Indiana Steel Products Co. v. Leonard
Citation | 126 Ind.App. 669,131 N.E.2d 162 |
Decision Date | 10 January 1956 |
Docket Number | No. 18758,18758 |
Parties | INDIANA STEEL PRODUCTS COMPANY, Appellant, v. Mary Jane LEONARD, Administratrix of the Estate of Robert C. Leonard, Deceased, and Robert Collins Leonard and Patrick Timothy Leonard, Appellees. |
Court | Court of Appeals of Indiana |
Oscar C. Strom, Charles K. Whitted, Gary, for appellant.
Ryan, Chester & Clifford, Valparaiso, for appellees.
This is an appeal from an award of the Full Industrial Board of Indiana, under the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq.
The application for compensation was originally filed August 7, 1951, by the appellee, Mary Jane Leonard, Administratrix of the estate of Robert C. Leonard, deceased, and in which application she recites that she was divorced from the decedent on the 27th day of October, 1950, but that said decedent left surviving him as sole dependents Robert C. Leonard, age four years, and Patrick T. Leonard, age two years.
Compensation was awarded to the minor children and we quote from the award:
'Be It Remembered that pursuant to notice fixing the time and place therefor, this cause was called for hearing and review before the Full Industrial Board of Indiana, at their offices in the Indiana State Office Building, 141 S. Meridian Street, Indianapolis, Marion County, Indiana, July 7, 1955, at 9 A.M., on order of the Industrial Board of June 10, 1955, remanding said cause to a hearing before the Full Industrial Board, which said order is in the following words and figures, to-wit: (H.I.)
'Be It Further Remembered that on the 18th day of September, 1953, the Industrial Board of Indiana rendered an award in said cause, which said award is in the following words and figures, towit: (H.I.)
'Be It Further Remembered that on the 16th day of October, 1953, the defendant appealed the said cause to the Appellate Court of Indiana.
'Be It Further Remembered that on the 18th day of February, 1954, the Appellate Court of Indiana rendered its decision in said cause, in which said decision the said award of the Full Industrial Board of Indiana rendered on the 18th day of September, 1953, was reversed with instructions that the appellee (plaintiff) be given the opportunity to present further evidence in support of her application, if she so desires, which said decision is in the following words and figures, towit: (H.I.)
'Be It Further Remembered that on the 8th day of July, 1954, in conformity with the decision rendered by the Appellate Court of Indiana, the said cause was remanded to a hearing before a single hearing member of the Industrial Board of Indiana for the purpose of giving the plaintiff an opportunity to present further evidence in support of her application, if she so desires.
'Be It Further Remembered that pursuant to said order of the Full Industrial Board of Indiana of July 8, 1954, a hearing was had before a single hearing member of the Industrial Board of Indiana on the 6th day of June, 1955; that at the conclusion of said hearing the said cause was remanded to the Full Industrial Board of Indiana for further proceedings.
'The Full Industrial Board of Indiana having heard the arguments of counsel and having reviewed all the evidence in said cause, and being duly advised in the premises therein, now finds:
'That on or about the 22nd day of November, 1950, one Robert C. Leonard, plaintiffs' decedent, was in the employ of the defendant at an average weekly wage in excess of $42.00; that on said date said decedent sustained personal injuries by reason of an accident arising out of and in the course of his employment with the defendant, which said accidental injury resulted in his death on the said date; that the defendant had knowledge of his said accidental injury and death, but did not pay for the statutory burial expenses; that at the time of his said accidental injury and death he left surviving him as all and his only dependents the following persons: Robert Collins Leonard, his son, born May 27, 1945, and Patrick Timothy Leonard, his son, born October 29, 1948, both of whom were wholly dependent upon said decedent for their maintenance and support at the time of his said accidental injury and death.
'It is further found that the said minor dependents were not living with the said decedent at the time of his accidental injury and death, at which time the laws of the State of Indiana imposed an obligation on said decedent for the support of the said minor dependents.
'It is further found that the plaintiff, Mary Jane Leonard, and the decedent herein were married on the 11th day of December, 1943, and that they were divorced on or about the 27th day of October, 1950; that said plaintiff was not a dependent of the said decedent within the meaning of the Indiana Workmen's Compensation law.
