American Shipbuilding Co. v. Michalski

Ohio Court of Appeals

American Shipbuilding Co. v. Michalski

164 N.E. 123, 30 Ohio App. 80, 6 Ohio Law. Abs. 692, 1928 Ohio Misc. LEXIS 890, 1928 Ohio App. LEXIS 370

CourtOhio Court of Appeals

DecidedSeptember 28, 1928

Docket470

StatusPublished

Cited by5 cases

This text of 164 N.E. 123 (American Shipbuilding Co. v. Michalski) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Shipbuilding Co. v. Michalski, 164 N.E. 123, 30 Ohio App. 80, 6 Ohio Law. Abs. 692, 1928 Ohio Misc. LEXIS 890, 1928 Ohio App. LEXIS 370 (Ohio Ct. App. 1928).

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Opinion

WASHBURN, PJ.

In the case of Industrial Comm. v. Paul Slanina, decided by this court on April 19, 1927, and by the Supreme Court on Nov. 9, 1927, and reported in 117 OS. -, the employe was engaged in the usual duties of his employment, delivering furniture, and was injured when a telephone pole was blown on him, by this same tornado, while he was in the street; and in that case we found that his injuries were caused by the forces of nature, wholly disconnected with his employment, and that the danger to which he was exposed was not peculiar to the work but was common to the neighborhood, and was not incidental to the character of the business he was engaged in but was independent of the relation of master and servant.

The case at bar presents the question of whether or not the order of the foreman, sending Michalski from a place of comparative safety directly into a place of special danger, for the purpose of preserving the property of the company, imposed upon Michalski a duty in connection with his employment which exposed him to a special danger from the elements which caused his death, — a danger greater than other employes, — one which was made peculiar to his employment rather than one which was common to the neighborhood,— thereby giving to his employment a causal connection with his death.

No reported case has been cited to us where this question has been specifically determined, but upon due consideration we- have reached the conclusion that, upon principle, the holding should be that the giving of said order, under the cireumstanpes indicated, exposed Michal-ski to danger in such a way that his employment had a causal connection with his death; that he was not merely present at the place of the accident because of his employment, but was exposed to a special danger to which his fellow-employes and other persons in the community were not exposed.

We hold that where, during a tornado, an employe, by specific order of the master, is directed to go to a place of increased danger for the purpose of preserving the master’s property, and while obeying such order is injured by such tornado, such injury constitutes an accident arising out of his employment, within. the meaning of the Workmen’s Compensation Act, and that the trial court reached the correct conclusion in this case when compensation was awarded.

(Pardee, J., concurs. Funk, J., not participating.)

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WASHBURN, PJ.

In the case of Industrial Comm. v. Paul Slanina, decided by this court on April 19, 1927, and by the Supreme Court on Nov. 9, 1927, and reported in 117 OS. -, the employe was engaged in the usual duties of his employment, delivering furniture, and was injured when a telephone pole was blown on him, by this same tornado, while he was in the street; and in that case we found that his injuries were caused by the forces of nature, wholly disconnected with his employment, and that the danger to which he was exposed was not peculiar to the work but was common to the neighborhood, and was not incidental to the character of the business he was engaged in but was independent of the relation of master and servant.

The case at bar presents the question of whether or not the order of the foreman, sending Michalski from a place of comparative safety directly into a place of special danger, for the purpose of preserving the property of the company, imposed upon Michalski a duty in connection with his employment which exposed him to a special danger from the elements which caused his death, — a danger greater than other employes, — one which was made peculiar to his employment rather than one which was common to the neighborhood,— thereby giving to his employment a causal connection with his death.

No reported case has been cited to us where this question has been specifically determined, but upon due consideration we- have reached the conclusion that, upon principle, the holding should be that the giving of said order, under the cireumstanpes indicated, exposed Michal-ski to danger in such a way that his employment had a causal connection with his death; that he was not merely present at the place of the accident because of his employment, but was exposed to a special danger to which his fellow-employes and other persons in the community were not exposed.

We hold that where, during a tornado, an employe, by specific order of the master, is directed to go to a place of increased danger for the purpose of preserving the master’s property, and while obeying such order is injured by such tornado, such injury constitutes an accident arising out of his employment, within. the meaning of the Workmen’s Compensation Act, and that the trial court reached the correct conclusion in this case when compensation was awarded.

(Pardee, J., concurs. Funk, J., not participating.)

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164 N.E. 123, 30 Ohio App. 80, 6 Ohio Law. Abs. 692, 1928 Ohio Misc. LEXIS 890, 1928 Ohio App. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-shipbuilding-co-v-michalski-ohioctapp-1928.

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