Rhoden v. Smith & Decker Electric Co.

• Decision Date: 08 November 1939
• Docket Number: 16401.
• Court: Indiana Appellate Court
• Parties: RHODEN et al. v. SMITH & DECKER ELECTRIC CO.

23 N.E.2d 306

107 Ind.App. 152

RHODEN et al. v. SMITH & DECKER ELECTRIC CO.

No. 16401.

Appellate Court of Indiana, in Banc.

November 8, 1939

Isidor Kahn and Harry P. Dees, both of Evansville, for appellants.

Slaymaker Merrell & Locke and L. A. Shaner, all of Indianapolis for appellee.

DE VOSS, Presiding Judge.

This is an appeal from the award of the Full Industrial Board. Appellants Tracy O. Rhoden and Ina Rhoden filed their application for compensation as partial dependents of Clyde E. Rhoden, deceased. The cause was submitted to a single board member and thereafter, before a finding by said board member, appellants Tracy O. Rhoden and Ina Rhoden moved to amend their application by naming Kathryn Rhoden as an additional applicant as a partial dependent of said Clyde E Rhoden. By order of the board member the application was ordered amended to conform to said petition.

Thereafter the board member made a finding adverse to appellants herein and upon this finding the Industrial Board ordered that plaintiffs take nothing by their complaint and that they pay the costs of the proceedings.

Appellants filed their petition for a review by the Full Board, and thereafter said cause came up for review before the Full Industrial Board, and upon a hearing said Full Board made the following finding and award:

"And the Full Industrial Board having heard the argument of counsel, having reviewed the evidence, and being duly advised therein, now finds that on March 15, 1937, while in the employ of the defendant at an average weekly wage of $16.50, one Clyde E. Rhoden suffered an injury as the result of an accident arising out of and in the course of his employment, of which the defendant had knowledge and furnished medical attention; that said accidental injury resulted in the death of the said Clyde E. Rhoden on March 30, 1938; that the defendant has not paid the statutory one hundred dollar burial allowance. That on July 23, 1938, plaintiffs filed their application for the adjustment of a claim for compensation.

"And the Full Industrial Board now finds by a majority of its Members for the defendant and against the plaintiffs, on all of the other material allegations in plaintiffs' complaint.

"Award

"It is therefore considered and ordered by the Full Industrial Board of Indiana by a majority of its Members that the plaintiffs shall take nothing by their complaint herein and that they shall pay the cost of this proceeding.

"It is further ordered that the defendant pay the statutory one hundred dollar burial allowance."

From this finding and award of the Full Industrial Board appellants appeal.

Appellants assign as error: 1st. That the final award of the Full Industrial Board is contrary to law. 2nd. That the final award of the Full Industrial Board is not supported by sufficient evidence.

The first assigned error is a sufficient assignment and all alleged errors may be presented thereunder. John C. Groub Co. v. Brock, 1932, 94 Ind.App. 346, 180 N.E. 923.

Appellants maintain there was error in the proceedings in the submission of the cause to the single board member. At the hearing by the board member, the record discloses that a question was propounded to a witness by appellants, and an objection having been made, an offer to prove was made, and the objection was sustained. At the hearing on review by the Full Board, no further attempt was made to introduce the testimony rejected by the board member, and no attempt was made to introduce new or additional evidence. Appellee contends that by reason of the fact that the Full Industrial Board was not requested by appellants to admit the rejected evidence, there is no ruling of the Full Industrial Board as to the exclusion of any evidence, and therefor no question as to such ruling is presented for review on this appeal.

Sec. 40-1511, Burns Indiana Statutes, 1933, Sec. 16436, Baldwin's 1934, provides: "If an application for review is made to the board within seven (7) days from the date of an award, made by less than all the members, the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses as soon as practicable and shall make an award and file the same with the finding of the facts on which it is based and send a copy thereof to each of the parties in dispute, in like manner as specified in the last foregoing section."

The Industrial Board of Indiana is an administrative body and not a court, and under the statute can promulgate rules of procedure in hearings before it.

In the case of Northern Indiana Power Co. v. Hawkins, 1925, 82 Ind.App. 552, 556, 146 N.E. 879, 880, the court said: "The Legislature never intended that all rules of law relative to orderly procedure should be ignored. This is indicated by the fact that it is specifically provided that at least two members of the Industrial Board shall be attorneys, and that the chairman of the Board shall be an attorney of recognized qualifications. The evident idea being that these men, by reason of their professional training, will be able to, in a way, direct and mold the proceedings before the Board so that an award when made will be based upon a proper finding of facts and conform to the law."

As stated by appellee, this appeal is from an award of the full board, and the ordinary and orderly rules of practice would require that before a question could be saved for a review by this court, the full board must be given an opportunity to pass upon the question at issue.

In the case of Munson v. Scheid, 1924, 82 Ind.App. 258, 261, 145 N.E. 840, 841, in passing upon the question of alleged error by the full board, after quoting Sec. 59 and Sec. 60 of The Workmen's Compensation Act, this court said: "It thus appears that, when an application for compensation is filed and the matter is taken up for determination by any or all of the members of the board, as provided in said section 59, that a hearing of 'the parties at issue, their representatives and witnesses,' shall be had. This evidently means that the member of members of the board conducting such hearing, although not constituting a court, and hence not bound by all the rules of civil procedure, nevertheless must grant what the statute evidently intends, viz. such a hearing of the parties and their witnesses as will enable such member or members to arrive at the truth concerning the material issues, in order to apply the law properly, and thereby do justice between the contending parties. If such a hearing is not had, and the number of members sitting thereat is less than the full board, as was true in the instant case, any error in that regard may be rendered harmless by an application for review by the full board, as provided in said section 60, and such a hearing thereat, as will bring before the full board all the pertinent facts bearing on the issues, of which the parties shall offer proper evidence. If, however, on due application, such a hearing is not had on review, there will be an abuse of the discretionary power lodged in the full board by the provisions of said section, as will warrant a reversal of the award so made, on an appeal to this court. Bimel Spoke, etc., Co. v. Loper (1917) 65 Ind.App. 479, 117 N.E. 527."

The record discloses that no offer to introduce the evidence in question was made at the full board hearing.

No evidence was in the record reviewed by the full board, responsive to the question propounded, and if appellants desired they could have offered the same at such hearing by the full board. While the Industrial Board is an administrative board, the litigants are not relieved from all responsibility at the hearings thereof and it is not incumbent on such board to call witnesses and propound questions favorable to either of the litigants, but that burden is upon the parties to the dispute.

It is our opinion and we so hold that by a failure to offer the evidence rejected by the single board member, to the full board on review, no question is presented to this court on appeal.

The only other question involved in this appeal and which will be considered by this court is whether or not appellants, or any of them, were dependents, in any degree, of Clyde E. Rhoden, deceased, as contemplated by the Workmen's Compensation Act, Burns' Ann.St.1933, § 40-1201 et seq., and were entitled to compensation by reason of his death from injuries received as set out in the claim filed.

The only evidence introduced at the hearing was on behalf of appellants, and that evidence stands indisputed.

It is contended by appellants that when the evidence is all uncontroverted, in order that it may be determined whether or not the appellants are partial dependents of decedent, it is a question of law for this court to decide from a review of the evidence before the Industrial Board. With this contention we agree. In passing upon a like question as the one involved here, in the case of King v. Illinois Steel Corp., 1931, 92 Ind.App. 456, 460, 176 N.E. 161, 162 the court sa...