McCoy v. General Glass Corp.

• Decision Date: 28 November 1938
• Docket Number: 16276.
• Citation: 17 N.E.2d 473,106 Ind.App. 116
• Parties: McCOY et al. v. GENERAL GLASS CORPORATION.
• Court: Indiana Appellate Court

17 N.E.2d 473

106 Ind.App. 116

McCOY et al. v. GENERAL GLASS CORPORATION.

No. 16276.

Appellate Court of Indiana, in Banc.

November 28, 1938

E Meeks Cockerill and Nathan Mendenhall, both of Winchester and John J. McShane, of Indianapolis, for appellants.

James L. Murray, of Indianapolis, for appellee.

WOOD Judge.

This is an appeal by the appellants, dependents of Clyde Joseph McCoy, from an award of a majority of the full Industrial Board denying them compensation for the death of McCoy because of an injury alleged to have resulted from an accident arising out of and in the course of his employment by the appellee. The appellants have properly assigned as error for reversal that the award of the full Industrial Board is contrary to law.

The record presents but one question for our consideration namely: Was McCoy's death caused by an accident arising out of and in the course of his employment by the appellee?

This court, on an appeal to it from an award of the Industrial Board, is controlled by well established rules of procedure thus it is the province of the Industrial Board to find the facts, and in determining the ultimate facts it may draw any reasonable inferences from the facts proved, and on appeal, this court will not weigh the evidence nor draw inferences therefrom leading to a different conclusion from that reached by the Industrial Board. Espy v. Indianapolis Power & Light Co., 1932, 94 Ind.App. 184, 180 N.E. 190. The Industrial Board is an administrative body not a court, so the strict rules enforced in courts of law respecting the admission of evidence do not apply to such board, so the admission of incompetent evidence by the Industrial Board will not operate to reverse an award, if there be any basis in the competent evidence to support the award. Under such circumstances, the admission of incompetent evidence is regarded as harmless error. Inland Steel Co. v. Pigo, 1932, 94 Ind.App. 659, 182 N.E. 279. "The Industrial Board has a procedure of its own, and borrows nothing by implication from the Civil Code or from the courts of common law. It is an administrative body, and, as such, is not bound by the rules of court procedure." T. J. Dye & Son v. Nichols, 1923, 81 Ind.App. 13, 141 N.E. 259, 261. The burden is on the applicant to establish each fact necessary to a legal award of compensation. Milholland Sales & Engineering Co. v. Griffiths, 1931, 94 Ind.App. 62, 178 N.E. 458. The rule against hearsay has always prevailed in Indiana. If hearsay testimony which does not come within any of the exceptions to the general rule is admitted in evidence before the Industrial Board it cannot be accepted for any purpose. While it is true that the Industrial Board is not a court, it is an administrative body charged with the administration of the Workmen's Compensation Act, Burns' Ann.St.1933, § 40-1201 et seq. "Upon it rests the duty and responsibility of determining, within its special jurisdiction, the rights of men, women, and children. If those rights were suffered to depend on hearsay, no one would be secure." Indiana Bell Telephone Co. v. Haufe, 1924, 81 Ind.App. 660, 144 N.E. 844, 846. An award of the Industrial Board must be based on something more than mere guess, surmise, conjecture or possibility. Milholland Sales & Engineering Co. v. Griffiths, supra.

A coroner's verdict as to cause of death of an employee is not admissible in evidence in a proceeding to secure compensation for his death under the Workmen's Compensation Act. Spiegel's House Furnishing Co. v. Industrial Commission of Ill., 1919, 288 Ill. 422, 123 N.E. 606, 6 A.L.R. 540.

The substance of the hypothetical question propounded to an expert witness for the purpose of eliciting his opinion must have intimate connection with the testimony submitted in the case, and, if there is no testimony in the case tending to prove the facts assumed in the hypothetical question, such question is improper. Vol. 3 Jones Commentaries on Evidence, 2d Ed., § 1326. "Generally speaking, a hypothetical question should state all the facts relevant to the formation of an opinion, and then, assuming the facts stated to be true, ask the witness whether he is able to form an opinion therefrom, and, if so, to state such opinion." Vol. 3 Jones Commentaries on Evidence, 2d Ed., § 1338. The ordinary rule is that the opinions of experts upon the merits or upon the very matter to be tried are inadmissible, so questions calling for expert opinions should be so framed as not to call upon the witness to determine controverted questions of fact or to pass upon the preponderance of evidence. Vol. 3 Jones Commentaries on Evidence, 2d Ed., § 1321.

With these rules of law as a monitor, we have made a careful examination of all the evidence in the record in the instant case. The material, uncontroverted, controlling facts may be briefly summarized as follows: McCoy was thirty-eight years of age; he had been in the employ of the appellee or its predecessors in the operation of a glass factory for a period of approximately eleven years; at the time of his death he was working in the capacity of an upkeep man and, as such, it was his duty to service and keep the machines molding the articles being manufactured (bottles in this case) in repair and working condition; the building in which McCoy worked was about 300 feet long and 200 feet wide; the roof and sides were covered with corrugated tin, with windows in the sides ventilators in the roof and ventilating fans located about the building; the floor was covered with concrete; this room was occupied by glass furnaces, machines to make the bottles, stackers, leers, and conveyors; when the factory was in operation, molten glass was contained in three tanks about 75 feet long and 50 feet wide which were placed side by side; seven machines were connected with the middle tank, designated as tank number two, and also feeders which conveyed molten glass to the machine where it was molded into bottles, passing from the machines onto the conveyors thence into the leers; it requires about 2200 degrees fahrenheit to heat glass into a molten state; machines designated as number 8, 9, and 10, connected with tank number two, were located in the hottest place in the factory because located in the center thereof where ventilation was very poor; machine number 10 was the hottest machine for an upkeep man to work on; when a machine broke down or went out of service it was necessary for the upkeep man to begin work on it immediately without waiting for it to cool and he was subjected to about four times as much heat as the other employees in the factory; the leers were heated with gas and gas fumes and smoke settled around machines number 8, 9, and 10 more than other machines; the temperature in the factory was almost twice as hot as on the outside; on August 24, 1937, the maximum temperature was 82, the minimum 62, and the set which was taken at five o'clock in the evening upon that day was 76 degrees; McCoy was never off duty because of sickness during the entire...