Kunkel v. Arnold, 19199

• Court: Indiana Appellate Court
• Writing for the Court: AX; COOPER
• Citation: Kunkel v. Arnold, 158 N.E.2d 660, 131 Ind.App. 219 (Ind. App. 1959)
• Decision Date: 15 May 1959
• Docket Number: No. 19199,19199
• Parties: Veronica KUNKEL, Trustee of Highland Township, Franklin County, State of Indiana, Appellant, v. Mary S. ARNOLD, Appellee.

Page 660

158 N.E.2d 660

131 Ind.App. 219

Veronica KUNKEL, Trustee of Highland Township, Franklin County, State of Indiana, Appellant, v. Mary S. ARNOLD, Appellee.

No. 19199.

Appellate Court of Indiana, In Banc.

May 15, 1959.

Virgil J. McCarty and Thomas O'Conner, Brookville, William B. Weisell and Kenneth L. Kleinsmith, Locke, Reynolds, Boyd & Weisell, Indianapolis, of counsel, for appellant.

Richard W. Gutherie, Murray, Mannon, Fairchild & Stewart, Indianapolis and Michael L. Bohland, Brookville, for appellee.

AX, Judge.

This appeal is predicated upon an action before the Industrial Board of Indiana by the appellee, a teacher-employee of the appellant, for compensation for injuries received in and resulting from a fall on January 25, 1956.

The appellee filed her Form No. 9 Application of Injured Employe with the Industrial Board for the Adjustment of Claim for Compensation on March 7, 1957, alleging that on January 25, 1956, she received injuries by reason of an accident arising out of and in the course of her employment by the defendant, now the appellant. The principal question at issue was whether or not the accidental injuries suffered by appellee arose out of and in the course of her employment with appellant.

The Application of the appellee was heard on the 17th day of October, 1957, by the Hon. R. M. Hennessy, a Hearing Member of the Industrial Board of Indiana, and on October 31, 1957, he found for the plaintiff, this appellee, and against the defendant, this appellant. Within the time provided by law an Application for Review before the Full Industrial Board was filed by this appellant, and after a Hearing before the Full Industrial Board on April 2, 1958, the said Full Board, on April 14, 1958, found that the plaintiff sustained an injury as a result of an accident arising out of and in course of her employment with the defendant, and awarded that the plaintiff, this appellee, recover from the defendant compensation at the rate of $33.00 per week, beginning January 25, 1956, and to continue during plaintiff's total disability and until terminated under the provisions of the Workmen's Compensation Law of the State of Indiana, said maximum compensation not to exceed $12,500.00, and further ordered reimbursement to plaintiff for $1,255.00 in medical and hospital expenses.

Appellant contends there is manifest error in the Findings of Fact and the Award of the Full Industrial Board of Indiana, in this, namely:

1. That the Award of the Full Industrial Board is contrary to law.

2. That the said Award is not supported by sufficient evidence.

3. That the evidence is not sufficient to sustain the Findings of Fact of the Full Industrial Board of Indiana.

On appeal to the Appellate Court from the Industrial Board of Indiana where the sole question presented was whether the injury arose out of and in the course of appellant's employment, the only proper assignment of error is that the award is contrary to law. Rohlwing v. Wm. H. Block Co., 1953, 124 Ind.App. 97, 115 N.E.2d 450; Scott v. Rhoads, 1943, 114 Ind.App. 150, 51 N.E.2d 89. Hence, in this case at bar we will only consider whether or not the award is contrary to law.