'It is further found that any and all payments of compensation that may be awarded in the said cause on behalf of the minor dependents herein should be paid to the plaintiff, Mary Jane Leonard, the mother and natural guardian of the said minor dependents, without the appointment of a legal guardian or trustee; that prior to the filing of plaintiffs' application a good faith effort was made by said parties to adjust said claim, which effort resulted in a disagreement between the parties.
'The Full Industrial Board of Indiana now finds for the plaintiffs, Robert Collins Leonard and Patrick Timothy Leonard, and against the defendant on plaintiffs' application Form 10 for the adjustment of claim for compensation, filed on the 7th day of August, 1951.
'Award
'It Is Therefore Considered, Ordered and Adjudged by the Full Industrial Board of Indiana that there be awarded plaintiffs Robert Collins Leonard and Patrick Timothy Leonard as against the defendant compensation in equal shares, at the rate of $23.10 per week, beginning the 22nd day of November, 1950, for a period not to exceed three hundred and fifty (350) weeks or until terminated in accordance with the provisions of the Indiana Workmen's Compensation law.
'It is further ordered that all deferred payments of compensation shall be brought up to date, paid in cash and in a lump sum.
'It is further ordered that all payments of compensation payable to the minor dependents herein shall be paid to Mary Jane Leonard, their mother and natural guardian, without the appointment of a legal guardian or trustee.
'It is further ordered that the statutory burial expenses in the sum of Three Hundred Dollars ($300) shall be paid by the defendants to the person or persons who incurred the burial expenses for the said decedent, Robert C. Leonard.
'It is further ordered that the defendant shall pay the costs, if any, taxed in said cause.
'Dated this 19th day of July, 1955.'
It is from this award of the Full Board that the appellant has appealed, assigning as error that the award is contrary to law.
Under this assigment of error appellant contends,
1. There is not sufficient evidence to sustain the award;
2. The award is based upon incompetent evidence without probative value 3. This action was brought by the wrong party and an award was given persons who are not parties to this action.
Appellant by his Propositions, Points and Authorities claims that the award is based on incompetent hearsay evidence admitted and considered by the Board over the objection of the appellant and that the award is contrary to law in that the evidence fails to support a reasonable inference that the injury arose out of and in the course of his employment.
The facts show the decedent Robert C. Leonard had been employed by the Indiana Steel Products Company approximately eighteen months prior to November 22, 1950, in the capacity as a sales engineer and salesman, his duties being to sell products manufactured by the Indiana Steel Products Company, with territory extending over the state of Wisconsin, the state of Indiana, the northern half of the city of Chicago and the northern counties in the state of Illinois; that his income was on a commission basis and during the year prior to November 22, 1950, he earned $10,250. The record further discloses that the decedent, on the morning of November 22, 1950, was accompanied to the Urschel Airfield, Valparaiso, Indiana, by a fellow employee, where he had his private plane and in which plane he intended to fly to Cudahy, Wisconsin, for the purpose of calling upon his customers.
When last seen the decedent was preparing to take off in his airplane. No word was received from him from the date of take-off, viz.: November 22, 1950, until April 2, 1951, when his body was washed ashore in Lake Michigan, at or near the city of South Haven, Michigan.
The alleged hearsay evidence which was admitted and considered by the Board over the objections of appellant and which action is assigned as error consists of statements of a friend and fellow employee of decedent, Ivan Dickey, of a conversation had with decedent prior to his departure from the air field. This testimony was as follows:
In the case of American Security Company v. Minard, 1948, 118 Ind.App. 310, 77 N.E.2d 762, 763, it is said:
'It seems that our courts in the shadowy borderland of exception to the hearsay rule of evidence have laid out a path which is dim, but nevertheless plain enough that we feel constrained to follow it, which makes such declarations of the existence of a particular intention made contemporaneous with, or immediately preparatory to, a particular litigated act, admissible as evidence, which tends to illustrate and give character to such act. Burr v. Smith, 1898, 152 Ind. 469, 53 N.E. 469; Hinchcliffe v. Koontz, 1889, 121...
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...in his investigation as coroner. This principle, as to establishment of cause of death, was reaffirmed in Indiana Steel Products Co. v. Leonard (1956), 126 Ind.App. 669, 131 N.E.2d 162. See also generally, Indiana Bell Telephone Co. v. Haufe (1924), 81 Ind.App. 660, 144 N.E. 844. In the rec......
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