Prater v. Indiana Briquetting Corporation, 768A119

• Decision Date: 08 April 1969
• Docket Number: No. 768A119,768A119
• Citation: 144 Ind.App. 349,246 N.E.2d 206
• Parties: Virginia PRATER and Virginia Prater, as Natural Guardian of Mark Prater, a Minor, Appellants, v. INDIANA BRIQUETTING CORPORATION, Appellee.
• Court: Indiana Appellate Court

Page 206

246 N.E.2d 206

144 Ind.App. 349

Virginia PRATER and Virginia Prater, as Natural Guardian of Mark Prater, a Minor, Appellants, v. INDIANA BRIQUETTING CORPORATION, Appellee.

No. 768A119.

Appellate Court of Indiana, In Bank.

April 8, 1969.

Rehearing Denied May 7, 1969.

William Garrard, Graham, Rasor & Harris, Warsaw, for appellants.

William L. Wilks, Hunt, Suedhoff & Wilks, Fort Wayne, for appellee.

PFAFF, Chief Justice.

This is an action brought by the appellants, Virginia Prater and Virginia Prater, as Natural Guardian of Mark Prater, a Minor, against the appellee, Indiana Briquetting Corporation, under the Indiana Workmen's Compensation Act for death benefits. Hearing was had before a single member of the Industrial Board on February 8, 1968, and the appellants were awarded nothing by way of their application. Review was had before the Full Board and the following finding and award entered:

'That on November 3, 1966, one Earmon Prater, plaintiffs' decedent was in the employ of the defendant at an average weekly wage in excess of $75.00; that on said date the said decedent was involved in an accident, which resulted in his immediate death on said date; that at the time of his said accident and death, the said decedent was engaged in a personal mission of his own, and that his said accidental injury and death did not arise out of and in the course of his employment with the defendant herein.

'The Full Industrial Board of Indiana now finds for the defendant and against the plaintiffs on plaintiffs' Form 10 application of dependents of deceased employee to the Industrial Board for the Adjustment of Claim for Compensation filed August 15, 1967.

'AWARD

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that the plaintiffs shall take nothing by virtue of their Form 10 application heretofor(e) filed August 15, 1967.'

Appellants assign as error that the decision of the Industrial Board is contrary to law.

The evidence discloses that on November 3, 1966, appellants' decedent, Earmon Prater, was employed by the appellee and was working the night shift, which ran from five o'clock P. M. until five o'clock A. M. At approximately eight forty-seven o'clock P. M. on the night in question, appellants' decedent was struck and killed by a train while crossing the railroad tracks which lay between appellee's plant and a building known as 'Woodie's Rent-It'. The evidence also discloses that at the time of his injury and death, Earmon Prater was on an 'informal break' from his employment as permitted by appellee, and was crossing the railroad tracks on a mission to secure soft drinks for himself and another night employee from a soft drink machine outside Woodie's Rent-It. Appellee's plant manager testified to an unwritten policy against employees leaving the premises except at lunch periods, and denied knowledge that the policy was not observed.

The sole issue presented by this appeal is whether the decedent's injuries arose out of and in the course of his employment.

In discussing this issue, we look to a recent opinion of this court wherein Judge Cooper presented an excellent review of the Indiana authorities pertinent to the question raised in this appeal. In B.P.O. Elks, $209 v. Sponholtz (1969), Ind.App., 244 N.E.2d 923, Judge Cooper stated:

'Under the authority of the Workmen's Compensation Act, and many cases decided by both the Supreme Court of Indiana and by this Court, it was the burden of the appellee herein to establish before the Industrial Board by evidence of probative value, free from conjecture, surmise, or mere guess, that the appellee suffered his injuries or met with his accident, while in the course of his employment, and under conditions which may be reasonably considered as incidental to his employment, or as having an incidental connection therewith * * *.'

In discussing the exact issue presented in this appeal, the court, in B.P.O. Elks, $209 v. Sponholtz, supra, quotes from the case of Williams v. School City of Winchester (1937), 104 Ind.App. 83, 95, 10 N.E.2d 314, in resolving the question of what constitutes an accident arising out of and in the course of employment. The court in Williams stated:

'An accident is said to arise out of the employment when there is a causal connection between it and the performance of some service of the employment. The causal relation is established when the accident is shown to have arisen out of a risk which a reasonable person might have comprehended as incidental to the employment at the time of entering into the employment, or when the evidence shows an incidental connection between the conditions under which the employe works and his resulting injury.'

