Kinsey v. Sheller Mfg. Corp., 18587

• Citation: 126 N.E.2d 267,125 Ind.App. 493
• Decision Date: 09 May 1955
• Docket Number: No. 18587,18587
• Parties: Homer KINSEY, Appellant, v. SHELLER MANUFACTURING CORPORATION, Appellee.
• Court: Indiana Appellate Court

Page 267

126 N.E.2d 267

125 Ind.App. 493

Homer KINSEY, Appellant, v. SHELLER MANUFACTURING CORPORATION, Appellee.

No. 18587.

Appellate Court of Indiana, In Banc.

May 9, 1955.

Archie Lapin, Muncie, for appellant.

George H. Oswalt, William B. Weisell, Slaymaker, Locke & Reynolds, Indianapolis, for appellee.

KELLEY, Chief Judge.

Proceeding before the Industrial Board wherein the Full Board found that the appellant, during the week of November 19, 1951, did not sustain an accidental injury arising out of and in the course of his employment by appellee. From an adverse award appellant brings this appeal for a review thereof upon the assignment that the same is contrary to law.

Appellee filed herein its motion to dismiss this appeal or, in the alternative, to affirm said award. The main ground of appellee's motion is that we do not have jurisdiction of this appeal by reason of appellant's failure to file his praecipe for transcript with the Secretary of the Board within fifteen (15) days from the date of the award as provided in Rule 26 of the Board. A similar contention was adversely determined by us in United States Steel Corporation v. Douglas, Ind.App.1955, 123 N.E.2d 899. We find no reason to now change the views we therein expressed.

The other grounds specified in appellee's said motion to dismiss or affirm have been carefully considered by us and we apprehend none which are fatal to appellant's right to a review of the challenged award.

The evidence pertaining to the vital issue in the cause, i.e., that appellant sustained an accident arising out of and in the course of his employment by appellee, is scanty, indefinite, inconclusive, and undeveloped. Generally, adhering to the evidence most favorable to the award, we think the record discloses substantially the following:

At the time of the alleged occurrence in November, 1951, the appellant had been in the employ of appellee for some five and one-half years. The appellant was near 61 years of age, of slight stature, about five feet seven and one-half inches in height, and weighed approximately 120 pounds. In 1948, while in the appellee's employment, he suffered a right and left inguinal hernia, necessitating surgical repair which was recognized by appellee as industrial and the medical expenses and compensation benefits derivative therefrom were paid by appellee.

Appellant's particular work at the time of the alleged accident, consisted of stacking wooden trays or racks, each measuring some five and one-half feet long and eleven inches wide, with small rubber products, in layers of five or six, so that, when filled, each tray weighed variously from 75 to 100 pounds, lifting the filled trays onto mobile carts, wheeling the carts to the position of permanent racks, and then lifting each filled tray individually from the cart onto the permanent rack.

The date specified by appellant as the day of the alleged accident is much disputed and appears without definite establishment. From the evidence and the finding of the Board, it may be fairly assumed, however, that the time referred to was sometime during the week of November 19, 1951.

Appellant testified that at the time of lifting and pushing one of the loaded boards he 'just became sick and I had to let go my hold--my whole body relaxed--I remember trembling like a rag, and I knew something was wrong; hurt awfully.' The time was placed at 2:30 p.m., but appellant, with the assistance of a fellow worker, continued his work until quitting time at 3:00 p.m. He told the foreman that he had disabled himself and 'was not able to do that work' and remembered rubbing himself across the groin and lower abdomen. After having notified the foreman, he said he 'wheeled the cart; there wasn't much more to do; they generally work until four o'clock, if they don't have enough to keep them busy they quit at three'.

Later, on the same day, he went to see his physician, Dr. Moran, who treated him for prostate trouble and gave him some medicine. Said physician was the only medical expert to testify. He said that at the time he examined appellant he, the appellant, had a chronic colon condition, numerous post-operative adhesions from his previous operation, with severe pain in the left inguinal region, and that the incision 'didn't seem very firm and I judged he was developing a recurrent hernia.' He further testified that prior to November, 1951, he had been treating appellant for prostate trouble and a nervous condition; that on November 23, 1951, he examined appellant for severe pain in the left inguinal region and 'he had some elevation in the area and I suppose that was the beginning of a recurrent hernia' on the left side; that in his opinion there was evidence of a recurrent left side inguinal hernia.

In answer to questions of the hearing member, the physician said that he had treated appellant a number of times 'for different things'; that appellant gave him a history of 'severe pains since his first operation' back in 1948; and that appellant told him he (appellant) noticed 'severe pains, more swelling in the left side, lower left abdomen'; and, with reference to any history of any traumatic incident, the doctor said 'Well, in his work over there, in lifting a board, I believe he noticed this developed, afterwards.' (Italics supplied). On cross-examination the medical witness said that appellant's chief complaint was 'gastrointestinal * * * and the diagnosis on that date (November 23, 1951) was neuropsychosis--very nervous, and marked gastrointestinal distention of his whole abdonmen.' He further...