Frazer v. McMillin And Carson

• Court: Indiana Appellate Court
• Writing for the Court: WOOD, P. J.
• Citation: Frazer v. McMillin And Carson, 179 N.E. 564, 94 Ind.App. 431 (Ind. App. 1932)
• Decision Date: 29 January 1932
• Docket Number: 14,338
• Parties: FRAZER ET AL. v. MCMILLIN AND CARSON

179 N.E. 564

94 Ind.App. 431

FRAZER ET AL. v. MCMILLIN AND CARSON

No. 14,338

Court of Appeals of Indiana

January 29, 1932

Rehearing denied May 19, 1932.

From the Industrial Board of Indiana.

Proceeding under the Workmen's Compensation Act by Laura Frazer and another against McMillin and Carson. From an order of the Industrial Board denying compensation, the claimant appealed.

Reversed.

Sol H Esarey, for appellants.

Slaymaker Merrell, Ward & Locke and James V. Donadio, for appellees.

OPINION

WOOD, P. J.

On September 6, 1929, and for several years previous thereto, Berkley Frazer had been in the employ of the appellees, who were manufacturers' distributors for the Hobart Manufacturing Company of Troy, Ohio, and the McCray Refrigerator Company of Kendallville, Indiana, as a salesman and service man. On this date, the home office and place of business of appellees was located in the city of Indianapolis, Indiana. Berkley Frazer worked out of this office. On the afternoon of the above date, he was en route from Indianapolis, Indiana, to Troy, Ohio, driving an automobile furnished to him by appellees for his use in the capacity in which he worked for them. His daughter, Sarah Elizabeth Frazer, a child at that time, 13 years of age, accompanied him on the trip. Between the hours of 8:30 and 9 o'clock p. m. of the same day, while driving upon what is known as "Federal Road 40," near the village of Lewisburg, Ohio, he ran into a freight train standing across the public highway, receiving injuries which resulted in his death on the same evening. He left surviving him as his only dependents the appellants Laura Frazer, wife, and Sarah Elizabeth Frazer, daughter. During the forenoon of September 6, Berkley Frazer and the appellee Carson had been in the city of Bloomington, Indiana, where Frazer called upon a customer to whom he had previously sold a food chopper, manufactured by the Hobart Manufacturing Company. He found that the knife and plate of this machine were defective and needed repairing, detached same from the machine and took them with him, stating to the customer that he was going into the factory at Troy, and would take the parts with him, have them repaired and returned not later than the following Monday. The Frazers owned an apartment house in Troy. When he left his home in Indianapolis for Troy, he took with him some cushions which were to be delivered to tenants occupying some of these apartments.

Appellants filed a claim on the usual form with the Industrial Board of Indiana for compensation as dependents of Berkley Frazer. Upon a hearing before a single member of the board, an order was made denying compensation. Thereupon, an appeal was taken to the full board, where, on a hearing at which additional evidence was heard a majority of the board also made an order denying compensation. From the award of the full board, this appeal is taken. Appellants have assigned 26 purported errors for reversal of this cause. No point is made or authority cited, directed to or in support of the last 11 of these assignments in appellants' brief; they are, therefore, waived and will not be given further consideration. The first and second assignments of error are as follows: "(1) That the award of the full board is contrary to law. (2) The board erred in making said award on February 27, 1931 in favor of appellees." The second assignment of error presents no question. All the remainder of the alleged errors assigned would not be proper to present any error for review to this court under the civil procedure, but would only be cause for a new trial.

The Industrial Board is an administrative body, vested with quasi-judicial powers. In re Ale (1917), 66 Ind.App. 144, 117 N.E. 938. Section 59, Acts 1929 p. 536, 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." Section 61 of the same act also provides that, "either party to the dispute may within thirty days from the date of such award appeal to the appellate court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions." The same section further provides that: "An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts." In the case of Union Sanitary Mfg. Co. v. Davis (1917), 63 Ind.App. 548, 114 N.E. 872, this court held that it was the intention of the Legislature to provide compensation and proper award under the minimum of legal procedure; that the rehearing before the full board answered the purpose of a new trial; that under the act it was not necessary to make a motion for a new trial; that it was not contemplated nor was it necessary to file motions to modify or set aside the award. The record in the instant case, as in the above case, shows that the appellants excepted to the original award of the single member and the final award of the full board on review. The bill of exceptions containing all the evidence, shows the objections and exceptions to all rulings on the admissibility and exclusion of evidence. This bill is certified to by all members of the board. We hold, therefore, that "an assignment of errors that the award of the full board is contrary to law" on the record as it comes to us in this case, presents for the consideration of the court all alleged errors shown by the record, and that it is not necessary to assign each one complained of as a separate error for reversal of the cause. Union Sanitary Mfg. Co. v. Davis, supra; Pedlow v. Swartz (1918), 68 Ind.App. 400, 120 N.E. 603.

The only question in controversy between the parties to this proceeding is whether or not, at the time Frazer met with the accident causing his death, the same arose out of and in the course of his employment within the meaning of the Indiana Workmen's Compensation Act of 1929, Acts 1929 p. 536, supra.

The burden rests upon the claimant to establish each fact necessary to a legal award of compensation. The award must be based upon something more than mere guess, surmise, possibility or conjecture. Pioneer Coal Co. v. Hardesty (1921), 77 Ind.App. 205, 133 N.E. 398. It must be based upon some legitimate evidence. Indiana Bell Tel. Co. v. Haufe (1924), 81 Ind.App. 660, 144 N.E. 844. The finding of facts made by the Industrial Board is binding upon this court when sustained by competent evidence, and it will not weigh the evidence.

In the case at bar, if the award is supported by some competent evidence, it must be sustained, even though there was some incompetent evidence improperly admitted. Consumers Co. v. Ceislik (1919), 69 Ind.App. 333, 121 N.E. 832.

On September 12, 1929, the appellees prepared a report of the accident as required by § 66 of the Workmen's Compensation Act. The exact date on which it was filed with the Industrial Board is not shown by the record, but it was within a few days after the accident. In this report the appellees...