It was, therefore, incumbent upon the appellant in the instant case to show that the injuries were sustained in the performance of a duty or duties required by the employer, and that the risk undertaken at the time of the accident was beneficial to the employer and was required by, or incidental to, that work which normally constituted the basis of his employment. In applying our compensation laws to the evidence of this case, it is our conclusion that there is no reversible error and that the evidence of the decedent's personal mission at the time of the accident in question sustains the award of the Industrial Board. As stated in Pittsburgh Testing Laboratories v. Kiel (1960), 130 Ind.App. 598, 167 N.E.2d 604:

'An accident occurring while an employee is going to or returning from his place of employment, or which occurs while the employee is engaged on a personal mission or errand, not connected with the duties of his employment, is not within the protection afforded employees by the Indiana Workmen's Compensation Act.'

In Gill v. James A. Gill & Sons etc. (959), 130 Ind.App. 1, 4, 159 N.E.2d 734, this court stated:

'The question of whether or not an injury arises out of and in the course of the employment is a question of fact. The burden of establishing such fact rests upon the claimant and on appeal we may view only that evidence most favorable to the appellee. Kinsey v. Sheller Manufacturing Corp., 1955, 125 Ind.App. 493, 499, 126 N.E.2d 267.

'A finding and award will not be disturbed upon the evidence unless it is of such a conclusive nature with all inferences reasonably deducible therefrom as to force a conclusion contrary to that reached by the board. U.S. Steel Corp. v. Dykes, 1958, 238 Ind. 599, 154 N.E.2d 111.'

In the case at bar the Full Industrial Board found that the decedent's injuries did not arise out of and in the course of his employment. In the opinion of this court, the evidence was sufficient to support the award of the Full Board, and we cannot say that as a matter of law we would have been forced to reach a contrary conclusion.

Finding no reversible error, the award of the Full Industrial Board of Indiana is hereby affirmed. Costs are taxed against appellants.

LOWDERMILK, P. J., and CARSON, COOPER, HOFFMAN and SULLIVAN, JJ., concur.

SHARP, J., dissents with opinion in which WHITE, J., concurs.

SHARP, Judge (dissenting).

I must respectfully dissent from the majority opinion in this case. I will not burden this opinion with citations calling for a liberal and broad construction of the Workmen's Compensation Act, although they are basic to my position in this case.

It should also be emphasized this is not a case involving the violation of a reasonable written or printed work rule under Burns' Ind.Stat.Ann. § 40-1208.

In addition to the evidence suggested in the majority opinion, it also is undisputed that the plant manager himself had sent Appellant's decedent and other employees to the same soft drink machine at Woodie's Rent-It, which was just across the railroad tracks from the plant. There was no soft drink machine on Appellee's premises. The decedent was on the night crew and there was no supervision of that shift. The decedent and one other employee were the only persons working on the night in question. Specifically the plant manager testified:

'Q You mentioned Woody's. Is this where the follows generally got cokes?

A Uh-huh. He had an outside machine, and still has.

Q I am not sure of one thing. You have said that you were aware they went and got cokes on their lunch period over here. Were you aware that went on day or night, they went and got them occasionally when they would take a break?

A Well, I hoped that, being a good boss, a lot of times, I would send them to get cokes or something. Being hot, I would send them down after root beer and coffee and doughnuts, every now and then.

Q On occasion other than lunch period?

A Yes, other than lunch period.

Q Did you ever give them any instructions not to go get cokes?

A Yes, I did. This was understood policy. You mean not to get cokes. I gave them authorization not to leave the plant other than at their lunch, when they had their lunch half hour.

Q You are telling me what you did tell them.

A This is what they had, no authorization to leave the plant. It took the men there to keep it running. They knew there was no time for them to be running around during working hours other than when they had their half hour for lunch. That was the understanding we had. This they understood.

Q Did you yourself tell this to Earmon Prater?

A You want to know if I remember it personally if I told it to him?

Q Yes.

A I think I did, because I had told them, because he worked for me a year or so before. And this was understood policy that they knew. Being crane operator that was working on that shift, he understood this policy.

Q Wouldn't as a matter of course sometimes the crane operator come over and relieve the other operator so he could go get coke or his coffee or something like that?

A Not to my knowledge this was being done. Because the crane operator had his own work to do. And the only time relief he was to give the press operator was during this half hour for lunch.

Q I...