Terre Haute Paper Co. v. Price
| Decision Date | 15 March 1943 |
| Docket Number | 17045. |
| Citation | 47 N.E.2d 166,113 Ind.App. 578 |
| Parties | TERRE HAUTE PAPER CO. v. PRICE. |
| Court | Indiana Appellate Court |
Adamson Blair & Adamson, of Terre Haute, for appellant.
Frank Hamilton, of Indianapolis, for appellee.
We adduce from the record and briefs of counsel that on the 7th day of June, 1939, the appellee was in the employ of the appellant at an average weekly wage of $25.52 and on said date sustained personal injuries by reason of an accident arising out of and in the course of his employment. Thereafter on the 1st day of July, 1939, the parties hereto entered into an agreement whereby the appellant was to pay the appellee, as compensation for his injuries, the sum of $14.04 per week beginning June 12, 1939, and continuing until terminated by the provisions of the Indiana Workmen's Compensation Act of 1929. This compensation agreement was duly approved by the Industrial Board of Indiana on the 10th day of July, 1939, and although a copy thereof is not in the record it appears from the undisputed evidence that the appellee's injury was described therein as a "strained back." On August 4, 1940, the appellee filed an application with the Industrial Board for a review of the award as provided in said compensation agreement on the ground that his injury had resulted in his permanent partial impairment as a man. This application was submitted for hearing to an individual member of the Industrial Board upon a stipulated set of facts in which the appellee's injury was described as a "sprain to the back." The hearing member found such to be the fact and further found that as a result thereof the appellee was suffering a 15 per cent permanent impairment to the man as a whole and awarded compensation therefor in the sum of $14.04 per week for 75 weeks. This finding and award was duly entered of record on September 27, 1939, and was subsequently fully discharged in a lump sum. On March 28 1941, the appellee filed an application for a review of the award of September 27, 1939, on the ground that since said date the degree of his permanent partial impairment had increased. No hearing on this application was ever had nor any action taken thereon, and, as far as the record discloses, it is still pending before the Industrial Board. Concurrently with the above application the appellee filed a petition to vacate the award of September 27, 1939, on the theory that it was based on a mistake of fact in that his injury was not a sprained back but in truth a rupture of the intervertebral disc between the fifth lumbar and the first sacral vertebrae of the spinal column. The appellant filed a motion to strike this petition from the record on the theory that the mistake of fact therein alleged is not such as would justify or support the vacation of said award in that it is based wholly upon a disputed diagnosis of appellee's injury. The petition to vacate was eventually heard by the Full Industrial Board, and on July 24, 1942, said board found that the award of September 27, 1939, was based on a "mistake of fact as to the nature of plaintiff's injury and that ever since the date of said accidental injury the plaintiff has been temporarily totally disabled as of the date of this hearing." The appellant was thereupon ordered to resume the payments of compensation in accordance with the agreement of July 7, 1939, and to bring all deferred payments up to date by the payment of a lump sum with credit for all money paid by virtue of the award of September 27 1939.
From this award the appellant appeals and assigns as error: (1) The Industrial Board of Indiana erred in failing to sustain appellant's motion to strike out appellee's petition to vacate the award of September 27, 1939, and (2) the final award of the Full Industrial Board of Indiana duly entered on July 24, 1942, is contrary to law.
The appellee urges that the award in question be affirmed without consideration of this appeal on its merits because of appellant's failure to "cause the transcript to be indexed, referring to the initial page of the direct, cross and redirect examination of each witness and the initial page of each pleading, exhibit and other paper in the record, such index to form the first page or pages of the transcript." Rules of the Supreme and Appellate Courts, 1940 Revision, Rule 2--5. Upon examination of the transcript we find that this contention is not supported by the facts. The first page thereof is the title page and is unnumbered. The next three pages are also unnumbered and consist of an index in which the initial pages of the transcript of all pleadings, papers, exhibits and examinations of witnesses are properly and accurately indicated. It is further urged that appellant's brief does not meet the requirements of Rule 2--17(e) of the Rules of the Supreme and Appellate Courts (1940), in respect to a concise statement of the evidence, by failing to set out the contents of certain exhibits. The rule relied on does not require that exhibits be set out in full but, on the contrary, restricts statements in reference thereto to a condensed recital of their contents in such a manner as to present their substance clearly and concisely. On Page 21 of appellant's brief we find the substance of the exhibits in question, or as much thereof as is pertinent to this appeal, clearly set out. What these exhibits contain is not subject to controversy. Appellant's conclusions as to their contents are undisputed and no contention is made that they are inaccurately drawn. In any event, omissions of certain evidence from the condensed recital thereof as set out in a brief is fatal only to the question of the sufficiency of all the evidence to sustain the finding below and, as there are other questions presented by this appeal, we cannot, as urged by appellee, affirm the award of the Industrial Board here in review without further consideration.
This brings us to appellant's first assignment of error "The Industrial Board erred in failing to strike out appellee's petition to vacate the award of September 27, 1939." We have searched the record thoroughly and nowhere do we find a ruling on the appellant's motion to strike. It is evident that the Industrial Board chose to ignore this motion and consider the petition to vacate on its merits. This it had a legal right to do as it makes its own rules of procedure and, in that respect, it borrows nothing from, nor is it bound by anything in our civil code or the common law. Sec. 40-1506, Burns' 1940 Replacement, Sec. 16431, Baldwin's 1934. T. J. Dye & Son v. Nichols, 1924, 81 Ind.App. 13, 141 N.E. 259. We do not have judicial knowledge of the rules of the Industrial Board and, the record being silent in respect thereto, we cannot assume that the board's action in ignoring appellant's said motion was in violation thereof. Carl Hagenbeck, etc., Shows Co. v. Leppert, 1917, 66...
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