Louisville, N. A. & C. R. Co. v. Emily

• Decision Date: 16 February 1938
• Docket Number: 16115.
• Citation: 12 N.E.2d 1002,105 Ind.App. 123
• Court: Indiana Appellate Court
• Parties: LOUISVILLE, N.A. & C.R. CO. v. EMILY.

12 N.E.2d 1002

105 Ind.App. 123

LOUISVILLE, N.A. & C.R. CO. v. EMILY.

No. 16115.

Appellate Court of Indiana, in Banc.

February 16, 1938

Slaymaker Merrell & Locke, of Indianapolis, for appellant.

Lew M. O'Bannon and C. B. Eskew, both of Corydon, and Max Klezmer, of Indianapolis, for appellee.

LAYMON Chief Judge.

This is an appeal from an award of the Industrial Board by a majority of its members, awarding compensation to appellee on account of personal injuries alleged to have been received on November 23, 1935, while in the course of and arising out of his employment with appellant.

After the hearing before the full board on application for review the board by a majority of its members entered its finding and award. The finding, so far as pertinent to the questions involved in this appeal, is as follows:

"That the defendant is an Indiana corporation and operates a line of steam railroad from the city of Corydon Harrison county, Ind., to the town of Corydon Junction Harrison county, Ind., a distance of approximately 7 miles, and wholly within the state of Indiana, at which said Corydon Junction the line of railroad of the defendant company connects with the line of steam railroad operated by the Southern Railroad Company which said Southern Railroad Company is engaged in intra-state and interstate transportation; that there is transported over the defendant's said line of steam railroad, shipments of merchandise from the city of Corydon, Ind., to the said Southern Railroad Company at said Corydon Junction and there delivered to said Southern Railroad Company, which said shipments of merchandise are consigned to points within and without the state of Indiana and are transported by the said Southern Railroad Company in intra-state and interstate commerce.

"It is further found by the Full Industrial Board by a majority of its members that the plaintiff herein was engaged in the maintenance department of the defendant, Louisville, New Albany and Corydon Railroad Company; that the duties assigned plaintiff by said defendant company consisted of assisting in the maintenance of the right of way of said defendant company; that the plaintiff was so employed by the defendant in such capacity on the 23rd day of November, 1935, and prior thereto at an average weekly wage of more than $8.80 and less than $16; that on said 23rd day of November, 1935, plaintiff sustained an accidental injury to the lumbar sacroiliac section of plaintiff's anatomy arising out of and in the course of his employment, of which accidental injury the defendant had due notice and furnished the necessary medical, surgical and hospital services for the first thirty days following said injury."

Upon the finding made an award of compensation was duly entered, from which award appellant prosecutes this appeal, assigning the statutory assignment of error which is sufficient to present all questions sought to be reviewed.

Under the assigned error appellant has challenged the sufficiency of the finding to sustain the award and the sufficiency of the evidence to sustain the finding relating to the question of whether or not appellee, at the time of his injury, was engaged in interstate commerce within the meaning of the term as used in section 40-1219, Burns' 1933, of the Indiana Workmen's Compensation Act.

It is conceded by appellee that if he was so engaged at the time of his injury, the Workmen's Compensation Act would not apply and the Industrial Board would be without jurisdiction to award him compensation.

Appellant insists that the following facts found by the Industrial Board, "That the plaintiff herein was engaged in the maintenance department of the defendant, Louisville, New Albany and Corydon Railroad Company; that the duties assigned plaintiff by said defendant company consisted of assisting in the maintenance of the right of way of said defendant company; that the plaintiff was so employed by the defendant in such capacity on the 23rd day of November, 1935"; and "that on said 23rd day of November, 1935, plaintiff sustained an accidental injury * * * arising out of and in the course of his employment," show that at the time of his said injury appellee (plaintiff) was engaged in interstate commerce, and therefore the Industrial Board was without jurisdiction to enter an award of compensation. This contention is not tenable. There is no ultimate fact in the finding to the effect that appellee at the time of his injury was engaged in interstate transportation or work so closely related to it as to be practically a part of it. The facts as disclosed by the finding show appellee's general employment and the duties to which he was assigned, but fail to disclose in what particular work he was engaged at the time of his injury. The finding is sufficient to sustain the award.

Appellant, in challenging the sufficiency of the evidence to sustain the finding, has presented the question of whether or not appellee at the time of his injury was engaged in interstate commerce.

The record discloses that at the hearing the parties entered into a stipulation of facts, and in addition thereto introduced testimony. The stipulation recites in part: "That Mart Emily was employed by the Louisville, New Albany and Corydon Railroad Company at the time of the injury as a section hand in repairing the tracks of the Louisville, New Albany and Corydon Railroad Company." Testimony as to what particular work appellee was engaged in at the time he received his injury was introduced into evidence. This testimony disclosed that appellee had returned upon a motor section car to a railroad crossing preparatory...