Ziegler v. Tipton Lumber Co.

• Citation: 128 Ind.App. 249,147 N.E.2d 679
• Decision Date: 07 February 1958
• Docket Number: No. 19039,19039
• Parties: Richard F. ZIEGLER, Appellant, v. TIPTON LUMBER COMPANY, Appellee.
• Court: Court of Appeals of Indiana

Page 679

147 N.E.2d 679

128 Ind.App. 249

Richard F. ZIEGLER, Appellant, v. TIPTON LUMBER COMPANY, Appellee.

No. 19039.

Appellate Court of Indiana, In Banc.

Feb. 7, 1958.

Floyd E. Harper, Tipton, for appellant.

James V. Donadio, Geoffrey Segar, Indianapolis, Ross, McCord, Ice & Miller, Indianapolis, of counsel, for appellee.

KELLEY, Chief Judge.

Asserting that he suffered an accidental injury in the nature of a 'fractured bone in lower back' arising out of and in the course of his employment by appellee while engaged in handling and stacking lumber in storage, appellant filed application for compensation. The Board found that appellant 'did not sustain personal injuries by reason of an accident arising out of and in the course of his employment' with appellee and awarded that appellant take nothing as against appellee.

Appellant challenges the award on the ground that the evidence does not sustain it. This proposition appears to be based upon appellant's contention that the Board erred in 'giving the defendant's (appellee's) witnesses' evidence the same amount of probative value as the plaintiff's (appellant's) evidence.' Said contention, as we understand appellant's brief, is predicated upon the assertion that certain of the witnesses made statements of a contradictory or inconsistent nature and, therefore, the 'weight of the evidence supports plaintiff, appellant's argument.' Appellant says, in his reply brief, that 'It is not appellant's contention that there was no evidence to support such finding' but 'It is self-evident, from the foregoing facts [referring to the asserted inconsistent statements of certain witnesses], that neither of appellee's medical witness's statements should have any probative value or weight attributed to their statements, opinions or diagnosis.' (The words in the brackets are ours).

Our examination of the testimony of the witnesses designated by appellant fails to disclose any material contradictions or inconsistencies therein nor any of such substantial and pertinent nature as to lessen or destroy the probative value of such evidence. It was not only the prerogative of the Board, as the trier of the facts, to weigh the evidence and reconcile any conflicts and inconsistencies appearing therein, but it was charged with the duty so to do. And, the Board having performed that duty, we are not authorized to weigh the evidence nor to substitute any self-generated deductions in lieu of that of the Board.

The evidence given by said witnesses was substantive and probative and was to the effect that appellant 'was not disabled;' that 'there is no herniated disc in the low lumbar spine;' and that he 'had no impairment to any part of his body or his body as a whole' resulting from the incident of November 23, 1953, the latter being the day upon which appellant claimed he suffered the accident resulting in a fractured bone in the lower back. In view of the specious vacuity of the tendered proposal it seems bootless to...