Peerless Pottery, Inc. v. Bacon, 20031

• Decision Date: 06 July 1964
• Docket Number: No. 20031,No. 1,20031,1
• Citation: 199 N.E.2d 857,136 Ind.App. 279
• Parties: PEERLESS POTTERY, INC., Appellant, v. Georgia BACON, Joyce Bacon, Maggie Bacon, Kathryn Bacon, and Willie Bacon, Jr., Appellees
• Court: Indiana Appellate Court

Page 857

199 N.E.2d 857

136 Ind.App. 279

PEERLESS POTTERY, INC., Appellant, v. Georgia BACON, Joyce Bacon, Maggie Bacon, Kathryn Bacon, and Willie Bacon, Jr., Appellees.

No. 20031.

Appellate Court of Indiana, Division No. 1.

July 6, 1964.

Rehearing Denied July 21, 1964.

Theodore L. Locke, Jr., Indianapolis, Locke, Reynolds, Boyd & Weisell, Indianapolis, of counsel, for appellant.

Sydney L. Berger, Evansville, Reisman & Milberg, New York City, of counsel, for appellees.

FAULCONER, Presiding Justice.

This matter comes before us for a judicial review from an award of the Full Industrial Board of Indiana wherein the Board found in favor of the appellees and against the appellant upon appellees' application for compensation benefits resulting from an alleged occupational disease which appellees alleged their deceased husband and father contracted while he was in the employ of appellant.

Appellant's assignment of errors contains four specifications. However, we will consider only Specification No. 1, 'That the Award of the Full Industrial Board of Indiana is contrary to law' as it is the only necessary assignment. Section 40-2220(f), Burns' 1963 Supp.; Wabash Smelting, Inc. v. Murphy (1962), 134 Ind.App. 198, 186 N.E.2d 586, 590.

The findings of the Board under contention here as not being sustained by sufficient evidence and as contrary to law are as follows:

'It is further found that on said date plaintiff's decedent in the course of his employment and arising out of samd [same] was exposed to and did contract an Occupational Disease, to-wit: Silicosis, which disease arose out of and in the course of his employment with the defendant, Peerless Pottery, Inc.

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'It is further found that plaintiff's decedent died as a result of the said Occupational Disease on the 8th day of March, 1960.'

This court will not disturb a finding of fact made by the Industrial Board unless the evidence with all reasonable inferences deducible therefrom, is of such conclusive nature as to force a contrary decision. Lock-Joint Tube Co., Inc. v. Brown (1963), Ind.App., 191 N.E.2d 110, 112 (Trans. denied 1963); Collins v. Evansville State Hospital (1963), Ind.App., 189 N.E.2d 106, 109; Casey v. Stedman Foundry and Machine Co., Inc. (1962), Ind.App., 186 N.E.2d 177, 180 (Trans. denied 1963); Glacier Peat Moss Co. v. Brackins, et al. (1959), 131 Ind.App. 279, 290, 157 N.E.2d 297 (Trans. denied 1960); Woldridge v. Ball Bros. Co., Inc. (1958), 129 Ind.App. 420, 423, 150 N.E.2d 911 (Trans. denied 1959).

Whether the decedent died as a result of silicosis and whether he was exposed to and contracted said disease while an employee of the appellant are the primary disputes of this matter. A review of the evidence discloses that there is conflict on these issues.

It is well settled that this court cannot weigh conflicting evidence and if there is any substantial evidence in the record to sustain the award of the Industrial Board, considering only the evidence most favorable to the appellees, the judgment must be affirmed. Ken Schaefer Auto Auction, Inc. v. Tustison (1964), Ind.App., 198 N.E.2d 873; Glacier Peat Moss Co. v. Brackins, et al., supra, (1959), 131 Ind.App. 279, 291, 157 N.E.2d 297, (Trans. denied 1960); Small, Workmen's Compensation Law...