Hunt v. Gaseteria, Inc.

DISSENTING OPINION. Notwithstanding the fact that I fully approve and agree with the often reiterated statement of this court, to the effect that our Workmen's Compensation Law should receive a liberal construction in order that its beneficial purposes may be accomplished, I find myself unable to agree with the majority opinion herein.

There are certain facts established by uncontradicted evidence which, in my opinion, not only justified, but made it obligatory upon the Industrial Board to render the finding and award made.

The deceased employee was a "maintenance man"; had no specific hours, nor regular time at which he reported for work, but was subject to call day or night in case of mishaps occurring to any appliance used by his employer at any of its various "filling stations" from which it sold gasoline. "Generally he reported some time in the morning as to his whereabouts." (Appellant's brief.) His duties required of him that he check the meters at the various stations of his employer at least twice each year; that he give any needed attention to electrical equipment and plumbing, and that he supervise the installing of all tank equipment. In discharging some duties of his employment, it was necessary that he use an automobile and carry tools belonging to his employer from place to place as needed, when answering calls for his services at any of the stations operated by his employer. He, however, was not required to use his automobile as a means of transportation when reporting to the "main plant" for duty as was his intention on the day of his death. On this morning he arose early; informed his wife she need not arise to prepare his breakfast, as he would get it down on Madison Avenue. At the time he inhaled the monoxide gas which caused his death, he was on his own premises; in his own garage. He had not started, nor was he intending to answer any call or request for his services as "maintenance man" from his employer or any person in the employment of the Gaseteria, Inc., as there is no evidence that any such call had been received. To the contrary, it does appear from the evidence of his widow, and one other witness, that he intended on that day to complete some work at the "main plant" upon which he had been engaged the day before.

It would seem under these facts that the deceased employee at the time of his death occupied the same status as would any employee who had not yet reached the premises of his employer, where he expected to enter upon the discharge of the duties of his employment.

An accidental injury to an employee while on the way to or from his work, or while, as in the instant case, he is making ready to start to his working place is incompensable under our compensation law. See Boyd v. Chase (1929), 89 Ind. App. 374,166 N.E. 611; Dubbert v. Beucus (1933), 96 Ind. App. 390,185 N.E. 311; Mitchell v. Ball Bros. Co. (1933),97 Ind. App. 642, 186 N.E. 900. It is true that in this case the accident occurred during the period of employment, but it takes something more than this before compensation can be rightfully awarded. The death of the employee did not result from a risk reasonably incident to the employment. I see no causal connection between the two.

Even if it could be reasonably held under the evidence here that the fatal injury was received "in the course of the employment" (which I do not concede nor believe) it seems apparent that the Industrial Board was right when it found as a fact that the death was not occasioned by an accident "arising out of the employment." This court in Union ManufacturingCompany v. Davis (1914), 64 Ind. App. 227, 232, 115 N.E. 676, after reviewing certain cases discussing these questions, said:

"In other cases it is held that an injury arises ``out of' the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person, familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment then it arises ``out of' the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." (Authorities cited.)

It is my judgment that, under the facts proven and the prior decisions of this court, the award of the Industrial Board should be affirmed, and I, therefore, respectfully dissent.

Dudine, P.J., concurs in this dissent.