Stanley v. Riggs Equipment Co.

• Citation: 178 N.E.2d 766,133 Ind.App. 86
• Decision Date: 14 December 1961
• Docket Number: No. 19558,No. 1,19558,1
• Parties: Alice Roe STANLEY et al., Appellant, v. RIGGS EQUIPMENT COMPANY, Inc., Appellee
• Court: Court of Appeals of Indiana

Page 766

178 N.E.2d 766

133 Ind.App. 86

Alice Roe STANLEY et al., Appellant, v. RIGGS EQUIPMENT COMPANY, Inc., Appellee.

No. 19558.

Appellate Court of Indiana, Division No. 1.

Dec. 14, 1961.

Rehearing Denied Feb. 14, 1962.

Robert R. Robbins, William F. Lawler, Jr., Anderson, for appellant.

Murray, Mannon, Fairchild & Stewart, Richard W. Guthrie and James J. Stewart, Indianapolis, for appellee.

COOPER, Justice.

This matter comes to us from a finding and denial of an award made by the Full Industrial Board of Indiana for judicial review.

The record before us reflects that the proper Industrial Board procedure was followed by all the parties interested, and, after a final hearing before the entire Full Board, the following pertinent findings and denial of the award were made:

'* * * The Full Industrial Board of Indiana having heard the arguments of counsel and having reviewed all the evidence in said cause and being duly advised in the premises, now finds:

'That on October 29, 1957, plaintiff's decedent, Gerald C. Stanley, was in the employ of the defendant herein at an average weekly wage in excess of $60.00;

'It is further found that on October 29, 1957, said Gerald C. Stanley received personal injuries in an automobile accident and that on October 29, 1957, said Gerald C. Stanley died as a result of injuries received in said accident;

'It is further found that said Gerald C. Stanley left surviving him his widow, Alice Roe Stanley, and his minor children, Joed Lee Stanley, Janet Sue Stanley and Karen Eileen Stanley, all of whom were living with him and wholly dependent upon him at the time of his death;

'It is further found that on October 2, 1958, pursuant to disagreement, the plaintiffs filed with the Industrial Board of Indiana their Form 10 application of dependents of deceased employee for adjustment of claim for compensation; and that prior to the filing of said application a good faith effort was made to adjust said disagreement;

'It is further found that the death of said Gerald C. Stanley did not result from an accident arising out of and in the course of his employment with the defendant.

'Said Full Industrial Board now finds for the defendant and against the plaintiffs on plaintiffs' Form 10 application filed with the Industrial Board on October 2, 1958.

'Award

'It Is Therefore Considered, Ordered and Adjudged by the Full Industrial Board of Indiana that the plaintiffs take nothing on their Form 10 application filed with the Industrial Board on October 2, 1958, and that the plaintiffs shall pay all costs, if any, assessed in this cause.'

Within the time allowed, the appellant filed his transcript of record and assignment of errors which are as follow:

'1. The said award of the Industrial Board of Indiana is contrary to law.

'2. The said award of the Industrial Board of Indiana is not supported by sufficient evidence.'

The second assigned error presents no question for our consideration as such because § 40-1512, Burns' 1952 Repl., provides, in part '* * * An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.'

See also Flinn v. Hartley (1933) 96 Ind.App. 320, 184 N.E. 915; Rhoden et al. v. Smith, etc. Elec. Co. (1939) 107 Ind.App. 152, 23 N.E.2d 306.

Furthermore, the finding of the Industrial Board being a negative one against the appellant and by such finding the said Board determined that the appellant had not sustained the burden of proof by evidence of probative value. Such finding cannot be succesfully attacked on the grounds that there was a lack of evidence to support it, for a denial of an award against a 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; Scott v. Steene School Twp. (1950) (T.D.1951) 121 Ind.App. 206, 95 N.E.2d 308.

The appellant herein contends that the 'Compensation Act' shall be literally construed on behalf of the complainant. We agree with that contention; however, such liberal construction does not relieve such claimant from the burden of proving every ultimate fact which is necessary to establish his claim in order to legally justify the Industrial Board in granting an award. Ziegler v. Tipton Lumber Co. (1958) 128 Ind.App. 249, 252, 147 N.E.2d 679; Lee v. Oliger (1939) 107 Ind.App. 90, 96, 21 N.E.2d 65.

We also agree with the appellant's contention that whether or not an alleged injury may arise out of and in the course of a claimant's employment depends upon the particular fact and circumstances of each case, and the pertiment law applicable thereto.

In reviewing the pertinent Act, we find that § 40-1202, Burns' 1952 Repl., provides, in part:

'* * * every employer and every employee, except as herein stated, shall be presumed to have accepted the provisions of this act, respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; * * *.' (Our emphasis.)

In the case of Tom Joyce 7 Up Company v. Layman (1942) 112 Ind.App. 369, at 373, 44 N.E.2d 998, at 999, in discussing the foregoing portion of the statute, this court stated:

'It will be noted that under this section of the statute an injury to be compensable must both arise out of and be in the course of the employment. Neither alone is enough.

'In the case of Burroughs Adding Machine Co. v. Dehn (1942), 110 Ind.App. 483, 39 N.E.2d 499, we discuss rules that have been applied in a number of decisions in this and other jurisdictions for the purpose of determining whether the particular injury by accident was one 'arising out of' the employment.

'In the case of Lasear, Inc., v. Anderson, 1934, 99 Ind.App. 428 , 192 N.E. 762, this court quotes from Jeffries v. Pitman-Moore Co., 1925, 83 Ind.App. 159, 147 N.E. 919, the following definition of when an accident occurs 'in the course of' the employment:

"This court has correctly held that an accident occurs in the course of the employment, within the meaning of the Compensation Act, when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is fulfilling the duties of his employment or is engaged in doing something incidental to it.'

'In the same opinion this court uses the following language in defining when an accident 'arises out of' the employment:

'Generally, an accident may be said to arise out of the employment, where there is a causal connection between it and a performance of some service of the employment. Causal relation is established when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment at the time of entering into it, or, when the facts show an incidental connection between the conditions under which the employee works and the injury.'

'The phrase 'in the course of' points to the place and circumstances under which the accident takes place and the time when it occurs.

'In the case of City of Chicago v. Industrial Commission (1941), 376 Ill. 207 , 33 N.E.2d 428, 429, the Supreme Court of Illinois distinguishes between the two phrases in the following language:

'The words 'arising out of' refer to the origin or cause of the accident and are descriptive of its character, while the words 'in the course of' refer to the time, place and circumstances under...