In re Betts

• Decision Date: 22 January 1918
• Docket Number: No. 10028.,10028.
• Citation: 66 Ind.App. 484,118 N.E. 551
• Parties: In re BETTS et al.
• Court: Indiana Appellate Court

66 Ind.App. 484

118 N.E. 551

In re BETTS et al.

No. 10028.

Appellate Court of Indiana.

Jan. 18, 1918.

Dissenting Opinion, Jan. 22, 1918.

Proceedings by Myrtle Betts and children under the Workmen's Compensation Act to obtain compensation for the death of the husband and father, Howell T. Betts. Opposed by Ebenezer Crompton, employer. Certified question of law by the Industrial Board of Indiana. Answered in favor of employer.

HOTTEL, J.

The statement of facts certified by said board is as follows:

“On the 6th day of October, 1916, and for many years prior thereto, Ebenezer Crompton was engaged in the tinning and furnace repair business in the city of Indianapolis; *** that during all of said period he maintained a shop and place of business in Ft. Wayne avenue in said city; that for the purpose of transportinghis employés and material from his place of business to *** where they worked, and *** back to his place of business, the said Crompton maintained and furnished to his employés a wagon and horse; that on and prior to the 6th of October, 1916, one Howell T. Betts was in the employment of the said Crompton in said business at an average weekly wage not exceeding $10; that during the period of his employment *** it was the custom of said Betts, and other employés with whom he worked, to use the horse and wagon of *** said Crompton in going to and returning from their work, not only for the transportation of material, but also *** of said employés; that during *** the employment of *** said Betts he returned to Crompton's place of business at the noon hour and *** generally ate his lunch with his employer; that *** said *** Betts was an habitual and almost constant user of tobacco, of which *** the employer *** had actual knowledge during his employment; that frequently he requested and was furnished small sums by Crompton, between pay days, for the purpose of purchasing tobacco; that on the 6th of October, 1916, *** Betts and *** Crompton ate their noon lunch together; that after finishing their noon lunch *** Betts informed Crompton that he was out of tobacco and would like to have a quarter *** to purchase some, whereupon *** Crompton gave to *** Betts 25 cents for the purpose of purchasing tobacco; that on said date the said Betts and another employé *** were repairing a furnace on Park avenue between Thirty-Sixth and Thirty-Seventh streets, and were using the horse and wagon *** to transport themselves and material from Crompton's place of business and *** to his place of business; that immediately after receiving said 25 cents *** Betts and the other employé *** started to the point where they were repairing said furnace in Crompton's wagon; that they traveled north on Central avenue, which was the direct and proper route for them to take; that upon reaching the intersection of Central avenue and Thirtieth street the other employé, who was driving the horse, stopped at the public watering tank at the northeast corner of the intersection *** for the purpose of watering Crompton's horse; that just before reaching Thirtieth street, Betts said to his companion, ‘I want to get off and get some tobacco’; that as the driver stopped the horse at the *** tank Betts stepped from the wagon into Central avenue; that immediately across the street and on the west side of Central avenue a drug store was situated; that as *** Betts stepped from the wagon he faced said drug store and had taken two or three steps from the wagon, and in the direction of the drug store, when he was struck by an automobile traveling to the north in Central avenue and killed almost instantly; that the said Betts left surviving him a wife and four children, *** who were being supported by him; that Crompton had actual knowledge of the death of Betts immediately after it occurred; that the widow makes claim for compensation,” etc.

The law question propounded by the board is:

“Did the accident resulting in the death of Howell T. Betts arise out of his employment with Ebenezer Crompton?”

This court, within the past year, has had before it numerous cases in which it was required to determine whether a particular accident grew out of the employment in which the injured employé was engaged at the time of his injury, and in those cases it has indicated the general rules applicable and of assistance in the determination of said question. Haskell, etc., Car Co. v. Brown, 117 N. E. 555Union Sanitary Mfg. Co. v. Davis, 115 N. E. 676;In re Loper, 116 N. E. 324;Holland, etc., Sugar Co. v. Sharaluka, 116 N. E. 330;In re Harraden, 118 N. E. 142, No. 10087, and see cases there cited; United Paperboard Co. v. Lewis, 117 N. E. 276. Little, if anything, of benefit in the determination of such question can be added to what the court has already said in those cases, and we therefore deem it unnecessary to attempt any extended effort to support the conclusion which we have reached in this case. Each case is necessarily, in a large measure, controlled by its own particular facts, and in many cases, as in the present, such facts bring the case within a zone so close to the border line that courts may differ in their judgment as to which side of said line the particular case should be placed. Such cases may be and are in fact, by different courts, placed upon either side of said line, and in each instance respectable authority is cited by the court to uphold its action.

