Hege & Co. v. Tompkins

• Decision Date: 28 January 1919
• Docket Number: No. 10415.,10415.
• Court: Indiana Appellate Court
• Parties: HEGE & CO. et al. v. TOMPKINS et al.

69 Ind.App. 273

121 N.E. 677

HEGE & CO. et al.

v.TOMPKINS et al.

No. 10415.

Appellate Court of Indiana, Division No. 1.

Jan. 28, 1919.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Adra M. Tompkins, widow of Howard Tompkins, deceased, and the deceased's dependent children, opposed by Hege & Co., employer, and the Fidelity & Casualty Company of New York, insurer. From an award, after review by full board of an award made by one member thereof, the employer and insurer appeal. Affirmed, and increased by 5 per cent. by virtue of Acts 1917, c. 63.Taylor, White & Wright, of Indianapolis, for appellants.

Marshall Hacker and Frank S. Jones, both of Columbus, for appellees.

BATMAN, P. J.

Appellees, who are the widow and children of Howard Tompkins, deceased, filed their application before the industrial board, alleging that they were dependents of said decedent, and asking for an adjustment of their claim against appellant Hege & Co., for compensation on account of the death of said decedent resulting from injuries received by him while in its employ. Said application was heard by a single member of the industrial board, resulting in an award in favor of appellees, based on a finding of facts which recited that appellant Fidelity & Casualty Company was the compensation insurance carrier of said Hege & Co. on the date the decedent received his said injuries. This award was afterward reviewed by the full board on the application of appellants, which resulted in an award in favor of appellees, and from which award appellants are prosecuting this appeal.

[1][2][3] Appellants have assigned as errors on which they rely for reversal that the award of the full board is not sustained by sufficient evidence and is contrary to law. Under these assigned errors appellants assert that there is no competent evidence in the record proving, or tending to prove, directly or by legitimate inference, that the injury causing the death of said Howard Tompkins was sustained by an accident arising out of, and in the course of, his employment by appellant Hege & Co. This is the sole question presented for our consideration. We agree with appellants' contention that the burden rested on appellees to furnish evidence establishing facts from which the conclusion could be properly drawn that the decedent's injuries were caused by an accident arising out of, and in the course of, his employment by Hege & Co. Haskell & Barker Car Co. v. Brown (1917) 117 N. E. 555. Also that the ultimate facts upon which an award is based must be supported by some competent evidence. United Paperboard Co. v. Lewis (1917) 117 N. E. 276. However, it should be borne in mind that a finding of facts by the industrial board stands upon the same footing as the finding of the trial court or the verdict of a jury, and when sustained by any competent evidence is conclusively binding on this court. Bloomington Bedford Stone Co. v. Phillips (1917) 116 N. E. 850;Sugar Valley Coal Co. v. Drake (1917) 117 N. E. 937. Such board, like a court or jury, may draw reasonable inferences from the facts and circumstances in evidence. Haskell & Barker Car Co. v. Brown, supra.

With these well-settled rules in mind, we proceed to determine the question before us. The evidence in this case discloses that the deceased died as a result of an injury to one of his thumbs. W. F. Kendall, a member of the firm of Hege & Co., testified that the deceased was in the employ of said firm as a carpenter at the time of his injury, and that the deceased told him that he had run a splinter or sliver in his thumb while he was at work finishing a room at the residence of James Pierce. Adra M. Tompkins, widow of the deceased, testified that her husband came home on the evening of the day he was injured and told her that he had hurt his thumb, and that he thought he had struck it on a screw. A. A. Kirkpatrick, a physician who attended the deceased after his injury, testified that the deceased stated to him that he had hurt his thumb with a silver off a screw while at work. The witness said that from the nature of the injury he thought that was correct. Paul C. Graham, another physician who treated the deceased after his injury, testified that the deceased told him that he had pricked the end of his thumb with the burr on a screw. Both physicians gave it as their opinions that the deceased died as a result of the injury to his thumb. The evidence shows that the deceased was injured on April 8, 1918, and that he died as a result thereof on April 18, 1918. On April 17, 1918, his employer, Hege & Co., made a report of the accident in question to the industrial board. This report is in evidence, and states, among other things, that on April 8, 1918, the deceased was injured while in its employ by an accident arising out of, and in the course of, the employment; that the injury was caused by a sliver off of a screw being run into the end of one of his thumbs, resulting in infection of his left hand and forearm. This is substantially all the evidence bearing on the question under consideration.

[4][5][6][7] Appellants contend that the statements made by the deceased to the several witnesses as to the cause and manner of his injury are hearsay, and therefore incompetent as evidence. Appellees admit that such statements are hearsay, but assert that, under the state of the record, the industrial board had the right to consider the same regardless of such fact. It is firmly settled in this state that a material fact at issue may be established by hearsay evidence, where the same is admitted without objection. Metropolitan Life Ins. Co. v. Lyons (1912) 50 Ind. App. 534, 98 N. E. 824. In that case the court said:

“The party against whom such evidence is introduced may not take his chance of obtaining a favorable verdict at the hands of the jury on the evidence so admitted, and then, after an adverse verdict, obtain a new trial on the ground that the verdict does not rest on any competent evidence.”

The above case has been cited with approval in Wagner v. Meyer (1913) 53 Ind. App. 223, 101 N. E. 397;Buttz v. Warren Mach. Co. (1913) 55 Ind. App. 347, 103 N. E. 812;Baxter v. Moore (1914) 56 Ind. App. 472, 105 N. E. 588.

The reasons for adopting the above rule in ordinary civil actions apply with even greater force in hearings before the industrial board. It is evidently the intent of the Workmen's Compensation Act that, by concise...