Consumers Company v. Ceislik

• Decision Date: 11 February 1919
• Docket Number: 10,476
• Citation: 121 N.E. 832,69 Ind.App. 333
• Parties: CONSUMERS COMPANY v. CEISLIK
• Court: Indiana Appellate Court

121 N.E. 832

69 Ind.App. 333

CONSUMERS COMPANY v. CEISLIK

No. 10,476

Court of Appeals of Indiana

February 11, 1919

From the Industrial Board of Indiana.

Proceedings for compensation under the Workmen's Compensation Act by Joe Ceislik against the Consumers Company. From an award for applicant, the defendant appeals.

Affirmed.

McKinley Hansen & Schmauch, for appellant.

McMahon & Conroy, for appellee.

OPINION

BATMAN, P. J.

Appellee filed his claim before the Industrial Board, alleging that on April 13, 1918, he received personal injuries by reason of an accident arising out of and in the course of his employment by appellant, and asking for an adjustment of his compensation under the Workmen's Compensation Act. Acts 1915 p. 392, § 8020l et seq. Burns' Supp 1918. The claim was heard before a single member of the board, who made a finding and an award in favor of appellee. Appellant, in due time, filed its application for a review of said award. Prior to the hearing on review appellant requested leave to submit new and additional evidence on such hearing, and supported his request by the affidavit of its assistant secretary. This request was denied, and the full board thereafter reviewed the evidence introduced at the original hearing, and, having heard the argument of counsel, made a finding of facts on which the full board made the following award: "It is therefore considered and ordered that the plaintiff be and he is hereby awarded compensation at the rate of $ 10.40 per week on account of his disability to work for the injuries received other than to his right eye, beginning on the 28th day of April, 1918, and to continue so long as the plaintiff's injuries, other than the injury to the right eye, wholly disables him for work, not exceeding five hundred weeks and providing that the total compensation shall in no event exceed $ 5,000.00. It is further ordered that the question as to the degree of permanent impairment if any, of the vision of the plaintiff's right eye, be and the same is hereby ordered left open for future consideration. It is further ordered that the defendant pay the cost of the proceedings."

From this award appellant has appealed and has assigned errors which require a consideration of the questions hereinafter determined.

Appellant contends that denial of its request for leave to submit additional evidence on review of the original award was an abuse of discretion on the part of the board. Section 58 of the Workmen's Compensation Act, supra, provides for filing an application before the Industrial Board for a hearing where the parties fail to reach an agreement in regard to compensation. Section 59 provides that the board, by any or all of its members, shall hear the parties at issue, their representatives and witnesses, and shall determine the dispute in a summary manner. Such determination is final and conclusive, unless one of the parties feels aggrieved by the decision. In that event, if such award was made by less than all members of the board, the dissatisfied party may have a review thereof, by filing an application therefor within the time designated in § 60 of the act, supra. On such review the parties are not given a right to submit additional evidence, but under the provisions of said § 60, the board may hear additional evidence if it deems it advisable to do so. This renders the admission of additional evidence discretionary with the board, and its action in that regard is not subject to review by this court, unless the record shows an abuse of such discretion. Bimel Spoke, etc., Co. v. Loper (1917), 65 Ind.App. 479, 117 N.E. 527.

In the instant case the parties were given an opportunity to submit all their evidence at the first hearing before the single member of the board. On the hearing on review, appellant was not entitled as a matter of right to submit additional evidence. It recognized such fact, and sought to have the board exercise its discretion in that regard in its favor. To that end, it submitted the affidavit of its assistant secretary in support of such request, and attempted thereby to show facts which would make a denial thereof an abuse of discretion on the part of the board. Appellant's brief states that it is shown by said affidavit that: "Three persons, whose names appellant is ready to submit to the board, have since then (the former hearing) disclosed the fact that they were eye witnesses to circumstances that show that appellee was not, at the time of the injury, in the service of appellant, but engaged on a personal errand of his own." It also states that said affidavit shows that another witness has been discovered since the original hearing, whose name appellant is ready to furnish to the board, "who will, if called, disprove the testimony of appellee concerning the fact and circumstances surrounding the accident, and impeach his testimony, and show that appellee was at the time of the injury engaged in a personal mission of his own, and not on the business of the company." This is the only evidence which appellant asked to submit on review, and the only showing as to its character, as far as disclosed by appellant's brief. It will be observed that there is no showing as to what the testimony of said witnesses would be, but only a statement of a conclusion in...