Bucyrus Co. v. Townsend

117 N.E. 656, 65 Ind. App. 687, 1917 Ind. App. LEXIS 173

• Court: Indiana Court of Appeals
• Decided: November 16, 1917
• Docket: No. 10,033
• Status: Published

Opinion

Ibach, P. J.

Appellees’ husband and father was an employe of appellant company, and while so employed it is claimed he received a serious personal injury by accident arising out of and in the course of his employment, from which he died on August 8, 1916. On February 3, 1917, appellees, as dependents of decedent, filed their verified application before the Industrial Board for an adjustment of their claim for compensation, which was granted, and they were awarded $7.29 per week for 300 weeks.

1. It is contended by appellant that the award of the full board is not sustained by sufficient evidence and is contrary to law. The latter assignment, presents both questions. Union Sanitary Mfg. Co. v. Davis (1916), 64 Ind. App. 227, 115 N. E. 676, 677.

The facts appearing from the finding are that on August 1, 1916, decedent was in the employ of appellant at an average weekly wage of $13.26. On that date he received a personal injury by an accident arising out of and in the course of his employment, which resulted in his death August 8, 1916; that the appellant had actual knowledge of his injury at the time it occurred, and that it rendered first aid at the time of his injury and on the second day thereafter furnished an attending physician who attended him at the hospital until his death. He left surviving him Daisy Townsend, his wife, and the other named appellees, his children. Decedent and his wife and children were at the time of his injury and death living together as one family. Two sons, Elma and Alvis, were working and earning wages, and the wife and the other children being wholly dependent upon decedent for their support.

It appears from the record that the decedent had been in the employ of appellant for several weeks prior to August 1, 1916, on what is termed a “band press,” a machine used to press a copper band around shells and the shells were shrapnel shells about eight inches in diameter and two and one-half feet long. The band press is about three and one-half feet high. .On the floor there was an iron T-ra-il extending about an inch above the level of the floor. The decedent took a shell and started to the press. His foot slipped on the T-rail as he was about to lay the shell down, and he fell and hit his breast against the lever that operated the press. This lever consisted of an iron rod about an Inch in diameter with a steel handle, and was used for starting and stopping the machine. Decedent was taken to his home that night and immediately went to bed complaining of pain in his left side and had trouble in breathing. Two days later he was taken to the hospital under the care of a physician. After the injury there was found a mark over his heart about five inches long. The-only sickness he ever had was about a year before, and that sickness lasted about two weeks. He had been at work almost continuously, apd always worked at general labor, and had never complained of anything being wrong with his heart or lungs. The attending physician testified that he found him immediately following the accident, suffering from pain in the left side of the chest in the region of the heart, his breathing was bad, jerking whenever he took a long breath, his heart was laboring, and there was an abnormal sound of the heart; also, that a blow over the heart would cause acute heart disease and, in this ease, the fall brought on a condition of the heart known as “pericarditis,” and that killed decedent.

2. In all cases such as the present, before the Industrial Board can allow compensation to a claimant, it must be made to appear that the decedent received a personal injury by accident arising out of and in the course of his employment, and that the death of the employe resulted from such injury.

3. 4. It is insisted here that decedent did not die as a result of the accidental injury, but that his death was due to a disease, neither produced nor aggravated by such injury. While the evidence might permit of a result different from that reached by the Industrial Board, yet we are satisfied that the uncontradicted testimony of the son, the only person who saw the accident, and the testimony of the physician who treated decedent from the date of his injury, who we must assume was a competent physician, together with all the other facts and circumstances shown by the evidence, 'was sufficient to show an injury by accident arising out of and in the course of decedent’s employment, and that such injury proximately caused his death. Columbia School Supply Co. v. Lewis (1917), ante, 116 N. E. 1; Habbe v. Viele (1897), 148 Ind. 116, 45 N. E. 783, 47 N. E. 1; Bayne v. Riverside Storage, etc., Co. (1914), 181 Mich. 378, 148 N. W. 412, 5 N. C. C. A. 857. The dependents were not required to present such proof as would entirely exclude the possibility that decedent’s death was due in part to a diseased condition of his heart.

We think the determination of the board should be sustained. Award affirmed.

Note. — Reported in 117 N. E. 656. Workmen’s compensation: what is ah accident arising out of and in the course of employment within meaning of act, Ann. Cas. 1913C 4, 1914B 498, 1916B 1293, 1918B 768.