Graver Tank and Manufacturing Corporation v. Noble

• Decision Date: 05 July 1933
• Docket Number: 14,878
• Citation: Graver Tank and Manufacturing Corporation v. Noble, 97 Ind.App. 307, 186 N.E. 390 (Ind. App. 1933)
• Parties: GRAVER TANK AND MANUFACTURING CORPORATION v. NOBLE
• Court: Indiana Appellate Court

186 N.E. 390

97 Ind.App. 307

GRAVER TANK AND MANUFACTURING CORPORATION v. NOBLE

No. 14,878

Court of Appeals of Indiana

July 5, 1933

From Industrial Board of Indiana.

Proceedings under the Workmen's Compensation Act by Catherine Noble as dependent of Steve Noble, deceased employee, opposed by the Graver Tank and Manufacturing Corporation, employer. From an award of compensation, the employer appealed.

Affirmed.

William J. McAleer, Francis J. Dorsey, James J. Clark, and William L Travis, for appellant.

Frank E. Keenan, for appellee.

OPINION

CURTIS, J.

Appellee 's decedent, while in the employ of appellant, sustained personal injuries arising out of and in the course of his employment. An agreement as to payment of compensation was entered into and approved by the Industrial Board of Indiana. Payments of a certain sum were made by appellant under the terms of said agreement, and were discontinued upon the filing of its application with the Industrial Board for review of award on account of change in conditions. Before a hearing was had upon such application, appellee's decedent died. In the meantime the decedent had filed a claim for the adjustment of his compensation which had been dismissed upon motion of the appellant. After the death of the decedent the appellee filed her application for adjustment of claim for compensation as a dependent, alleging therein that Steve Noble, through whom she claimed compensation, died on June 16, 1932, as a proximate result of personal injuries received by him on January 6, 1932, alleging that she and her daughter, Marie Noble, were wholly dependent, and praying an award of compensation at the rate of $ 9.90 for 281 weeks. An answer of general denial, under Rule 10 of the board, was deemed filed to the appellee's claim. The matter was submitted to a single member of the board who made an award in favor of the appellee. The appellant then filed its application for a review by the full board who likewise entered an award in appellee's favor. It is from this latter award that this appeal was taken.

The error assigned is that the award of the full board is contrary to law.

Omitting certain formal parts, the salient portions of the finding and award of the full board are as follows: "That one Steve Noble was in the employ of the Graver Tank and Manufacturing Company on the 6th day of January, 1932, at an average weekly wage of $ 18.00, on which date he met with an injury by reason of an accident arising out of and in the course of his employment, of which the defendant had knowledge and furnished medical attention.

"That on the 21st day of January, 1932, the said Steve Noble and the defendant, Graver Tank and Manufacturing Corporation, entered into a Form No. 12 agreement, under the terms of which said Steve Noble was to receive compensation at the rate of $ 9.90 per week during temporary total disability, not exceeding the period fixed by law, beginning on the 14th day of January, 1932, and that the defendant should pay the necessary and reasonable medical, surgical and hospital expenses of the said Steve Noble for the first thirty days after the injury, which agreement was approved by the Industrial Board on March 17, 1932. That on April 8, 1932, the said Steve Noble filed with the Industrial Board of Indiana his Form No. 9, being an original application of injured employee for the adjustment of claim for compensation, which application was dismissed on motion of the defendant on May 23, 1932, by the hearing member, Harry J. McMillan. That under the terms of the agreement of January 21, 1932, compensation was paid by the defendant to the said Steve Noble up to and including May 25, 1932, in the total sum of $ 188.10.

"That on May 24, 1932, the defendant filed with the Industrial Board its Form No. 14, being an application to review the award on account of a change in conditions in which the defendant alleged that the injury of said Steve Noble had resulted in a permanent partial impairment of the left arm. This application was called for hearing before Edgar A. Perkins, a member of the Industrial Board, on June 30, 1932, and it appearing at that time, that Steve Noble had died as of June 16, 1932, the cause was continued to be reset at the convenience of the Industrial Board of Indiana.

"That thereafter, on July 11th, Catherine Noble, widow of Steve Noble, filed with the Industrial Board of Indiana her Form No. 10, application of dependents of deceased employee for the adjustment of claim for compensation for herself as widow, and Marie Noble, a daughter, aged seventeen.

'It appearing that plaintiff's application, now deceased, for review of award on account of change in conditions, filed with the board on May 25,...