State v. Gageby, 14828.
Decision Date | 04 February 1933 |
Docket Number | No. 14828.,14828. |
Citation | 184 N.E. 190,95 Ind.App. 681 |
Parties | STATE et al. v. GAGEBY. |
Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceeding under the Workmen's Compensation Act by Dora H. Gageby to recover compensation for the death of Frank A. Gageby, employee, opposed by the State of Indiana, the State Highway Commission, employer. From an award of compensation, the State appeals.
Affirmed and increased.
James M. Ogden, Atty. Gen., and Chas. E. Edwards, Asst. Atty. Gen., for the State.
Ratliff & Ratliff, of Knightstown, 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 favorof 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.
“It is, therefore, considered and ordered by a majority of the members of the full Industrial Board of Indiana, that plaintiff be and is hereby awarded as against the defendant 292 2/7 weeks' compensation at the rate of $16.50 per week, beginning on the 10th. day of February, 1932, deferred payments to be brought up to date and paid in cash in a lump sum; subject however, to the termination of plaintiff's dependency within said period of 292 2/7 weeks. ***”
The appellant prayed and perfected its appeal to this court, assigning as the errors relied upon for reversal the following:
“(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 section 61, Indiana Workmen's Compensation Act, Acts 1929, pp. 536, 559, c. 172.
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.
[1][2] 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.
“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:
Dr. L. D. Carter testified, in effect, that he saw Frank A. Gageby, the decedent, January 6, 1932, at his office.
“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...
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