Red Cab v. Ziegner

• Decision Date: 14 October 1940
• Docket Number: 16663.
• Citation: 29 N.E.2d 330,108 Ind.App. 607
• Parties: RED CAB, Inc., v. ZIEGNER.
• Court: Indiana Appellate Court

29 N.E.2d 330

108 Ind.App. 607

RED CAB, Inc., v. ZIEGNER.

No. 16663.

Appellate Court of Indiana, in Banc.

October 14, 1940

Cooper Royse, Gambill & Crawford, of Terre Haute, for appellant.

Jas V. Donadio, R. Stanley Lawton, and Matson, Ross, McCord &amp Clifford, all of Indianapolis, for appellee.

CURTIS Judge.

This is an appeal from an award of the full Industrial Board of Indiana granting compensation to the appellee for the death of her husband, Roscoe (Ross) Ziegner, on the grounds that the death of the decedent arose out of and in the course of his employment with the appellant Red Cab, Inc., and that the appellee was a dependent of said husband within the meaning of that term as used in the Workmen's Compensation Act of Indiana, Burns' Ann.St. 1933, § 40-1201 et seq.

On December 6, 1939, the appellee filed her Form 10 application for adjustment of a claim for compensation with the Industrial Board of Indiana alleging therein that she was the wife of Roscoe (Ross) Ziegner who died July 22, 1939, as the result of injuries sustained on July 1, 1939, in an accident which arose out of and in the course of his employment with the appellant; that the injuries from which the death resulted were caused by a fall into an open, unguarded grease pit in the appellant's garage, fracturing the third to tenth ribs on the decedent's left side and also making a puncture wound on the left chest wall; and that the appellee is the only surviving dependent of said Roscoe (Ross) Ziegner and that she was dependent upon him for support at the time of his death and that his average weekly wage was $30.

The appellant filed no answer to said application but it was submitted under the rule of the Industrial Board, which provides that if no answer be filed the allegations of the petition will be deemed to be denied.

The hearing member awarded compensation. Upon an application for review before the full board it also made a finding to the effect that on July 1, 1939, while in the employ of the appellant at an average weekly wage of $10.01 Roscoe Ziegner suffered an injury as the result of an accident arising out of and in the course of his employment of which the defendant had knowledge, that by reason of said accidental injury said Roscoe Ziegner died July 22, 1939, and at the time of his death said Roscoe Ziegner left as his sole and only dependent his wife, Edna L. Ziegner, with whom he was not living at the time of his death but on whom the law of the state imposed support; and that the appellant pay compensation to the appellee at the rate of $8.80 per week commencing July 22, 1939, and during the period of her dependency, but not exceeding 300 weeks; that the appellant pay the reasonable and necessary medical, surgical, hospital and nurses services for the first 90 days following said injury and pay the statutory $150 burial expense and also pay the attorney fees of appellee's attorney in accordance with the schedule of attorney fees established by the Industrial Board, together with costs. The award was in accordance with the finding.

From said award this appeal has been prosecuted, the error assigned and relied upon being that the award of the full Industrial Board is contrary to law.

It has been stipulated between the parties that "on the 1st day of July 1939 plaintiff's decedent Roscoe (Ross) Ziegner was in the employ of defendant Red Cab, Inc.", and that "prior to the filing of the complaint in this cause a good faith effort was made to adjust the matter and the parties disagreed."

Under the assignment of error the appellant makes two main contentions, first, that there is no competent evidence to sustain the finding that the appellee's decedent died as the result of an accident arising out of and in the course of his employment by the appellant, and, secondly, that the evidence fails to establish the right of the appellee who was living apart from her husband to have compensation awarded to her for the assigned reason that it fails to show that she was justifiably living apart from him and that the law cast upon him the duty to support her.

The assignment of error and the contentions made require an examination of the evidence. The evidence most favorable to the award tends strongly to show that the appellant is a taxicab company in Indianapolis. The decedent, the husband of the appellee, was one of its drivers and had been such for several years and still was one on the first of July, 1939. On that date, the decedent went to work for the appellant at about three o'clock in the afternoon and was supposed to work until about two o'clock in the morning. The appellant maintained substations at various points over the city from which its drivers called in to receive further orders. One of these substations was located at a former garage at 30th street and Highland Place, Indianapolis. The appellant had "inherited" a lease to this building from the Hoosier Cab Company. This building was approximately one hundred twenty feet long, seventy-five feet wide, and had a toilet in the southwest corner. There was also an open grease pit about thirty-five feet from the toilet on the east side of the building and about seventy-five feet from the front of the building. The building was unlighted, but there were French doors on the east wall near the grease pit. The only place in the building in which water was used was the toilet already mentioned as being in the southwest corner of the building. The appellant company contracted with the Water Company and issued checks to it for water service for this building. In the appellant's said building there was a typewritten sign saying, "Please Use Toilet in Rear of Building." There were front and back entrances to this building, and when these were open, it was possible for a cab to drive completely through the building. There was a private telephone on the front and outside of this building which the cab drivers used. This phone was a private phone and was connected directly with the appellant company's offices without going through any central system. Cab drivers at one time parked outside of this building to use the phone, but, following complaints about...