National Helfrich Potteries Co. v. Collar
| Decision Date | 29 November 1939 |
| Docket Number | 16452. |
| Citation | 23 N.E.2d 620,107 Ind.App. 225 |
| Parties | NATIONAL HELFRICH POTTERIES CO. v. COLLAR. |
| Court | Indiana Appellate Court |
Slaymaker Merrell & Locke and L. A. Shaner, all of Indianapolis for appellant.
Forrest M. Condit, of Evansville, for appellee.
This is an appeal from an award of the Industrial Board which granted appellee compensation as the dependent widow of Arthur Collar deceased.
The Industrial Board found among other facts "that on March 28, 1938, while in the employ of the defendant (appellant here) * * * Arthur Collar suffered an injury as the result of an accident arising out of and in the course of his employment, * * * which said accidental injury resulted in the death of said Arthur Collar * * *".
On appeal appellant has assigned as error that the award is contrary to law.
The controlling question presented upon appeal is whether or not the evidence sustains the finding of the Industrial Board that decedent suffered an injury as the result of an accident arising out of and in the course of his employment, which injury resulted in his death.
It should be stated at the outset that there are very few facts if any, shown by the evidence which tend to prove that decedent's death did or did not arise out of his employment, but such facts, if any, which are shown are not much in dispute.
The evidence shows that on March 28, 1938, and for about two years prior thereto decedent was employed by appellant as a night watchman in and about appellant's pottery plant in Evansville. His duties included sweeping the floors. The plant was equipped with A.D.T. (American District Telegraph) service, and it was decedent's duty to "pull" each of eight A.D.T. boxes at the plant every hour beginning at 9:00 P. M. On the night of March 28, 1938, the local central A.D.T. office did not receive a report from appellant's plant at 9:00 P. M., and consequently a representative of the A.D.T. company made a run to the plant and found decedent dead, lying on his back on the second floor of one of appellant's buildings. A bullet had been shot into the center of his back. Another bullet was found in a door of a toilet near decedent's body. Decedent's revolver was lying on the floor near his body. It contained two cartridges which had been discharged, one which had been snapped but not discharged, and two which had not been snapped. The clothing which decedent wore at the time contained no evidence of powder burns. A broom with a broken handle was found near his body. The floor had been swept up to within twelve or fifteen feet of where his body was lying. Decedent's watch was found in his pocket. The room contained kilns used in the manufacture of bath room tanks and bowls. No other facts were shown, which showed or tended to show who shot decedent, or why he was shot.
Appellant cites Pioneer Coal Co. v. Hardesty, 1921, 77 Ind.App. 205, 133 N.E. 398, and Alexandria Metal Products Co. v. Newsome, 1933, 97 Ind.App. 420, 185 N.E. 520, in support of the contention that the evidence does not sustain the finding as to said controlling fact.
The facts in each of said cases, are quite similar to the facts in the instant case, in so far as the facts in each case relate to the question of whether or not the death of the employee in each case arose out of his employment. We do not think the present case can be distinguished from either of said cases on account of a difference in the facts in that respect.
The decisions in said cases are each based upon the well founded legal propositions that (1) "the burden of establishing each fact necessary to a legal award rests on the applicants" and (2) "such facts must be based on something more than mere guess, conjecture, surmise or possibility." This court concluded in each of said cases that there was no substantial evidence in the record to sustain the finding that the death of the employee arose out of his employment.
In Capital Paper Co. v. Conner, 1924, 81 Ind.App. 545-547, 144 N.E. 474, 475, this court for the first time announced the proposition:
That was the case of a salesman whose duties required that he travel in all parts of the city of Indianapolis who was struck and injured by a street car. The Industrial Board found that his injury and death arose out of the employment, and granted an award of compensation and this court affirmed the award. This court held further, however, in that case that there was evidence in the record from which a legitimate inference could have been drawn by the Industrial Board, that the injury and death arose out of the employment.
The Capital Paper Co. case, supra, is cited by this court in Czuczko v. Golden-Gary Company, 1931, 94 Ind.App. 47-55 and 56, 177 N.E. 466, 469, 179 N.E. 19 in support of the following statement: "If an employee, charged with the performance of a certain duty, is found injured at a place where it would be necessary, for him to be in performing that duty, there is a presumption that he was injured as a result of and in the course of his employment." (Our italics.) This court said, further in the Czuczko case, supra: " It is presumed that, when an employee is found dead at the place of his employment, he met his death while in the performance of his duties." (Our italics.)
Later in that opinion this court said: "Considering the facts in this case in the light of the above propositions of law [referring to the presumptions which we have quoted and other propositions, which are not material here] * * * we are justified in presuming that the decedent * * * having been found dead in the pit of the shaft of the elevator which he was employed to operate, and on and about which it was necessary for him to be in the performance of his duties, he received the injuries causing his death as a result of, in the course of, and while performing his duties; * * *." (Our italics.)
This court then reviewed the facts concerning the employee's death, which were shown in the evidence and said: (Our italics.)
In that case Czuczko, the employee, was employed by the Golden Gary Co. as an operator of a service elevator in a hotel. His hours of service were from 6:00 A. M. until 4:00 P. M. On September 3rd, 1927, he left his home about 6:00 A. M. to go to work. This was the last time he was seen alive. On September 7, 1927, four days later, his body was found in the bottom of the pit of said elevator. There was no evidence showing how or in what manner his body came to be in the pit.
The Industrial Board denied compensation. This court reversed the award with instructions to grant an award of compensation.
It is true that in said opinion this court refers to inferences which might be drawn from the facts proven which inferences, this court holds, support the finding that the injury and death arose out of the employment, but, the opinion clearly indicates that the decision of this court in that case is based primarily upon the presumptions which we have quoted, and not upon inferences to be drawn from facts proven or upon circumstantial evidence.
In the case of Fisher v. City of Decatur, 1934, 99 Ind.App 667, 192 N.E. 844, 845, Fisher, an employee of the City of Decatur was found drowned in a spray pool belonging to the city. There was no evidence showing how he came to be in the spray pool. This court, after reviewing the facts shown by the evidence, said: "He [Fisher] was where his duty called him and where * * * under the instructions given him [he] should have been.", and then the court said: ...
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Odd Fellows Cemetery of New Haven, Ind. v. Daniels
...Inc., 1931, 94 Ind.App. 47, 179 N.E. 19;Capital Paper Co. v. Conner, 1924, 81 Ind.App. 545, 144 N.E. 474;National Helfrich Potteries Co. v. Collar, 1939, 107 Ind.App. 225, 23 N.E.2d 620;Fisher v. City of Decatur et al. 1934, 99 Ind.App. 667, 192 N.E. 844. [4][5] The burden is upon the claim......