Transport Motor Exp., Inc. v. Smith, 771A136

• Decision Date: 01 March 1972
• Docket Number: No. 771A136,771A136
• Citation: 29 Ind.Dec. 417,279 N.E.2d 262
• Parties: TRANSPORT MOTOR EXPRESS, INC., Appellant (Defendant Below), v. Delores J. SMITH et al., Appellees (Plaintiffs Below), and Riss & Company, Inc., Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 262

279 N.E.2d 262

TRANSPORT MOTOR EXPRESS, INC., Appellant (Defendant Below), v. Delores J. SMITH et al., Appellees (Plaintiffs Below), and Riss & Company, Inc., Appellee (Defendant Below).

No. 771A136.

Court of Appeals of Indiana, Second District.

March 1, 1972.

T. C. Cunningham, John T. Rocap, Indianapolis, for defendant-appellant; Rocap, Rocap, Reese & Young, Indianapolis, of counsel.

F. Boyd Hovde, W. Scott Montross, Indianapolis, for plaintiff-appellees; Townsend, Hovde & Townsend, Indianapolis, of counsel.

David A. Steckbeck, William C. Moore, Steckbeck & Moore, Indianapolis, for defendant-appellee Riss & Co., Inc.

PER CURIAM.

This is an appeal from an award of the Full Industrial Board of Indiana made pursuant to Ind.Ann.Stat. § 40--1511 (Burns' 1971 Supp.), Ind. Acts 1929, Ch. 172, § 60, p. 536, as amended by Ind. Acts 1969, Ch. 94, § 6, p. 202, IC 1971, 22--3--4--7, which reads as follows:

'If an application for review is made to the board within twenty (20) days from the date of the award, made by less than all the members, the full board, if the first hearing was not held before the full board, shall review the evidence, or, if deemed advisable, hear the parties at issue, their representatives and witnesses as soon as practicable and shall make an award and file the same with the finding of the facts on which it is based and send a copy thereof to each of the parties in dispute, in like manner as specified in the last foregoing section.' (Emphasis added.) ¹

The record contains no 'finding of the facts' filed with the award. The full board's only finding of facts is embodied in the recitals which precede the award, as follows:

'BE IT REMEMBERED, that pursuant to notice fixing the time and place therefor, the above captioned cause was called for hearing and review before the Full Industrial Board of Indiana, 601 State Office Building, Indianapolis, Indiana, on June 2, 1971, at 9:00 A.M. on plaintiffs' Form 16 Application filed February 16, 1971.

'Plaintiffs appeared by their attorney, F. Boyd Hovde; defendant Transport Motor Express, appeared by its attorney, John Rocap; and Defendant Riss & Company, appeared by its attorney, David A. Steckbeck.

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

'That on February 7, 1967, plaintiffs' decedent, James Willard Jessee, was a coemployee of both defendants, namely: Transport Motor Express and Riss & Company, at an average weekly wage in excess of the maximum; that on said date he sustained an accidental injury in the course and scope of his employment, which accident and injury resulted in his death on said date.

'It is further found that plaintiffs' decedent at the time of his death left surviving him as his all and only dependents, his widow Delores Ann Jessee; and minor children, James Michael Jessee, born March 27, 1961; Kenneth Wayne Jessee, born August 19, 1962, and Gina Renee Jessee, born September 19, 1966.

'It is further found that Riss & Company paid benefits to the plaintiffs under an Award in the State of Texas.

'It is further found that both defendants, Transport Motor Express and Riss & Company, shall pay, in equal portions the statutory funeral expenses up to the maximum of $750.00.

'The Full Industrial Board of Indiana now finds for the plaintiffs and against the defendants, Transport Motor Express and Riss & Company on plaintiffs' Form 10 Application filed February 5, 1969.

AWARD

'IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Full Industrial Board of Indiana that plaintiffs shall have and recover of and from the defendants, Transport Motor Express and Riss & Company, compensation at the rate of $45.00 per week beginning February 7, 1967, for a period of 450 weeks, but not to exceed the maximum of $20,000.00; that said compensation shall be paid in equal shares to the following dependents, Delores Ann Jessee, widow, and James Michael Jessee, Kenneth Wayne Jessee and Gina Renee Jessee, minor children; said compensation payments to be paid to Delores Ann Jessee, natural mother and guardian of said minor children.

'It is further ordered that said compensation shall be paid up to date, paid in cash and in a lump sum.

'It is further ordered that defendants, Transport Motor Express and Riss & Company, shall pay in equal portions the statutory burial expenses up to the maximum of $750.00.

'It is further ordered that all compensation payable by virtue of this award shall be paid direct to plaintiffs except as hereinafter ordered paid plaintiffs' attorney.

'It is further ordered that the fees of plaintiffs' attorney shall be: a minimum sum of $25.00; and in addition thereto, 20% upon the first $1,000 recovered; 15% upon the second and third $1,000 recovered; and 10% upon all sums in excess thereof; said fees to be paid by the defendants direct to plaintiffs' attorney, F. BOYD HOVDE, with credit to the defendants against the compensation herein awarded plaintiffs for all sums paid out as attorney fees in accordance with this award.

'Dated this 8th day of July, 1971.

FULL INDUSTRIAL BOARD OF INDIANA'. ²

The appellant TMX states the issues thus:

'1. The award of the Full Industrial Board of Indiana is contrary to law for the reasons:

'(a) Decedent was found and adjudged to be the employee of Riss & Company, Inc. (herein referred to as 'Riss') by the Industrial Accident Board of the State of Texas at the time he received his fatal injuries, compensation was awarded and paid. Full faith and credit must be given to the finding and award of the Industrial Accident Board of the State of Texas under the Constitution of the United States of America, Article 4, Section 1.

'(b) Decedent was an employee of Riss at the time of his death and not an employee of TMX. Under the evidence in this cause Riss, in fact, and not TMX exercised control and direction of decedent in the procedures of his employment which culminated in his death, even though a trip lease between Riss and TMX was in effect at the time and the vehicle was being operated by decedent over routes of TMX under authorized operating rights of TMX.'

Appellee Riss states:

'Appellee Riss & Company, Inc. (hereinafter referred to as Riss) concurs in part with the statement of issues presented for review contained in Appellant Transport Motor Express, Inc., (hereinafter referred to as TMX), to the extent that Appellee Riss concurs in the statement...