Wabash Smelting, Inc. v. Murphy

• Decision Date: 12 December 1962
• Docket Number: No. 1,No. 19733,19733,1
• Parties: WABASH SMELTING, INC., Appellant, v. Elvin MURPHY, d/b/a Murphy Trucking Co., Charles Roy Earl, Appellees
• Court: Indiana Appellate Court

Page 586

186 N.E.2d 586

134 Ind.App. 198

WABASH SMELTING, INC., Appellant, v. Elvin MURPHY, d/b/a Murphy Trucking Co., Charles Roy Earl, Appellees.

No. 19733.

Appellate Court of Indiana, Division No. 1.

Dec. 12, 1962.

Rehearing Denied Jan. 7, 1963.

Thomas D. Logan, Rothberg, Gallmeyer, Strutz, Fruechtenicht & Logan, Fort Wayne, for appellant.

James H. Pankow, Jones, Obenchain, Johnson, Ford & Pankow, South Bend, for appellee Elvin Murphy, d/b/a Murphy Trucking Co.

Frank V. Dice, Dice & Keith, Peru, for appellee Charles Roy Earl.

MYERS, Judge.

This is an appeal by appellant, Wabash Smelting, Inc., from an award of the Indiana Industrial Board in favor of appellee, Charles Roy Earl, and against both Wabash Smelting, Inc., and Elvin Murphy, d/b/a Murphy Trucking Co.

The case arose as the result of an accident which took place January 6, 1960, wherein Earl, while driving a truck owned by Murphy, on business for appellant, suffered injuries and temporary total disability. No question is raised concerning the extent of the injuries, the amount of the award, or that the accident arose out of and in the course of employment. There are two main issues presented in this appeal: (1) Whether the Industrial Board had jurisdiction to enter the award; and, (2), if so, whether appellee Earl was in the employ of appellant, or Murphy, or both.

As to the jurisdictional question, we find these facts from the record: Earl's application as an injured employee for an award was filed with the Board on February 13, 1961. Appellant and Murphy were named as parties defendant in the title of the application. In the body of the application, Elvin Murphy, d/b/a Murphy Trucking Co., with the address of Denver, Indiana, is named as 'defendant employer.' Appellant is named as a party having an interest in the application to be joined either as plaintiff or defendant. On March 15, 1961, Murphy filed its appearance by letter addressed to the Secretary of the Board. On June 20, 1961, the cause came on for trial and hearing before a single Hearing Member of the Board at Fort Wayne, Indiana. On June 23, 1961, before any findings or decision had been made, appellant filed with the Board a pleading designated as 'Notice for a Mistrial.' This was signed by appellant's president, and, in substance, stated that he had carefully interrogated all of the employees of his company, and, upon his own information and belief, stated that neither the corporation nor any of its employees had received any notice of the filing of the application for compensation; that the records of the Board showed that a mailing took place to Wabash Smelting Co., Railroad Street, Wabash, Indiana, when in truth and in fact the name of the corporation was Wabash Smelting, Inc., located on Factory Street, in Wabash. He claimed this to be in violation of § 40-1509, Burns' Ind.Stat., 1952 Replacement (Supp.), § 40-2220(c), Burns' Ind.Stat., 1952 Replacement, and § 9 of the Rules of Procedure of the Industrial Board of Indiana. He prayed that any proceedings theretofore had be declared null and void, the hearing determined a mistrial, and a new hearing had.

On the same day, the attorney for Earl filed an 'Affidavit Opposing Motion for a Mistrial.' It recited that appellant was present at the hearing on June 20, 1961, being represented by counsel; that appellant took part therein, presenting books, records and contracts which related to Earl's employment, examining and cross-examining witnesses, and otherwise interposing its defense; that a subpoena had been issued by the Board to appellant on June 13, 1961, without reference to address, which was duly served on the vice-president of appellant, which showed on its face that appellant was a party to the action; that this subpoena was honored by appellant, who raised no question concerning it, and, furthermore, that appellant accepted $4 as an advance witness fee. It was claimed that appellant by these actions waived any question as to notice.

The Board's Hearing Member made no ruling on the motion for mistrial. However, on June 30, 1961, he entered his findings and award. In so doing he stated '* * * that pursuant to notice fixing the time and place therefor,' the claim was set for hearing, and that each of the parties, being Earl, Murphy and appellant, was represented by counsel.

