In re Ale

Citation66 Ind.App. 144,117 N.E. 938
Decision Date11 December 1917
Docket NumberNo. 10168.,10168.
PartiesIn re ALE et al.
CourtCourt of Appeals of Indiana

OPINION TEXT STARTS HERE

Application by Luna Ale for compensation for the death of Samuel C. Ale, opposed by the National Drain Tile Company, employer. On questions certified by the Industrial Board under Workmen's Compensation Act (Laws 1915, c. 106) § 61, as amended by Laws 1917, c. 63. Questions answered.

BATMAN, P. J.

Under the provisions of section 61 of the Workmen's Compensation Act of 1915, as amended by the Act of 1917, the Industrial Board has certified to this court certain questions of law, based upon the facts presented by a proceeding pending before that body, seeking the opinion of this court for guidance in determining such proceeding. From the statement of facts submitted,it appears that on and prior to January 23, 1917, one Samuel C. Ale, who was a resident of Fairmount, Ind., was in the employment of the National Drain Tile Company as a laborer at an average weekly wage of $17.75; that on said date, while engaged in the discharge of the duties of his employment, he received a personal injury by an accident in the course of his employment; that on the evening of January 24, 1917, the said Samuel C. Ale fell in an unconscious condition at his home, and died at 4 o'clock on the morning of January 25, 1917, leaving surviving him his wife, Luna Ale, and three children under the age of 18 years, with whom he was living at Fairmount, Ind., and who were wholly dependent upon him; that the employer had actual knowledge of the accident to the said Samuel C. Ale at the time it occurred; that the said widow and children served notice of his death upon said employer, on the 3d day of February, 1917, in which they allege that his death was due to said accident of January 23, 1917; that afterward said widow and children filed with the Industrial Board of Indiana their compensation claim against the employer, claiming compensation for 300 weeks, based on an average weekly wage of $17.75, on account of the death of the said Samuel C. Ale; that said claim was heard by a single member of the Industrial Board at the courthouse in Anderson, in Madison county, Ind.; that at said hearing the plaintiffs appeared in person and by Charles T. Parker, their attorney, and the defendant appeared by Thomas P. Harvey, its attorney; that at the time of said hearing his widow and children and their said attorneys were residents of Fairmount, Ind. (which this court judicially knows is about 60 miles from the city of Indianapolis, where such board maintains its offices and keeps its records); that said Fairmount, Ind., was also their post office address at said time; that the member of such board who heard said claim informed claimants that when an award was made in said matter, they would be notified by the transmission of a copy thereof through the United States mails; that immediately after making said award said board, through its secretary, undertook to send a copy thereof to the attorney of said claimants, but by the mistake of a stenographer in its service, in directing the same to said attorney at Clermont, Ind., instead of Fairmount, Ind., a copy of the award did not reach claimants or their attorney until the twelfth day after the making of such award, when it was received by their said attorney by United States mail at his said post office address at Fairmount, Ind.; that neither the claimants nor their said attorney had any notice or information of any kind of the making of such award, until said twelfth day thereafter, and that, on the fourth day after receiving such notice and information as aforesaid, claimants filed with such board their application for review, setting up in detail therein the facts hereinbefore stated, as an excuse for not filing the same within the seven-day period provided for such purpose.

Upon the foregoing facts the Industrial Board submits the following questions:

(1) Does the full Industrial Board of Indiana have the right to hear the claim of said widow and children, upon review, inasmuch as the application therefor was filed within seven days after said widow and children and their attorney received their first knowledge and notice that an award had been made on said claim on the 4th day of April, 1917, and on the fourth day after they received a copy of said award? (2) Does the mistake of a clerical employé of the Industrial Board of Indiana in directing a copy of an award to an improper post office, whereby the claimant was deprived of knowledge, notice, and information that an award had been made until after the expiration of seven days, deprive said claimant of the right to a review before the full Industrial Board?”

As affecting the questions submitted, the Workmen's Compensation Act provides as follows:

“See. 54. The board shall be provided with adequate offices in the capitol or some other suitable building in the city of Indianapolis, in which the records shall be kept and its official business be transacted during regular business hours,” etc. Acts 1915.

Sec. 59. The board, by any or all of its members, shall hear the parties at issue, their representatives, and witnesses, and shall determine the dispute in a summary manner. The award shall be filed with the record of proceedings, and a copy thereof shall immediately be sent to each of the parties in dispute.” Acts 1917.

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