General American Tank Car Corporation v. Weirick

• Decision Date: 23 December 1921
• Docket Number: 11,179
• Citation: 133 N.E. 391,77 Ind.App. 242
• Parties: GENERAL AMERICAN TANK CAR CORPORATION v. WEIRICK ET AL
• Court: Indiana Appellate Court

133 N.E. 391

77 Ind.App. 242

GENERAL AMERICAN TANK CAR CORPORATION v. WEIRICK ET AL

No. 11,179

Court of Appeals of Indiana

December 23, 1921

From the Industrial Board of Indiana.

Proceedings for compensation under the Workmen's Compensation Act by Cecil Weirick and others against the General American Tank Car Corporation. From an award for applicants, the defendant appeals.

Affirmed.

William J. Whinery, for appellant.

Bomberger Peters & Morthland, for appellees.

OPINION

NICHOLS, J.

Proceeding commenced by appellees before the Industrial Board of Indiana praying for an award of compensation under the Indiana Workmen's Compensation Act (Acts 1915 p. 392 § 80201 et seq. Burns' Supp. 1918) for alleged injuries resulting in the death of Joseph E. Weirick.

Appellant's defense to this action was that appellees' decedent did not meet with any injury by accident arising out of and in the course of his employment while in the employ of appellant; that no accident of any kind or character whatsoever occurred or took place, and that no accident arose out of and in the course of the employment of said decedent by appellant in any manner or form whatsoever, causing any injury to said decedent, or the death of said decedent in any manner whatsoever.

Appellant contends that the evidence conclusively established appellant's defense.

After hearing the evidence the full Industrial Board found that November 4, 1920, the decedent was in the employment of appellant; that on said date he received a personal injury by an accident arising out of and in the course of his employment which resulted in his death the same day, and rendered an award in favor of appellee accordingly from which this appeal.

Appellant earnestly and forcefully contends that the evidence conclusively shows that no accident occurred within the meaning of the compensation law, that even though appellees' decedent was affected by fumes and gases arising from molten metal, such fact was incident to his employment, and in no way unusual, and that it appears from the evidence that the death was a result of disease, and not of an accident. It is so well established that where there is some evidence to support the finding and award of the Industrial Board, the same, as in the case of the verdict of a jury, will not be disturbed on appeal, that we need not cite authorities to that effect. In this case there is not much conflict in the evidence, except that the evidence of appellant's witnesses as medical experts was in conflict with the evidence of appellees' witness who was the attending physician. We would not have much difficulty in disposing of this conflict under the evidence as a whole in this case even if it were necessary so to do. In this regard, we follow the reasoning and opinion of the court in the case of Miami Coal Co. v. Luce (1921), 76 Ind.App. 245, 131 N.E. 824.

There was some evidence that the deceased breathed the fumes and gases arising from molten brass and was thereby accidentally injured, which injury resulted in death, and we hold that the Industrial Board was fully justified in its finding that the deceased came to his death by accidental means while in the due course of his employment. An accident has been repeatedly defined by this court in industrial appeals, as an unlooked for mishap, an untoward event which is not expected or designed. United Paper Board Co. v. Lewis (1917), 65 Ind.App. 356, 117 N.E. 276; Haskell, etc., Car Co. v. Brown (1917), 67 Ind.App. 178, 117 N.E. 555; Puritan Bed Spring Co. v. Wolfe (1918), 68 Ind.App. 330, 120 N.E. 417. An injury may be the result of accidental means though the act...