Lincoln v. Whirlpool Corp., No. 771A129

• Docket Nº: No. 771A129
• Citation: 279 N.E.2d 596, 151 Ind.App. 190
• Case Date: February 22, 1972
• Court: Court of Appeals of Indiana

Page 596

279 N.E.2d 596 151 Ind.App. 190 Linda Lou LINCOLN et al., Appellants,
v.
WHIRLPOOL CORPORATION, Appellee. No. 771A129. Court of Appeals of Indiana, Third District. Feb. 22, 1972.
Rehearing Denied April 6, 1972.

[151 Ind.App. 191]

Page 597

Gerald G. Fuchs, Robert L. Simpkins, Raymond P. Knoll, Evansville, for appellants.

[151 Ind.App. 192] Gaylon L. Clark, McCray, Clark, Statham & McCray, Evansville, for appellee.

STATON, Judge.

This is an appeal from a negative award of the Full Industrial Board. Kenneth Wayne Lincoln was employed as a punch press operator on the 4:00 P.M. to the 12:30 A.M. shift at Whirlpool Corporation in Evansville, Indiana. He was shot and killed on June 19, 1969 at approximately 7:58 P.M. while waiting for the factory whistle to blow so that he could go to lunch.

Kenneth Wayne Lincoln had arrived at a back gate to the plant at approximately 7:55 P.M. on June 9, 1969. Employees were usually given 5 minutes to wash up before going to lunch. Kenneth Lincoln's lunch period was from 8:00 P.M. to 8:30 P.M. There were approximately 50 to 60 employees gathered around the fence and gate waiting to go on their lunch period when Ricky Lee Whitehouse, age 14, commenced pinching and goosing Kenneth Lincoln through the fence and calling him obscene names. They were both engaged in a verbal exchange with one another. Robert Valention Alvey testified 'He was laughing with the boy. They were both cutting up.' Ricky Lee Whitehouse in a joking manner addressed the guard at the gate and said, 'Can I whip his ass?' Ricky Lee Whitehouse was only 5 1 tall and weighed approximately 125 pounds while Kenneth Wayne Lincoln was 27 years old, approximately 5 tall and weighed 175 pounds. When the guard unlocked the gate, Ricky Whitehouse pushed it open. Kenneth Lincoln had taken off his belt and as he stepped out of the gate Ricky Whitehouse kicked him on the leg. Lincoln in a playful and light manner struck Whitehouse on the leg with his belt. One witness testified that Lincoln barely touched him on the leg. When Kenneth Lincoln struck Whitehouse on the leg with his belt, somebody hollered from the back, 'Don't hit him on the leg, hit him on the ass.' Ricky Whitehouse, no longer laughing or smiling, pointed his finger at him (Lincoln) and said, 'Just wait, I'll be right back, [151 Ind.App. 193] I'll fix you." Ricky Whitehouse turned and ran across the street and went into a house three or four doors up the street.

Page 598

The factory whistle had not blown for the waiting employees to leave the plant premises for their lunch period. It was customary for some of the employees to be standing just outside the gate prior to the blowing of the whistle. At 7:58 P.M., Kenneth Lincoln was leaning against the guard shack just outside the gate. Ricky Whitehouse returned to the gate with a gun in his hand. He said, 'See, I have the clip, but I still have one in the chamber.' Lincoln did not reply or move. Within seconds Ricky Whitehouse pulled the trigger and shot Lincoln who died before reaching the hospital.

Linda Lou Lincoln, Kenneth Lincoln's widow, filed a Form 10 Application on June 28, 1969. A hearing was held before a single member of the Industrial Board on September 29, 1969. Thereafter, a hearing was held before the Full Board on July 1, 1970 and a negative award was entered on June 16, 1971, which is as follows:

AWARD

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that the Plaintiffs shall take nothing by their Form 10 Application of Dependents of Deceased Employe for the Adjustment of Claim for Compensation, filed on the 28th day of June, 1969.'

The Industrial Board filed with this court the following 'Additional Findings of Fact' which, after omitting the formal parts thereof, reads as follows:

'Comes now the Industrial Board of Indiana and, pursuant to the request of the Appellate Court of Indiana, now makes, enters and certifies to the Appellate Court the following additional findings of facts in the above captioned case now pending on appeal:

1. That at the time of the plaintiffs' decedent's death he was not performing any work or labor for his employer.

2. That at the time of the plaintiffs' decedent's death he was awaiting his lunch period and engaging in horse [151 Ind.App. 194] play with a person who was not an employee and said plaintiffs' decedent was engaging in no activity beneficial to his employer.

Based upon the foregoing additional findings of fact the Full Industrial Board of Indiana now makes the following conclusions of law based thereon:

1. Plaintiffs' decedent's said injury by gunshot wound which resulted in his death did not arise out of and in the course of his employment with the defendant herein;

2. Plaintiffs' decedent's injury and subsequent death arose out of matters wholly unrelated to his employment with said defendant.

IT IS, THEREFORE, ORDERED by the Full Industrial Board of Indiana that the plaintiffs shall take nothing by their Form 10 Application.'

The 'Assignment of Errors' is:

1. That the award of the Full Board is contrary to law.

2. That the award is not sustained by sufficient evidence.

The Appellants'-Plaintiffs' brief reduces the error for review by this court as follows: 'The issues presented for review in this Appeal to this Court is whether the award of the Full Industrial Board of Indiana is contrary to law.'

If the award of the Full Industrial Board is based upon competent evidence, it will not be reversed on appeal: Burger Chef Systems, Inc. v. Wilson (1970), Ind.App., 262 N.E.2d 660 (23 Ind.Dec. 174); Kiddie Knead Baking Co. v. Bolen (1939), 106 Ind.App. 131, 17 N.E.2d 477.

We may reverse a negative award only if it appears that the Full Board's decision

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was erroneous as a matter of law. It is not necessary for Whirlpool Corporation to show that the negative award is supported by a preponderance of the evidence. It is the Appellants'-Plaintiffs' burden to prove their right to compensation. Dooley v. Richard's Standard Service (1969), Ind.App., 251 N.E.2d 449; Thomas Products Co., Inc. v. Review Board (1969), Ind.App., 251 N.E.2d 473.

It is the duty of the Board to [151 Ind.App. 195] weigh the evidence and draw reasonable inferences from the facts. In order to reach a contrary conclusion, we may not disregard any reasonable inference drawn by the Board from the facts which the evidence tends to...