Standard Cabinet Co. v. Landgrave

• Decision Date: 07 November 1921
• Docket Number: No. 11141.,11141.
• Parties: STANDARD CABINET CO. v. LANDGRAVE.
• Court: Indiana Appellate Court

76 Ind.App. 593

132 N.E. 661

STANDARD CABINET CO.

v.LANDGRAVE.

No. 11141.

Appellate Court of Indiana, Division No. 2.

Nov. 7, 1921.

Appeal from Industrial Board.

Proceedings for compensation under the Workmen's Compensation Act by Philip D. Landgrave, employé, opposed by the Standard Cabinet Company, employer. Compensation awarded, and the employer appeals. Reversed, with instructions to modify.

Joseph W. Hutchinson, of Indianapolis, for appellant.

Charles R. Hughes, of Peru, and Turner, Merrell & Locke, of Indianapolis, for appellee.

NICHOLS, P. J.

This is the second appeal in this cause; the opinion reversing the first award being reported in 128 N. E. 358.

[1] Appellee contends that the question as to whether there was an injury by accident arising out of and in the course of the employment is not open for review on this appeal, for the reason that it was presented by appellant on the first appeal, and was decided by necessary implication. But we are not in harmony with this contention. A failure to find that appellant had notice as required by the statute was fatal to the award, and the question being properly presented on appeal was, independent of any other question, sufficient to reverse the award. It is apparent that this court gave no consideration to the question as to whether the injury was by accident arising out of or in the course of the employment. Had it done so, and had it reversed the award because of a failure of finding or proof on that question, additional evidence could have been heard at the second hearing, as on the question of notice or knowledge.

[2] We proceed, then, to determine the question as to whether appellee received a personal injury that entitled him to compensation under the provisions of the Workmen's Compensation Act (Laws 1915, c. 106).

It appears by the evidence that appellee had been in the employ of appellants for about 19 years as a carpenter. At the time of his injury he had been polishing and scraping floors for six or seven days in the home of the president of appellant company. This required him to work on his knees. His knee had been paining him some for a few days before April 23, 1919, and upon that date he had a chill and had to go home, and was wholly disabled from work for about 20 weeks. His physician testified that he treated his knee for brusitis, which is sometimes called “housemaid's knee,” a name given to it because it is an injury common to housemaids and resulting from being on their knees when scrubbing floors. That his injury was caused by being on his knees and scraping floors is a reasonable inference from the evidence, and justifies the finding of the Industrial Board that on April 23, 1919, appellee received a personal injury by accident arising out of and in the course of his employment. Appellant contends that appellee is suffering from an occupational disease, and that his ailment cannot be classed as an injury resulting from an accident. But, we need not consider whether such disease is or is not an occupational disease, for if it be conceded that it is in the nature of such, compensation may nevertheless be allowed, if it is contracted under such conditions as to constitute an accidental injury, as found in this case. It has been repeatedly held by this court that the words “by accident arising out of and in the course of employment,” as used in the Workmen's Compensation Act, should be liberally construed in harmony with the humane purposes of the...