In Industrial Commission of Ohio v. Lewis, 125 Ohio St. 296, 181 N.E. 136, there was positive testimony showing the deceased might have been on an independent mission.Summary of this case from United Steelworkers of America v. Walden
Decided April 27, 1932.
Workmen's compensation — Evidence necessary to support claim of liability — Only injuries occasioned in course of employment compensable — Performing act or discharging duty in employer's service essential.
1. The Workmen's Compensation Law is construed liberally and with a view to accomplishing the purpose of its enactment, but an award of compensation cannot be required and enforced unless there be some evidence to support the claim of liability.
2. The validity of the Workmen's Compensation Law has been sustained because it contemplates an award from the fund created by compulsory contributions or assessments only for injuries occasioned to an employee while in the course of his employment.
3. Compensation from such fund is authorized only for an injury sustained by the employee in the performance of some act or in the discharge of some duty in the service of his employer.
ERROR to the Court of Appeals of Butler county.
This action involves a claim for payment from the workmen's compensation fund on account of the death of Noah Lewis, upon the ground that his death was occasioned in the course of his employment as a collector for a mercantile establishment in Hamilton, a contributor to the workmen's compensation fund. The claim was rejected by the Industrial Commission, and upon appeal to the court of common pleas a verdict was rendered in favor of the claimant, and the judgment rendered thereon was affirmed by the Court of Appeals.
Upon motion the record was ordered certified to this court for review.
Mr. Gilbert Bettman, attorney general, and Mr. R.R. Zurmehly, for plaintiff in error.
Mr. Clinton Egbert, for defendant in error.
There is but one question presented in this case and that is whether the record discloses any evidence that the injury causing the death of the employee, Noah Lewis, was occasioned in the course of his employment. The error urged is the refusal of the trial court to direct a verdict for the Industrial Commission.
It is well settled that in order to be compensable the injury must have been sustained in the course of employment, and arise out of the employment, or, in the language of Section 35 of Article II of the Constitution, the death must have been "occasioned in the course of such workmen's employment." It is essential that the employment have "some causal connection * * * with the injury, either through its activities, its conditions, or its environments." Grabler Manufacturing Co. v. Wrobel, ante, 265, 181 N.E. 97, and cases there cited.
There is no material conflict as to the facts, and they may be stated very concisely. The duties of Noah Lewis were those of a collector for his employer, and in the discharge of those duties he made calls upon debtors of his employer in the evenings. On the evening in question he had in his possession the separate cards of four individual debtors of his employer, upon two of which were entries indicating collections had been made upon that date, presumably by Lewis, before reaching his home for his supper. The record discloses that it was the intention of Lewis, upon arriving home, to endeavor to make further collections that evening. He placed the cards in his pocket and then got ready to go on his bicycle, but as he went out of the house his stepson informed him of an advertisement he had seen in a local newspaper for a farm hand, and suggested that the job might be procured for a Mr. Edwards, who was then, and had been for some time, a boarder at the Lewis home, but had been out of work for a month. It was disclosed that Lewis was interested in Edwards getting a job, by reason of his indebtedness for his board. After endeavoring to reach the farmer by telephone and failing to do so, Lewis procured Fred Miller, another boarder, who owned an automobile, to take him and Edwards out to the farmer's house, twelve or fifteen miles northwest of Hamilton. Lewis' stepson, Earl Hamilton, also accompanied them.
They had some difficulty in finding the farmer, and some delay was occasioned. Edwards procured the position and remained at the farm; the other three started back to Hamilton about 9:45 p. m. After reaching the city and traveling to the junction of Third and Dayton streets, Miller, who was driving, turned east upon the suggestion of Lewis, and instead of turning south at Fourth street, as Miller stated he had intended, he acted upon the further suggestion of Lewis that he proceed eastwardly on Dayton street to Sixth street. Just beyond the intersection of Fourth street and Dayton street they were struck by a train at the crossing of the Baltimore Ohio Railroad, and Lewis was killed. This occurred at 10:30 p. m.
The record discloses that Lewis' wife was confined to her bed, and had insisted that he should not leave the house that evening, but he stated that he must make his collection visits to retain his job, that upon leaving home Lewis had said he could go to the country, and also make his calls, and that when in the country he kept hurrying Miller because he wanted to get back to Hamilton. However there is no evidence whatever in the record, and no fact from which any possible inference can be drawn which indicates that there was any debtor of Lewis' employer in the vicinity where he was driving, or in the direction which he was traveling when struck, or anywhere between that location and his own home. The general course then being followed was toward the Lewis home. His home was southeast, while the two debtors whose cards Lewis had in his pocket lived southwest of the point where the accident occurred, and at the time of its occurrence Lewis upon his own suggestion was being driven, not toward, but away from, the homes of the debtors whose names appeared upon the two collection cards he had in his pocket. Lewis would have been traveling in the general direction of his home whether he had proceeded south on Third street or on Fourth street, or east on Dayton street and thereafter turning south on Sixth street, as he had directed Miller to do. It is clear that the direction taken upon the request of Lewis was away from instead of toward the only two places where, as the evidence discloses, he could have performed any duty that evening on behalf of his employer. The mission upon which Lewis was engaged in driving to the country was not on behalf of his employer, or pursuant to any duty in connection with his employment, but was solely for the purpose of serving his own interest in procuring employment for a debtor of his own, so that he could secure payment of the amount due him. The evidence is clear and undisputed that Lewis' presence at the place of injury was not in performance of any duty devolving upon him as an employee of the contributing employer, and that even though he may have had some intention to later make some calls in the line of his duty, he was at the time of his injury completing the trip made in his own behalf. If it be claimed that he had completed his own mission, and was starting upon the discharge of some duty for his employer, there must be some evidence to support the claim. It is stated that he may have been intending to call upon a debtor, even though he had no such card, or that one of the two debtors whose card he had may have been temporarily in that locality, and thus inference is based upon inference to support a theory which has no support in any fact disclosed by the evidence.
The Workmen's Compensation Law is construed liberally and with a view to accomplishing the purpose of its enactment, but an award is not authorized unless there be some evidence to support the claim of liability. An inference of fact cannot be predicated upon another inference, but must be predicated upon some fact supported by evidence. Sobolovitz v. Lubric Oil Co., 107 Ohio St. 204, 140 N.E. 634.
The validity of the Workmen's Compensation Law has been sustained because it contemplates an award from the fund created from compulsory contributions or assessments only for injuries occasioned in the course of employment of a contributing employer. There must, therefore, be some evidence that the injury was sustained in the performance of some act or the discharge of some duty in the service of the employer. Fassig v. State, ex rel Turner, Atty. Genl., 95 Ohio St. 232, 116 N.E. 104; Industrial Commission v. Ahern, 119 Ohio St.) 41, 162 N.E. 272, 59 A. L. R., 367. There is in the record of this case no evidence tending to support any fact from which such an inference could properly be drawn.
MARSHALL, C.J., JONES, DAY, KINKADE and STEPHENSON, JJ., concur.