Burton-Shields Co. v. Steele

Decision Date01 February 1949
Docket Number17815.
Citation83 N.E.2d 623,119 Ind.App. 216
CourtIndiana Appellate Court

Appeal from Industrial Board.

William E. Hart and Charles J. Barnhill, both of Indianapolis (Slaymaker, Merrell, Locke & Reynolds, of Indianapolis, of counsel), for appellant.

Bamberger & Feibleman, Isidore Feibleman, Julian Bamberger and Charles B. Feibleman, all of Indianapolis, for appellee.

BOWEN Judge.

This is an appeal from an award of the full Industrial Board of Indiana for compensation benefits in favor of appellee, the widow of one Paul E. Steele, for the death of the said Paul E. Steele on December 2, 1947 from pneumonia allegedly resulting from injuries sustained by the decedent on July 11 1947. The Board by its finding and award concluded that decedent's injury consisted of a fall on a concrete floor and concussion to decedent's head which rendered him unconscious; that he was taken to a hospital and received medical treatment for a period of three days, at the end of which he returned to work; that as a result of said injury and concussion said decedent suffered certain degenerative character changes, and that he became sullen, indifferent to his work, and careless of his personal appearance, and began the excessive use of alcohol; that he continued to work for defendant from July 15 to November 28 at which time he was taken home ill from his work; that as a result of the character changes he became violent and unmanageable, and exposed himself thereby contracting pneumonis from which he died on December 2nd; that said immediate cause of death was proximately due to his said injury of July 11, 1947, and degenerative character changes resulting therefrom.

The errors assigned for reversal are that the award is contrary to law and that it is not sustained by sufficient evidence.

The first proposition asserted by appellant is that the award is contrary to law because the Board failed to find that the appellee was a dependent in whole or in part of the decedent. The evidence in the record that appellee and the decedent were living together as husband and wife at the time of his death by virtue of the statute which provides for a conclusive presumption of dependency of a wife upon a husband with whom she is living at the time of his death, and the reference to appellee in the finding by the Board as decedent's widow, was sufficient in this regard to sustain the award. Burns' Ind.Ann.Stat., 1933, 1947 Supp § 40-1403a(a); Willan v. Spring Hill Coal Corp. Ind.App.1948, 78 N.E.2d 880.

The appellant also contends that the award is contrary to law because the Board failed to make any finding or order with reference to the payment of funeral bills, hospital or medical bills. No explanation is to be found for this omission, but as only the appellee would be harmed by this failure so to find, and in view of the fact the appellee has not seen fit to assign cross-errors, such question is not material here. We cannot agree that such omission indicated an endeavor on the part of the Board to compromise a claim for death benefits contrary to the express language of the Workmen's Compensation Act. Burns' Ann.St. § 40-1201 et seq. Such a conclusion could only be reached by resorting to speculation and conjecture.

The appellant asserts the award of the Industrial Board is not sustained by sufficient evidence, and that appellee failed to sustain the burden of proving that the decedent sustained an accidental injury arising out of and in the course of his employment, and that his death more than five months after the alleged accident from pneumonia was the result of said accident. This proposition has two phases for our consideration. The first, whether decedent's original injury on July 11, 1947 resulted from an accident arising out of and in the course of his employment; and the second, whether the immediate cause of decedent's death from pneumonia was proximately due to his said injury of July 11, 1947.

As to the first consideration, there was no direct evidence of decedent's fall from which the injury resulted. There was evidence in the record from which the Board could have properly determined, that prior to the time decedent suffered the fall, he had been in good health and had worked regularly. He was employed as a pressman by the appellant and he was the foreman of the composing room. After lunch on July 11, 1947 he returned to his work at the press and type cabinet. A fellow workman who was standing about eight feet from the decedent at the time of his fall testified that he heard a noise, and turned around, and that decedent was lying on the concrete floor; that it sounded like a noise someone would make when they were about to fall. The President of appellant company was in an adjoining room at the time of the accident, and he testified that, 'I first learned of Paul's accident when I heard a thud which sounded to me as if someone would throw a watermelon off onto the street. I rushed out into the shop. I saw Paul lying on his back on the floor and there was a tremendous pool of blood on the floor.' He further testified that the decedent was unconscious; that he was lying near the cuspidor, which was located near the press and type cabinets. He also testified that on July 11, 1947, there was oil on the floor and that there was tobacco juice or spit on the floor around the cuspidor. This evidence, together with reasonable inferences to be drawn therefrom, supports the finding that the decedent sustained an accidental injury which arose out of and in the course of his employment with appellant. The cause of the fall may be disregarded if the fall resulted in injuries which would not have occurred except for the employment. Youngstown Sheet & Tube Co. v. Tucka et al., 1946, 116 Ind.App. 612, 66 N.E.2d 619; Burroughs Adding Machine Co. v. Dehn, 1942, 110 Ind.App. 483, 39 N.E.2d 499.

We must next consider the second phase of the second proposition asserted by appellant that the appellee failed to sustain the burden of proving that the immediate cause of decedent's death from pneumonia five months after the accident was the result of and proximately due to his said injury of July 11, 1947.

The evidence shows that the decedent suffered a servere head injury and concussion which rendered him unconscious from a fall on a concrete floor. This fall was described by witnesses as resounding, and he was observed lying in a pool of blood immediately thereafter. The physician who testified for appellant stated that he suffered a deep lacerated wound of the left parietal occipital region of the scalp. He was taken to the hospital in an ambulance after the accident occurred, and about 6:15 p. m. in the evening on the day of the fall, he became irrational, confused, and violent and had to be restrained to his bed by three nurses and two male attendants. He was later removed to a safer room. He was released from the hospital at the end of three days and returned to his work. He worked for the appellant from July 15 to November 28.

The President of the appellant company testified that after the...

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