Dissenting Opinion
Kendall, J.I find myself unable to agree with the conclusion reached by the majority in this case. After a consideration of all the evidence, it is my opinion that the same leads inescapably to an opposite conclusion than that reached by the Industrial Board. The majority opinion stresses with great emphasis the fact that appellant did not know exactly on what street he was working when he obtained the foot injury as the result of pushing a spade in the ground. To my way of thinking that fact is not difficult to understand when one considers the numerous places appellant worked in the streets at the direction of appellee’s foreman. The writer of this dissent is unable to tell from memory what particular case he was working on even a few weeks or months ago. The fact remains, however, that it is uncontradicted that appellant was in the employ of appellee from September, 1953, until June 2, 1954; that he was doing the work as outlined in the majority opinion on or about May 25, 1954; that during the course of the employment he dug a trench at the instruction of the foreman; that during the digging he felt pain in his foot which incurred medical bills. The uncontradicted medical testimony of appellant’s doctor was that the appellant’s injury could have been caused by the spading. In the case of Magazine v. Shull (1945), *310(Transfer Denied 1945), 116 Ind. App. 79, 60 N. E. 2d 611, this court said:
“ ... In this state, however, it is settled law that the opinions of medical experts using words such as ‘might,’ ‘could,5 ‘likely,5 ‘possible,5 ‘may have,5 etc., in testifying concerning the causal connection between accident and disability, if coupled with other credible evidence of a nonmedical character, is substantial evidence and sufficient to sustain an award.55
True it is, the record shows that appellant corrected his first statement as to the location of the trench where he was digging when injured. I believe that under our law the exact location or time of the accident is immaterial so long as it is alleged and proven that the injury was received by appellant while working for appellee and in the course of his employment. The record is replete, in my opinion, that it is shown that the origin of the injury was accidental and that it occurred at a place' and time where appellant was supposed to be working under the direction of appellee’s agents. It is uncontradicted that while so working appellant felt sharp pain in his left ankle with pain he had never felt before. Appellee makes much of the fact that he did not report the injury on the day that it occurred. That argument is of little avail. Appellant did not know for certain the nature and extent of the injury until after examination thereof by Dr. Crawford. The.next day appellant went to see the superintendent of appellee company and reported the accident.
There is no doubt that for an injury to be compensable, it must arise out of and be in the course of the employment. One without the other is not sufficient. Tom Joyce 7 Up Company v. Layman (1942), 112 Ind. App. 369, 44 N. E. 2d 998.
*311In my opinion, the appellant has met the burden of proof as required and that the findings of the board are contrary to law.
I recognize the general rule that the Industrial Board as the trier of the facts is charged with the duty of concluding as to the ultimate facts of an accidental injury arising out of and in the course of employment and that for such purpose it possesses the exclusive prerogative of weighing the evidence and drawing reasonable inferences therefrom. In my opinion, however, this rule does not give the Board the prerogative to disregard the uncontradicted evidence in the showing that the accident complained of was accidental and occurred in the course of employment.
. In the case of Miller v. Beil (1921), 75 Ind. App. 13, 129 N. E. 493, the court, in announcing its decision, said:
“There is no direct evidence that appellees’ decedent fell in the tank as a result of an epileptic fit, . . .”
In that case the court held that the evidence was .sufficient to sustain the findings of the Industrial Board, but the facts are entirely different for here there is direct and positive evidence of the causal connection of the injury and of working for appellee at the time of the injury.
The facts of the case under consideration are entirely different from the case of Kinsey v. Shelter Manufacturing Corporation (1955), 125 Ind. App. 493, 126 N. E. 2d 267, in which this court affirmed an award of the Industrial Board denying compensation.
The incident involved certainly comes within the general definition of the term “accident” as used in Workmen’s Compensation Act, which means, “any unlooked *312for mishap or untoward event not expected or designed”. Burroughs Adding Machine Co. v. Dehn (1942), 110 Ind. App. 483, 39 N. E. 2d 499.
Where an accident is in no manner related to the employment an attempt to make the employer liable would be clearly unreasonable, unjust and arbitrary, but an injury such as the one now under consideration, arises out of employment when there exists a causal connection between it and the employment, or the same idea in a different form, when the employment is in some way responsible for the injury.
This court many times has announced the general rule that an injury by accident arises out of the employment when there is a causal connection between it and the performance of some service of the employment. In re Harraden (1917), 66 Ind. App. 298, 118 N. E. 142; Empire Health, etc., Ins. Co. v. Purcell (1921), 76 Ind. App. 551, 132 N. E. 664; Williams v. School City of Winchester (1937), 104 Ind. App. 83, 10 N. E. 2d 314.
Considering all of the evidence, there can be no doubt in my mind that the undisputed evidence is such that there was a causal relation between the act of digging in the trench with a spade and the injury complained of which resulted in the injury of appellant’s foot, and that the appellant experienced an “accident” as used in the Workmen’s Compensation Act when the digging in the course of his employment resulted in a mishap when the same was neither expected or designed.
To have reached the finding that the board did, in view of the evidence, they had to arbitrarily reject the uncontradicted evidence of probative value.
I believe that the award of the board should be reversed.
Pfaff, P. J., concurs in dissent.
Note. — Reported in 130 N. E. 2d 498.