Deckard v. Trustees of Indiana Univ.

• Decision Date: 04 September 1930
• Docket Number: No. 14072.,14072.
• Parties: DECKARD et al. v. TRUSTEES OF INDIANA UNIVERSITY.
• Court: Indiana Appellate Court

92 Ind.App. 192

172 N.E. 547

DECKARD et al.

v.TRUSTEES OF INDIANA UNIVERSITY.

No. 14072.

Appellate Court of Indiana, in Banc.

Sept. 4, 1930.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Iva Deckard, widow, and Norman Lee Deckard, son, for the death of Kenneth Deckard, opposed by the Trustees of Indiana University. From an award of the Industrial Board denying compensation, the claimants appeal.

Affirmed.

Vernon & Vernon, of Martinsville, for appellants.

Edwin Corr and Regester & Regester, all of Bloomington, for appellee.

LOCKYEAR, J.

This is an appeal from an award of the Industrial Board of Indiana. The facts found by the board were, in substance, as follows:

On June 19, 1928, one Kenneth Deckard was in the employ of the Trustees of Indiana University at an average weekly wage of $21.60. On said date he received an accidental injury as the result of a stroke of lightning, which resulted in his instant death.

The deceased left surviving him his widow, Iva Deckard, and Norman Lee Deckard, his son, both of whom were residing with him at the time of his death and wholly dependent upon him for support.

The deceased was employed by the appellee to cut sod on the farm of the appellee and went from his place of employment to a nearby tree to seek shelter from the rain, and while under said tree the same was struck by lightning and he was killed, and that the board finds from the evidence that the injury and death of the deceased was not the result of an accident arising out of his said employment and denied an award of compensation. The appellant duly excepted, and this appeal followed. There is no dispute as to the facts found. The deceased was in the employ of the appellee at the time of his death, but was his death the result of an accident arising out of his employment?

[1] It does not suffice that the deceased was injured while in the course of his employment. It must further appear that his injury arose out of such employment. It must appear by a preponderance of the evidence that there is some causative connection between the injury and something peculiar to his employment. It must arise out of some causative danger peculiar to the work and not common to the neighborhood. The words “out of” involve the idea that the accident is in some sense due to the employment. Socha v. Cudahy Packing Co., 105 Neb. 691, 181 N. W. 706, 13 A. L. R. 513;Hulley v. Moosbrugger, 88 N. J. Law, 161, 95 A. 1007, L. R. A. 1916C, 1203;Larke v. Hancock Mutual Life Ins. Co., 90 Conn. 303, 97 A. 320, L. R. A. 1916E, 584.

Among the leading lightning cases in which compensation was denied are the following: Klawinski v. Lake Shore Ry. Co., 185 Mich. 643, 152 N. W. 213, L. R. A. 1916A, 342;Wiggins v. Industrial Board, 54 Mont. 335, 170 P. 9, L. R. A. 1918F, 932, Ann. Cas. 1918E, 1164;Thier v. Widdifield, 210 Mich. 355, 178 N. W. 16;Alzina Con. Co. v. Industrial Commission Co., 309 Ill. 395, 141 N. E. 191;Gale v. Krug Park Amusement Co., 114 Neb. 432, 208 N. W. 739, 46 A. L. R. 1213;Hoenig v. Industrial Comm., 159 Wis. 646, 150 N. W. 996, L. R. A. 1916A, 339;Griffith v. Cole Bros., 183 Iowa, 415, 165 N. W. 577, L. R. A. 1918F, 923.

[2] There are cases where death by lightning is compensable. When the workman by reason of his employment is more exposed to injury by lightning than are others in the same locality and not so engaged, the injury may be said to arise out of the employment. State ex rel. People's Coal & Ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344; Ætna Life Ins. Co. v. Industrial Comm., 81 Colo. 233, 254 P. 995;De Luca v. Board Park Comm'rs, 94 Conn. 7, 107 A. 611;United States Fid. & Guar. Co. v. Rochester (Tex. Civ. App.) 281 S. W. 306;Madura v. City of New York, 238 N. Y. 214, 144 N. E. 505;Emmick v. Hanrahan Brick & Ice Co., 206 App. Div. 580, 201 N. Y. S. 637.

In the case of Netherton v. Lightning Delivery Co. (1927) 32 Ariz. 350, 258 P. 306, 308,the court by way of an extreme illustration said: “If a workman were engaged in repairing the summit of the Washington Monument or the Eiffel Tower during a thunder storm, and were injured by lightning while so doing, it would very properly be said that the risk in such employment of injury by lightning was greater than that of the ordinary person in the cities of Washington and Paris.” But the standard of testing these facts are always the same: Did the employment increase the danger?

In the case of Wiggins v. Industrial Accident Board, 54 Mont. 335, 170 P. 9, L. R. A. 1918F, 932, Ann. Cas. 1918E, 1164, the laborer was required to work on a steel road grader during a storm. He was killed by lightning. It was held that his death did not arise out of the employment.

In Alzina Cons. Co. v. Industrial Comm. et al., 309 Ill. 395, 141 N. E. 191, the Supreme Court of Illinois, where a workman was killed by lightning while wheeling cement on trucks from a car to a building 20 feet high, when near the building, held that the evidence did not show any causal connection between the accident and the work, or that the place...