Western Union Telegraph Company v. Owens
| Decision Date | 05 February 1925 |
| Docket Number | 12,083 |
| Parties | WESTERN UNION TELEGRAPH COMPANY v. OWENS |
| Court | Indiana Appellate Court |
From Industrial Board of Indiana.
Proceeding under the Workmen's Compensation Act by Ellis Owens against the Western Union Telegraph Company. From an award of compensation, the defendant appeals.
Reversed.
Clint K. Tharp and C. G. Gardiner, for appellant.
In December, 1923, the appellee, who was, at that time, seventeen years of age, was in the employ of appellant as a "messenger boy," working at and out of the city office of appellant which was located on North Third street in the city of Vincennes. On December 14, 1923, during the hours of his service for appellant, he received a personal injury by accident. On December 17, 1923, the employer made a report of said accidental injury to the Industrial Board, and therein disclaimed liability on account of said accidental injury, claiming that said accident did not arise out of the employment of said appellee; it also stated in said report that its office was 125 Broadway, New York City.
On April 3, 1924, the appellee filed his application for an award of compensation on account of his said injuries. To this application, the appellant filed an answer in denial, and thereafter, on April 30, 1924, said cause was heard by a single member of said board, and on May 8, 1924, said board, by its said member who heard the matter, made an award of compensation to said applicant. On May 19, 1924, the appellant filed its application for a review of the proceedings and award, which application was supported by affidavit and which application was by said board granted, and said cause was reviewed by the full board, which review resulted in an award of compensation by the board, by a majority of its members, from which award this appeal is prosecuted.
The appellee has moved to dismiss this appeal upon the ground, as he contends, that this court has no jurisdiction. His contention is, that as there was no application for a review by the full board of the award made by the single member, within seven days, as provided for in § 60 of our compensation law, the review by the full board was unauthorized and the award by the single member remains valid and binding upon all parties.
It appears from the record that the answer of appellant to the application for an award of compensation was prepared and filed by Messrs. Tharp and Gardner, attorneys of Washington, Indiana, and that the Industrial Board was notified by letter, which accompanied said answer, that said firm of attorneys was representing appellant in resisting said application. It further appears that said firm of attorneys was present at the hearing before the single member of said board, at the city of Vincennes, and represented the appellant at such hearing; that when the award by the single member who heard said cause was made, notice thereof was not sent by the secretary of said board to the appellant at its office in New York City, nor was any notice sent to Messrs. Tharp and Gardner, its attorneys herein, at Washington, Indiana, and that said firm of attorneys had no notice or knowledge that any award had been made and filed by the said single member of said board until more than seven days had elapsed after said award had been filed. Under these circumstances, the board had authority and was fully justified in sustaining said application for a review. In re Ale (1917), 66 Ind.App. 144, 117 N.E. 938. The motion to dismiss is overruled.
The only remaining question we have to consider is: Did the accident in question arise out of appellee's employment?
The appellee has not favored us with any brief upon the merits of this case, and the appellant, in its brief, having shown prima facie error, we would, under the authorities, be fully justified in reversing this cause as upon "error confessed," but we have, however, gone through the record and considered the case upon its merits.
Concerning the material facts involved in this case there is no dispute, no...
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