Markley v. Richmond Glove Corp., 19267

• Decision Date: 04 March 1959
• Docket Number: No. 1,No. 19267,19267,1
• Citation: 156 N.E.2d 407,129 Ind.App. 325
• Parties: Mabel Louise MARKLEY, Appellant, v. RICHMOND GLOVE CORPORATION, Appellee
• Court: Indiana Appellate Court

Page 407

156 N.E.2d 407

129 Ind.App. 325

Mabel Louise MARKLEY, Appellant, v. RICHMOND GLOVE CORPORATION, Appellee.

No. 19267.

Appellate Court of Indiana, Division No. 1.

March 4, 1959.

J. Richard Kemper, Richmond, Murray, Mannon, Fairchild & Stewart, James J. Stewart and Richard W. Guthrie, Indianapolis, for appellant.

James V. Donadio, Geoffrey Segar, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

AX, Judge.

This appeal is predicated upon an action before the Industrial Board of Indiana for compensation by Mabel Louise Markley, appellant, versus her employer, the Richmond Glove Corporation, appellee, on account of accidental injuries sustained on or about January 28, 1957.

The appellant filed her Form 9 application for adjustment of claim for compensation in which she alleged that on the 28th day of January, 1957, she sustained personal injuries by reason of an accident arising out of and in the course of her employment. The nature and extent of the injuries and the compensation benefits due and owing appellant, if any, were stipulated and agreed upon and the sole question at issue was whether or not the accident arose out of and in the course of appellant's employment.

The application of the appellant was submitted to a Hearing Member upon a stipulation of the parties and thereafter said Hearing Member made his award that appellant take nothing. Within the time provided by law, an application for review by the Full Board was filed. After a hearing said Full Board made its award by a majority of its members that the injuries sustained by appellant were not the result of an accident arising out of and in the course of her employment. A finding for the appellee was duly entered, and an award was made that appellant take nothing.

Appellant contends there is error in the findings of fact and the award of the Full Board in this: (1) That the award of the Full Industrial Board is contrary to law. (2) That said award is not supported by sufficient evidence. (3) That the evidence is not sufficient to sustain the findings of the fact of the Full Industrial Board.

Inasmuch as all of the facts were stipulated, there being no dispute between the parties as to the facts and extent of injuries, we deem it advisable for a proper consideration of this opinion to set forth all of the pertinent parts of said stipulation which is as follows:

It is stipulated and agreed that on the 28th day of January, 1957, and for some time prior thereto, appellant was generally in the employ of the appellee as a factory worker at an average weekly wage of $55.

That on said date appellant's regular hour for reporting to work was 7:00 A.M. That the appellee's factory at which appellant was employed was located on the west side of Fort Wayne Avenue in the city of Richmond, Indiana and the regular employees' entrance to said building abutted the public sidewalk, and which entrance was recessed in the wall of said factory building. That on the date in question appellant parked her automobile, per her custom, on North C street, a public street in the city of Richmond, about 100 yards from the entrance to appellee's building and started to walk north on said public sidewalk toward said entrance. At said time and place said public sidewalk was very slick and slippery, being glazed with a sheet of ice as a consequence of sleet and rain which had frozen thereon, as were other public sidewalks in that area. Consequently, appellant moved out onto a grass strip between said public sidewalk and the curb of Fort Wayne Avenue and approached said entrance thereon.

That when appellant reached a point approximately opposite the entrance of said factory, and just inside of which the employees' time clock was located, she turned and started to cross said public sidewalk attempting to enter said factory building. That she took two or three short steps on the sidewalk, and while still on the public sidewalk slipped and fell because of the icy condition thereof, and then and thereby sustained certain personal injuries hereinafter more particularly described. That said public sidewalk was approximately six feet in width and abutted the appellee's premises. That there was only one other entrance to the appellee's premises, which however was a rear entrance not customarily used by appellant or other employees.

At the time and place of said accident there was in full force and effect a municipal ordinance of the city of Richmond requiring owners of property abutting public sidewalks to keep same free from snow and ice. That however, under said ordinance, appellee, would have had until 10:00 A.M. on the morning in question to clean said sidewalk. That said ordinance was the customary snow and ice, penalty type ordinance, and a copy thereof is attached hereto, made a part hereof and marked Exhibit 'A'. (Since only part of said ordinance applies to this case, we are herewith setting out only Section 3 of said ordinance.)

