Haskell & Barker Car Co. v. Brown

• Decision Date: 02 November 1917
• Docket Number: No. 9760.,9760.
• Citation: 67 Ind.App. 178,117 N.E. 555
• Parties: HASKELL & BARKER CAR CO. v. BROWN et al.
• Court: Indiana Appellate Court

67 Ind.App. 178

117 N.E. 555

HASKELL & BARKER CAR CO.

v.BROWN et al.

No. 9760.

Appellate Court of Indiana, Division No. 1.

Nov. 2, 1917.

Appeal from State Industrial Board.

Proceedings by Ida Brown, widow of Michael Brown, deceased, and another, for Workmen's Compensation, opposed by the Haskell & Barker Car Company, employer. From an award of the Industrial Board in favor of applicants, the employer appeals. Affirmed.

Bernard Korbly and Willard New, both of Indianapolis, and Cornelius R. Collins and Jeremiah Collins, both of Michigan City, for appellant. Joseph W. Hutchinson, of Indianapolis, for appellees.

HOTTEL, C. J.

This is an appeal from an award of the Industrial Board of Indiana, by the terms of which the appellee Ida Brown, as wife of Michael Brown, deceased, was awarded 300 weeks' compensation against the appellant, at the rate of $6.87 per week, $100 burial expenses, and the reasonable expense of the physician who attended deceased during the period of the illness which resulted in his death.

The errors assigned and relied on for reversal are as follows:

“First. The Industrial Board erred in its rulings of law upon which the award is based, in this: (a) The Industrial Board erred in finding that decedent was personally injured by accident; and (b) the Industrial Board erred in finding that decedent suffered personal injuries by accident ‘ arising out of and in the course of the employment.’

Second. The Industrial Board erred in its rulings of law in considering the hearsay evidence of each of the three witnesses, Frank R. Warren, Ida Brown, and Etta Brown, upon which the award in this cause is based.

Third. The award of the Industrial Board of Indiana is not sustained by sufficient evidence.

Fourth. The award of the Industrial Board of Indiana is contrary to law.”

[1] It is contended by appellees that no question is presented by the first assigned error. Assuming that they are right in this contention, it avails them nothing, because they in effect concede, and correctly so, that the questions attempted to be presented by rulings (a) and (b), respectively, under said first assigned error are in fact presented by the third assigned error. In view of the fact that a motion for new trial is not provided or contemplated by the act in question, we think the third assigned error is proper under the original act, and that when assigned in this court it challenges the sufficiency of the evidence to sustain every issuable fact essential to the sustaining of the award of said board. It may be remarked in this connection that the Legislature in 1917 (Laws 1917, c. 63), by an amendment of section 61 of the original act, authorizes an assignment of errors to the effect that the award of the full board is contrary to law, and providing that such an assignment challenges “the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.” “The burden of proving the essential facts necessary to establish a case warranting the payment of compensation rests upon the dependent *** as much as it does upon a plaintiff in any proceeding at law. *** The elements that need to be proved are quite different from those in the ordinary action at law or suit in equity, but, so far as these elements are essential, they must be proved by the same degree of probative evidence.” Sponatski's Case, 220 Mass. 526, 528, 108 N. E. 466, 467, L. R. A. 1916A, 333; Woods v. T. Wilson Co. (Ct. of App.) Eng. 6 B. W. C. C. 750, 765; In re Sanderson's Case, 224 Mass. 558, 113 N. E. 355.

[2] It follows that, under our statute, the burden was on appellee to prove by a preponderance of the evidence facts showing not only that she is a dependent of deceased, but also (1) that deceased received an injury resulting in his death; (2) that such injury arose out of his employment with appellant; and (3) that it was received in the course of such employment. Union, etc., Co. v. Davis, 115 N. E. 676; King's Case, 220 Mass. 290, 107 N. E. 959;McCoy v. Michigan Screw Co., 180 Mich. 454, 147 N. W. 572, L. R. A. 1916A, 323; Sponatski's Case, 220 Mass. 526, 108 N. E. 466, L. R. A. 1916A, 333;Reimers v. Proctor Publishing Co., 85 N. J. Law, 441, 89 Atl. 931;Chicago, etc., R. Co. v. Industrial Board, 274 Ill. 336, 113 N. E. 629;In re Sanderson's Case, 224 Mass. 558, 113 N. E. 355. Appellant insists that as to each of these elements essential to recovery the evidence was insufficient to sustain the finding of the board, and cites the following cases: Voelz v. Industrial Commission, 161 Wis. 240, 152 N. W. 830; Re Doherty, 222 Mass. 98, 109 N. E. 887; Perry v. Ocean Coal Co., Ltd., 5 B. W. C. C. 421; Perry v. Baker, 3 W. C. C. (Eng.) 29; Kerr v. Ritchies, 6 B. W. C. C. 419; Beaumont v. Underground Elec. R. Co., 5 B. W. C. C. 247; Southall v. Chesshire County News Co., 5 B. W. C. C. 251; Hawkins v. Powells, etc., Co., 4 B. W. C. C. 178; Steers v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007; Sanderson's Case, supra; O'Hara v. Hayes, 3 B. W. C. C. 586; Farmer v. Stafford, etc., Co., 4 B. W. C. C. 223; Spence v. W. Baird & Co., 5 B. W. C. C. 542; Powers v. Smith, 3 B. W. C. C. 470; Barnabas v. Bersham Colliery Co., 4 B. W. C. C. 119; Savage's Case, 222 Mass. 205, 110 N. E. 283;Chicago, etc., R. Co. v. Industrial Board, 274 Ill. 336, 113 N. E. 629.

