Zeitlow v. Smock
| Decision Date | 15 November 1917 |
| Docket Number | No. 10006.,10006. |
| Citation | 117 N.E. 665,65 Ind.App. 643 |
| Parties | ZEITLOW v. SMOCK. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Industrial Board.
Proceedings for compensation under the Workmen's Compensation Act by J. O. Smock, opposed by H. F. Zeitlow, the employer. From an award of the Industrial Board, the employer appeals. Reversed.Chas. E. Henderson, of Indianapolis, for appellant. J. Fred Master, of Indianapolis, for appellee.
This is an appeal from an award of the Industrial Board of Indiana against appellant and in favor of appellee, by the terms of which the latter was allowed 15 weeks' compensation at the rate of $9.90 a week, to be paid in a lump sum, $15 for medical expenses, and costs. The award was made by the full board upon a review of the evidence produced at a prior hearing before one of its members.
Appellant has assigned as error that the award of the full board is contrary to law. Appellee contends: (1) That such assigned error presents no question; and (2) that because of its failure to file any answer in the proceeding before the Industrial Board, appellant has waived any defense which it may have had, that by such failure it confessed the averments of the complaint, and nothing remained for the board to do but to “classify the injury and assess the amount of recovery.”
[1] The answer to appellee's first contention is furnished by the act of the Legislature of 1917 (Acts 1917, c. 63, § 3), section 61 of the original Compensation Act (Acts 1915, c. 106), whereby the assignment of error supra is authorized and made effective for the purpose of presenting “both the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.”
In answer to appellee's second contention, supra, appellant directs our attention to those provisions of section 55 of the Workmen's Compensation Act which provides that the procedure thereunder “shall be as summary and simple as reasonably may be,” and that, for the purposes of carrying out the provisions of said act, the Industrial Board “may make rules not inconsistent with the act.” In this connection appellant urges that said board has caused to be made and published throughout its jurisdiction a printed rule to the effect that no answer is required and, if none is filed, “the allegations contained in the application, petition, or complaint will be deemed to be denied.”
[2][3][4] The rule relied on by appellant is not a part of the record in this case. It is true that the provisions supra of the act in question authorized its promulgation, and this court will indulge every reasonable presumption in favor of the sustaining of the award of said board; but the fact that such a rule was made and published by said board and in force at the time of the hearing of this case cannot be indulged in favor of the action of said board, in the absence of anything in the record showing such fact. However, both appellant and appellee appeared before said board, and said cause was heard and determined without any suggestion or objection that no answer had been filed by appellant. Under such a state of facts the appellee would be in no position to take any advantage of appellant's failure to answer even under the rules governing civil procedure. Train v. Gridley, 36 Ind. 241;Taylor v. Short, 40 Ind. 506;Stingley et al. v. Bank, 42 Ind. 580;Chambers et al. v. Butcher et al., 82 Ind. 508.
[5] In this connection, appellee also claims that appellant waived any defense he might have had because of his failure to introduce any evidence. In answer to this contention, it is sufficient to say that cases brought under the act in question do not differ from the ordinary civil action in the respect that the burden is on the petitioner to show each of the facts necessary to entitle him to the benefits of the provisions of the act. Haskell & Barker Car Co. v. Brown, No. 9760, 117 N. E. 555, and cases there cited. It appears in the instant case that the appellant was relying on the inability of the appellee to show that the relation of employé and employer existed between the two at the time appellee received the injury for which he was seeking compensation. It was not necessary, therefore, that appellant introduce any evidence, because if the evidence offered by appellee failed to show facts from which such relationship might reasonably be inferred, he could not recover, and the question which appellant seeks to have decided by his appeal is whether the evidence is in fact sufficient to authorize said inference so drawn by the board.
[6] Before going to this question we should add that appellee further insists that such question is not presented because of appellant's failure to except to the finding of said board. The act in question does not require or contemplate such an exception. Union Sanitary, etc., Co. v. Davis, 114 N. E. 872.
The record shows that appellant excepted to the award made by said board on review, and he challenges such award in this court as being contrary to law. This, under the provisions of said act as amended in 1917, as indicated supra, requires us to determine both “the sufficiency of the facts found to sustain the award and the sufficiency of the evidence to sustain the finding of facts.”
The Industrial Board has found as a fact that appellee at the time of his injury was in the service of appellant “as an employé”; that at such time appellee was employed by appellant in the usual course of his business. This finding is challenged by appellant on the ground that there is no evidence to sustain it.
[7] Appellee insists: First, that said question is one of fact, and that the finding of said board is conclusive thereon and not subject to review, and that, in any event, it was justified by the evidence. Said first contention, subject to qualification, is correct, that is to say, in a case where the evidence affecting such question is conflicting, there being any evidence showing or tending to show such relationship, it is the exclusive duty and province of such board to weigh the evidence and draw any and all reasonable inferences therefrom, and its conclusion in such a case is final and not subject to review, but where the evidence affecting such question is undisputed and “is reasonably susceptible of but a single inference, the question of what relation is thereby shown to exist is a law question.” Columbia, etc., Co. v. Lewis, 115 N. E. 103, and cases there cited; Dodge v. Kronewitter, 57 Ind. App. 190, 104 N. E. 99;Board v. Bonebrake, 146 Ind. 311, 45 N. E. 470;Lagler v. Roch, 57 Ind. App. 79, 104 N. E. 111.
[8] It follows that if there be no evidence showing said relationship, or from which such relationship may reasonably be inferred, this court must apply the law to such state of facts and say as a matter of law that such relationship is not shown by the evidence, and in this sense such ultimate question is one of law. As affecting this question, the evidence is, in substance, as follows:
Appellee testified that he was injured on November 22, 1916, by the falling of a radiator, which he was unloading from a wagon, upon his thumb; that he was then working for appellant. We quote:
“
He further testified that appellant was a steam contractor and had the plumbing contract, the steam contract, for a township consolidated school building then being erected in Marion county, Ind. He required considerable hauling done in connection with his work. Appellee was a farmer, but his farm was not large enough to keep him employed all the time, and he did hauling at odd times and when it would not interfere with his farming and when he had nothing else particularly to do. About the times hereafter mentioned he did hauling for the principal and other contractors who were engaged in the erection of said schoolhouse. Appellee had a talk with appellant, who said-
There was no price then agreed upon for the work. Appellee owned his own team and wagon. He had another team, and hired a driver for it to assist him in hauling for appellant. Appellee paid this driver. The latter was subject to appellee's control as to what he did. Appellee charged 65 cents per hour per team for this work, based on the time actually consumed. This time appellee entered in a small time book, in which he entered also the accounts of other people, including some of the contractors of the building for whom he did hauling. Appellee did hauling for appellant on the following days: October 13, 19, 28, November 3, 22, December 9, 11, 12, 22, and 24, 1916, January 19 and 31, 1917. For this work appellee rendered statements on October 31, November 6 and 27, December 12 and 25, 1916, and on February 2, 1917. Appellant paid these amounts by check. Appellee did not haul any piece separately for appellant under a separate agreement, nor did he ever charge for the piece hauled. When delivering appellant's goods, appellee at no time...
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