Warren v. Indiana Tel. Co., No. 27402.

• Docket Nº: No. 27402.
• Citation: 26 N.E.2d 399, 217 Ind. 93
• Case Date: April 09, 1940
• Court: Supreme Court of Indiana

217 Ind. 93
26 N.E.2d 399

WARREN
v.
INDIANA TELEPHONE CO.

No. 27402.

Supreme Court of Indiana.

April 9, 1940.

Proceeding under the Workmen's Compensation Act by Jacob K. Warren, claimant, opposed by the Indiana Telephone Company, employer. From a final award of the Full Industrial Board denying compensation, the claimant appealed, and the Appellate Court affirmed, 24 N.E.2d 426. On appellant's petition to transfer and for writ of error.

Judgment affirmed.

[26 N.E.2d 402]

Connor D. Ross, of Indianapolis, for appellant.

T. M. Cooney and Bergen Van Brunt, both of Indianapolis, for appellee.

SHAKE, Chief Justice.

By leave, the appellant has filed a petition to transfer this cause from the Appellate Court of Indiana and for a writ of error to said court. The case originated before the Industrial Board of Indiana. The Appellate Court affirmed with an opinion on January 4, 1940. Transfer is sought by virtue of our rule 24 and Acts of 1901, ch. 247, § 10, p. 565; Acts of 1993, ch. 151, § 1, p. 800, § 4-215, Burns' 1933, Sec. 1359, Baldwin's 1934.

The original Indiana Workmen's Compensation Act (Acts 1915, ch. 106, § 61, p. 410) provided for an appeal from an award of the Industrial Board ‘to the appellate court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions.’ This provision has been carried forward into the present compensation statute. Acts 1929, ch. 172, § 61, p. 536, § 40-1512, Burns' 1933, Sec. 16437, Baldwin's 1934. In the case of Kingan & Co. v. Ossam, 1921, 190 Ind. 554, 131 N.E. 81, this court held that there was no right of transfer from the Appellate Court to this court under the said act of 1901 in cases originating under the Compensation Act of 1915, and dismissed the petition therefor. We are asked to overrule that case. The matters presented challenge us to consider some very serious and important questions, among which may be mentioned, the place of the Supreme Court in the judicial system of the state; the power of the General Assembly with respect to administrative agencies; the constitutional guaranties of due course of law for injury done to the person; and the inviolate right to trial by jury in civil cases.

The Constitution of Indiana provides that: ‘The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided’ (Article 3, § 1); ‘The judicial power of the State shall be vested in a Supreme Court in Circuit Courts and such other courts as the General Assembly may establish’ (Article 7, § 1); ‘The Supreme Court shall have jurisdiction, coextensive with the limits of the State, in appeals and writs of error, under such regulations and restrictions as may be prescribed by law. It shall also have such original jurisdiction as the General Assembly may confer’ (Article 7, § 4); ‘All courts shall be open; and every man, for

[26 N.E.2d 403]

injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay’ (Article 1, § 12); and, ‘In all civil cases, the right of trial by jury shall remain inviolate’ (Article 1, § 20). These provisions of the Constitution are a part of the fundamental law of the state, declared by the people themselves acting in their sovereign capacity. Ellingham v. Dye, 1912, 178 Ind. 336, 99 N.E. 1, Ann.Cas.1915C, 200. As such they are entitled to strict construction. Lafayette, Muncie, & Bloomington R. Co. and Another v. Geiger, 1870, 34 Ind. 185. It has been said that the language of each provision of the Constitution is to be considered as though every word had been hammered into place. State ex rel. Hovey v. Noble, 1889, 118 Ind. 350, 353, 21 N.E. 244,4 L.R.A. 101, 10 Am.St. Rep. 143.

