Whitaker v. City of Fort Wayne
| Decision Date | 06 November 1939 |
| Docket Number | No. 16448.,16448. |
| Citation | 23 N.E.2d 281,107 Ind.App. 120 |
| Parties | WHITAKER et al. v. CITY OF FORT WAYNE et al. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceeding under the Workmen's Compensation Act by Belle Whitaker, Martha Whitaker, and others, claimants, opposed by the City of Fort Wayne, Ind., to recover compensation as former dependents of George F. Whitaker, deceased employee. From a final award of the full Industrial Board in favor of the first named claimant, the others appeal.R. C. Parrish, David Parrish, and Richard A. Smith, all of Fort Wayne, for appellants.
Morris & Newkirk, James Helms, and Barrett, Barrett & McNagny, all of Fort Wayne, for appellees.
This is an appeal from a final award of the full Industrial Board of Indiana. We quote from said finding and award as follows:
“Be it remembered that pursuant to notice fixing the time and place therefor, this cause was called for hearing before the full Industrial Board of Indiana, at the office of said board in the Statehouse, in the city of Indianapolis, Marion County, Indiana, on March 27, 1939, at 1:30 P. M. on defendant's application to review an award entered December 31, 1938, and on plaintiff, Belle Whitaker's application to review an award entered December 31, 1938.
“Be it further remembered that by order of the Industrial Board entered as of November 3, 1938, the above consolidated causes were consolidated.
“And be it further remembered, that at the time of the hearing before the full Industrial Board on March 27, 1939, it was stipulated and agreed by all parties interested that an amended application of dependents of the deceased employee to the Industrial Board for the adjustment of a claim for compensation should be filed on behalf of Martha E. Whitaker, in which amended application Vona Elizabeth Kersey and James Oliver Kersey, step-children of George F. Whitaker were joined as parties plaintiff. * * *
“And the full Industrial Board having heard the argument of counsel, having reviewed the evidence and being duly advised therein, now finds that on August 1, 1938, while in the employ of the defendant at an average weekly wage in excess of $30.00, one George F. Whitaker suffered an injury as the result of an accident arising out of and in the course of his employment, of which the defendant had knowledge, that the accidental injury resultedin the death of the said George F. Whitaker on the same day.
“And the full Industrial Board now finds by a majority of its members that at the time of his death the said George F. Whitaker was living with Belle Whitaker, his mother, who was wholly dependent upon the said George F. Whitaker for her maintenance and support.
“And the full Industrial Board by a majority of its members further finds that plaintiff herein Martha E. Whitaker, Vona Elizabeth Kersey and James Oliver Kersey were not dependents of the said George F. Whitaker within the meaning of the Indiana Workmen's Compensation Act.
“It is further found that the defendant has paid the statutory $150.00 burial allowance.
“It is therefore considered and ordered by the full Industrial Board by a majority of its members that there is awarded plaintiff herein Belle Whitaker as against the defendant compensation at the rate of $16.50 a week during the period of her dependency but not exceeding three hundred (300) weeks as to time, beginning August 1, 1938, deferred payments to be brought up to date and paid in a lump sum.
“It is further ordered that plaintiffs Martha E. Whitaker, Vona Elizabeth Kersey and James Oliver Kersey shall take nothing by their complaint herein.
“It is further ordered that the defendant shall pay the reasonable and necessary medical, surgical, hospital and nurse's services for the first 90 days following the accidental injury.
“It is further ordered that the defendant shall pay the costs of this proceeding.”
Martha Whitaker, the appellant, is the widow of George F. Whitaker. The other two appellants, Vonna Elizabeth Kersey and James Oliver Kersey, are children of Martha Whitaker by a former marriage. The appellants were not living with the deceased, George F. Whitaker, at the time of his death. The appellee, Belle Whitaker, mother of the deceased, George F. Whitaker, filed her application for compensation alleging that she was wholly dependent on her son for support. The widow also filed her application for compensation, which was consolidated with the application of the mother. Later the stepchildren were brought in by amendment. From the final award denying the appellants any part of the compensation awarded against the appellee City of Fort Wayne, they have brought this appeal.
The errors assigned for reversal are: The first assignment of error presents for review all questions raised. The sole question for our determination is whether or not the said award of the full Industrial Board denying appellants any part of said compensation should be allowed to stand. The employer, City of Fort Wayne, does not deny its liability under the award.
[1] Taking the evidence most favorable to the award, as we are required to do, it tends strongly to show that at...
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