Radanovich v. Studebaker Corp., 17516.

• Decision Date: 28 October 1946
• Docket Number: No. 17516.,17516.
• Citation: 117 Ind.App. 52,69 N.E.2d 132
• Parties: RADANOVICH v. STUDEBAKER CORPORATION.
• Court: Indiana Appellate Court

117 Ind.App. 52

69 N.E.2d 132

RADANOVICH

v.STUDEBAKER CORPORATION.

No. 17516.

Appellate Court of Indiana, in Banc.

Oct. 28, 1946.

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by George Radanovich to recover compensation for personal injuries, opposed by the Studebaker Corporation. From an order of the Industrial Board dismissing the application, the employee appeals.

Award affirmed.

Theodore G. Ward, of South Bend, for appellant.

Crumpacker, May, Carlisle & Beamer, of South Bend, for appellee.

DRAPER, Judge.

It appears that the appellant, while employed by the appellee in its aviation division, requested transfer to its automotive division, and for the purpose of the transfer was required to submit to a physical examination. The transfer was effected and he was put to work trucking lumber on a push truck. About one year later while so employed, an overhead door dropped on his head, causing the injuries complained of.

The appellee filed a motion to dismiss appellant's application for compensation, in which motion the appellee challenged the jurisdiction of the Industrial Board on the ground that the appellant, when transferred, had elected to exempt himself from the operation of the Indiana Workmen's Compensation Law. Burns' Ann.St. § 40-1201 et seq.

The Board heard evidence and found that after the appellant was examined he was informed that because of his physical condition he was not suitable for the desired employment, and in order to work for the appellee he was requested to sign the notice of employee's rejection of the provisions of the Act, and that he did sign said rejection. On this finding the Board entered an order dismissing the application.

At all times herein mentioned the appellee was operating under and was bound by the terms of the Act. The question as to whether the appellant knew what he was signing was involved below but is not urged here. In the state of the record as it comes to us we must assume that he did know.

The type or character of the employment was not such as to make the Act compulsory, and the appellant, therefore, had the undoubted right to elect to exempt himself from the operation of the Act. We concede appellant's contention that such an election, to be valid and binding upon him, must be a free and voluntary one, uninduced by fear, fraud, intimidation or coercion of any kind or nature. We cannot, however, adopt the view that to make a rejection of the Act by an employee a condition precedent to employment must, under any and all circumstances, be considered to be coercive.

The employment relationship is a contractual one. The employer has the right to refuse employment to a physically impaired applicant therefor, and in this case had previously refused employment to the appellant because of physical impairment. An employee, on the other hand, has the right to accept or refuse employment upon the terms offered.

The appellant was refused a transfer because of his physical...