Schreiber v. Rickert

• Decision Date: 13 October 1943
• Docket Number: 17139.
• Citation: 50 N.E.2d 879,114 Ind.App. 55
• Parties: SCHREIBER v. RICKERT et al.
• Court: Indiana Appellate Court

50 N.E.2d 879

114 Ind.App. 55

SCHREIBER v. RICKERT et al.

No. 17139.

Appellate Court of Indiana, in Banc.

October 13, 1943

George F. Zimmerman, of Evansville, for appellant.

William D. Hardy, of Evansville, for appellees.

DRAPER Judge.

The Industrial Board entered an award in favor of the appellee Mary T. Rickert, and against her co-appellees and the appellant on account of the death of her husband. It also awarded $150 for burial expenses to one not a party to this proceeding. The award is asserted to be contrary to law because the evidence fails to show that the accident causing his injury and consequent death arose out of and in the course of the employment of the deceased by the appellant and for the further reason, as to the allowance of burial expenses, that the award was made to one not a party to the record and who had filed no application for the allowance thereof.

The appellant, a painting contractor, was engaged by Jacob J Moll, acting for and on behalf of his wife, Anna Moll, to clean and paint the gutters and down spouts on a house owned by her and occupied by them as their home. The appellant had neither insured the risk nor been authorized to carry the same without insurance.

The deceased and another workman, both in the employ of the appellant as painters at an hourly wage, had been working on this job for several days before the accident happened. The gutter, in extending across the south side of the house, ran about eighteen inches above the peak of a small A shaped canopy over the rear door. The deceased crawled onto this canopy from the scaffold alongside it, but it would not support his weight and it broke loose and dropped him to the ground, the canopy falling after him and landing on his head thus inflicting the injury causing his death.

The appellant's first contention is answered by the fact that it was stipulated by and between the parties to be a fact and to be taken as a fact proven upon the hearing, that the deceased came to his death "as the result of an injury suffered by him as the result of a fall from the canopy over door of home while working as a painter" on the dwelling in question. This stipulation, in our opinion, goes further than to show merely that the accident occurred within the period of the employment of the deceased as a painter. It establishes the fact that it occurred while the deceased was working as a painter; that is, was engaged in the performance of his duties as such. A stipulation of facts is an express waiver made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truthfulness of some alleged fact. It has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted, so that the one party need offer no evidence to prove it and the other is not allowed to disprove it. It is a judicial admission of the fact or facts stipulated. Deffler v. Loudenback, 1924, 233 Ill.App. 240, 245. Serving as they do to simplify and expedite litigation, such stipulations are looked upon with favor by the courts. When upon a hearing in a compensation case, a stipulation of facts is entered into within the authority of counsel, it is, unless and until it is set aside or withdrawn, binding and conclusive between ...