U.S. Steel Corp. v. Douglas

• Decision Date: 25 January 1955
• Docket Number: No. 18623,18623
• Citation: 123 N.E.2d 899,125 Ind.App. 212
• Parties: UNITED STATES STEEL CORPORATION, a Corporation, Appellant, v. Beedie DOUGLAS, Freddie L. Douglas, Patricia L. Douglas, Walter J. Douglas, Appellees.
• Court: Indiana Appellate Court

Page 899

123 N.E.2d 899

125 Ind.App. 212

UNITED STATES STEEL CORPORATION, a Corporation, Appellant, v. Beedie DOUGLAS, Freddie L. Douglas, Patricia L. Douglas Walter J. Douglas, Appellees.

No. 18623.

Appellate Court of Indiana, In Banc.

Jan. 25, 1955.

Stevenson, Conaghan, Velde & Hackbert, Chicago, White, Raub, Craig & Forrey, Indianapolis, Harlan L. Hackbert, Chicago, Ill., George C. Forrey III, Indianapolis, Ind., of counsel, for appellant.

J. M. Ruberto, Gary, for appellees.

KELLEY, Chief Judge.

Proceedings before the Industrial Board resulting in an award by the Full Board in favor of appellees and against the employer, the appellant herein. This appeal followed.

At the outset, we are required to consider appellees' motion to dismiss the appeal which motion is predicated upon the ground that appellant failed to file its written praecipe with the Secretary of the Board within fifteen (15) days from the date of the award, as provided for in Rule 26 of the Board. There is no contention that such praecipe was filed by appellant within said period of time. However, the transcript was duly filed in the Clerk's office within the statutory time.

Appellees' contention is that under Rule 2-3 of the Supreme and Appellate Court rules, an appeal is initiated by the filing of a praecipe designating what is to be embraced in the transcript and, since appellant did not file its praecipe with the Secretary of the Board within the time specified in said Rule 26 of the Board, this court is without jurisdiction to hear this appeal.

The portion of said Rule 26, pertinent here, reads:

'Appearance--Exception--Appeal.

'26. * * *. Any party desiring to appeal from an award of the Industrial Board must file with the Secretary of the Board within fifteen days from the date of such award, a written praecipe designating specifically the pleadings and order book entries to be incorporated into the transcript for such appeal.'

Rule 25 of the Board provides for the furnishing by the Board of certified copies of the files, orders, awards, records, and transcripts of the evidence, on the written order of the party desiring the same.

There are two provisions of the statute concerning the authority of the Board to make rules. By § 55 of Acts 1929, ch. 172, being § 40-1506 Burns' 1952 Replacement, it is provided that the Board 'may make rules not inconsistent with' the act for 'carrying out the provisions hereof.' And § 2 of Acts 1943, ch. 138, being § 40-2108 Burns' 1952 Replacement, amending § 8 of Acts 1937, provides that the Board is 'authorized to adopt such rules as may be necessary to carry into effect the provisions' of the Workmen's Compensation Act and to prescribe the 'means, methods and practices necessary to effectuate' such provisions.

Acts 1929, ch. 172, § 61, being § 40-1512 Burns' 1952 Replacement, provides that an appeal from the award of the full board may be taken to the Appellate Court 'within thirty (30) days fom the date of such award'.

It seems apparent that the statutory authorization given to the Board to adopt rules has for its purpose the enabling of the Board to provide by needed or necessary rules for the prompt and efficient handling and carrying out of its functions and duties in the administration of the provisions of the Workmen's Compensation Act, Burns' Ann.St. § 40-1201 et seq., including the hearing, determination, and review by the full board of all claims for compensation under said act and the Workmen's Occupational Disease Act, Burns' Ann.St. § 40-2201.

An appellate review of the award of the full board is not an appeal in fact but is in the nature of an independent action available as a matter of right to the proper party notwithstanding the statute may not so provide. Russell v. Johnson, 1943, 220 Ind. 649, 656, 46 N.E.2d 219. A duly certified transcript of the proceedings, including the evidence, and a proper showing that the record is full and complete are sufficient for review by the appellate tribunal. Russell v. Johnson, supra.

Said Rule 26 of the Board would be of dubious validity if a proceeding for review of the Board's award be held an appeal as in ordinary civil actions. Russell v. Johnson, supra.

