Glacier Peat Moss Co. v. Brackins, 19219
Decision Date | 02 April 1959 |
Docket Number | No. 19219,No. 1,19219,1 |
Citation | 131 Ind.App. 279,157 N.E.2d 297 |
Parties | GLACIER PEAT MOSS COMPANY, Appellant, v. Roscoe BRACKINS, J. J. Long Trucking Company, Appellees |
Court | Indiana Appellate Court |
Tony Foster and Bingham, Summers & Spilman, Indianapolis, Walter R. Bagot, Anderson, for appellant.
Murray, Mannon, Fairchild & Stewart, Richard Guthrie, Indianapolis, for J. J. Long Trucking Co.
James A. McKown, Marion, for Roscoe Brackins.
This is an appeal from an action before the Industrial Board of Indiana. Roscoe Brackins, appellee herein, brought the action against the Glacier Peat Moss Company, the appellant herein, and against the J. J. Long Trucking Company, an appellee herein.
A concise statement of the record is that on June 4, 1956, the appellee Brackins received an accidental injury arising out of and in the course of his employment with the Glacier Peat Moss Company and that injury consisted of injury to his neck, right arm and shoulder. Thereafter, the appellant and the appellee Brackins entered into a Form 12 Agreement as to the compensation for temporary total disability until terminated in accordance with the Workmen's Compensation Law. Burns' Ann.St. § 40-1201 et seq. This Agreement was approved by the Industrial Board, and the appellant paid Two Hundred and Two Dollars and Seventy Cents ($202.70) to the appellee Brackins for total temporary disability. The usual Form 28 was filed with the Board and appellee Brackins returned to work on July 18, 1956. Appellee Brackins' temporary total disability recurred on December 24, 1956. Thereafter the appellee Brackins filed Form 9 with the Industrial Board for the adjustment of claim for compensation making the appellee J. J. Long Trucking Company a party thereto.
The Full Industrial Board, in material substance, made the following finding and award:
'* * * That on June 4, 1956 the plaintiff was in the employ of the defendant, Glacier Peat Moss Company at an average weekly wage in excess of $55.00; that on said date he received an accidental injury arising out of and in the course of his employment with the defendant, Glacier Peat Moss Company, of which accident the said defendant had notice and furnished some of the hospital and medical supplies; that said injury consisted of an injury to plaintiff's neck, right arm and shoulder.
'It is further found that on the 14th day of August, 1956, the Industrial Board approved a compensation agreement entered into by the plaintiff and the defendant, Glacier Peat Moss Company.
'It is further found that pursuant to said compensation agreement the defendant, Glacier Peat Moss Company, paid plaintiff compensation in the total sum of $202.70 for his temporary total disability; that the plaintiff's temporary total disability on account of his said accidental injury terminated on the 18th day of July, 1956; that the plaintiff's temporary total disability recurred on the 24th day of December, 1956 and he is so temporarily totally disabled at the time of this hearing.
'It is further found that at the time of the said accidental injury the plaintiff was not in the employ of the defendant, J. J. Long Trucking Company.
'It is further found that there was a good faith effort to settle said matter as to compensation which ended in disagreement prior to the plaintiff filing his Form 9 application herein on April 4, 1957.
'The Full Industrial Board now finds for the plaintiff and against the defendant, Glacier Peat Moss Company, and finds for the defendant, J. J. Long Trucking Company and against the plaintiff on the plaintiff's Form 9 application filed April 4, 1957.
'Award
'It is Therefore Considered, Ordered and Adjudged by the Full Industrial Board of Indiana that the plaintiff recover of and from the defendant Glacier Peat Moss Company compensation at the rate of $33.00 per week, beginning December 24, 1956, and to continue until terminated in accordance with the provisions of the Workmen's Compensation Law of Indiana and that all deferred payments under this award be brought up to date and paid in cash and in a lump sum.
'It is further ordered that the plaintiff take nothing as against the defendant, J. J. Long Trucking Company.
* * *
* * *
'Dated this 14th day of June, 1958.'
This appeal followed and the appellant's proper assigned error is that the award of the Industrial Board is contrary to law. Under this assigned error, the appellant's first proposition is: 'The Full Industrial Board, contrary to law, has gone behind a prior award for claimant entered on the same accident, to find that there existed an additional injury, not found in such prior award, in order to base this award on a recurrence of disability from such injury.' With this contention, we cannot agree.
First, both the Supreme Court and our court have held that the Workmen's Compensation Law is grounded in justice and should be liberally construed to accomplish the end for which it was enacted. Pollock v. Studebaker Corporation, 1952, 230 Ind. 622, 105 N.E.2d 513; Rauh & Sons Fertilizer Co. v. Adkins et al., 1955, (T.D.1956) 126 Ind.App. 251, 129 N.E.2d 358.
Furthermore, the following receipt, originally filed with the Board affirmatively shows that said compensation for temporary total disability was subject to a review as provided for by law, and the evidence introduced at the hearing affirmatively shows that that award was not an award besed in toto on an injury entirely outside the confines of the original award:
'Received of Glacier Peat Moss Co. the sum of Two Hundred Two Dollars and Seventy Cents ($202.70) making in all, with weekly payments already received by me, the total sum of Two Hundred Two Dollars and seventy Cents ($202.70) in settlement of claims for compensation, for Temporary Total Disability._____ Subject to review as provided by Law on account of injuries suffered by Roscoe Brackins on or about the 4 day of June, 1956 while in the employ of Glacier Peat Moss Co.
'I returned to work on the 18th day of July, 1956 at a wage of $60.00 per week.'
The leading case in Indiana based upon the first proposition advanced by the appellant which has never been overruled or modified is the case of Ralph Sollitt & Sons v. Bickel, 1932, 93 Ind.App. 665, at page 669, 179 N.E. 327, at page 328, wherein this court stated:
...
To continue reading
Request your trial-
Bohn Aluminum & Brass Co., Plant No. 9 v. Kinney
...N.E. 161 (1925); Fort Branch Coal Min. Co. v. Farley, 76 Ind.App. 37, 130 N.E. 132, 131 N.E. 228 (1921); Glacier Peat Moss Co. v. Brackins (1959) 131 Ind.App. 279, 157 N.E.2d 297. See also, Small, Workmen's Compensation Law of Indiana, § 9.2 (1950 Ed.) The undisputed evidence presented at t......
-
Collins v. Evansville State Hospital, 19916
...appeal to this court, we must, of course, accept only the evidence most favorable to the appellee. Glacier Peat Moss Co. v. Brackins et al. (1959) (T.D.1960), 131 Ind.App. 279, 157 N.E.2d 297; United States Steel Corp. v. Douglas et al. (1955), 125 Ind.App. 212, 123 N.E.2d 899. This court w......
- Stafford v. Searfoss
-
Davis v. Webster
...to the appellee. Collins v. Evansville State Hospital (1963), Ind.App., 189 N.E.2d 106; Glacier Peat Moss Company v. Brackins et al. (1959), (Transfer denied 1960), 131 Ind.App. 279, 157 N.E.2d 297. Further, the rule is well established that the Appellate Court may not reverse the finding o......