White v. Spencer Cardinal Corp.

• Decision Date: 28 February 1939
• Docket Number: 16335.
• Citation: 19 N.E.2d 866,106 Ind.App. 338
• Parties: WHITE v. SPENCER CARDINAL CORPORATION.
• Court: Indiana Appellate Court

19 N.E.2d 866

106 Ind.App. 338

WHITE v. SPENCER CARDINAL CORPORATION.

No. 16335.

Appellate Court of Indiana, in Banc.

February 28, 1939

Charles & Charles, of Marion, for appellant.

Browne Campbell & Gemmell, of Marion, and Philip C. Richman and John A. Bachl, both of Indianapolis, for appellee.

DE VOSS, Judge.

This is an appeal from an award of the Full Industrial Board, denying compensation to appellant on her application filed with said Board on the 29th day of April, 1938, wherein, as a dependent of Virgil D. White, she claimed compensation from appellee on account of an injury, resulting in the death of said Virgil D. White, which injury arose out of and in the course of his employment with appellee.

On September 26, 1938, after considering an application for review of an award theretofore made by one member of the Board, the Full Board, by a majority of its members, made its finding and order herein, the pertinent part of which is as follows:

"And the Full Industrial Board, having heard the argument of counsel, having reviewed the evidence and being duly advised herein, now finds that on February 27, 1938, one Virgil D. White was in the employ of defendant (appellee) at an average weekly wage of $19.65; that the said Virgil D White died on February 27, 1938; that at the time of his death the said Virgil D. White was living with Bessie White his wife, who was wholly dependent on him for support; that on April 29, 1938, the plaintiff herein (appellant) filed her application for the adjustment of claim for compensation, and the Full Industrial Board, by a majority of its members now finds for the defendant and against the plaintiff on all other material allegations of plaintiff's complaint."

"Order

"It is therefore considered and ordered by the Full Industrial Board of Indiana, by a majority of its members that plaintiff shall take nothing by her complaint herein and that she shall pay the costs of this proceedings."

From this finding and order of the Full Board, plaintiff appeals and assigns as error that, "the judgment and award of the Full Industrial Board is contrary to law."

Under the Workmen's Compensation Act, Burns' Ann.St.1933, § 40-1201 et seq., this assignment of error is 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. Hunt v. Gutzwiller Baking Co., 1937, 104 Ind.App. 209, 9 N.E.2d 129.

As stated by appellant the controverted questions are "whether the injury received by decedent, Virgil D. White, arose out of and in the course of his employment with appellee and if such injury was so received, whether the same was the cause of his death."

These questions arise under the first specification of appellant in her application for compensation filed before the Industrial Board, which reads as follows: "1. That on the 27th day of February, 1938, Virgil D. White died as a proximate result of personal injuries received by him on the 27th day of April, 1938, by reason of an accident arising out of and in the course of his employment by the above named defendant in performing his duties as night-watchman and foreman for the defendant."

Other specifications in appellant's application for compensation necessary for consideration herein read as follows:

"6. Description of accident and cause of injury: Decedent died as the result of a blow or blows and other bodily injuries received late at night while acting within the scope of his said employment."

"12. Nature of injury: Severe blow to lower right abdominal wall, abrasions and bruises and contusions over other parts of the body; death probably caused by a massive internal hemorrhage."

The record discloses that plaintiff's decedent, Virgil D. White, was in the employ of defendant on and prior to February 27, 1938, as a night watchman and foreman; that on February 26, 1938, he went to his work and that on the next morning, Sunday, he was found lying on the ground between the coal shed and boiler room where his services required him to be. That the grounds of the defendant were partially fenced in with a wire fence, but the gateway to the grounds was always open and accessible to any person desiring to enter the yard; that there were some tracks on the ground made by a vehicle and also some marks made by the decedent while dragging himself along the ground. That when found, said decedent was in an unconscious condition and unable to talk co-herently, and that he was removed to his home on February 27, 1938, where he died at 3:15 o'clock P. M. on said day.

There was no direct testimony by any witness as to how or when the alleged accident happened. The widow of decedent testified that she knew of no injury to him...