Furst Kerber Cut Stone Co. v. Mayo

• Decision Date: 07 October 1924
• Docket Number: No. 11969.,11969.
• Citation: 144 N.E. 857,82 Ind.App. 363
• Parties: FURST KERBER CUT STONE CO. v. MAYO et al.
• Court: Indiana Appellate Court

82 Ind.App. 363

144 N.E. 857

FURST KERBER CUT STONE CO.

v.MAYO et al.

No. 11969.^*

Appellate Court of Indiana, Division No. 1.

Oct. 7, 1924.

Appeal from Industrial Board.

Proceeding under Workmen's Compensation Act by Pearl I. Mayo and others for compensation for death of Forest Mayo, opposed by Furst Kerber Cut Stone Company, employer. Compensation was awarded, and the employer appeals. Affirmed.

Joseph W. Hutchinson and Howe S. Landers, both of Indianapolis, for appellant.

Albert J. Fields and Boruff & Boruff, all of Bedford, for appellees.

REMY, J.

Forest Mayo was employed by appellant as a quarryman, and during the afternoon of November 27, 1922, with a number of coemployés, was engaged in moving and placing a track over which a channeling machine was operated. In the group of men doing the work was Everett Mayo, a brother of Forest, and Noble Watson. At the noon or lunch hour Everett Mayo and Watson had quarreled over a trivial matter. About an hour and a half after work had been resumed following the lunch period, and after the quarrel between Everett Mayo and Watson had ended, Watson complained to Everett that he was not doing his full share of the work. In response to these words of complaint, Everett said, “It is just like a Watson to be trying to bulldoze somebody,” whereupon Forest Mayo spoke up and said to Everett, “That is nothing for you to get smart about.” Everett then began shoving the track over with a bar of iron which he had in his hands for that purpose; and Forest, not being pleased with the way the work had been done, said to Everett, “You did not shove that track right,” to which Everett replied, “I don't want any of your put in,” calling Forest a vile name as he spoke. Forest resented being called the name, and walked toward his brother unarmed with his hands at his sides. When within three feet of his brother, Forest stopped. After Forest had stopped, Everett struck him on the head with a bar of iron which he had been using in his work. The blow was sufficient to fracture the skull, and resulted in Forest's death a few days later.

From an award of compensation to appellees, the dependents of Forest Mayo, this appeal is prosecuted.

The question for decision is: Under the facts above stated, which facts were established by the evidence and found by the Industrial Board, was the death of Forest Mayo the result of an accident arising out of his employment?

[1][2] The word “accident,” in section 2 of the Workmen's Compensation Act (Acts 1917, p. 673, § 8020m, Burns' Supp. 1918), is used in its popular sense, and means any mishap or untoward event not expected, and which was not designed, by the one who suffered the injury or death. Townsend & Freeman Co. v. Taggart (Ind. App. 1924) 144 N. E. 556. See, also, Board of Management v. Kelly, 1914 Appeal Cases 667, 676, 7 B. W. C. C. 274, 280.

Within the meaning of this definition, an assault and battery may be, and the assault and battery which resulted in the death of Forest Mayo as shown by the evidence and the facts found by the Board in this case was, an accidental injury. Nisbet v. Rayne, [1910] 2 K. B. 689, 3 N. C. A. A. 268; Anderson v. Balfour, [1910] 44 Ir. L. T. 168, 3 B. W....