There is a tendency of the courts, indicated in the more recent cases, to give to such Compensation Acts an interpretation as broad and liberal in favor of the employé as their provisions will permit, in furtherance of the humane purpose which prompted their enactment. We approve and are in sympathy with this tendency, but we understand that all of these cases recognize and in effect hold that:

“It is not enough for the applicant to say, ‘The accident would not have happened if I had not been engaged in that employment, or if I had not been at that particular place.’ He must go further and must say, ‘The accident arose because of something I was doing in the course of my employment, or because I was exposed by the nature of my employment to some particular danger.”’ Craske v. Wigan [1909] 2 K. B. 635; Shaw v. MacFarlane, 8 B. W. C. C. 382, 390, 391; Union Sanitary Mfg. Co. v. Davis, 115 N. E. 676, 678.

There must be some connection between the injury and the employment other than the mere fact that the employment brought the injured party to the place of injury. That is to say, there must be some causal connection between such employment and the injury in the sense that, by reason of the employment there was an increased or additional exposure of the injured party to the kind or character of hazard or danger (in the instant case, a street risk) which caused his injury. The injury “must have had its origin in a risk connected with the employment, and must have flowed from that source as a rational and natural consequence.” Union, etc., Co. v. Davis, supra, at 115 N. E. 677; Pierce v. Provident, etc., Co., Ltd. [1911] 1 K. B. 997, 999, 3 N. C. C. A. 279n; Martin v. John Lovibond & Sons, Ltd. [1914] 2 K. B. 227, 5 N. C. C. A. 985, 990. And see note 5 N. C. C. A. 986 et seq.; Glatzl v. Stumpp, 220 N. Y. 71, 114 N. E. 1053.

Of course, it cannot be said that Betts, while on an errand for himself, was doing any service required by his employment, and we are unable to see wherein his employment exposed him to the hazard or danger which resulted in his death. To illustrate our meaning, if the employment of the injured party had been of the kind to take him on a roof, and in going for his tobacco he had slipped, or for any other cause had fallen from the roof and been injured, we can see a connection between the employment and the injury, in that his employment placed him where the hazard of indulging his tobacco was increased. In the instant case the employment did not keep deceased on the street as a pedestrian. If it could be said to expose him to any dangers of the street, other than that to which the public generally are exposed, it was the danger of traveling in a vehicle to and from his work. In other words, as a pedestrian on the street going for his tobacco, his employment exposed him to no danger that would not have been incurred by any other pedestrian on a like errand, nor was he exposed to any hazard different from or in excess of the hazard to which he would have been exposed when on such errand, though he had not been engaged in the employment indicated.

For these reasons, we think the question of law propounded should be answered in the negative. As supporting or tending to support this conclusion, and the grounds upon which it is based, see Pierce v. Provident, etc., Co., supra; Andrew v. Failsworth, etc., Soc. [1904] 2 K. B. 32; Martin v. John Lovibond, etc., supra, and cases therein cited; Shaw v. MacFarlane, supra, and cases therein cited; Union, etc., Co. v. Davis, supra; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306;In re Harbroe, 223 Mass. 139, 111 N. E. 709, L. R. A. 1916D, 933; Murray v. Allen, etc., Co., 6 B. W. C. C. 215; Coronado Beach Co. v. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164;Federal Rubber Co. v. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 968.

IBACH, C. J., and BATMAN, P. J., concur. CALDWELL, J., concurs in result. FELT and DAUSMAN, JJ., dissent.

DAUSMAN, J. (dissenting).

I am compelled to dissent from the answer by the majority of the members of this court to the question certified herein, but I will refrain from giving my reasons thereof. There is another phase of the matter which to my mind is of vastly greater importance. I am of the opinion that this court ought not to answer the question at all for the reasons following:

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