A review of the pertinent evidence in this case shows the following: That on the date that the injury occurred the appellee, aged sixty-four years, was employed by the appellant, Trustee of Highland Township, as a public school teacher at Cedar Grove School; that the Cedar Grove settlement is predominately Catholic; that there were approximately fifty pupils in the school and only two school teachers, one of whom was the claimant; that the public school building is located on grounds adjacent to and owned by a Catholic Church, said school building and grounds being leased from the Catholic Church by the appellant, trustee, for public school purposes; that there are both Catholic and Protestant students attending said public school; that it has been the custom for over forty years for the Catholic students to go to early Mass at the Catholic Church next door prior to the commencement of the daily school activities; that the school busses would start arriving at the playground of the school at approximately 7:15 A.M., but that school would not start until 8:30 A.M.; that a few minutes before 8:00 A.M. each school morning most of the Catholic students would line up on the school grounds and march over to the adjacent Catholic Church to attend Mass; that they would march over a sidewalk running from the school to the church; that the Catholic school children upon reaching the school grounds would sometimes go inside the public school building in times of inclement weather; that not all of the Catholic school children would go to early Mass, depending upon whether or not the public school busses got to school before 8:00 A.M.; that the Catholic school children attending Mass would usually line up in two lines and march over to the Church in pairs side by side; that if one of the public school teachers went along to Mass, that teacher would exercise discipline over the marching children and keep them in proper line; that nothing was ever said by the trustee, appellant, that either of the two public school teachers were required as a part of their teaching duties to march over with the Catholic school children to Mass or to exercise any discipline over the children while they were marching over to Mass; that although the appellant, trustee, had knowledge of the fact that one of the two teachers would usually fire the furnace of the school and occasionally ring the bell signifying that it was time for Mass and the other teacher would usually go to Mass with the children and supervise them, still nothing was ever said by the appellant to the teachers either ordering them to do these tasks or to refrain from them; that occasionally the children would be marched in by the bigger children without any teacher being present or going over to the Mass.

The evidence further shows--that on the morning that appellee's injury occurred she slipped and fell at the head of the line of children who, it may be inferred, were in line preparatory to attending Mass; that at a point on the sidewalk leading between the church and public school which point was on the school grounds, there was ice caused by water from a nearby pump; that this ice was covered by two to three inches of snow; that the appellee warned the children in line about the slick spot, turned around, slipped and fell, causing her serious injuries that led to the finding of the Full Industrial Board that she was totally disabled. Appellee, it appears from the briefs, was unable to appear and testify in her own behalf.

The Full Industrial Board after hearing argument of counsel and having reviewed all of the evidence in said cause, held that appellee's accidental injury arose out of and in the course of her admitted employment with the appellant. The three errors assigned by the appellant all are directed toward this finding and award based thereon, and the appellant's sole argument was that the activities of the appellee (public school teacher) at the time of the injury, namely, walking at the head of a column of children who attended school, on the way to Mass, was not an act of service, was not incidental thereto, and thus did not arise out of and in the course of her employment.

The Industrial Board is the trier of the facts and heard all of the evidence in this case as to the disability of appellee. Since the Full Board found as a matter of fact that appellee was totally disabled, and the question of disability was not raised by appellant, we will not discuss or disturb their finding as to the disability of appellee, but will consider herein only the question of whether or not the injuries of appellee arose out of and in the course of her employment.

In the course of her argument appellant attempts to show that the appellee was performing a duty or service, if any, for her church, and not for the school, her employer. Appellant further argues that neither going to Mass nor supervising some of the children on the trip to Mass could qualify as an act of duty or an act incidental to her employment.

In support of her argument, appellant urges that the activity in which appellee was engaged at the time of her injury could not constitutionally be made a part of her teaching activities--to do so would be in violation of the constitutional doctrine of the separation of church and state recently reaffirmed by the United States Supreme Court, citing the cases of People of State of Illinois ex rel. McCollum v. Board of Education, 1948, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649; Zorach v. Clauson, 1952, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954.

We do not feel in this case that we are concerned with the separation of the church and state, and that by arguing this appellant is merely attempting to cloud the issue. The above cases cited by appellant are in no way in point with the case at bar in view of the evidence in this case.

In reviewing the evidence most favorable to the appellee herein, which this court is bound to consider, we find that there is no evidence in the record that the appellee was actually engaged at the time of her injury in leading part of the school children to a Catholic Mass. The factual situation and inference which the Board may have drawn from the evidence does not bear out the assertion of appellant that the appellee was 'walking at the head of a column of children who attended school on the way to Mass.' As the award was favorable to the appellee, no inference can be drawn to support this statement by the appellant. On the other hand, the Board might have drawn a reasonable inference that the appellee, teacher, was only engaged in supervising, directing and protecting the children from injury on the playground of the school.

The only other teacher at the school apparently arrived at the school before appel...