Slaubaugh v. Vore, 18357

• Decision Date: 04 February 1953
• Docket Number: No. 18357,18357
• Citation: 123 Ind.App. 497,110 N.E.2d 299
• Parties: SLAUBAUGH v. VORE.
• Court: Indiana Appellate Court

Page 299

110 N.E.2d 299

123 Ind.App. 497

SLAUBAUGH v. VORE.

No. 18357.

Appellate Court of Indiana, in Banc.

Feb. 4, 1953.

Burke G. Slaymaker, William B. Weisell, William E. Hart and Roy A. Pope, Jr., Indianapolis, for appellant.

S. Hugh Dillin and George N. Hornbrook, Petersburg, Dillin & Dillin, Petersburg, of counsel, for appellee.

ACHOR, Judge.

This is an application before the Industrial Board of Indiana for compensation under the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., because of the death of Fred Vore, husband of the appellee, which death allegedly occurred from personal injuries received by the decedent by reason of an accident arising out of and in the course of his employment by the appellant. At the time of his death, decedent was a tool dresser in the appellant's business of drilling oil and gas wells in Davies County, Indiana. The findings of fact by the Industrial Board are in part as follows:

On November 5, 1949 appellant's decedent, Fred Vore, was in the employ of appellant at an average weekly wage in excess of $42; that on said day Fred Vore died as a proximate result of personal injuries received by him on that day by an accident arising out of and in the course of his employment by appellant; that his death was due to aggravation of a previous heart condition caused by extreme exertion in the performance of his duties as an employee of appellant, causing his death by heart failure; that he left surviving him as his sole dependent the appellee, his widow age 57, who was wholly dependent upon him; that appellant had not paid the statutory burial allowance of $300, and that the parties had disagreed on the question of appellant's liability to appellee. Award was made accordingly.

The errors assigned and relied upon are that the award of the full Industrial Board of Indiana (1) is not sustained by sufficient evidence, and (2) is contrary to law. The appellant has properly assigned as error that the judgment is contrary to law. This places in issue the sufficiency of the evidence to support the award and appellant's contentions that the evidence is insufficient to show (1) that there was an injury by accident, and (2) that the death of the employee arose out of the employment.

It is appellant's contention that the evidence establishes, and that the Industrial Board found, that the decedent died from a bisease. That under the Indiana Workmen's Compensation Act injury or death by disease shall not be compensable unless such disease shall have been caused or aggravated by an 'accidental' injury arising out of the employment, and that a disease, or an aggravation of it, is an injury by accident only when the disease is contracted or aggravated as a direct result of unusual circumstances connected with the employment, § 40-1701(d), Burns' 1952 Repl., and the case of United Paperboard Co. v. Lewis, 1917, 65 Ind.App. 356, 360, 117 N.E. 276 is cited as authority for this position.

Appellant urges in the case at bar that no accident happened on November 5, 1949 while the employee was engaged in the performance of the work of his employment; that he put forth no different or greater exertion in doing his work on November 5, 1949 than he had theretofore put forth in doing the same work throughout the entire period of his employment, and that he put forth no greater exertion in doing such work than was put forth by other employees of the defendant in doing the same work.

Appellant contends further that, in order to be compensable, a causal connection must be established between the prior disease, the aggravation from it by his employment, and the injury or death resulting therefrom. The evidence most favorable to appellee, necessary to sustain the award, is as follows:

Fred Vore, on November 5, 1949, was a man 64 years old, five feet, 10 inches in height, and weighed 150 pounds. He had been under the care of a physician from 1940 until his death on account of a weakened heart condition and high blood pressure, both of which conditions continued until such time. Medical testimony defined deceased's various ailments, in addition to the high blood pressure, more precisely as 'incipient cardiac failure,' and 'hypertensive ancephalapothy.' Decedent was employed as a tool-dresser. Immediately prior to his death, he was sharpening a steel bit, used by appellant in drilling an oil well. To sharpen the bit, it was heated until 'white hot' and sledged with a 14 pound sledge for two or three minutes in each of several positions until properly shaped. On this occasion decedent sledged the bit in two or three positions. While he was sledging in the final position, appellant took down the lengths of some 20 joints of pipe and entered the 'dog house.' Upon entering the 'dog house' he proceeded immediately to add the 20 figures on an adding machine. The deceased entered the 'dog house' and fell dead while the addition was still in progress. It was only five feet from the point of work to the 'dog house' door. Appellant found deceased to be pulseless immediately upon adding his 20 figures.

We first consider appellant's contention that for a disease, in order to constitute an accidental injury, it must appear that the death or injury was caused or contributed to by some act which was different in kind or in exertion from the regular, ordinary work performed by the workman and those engaged in like occupation. It must be a sudden, unusual occurrence. See Estes v. Goodyear Tire & Rubber Co., 1951, Ohio Com.Pl., 99 N.E.2d 619.

The rule in Ohio is stated in the case of Estes v. Goodyear Tire & Rubber Co., supra. However, the courts of this state have not followed the Ohio rule. The rule in Indiana is now defined by the following cases: United Paperboard Co. v. Lewis, supra; Indiana Creek Coal & Min. Co. v. Calvert, 1918, 68 Ind.App. 474, 492, 119 N.E. 519, 525, 120 N.E. 709; Studebaker Corporation v. Jones, 1937, 104 Ind.App. 270, 275, 276, 10 N.E.2d 747.

In the case of United Paperboard Co. v. Lewis, supra, 65 Ind.App. at page 360, 117 N.E. at page 277, the court stated:

'* * * it is generally accepted that a disease which is not the ordinary result of an employe's work, reasonably to be anticipated as a result of pursuing the same, but contracted as a direct result of unusual circumstances connected therewith, is to be considered an injury by accident, and comes within the provisions of acts providing for compensation for personal injury so caused.'

It is to be observed that the court in the above case merely affirmed an award to an employee where the disease was a 'direct result of an unusual circumstance connected with his employment.' The court did not hold, as appellant in the case at bar contends, that compensation would not be allowed if he put forth no different or greater exertion than he had put forth during the entire period of his employment or than that put forth by other employees doing the same work.

In the case of Indian Creek Coal & Min. Co. v. Calvert, supra, this court was confronted with an award wherein death resulted from rupture of a diseased aorta (the great arterial trunk). Death followed pain experienced by decedent while pushing a coal car in a mine and the collapse came when decedent was loading coal, both in the ordinary way. A medical witness testified that any exertion or excitement which makes the heart beat more rapidly might produce the rupture. That from...