Auberger v. Industrial Commission

This action arose in the court of common pleas on appeal from a ruling of the Industrial Commission of Ohio, wherein the commission refused to permit the claimant to participate in the state insurance fund, on the jurisdictional ground that the decedent's death did not arise in the course of his employment.

The trial court at the close of the plaintiff's case sustained the motion for an instructed verdict, directed a verdict for the defendant, the Industrial Commission, and entered judgment on the verdict so rendered. From that judgment error is prosecuted to this court, and the sole question for determination is whether under the evidence adduced the decedent, Frank Auberger, was in the course of his employment when he suffered injuries from which he died.

There is no conflict in the evidence. It appears that Frank Auberger, the deceased, was employed as an attendant at an oil and gasoline station in the city of Cincinnati, situated at the southeast corner of Iowa and McMillan streets; the lot fronting 80 feet on McMillan street and 100 feet on Iowa street, and there being driveways from the roadway into the lot from both streets.

The decedent on the morning of his injury started to work and rode on a street car to the stop in front of his place of employment. He got off the front end of the car, which stopped to permit him to alight, and proceeded to cross the roadway, and, just as he stepped with one foot from the roadway onto the curb, he was struck by an automobile, proceeding along the south side of McMillan street, that passed the standing street car. He was knocked some distance, his body falling between the curb and the sidewalk. From the injuries thus received, he later died.

It is argued that the claimant was entitled to participate in the state insurance fund, for the reason that the injury was received within the zone of the decedent's employment. This proposition could only be considered from the standpoint of nearness to the zone of employment, since he was not on the premises of his employer. In considering this proposition, it must be borne in mind that recovery under the Workmen's Compensation Act (Sections 1465-37 to 1465-108, General Code) is confined to compensation for injuries occurring in the "course of employment," which phrase includes a limitation based upon period of employment. In the instant case the employee was not injured during the period of employment. His work had not commenced. The factor of zone of employment is ineffectual to extend the employment period, since the employee was not upon the master's premises. Had the injury occurred during the period of employment, had the employee commenced his work, the zone of employment outside the employer's premises would have been a relevant matter. Otherwise, as in this case, it is not. It is suggested in the brief that the deceased employee was due to assume his employment at 6 o'clock, a.m., and that the accident happened at 6:12 a.m. The accident therefore occurred a few minutes after he was due to begin work, but the fact that he was late in arriving at his work would make no difference.

The following cases sustain our conclusion that the judgment must be affirmed: Fassig v. State, ex rel. Turner, Atty. Gen.,95 Ohio St. 232, 116 N.E. 104; Conrad, Admx., v. Youghiogheny Ohio Coal Co., 107 Ohio St. 387, 140 N.E. 482, 36 A.L.R., 1288;Slanina v. Industrial Commission, 117 Ohio St. 329,158 N.E. 829; Industrial Commission v. Ahern, 119 Ohio St. 41,162 N.E. 272, 59 A.L.R., 367.

The judgment of the court of common pleas of Hamilton county is affirmed.

Judgment affirmed.

ROSS, J., concurs.