Russell v. Auburn Central Mfg. Co.

• Decision Date: 16 October 1939
• Docket Number: 16365.
• Citation: 22 N.E.2d 889,107 Ind.App. 17
• Parties: RUSSELL v. AUBURN CENTRAL MFG. CO.
• Court: Indiana Appellate Court

22 N.E.2d 889

107 Ind.App. 17

RUSSELL v. AUBURN CENTRAL MFG. CO.

No. 16365.

Appellate Court of Indiana, in Banc.

October 16, 1939

John E. Sedwick, of Martinsville, and Wm. G. White, of Indianapolis, for appellant.

James L. Murray, of Indianapolis, for appellee.

CURTIS Judge.

This was an action before the Industrial Board of Indiana upon the issues made by the appellant's application for compensation under the Indiana Workmen's Occupational Disease Act to which application there was a general denial by the appellee. It was alleged that the appellant's disability was due to "occupational disease in his head and lungs, low blood pressure, nervousness, lead poisoning and dermatitis of the body". In his brief it is stated that the appellant "is and was afflicted with inflammation of the nose, throat and lungs, due to emery dust and metal grinding dust and fumes from muriatic acid and lead particles and dust all causing a diseased condition causing total permanent disability. * * * That the record shows without dispute or controversy that appellant contracted a disease due to muriatic acid fumes, or that appellant had a latent, or inactive or dormant sinusitis and bronchites which was not disabling and which was made active and virulent by the fumes and dust causing total disability to the day of the hearing". Further the appellant says that "the question of this appeal is reduced to but one under the errors assigned; viz. does the record conclusively show that appellant is entitled to compensation under the Occupational Diseases Act by reason of having contracted occupational disease as distinguished from non-occupational disease, which latter is defined to be the ailments to which the people generally are exposed and from which the public generally suffers independent of an employment"?

The Industrial Board upon an application made to it to review the finding and award of the single member made its finding and award from which we quote as follows: "And the Full Industrial Board having heard the argument of counsel, having reviewed the evidence and being duly advised therein, now finds by a majority of its members that on December 1, 1937 the plaintiff was in the employ of the defendant at an average weekly wage in excess of $30.00 that on January 4, 1938 plaintiff left the employ of the defendant; that on April 14, 1938 the plaintiff filed his application for the adjustment of a claim for compensation under the provisions of the Indiana Workmen's Occupational Diseases Act.

"And the Full Industrial Board, by a majority of its members, now finds for the defendant on all the other material allegations of plaintiff's complaint, filed April 14, 1938.

"Award

"It is therefore considered and ordered by the Full Industrial Board of Indiana, by a majority of its members that plaintiff shall take nothing by his complaint herein and that he shall pay the costs of this proceeding." It is from the above award that this appeal was taken, the error assigned being that the award of the full board is contrary to law. This assignment presents all questions sought to have reviewed.

In the section giving the definition of the term occupational disease is the following: "As...