Hagenback v. Leppert

• Decision Date: 02 November 1917
• Docket Number: No. 9911.,9911.
• Citation: 117 N.E. 531,66 Ind.App. 261
• Parties: HAGENBACK et al. v. LEPPERT.
• Court: Indiana Appellate Court

66 Ind.App. 261

117 N.E. 531

HAGENBACK et al.

v.LEPPERT.

No. 9911.

Appellate Court of Indiana, Division No. 1.

Nov. 2, 1917.

Appeal from State Industrial Board.

Proceedings for compensation under the Workmen's Compensation Act by John Leppert, opposed by Carl Hagenback and the Great Wallace Shows Company, employers. Compensation was awarded, and the employers appeal. Award affirmed.Walter Myers and Robert A. Adams, both of Indianapolis, for appellants. P. J. Lauck, of Indianapolis, for appellee.

DAUSMAN, J.

Appellant is a corporation organized and existing under and by virtue of the laws of the state of Indiana, and is engaged in the business of conducting a show. Appellee is a resident of the city of Indianapolis, said state, and at the time of the action hereinafter referred to he was 19 years of age. On the 31st day of July, 1916, appellee was employed by appellant, his work to be that of a hostler. The contract of employment was made at Indianapolis, and at the time of making the contract both parties were, and ever since have been, inhabitants of said state. The show proceeded westwardly, and appellee accompanied it as such employé. On the 7th day of August, 1916, the show was in Joliet, Ill. Appellee began work at 5 o'clock on the morning of that day, and remained on duty continuously until injured as hereinafter stated. About 8 p. m. he was driving a team and was engaged in hauling equipment from the show ground to the railroad and in loading cars. He continued in this work until about an hour after midnight, when he temporarily left his team in care of a fellow workman and “went to the sleeping car to go to the toilet and get a drink of water.” The sleeping car was standing on a track a short distance from where he left his team. There were a number of tracks there, and a switch engine was engaged in switching. While crossing one of these tracks on his way back to his team he was knocked down by one of appellant's moving cars, which ran over his right arm. He was taken to a local hospital, and his arm was amputated below the elbow.

On the 20th day of October, 1916, appellee filed with the Industrial Board his petition for an award, and a hearing was held before Hon. Samuel R. Artman, a member of said board. Appellant filed special answers and made a defense on the merits. A finding and an award were made by said member. Appellant procured a review, and thereupon the full board found, among other things, that appellee's injury resulted from an accident arising out of and in the course of his employment, and awarded him compensation. Under the provisions of sections 43 and 44, W. C. A., the board ordered the commuted value of the award to be paid in a lump sum to a trustee to be appointed by the circuit or superior court of Marion county, Ind.

The only error assigned, which this court can recognize, is that the award is contrary to law. By the most liberal construction of appellant's brief it may be said that two propositionsare presented in support of said assignment: (1) The evidence does not warrant the finding that the injury by accident arose out of and in the course of the employment; and (2) the evidence shows that appellee received his injury outside the state of Indiana.

[1] 1. We must decide against appellant on its first contention. Holland-St. Louis Sugar Co. v. Shraluka, 116 N. E. 330.

[2] 2. The ultimate purpose of the Workmen's Compensation Act is, of course, to promote the welfare of the state. To attain that end the Legislature adopted a comprehensive plan which provides “compensation for personal injury or death by accident arising out of and in the course of the employment,” excepting only where the injury or death is due to the workman's willful misconduct. Among its beneficent purposes are these: To furnish relief to such injured workmen as would otherwise be without remedy-as a matter of justice rather than charity; to shield employers from vexatious, costly and hazardous litigation; and ultimately to put the burden, if any, on the public where it rightfully belongs. That the Legislature had the power to rest this plan on a contractual basis, and to provide that every contract of service made by those who come within the act shall be subject to the terms and provisions thereof, there can be no doubt. Whether the Legislature exercised that power must be determined from the act itself. The legislative intent as to this point is manifested by the following provisions of the act:

“Sec. 2. From and after the taking effect of this act, every employer and every employé, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.”

“Sec. 4. Every contract of service between any employer and employé covered by this act, written or implied, now in operation or made or implied prior to the taking effect of this act, shall, after the act has taken effect, be presumed to continue; and every such contract made subsequent to the taking effect of this act shall be presumed to have been made subject to the provisions of this act, unless either party shall give notice, as provided in section 3, to the other party to such contract that the provisions of this act other than sections 10, 11 and 67 are not intended to apply. A like presumption shall exist equally in the case of all minors, unless notice of the same character be given by or to the parent or guardian of the minor.”

“Sec. 6. The rights and remedies herein granted to an employé subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employé, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury or death.”

“Sec. 20. Every employer and employé under this act, except as provided in section 19, shad be bound by the provisions of the act whether injury by accident or death resulting from such injury occurs within the state or in some other state or in a foreign country.”

[3][4][5][6][7] The language of the foregoing sections is clear and definite. The acceptance of...