Logan v. Acme Machine Products Division, Serrick Corp.
| Decision Date | 04 March 1942 |
| Docket Number | 16910. |
| Citation | 39 N.E.2d 797,110 Ind.App. 556 |
| Parties | LOGAN v. ACME MACHINE PRODUCTS DIVISION, SERRICK CORPORATION. |
| Court | Indiana Appellate Court |
Myers & Reed, of Muncie, for appellant.
James L. Murray, of Indianapolis, for appellee.
DE VOSS, Chief Judge.
This is an appeal from an award of the Industrial Board of Indiana denying compensation to appellant for alleged total permanent disability, by reason of an accident arising out of and in the course of his employment by appellee.
The petition for compensation was heard by a single member of the Industrial Board, who denied compensation, and, upon review by the Full Industrial Board, said Full Board ordered that appellant take nothing by his application and denied an award of compensation to appellant, and from this order and award appellant appeals to this court. The error assigned for reversal herein is that the final award of the Full Industrial Board of Indiana is contrary to law.
It was stipulated and agreed by the parties that appellant was in the employ of the appellee on March 15, 1940, the date of the alleged injury, at an average weekly wage in excess of $30 that on April 23, 1941, appellant filed his application for adjustment of compensation, and that prior thereto a good faith effort was made to adjust said claim and the parties disagreed.
The question presented by this appeal is the correctness of the finding of the Full Industrial Board as to whether appellant suffered an injury by reason of an accident arising out of and in the course of his employment by appellee.
This court is committed to the rule, as stated on numerous occasions, that it will not weigh the evidence and if there is any evidence of probative force to sustain the award of the Industrial Board, the same will be sustained, considering only the evidence most favorable to appellee.
The evidence discloses that appellant, Gordon Logan, was a man forty years old and that he worked for the appellee herein in 1928, 1929. At the time, he left their employ but returned again to work for them in September, 1935, in Indianapolis. In 1937, appellee moved a division of their factory to Muncie, Indiana, and appellant continued to work for them at Muncie until the date of the alleged accident. It further appears that appellant is a metal polisher and had been working at that trade since 1914, and that prior to working for appellee, he had worked for divers concerns at the business of metal polishing. In the year 1932, at a time when appellant was working for the Universal Brass Works, for whom he had worked approximately ten years, he had some trouble with his lungs. At that time he became sick and dizzy while working and was taken home. A Doctor was called and appellant was taken to the City Hospital where an examination was made and it was ascertained that he was afflicted with tuberculosis, and thereafter he was sent to Sunnyside Sanatorium in the latter part of May, 1932. He remained in Sunnyside Sanatorium until approximately April, 1934, a period of about two years. The wife of said appellant was also in the Sanatorium afflicted with tuberculosis from which she died while in the Sanatorium. During the time appellant was in Sunnyside he suffered a number of hemorrhages of the lungs. A year after he left Sunnyside he began working for appellee in this case. In 1939, during the period of time appellant was working for appellee, he had a hemorrhage at his home and obtained a leave of absence from his work for about ten weeks; he returned to work and continued so to work until March 15, 1940. During the time he worked for appellee he was off a number of days at different times on account of feeling weak. On the 12th of March, 1940, he had a pain under his right shoulder, felt weak and tired and did not work. And likewise on the 13th and 14th of March, 1940, for the reason that he was unable to work he stayed home in bed and rested. On the 15th of March, 1940, at about 11 o'clock, while engaging in polishing rings, appellant suffered a pain under his right shoulder, suffered another hemorrhage and was taken home and has not been able to work since that time. There was medical testimony introduced in evidence which disclosed that from examination made on May 14, 1940, the appellant was not able to do normal work and that any exercise or work would hinder the healing process. It further appears that a Phrenic operation had been performed upon appellant sometime before this examination. This operation was performed for the purpose of preventing the rise and fall of the diaphram and thereby put the lung...
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