Russell v. Johnson

• Citation: 46 N.E.2d 219,220 Ind. 649
• Decision Date: 12 January 1943
• Docket Number: 27821.
• Parties: RUSSELL et al. v. JOHNSON et al.
• Court: Supreme Court of Indiana

46 N.E.2d 219

220 Ind. 649

RUSSELL et al. v. JOHNSON et al.

No. 27821.

Supreme Court of Indiana

January 12, 1943

Leon Kowalski and Henry L. Humrichouser, both of South Bend, for appellants.

Vitus G. Jones, Roland Obenchain, Paul M. Butler, and Francis Jones, all of South Bend, for Rieth-Riley Const. Co. and Employers Liability Assur. Corp.

SHAKE Judge.

John Russell died as a result of an injury by accident arising out of and in the course of his employment. The appellees Rieth-Riley Construction Company and Employers Liability Assurance Corporation were, respectively, the employer and the insurance carrier. Two groups of alleged dependents claimed workmen's compensation. One of these groups consisted of the appellees Gertrude Johnson, a sister of the decedent, and Elmer Johnson, Edward Johnson, Ezel Johnson and Erxcell Johnson, his nephews and niece. The other group was composed of the appellants Lorrine Harrison (Russell) and her children, Lance and Jacqueline Harrison (Russell), who were not related to the decedent by blood or marriage. All of the claimants asserted that they were wholly dependent upon the decedent. There was a hearing before a single member of the Industrial Board who made an award of compensation in favor of Lance and Jacqueline Harrison and against all of the other claimants. On review, compensation was denied all of the claimants by a majority of the full board, two members dissenting in favor of the appellants Lance and Jacqueline Harrison. The Appellate Court of Indiana reversed the award with directions to the Industrial Board to enter an award in favor of Lance and Jacqueline Harrison. Russell v Johnson, Ind.App.1942, 42 N.E.2d 392. The case comes to this court by petition to transfer under authority of Warren v. Indiana Telephone Co., 1940, 217 Ind. 93 26 N.E.2d 399.

As has already been noted, the award of the hearing member was against the appellant Lorrine Harrison. The review by the full board was had on the applications of the employer and the appellee Gertrude Johnson. Lorrine Harrison did not ask for such a review although she joined in the assignment of errors in the so-called appeal from the award of the full board to the Appellate Court. It is asserted in the petition to transfer that on this state of the record Lorrine Harrison is bound by the adverse award of the hearing member; that she had no right to a review of such award in the Appellate Court; and that, consequently, she has no standing here. With this conclusion we cannot agree. The statute does not limit the right to a review in the Appellate Court to those who joined in or asked for a review by the full board. § 40-1511, Burns' 1940 Replacement, § 16436, Baldwin's 1934. A review by the full board is on the merits and is not for errors. The hearing is de novo as to all parties to the proceeding and the award of the full board supersedes for all purposes the award of the hearing member. § 40-1512, Burns' 1940 Replacement, § 16437, Baldwin's 1934. McGuire v. Universal Gear Corp., 1939, 106 Ind.App. 107, 18 N.E.2d 474.

It is next claimed that the evidence considered by the full board was not before the Appellate Court and is not now before us because a deposition shown to have been introducd before the hearing member is not contained in the bill of exceptions, although it is conceded that it is in the transcript of the proceedings of the Industrial Board. We find nothing in the statute, the decisions, or the rules of the Industrial Board requiring a formal bill of exceptions for a review by the Appellate Court. The statute does undertake to provide that 'either party to the dispute may, within thirty (30) days from the date of such award [by the full board] appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.' Acts 1929, Ch. 172, § 61, § 40-1512, Burns' 1940 Replacement, § 16437, Baldwin's 1934. It has been many times held, however, that this so-called appeal is not an appeal in fact but is in the nature of an independent action to which the proper party is entitled as a matter of right though the statute does not so provide and, indeed, if it undertakes to forbid a review. Financial Aid Corporation v. Wallace, 1939, 216 Ind. 114, 23 N.E.2d 472, 125 A.L.R. 736. The quoted provision must, therefore, be construed to relate to the mechanics of presenting the case in the Appellate Court rather than to the manner of saving questions before the Industrial Board. This seems to be the construction placed on the act by the board. Its Rule No. 26, May 29, 1941, provides: 'Any party desiring to appeal from an award of the industrial board must file with the secretary of the board within fifteen (15) days from the date of such award a written praecipe designating specifically the pleadings and orderbook entries to be incorporated into the transcript for such appeal.' 1 Horack's Indiana Administrative Code, § 40-1512-1.

