Bimel Spoke & Auto Wheel Co. v. Loper

• Decision Date: 01 November 1917
• Docket Number: No. 10039.,10039.
• Citation: 117 N.E. 527,65 Ind.App. 479
• Court: Indiana Appellate Court
• Parties: BIMEL SPOKE & AUTO WHEEL CO. v. LOPER.

65 Ind.App. 479

117 N.E. 527

BIMEL SPOKE & AUTO WHEEL CO.

v.LOPER.

No. 10039.

Appellate Court of Indiana, Division No. 1.

Nov. 1, 1917.

Appeal from Industrial Board.

Application by Ida M. Loper for compensation for the death of her husband, opposed by the Bimel Spoke & Auto Wheel Company, employer. From an award of the full board in favor of the applicant, the employer appeals. Affirmed.

See, also, 116 N. E. 324.

Harvey and Austill and Joseph W. Hutchinson, all of Indianapolis, for appellant. Frank B. Jaqua, of Portland, for appellee.

FELT, J.

This is an appeal from an award of the full board allowing appellee, Ida M. Loper, compensation for the death of her husband under the Indiana Workmen's Compensation Law.

The first and second assigned errors are in substance the same, and allege that the award of the full Industrial Board of Indiana is contrary to law. The third is as follows:

“The full board erred in overruling the motion of the defendant (appellant) to set aside the award made in the cause by Charles R. Hughes and also to set aside the award made by the Industrial Board on June 4, 1917, and to thereupon hear the parties at issue, their representatives and witnesses, said motion having been filed on the 30th day of June, 1917.”

The finding of facts and the award from which this appeal was taken are as follows:

“Be it remembered that pursuant to notice fixing the time and place therefor, this cause was called for review before the full board at its office in the state house on the 31st day of March, 1917, at 3 o'clock p. m., that the plaintiff appeared by John F. La Follette, her attorney, and the defendant appeared by Horace F. Harvey, its attorney. And the full board, having heard the argument of counsel, having reviewed the evidence, and being duly advised in the premises, finds that on the 28th day of September, 1916, one James F. Loper was in the employment of the defendant as a drill press operator at an average weekly wage of $14.30; that on said date, while he was engaged in his work as a drill press operator, the assistant superintendent of the defendant, under whom the said James F. Loper worked, as an act of sport and horseplay upon his part, turned the air from an air compressor maintained at said time in the defendant's factory, upon the said James F. Loper in the region of the rectum; that the turning of said air upon the said James F. Loper at said time caused him to quickly jerk and straighten his body; that at the time the said James F. Loper was suffering from an abscess in the region of the gall bladder; that the turning of said air upon him aforesaid by the defendant's assistant superintendent, causing him to suddenly jerk and strain himself, ruptured said abscess, and resulted in acute general peritonitis, which caused his death on the 30th day of September, 1916; that the defendant, by and through its assistant superintendent, had actual knowledge of the injury of the said James F. Loper at the time that it occurred; that the air compressor in the defendant's factory was used for the purpose of cleaning machinery, and long prior to the 28th day of September, 1916, the employés had established the custom of using the same to ‘brush’ their clothes, by which is meant that it was used to blow the dust and dirt off their clothing; that said employés had also formed the habit of using said compressor in acts of sport or horseplay by turning the air upon one another, which act is known among them as ‘goosing’; that the said James F. Loper had frequently participated in such sport; that such conduct of the employés was carried on with the actual knowledge and acquiescence of the defendant's assistant superintendent; that he in fact actually participated therein, and no objection whatever was ever made to such conduct upon the part of employés; that said air compressor had a pressure of about 60 pounds at the time that it was turned upon him, the said James F. Loper, by the defendant's assistant superintendent; that at the time said air was turned upon him, the said James F. Loper was not participating to any extent in the sport or horseplay of the defendant's assistant superintendent; that the said James F. Loper left surviving him as his sole and only dependents, the plaintiff, Ida M. Loper, his wife, Charles M. Loper, his son, 12 years of age, and Loyd M. Loper, his son, 8 years of age; that at the time of his injury and death the same James F. Loper was living with his said wife and children as a family, and they were at that time wholly dependent upon him for support; that the defendant did not furnish the said James F. Loper an attending physician for the treatment of his injury,and has not paid his burial expenses or any part thereof.

Ruling of Law.

The question as to whether the death of James F. Loper arose out of his employment was certified by the Industrial Board to the Appellate Court in case No. 9947, 116 N. E. 324. Said court, on the 1st day of June, 1917, held that his death arose out of his employment.

Award.

It is therefore considered and ordered by the full Industrial Board that the plaintiff be, and is hereby, awarded against the defendant 300 weeks' compensation at the rate of $7.71 per week, beginning on the 30th day of September, 1916, and burial expenses not exceeding $100.

It is further ordered that the defendant pay the costs of this action, taxed at $4.45.

Dated this 4th day of June, 1917.”

Appellee filed a verified answer to the assignment of errors, in which she set up the details of the hearing before a single member of the Industrial Board, the application for a review by the full board, and the fact that, while her claim was so pending, the full board certified to the Appellate Court the question of law upon the facts substantially as above stated as to the employment, the injury, the death and the dependents of the deceased, viz.:

“Upon the foregoing facts, did the injury and death of the employé arise out of his employment, within the meaning of the Indiana Workmen's Compensation Act?”

That on June 1, 1917, said court answered the foregoing question in the affirmative in a written opinion by Caldwell, J. See In re Loper (No. 9947) 116 N. E. 324. That appellant by its counsel asked and was granted leave to appear and file briefs in said proceedings, and did file a brief on the question before the court. That by reason thereof all questions involved in this appeal were, or might have been litigated and adjudicated, and appellant is bound thereby, and should not be heard to again present any question relating to the aforesaid award.

The facts...