Deckard v. Trustees of Indiana University
| Decision Date | 04 September 1930 |
| Docket Number | 14,072 |
| Citation | 172 N.E. 547,92 Ind.App. 192 |
| Parties | DECKARD ET AL. v. TRUSTEES OF INDIANA UNIVERSITY |
| Court | Indiana Appellate Court |
Rehearing denied January 30, 1931.
From Industrial Board of Indiana.
Proceeding under the Workmen's Compensation Act by Iva Deckard and Norma Lee Deckard, respectively widow and son of Kenneth Deckard, seeking compensation for his death, opposed by the trustees of Indiana University, employers. From an award of the Industrial Board denying compensation, the claimants appealed.
Affirmed.
Vernon & Vernon, for appellants.
Edwin Corr and Regester & Regester, for appellees.
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 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 the board found 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 appellants duly excepted and this appeal followed. There is no dispute as to the facts found. The deceased was in the employ of the appellees at the time of his death, but was deceased's death the result of an accident arising out of his employment?
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 the 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. (1921), 105 Neb. 691, 181 N.W. 706, 13 A. L. R. 513; Hulley v Moosbrugger (1915), 88 N.J.L. 161, 95 A. 1007; Larke v. Hancock Mutual Life Ins. Co. (1915), 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, etc., R. Co. (1914), 185 Mich. 643, 152 N.W. 213; Wiggins v. Industrial Accident Board (1917), 54 Mont. 335, 170 P. 9; Thier v. Widdifield (1920), 210 Mich. 355, 178 N.W. 16; Alzina Construction Co. v. Industrial Com. (1923), 309 Ill. 395, 141 N.E. 191; Gale v. Krug Park Amusement Co. (1926), 114 Neb. 432, 208 N.W. 739, 46 A. L. R. 1213; Hoenig v. Industrial Commission (1915), 159 Wis. 646, 150 N.W. 996; Griffith v. Cole Bros. (1918), 183 Iowa 415, 165 N.W. 577.
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., v. District Court (1915), 129 Minn. 502, 153 N.W. 119; Aetna Life Ins. Co. v. Industrial Commission (1927), 81 Colo. 233, 254 P. 995; De Luca v. Park Commission (1919), 94 Conn. 7, 107 A. 611; United States Fid. & Guar. Co. v. Rochester (1926), 281 S.W. 306; In re Maudry v. City of New York (1924), 238 N.Y. 214, 144 N.E. 505; Emmick v. Hanrahan Brick & Ice Co. (1923), 206 A.D. 580, 201 N.Y.S. 637.
In the case of Netherton v. Lightning Delivery Co. (1927), 32 Ariz. 350, 258 P. 306, the court, by way of an extreme illustration, says: "If workmen 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 of ordinary persons in Washington and Paris." But the standard of test in these facts is always the same, Did the employment increase the danger?
In the case of Wiggins v. Industrial Accident Board, supra, 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 Construction Co. v. Industrial Commission, supra, where a workman was killed by lightning when near the building, while wheeling cement on trucks from a car to a building 20 feet high, the Supreme Court of Illinois held that the evidence did not show any causal connection between the accident and the work, or that the place of employment exposed deceased more to the risk of being struck by lightning than any other person in any other employment in the locality.
In Griffith v. Cole Bros., supra, an employee was killed by lightning while sitting in a tent in a place where the ground was saturated with water. There was no floor in the tent and there were no lightning rods or arresters and the tent was higher than surrounding objects....
To continue reading
Request your trial