Johnson v. P. R. Mallory Co.

• Decision Date: 04 December 1946
• Docket Number: 17529.
• Citation: 69 N.E.2d 757,117 Ind.App. 119
• Parties: JOHNSON v. P. R. MALLORY CO., Inc.
• Court: Indiana Appellate Court

69 N.E.2d 757

117 Ind.App. 119

JOHNSON v. P. R. MALLORY CO., Inc.

No. 17529.

Appellate Court of Indiana, in Banc.

December 4, 1946

Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Forrest Johnson employee, opposed by P. R. Mallory Company, Inc., employer. After the hearing before a single member and prior to hearing before the full Industrial Board, the employee died and Gertrude Johnson, administratrix of his estate, was substituted as plaintiff. From the award of the full board the administratrix appeals.

Affirmed.

Walter C. Reese, of Shelbyville, for appellant.

Ross McCord, Ice & Miller, of Indianapolis (Jas V. Donadro and R. Stanley Lawton, both of Indianapolis, of counsel), for appellee.

HAMILTON Presiding Judge.

This is an appeal from an award of the Full Industrial Board denying appellant compensation under the Indiana Workmen's Compensation Act. Burns' Ann.St. § 40-1201 et seq.

On February 5, 1946, appellant's decedent, Forrest Johnson filed with the Industrial Board of Indiana his form No. 9 application for benefits under the provisions of the Indiana Workmen's Compensation Act. In said application appellant's decedent alleged that an accidental injury alleged to have occurred on May 15, 1945, while he was in the employment of appellee, resulted in disability by reason of a dermatitis venanata caused by contact with chemicals during the course of the employment.

The hearing member found that plaintiff's condition was not the result of an accident arising out of and in the course of his employment. Upon appeal to the Full Industrial Board, the finding was for the defendant and against plaintiff on his Form 9 application and that 'plaintiff's condition was not the result of an accident arising out of and in the course of his employment.'

After the hearing before a single member, and prior to the hearing before the Full Industrial Board, the plaintiff, Forrest Johnson, died, and appellant was substituted as plaintiff, and she prosecutes this appeal.

The errors assigned in this court are: (1) That the award of the Full Industrial Board is contrary to law; and (2) that said award is not supported by sufficient evidence.

Under such assignment of error appellant alleges error by the Full Industrial Board in its action in overruling and denying appellant's written motion filed May 31, 1946, to strike out and reject all of the evidence and testimony given by one Dr. Emmett Lamb, a physician who testified as a witness for and on behalf of appellee at the hearing held before the single member of the Industrial Board. The facts relative to the motion are as follows: Appellant's application Form 9 was filed February 5, 1946; the hearing before the single member of the Industrial Board was held on April 10, 1946; the hearing before the Full Industrial Board was held on June 6, 1946; on May 31, 1946, appellant filed with the Full Industrial Board the following written motion which, omitting caption and signatures, reads as follows:

'The administratrix of the estate of Forrest Johnson deceased moves the Full Industrial Board of Indiana to strike out all the testimony of Dr. Lamb witness for the defendant in the above entitled cause offered and introduced in evidence before the hearing member of the Industrial Board of Indiana on the 12th day of April 1946.

'1. For the reason that the plaintiff did not have present at said examination of plaintiff a physician and that the said Dr. Lamb failed to furnish to the plaintiff a statement in writing forty eight hours before said hearing.

'2. That said evidence was not admissible and said physician could not testify before the Industrial Board of Indiana.

'Wherefore the plaintiff moves the Full Industrial Board of Indiana to strike out such evidence as given by Dr. Lamb upon hearing before the single member of the Industrial Board.'

This motion was overruled by the Full Industrial Board on June 11, 1946.

It appears that Dr. Emmett Lamb, for and on behalf of appellee, as employer, had examined appellant's decedent, Forrest Johnson, on November 3, 1945, and, as such examining physician, Dr. Lamb failed and neglected to furnish to said Forrest Johnson a statement in writing of the conditions evidenced by the examination and all facts relative thereto which were reported by said Dr. Lamb to appellee as the employer at any time prior to 48 hours before the date set for the hearing of this cause before the single member of the Industrial Board, all as provided in Section 2 of Chapter 188, Acts of 1945, pages 580, 583, Section 40-1227, Burns' 1940 Repl. (Supp.).

Assuming, without deciding, that the appellant is correct in her contention that the Full Industrial Board erred in overruling the motion to strike out and reject the evidence of Dr. Lamb, we are constrained to hold...