Woodlawn Cemetery Ass'n v. Graham

• Decision Date: 30 September 1971
• Docket Number: No. 1270A284,No. 2,1270A284,2
• Citation: 273 N.E.2d 546,149 Ind.App. 431
• Parties: WOODLAWN CEMETERY ASSOCIATION, Appellant, v. James T. GRAHAM, Appellee
• Court: Indiana Appellate Court

Page 546

273 N.E.2d 546

149 Ind.App. 431

WOODLAWN CEMETERY ASSOCIATION, Appellant, v. James T. GRAHAM, Appellee.

No. 1270A284.

Appellate Court of Indiana, Division No. 2.

Sept. 30, 1971.

Douglas E. Miller, Barrett, Barrett & McNagny, Fort Wayne, for appellant.

Edgar A. Grimm, Grimm & Grimm, Auburn, for appellee.

HOFFMAN, Chief Justice.

This is an appeal from an award of the Full Industrial Board of Indiana ordering appellant-Woodlawn Cemetery Association to pay appellee-James T. Graham benefits for 100% permanent partial impairment for the loss of an eye.

The employer-appellant asserts that the award of the Full Industrial Board is contrary to law in three particulars:

I. In finding that the accident arose out of the employment.

II. In finding that the accident arose in the course of the employment.

III. In finding that the medical expenses were $2,317.80.

The sole error assigned, i.e., that the award of the Full Industrial Board is contrary to law, presents both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts. Harrison Steel Castings Company v. Daniels (1970), Ind.App., 263 N.E.2d 288, 290, 23 Ind.Dec. 378; White v. Spencer Cardinal Corp. (1939), 106 Ind.App. 338, 19 N.E.2d 866.

When reviewing an award of the Full Industrial Board this court may not weigh the evidence. A finding of fact by the Board, when supported by competent evidence, is conclusive and an award based thereon will not be disturbed on appeal. Burger Chef Systems, Inc. v. Wilson (1970), Ind.App., 262 N.E.2d 660, 662, 23 Ind.Dec. 174; Kiddie Knead Baking Co. v. Bolen (1939), 106 Ind.App. 131, 17 N.E.2d 477.

In Davis v. Webster (1964), 136 Ind.App. 286, at 291, 198 N.E.2d 883, at 885, Judge Hunter, speaking for this court, stated:

'In determining the correctness of the finding of the Industrial Board this court must accept only the evidence most favorable to the appellee.'

See also:

Harrison Steel Castings Company v. Daniels, supra.

The record contains the following evidence most favorable to the employee-appellee:

Appellee-Graham and two fellow-workers approximately 18 years of age worked together in appellant-Woodlawn's cemetery. Upon their arrival for work in the morning these three young employees would be assigned a certain area in the cemetery to mow the grass and trim around the grave markers. After completing an area they would return to the 'shed' and their supervisor would instruct them further as to their duties. Typically, after completing their work in each section, this threesome would 'take a break' and go 'get a drink of water' before resuming their duties.

At approximately 10:30 A.M., on July 25, 1968, Graham and his fellow-workers finished moving around the grave markers in the area assigned and 'went to the pump in the back of the competery to get a drink of water.' After refreshing themselves, the young workers sat down at the edge of a gravel and stone road which ran through the cemetery. Graham picked up a stone and 'flipped' it into the road, about three or four feet from his fellow-workers. The other two employees picked up some stones and started throwing them. Graham 'yelled' for them to quit throwing the stones at him, but they continued to 'pepper' stones at him after he had taken refuge behind a tombstone. Graham threw no rocks at his fellow-workers and does not know which of the two threw the first rock at him. While crouched behind the tombstone he again cried out asking that they quit throwing stones at him.

While trying to come out from behind the tombstone Graham was struck in the right eye by a stone which had been thrown by one of his fellow-workers. The injury thus sustained caused a complete loss of vision in his right eye.

I. In support of its contention that the accident did not arise out of the employment, Woodlawn contends that the employees were engaged in 'horseplay.' The second of the three ¹ prerequisites to a compensable injury arise out of the employment, relates to the problem of causation. When, to a rational mind, there is a causal connection between the conditions under which the work is required to be performed and the injury which resulted, it may be said to have arisen out of the employment. E.I. Du Pont, etc. v. Lilly (1948), 226 Ind. 267, 271, 79 N.E.2d 387; Burger Chef Systems, Inc. v. Wilson, supra.

With regard to 'horseplay', it is a matter of common knowledge and concern to employers of men working together that they will occasionally indulge in moments of diversion from their work to play pranks on each other. Because of this fact the risk of accident is necessarily increased, and this increased risk is a risk of the employment. Chicago, etc. R. Co. v. Clendennin (1924), 81 Ind.App. 323, 327, 143 N.E. 303. Small, Workmen's Compensation Ind. Law, § 6.9, at 135.

Thus, unless Graham is barred by 'horseplay', an injury caused by this increased risk of employment does arise out of the employment.

In support of its contention that 'horseplay' is a bar to recovery Woodlawn cites Block v. Fruehauf Trailer Division Fruehauf Corp. (1969), Ind.App., 252 N.E.2d 612, 19 Ind.Dec. 489. Block is clearly distinguishable from the instant case. In Block the employee was injured while actively engaged in the 'Horseplay', and it was not disputed that just prior to the time the employee fell and was injured he had given chase, indeed, had thrown his gloves at the 'prankster.' The majority opinion of this court at 615 of 252 N.E.2d, stated:

'It is certainly true that one who is the innocent victim of another's prank may be compensated. In re Loper, 64 Ind.App. 571, 574, 116 N.E. 324 (1917); Western Union Tel Co. v. Owens, 82 Ind.App. 474, 146 N.E. 427 (1925).'

While we might question the logic and the theoretical basis for denying compensation to a participant, (See: Small, Workmen's Compensation Ind. Law, § 6.9, at 136--7), the issue is not presented in this appeal. The record in the instant case contains competent evidence to support what is implicit within the award, i.e., appellee-Graham was an innocent victim. An award based upon competent evidence will not be reversed on appeal. Burger Chef Systems, Inc. v. Wilson, supra; Kiddie Knead Baking Co. v. Bolen, supra.

II. Woodlawn argues that because Graham was on a 'break'--getting a drink of water--when he was injured, the accident did not arise in the course of his employment. In D.A.Y. Construction Co. v. Smallwood (1937), 104 Ind.App. 277, at 279, 10 N.E.2d 750, at 751, we said:

'This court has correctly held that an accident occurs in the course of the employment, within the meaning of the compensation act, when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is fulfilling the duties of his employment, or is engaged in doing something incidental to it.'

Stanley v. Riggs Equipment Co., Inc. (1962), 133 Ind.App. 86, 92, 178 N.E.2d 766; Tom Joyce 7 Up Company v. Layman (1942), 112 Ind.App. 369, 375, 44 N.E.2d 998.

In Holland, etc. Sugar Co. v. Shraluka (1917), 64 Ind.App. 545, at 549, 116 N.E. 330, at 331, this court stated:

'Such acts as are necessary to the life, comfort, and convenience of the workman while at work, though personal to himself, and not technically acts of service, are incidental to the service; and an accident occurring in the performance of such acts is deemed to have arisen out of the employment. Such acts are regarded as inevitable incidents of the employment, and accidents happening in the performance of such acts are regarded as arising out of and in the course of the employment.'

Indianapolis Electric, etc. Co. v. Lux (1922), 77 Ind.App. 286, 130 N.E. 153 (transfer denied).

There is sufficient competent evidence in the record before us to support the conclusion that...