In ordinary civil actions the appeal is initiated by the filing in the office of the Clerk of a praecipe, as provided in Rule 2-3, but no restrictions are placed upon the time within which the transcript must be requested. Russell v. Johnson, supra. Since the party seeking the appeal is held to a standard of due diligence in the filing of the praecipe to the end that the clerk may have a reasonable time in which to prepare the transcript for filing within the time allowed, his failure to exercise due diligence in the filing of the praecipe may result in a denial of extension of time for filing of the transcript. Flanagan, Wiltrout & Hamilton, § 2201, comment 7.

Having in mind that law-making power cannot be delegated to the Board, Financial Air Corporation v. Wallace, 1939, 216 Ind. 114, 120, 23 N.E.2d 472, 125 A.L.R. 736, that it cannot enlarge its jurisdiction by a rule, Hoffman v. Brooks Construction Company, 1942, 220 Ind. 150, 156, 41 N.E.2d 613, 143 A.L.R. 1256, and that rules of the Board should be construed as being harmonious with law, if reasonably possible, Hopper v. Sinclair Refining Company, 1933, 98 Ind.App. 384, 385, 187 N.E. 695, said Rule 26 of the Board becomes harmonious with the law if it be construed as providing a time which the Board considers reasonable for enabling the Secretary of the Board to prepare a properly certified transcript of the proceedings, including the evidence, for use in the appeal.

Under such construction of said Rule 26, a party who desires to have an award reviewed but files his praecipe after the time specified in the rule and thereby affords the Secretary of the Board insufficient time to prepare the necessary transcript and record for filing within the allowable statutory time, may be held by the appellate tribunal as having failed to exercise due diligence, and a denial of extension of time for the filing of the transcript may result. In different words, upon petition for extension of time for filing the transcript, a compliance with the requirements of said Rule 26 may be considered by the reviewing court as some evidence of due diligence, whereas a failure to comply therewith could be considered, under all the circumstances, and within its discretion, as lack of due diligence.

We must assume that under either of said Rules 25 or 26 the Board would prepare and furnish all or any part of the requested certified transcript, including the evidence, if a written praecipe or order therefor is filed with it, regardless of the time such written praecipe or order is filed. The time of the filing of the written praecipe or order is the concern of the requesting party, for it is he who may be penalized if, because of his delay, the transcript cannot be timely prepared for filing.

We hold that compliance with the time limitation provided in said Rule 26 of the Board is not a jurisdictional requirement in a proceeding to review an award of the full board and that, consequently, we have jurisdiction to entertain this appeal.

Proceeding to the merits of this appeal, it appears that pursuant to proceedings upon appellees' application, the Full Industrial Board of Indiana found that appellees' decedent, while in the employ of appellant, sustained personal injuries by reason of an accident arising out of and in the course of his employment which resulted in his death; that his death was due to aggravation of a previous heart condition caused by exertion in the performance of his duties as such employee, causing his death by heart failure. Other essential findings were made, including the dependency of appellees upon the decedent. An award favorable to appellees was accordingly entered.

Appellant assigns that the award is contrary to law and contends that the evidence 'fails to show that Douglas sustained an 'accident' within the meaning of the law.'

The record discloses the following pertinent evidence most favorable to appellees:

On February 2, 1953, the decedent, a man 57 years of age, about five feet fix inches in height, and weighing 130 or 135 pounds, was in the employ of appellant as a scrap shear man. He had been an employee of appellant continuously for some twenty-eight years although not engaged in the same type of work during all of said time. His work consisted of pulling and sliding tin sheets each about 38 1/2 inches in width and weighing about 32 pounds before being cut, from a circular shear machine to a scrap cutting machine some four feet distant from the circular shear machine. After the cutting the sheet weighed about 15 pounds.

Two helpers would take the tin sheet from a conveyor, place it in position for the circular cut, and, after the circle was cut out, the decedent would tilt or lift the back corner of the scrap about 5 inches up and over what is known as the 'hold-down' and push or slide the sheet across to the scrap cutting machine.

The circular cutting machine made a cut about every 15 seconds. This required decedent to walk back and forth between the two machines at the rate of about 32 feet per minute, 1930 feet per hour. During the working hours the machines were practically in continuous operation and decedent in continuous motion. There were no rest periods except for lunch.

On the day of his death decedent went to work on the twelve to eight morning shift. He worked continuously from twelve o'clock midnight until four o'clock a. m., when he stopped for a thirty-minute lunch period. He returned to his work at about 4:30 and worked until about 5:20 or 5:30, at which time he suddenly fell backwards onto a pile of scrap metal and died within 5 to 10 minutes thereafter.

The cause of death, according to the testimony of the deputy coroner who performed an autopsy on decedent, was 'coronary...