Union Sanitary Manufacturing Company v. Davis

• Decision Date: 05 April 1917
• Docket Number: 9,661
• Citation: 115 N.E. 676,64 Ind.App. 227
• Parties: UNION SANITARY MANUFACTURING COMPANY v. DAVIS
• Court: Indiana Appellate Court

115 N.E. 676

64 Ind.App. 227

UNION SANITARY MANUFACTURING COMPANY v. DAVIS

No. 9,661

Court of Appeals of Indiana

April 5, 1917

From the Industrial Board of Indiana.

Action by Frank L. Davis under the Workmen's Compensation Act against the Union Sanitary Manufacturing Company. From an award, the defendant appeals.

Reversed.

Thomas E. Kane and Ralph K. Kane, for appellant.

Cassius M. Gentry and Frank S. Campbell, for appellee.

OPINION

IBACH, P. J.

This is an appeal from the award of the full board. The facts sufficiently appear from the finding of facts filed with the record and are as follows:

"On the 21st day of October, 1915, the plaintiff was in the employment of the defendant at its factory in the city of Noblesville, Hamilton county, State of Indiana, in the capacity of a moulder at an average weekly wage of $ 12.00 that on said date plaintiff received a personal injury by an accident arising out of and in the course of his employment resulting in a compound fracture of the olecranon process of the left elbow, and a slight scalp wound in the left temporal region, requiring two sutures; that the defendant, by and through its officers and agents, had actual knowledge of the plaintiff's injury on the day on which it occurred; that the plaintiff's injury, without any further surgical operation, has produced a 75% permanent impairment of the natural use and functions of the plaintiff's entire left arm; that by a proper surgical operation the degree of permanent impairment of the natural use and functions of said arm may be reduced to at least 50%; that the particular facts attending the plaintiff's injury are as follows: That the plaintiff, at the time of his injury, was working in the defendant's factory in the city of Noblesville, Indiana as a moulder; that under the terms of his employment he was required to use, during the afternoon of each day, a ladle in carrying and depositing in the proper moulds, molten metal; that for such purpose he was provided with a ladle with a handle of the proper length to be suited to his particular use; that under the custom of the work in the defendant's factory the ladles were required to be relined with fire clay during the forenoon of each day following their use during the afternoon of the previous day; that the plaintiff had used his ladle on the afternoon of October 20th, 1915, and had placed it in the ladle room for relining; that on the afternoon of October 21st, 1915, the plaintiff went to the ladle room to procure his ladle and found that it had not been relined; that one Walter Crawford, an employe of the defendant, and one Rick McPherson, also an employe of the defendant, were charged with the special duty of relining the ladles of the moulders; that on the afternoon of October 21st 1915, when the plaintiff found that his ladle had not been relined, he made complaint thereof to Walter Crawford, and out of his complaint a heated argument arose between the plaintiff and the said Walter Crawford, taking place in language in common use in the defendant's factory; that as a result of said argument the said Walter Crawford committed an assault and battery at the time, upon the plaintiff, with an iron bar, inflicting the injuries which have heretofore been described; that from the evidence in this case the full board is unable to find that the assault and battery upon the plaintiff and his injuries were produced by the wilful misconduct of the plaintiff or that he was the aggressor in the encounter which resulted in his injury; that this proceeding has been defended without just ground therefor."

In addition to the foregoing facts the uncontradicted evidence shows that appellant had a foreman and assistant foreman on duty at its plant on the afternoon of the day of the injury and that it was a part of their duties to hear complaints on the part of the men and to rectify their troubles; that it was the duty of appellee when he found his ladle was not properly lined to report it to the foreman. Appellee did not complain to either the foreman or assistant foreman, but a short time prior to his injury did complain to a man named McPherson whose duty it was to reline hand-ladles, the kind appellee was using. Appellee as a witness on his own behalf testified that it was the duty of the foreman to see that everything was run under the foundry laws and to see that the work was done properly by the men; that if anything was wrong in the shop the men went to the foreman with their complaints; that the proper place for him to have gone with the complaint that his ladle was not lined, or was improperly lined, was to the foreman, but that he met Crawford and got into a controversy with him over his ladle not being lined; that he started the controversy. The uncontradicted evidence further shows that it was not a part of Crawford's duties to reline hand-ladles, but that this part of the work was done by McPherson. Crawford was not in the ladle room at the time the controversy arose but was then engaged in pouring metal near the cupola; that the work of relining ladles was done in the forenoon and the injury occurred in the afternoon. Crawford was a very quiet fellow and never had very much to say and got along well with the men.

One of the errors assigned and relied on for reversal is that "the award of the Industrial Board of Indiana in this cause is contrary to law." Under § 61 of the Workmen's Compensation Act (Acts 1915 p. 392) as amended by the act of 1917 (Acts 1917 p. 154) this assignment is sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.

Section 2 of the original act provides: "From and after the taking effect of this act, every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; * * *." (Our italics).

It is the contention of appellant that the finding does not show that the injury of the appellee arose "out of and in the course of the employment" and therefore the award is contrary to law. While the question here presented is one of first impression in this State, the language italicized is identical with that of a number of statutes of other states and with that of the British compensation acts from which many provisions of the earlier statutes in America were taken. A reading of the decisions in such foreign jurisdictions will therefore be helpful in determining the question now before us.

The burden of furnishing evidence from which the inference could be reasonably drawn that plaintiff's injuries were caused by an "accident arising out of and in the course of the employment" within the meaning of the Workmen's Compensation Act, rested upon plaintiff. Dragovich v. Iroquois Iron Co. (1915), 269 Ill. 478, 109 N.E. 999; Savage's Case (1915), 222 Mass. 205, 110 N.E. 283; Von Ette's Case (1916), 223 Mass. 56, 111 N.E. 696, L. R. A. 1916 D 641; Ohio Bldg. Vault Co. v. Industrial Board (1917), 277 Ill. 96, 115 N.E. 149.

It has been held that an injury arises "out of" the employment "when it is something the risk of which might have been contemplated by a reasonable person, when entering the employment; as incidental to it. * *...