Hudgins v. Deeds, O-C

• Court: Indiana Appellate Court
• Writing for the Court: LOWDERMILK
• Citation: Hudgins v. Deeds, 251 N.E.2d 478, 145 Ind.App. 418, 18 Ind.Dec. 693 (Ind. App. 1969)
• Decision Date: 14 October 1969
• Docket Number: No. 1,O-C,No. 469,469,1
• Parties: John J. HUDGINS, d/b/a Stroll-hair Distributors, Appellant, v. Dorothy V. DEEDS, Charles A. Deeds, Jr., A Minor, by his next friend, Dorothy V. Deeds, Carole Anne Deeds, A Minor by her next friend, Dorothy V. Deeds, Appellees. A 75

Page 478

251 N.E.2d 478

145 Ind.App. 418

John J. HUDGINS, d/b/a Stroll-O-Chair Distributors, Appellant, v. Dorothy V. DEEDS, Charles A. Deeds, Jr., A Minor, by his next friend, Dorothy V. Deeds, Carole Anne Deeds A Minor by her next friend, Dorothy V Deeds, Appellees.

No. 469 A 75.

Appellate Court of Indiana, Division No. 1.

Oct. 14, 1969.

Benton R. Millis, Willsey & Willsey, Indianapolis, for appellant.

Forrest D. Rau, Indianapolis, for appellees.

LOWDERMILK, Presiding Justice.

This is a proceeding brought by appellees before the Industrial Board of Indiana, as dependents of their deceased husband and father, Charles A. Deeds, for compensation under the Indiana Workmen's Compensation Act.

The record discloses that the action was originally begun by the decedent's dependents filing a petition for adjustment of claim for compensation because of the death of Charles A. Deeds. The cause was submitted to the hearing member and an award was granted to appellees. The appellant applied for review by the full Industrial Board, averring that there was not sufficient evidence to show that the decedent was in the scope of his employment at the time of his death. The full Board held a hearing on the 11th day of February, 1969, and found for the appellees, and made the following findings and award, which are pertinent hereto:

'BE IT REMEMBERED, that pursuant to notice fixing the time and place therefor, the above-captioned cause was called for hearing and review before the Full Industrial Board of Indiana, in the Hearing Room of said Board, 601 State Office Building, 100 North Senate Avenue, Indianapolis, Indiana, on the 11th day of February, 1969, at 9:00 o'clock a.m., on Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors' Form 16 Application for the Review of the Original Award filed on the 16th day of May, 1968.

'Plaintiffs appeared by Counsel, Mr. Forrest D Rau, Indianapolis, Indiana. Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors, appeared by Counsel, Mr. Benton R. Millis, Indianapolis, Indiana.

'The Full Industrial Board of Indiana, having reviewed all the evidence in said cause and being duly advised in the premises therein, now finds:

'That the motion of Counsel for Defendant Stroll-O-Chair for finding and judgment due to lack of evidence of employee-employer relationship between decedent and Stroll-O-Chair Corporation of New York should be sustained;

'That the motion of Counsel for Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors, for finding and judgment should be overruled.

'It is further found that on the 19th day of November, 1964, Plaintiff's decedent was in the employ of Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors, at an average weekly wage in excess of $70.00; that on said date Plaintiff's decedent sustained an accident and injuries arising out of and in the course of his employment with the said Defendant, John J. Hudgins, d/b/a Stroll-O-Chair Distributors, of which said accident said Defendant had knowledge; that said decedent's injuries resulted in immediate death of the decedent on November 19, 1964; that Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors, did not pay burial expenses or benefits to decedent's dependents; that prior to the filing of Plaintiffs' application, a good faith effort was made by the parties to adjust said claim, which effort resulted in a disagreement between the parties.

'It is further found that at the time of his death, decedent left as his sole and only dependents, his widow, Dorothy V. Deeds, and his children, Charles A. Deeds, Jr., born December 31, 1952, and Carole Anne Deeds, born November 11, 1950.

'Said Full Industrial Board of Indiana now finds for Plaintiffs and against Defendant John J. Hudgins d/b/a Stroll-O-Chair Distributors, on Plaintiffs' Form 10 Application for the Adjustment of Claim for Compensation by Dependents of Deceased Employe, filed on the 30th day of August, 1955.

'AWARD

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Industrial Board of Indiana that Plaintiffs, Dorothy V. Deeds, Charles A. Deeds, Jr. and Carole Anne Deeds, have and recover from Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors, compensation at the rate of $42.00 per week in equal shares, beginning November 20, 1964 and to continue during the period of their dependency as provided by the Workmen's Compensation Law of Indiana, but not to exceed 400 weeks or the sum of $16,500.00.

'It is further ordered that all accrued compensation shall be brought up to date, paid in cash and in a lump sum.

'It is further ordered that Defendant John J. Hudgins, d/b/a Stroll-O-Chair Distributors, shall pay to the person or persons entitled thereto, burial expenses or $750.00 for the burial of said decedent.

'It is further ordered that all compensation payable to the minor dependents shall be paid to Dorothy V. Deeds, mother of said minor dependents as their natural guardian, during their dependency.

'* * *.'

Appellant assigned as error that the award of the Industrial Board is contrary to law. The assigned error meets the statutory requirements and all alleged errors may be presented thereunder. Frazer v. McMillin & Carson (1932), 94 Ind.App. 431, 179 N.E. 564; Kunkel, Trustee, etc. v. Arnold (1960), 131 Ind.App. 219, 158 N.E.2d 660.

The principal issue raised by the appellant in the cause now before us for review questions the sufficiency of the evidence to sustain the findings of fact and the award based thereon.

'* * * In such cases when the question of the sufficiency of the evidence comes before us on review, we will not re-examine such evidence or weigh the sufficiency of it. Such function is entrusted to the Industrial Board, and on appeal, we review the evidence in the record only to see if there was competent evidence of probative value, whatever its weight, to support the Board's determination. This Court will consider only the evidence most favorable to the award, including any and all reasonable inferences deductible from the facts proved. Therefore, the fact that reasonable men might draw different inferences from the evidence is immaterial. Colgate-Palmolive-Peet Co. v. Setliff et al. (1934) 98 Ind.App. 577, 189 N.E. 396.

'It is only when the evidence with all of the inferences reasonably deductible therefrom is of such conclusive nature as to force a contrary conclusion than that reached by the Industrial Board that the reviewing court will reverse the Industrial Board.' (Citing cases.)

Tonn and Blank, Inc. v. Curtis (1967), Ind.App., 226 N.E.2d 551.

In reviewing the evidence in the record, which we will not set forth, we find the uncontradicted evidence reveals that the decedent was employed by the appellant, John J. Hudgins, d/b/a Stroll-O-Chair Distributors, and that on the 19th day of November, 1964, Charles A. Deeds died as the proximate result of personal...