G. W. Opell Company v. Phillips

• Decision Date: 20 December 1929
• Docket Number: 13,875
• Citation: 169 N.E. 354,90 Ind.App. 552
• Parties: G. W. OPELL COMPANY v. PHILLIPS ET AL
• Court: Indiana Appellate Court

169 N.E. 354

90 Ind.App. 552

G. W. OPELL COMPANY v. PHILLIPS ET AL

No. 13,875

Court of Appeals of Indiana

December 20, 1929

From Industrial Board of Indiana.

Proceeding under the Workmen's Compensation Act by Merle Phillips and others against the G. W. Opell Company, employer. From an award of compensation, the employer appealed.

Reversed.

Ewing R. Emison, William S. Hoover and W. J. Goff, for appellant.

Curtis G. Shake and Joseph W. Kimmell, for appellees.

OPINION

ENLOE J.

There is no dispute as to the essential facts of this case, which are, in substance, as follows: Charles Phillips was an employee of the G. W. Opell Company, at Vincennes, Indiana at a wage of $ 20 per week. His work, in the main, consisted of assisting in loading automobile trucks with bread at the plant of his employer and then driving one of said trucks over a route and making deliveries of bread. On the morning of March 23, 1928, he had gone to the plant of his employer at about one o'clock a. m., as was his custom, to assist in the loading of said trucks, and at about five o'clock a. m., as was his custom, the trucks having been loaded, he took the truck which he was to drive on said route and drove to his home for the purpose of getting his breakfast. He left the truck standing in the street in front of his home, went in and got his breakfast, and then, taking a bucket, he procured some water and went to said truck to put water in the radiator. While he was putting water in the said radiator, he received a gunshot wound from which he shortly thereafter died. On hearing said shot, his wife and his mother rushed from the house to the street and found Phillips lying in the street at the side of said truck. In answer to an inquiry by his mother, he said: "Mom, I have been shot," and in answer to a further inquiry as to who had shot him, he said: "That crazy man," at the same time he pointed to the house in which lived one Darius Green. Phillips was survived by a wife and two children, who made the application for an award of compensation herein. A hearing before a single member of the board resulted in an award denying compensation. On review by the full board, that board, by a majority of its members awarded compensation, from which award this appeal is prosecuted. The only question we need to consider is as to the sufficiency of the evidence to sustain said award.

It appears from the record that, shortly after the shooting, the police department was notified of the fact, and that one Martin, chief of police, and officer Carr went to the home of Green and placed him under arrest; that they took him to the police station, and, about one to one and one-half hours after the shooting, they had a conversation with said Green. On the hearing, the said chief of police was offered as a witness by the appellee, and, during the course of the examination in chief, he was asked if he had any conversation with Green, and replying in the affirmative, he was then asked to state what Green, in that conversation, had said with reference to the shooting. Timely and proper objection was made to this question, and the hearing member then sustained the objection. After being further interrogated, and...