U.S. Steel Corp. v. Cicilian

• Decision Date: 27 February 1962
• Docket Number: No. 2,No. 19582,19582,2
• Citation: 133 Ind.App. 249,180 N.E.2d 381
• Parties: UNITED STATES STEEL CORPORATION a Corporation, Appellant, v. Anna CICILIAN, Appellee
• Court: Indiana Appellate Court

Page 381

180 N.E.2d 381

133 Ind.App. 249

UNITED STATES STEEL CORPORATION a Corporation, Appellant, v. Anna CICILIAN, Appellee.

No. 19582.

Appellate Court of Indiana, Division No. 2.

Feb. 27, 1962.

White, Raub & Forrey, Indianapolis, Stevenson, Conaghan, Hackbert, Rooks & Pitts, Chicago, Ill., for appellant.

Mario B. Tomsich, Gary, for appellee.

KELLEY, Presiding Justice.

Appellee, as sole dependent of her husband, John J. Cicilian, deceased, duly filed her application for adjustment of claim for benefits under the Workmen's Compensation Act, alleging, in substance, that said decedent died as a proximate result of personal injuries received by him by reason of an accident arising out of and in the course of his employment by the appellant.

A hearing before a single member of the Board resulted in a finding that decedent sustained a fatal injury which did not arise out of his employment and awarded that appellee take nothing as against appellant. The Full Board, upon a hearing of appellee's petition for review of the original award, found that decedent 'sustained a fatal injury, which arose out of and in the course of' decedent's employment 'on the defendants (appellant's) premises,' and entered an award of recovery by appellee.

Under the proper assignment that said award of the Full Board is contrary to law, appellant, by its brief, advances the contention that the decedent's fall during his lunch hour from the roof of a building in which he had no duties to perform and from a height to which he was specifically forbidden to go did not arise out of and in the course of his employment, and therefore his resulting death is not compensable under the Workmen's Compensation Law.

Appellee has not favored us with an answer brief and, consequently, while we do not consider this as a proper case in which to consider the failure to file such brief as a confession of error (see Busick v. Barger (1952), 230 Ind. 198, 102 N.E.2d 499; Meadows v. Hickman (1947), 225 Ind. 146, 73 N.E.2d 343), we may, nevertheless, consider the statements in appellant's brief as to the record as conclusive when such statements are not in conflict with the parts of the record set forth in such brief, and reverse the award if appellant's brief makes a prima facie showing of error. (See cases collected in West's Ind.Dig., Vol. 4, Appeal and Error, k773(5) and same section in 1961 Cum.Ann.Pocket Part of same work. See, also, I.L.E., Vol. 2, Appeals, § 394, and cases cited in the notes thereto.)

The burden was upon appellee to establish by evidence of probative value, free of conjecture, surmise, or mere guess, that decedent suffered his fatal accident while in the course of his employment and under or by reason of conditions which may be reasonably considered as incidental to his employment or as having an incidental connection therewith. Mishawaka Rubber & Woolen Mfg. Co. v. Walker (1949), 119 Ind. App. 309, 84 N.E.2d 897. It is no longer sufficient to predicate liability of the employer upon mere proof that the employee's accident or injury occurred while he was at the place of his employment, or, in other words, because he was then employed by the employer at the place of the occurrence. It is now essential that there be evidence to establish that the accident or injury 'arose' out of the employment by reason of some causal connection between the employment and the performance or fulfillment of some service or the duties thereof, and that such accident or injury occurred within the period of such employment at a place where the employee, by reason of said employment might reasonably be expected to be at the time of the accident or injury. In general, see I.L.E., Vol. 30, Workmen's Compensation, § 315, and citations in notes.

The evidence, as reflected by appellant's brief, tends to disclose that decedent, on August 8, 1958, was in appellant's employ and was 'fitting up castings' in the building designated as 10-3. Some years prior to the accident decedent had lost an eye and on March 28, 1949 was authorized by the Medical Department to resume work on the condition that he was to do 'no climbing' and he was therefor 'grounded' and forbidden 'to go up any heights at all.' About three weeks before the fatal day decedent complained of not feeling well 'maybe a little nervous', and requested a transfer to a 'big machine' because 'he wanted to get away from any responsibility.' The transfer was granted but he remained there only a week or two when, at his request, he was transferred back to his old job in said building 10-3 about one week prior to the date of the fatal occurrence.

There is another building, designated as 10-2, 'the Merchants Mill', the entrance to which is '200 or 250' feet from said '10-3 mill.' Along the top of the said building 10-2 runs a 'cat-walk' behind an iron railing which extends to and beyond a point over and above the said entrance to said building 10-2. Above this entrance is a window to which there is no access, and above said window and running to the eaves of the roof of said building 10-2 are 'eight or nine' 'electric wires or cables'. These cables extend out over the 'walk-way' which leads to said entrance to said building. Inside said building 10-2 is the rolling mill and a 'pulpit' wherein the operator works the electric controls of hot steel rods. This pulpit is '10 or 15 feet' from said entrance. The roof of said building 10-2 descends sharply from said catwalk to its edge, the actual width of said roof from its edge to the catwalk being undisclosed.

On August 8, 1958 decedent and two other employees worked in said building 10-3 until about 11 o'clock the morning of that day. At that time he told one of his co-workers that 'he was a little tired and warm' and the co-worker told him to rest a little. He came back before the noon lunch hour and ate lunch with the two co-workers, starting about five minutes before twelve o'clock. In some ten minutes or so, the co-workers finished their lunch and one of them went outside the building 10-3 and laid down and the other laid down inside the building. At that time the decedent was 'still eating grapes in the same spot.' Apparently said two co-workers dozed off while the decedent was...