State v. Gageby
| Decision Date | 04 February 1933 |
| Docket Number | 14,828 |
| Citation | 184 N.E. 190,95 Ind.App. 681 |
| Parties | STATE OF INDIANA ET AL. v. GAGEBY |
| Court | Indiana Appellate Court |
From Industrial Board of Indiana.
Proceeding under the Workmen's Compensation Act by Dora H. Gageby claimant, for compensation for the death of her husband deceased employee, opposed by the State of Indiana and State Highway Commission, employer. From an award allowing compensation, defendant appealed.
Affirmed.
James M. Ogden and Philip Lutz, Jr., Attorneys-General, Charles Edwards and William E. Bussell, Deputy Attorneys-General, for appellants.
Ratcliff & Ratcliff, for appellee.
This is an appeal from an award of the full Industrial Board of Indiana, in which award the appellee, Dora H. Gageby, was given compensation for 292 2/7 weeks at the rate of $ 16.50 per week against the appellant for the death of her husband which was alleged to have been caused as the result of an injury by accident arising out of and in the course of his employment by the appellant. The issues were formed upon the appellee's application for compensation and the answer of general denial thereto supplied by rule 10 of the Board.
There was a hearing before a single member of the Board who made an award in favor of the appellee. The appellant then filed an application for review by the full Board who likewise made a finding and entered an award in the appellee's favor, the salient parts of which are as follows: "The full Industrial Board of Indiana, having heard the argument of counsel and having reviewed all of the evidence and being thereby duly advised in the premises, a majority of the members of said board find that one Frank A. Gageby, now deceased, was in the employ of the defendants on the 27th day of November, 1931, at an average weekly wage of $ 30.00 or more; that on said date the said Frank A. Gageby met with an accident arising out of and in the course of his employment, of which the defendants had knowledge at the time; that the said Frank A. Gageby did not become totally disabled as a result of said accidental injury until the 18th day of December, 1931; that the said Frank A. Gageby died as a result of said accidental injury suffered by him on the 27th day of November, 1931, on the 10th day of February, 1932; that he left surviving him as his sole and only dependent the plaintiff herein, Dora H. Gageby, his widow, age seventy-two (72) years, with whom he was living at the time of his injury and death, and who was dependent upon him for her maintenance and support.
A majority of the members of the full board further find that the defendant paid to the plaintiff his full wages during the period of his total disability as the result of the said accidental injury, that is, from the 18th day of December, 1931, to the 9th day of February, 1932, inclusive.
The appellant prayed and perfected its appeal to this court, assigning as the errors relied upon for reversal the following:
1. "(1) The award of the full Industrial Board is contrary to law.
(2) The Board erred in finding that proper notice was given.
(3) The award is not sustained by sufficient evidence."
The first error assigned and relied upon is sufficient to present all questions sought to be presented. See Sec. 61 Indiana Workmen's Compensation Act, Acts 1929, p. 537.
The appellant's contention is twofold: (a) That the record does not show that the death of the appellee's husband was a death by accident within the meaning of the Workmen's Compensation Act, supra; (b) that proper notice was not given within a reasonable time.
We will take these contentions up in the order named. Examining the evidence most favorable to the appellee which we are required to do, we find that the appellee, who is the widow of the decedent, testified substantially as follows: Mr. Gageby drove a highway car and kept it in the garage right at home, and started to work from home in the morning with the car and returned home with the car after his work. Prior to the 27th day of November, 1931, Mr. Gageby was very healthy, had never called a doctor in Indianapolis for him and he never complained. Lived with him 37 years and he had always been healthy. For two or three years prior to November 27, 1931, Mr. Gageby was never off work because of sickness and was on the job every day. He was very active and made long trips and drove his own car. She and Mr. Gageby were very close and very companionate. Never knew of Mr. Gageby ever consulting a doctor with reference to any kidney disorder and prior to the accident Mr. Gageby had never said anything about any trouble and had never complained about having kidney trouble. After the accident he complained of his side and back being sore and that hot towels and electric pad were used to ease him and after the accident he was not much account physically. Complained of being sore and stiff and could hardly get upstairs.
Cross-examination: He developed the condition that I have described immediately after the 27th day of November.
Minnie Osborn, a step-daughter-in-law, among other things, testified in substance that after November 27, 1931, the date of the accident, he was very nervous, restless and couldn't sit still long enough to read the paper; gradually grew more nervous to the point that he wouldn't rest at night; and loss of appetite. He complained of pain in his side and general soreness. Complained of pain in his side under his short rib, worked around to the back and settled over his hip and up through the small of his back. Hot applications of towels were used very often and afterwards he was rubbed with liniment and alcohol in order to have him rest. From the date of the accident until his death he gradually got worse.
Dr. L. D. Carter testified in effect that he saw Frank A. Gageby, the decedent, January 6, 1932, at his office. "Examined him at that time. He was extremely pallid; complaining of slowness in mental activities, could not concentrate well, memory defective and that he had been progressively losing weight; moderate degree of arteriosclerosis, heart action fair; blood pressure slightly elevated. History was to the effect he had been in failing health some six weeks and prior to his failure in health had been in an automobile accident in which two cars crashed. He told me of his experience on getting out of the car in attempting to separate them that he felt profoundly weak and prostrated. The following day he complained of soreness and pain in his left side, presumably from striking himself against the steering wheel. He was sent to the Methodist Hospital where he died. The final diagnosis was an acute exacerbation of a chronic nephritis. From his description of the feeling of weakness and prostration when he attempted to separate the cars, the accident was quite a shock to him. He had probably had nephritis for years.
"If a man 68 years of age was very active for a period of two or three years prior to an accident, was on the job every day no history of his ever taking medicine to correct any kidney disorder, he was very active and no history of any illness, and on the 27th day of November, 1931, he was in an automobile accident, which bruised him on the left side, running into the back, causing severe pain in that region, pain so severe that hot applications of...
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