Rhoden v. Smith & Decker Elec. Co.

Citation107 Ind.App. 152,23 N.E.2d 306
Decision Date08 November 1939
Docket NumberNo. 16401.,16401.
CourtCourt of Appeals of Indiana
PartiesRHODEN et al. v. SMITH & DECKER ELECTRIC CO.

107 Ind.App. 152
23 N.E.2d 306

RHODEN et al.
v.
SMITH & DECKER ELECTRIC CO.

No. 16401.

Appellate Court of Indiana, in Banc.

November 8, 1939.


Appeal from Industrial Board.

Proceeding under the Workmen's Compensation Act by Tracy O. Rhoden, Ina Rhoden, and Kathryn Rhoden, claimants, for the death of Clyde E. Rhoden, deceased, opposed by the Smith & Decker Electric Company, employer. From an award of a single board member, the claimants appealed to the full Industrial Board. From an award of the full Industrial Board, the claimants appeal.

Award reversed as to Tracy O. Rhoden and affirmed as to Ina Rhoden and Kathryn Rhoden.

[23 N.E.2d 307]

Isidor Kahn and Harry P. Dees, both of Evansville, for appellants.

Slaymaker, Merrell & Locke and L. A. Shaner, all of Indianapolis, for appellee.


DE VOSS, Presiding Judge.

This is an appeal from the award of the Full Industrial Board. Appellants Tracy O. Rhoden and Ina Rhoden filed their application for compensation as partial dependents of Clyde E. Rhoden, deceased. The cause was submitted to a single board member and thereafter, before a finding by said board member, appellants Tracy O. Rhoden and Ina Rhoden moved to amend their application by naming Kathryn Rhoden as an additional applicant as a partial dependent of said Clyde E. Rhoden. By order of the board member the application was ordered amended to conform to said petition.

Thereafter the board member made a finding adverse to appellants herein, and upon this finding the Industrial Board ordered that plaintiffs take nothing by their complaint and that they pay the costs of the proceedings.

Appellants filed their petition for a review by the Full Board, and thereafter said cause came up for review before the Full Industrial Board, and upon a hearing said Full Board made the following finding and award:

“And the Full Industrial Board having heard the argument of counsel, having reviewed the evidence, and being duly advised therein, now finds that on March 15, 1937, while in the employ of the defendant

[23 N.E.2d 308]

at an average weekly wage of $16.50, one Clyde E. Rhoden 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 and furnished medical attention; that said accidental injury resulted in the death of the said Clyde E. Rhoden on March 30, 1938; that the defendant has not paid the statutory one hundred dollar burial allowance. That on July 23, 1938, plaintiffs filed their application for the adjustment of a claim for compensation.

“And the Full Industrial Board now finds by a majority of its Members for the defendant and against the plaintiffs, on all of the other material allegations in plaintiffs' complaint.

“Award

“It is therefore considered and ordered by the Full Industrial Board of Indiana by a majority of its Members that the plaintiffs shall take nothing by their complaint herein and that they shall pay the cost of this proceeding.

“It is further ordered that the defendant pay the statutory one hundred dollar burial allowance.”

From this finding and award of the Full Industrial Board appellants appeal.

Appellants assign as error: 1st. That the final award of the Full Industrial Board is contrary to law. 2nd. That the final award of the Full Industrial Board is not supported by sufficient evidence.

[1] The first assigned error is a sufficient assignment and all alleged errors may be presented thereunder. John C. Groub Co. v. Brock, 1932, 94 Ind.App. 346, 180 N. E. 923.

Appellants maintain there was error in the proceedings in the submission of the cause to the single board member. At the hearing by the board member, the record discloses that a question was propounded to a witness by appellants, and an objection having been made, an offer to prove was made, and the objection was sustained. At the hearing on review by the Full Board, no further attempt was made to introduce the testimony rejected by the board member, and no attempt was made to introduce new or additional evidence. Appellee contends that by reason of the fact that the Full Industrial Board was not requested by appellants to admit the rejected evidence, there is no ruling of the Full Industrial Board as to the exclusion of any evidence, and therefor no question as to such ruling is presented for review on this appeal.

Sec. 40-1511, Burns Indiana Statutes, 1933, Sec. 16436, Baldwin's 1934, provides: “If an application for review is made to the board within seven (7) days from the date of an award, made by less than all the members, the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses as soon as practicable and shall make an award and file the same with the finding of the facts on which it is based and send a copy thereof to each of the parties in dispute, in like manner as specified in the last foregoing section.”

[2] The Industrial Board of Indiana is an administrative body and not a court, and under the statute can promulgate rules of procedure in hearings before it.

In the case of Northern Indiana Power Co. v. Hawkins, 1925, 82 Ind.App. 552, 556, 146 N.E. 879, 880, the court said: “The Legislature never intended that all rules of law relative to orderly procedure should be ignored. This is indicated by the fact that it is...

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