Under the Constitution the right to a jury trial must remain inviolate in civil cases. This guaranty is self-executing and will be enforced independent of statutory enactment. Schembri v. Shearer, 1935, 208 Ind. 97, 194 N.E. 615. But the civil cases referred to have reference only to those actions which were triable by jury at common law. W. T. Rawleigh Co. v. Snider, 1935, 207 Ind. 686, 194 N.E. 356. Actions for injuries to the person caused by the negligence of another were known under the common law of England, and triable by jury. It follows, therefore, that the right to a jury trial in common law actions for injuries to the person due to negligence is fully protected by article 1, § 20, of our Constitution. The question arises then, whether the Workmen's Compensation Act abrogates that right. We think not. In the first place, the rights and duties provided for in the Compensation Act are contractual in character, that is to say, they arise out of the voluntary accept of the terms thereof on the part of the employer and the employee. Calkins v. Service Spring Co., 1937, 103 Ind.App. 257, 7 N.E.2d 54. Having elected to be bound by the act, a party is in no position to complain that his right to a jury trial is no longer available to him. In this regard such a party is in no different position from one who agrees to arbitrate his defenses with another. Secondly, an injured employee who has elected not to operate under the act has the full benefit of his common law action for negligence. True, he puts his employer in a position to defend upon grounds of contributory negligence, assumption of risk, and the negligence of a fellow servant, but these were common law defenses incident to the action of trespass, and we find no constitutional guaranty that they shall not be made available to one sued for personal injuries due to his alleged negligence. The abrogation of these defenses under the Employers' Liability Law prior to the enactment of the Compensation Law way purely a matter of legislative wisdom, and they might have been retained if no Compensation Act had been enacted. The requirement for notice of election to operate without the Compensation Act is not unreasonable and is well within the legislative power. The conclusion is inevitable that the Compensation Law does not violate the constitutional mandates that the courts shall be open; that every man for injury done to him in his person shall have remedy by due course of law; or that the right of trial by jury shall remain inviolate in civil cases.

We are not unmindful of the fact that § 18 of the Compensation Act (§ 40-1218, Burns' 1933, Sec. 16394, Baldwin's 1934) makes its provisions compulsory upon the state, political divisions thereof, municipal corporations, and persons, partnerships, and corporations engaged in the business of mining coal, and the employees thereof, without any right of exemption. It was within the power of the General Assembly to fix the liabilities of the state, its divisions, and of municipal corporations, or to provide that there should be no such liabilities. As to those engaged in mining, a different situation exists. The Supreme Court of the United States held in the case of Lower Vein Coal Co. v. Industrial Board, 1921, 225 U.S. 144, 41 S.Ct. 252, 65 L.Ed. 555, that this section of the statute does not violate the Fourteenth Amendment nor §§ 21 and 23 of the Indiana Bill of Rights, but we have found no authority for the conclusion that it does not violate article 1, § 12, which guarantees the right of trial by jury in civil cases known to the common law. Upon that subject we do not find it necessary to express an opinion at this time.

The Industrial Board of Indiana is not a court; it is an administrative body, vested with quasi-judicial powers. In re

[26 N.E.2d 404]

Ale, 1917, 66 Ind.App. 144, 117 N.E. 938;Frazer v. McMillin & Carson, 1932, 94 Ind.App. 431, 179 N.E. 564;Inland Steel Co. v. Pigo, 1932, 94 Ind.App. 659, 182 N.E. 279. As an administrative agency, the board is properly vested with power to determine facts, and the exercise of that power meets the requirements of due process of law, so far as the function of determining facts is concerned. It is not necessary to the exercise of due process that the facts be determined by a court, so long as there is provided or exists an opportunity for a judicial review.

The Compensation Act provides for agreements between the parties to be approved by the Industrial Board and for a hearing before a member of the board when a dispute arises between an employer and an employee. There may be a review by the full board, in which event the board shall make a finding of facts and an appropriate award. An approved compensation agreement or an award may be reduced to judgment in the circuit or superior court of the county in which the accident occurred. The act also provides: ‘An award by the full board shall be conclusive and binding as to all questions of (the) fact, but either party to the dispute may, within thirty (30) days from the date of such award appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil cases.’ Acts 1929, ch. 172, § 61, § 40-1512, Burns' 1933, Sec. 16437, Baldwin's 1934.

Strictly speaking, there is no such thing as an appeal from an administrative agency. It is correct to say that the orders of an administrative body are subject to judicial review; and that they must be so to meet the requirements of due process. Such review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers; that substantial evidence supports the factual conclusions; and that its determination comports with the law applicable to the facts found. The provision of the Compensation Act for a so-called appeal to the Appellate Court, whereby that tribunal...