Home Packing & Ice Co. v. Cahill

• Decision Date: 29 May 1919
• Docket Number: No. 10488.,10488.
• Citation: 123 N.E. 415,71 Ind.App. 245
• Court: Indiana Appellate Court
• Parties: HOME PACKING & ICE CO. v. CAHILL.

71 Ind.App. 245

123 N.E. 415

HOME PACKING & ICE CO.

v.CAHILL.

No. 10488.

Appellate Court of Indiana, Division No. 2.

May 29, 1919.

Appeal from Industrial Board.

Petition by the Home Packing & Ice Company against William Cahill, to set aside an agreement as to compensation under the Workmen's Compensation Act, which agreement was filed with and approved by the Industrial Board. The petition having been denied by the Industrial Board, the employer appeals. Affirmed.

Batt & Danner, of Terre Haute, for appellant.

A. J. Kelley and F. S. Rawley, both of Terre Haute, for appellee.

DAUSMAN, J.

On April 1, 1917, the appellee received an injury by accident while at appellant's industrial plant. Thereafter appellant's insurance carrier made an investigation of the matter and reported to appellant that appellee was in the employment of appellant at the time of the accident, that appellee's injury arose in the course of the employment, and that his average weekly wage at said time was $35. On November 5, 1917, the parties hereto entered into an agreement as to compensation under section 57 of the Workmen's Compensation Act (Laws 1915, c. 106). This agreement was signed also by the insurance carrier, and was filed with and approved by the Industrial Board. Pursuant to the agreement, appellant paid the medical, hospital, and surgical expenses occasioned by the injury, and also compensation aggregating $435.60. On August 2, 1918, appellant filed its verified petition to set aside the agreement on the ground (1) that it was entered into by reason of mutual mistakes of fact, and (2) that it does not fully comply with the statute.

The specific facts, concerning which it is averred the parties acted mistakenly, are the following: (1) That appellee was in the employ of appellant when he received the injury, but in truth he was not; (2) that appellee's average weekly wage was $35, but in truth was only $21.10; and (3) that the injury, by accident, arose out of and in the course of the employment, but in truth did not. The particular defect, which appellant claims constitutes an incompleteness, is that it provides compensation for the period of total disability only, and fails to make any provision for compensation for any period of partial disability which may ensue.

After hearing the evidence, the board found that there was no mistake, refused to set aside the agreement, and ordered appellant to resume payments thereunder. We have considered the evidence carefully, and we find that it tends fairly to support the decision of the board with respect to the alleged mistakes.

[1] The alleged incompleteness of the agreement, if it be a defect at all, is of such a character that appellant cannot complain of it. With some semblance of reason appellee might complain of it on the ground that in the course of recovery his total disability may cease and a period of...