Goldstone v. Kozma

• Decision Date: 27 October 1971
• Docket Number: No. 171,No. 2,171,2
• Citation: 149 Ind.App. 626,274 N.E.2d 304
• Parties: Sidney GOLDSTONE and Arthur Goldstone, Appellants, v. Dorothy KOZMA, Appellee. A 1
• Court: Indiana Appellate Court

Page 304

274 N.E.2d 304

149 Ind.App. 626

Sidney GOLDSTONE and Arthur Goldstone, Appellants, v.Dorothy KOZMA, Appellee.

No. 171 A 1.

Appellate Court of Indiana, Division No. 2.

Oct. 27, 1971.

Rehearing Denied Dec. 3, 1971.

Samuel J. Furlin, Spangler, Jennings, Spangler & Dougherty, Gary, for appellants.

Michael F. Yudt, Gary, for appellee.

SHARP, Judge.

The decision of the Industrial Board of Indiana awarded Appellee, Dorothy Kozma, benefits under our Workmen's Compensation Act, and the Appellant-Employers, Drs. Sidney Goldstone and Arthur Goldstone, appealed.

In this case, we are again called upon to define and apply the terms 'arising out of and in the course of the employment' as found in the Indiana Workmen's Compensation Act.SeeInd.Ann.Stat. § 40--1202, IC 1971, 22--3--2--12.

The plaintiff-appellee, Dorothy Kozma, was a medical secretary working for Dr. Sidney Goldstone at the Gary Professional Building also known as the Goldstone Clinic in Gary, Indiana.Drs. Sidney and Arthur Goldstone operated a medical practice in Suite One of said building.The Gary Professional Building was a one-story structure containing eight or nine suites.Adjacent to the building was a parking lot regularly used by the occupants, employees and customers-patients of the occupants of the building.The north door of the building led to an adjacent parking lot.There were three other doors of the building which could be used as entry-exits.

Around noon on December 27, 1965, the plaintiff-appellee walked out of the north door of this building and to the car of a fellow employee which was situated in the parking lot adjacent to this building.The car in question was about forty feet from the receptionist area where the appellee regularly worked in Suite One of the building.The automobile in question was parked in the area regularly used for parking by the occupants of this building.The parking lot was icy on this date, and the appellee slipped and fell as she was getting into her friend's automobile to go to lunch.As a result of such fall, she sustained injury to her back.

In testifying as to the ownership of the building, the appellant, Dr. Sidney Goldstone, stated in answer to direct questions by his attorney:

'Q.Now who owned the particular building where the office was located on December 27, 1965?

'A.Well, it's a complicated procedure.I think the actual ownership of the building was Robert Goldstone and Michael Goldstone.I think they were leasing the building to the Goldstone Realty Corporation, which was Dr. Joseph Goldstone and Dr. Adolph Goldstone.I think that's the way it was, it's confusing.

'Q.You, in no way, owned the particular building where your office was located on December 27, 1965?

'A.I think not.'

In regard to the use of the adjacent parking lot, Dr. Sidney Goldstone testified on direct examination as follows:

'Q.There are other people that had offices and suites in that particular building, isn't that true?

'A.Yes.

'Q.Now, as far as you were concerned, anybody could use that particular parking lot, isn't that true?

'A.Yes.

'Q.Now, did you ever instruct the plaintiff to use that particular parking lot?

'A.I don't ever remember whether we instructed her.The parking lot was there for everyone to use.

'Q.My point is, you didn't instruct her or tell her to use that parking lot?

'A.Had no where else to park.'

On cross-examination, Dr. Sidney Goldstone testified on the same subject as follows:

'Q.When you leased the office space that you have indicated, I believe they referred to that as SuiteNo. 1 in your lease, is that correct?

'A.Yes.

'Q.In order to get to your suite how do you get in and out of the building to your suite?

'A.How would I, ordinarily, get in and out of the building?

'Q.Yes.

'A.Through the parking lot.

'Q.Is this the parking lot Mrs. Kozma fell in?

'A.Yes.

'Q.Is this the parking lot you used whenever it was available?

'A.Yes.

'Q.Is this the same parking lot that Mrs. Kozma would use when she drove her car?

MR. FURLIN: I would object to what Mrs. Kozma would do.

'Q.(By Mr. Yudt)Do you know if Mrs. Kozma ever drove her car to work?

'A.Yes.

'Q.Youknow if she used this parking lot she referred to?

'A.Yes.

'Q.Did you ever tell her not to use the parking lot?

'A.No.

'Q.Did you tell her she was permitted to use it if there was space available?

'A.I don't ever remember telling her she could use it; it was assumed she could use it.

