review was had before the Full Board which entered the following finding and denial of an award:

'The full Industrial Board of Indiana, by a majority of its members having heard the arguments of counsel, having reviewed all the facts in said cause, and being duly advised in the premises, now finds:

'That on the 2nd day of November, 1967, one Rogelio Canales Cantu, plaintiffs' decedent was in the employ of the defendants at an average weekly wage in excess of $85.00; that on said date said decedent died from causes wholly unrelated to his employment by defendants herein.

'The full Industrial Board of Indiana, by a majority of all its members, now finds for the defendants and against the plaintiffs on plaintiffs' From 10 application for compensation heretofore filed on the 21st day of December, 1968.

AWARD

'IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the full Industrial Board of Indiana, by a majority of its members, that plaintiffs take nothing by their Form 10 application for the adjustment of claim for compensation, filed with the Industrial Board of Indiana on the 21st day of December, 1968.'

Appellants assign as error that 'the said Award by the Full Industrial Board of the State of Indiana is contrary to law.'

A succinct summarization of the pertinent evidence most favorable to appellees may be stated as follows:

The appellants' decedent, Rogelio Canales Cantu, was employed by appellees us a construction laborer at an average weekly wage in excess of $85. The duties of his employment involved spraying wooden forms with oil in order that they might easily be removed once concrete had been poured and dried. The job site on which decedent worked consisted of a one-fourth mile segment of highway Route 12 in Porter County, Indiana.

On November 2, 1967, at 3:30 o'clock P.M., CST, the decedent met his death instantly as a result of being struck by a westbound train owned and operated by the South Shore Railroad Company.

The approximate location of this accident was stipulated by the parties to this appeal to have been as follows:

'* * * at a place one thousand four hundred eighty feet west of State Road 149, and one hundred eighty-five feet north of old U.S. Highway No. 12 in Porter County, Indiana, a place off of and not a part of defendant's construction site * * *'

The record further reveals that appellants' decedent on the day in question, upon instruction of his supervisor, ceased to perform the duties of his employment at 3:00 o'clock P.M., CST, one-half hour prior to the time he met his death. According to the testimony of Valentin Llerena, a fellow worker who decedent accompanied to and from the job site in Llerena's automobile, he and the decedent were waiting for Llerena's son to return with his father's coat before leaving work for the day when '* * * Mr. Cantu said he had to go to the bathroom and there wasn't one there, so he had to go into the woods, and when he had not returned and my son was already there, then was when the men from the train approached us and told us what had happened to him.'

1 A.C. 405 The parties to this appeal, as previously cited, supra, stipulated that the location where decedent chose to relieve himself and was subsequently killed was 'a place off of and not a part of defendant's construction site.' Precisely how great a distance existed between defendants' job site on new Highway No. 12 and the South Shore right-of-way was not put into evidence. However, the following testimony, by the supervisor of the construction site, does indicate the approximate proximity of the job site to the place where decedent was struck:

'Q Now, in order go get to where Mr. Cantu was struck by a train he would have to leave the construction site on new Route 12, cross the area between new Route 12 and old Route 12, go across old Route 12, across a field or a strip of ground, and then onto the South Shore right-of-way, would he not?

A. Yes.

Q Is that a considerable distance?

A Yes, I would say considerable distance.'

The same witness also testified that there were toilet facilities on the job site, as well as a ditch which was obscured from public view, and that irrespective of the facilities provided, it was the custom of men on construction to relieve themselves in the immediate vicinity of their work. The construction supervisor further testified that, to his knowledge, then men did not cross the South Shore tracks to use the bushes on the north side of the tracks in order to relieve themselves.

The sole issue for review in this appeal is whether or not the accident in which decedent was fatally injured arose out of and in the course of his employment.

It would be an impossible task at this time to review the multitude of litigation involving construction of the statutory phraseology 'arising out of and in the course of employment.' ¹ Accordingly, we will rely on what we believed, and presently believe, to be the generally accepted definition of 'arising out of and in the course of employment' as put forth in B.P.O. Elks, #209 v. Sponholtz (1969) Ind.App., 244 N.E.2d 923 (Rehearing Denied), at page 927:

'This Court, on judicial review of many workmen's compensation cases, has defined the words 'arising out of' and 'in the course of' the employment. The generally accepted definition of the former phrase is adequately stated in the case of Empire Health, etc., Ins. Co. v. Purcell (1921) 76 Ind.App. 551, 132 N.E. 664, and reaffirmed and approved in the case of Williams v. School City of Winchester (1937) 104 Ind.App. 83, 95, 10 N.E.2d 314, 319, as follows:

'An accident is said to arise out of the employment when there is a causal connection between it and the performance of some service of the employment. The causal relation is established when the accident is shown to have arisen out of a risk which a reasonable person might have comprehended as incidental to the employment at the time of entering into it, or when the evidence shows an incidental connection between the conditions under which the employe works and his resulting injury.' (Our emphasis)'

'The stated doctrine has been accepted and reaffirmed in many cases. See, among others, the following: Mathews v. Jim and Ed's Service Station (1963) 136 Ind.App. 28, 196 N.E.2d 282; Bettasso v. Snow-Hill Coal Corp., (1963) 135 Ind.App. 396, 189 N.E.2d 833; Mishawaka Rubber & Woolen Manufacturing Company v. Walker, Gdn., et al., (1949) (T.D.) 119 Ind.App. 309, 84 N.E.2d 897; E. R. Burget Co. v. Zupin (1948) 118 Ind.App. 644, 649, 82 N.E.2d 897; Broderick Company v. Flemming et al., (1946) (T.D.) 116 Ind.App. 668, 675, 65 N.E.2d 257; Tom Joyce 7 Up Company v. Layman (1942) 112 Ind.App. 369, 44 N.E.2d 998; American Steel Foundaries v. Czapala (1942) 112 Ind.App. 212, 215, 44 N.E.2d 204; Montgomery v. Brown et al., (1940) (T.D.1941) 109 Ind.App. 95, 27 N.E.2d 884.'

In the present case, the evidence wholly fails to establish the requisite causal relation between decedent's fatal accident and his employment. We cannot, therefore, state as a matter of law that this accident 'is shown to have arisen out of a risk which a reasonable person might have comprehended as incidental to the employment at the time of entering into it, or when the evidence shows an incidental connection between the condition sunder which the employe works and his resulting injury.' The record discloses three material facts which coalesce to prevent recovery by the appellants. These three material facts involve the following essential...