An Application for Review by the Full Board was filed by Murphy on July 5, 1961, and by Earl on July 7, 1961. On July 10, 1961, appellant filed an Application for Review by the Full Board on the grounds that the award was not sustained by sufficient evidence and was contrary to law. It is to be noted that in this application appellant designates itself as a party defendant.

On July 18, 1961, appellant filed a 'Petition for Continuance of Time to Appeal.' In this petition it was stated that neither the attorney nor any other agent for appellant was notified of the decision of the Board dated June 30, 1961, but learned only on July 7, 1961, that such an order had been entered. A request for an extension of time within which to file an Application for Review by the Full Board was made. Appellant comments that the Board did not rule on this petition. It may be inferred that the Board felt no necessity to rule on this peculiar and confusing petition, as the Application for Review by the Full Board had already been filed by appellant more than a week prior thereto.

On October 9, 1961, the matter came before the Full Board, and on October 18, 1961, an award was made which stated, inter alia, that the hearing was held pursuant to notice fixing the time and place therefor, and that each of the parties appeared by attorney including appellant. The findings and award were substantially the same as those of the Hearing Member and were in favor of Earl against both Murphy and appellant. This appeal followed.

Appellant's assignment of errors is based upon the following grounds: That there was error in failing to grant appellant's 'affidavit' and motion for mistrial; that the award was not sustained by sufficient evidence and was contrary to law. Cross-assignment of errors was filed by appellee Murphy, specifying that the award was not sustained by sufficient evidence and was contrary to law.

The record reveals that at the time of hearing, being June 20, 1961, appellant entered a general appearance by its attorney. The Hearing Member started the proceedings by asking this question: 'Gentlemen, are you ready to proceed with this claim: Charles Roy Earl versus Murphy Trucking Company, and Wabash Smelting Company?' No objection was introduced by appellant. Then, by stipulation of all three parties, Earl's hospital bill, doctor bills and ambulance bill were introduced into evidence. As to the hospital and doctor bills, appellant's attorney specifically stated that there was no objection from appellant. Next there appears a colloquy among the lawyers, and reference is made by Earl's attorney to 'this insurance company,' and it was suggested that they go off the record and tell the Hearing Member about it. Mention was made that 'Michigan Mutual, the carrier, is accountable for it.' Thereafter, appellant's attorney made the following statement, which is heavily relied upon by appellant:

'Your Honor, the Wabash Smelting Company has never received any notice of the hearing but we have presented ourselves in Court in response to a subpoena duces tecum, which was served some days prior. The Wabash Smelting Company has never been notified in the manner required by law, but we have presented our appearance in Court only with the understanding that our insurance carrier had properly been notified. I have been informed by phone the insurance company has not been notified either. I now object to any proceedings herein which would have any effect on Wabash Smelting Company.'

There was no ruling on this objection.

The Hearing Member then requested the attorneys to proceed with their stipulations. These included the stipulation that appellant on March 18, 1960, had mailed a notice to Michigan Mutual Liability Company, together with a Form 24, the same being an Employer's Report to the Industrial Board of Indiana of an Injury to an Employee, and in due course received a reply relative to the pendency of the matter.

Testimony was heard, with appellant's attorney examining and cross-examining the witnesses and making various objections. The record is replete that he took an active part in the hearing as appellant's attorney.

Appellant has specified three grounds of error in its assignment of errors (supra). Attention is called to the fact that in presenting a review of the Board's decision to this court, the statute reads as follows:

'An assignment of errors that the award of the full board is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.' Burns' Ind.Stat. § 40-1512, 1952 Replacement.

This is the only avenue of review by this court, and all alleged errors must be presented thereunder. LaReau v. Teibel et al. etc. (1956), 127 Ind.App. 92, 138 N.E.2d 153; Webster v. Indiana Department of Public Instruction (1962), Ind.App., 178 N.E.2d 909. Thus we will only consider whether the decision of the Board is contrary to law.

Appellant argues that the Board did not acquire jurisdiction over appellant because notice of the time and place of hearing was not sent as required by law; that appellant never received any notice of the filing of the application for compensation; that the Board failed to send appellant a copy of the award of the Hearing Member. Appellee Earl contends that, even if this were so, appellant waived its right to notice by having its attorney enter a general appearance, engage actively in the hearing, and then appeal the decision to the Full Board.

A close scrutiny of the record reveals no evidence, either documentary or...