No. 11,489 | Ind. Ct. App. | Dec 8, 1922
Lead Opinion
after making the foregoing statement:
It is obvious that the Industrial Board was justified in finding that the workman received his injury by accident arising out of and in the course of his employment. In other words, that finding is a legitimate conclusion drawn from the evidence. It may be that the workman manifested very poor judg
Appellant contends, however, that the workman was doing his work “in a perilous and unreasonable way” and that therefore it should not be held that the injury arose out of and in the course of his employment. In support of the contention appellant relies on the case of Inland Steel Co. v. Lambert (1917), 66 Ind. App. 246" court="Ind. Ct. App." date_filed="1917-12-19" href="https://app.midpage.ai/document/inland-steel-co-v-lambert-7067533?utm_source=webapp" opinion_id="7067533">66 Ind. App. 246, 118 N. E. 162. As to the proposition that whether an injury arises out of and in the course of the employment is a conclusion of law and not an ultimate fact, the Lambert case has been overruled. Muncie Foundry, etc., Co. v. Thompson (1919), 70 Ind. App. 157" court="Ind. Ct. App." date_filed="1919-05-09" href="https://app.midpage.ai/document/muncie-foundry--machine-co-v-thompson-7067880?utm_source=webapp" opinion_id="7067880">70 Ind. App. 157, 123 N. E. 196; Empire Health, etc., Ins. Co. v. Purcell (1921), 76 Ind. App. 551" court="Ind. Ct. App." date_filed="1921-11-02" href="https://app.midpage.ai/document/empire-health--accident-insurance-v-purcell-7068740?utm_source=webapp" opinion_id="7068740">76 Ind. App. 551, 132 N. E. 664. We are dealing now with a question of fact.
The query, Was the workman doing his work “in a perilous and unreasonable way?” signifies nothing more or less than the query, Was he doing his work in a negligent way? That inquiry differs radically from the inquiry raised by the following questions: Was the workman entirely outside the scope of his employment? Had he departed from the line of duty? Was he doing something not incidental to his employment? With these questions in mind, we scrutinize the Lambert case and find that it is readily distinguishable from the case at bar. The Lambert case contains the following significant statement:
“In our judgment the facts do not present a situation. wherein the employe negligently performed a duty, or was guilty of negligence in- the performance of a duty,*525 but rather a case wherein he attempted unnecessarily to do a perilous act, not reasonably incident to his employment.”
Whether at the time of the accident Livingston was doing something not within the scope of his employment, was a question primarily for the Industrial Board. It cannot be contended seriously that as to that feature the finding of the board is So unreasonable as to require that it be set aside. Indeed it may be said that the evidence excludes the theory that at the time of the accident the workman was doing something aside from the main purpose and design. The task assigned to him was to drive the engine a distance of twenty miles to his employer’s shop. The Industrial Board, having considered the evidence, may have been convinced that a traction engine which had remained idle and without shelter for six years, on being again set to work, would need lubrication; that it was necessary to apply the soft oil — that being the only lubricating material furnished — in order that the engine might be brought by its own power to the shop; and that at the time of the accident Livingston was engaged in doing that which was essential to the proper discharge of his duty and to the achievement of the main purpose. If the board adopted that view, we could not disturb its ultimate conclusion, even if the inquiry here were limited to that theory. Furthermore, if the Industrial Board was of the opinion that Livingston was negligent in the manner of lubricating the gears, considering the material and appliances at hand for that purpose — in applying the oil while the engine was in motion, in walking sidewise or backward at the side of the slowly moving engine, or in permitting the boy to guide the engine, that negligence would not inhibit the finding that the injury arose out of and in the course of the employment. 0'n the contrary, it was the duty
It does not necessarily follow, in every case, that a workman is entitled to compensation where his injury by accident arises out of and in the course of his employment. Our statute contains the following:
“Sec. 8. No compensation shall be allowed for an injury or death due to (1) the employe’s intentionally self-inflicted injury, (2) his intoxication, (3) his commission of a felony or misdemeanor, (4) his wilful failure or refusal to use a safety appliance, (5) his wilful failure or refusal to obey a reasonable written or printed rule of the employer, which has been posted in a conspicuous place, (6) his wilful failure or refusal to perform any statutory duty, or (7) to any other wilful misconduct on his part. The burden of proof shall be on the defendant.” Acts 1919 p. 158, §8020r Burns’ Supp. 1921. (The numerals appearing in the quotation have been inserted by the court for convenience only.)
The following is the contention of appellant’s counsel, stated in their own words: “The appellee was guilty of wilful misconduct in taking upon himself the extreme hazard of attempting to lubricate the traction gear while the engine was running; and to do so, he placed himself in a perilous and dangerous position, thereby causing the resulting injury. * * *
“The guard over the mesh of the gear was thereon to safeguard and to warn workmen against dangers such as caused the injury to appellee. The idler, the spur wheel and the fly wheel were all in motion and plainly visible to the appellee, and the danger of injury was clearly manifest; and the act of appellee, undertaken in
Although an injury by accident arises out of and in the course of the employment, nevertheless compensation must be denied if the injury would not have occurred but for one of the things or conditions specified in §8, supra. The first six of those conditions or things which will deprive a workman of compensation are definitely stated; and there is no evidence tending in the slightest degree to bring this case within any one of the six. If, then, Livingston is to be deprived of compensation, it must be because he is guilty of some wilful misconduct within the seventh provision. Counsel for the employer filed a special answer in which they averred the facts which they contend show that the workman, at the time of the accident, was doing his work in a perilous and unreasonable way, and which they urge constitute. wilful misconduct. But the Industrial Board has made no finding on the issue of wilful misconduct; and the absence of such a finding is equivalent to a finding against the employer on that issue. We will not disturb the action of the board.
The award is affirmed.
Dissenting Opinion
Dissenting Opinion.
dissenting in part.
The concluding part of the foregoing opinion as originally written, has been omitted because it did not meet the approval of my associates. I feel, however, that it is my duty to add a brief statement on my own responsibility.
In the result reached, I heartily concur; but it seems to me that the court has disposed of appellant’s second contention in a manner quite indefensible. The effect
It should be noted, however, that in two cases we came near saying that under the original §8 (Acts 1915 p. 392) wilful disobedience of an order would constitute wilful misconduct; but we did not so decide, for the reason that neither case required a decision on that point. Northern, Ind. Gas, etc., Co. v. Pietzvak (1917), 69 Ind. App. 24" court="Ind. Ct. App." date_filed="1917-12-19" href="https://app.midpage.ai/document/northern-indiana-gas--electrical-co-v-pietzvak-7067754?utm_source=webapp" opinion_id="7067754">69 Ind. App. 24, 118 N. E. 132; Peru Basket Co. v. Kuntz (1919), 69 Ind. App. 510, 122 N. E. 349.