Townsend & Freeman Co. v. Taggart

• Decision Date: 26 June 1924
• Docket Number: No. 11837.,11837.
• Citation: 81 Ind.App. 610,144 N.E. 556
• Court: Indiana Appellate Court
• Parties: TOWNSEND & FREEMAN CO. v. TAGGART.

81 Ind.App. 610

144 N.E. 556

TOWNSEND & FREEMAN CO.

v.TAGGART.

No. 11837.

Appellate Court of Indiana.

June 26, 1924.

Appeal from Industrial Board.

Proceeding under Workmen's Compensation Act by Hannibal P. Taggart, claimant, against the Townsend & Freeman Company, employer. From an order of the Industrial Board granting an award, the employer appeals. Affirmed.

Superseding former opinion in 142 N. E. 657.

J. W. Hutchinson, of Indianapolis, for appellant.

John Rynerson, of Columbus, for appellee.

REMY, J.

Appellee was employed by appellant to haul logs to appellant's sawmill, located in the town of Nashville. On the morning of September 7, 1922, appellee and a fellow employé, under the direction of appellant, left Nashville with two wagons, a four-horse team and a two-horse team, to haul logs from a place about five miles distant. Arriving at the place where they were to get the logs, they assisted each other in loading the wagons; appellee doing most of the work. The logs on the wagons, the two men, at about 9:30 o'clock, started to the mill, appellee in charge of the four-horse team. In driving the five miles, appellee rode one of the horses a part of the time. The way to the mill was over a graveled road. The day was hot, the maximum temperature being 100 degrees Fahrenheit, and the sun was shining brightly. Appellee had no protection from the sun. The teams moved slowly, and arrived at the mill about noon. Immediately upon arrival, the teams were unhitched, and appellee rode one of the horses to a nearby barn. Just as he dismounted from the horse, appellee suffered a sunstroke which resulted in permanent disability.

From an award of compensation to appellee, this appeal is prosecuted.

[1] The only question presented is whether, under the facts stated, and which were found by the Industrial Board, appellee's injury was an accident arising out of his employment. The word “accident” in section 2 of the Workmen's Compensation Act (Acts 1917, p. 673; section 8020m, Burns' Supp. 1918) is used in its popular sense, and means any mishap or untoward event not expected or designed. Haskell, etc., Car Co. v. Brown (1917) 67 Ind. App. 178, 117 N. E. 555; Fenton v. Thorley & Co., Ltd. (1903) App. Cas. 443. Within the meaning of this definition, a sunstroke may be, and the sunstroke suffered by appellee was, an accidental injury. See Kanscheit v. Garrett Laundry Co. (1917) 101 Neb. 702, 164 N. W. 708; Morgan v. Owners of Steamship Zenobia (1909) 25 T. L. R. 446; State ex rel. Rau v. District Court (1917) 138 Minn. 250, 164 N. W. 916, L. R. A. 1918F, 918; Ismay, Imrie & Co. v. Williamson (1908) App. Cas. 437. See, also, Elsey v. Fidelity, etc., Co. (1918) 187 Ind. 447, 120 N. E. 42, L. R. A. 1918F, 646, and cases cited.

It is earnestly contended by appellant that, even if the sunstroke suffered by appellee was an accidental injury, the award cannot be upheld, for the reason that there is no evidence to support the finding of the Board that it arose out of his employment. We cannot concur in this view.

[2] If the employment of a workman at the time he received a sunstroke was such as would expose him to a hazard beyond that of the general public, then the disability resulting from the sunstroke will be regarded as due to an accident arising out of the employment. Ahern v. Spier (1918) 93 Conn. 151, 105 Atl. 340;Cunningham v. Donovan (1919) 93 Conn. 313, 105 Atl. 622;Lane v. Horn & Hardart Baking Co. (1918) 261 Pa. 329, 104 Atl. 615, 13 A. L. R. 963;City of Joliet v. Industrial Commission (1920) 291 Ill. 555, 126 N. E. 618;Young v. Western Furniture Co. (1917) 101 Neb. 696, 164 N. W. 712, L. R. A. 1918B, 1001; Davies v. Gillespie (1911) 28 T. L. R. 6; Artman's Workmen's Compensation Manual, 42.

[3] On the day appellee received the sunstroke, he did what under his employment he was required to do, and in the way he was required to do it. His work took him upon the graveled highway, where with his team and wagon he moved slowly, going a distance of five miles in about two and one-half hours, on one of the hottest days of the year, without protection from the sun's rays,...