'Q.Are you familiar with the area where Mrs. Kozma had fallen down?

'A.Yes.

'Q.Would you say where she had fallen down would be a direct route from the reception area to the point of fall?

'A.Yes.

'Q.Would this be the normal way of getting in and out of the building from the parking lot where she fell to your office?

'A.Closest distance between two points is a straight line.She went directly from the office directly to where she fell.

'Q.I see.In order to get to your SuiteNo. 1 you have to use some hallway area within the building?

'A.Yes, there was one common hallway running the length of the building, north and south.

'Q.Under the lease you were entitled to use that to get in and out of your office?

'A.Yes.

'Q.This hallway area was also used by your employees or patients coming in to see you?

'A.Yes.'

There are at least three general propositions which must serve as touchstones in this case.

The first and most elemental is that this court will not weigh the evidence and will not substitute its judgment of the factual record for that of the Industrial Board.On appeal we must consider whether the finding of the Industrial Board rests upon a substantial factual foundation.We may reverse the award only if we find no substantial factual foundation to sustain the award of the Industrial Board.Our Supreme Court has heretofore held that we should reverse only if:

(1) It should appear that the evidence upon which the Industrial Board acted was devoid of probative value,

(2) The quantum of legitimate evidence was so proportionately meager as to show that the finding does not rest upon a rational basis, or

(3) That the result must have been substantially influenced by improper considerations.

SeePollack v. Studebaker Corporation, 230 Ind. 622, 105 N.E.2d 513(1951)andBlue Ribbon Pie Kitchens, Inc. v. Long, et al., 230 Ind. 257, 103 N.E.2d 205(1952).

Secondly, in addition to the limitation that a compensable injury or death must arise out of the employment, there is the further directive that it must arise in the course of employment, at a place where the employee may reasonably be, while he is fulfilling the duties of his employment or is engaged in something incidental thereto.SeeTom Joyce 7 Up Company v. Layman, 112 Ind.App. 369, 44 N.E.2d 998(1942).

The third touchstone relates to the interpretive attitude that we must take toward the Workmen's Compensation Act.It has long been held in Indiana that the Workmen's Compensation Act, being remedial in nature, should be liberally construed to accomplish the purpose for which it was enacted and, accordingly, it should be liberally construed in favor of employees and beneficiaries.Recent decisions of the Supreme Court of Indiana have emphasized the demand for this construction.SeePrater v. Indiana Briquetting Corporation Ind.App., 251 N.E.2d 810(1969)andMarshall v. Tribune Star Publishing Company, 142 Ind.App. 556, 243 N.E.2d 761(1968).These same principles were recently reaffirmed by this court in Burger Chef Systems, Inc. v. Wilson, Ind.App., 262 N.E.2d 600(1970) and in Indiana Toll Road Comm. v. Bartusch, 135 Ind.App. 123, 184 N.E.2d 34(1963).It is also well recognized that the words 'arising out of' and 'in the course of the employment' as used in the Workmen's Compensation Act should be liberally construed to accomplish the humane purposes of the act.SeeHayes v. Perry, 116 Ind.App. 590, 66 N.E.2d 73(1946), Studebaker Corporation v. Jones, 104 Ind.App. 270, 10 N.E.2d 747(1937)andIn Re Ayers, 66 Ind.App. 458, 118 N.E. 386(1918).

In their brief and in oral argument, the appellants concern themselves primarily with the place of this accident i.e. the premises.In their brief, the appellants took the hard position that the premises of the appellee's employment was strictly limited to Suite One in this particular building.However, in oral argument the appellants conceded that the premises might include the entire building but would be strictly limited to the physical confines of this particular building and could not include anything outside this building.

Dean Ben Small in his Workmen's Compensation Law of Indiana(1950) has taken a much broader view of premises:

'In attempting to define in part what constitutes a reasonable time and space for ingress to and egress from the place of employment, the courts have seemed to set the boundary roughly at the employer's premises.Thus, compensation was allowed for the death of a workman caused by a collision with an interurban car while he was driving to work at the usual time over a roadway on the employer's premises maintained for the use of employees in going to and from the factory building.Compensation was allowed in another case where a workman, on his way down a stairway, was hit by a lump of coal thrown by an angered fellow workman.It was allowed in another case where an engineer was killed by a coal mine train which he was attempting to board.The same was true where another workman was struck by a train in the yards of a steel company for which his employer was doing certain work.The premises in such case were held to be those used by the employer for performing the service, whether they were owned by him or not.Moreover, the term, employer's premises has been liberally construed to mean any premises which the parties contemplate shall be used for ingress and egress, regardless of ownership * * *.'

In regard to the entry and egress to and from work, Justice Sutherland,...