E. I. Du Pont De Nemours Co. v. Lilly

• Decision Date: 21 May 1948
• Docket Number: 28439.
• Citation: 79 N.E.2d 387,226 Ind. 267
• Parties: E. I. DU PONT DE NEMOURS CO. v. LILLY et al.
• Court: Indiana Supreme Court

79 N.E.2d 387

226 Ind. 267

E. I. DU PONT DE NEMOURS CO. v. LILLY et al.

No. 28439.

Supreme Court of Indiana

May 21, 1948

Fox & Fox, of Jeffersonville, for appellant.

Lorch & Lorch and Evan A. McLinn, all of New Albany, for appellees.

O'MALLEY Judge.

The appellees filed a claim with the Industrial Board of Indiana as dependents of Roy F. Lilly, who was killed by lightning on July 25, 1945, while employed as a truck driver by the appellant at one of its plants in Clark County, Indiana. The Board made an award in favor of the appellees, and from such award this appeal was taken. All the evidence, excepting that given by two electrical experts, was stipulated. The salient features of the stipulation show that the decedent was a truck driver on the premises of the appellant; that on the day of the accident he was hauling powder from a building which was called a 'shipping house' to a transfer platform; that such platform was open on all sides but covered by a roof; that the weather was threatening as he approached the transfer platform; that he drove his truck to the platform and, without unloading, proceeded to a place called a change house, to which he and all other employees had been instructed to go when a storm appeared imminent that in accordance with said instructions he stepped to the platform and proceeded toward the shelter; and that as he neared the end of the platform he was struck by lightning and killed.

The experts, one on each side, gave opinions as to whether or not the decedent was, at the time he was stricken, more exposed to injury by lightning than others in the same locality not engaged in the same pursuit. While the evidence, given by the expert who testified on behalf of the claimants, was somewhat weakened by his cross-examination, nevertheless, he testified unequivocally that the buildings, towers telephone lines, power lines, and other structures on the premises of the defendant below, would make that area more exposed to the hazard of lightning than an equal area of farm land or city property outside thereof. The appellant argues that there was no evidence of probative value to support the award on this issue, but it seems to us that he is asserting that we should disregard the evidence of the expert who testified in favor of the appellees and accept the testimony of the expert who testified on behalf of the appellant.

The Industrial Board found for the claimants, appellees, in accordance with the facts as above stated and also included a finding based on the evidence of the experts, which finding is as follows 'It is further found that the said plaintiffs' decedent met his death while following the said instructions of the defendant; that by reason of his employment the said plaintiffs' decedent was more exposed to injury by lightning than others in the same locality and not so engaged.'

The question which now confronts us is whether or not there was evidence of probative value before the Industrial Board which formed a proper basis for their finding and award in favor of the appellees.

Section 40-1202, Burns' 1940 Replacement (Supp.), states that:

'* * * every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act, respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; * * *.'

In § 40-1701(d), Burns' 1940 Replacement it is stated that 'injury' shall be held to mean injury by accident arising out of or in the course of the employment.

While the cases on the subject of compensation for injuries to workmen engaged in performing work for an employer are seemingly not consistent, the lack of consistency may, to some extent, be attributed to the variation in facts and the constant endeavor to make the law perform the function of relieving the injured party or his dependents from assuming the burdensome load placed upon him or them because of the accident. It may, in part, be excused by the effort that is made to force the industry to answer for some of the loss to the individual worker.

In the case of Deckard v. Trustees of Indiana University, 1931, 92 Ind.App. 192, 172 N.E. 547, the decedent was cutting sod on a farm, and a storm having arisen, he went from his place of employment to a nearby tree. While under the tree he was struck by lightning and killed. There was no evidence given at the hearing which would show that the risk of being struck by...