Scott v. Steene School Tp. of Knox County

• Decision Date: 07 December 1950
• Docket Number: No. 18095,18095
• Citation: 121 Ind.App. 206,95 N.E.2d 308
• Parties: SCOTT v. STEENE SCHOOL TP. OF KNOX COUNTY.
• Court: Indiana Appellate Court

Page 308

95 N.E.2d 308

121 Ind.App. 206

SCOTT v. STEENE SCHOOL TP. OF KNOX COUNTY.

No. 18095.

Appellate Court of Indiana, in Banc.

Dec. 7, 1950.

William P. Dennigan, Vincennes, for appellant.

Rosenfeld & Wolfe, Terre Haute, for appellee.

WILTROUT, Chief Judge.

The full Industrial Board entered an award denying appellant compensation for person injuries, and appellant seeks a review thereof.

The board found: 'That on the 3rd day of May, 1948, the plaintiff was employed by the defendant at an average weekly wage in excess of $32.50 and that on said date plaintiff received personal injuries which did not arise out of and in the course of his employment.' The board also denied appellant's petition to introduce additional evidence before the board.

Appellant was employed by appellee as a school janitor. It is undisputed that he suffered personal injuries on May 3, 1948, while he was working in appellee's school building. Appellant presented evidence to the effect that he was performing work for appellee in repairing a bookcase when he was injured. Appellee's position is that appellant was working on an election booth. Both parties to this appeal accept the proposition that if appellant was working on an election booth at the time of his injury, his injury did not arise out of and in the course of his employment with appellee. Board of Com'rs of Allen County v. Gable, 1944, 115 Ind.App. 102, 57 N.E.2d 69.

The finding of the board was a negative finding against appellant, who had the burden of proof. The board found in effect that appellant did not sustain such burden. The finding cannot therefore be attacked upon the ground that there was a lack of evidence to support it, as a decision against the party having the burden of proof does not rest upon the quantum of evidence. Wright v. Peabody Coal Co., 1948, 225 Ind. 679, 77 N.E.2d 116.

The award of the board cannot be set aside unless all the evidence is undisputed and not contradicted and leads inescapably to the sole conclusion that the appellant was entitled to an award of compensation. Wright v. Peabody Coal Co., supra; Heflen v. Red Front Cash & Carry Stores, Inc., 1948, 225 Ind. 517, 75 N.E.2d 662; Kemble v. Aluminum Co. of America, 1950, Ind.App., 90 N.E.2d 134.

The evidence discloses that there were election booths in the school house, which are left there from one election to another. Appellant was a precinct committeeman. The day before his injury he had carried the booths from the basement and set them up. The day following the injury was an election day.

A written statement made by appellant's son was introduced in evidence. This statement is also signed by appellant's wife and daughter-in-law. In this it is stated: 'I was at home on May 3, 1948 around noon when Dad came home. My wife, my Mother and I were at home. He told me that he was reaching up to saw a board on his tip...