Section 3. 'It shall be the duty of the occupant or owner, if there be no occupant, of each and every tenement, building, lot or parcel of land, in said city, fronting upon any improved sidewalk, to clean, or cause to be cleaned, such sidewalk in front of such tenement, building, lot or parcel of land, of snow or ice, by Ten o'clock in the Forenoon of each day, and to keep the same clean of such snow and ice.'

That as a consequence of her fall, appellant, who was forty-five years of age, was taken to the Emergency Room of the Reid Memorial Hospital, where she was X-rayed and examined by Dr. James Daggy, and subsequently treated by Dr. James Daggy, and found to have been suffering from a compression fracture of the first upper lumbar vertebra and the 12th lower thoracic vertebra. That appellant also sustained some tissue damage and bruises to her back. That she was treated by complete bed rest, and was hospitalized from January 28, 1957, to February 12, 1957. That the reasonable costs of such hospitalization was $217.55.

That subsequent to her hospitalization she was fitted for a steel brace to support her back, which she was required to wear until on or about her final return to work.

That appellant was totally disabled from January 28, 1957, the day of the accident, until August 5, 1957.

That a disagreement has arisen between the parties concerning the question as to whether or not appellant was injured by accident arising out of and in the course of her employment.

That in addition to Dr. James Daggy, appellant has been examined by a second physician of her choice, Dr. Reid L. Keenan, an orthopedic surgeon, and copies of the reports of Drs. Daggy and Keenan are attached hereto made a part hereof and marked Exhibits 'B' and 'C'. (It is not deemed material to this opinion to copy the exhibits containing the medical reports since later in this stipulation the parties agree to the extent of the injuries sustained.)

(Exhibit 'D' is also a medical report which is not copied herein for the same reason.)

That Exhibit 'E' is a scaled plat of the area in question, upon which has been indicated the approximate place where appellant parked her car and the route which she took to the point where she fell on the sidewalk.

That Exhibit 'F' is a photograph showing a section of the grass plot and sidewalk where the accident in question occurred.

That Exhibit 'G' is a photograph of the employees' entrance which plaintiff had intended to use and near which she fell.

That at the time and place of said fall appellant had not yet rung or checked in and had actually not commenced her work for the day; that appellee has denied the compensability of appellant's injury under the Indiana Workmen's Compensation Law, and the appellant has received no benefits whatsoever from the appellee; but if she is entitled to benefits, an award should be made covering the following items:

Dr. James Daggy $55.00

Reid Memorial Hospital 217.55

Back Brace 28.00

Temporary Total Disability 26 wks/$33 per wk

Permanent Partial Impairment, 10% of Person as a whole 50 wks/$33 per wk

After this case was heard by the Hearing Member, who found against the appellant, the Full Industrial Board heard this case in review, and the following is their finding:

'That plaintiff was in the employ of the defendant on January 28, 1957, at an average weekly wage of $55.00; that on said date plaintiff suffered an accidental injury, consisting of a compression fracture of the 1st upper lumbar vertebra and 12th lower thoracic vertebra; that the defendant had knowledge of the said accidental injuries, but did not furnish plaintiff any medical attention, hospital services and supplies.

'It is further found that following a disagreement between the parties, the defendant having denied liability for compensation, plaintiff filed her Form #9 Application for the adjustment of claim for compensation with the Industrial Board of Indiana on July 24, 1957.

'It is further found that the said personal injuries sustained by the plaintiff on the 28th day of January, 1957, were not the result of an accident, arising out of and in the course of her employment by the above named defendant.

'The Full Industrial Board of Indiana, by a Majority of its Members, now finds for the defendant and against the plaintiff on plaintiff's Form #9 Application for the adjustment of claim for compensation, filed with the Industrial Board of Indiana on July 24, 1957.

'Award: It is, therefore, considered, ordered and adjudged by the Full Industrial Board of Indiana, by a Majority of its Members, that plaintiff take nothing by her Form #9 Application for the adjustment of claim for compensation, filed with the Industrial Board of Indiana on July 24, 1957.'

It is interesting to note that only one member of the Board, Warren W. Martin, did not concur in the above finding and award.

In this case,...