Another rule of the board, No. 25, May 29, 1941, provides that a transcript of evidence will be furnished on the written order of the party desiring the same. 1 Horack's Code, § 40-1507-3. If the practice relating to appeals in ordinary civil actions should be held to apply to the proceedings before the Industrial Board, its Rule No. 26 would be in violation of § 2-3112, Burns' 1933, § 466, Baldwin's 1934, which places no restrictions upon the time within which a party desiring to appeal may request a transcript, other than that which necessarily follows from the limitation within which the appeal must be perfected. We find no reason for invalidating the board's rule. The Industrial Board is an administrative agency, not a court. The only function of a judicial review of its proceedings is to ascertain if, in the broad sense, the requirements of due process have been met. When the sufficiency of the evidence to support the finding of an administrative agency is challenged, the proper court will either conduct an independent inquiry to ascertain the facts upon which the agency acted or look to the evidence which was before it, depending upon the legislative scheme under which the agency operates. Warren v. Indiana Telephone Co., supra. The Indiana Workmen's Compensation Act of 1929, Burns' Ann.St. § 40-1201 et seq., makes ample provision for preserving and perpetuating the evidence heard by the board. A duly certified transcript of the proceedings, including the evidence, and a proper showing that the record is full and complete are all that is necessary to enable the reviewing court to discharge its responsibilities. These requirements were fully met in the instant case and we are unconcerned with the circumstance that the deposition is not contained in that part of the transcript denominated the bill of exceptions. The deposition is in the transcript; it was considered by the board; and the record before us contains all of the evidence. This is sufficient.

The appellees employer and insurance carrier also assert that the evidence was not before the Appellate Court because the condensed recital thereof contained in the appellants' brief entirely omitted an exhibit and the testimony of five witnesses. This is true, and the appellants' explanation thereof as set forth in their original brief was as follows: 'In making a concise statement of this record Appellants are omitting the testimony and proceedings relative to the claim of the Appellees Johnson, as it can have no bearing on the findings of this court relative to the Appellants Russell and would only needlessly lengthen this brief.'

Ordinarily, it is not for an appellant to determine that certain evidence is irrelvant and he will not be heard to say that he has made a good faith effort to comply with the rule when he has purposely omitted a part thereof from his condensed recital. Humphrey v. Pleasure Park Co., 1933, 97 Ind.App. 592, 187 N.E.

682. The case at bar presents an unusual situation, however. Two independent proceedings were instituted before the Industrial Board at different times by different groups of applicants. The appellants constitute one of these groups and the appellees Johnson the other. The Industrial Board found against the Johnsons and they, having failed to appeal, were named as appellees. The testimony omitted from the appellants' brief was that of witnesses produced by the Johnsons in their unsuccessful effort to establish their claims. We think we have here, in effect, an application of the principle of consolidation of actions in the Industrial Board. There is no statute in this state regulating the consolidation of actions and we must look to the common law to determine the grounds for and the effect of a consolidation. This subject was thoroughly considered by the Supreme Judicial Court of Massachusetts in Lumiansky v. Tessier, 1912, 213 Mass. 182, 188, 189, 99 N.E. 1051, 1053, 1054, Ann.Cas.1913E, 1049, 1052, 1053, Chief Justice Rugg speaking for that court said that the phrase, 'consolidation of cases', has been used in three different senses, namely:

'Where several cases are pending upon different causes of action, involving in substance but one question, a court has inherent power to prevent the scandal to the administration of justice which would result from a trial of each case separately, and as one method of avoiding it may stay proceedings in all cases but one, and see if the disposition of that one may not settle the others. Without tracing its history, this procedure is now firmly settled as a part of the common law. * * *

'When several cases are pending which might have been made the subject of a single suit or action, the court may enter an order which shall fuse the several proceedings into a single one. The original actions lose...