Kingan & Co. v. Ossam

• Decision Date: 17 December 1918
• Docket Number: No. 10270.,10270.
• Citation: 121 N.E. 289,75 Ind.App. 548
• Court: Indiana Appellate Court
• Parties: KINGAN & CO., Limited, v. OSSAM.

75 Ind.App. 548

121 N.E. 289

KINGAN & CO., Limited,

v.OSSAM.

No. 10270.

Appellate Court of Indiana, Division No. 1.

Dec. 17, 1918.

Appeal from Industrial Board.

Proceedings by Charles Ossam under the Workmen's Compensation Law to recover for personal injuries, opposed by Kingan & Co., Limited, employer. From an award affirmed by the full Board, after review on the ground of change of condition, the employer appeals. Affirmed.

Harold Taylor, of Indianapolis, and Jacob S. White, of Rockville, for appellant.

Walker & Hollett, of Indianapolis, for appellee.

BATMAN, P. J.

The record in this case discloses:

That on November 14, 1916, appellee filed with the Industrial Board of Indiana his application for an adjustment of his claim against appellant for compensation on account of an injury alleged to have been received by him on or about April 25, 1916, while in its employ. That the evidence with reference to said application was heard by less than the full board prior to January 15, 1917, on which date the members who heard the evidence made a general finding against appellee, and the full board made an order that he take nothing by his said application. That thereafter, on January 22, 1917, appellee filed his application to have said award reviewed by the full board. That the full board heard the evidence on said application for review, and on July 16, 1917, made the following finding and award:

“And the full board having concluded the hearing of evidence, and being duly advised in the premises, finds that on the 24th day of April, 1916, plaintiff was in the employment of the defendant at an average weekly wage of $10.50; that on said date, at 10:30 o'clock a. m., plaintiff received a personal injury by an accident arising out of and in the course of his employment, resulting in his total disability to work as a result of said injury from the time of his injury until and including the 16th day of May, 1916; that plaintiff's disability to work as a result of his said injury terminated with the 16th day of May, 1916, and the plaintiff returned to work on the 17th day of May, 1916; that the plaintiff's disability as a result of said injury did not recur, and the disability for which the plaintiff is claiming compensation in this proceeding did not result from his injury of April 24, 1916. It is therefore considered and ordered by the full board that the plaintiff be, and is hereby, awarded, in full of his claim, compensation at the rate of $5.775 per week beginning at 10:30 a. m. May 8, 1916, and terminating with the close of May 16, 1916. It is further ordered that the defendant pay the costs of this proceeding.”

That thereafter, on October 17, 1917, appellee filed his application, under section 45 of the Workmen's Compensation Act of 1915 (Acts 1915, p. 392) for a review of said last award on the ground of a change in condition. That the full board heard the evidence on said application, and on February 18, 1918, made a finding that appellee's disability for work, as a result of the injury producing the same, has recurred, and that as a result of said injury appellee has been totally disabled for work continuously since October 4, 1917, and was then so disabled, and awarded him compensation at the rate of $5,775 per week for a period, beginning October 4, 1917, and continuing during the time of his total disability as a result of his injury, not exceeding an aggregate of 500 weeks. From this award appellant has appealed, and has assigned as error that the award of the Industrial Board is contrary to law.

Appellant contends that the original award, being an award by the full board, from which no appeal was taken, is final and conclusive between the parties, and hence the award on review of the original award and the award on review for change in condition are each void, as the board was without jurisdiction to hear and determine the issues tendered thereby.

[1] We cannot concur in this contention. Section 60 of the Workmen's Compensation Act of 1915 made the following provision for the review of an original award:

“If an application for review is made to the board within seven days from the date of the award, the full board, if the first hearing was not held before the full board, shall review the evidence,” etc. (Our italics.) Acts 1915, p. 410.

It thus clearly appears from the plain wording of this section that a party to an original award was entitled to a review thereof, where the first hearing was not held before the full board, although all the members thereof joined in making such award. It is contended that this court has heretofore held otherwise in the cases of Kingan & Co., Ltd., v. Buford, 116 N. E. 754, and Kokomo, etc., Co. v. Griswold, 117 N. E. 265. An examination of these cases discloses that in each of them the hearing preceding the original award was held before the full board, and are therefore not in conflict with the opinion here expressed, although certain expressions used in discussing the questions then before the court might be so construed. In 1917 the Legislature amended said section 60 so it now reads in part as follows:

“If an application for review is made to the board within seven days from the date of an award, made by less than all the members, the full board, if the first hearing was not held before the full board, shall review the evidence,” etc. (Our italics.) Acts 1917, p. 154.

By this amendment an award by the full board precludes a review thereof, although the hearing may have been held before less than all the members thereof. The act containing this amended section was approved on March 5, 1917, and became effective on that date by virtue of an emergency clause. The record discloses that the first award on appellee's claim for compensation was made by the full board on January 15, 1917, after a hearing before less than all the members thereof. He was therefore entitled to have the same reviewed by the full board under the provision of said section 60 as originally enacted. He availed himself of this privilege by filing his application therefor on January 22, 1917. This application was still pending when said amended section became effective, and the award thereon was made subsequent to said date.

[2] It is well settled that, where a right or remedy which did not exist at common law is founded on a statute, the unqualified repeal of the statute before the right had become vested, or the remedy perfected, abrogates the right and deprives the court of all jurisdiction to proceed further in administering the remedy.

[3] It is likewise true that, when jurisdiction over a subject-matter or special proceeding depends upon an act of the Legislature, if the act be repealed before the proceeding is concluded, the jurisdiction terminates of necessity.

[4] However, where the new legislation does not impair, or take away, the previously existing right, nor deny a remedy for its enforcement, but merely modifies the proceedings while providing a substantially similar remedy, the jurisdiction continues under the forms directed by the latter act, in so far as the two acts are different. Mayne v. The Board, etc. (1889) 123 Ind. 132, 24 N. E. 80;Pittsburgh, etc., R. Co. v. Oglesby (1905) 165 Ind. 542, 76 N. E. 165;Holderman v. Town of North Manchester (1911) 48 Ind. App. 491, 96 N. E. 29; 36 Cyc. 1216.

[5] In the light of the above rule, and the facts of this case, it is obvious that the board was not without jurisdiction to hear and determine appellee's application for a review of the original award. This being true, there is no basis for appellant's further contention that the board was without jurisdiction to hear and determine appellee's subsequent application for a review of the second award on account of a change in condition.

Appellant contends that the evidence is not sufficient to sustain the finding on which the final award is based. In support of this contention it asserts that the board, by its finding and award, made on review of the original award, determined that the condition in which appellee then claimed he was, was not a condition resulting from his original injury; that appellee did not appeal from said award, and is therefore conclusively bound thereby; that the evidence introduced on the hearing of appellee's application for review by reason of a change in condition is nothing more than additional evidence of the same condition that existed at the time of the review of the original award by the full board, and hence is insufficient to sustain a finding of any facts on which an award could be made in appellee's favor. This...