American Cas. Co. v. Hallman
| Decision Date | 30 November 1962 |
| Docket Number | No. 19861,19861 |
| Parties | AMERICAN CASUALTY COMPANY, Appellant, v. Mary HALLMAN, Special Administratrix of the Estate of Kenneth A. Hallman, deceased, New York Central Railroad Company, Marshall F. Kizer, John Widaman and Benton W. Bloom, Appellees. |
| Court | Indiana Appellate Court |
Jones, Obenchain, Johnson, Ford & Pankow, So. Bend, for appellant.
Marshall F. Kizer, Plymouth, Byron C. Kennedy, John Widaman, Warsaw, Benton W. Bloom, Columbia City, for appellees.
Appellant filed its brief in this appeal on June 15, 1962. Appellees have entered a special appearance herein on July 9, 1962 and filed a motion to dismiss the appeal or affirm the judgment appealed from.
It is difficult to ascertain the full sequence of events from appellant's brief. However, so far as we are able to perceive, the appellee, Mary Hallman, as the dependent wife of her deceased husband, Kenneth A. Hallman, together with their children, brought proceedings before the Industrial Board against one William Shemberger for 'death benefits' and an award was entered in favor of the applicants for four hundred (400) weeks compensation at the rate of thirty-nine ($39.00) dollars per week and five hundred ($500.00) dollars 'burial benefit.' The appellant, as the insurance carrier for said William Shemberger, paid said burial benefits and compensation in the total amount $4566.00. In said proceeding before the Industrial Board the appellant 'resisted' the payment of said 'benefits' and filed special answers charging the decedent with 'willful failure or refusal to perform' a statutory duty required 'under Burns' Indiana Statutes, Section 47-2115; Burns' Indiana Statutes, Section 47-2114; Burns' Indiana Statutes, Section 47-2118.'
Thereafter, said Mary Hallman, as Special Administratrix of the estate of said decedent, 'instituted suit' in the Whitley Circuit Court against the appellee, New York Central Railroad, as a third party tort-feasor, for wrongful death of said decedent and recovered judgment therein against said defendant in the sum of $40,000.00. Appellant filed notice of a claim of lien against said judgment in the amount of the compensation paid under the said Industrial Board award and sought leave to intervene and enforce its lien. The appellees, Marshall F. Kizer, John Widaman and Benton W. Bloom then filed a petition in said Whitley Circuit Court 'to claim and enforce attorneys' lien against' appellant on the theory that their action in bringing the suit against said railroad and obtaining said judgment had benefitted the appellant in the amount of $16,100.00 in that appellant was by said judgment relieved of 'any payments in the future'; and that it would be 'unjust, inequitable and unjust enrichment' for appellant to receive reimbursement of its payments made under the Industrial Board award and be relieved of future payments without contributing to the reasonable attorney fees which the dependents of the decedent were required to bear in order to procure the judgment resulting in a benefit to appellant of $16,100.00.
Appellant's brief contains no verbatim copy of the judgment, as rendered, of the trial court. Under the heading of How the Issues were Decided and what the Judgment was, appellant states, in material substance, that
'Hearing was had on the petition to intervene of American Casualty Company and the petition to enforce claim and attorneys' fees by petitioning attorneys * * *. The Whitley Circuit Court granted leave 'to appellant' to intervene and awarded it a lien against the judgment entered in the wrongful death action to the extent of $4566.00. 'The * * * court granted leave to petitioning attorneys to intervene and awarded petitioning attorneys a judgment for their fees...
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Michaels v. Johnson
...of. Morrow, Inc. v. Paugh (1950) 120 Ind.App. 458, 91 N.E.2d 858. 4. The judgment of the trial court. American Casualty Co. v. Hallman (1962) 134 Ind.App. 447, 186 N.E.2d 175. After being apprised of the above defects by Appellees Answer Brief, Appellant then submitted to this court the fol......