Summary
In Walborn v. General Fireproofing Co., supra, the Supreme Court held that where an employee is injured on a parking lot provided by the employer and before the employee had reached the situs of his employment, "the hazard must be peculiar to the work and not common to the general public in the community."
Summary of this case from Smith v. Indus. CommOpinion
No. 30738
Decided February 28, 1947.
Workmen's compensation — Injuries not compensable unless suffered in course of and arising out of employment — Hazard. must be peculiar to work and not common to general public — Disability from fall on ice on employer's parking lot, not compensable.
1. Under the law of Ohio a workman is not entitled to obtain compensation for a disability unless he has suffered an injury in the course of and arising out of his employment.
2. The hazard must be peculiar to the work and not common to the general public in the community.
3. A workman is not entitled to obtain compensation for a disability resulting from a fall on ice and snow on a parking lot provided by his employer when the condition there is the same as prevails generally throughout the community and has been caused by a storm during the preceding day and night.
APPEAL from the Court of Appeals for Mahoning county.
On January 21, 1943, the plaintiff, Harvey Walborn, was an employee of the defendant, The General Fire-proofing Company, in Youngstown, Ohio.
That morning the plaintiff rode to work in an automobile with a fellow employee. The car was driven to the company parking lot near the plant. As the two men left the car and started to walk toward the plant, the plaintiff slipped and fell on the ice and snow that covered the parking lot and the entire city of Youngstown as a result of a general storm during the preceding day and night.
The plaintiff suffered a fracture of the left side of his pelvis.
Thereafter the plaintiff applied for benefits under a group insurance policy, the premiums for which were paid by the defendant and its employees. In his application the plaintiff and his physician certified that the plaintiff's accident and disability were not in any way due to a condition arising from his occupation. The insurance company then paid benefits to the plaintiff for a period of 13 weeks.
Subsequently the plaintiff applied likewise to the Industrial Commission of Ohio for compensation under the workmen's compensation law of Ohio, the defendant being a self-insurer.
The commission denied the plaintiff's claim "on the grounds that the claimant's injuries were not received in the course of and arising out of employment, and for the additional reason that the claimant made application for and received certain benefits under an insurance plan wherein he alleged that his disability, which was the same disability upon which this claim was based, was not received in the course of and arising out of his employment."
The plaintiff perfected an appeal to the Court of Common Pleas, and a judgment was rendered in his favor.
On an appeal to the Court of Appeals the judgment of the Court of Common Pleas was affirmed.
The case is in this court for review by reason of the allowance of the defendant's motion to certify the record.
Mr. Marvin Traxler, for appellee.
Messrs. Harrington, Huxley Smith and Mr. Norman A. Emery, for appellant.
The Industrial Commission disallowed the plaintiff's claim for compensation on two grounds. The first was that the plaintiff did not suffer an injury in the course of and arising out of his employment.
The plaintiff contends that the only prerequisite for the recovery of compensation is to show that he was in the zone of his employment when the injury was received. This is not the law in this state. In numerous decisions this court has pointed out repeatedly that under the constitutional and statutory law of Ohio such compensation cannot be obtained unless there is an injury in the course of and arising out of the employment. Matczak v. Goodyear Tire Rubber Co., 139 Ohio St. 181, 38 N.E.2d 1021; Gwaltney, a Minor, v. General Motors Corp., 137 Ohio St. 354, 30 N.E.2d 342; Goodman v. Industrial Commission, 135 Ohio St. 81, 19 N.E.2d 508; Industrial Commission v. Lambert, 126 Ohio St. 501, 186 N.E. 89; Highway Oil Co. v. State, ex rel. Bricker, Atty. Genl., 130 Ohio St. 175, 198 N.E. 276; Industrial Commission v. Gintert, 128 Ohio St. 129, 190 N.E. 400, 92 A. L. R., 1032; Industrial Commission v. Bankes, 127 Ohio St. 517, 189 N.E. 437; Industrial Commission v. Lewis, 125 Ohio St. 296, 181 N.E. 136; Grabler Mfg. Co. v. Wrobel, 125 Ohio St. 265, 181 N.E. 97; Industrial Commission v. Weigandt, 102 Ohio St. 1, 130 N.E. 38; Fassig v. State, ex rel. Turner, Atty. Genl., 95 Ohio St. 232, 116 N.E. 104.
In McNicol's Case, 215 Mass. 497, 102 N.E. 697, Ann. Cas. 1916A, 306, appears the following pertinent statement by Chief Justice Rugg:
"* * * an injury is received 'in the course of' the employment when it comes while the workman is doing the duty which he is employed to perform. It '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 workman 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."
In the syllabus in the case of Slanina v. Industrial Commission, 117 Ohio St. 329, 158 N.E. 829, this court stated the rule as follows:
"In case an employee, in the discharge of the duties of his employment, is injured as a result of the unexpected violence of the forces of nature, to wit, 'a destructive tornado,' where his duties do not expose him to a special or peculiar danger from the elements which caused the injury, greater than other persons in the community, such employee is not entitled to compensation under the Workmen's Compensation Act. ( Fassig v. State, ex rel., 95 Ohio St. 232, Industrial Commission v. Weigandt, 102 Ohio St. 1, approved and followed.)"
In the instant case there is nothing to indicate that the hazard of snow and ice on the parking lot was in the slightest degree different from that experienced by the general public throughout the city of Youngstown that morning. Clearly the plaintiff did not suffer an injury in the course of and arising out of his employment.
The foregoing view is dispositive of the case and makes it unnecessary to consider the second ground upon which the plaintiff's claim was disallowed by the Industrial Commission.
The judgment of the Court of Appeals is reversed, and final judgment is rendered for the defendant.
Judgment reversed.
TURNER, MATTHIAS, ZIMMERMAN, BELL and SOHNGEN, JJ., concur.
HART, J., not participating.