Bituminous Cas. Corp. v. Dowling

• Decision Date: 04 December 1941
• Docket Number: 16843.
• Citation: 37 N.E.2d 684,111 Ind.App. 256
• Parties: BITUMINOUS CASUALTY CORPORATION v. DOWLING et al.
• Court: Indiana Appellate Court

37 N.E.2d 684

111 Ind.App. 256

BITUMINOUS CASUALTY CORPORATION v. DOWLING et al.

No. 16843.

Appellate Court of Indiana, in Banc.

December 4, 1941

Cooper Royse, Gambill & Crawford, of Terre Haute, for appellant.

White Wright & Boleman, of Indianapolis, and James L. Tucker of Paoli, for appellees.

CURTIS Judge.

This is an appeal from a final award of the Full Industrial Board of Indiana, from which finding and award we quote the following salient parts:

"That on June 30, 1940, one Telfer Dowling was in the employ of the defendant at an average weekly wage of $15.00 that on June 30, 1940, said Telfer Dowling suffered injuries as a result of an accident arising out of and in the course of the employment of which the defendant had knowledge; and that as a direct result of said accidental injuries the said Telfer Dowling died on the 30th day of June, 1940; that thereafter on September 26, 1940, pursuant to a disagreement between the parties the plaintiffs filed their application, Form 10, for the adjustment of a claim for compensation alleging therein among other things that the plaintiffs and each of them were wholly dependent upon the decedent, Telfer Dowling, at the time of said accidental injuries and subsequent death.

"And the Full Industrial Board, by a majority of its members, now finds for the plaintiffs and each of them on their application, Form 10, that at the time of the said accidental injury and subsequent death of the said Telfer Dowling, said plaintiffs were wholly dependent on the said Telfer Dowling for their support and maintenance.

"The Full Industrial Board, by a majority of its members further finds that the statutory funeral allowance has been paid by the Bituminous Casualty Corporation, the insurance carrier of the defendant.

"And the said Full Industrial Board, by a majority of its members further finds that the motion of the Bituminous Casualty Corporation filed March 29, 1941, asking to be made a party defendant to plaintiffs' application, Form 10, should be denied, and that the motion of the Bituminous Casualty Corporation filed March 26, 1941, to vacate the award dated March 26, 1941, should be denied.

"And the Full Industrial Board by a majority of its members, further finds that the petition filed by the Bituminous Casualty Corporation on April 1, 1941, asking leave to introduce further and additional evidence on the review of said original cause before the Full Industrial Board should be denied.

"And the Full Industrial Board, by a majority of its members, further finds that at the time of said accidental injury and resultant death the defendant was doing business as Marley Evans, Sr. and Marley Evans, Jr., as the Salem Rendering Company and the Kentucky Rendering Company; and that the said decedent was employed by the said Marley Evans, Sr. and Marley Evans, Jr. on the said date; and that the designation in plaintiff's application, Form 10, of the defendant as the Southern Indiana Reduction Company was a misnomer.

"The Full Industrial Board, by a majority of its members, further finds that the defendant by Marley Evans, Sr., appeared at the hearing of this cause before a single member at the Court House in Corydon, Indiana, on March 20, 1941, at one-thirty P. M.; and that the Bituminous Casualty Corporation had knowledge and notice of the pendency of said claim of the plaintiffs and of the date fixed for hearing thereon but failed to appear."

The Board entered an award upon the above finding:

"That there is awarded plaintiffs in equal shares compensation as against the defendant at the rate of $8.80 per week beginning June 30, 1940, and continuing for a period of 300 weeks or until terminated, in accordance with the provisions of the Workmen's Compensation Law of the State of Indiana. * * *

"It is further considered, ordered and adjudged by the Industrial Board of Indiana, by a majority of its members, that the petition of the Bituminous Casualty Corporation filed April 1, 1941, to vacate the original award dated March 26, 1941, be denied.

"It is further considered and ordered by the Full Industrial Board of Indiana, by a majority of its members, that the petition of the Bituminous Casualty Corporation filed March 29, 1941, to be made a party defendant to plaintiffs' application, Form 10, be denied. "It is further considered and ordered and adjudged by the Full Industrial Board of Indiana, by a majority of its members, that the petition of the Bituminous Casualty Corporation filed April 1, 1941, asking leave to introduce additional and further evidence on review of the original award before the Full Industrial Board be denied.

"It is further considered, ordered and adjudged by the Full Industrial Board of Indiana, by a majority of its members, that the said Marley Evans, Sr., doing business under the style and name of Salem Rendering Company and Kentucky Rendering Company, on June 30, 1940, is the same defendant named in plaintiffs' application, Form 10, and was the employer of said decedent at that time.

"It is further considered, ordered and adjudged by the Full Industrial Board of Indiana, by a majority of its members, that the Bituminous Casualty Corporation had full notice and knowledge of the pendency of said claim and of the hearing of plaintiffs' application, Form 10, on March 20, 1941."

From the above finding and award of the Full Industrial Board, the appellant, who is the insurance carrier of the employer, has perfected this appeal. The error assigned is that the award of the Full Industrial Board is contrary to law. This assignment is sufficient to present all alleged errors.

The main contention of the appellant is based upon its proposition that it was not represented at the hearing before a single member of the Board "because of...