[3][4] No good purpose could be served by an attempt to distinguish the facts in each of these cases respectively from those presented by the record in the instant case, but we deem it sufficient to say generally that those cases in which the court of appeal holds against the dependent are cases in which it clearly appears either that there was a total failure as to one or more of the essential elements of recovery above indicated, or otherwise the finding below was against the dependent, and hence the court of appeal very properly held that they could not weigh the evidence, and hence could not disturb the finding below. The seven cases last cited supra are of the character last mentioned, and some of them very properly emphasize the fact that the finding below was against the dependent, and that for such reason the judgment below could not be disturbed, and that a reverse finding of such board would for the same reason be likewise sustained. These cases would be controlling in the instant case if the finding of the Industrial Board had been in appellant's favor. The finding in the instant case is for the dependent, and if each of the elements indicated have any evidence for their support, the award cannot be disturbed by this court. The rule quoted supra from Sponatski's Case does not mean that the dependent must demonstrate his case, but it is no more than an expression in different language of the well-recognized rule applicable generally in all proceedings at law, viz. that if, as to any fact essential to recovery the plaintiff offers no evidence in his favor upon which a reasonable man can act, he must fail. It is true, as appellant in effect contends, that as to said essential elements of recovery the dependent must have some evidence from which the rational mind is relieved from that uncertainty which results merely from speculation or fancy. This demand, however, is met by any evidence, though slight, which is “sufficient to make a reasonable man conclude in his favor” as to such essential facts. Sponatski's Case, 220 Mass. 526, and cases cited on page 528, 108 N. E. 466, L. R. A. 1916A, 333.

[5] And such board, like a court or jury, may draw reasonable inferences from the facts and circumstances in evidence, and where it draws such inferences from facts and circumstances which in their nature are such that reasonable men might draw either the same or opposite inferences, this court cannot say that the fact found as a result of such inference is not sustained by sufficient evidence. Western Union Telegraph Co. v. Louisville, etc., Co., 183 Ind. 258, 263, 108 N. E. 951, Ann. Cas. 1917B, 705;Gish v. St. Joseph, etc., Co., 113 N. E. 394, 396;Interstate Iron & Steel Co. v. Szot et al., 115 N. E. 599.

[6] In determining the question whether the evidence is sufficient to sustain said award, that evidence alone most favorable to appellee must be considered. Southern Products Co. v. Franklin, etc., Co., 183 Ind. 123, 106 N. E. 872. The evidence pertinent to the facts challenged, supra, as not being proven, is in brief to the following effect:

On the day of his injury, decedent was in appellant's employ engaged in unloading steel sheets from a car. Two of these sheets when riveted together would make the end of a box car. Each sheet weighed from 465 to 485 pounds, and was moved by means of a derrick or crane operated by a locomotive. The attachment of the crane to the sheets was by means of a chain and hook, the latter being inserted in a rivet hole in the top edge of the sheet. Decedent and another man worked on the car and made the attachment of the hook to the sheet, and of the chain to the hook, it being a part of decedent's duty to guide the chain as the chain descended. The sheets stood on edge in the car and sometimes became jammed together, and their separation required a great deal of physical effort. This work at times required heavy lifting, straining, effort, and the doing of it required a man of good physical strength. “If there are any weaklings, they do not stay around the work very long.” On the morning of his injury, decedent came to his work feeling well. The man who was working at decedent's side at the time of his injury testified to the following effect, viz.:

I saw Brown when he let go of the hooks. I saw him put his hand to his throat and noticed that there was something wrong with him. I did not know what. I noticed him go like he was staggering “and in a choking disposition.” I worked with him since December 23d (the time of the accident was April 5th), doing the same kind of work and never noticed him have any attack...