Hart, Schaffner & Marx v. Campbell

• Decision Date: 22 January 1942
• Docket Number: 16838.
• Citation: 38 N.E.2d 895,110 Ind.App. 312
• Court: Indiana Appellate Court
• Parties: HART, SCHAFFNER & MARX v. CAMPBELL.

38 N.E.2d 895

110 Ind.App. 312

HART, SCHAFFNER & MARX v. CAMPBELL.

No. 16838.

Appellate Court of Indiana, in Banc.

January 22, 1942

Henry L. Humrichouser and Seebirt, Oare & Deahl, all of South Bend, for appellant.

Oscar B. Thiel, of Gary, for appellee.

STEVENSON Judge.

Hart Schaffner and Marx, a corporation, prosecutes this appeal from the award of the Industrial Board by which Mary L Campbell was awarded compensation for injuries sustained by her on the 24th of December, 1938, while in the employment of Hart, Schaffner and Marx.

The sufficiency of the assignment of errors in this court is challenged by Mary L. Campbell, as being so defective in form as to present no question. The assignment of errors, as filed in this court is entitled: "Mary L. Campbell, Plaintiff v. Hart Schaffner and Marx, a Corporation and Weyers, Incorporated, Defendants." Immediately preceding this title are the words: "Before the Full Industrial Board of Indiana." It is urged that this caption is wholly insufficient to constitute a valid assignment of errors.

While the assignment of errors should designate the court to which the appeal is taken, it has been held that failure so to do is not fatal. The transcript to which the assignment of errors is attached was properly and timely filed with the clerk of this court. The jurisdiction of this appeal is in the Appellate Court alone, and the body of the assignment of errors is substantially in the language of the statute. Failure, therefore, to designate in the assignment of errors the court to which this appeal is taken is not sufficient within itself to compel a dismissal of this appeal. Rogers v. State ex rel. Beatty, 1901, 26 Ind.App. 144, 59 N.E. 334.

It is next contended, however, that Hart, Schaffner and Marx, a corporation, should be named as appellant in the caption of the transcript of the assignment of errors, and that Mary L. Campbell should be designated as the appellee. Proper practice requires that the name of the appellant should be first set forth in the caption of the assignment of errors, and designated as appellant immediately preceding the abbreviation v., and the names of the appellees designated as such should immediately follow. Failure to properly designate the parties as appellants or appellees, however, does not affect the jurisdiction of the court, nor is it cause for dismissing the appeal. Sec. 2-3214, Burns' 1933, Sec. 475, Baldwin's Ind.Statute 1934; Nation v. Green, Ex'r, 1919, 188 Ind. 697, 123 N.E. 163. It is sufficient if the names of all parties, as set forth in the judgment, are set forth in the assignment of errors. Failure to name all parties to the judgment appealed from in the caption is not a prerequisite to jurisdiction, where the names of all parties, both appellant and appellee, appear in the body of the assignment of errors. Collins v. State, 1913, 53 Ind.App. 488, 101 N.E. 1022; Town of Windfall City v. State ex rel. Wood, 1910, 174 Ind. 311, 92 N.E. 57; Modern Brotherhood v. Matkovitch, 1914, 56 Ind.App. 8, 104 N.E. 795.

It may be further noted that the appellee in this case filed a motion to dismiss this appeal, in which the form and sufficiency of the assignment of errors was unchallenged. This motion to dismiss this appeal was overruled, and the appellee has filed a brief on the merits. By so doing, it is our opinion that the appellee has waived any irregularity as to the formal parts of the assignment of errors. We think that the assignment of errors sufficiently advised this court as to who is appellant and who are appellees in this case, notwithstanding the erroneous form of the caption. No sufficient cause for dismissal of this appeal has been presented. We shall, therefore, proceed to consider this case on its merits.

Hart, Schaffner and Marx, a corporation, as appellant, contends that the award of the Industrial Board is contrary to law, first, for the reason that the evidence wholly fails to establish any relation of employer and employee between the appellant and Mary L. Campbell.

The Board found that the said Mary L. Campbell was in the employ of Hart, Schaffner and Marx, a corporation, on December 24, 1938, at an average weekly wage of $15, and on said day sustained a personal injury by an accident arising out of and in the course of her employment. The Board then found as follows:

"It is further found that the injury sustained by the plaintiff was caused by her falling through a trap door in the business house known as Weyer's, Inc., in which she fell a distance of about ten feet and fell in a sitting position on the floor below, injuring the lower part of the spinal column.

"And it is further found, that the place where the accident happened was apparently owned by Weyer's, Inc., but the Full Industrial Board now finds that all of the officers except the President of Weyer's, Inc., were officers of Hart, Schaffner and Marx, of Chicago, Illinois.

"And it is further found that the President of Weyer's, Inc., was the only one of the officers of Weyer's, Inc., that wasn't an officer in the Hart, Schaffner and Marx, of Chicago, Illinois.

"It is further found that Hart, Schaffner and Marx directed the work of the plaintiff and that she made reports of the daily transactions to Hart, Schaffner and Marx. "It is further found that as a matter of fact the real owners and operators of the store known as Weyer's, Inc., was Hart, Schaffner and Marx, a corporation of Chicago, Illinois; that Hart, Schaffner and Marx was the employer of the plaintiff; that Weyer's, Inc., existed only in name; that the only thing that designated it as a legal entity was its name, but it didn't exist in fact as a distinct entity.

* * * * *

"And now the Full Industrial Board finds that Weyer's, Inc., was in reality and in fact, Hart, Schaffner and Marx. Therefore, there is no award made against Weyer's, Inc., or for Weyer's, Inc.

"The Full Industrial Board therefore finds upon the plaintiff's complaint for the plaintiff, filed against the defendant, Hart, Schaffner and Marx, on December 24, 1940, and does not find against Weyer's, Inc., for the reason that it is in fact, and in reality, Hart, Schaffner and Marx."

On these findings of fact, an award was entered in favor of appellee for a period of fifty weeks.

Accepting the evidence most favorable to the appellee, the evidence discloses and the appellee testifies that at the time of her injury she was working at a clothing store in Gary, Indiana, known as Weyer's, Inc. She was employed there as a bookkeeper, and as a part of this service she was required by the auditing department of Hart, Schaffner and Marx in Chicago, Illinois, to mail them daily reports of the sales of Weyer's, Inc. Her salary was paid by Weyer's, Inc., by checks prepared by her on a bank account carried in the name of Weyer's, Inc., which checks were signed by the bookkeeper and countersigned by the manager of the store. After having testified that she was so paid, the claimant was asked the following...