Son v. Nichols

• Decision Date: 31 October 1923
• Docket Number: No. 11710.,11710.
• Citation: 141 N.E. 259,81 Ind.App. 13
• Court: Indiana Appellate Court
• Parties: T. J. DYE & SON v. NICHOLS et al.

81 Ind.App. 13

141 N.E. 259

T. J. DYE & SON

v.NICHOLS et al.

No. 11710.^*

Appellate Court of Indiana, Division No. 2.

Oct. 31, 1923.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act (Laws 1915, c. 106, as amended) by Sallie B. Nichols and another against T. J. Dye & Son, a partnership composed of Marinda B. Dye and Willis B. Dye, for the death of Frank S. Nichols. From an award of the Industrial Board, defendants appeal. Reversed with directions.Fesler, Elam & Young, of Indianapolis, for appellants.

Wolf & Barnes, of Kokomo, for appellee.

McMAHAN, C. J.

On July 19, 1922, Frank S. Nichols lived in Kokomo. On said date and for several days prior thereto he was in the employ of appellants, and, as such employé, was engaged in reshingling a building on a farm owned by appellants and located about two miles from Kokomo. He went to his work each day in an automobile, returning home at noon each day for dinner. When he was at home at noon July 19, 1922, he told his wife he had been stung by bumble bees. He returned to his work in the afternoon of that day. He died August 24, 1922, leaving a widow and a daughter who was under 18 years of age. From an award allowing compensation appellants appeal, and contend that the award is contrary to law.

[1] Appellants contend that the evidence is not sufficient to sustain the finding of facts, because it fails to show that any effort was made to secure compensation prior to the filing of the claim for compensation, and, there being no effort or inability to reach an agreement, the Industrial Board had no jurisdiction in the matter.

Appellants insist that the case of In re Moore (Ind. App.) 138 N. E. 783, is controlling on this question. We cannot concur in that contention. In that case the Industrial Board certified a certain state of facts, and asked whether under the facts an order dismissing the claim would be according to law. On the facts as certified the interrogatory was answered in the affirmative. The facts in that case do not disclose what answers, if any, were filed by the employer. They do show that the employer through its insurance carrier called at the residence of the widow of the deceased workman in the afternoon of the day on which the workman was buried, for the purpose of settling the question of compensation by agreement; that the widow was not at her residence; that the insurance carrier was unable to locate her, and the next day mailed her a letter in which they admitted liability for the full amount that the widow was entitled to under the law. This letter was returned undelivered, because the postal carrier could not locate her. The Board also certified as a fact that there was no disagreement or dispute between the widow and the employer as to the liability of the employer for compensation, or as to the rate of compensation. The workman in that case was injured January 2, 1923, and died the same day. He was buried January 7, and the application for compensation was filed January 10, 1923.

In the instant case there is no admission on the part of the employer of liability. In fact, the record shows that the appellants filed an answer of general denial. A large number of witnesses testified on the hearing. The testimony of all these witnesses related to the question as to whether the death of the employé was caused by the alleged stinging by the bees. In other words, appellants contested the application on the ground that the death was not the result of an injury which arose out of and in the course of the employment.

If appellants had admitted their liability, and if it had appeared that there was no question for the Board to determine, appellants might be in a position to take advantage of the rule stated in In re Moore, supra. But they did not do that. They not only denied liability at the hearing before the Board, but they are on appeal denying all liability, and expressly refrain from stating that they would have agreed to allow appellees compensation if an attempt had been made by appellees before the filing of their application, to secure such an agreement.

In Barron v. Carmichael, 5 B. W. C. C. 436, an injured workman gave notice of accident, and asked for compensation. The employer replied that compensation would be paid so long as the employer's doctor certified incapacity. The workman objected to this limitation. He received no compensation, and neither asked for nor was refused it, further than appears from these facts. The workman filed a request for arbitration. The employer answered, denying the injuries and the incapacity, and set out the circumstances under which it had offered compensation as above, and that the workman had never applied for, nor been ready and willing to receive compensation. Compensation having been awarded, the employer appealed and contended that the trial court had no jurisdiction because no question had arisen between the parties when the request was filed. The court, after stating the facts and the substance of the answer, said:

“In the face of that answer it is not competent to the employer to say that the judge had no jurisdiction, because there was no dispute at the date of the application.”

After referring to Field v. Longden (1902) 1 K. B. 47; 4 W. C. C. 20, where, before the application was filed, the employer had admittedits liability to the workman, and was paying the workman...