67 Ind. App. 192 | Ind. Ct. App. | 1918
This is an appeal from an award made for appellee hy the Industrial Board of Indiana. The finding of facts and the award are as follows: “Be it remembered that pursuant to notice fixing the time and place therefor, this cause was called for review at the office of the Industrial Board in the State House, before the full board, on the 27th day of September, 1917, at three o’clock, p. m. The plaintiff appeared by Joseph O. Carson and "Win. H. Faust, her attorneys, and the defendants appeared by J. M. Murray, their attorney. And the full board, having heard the argument of counsel, having reviewed the evidence, and being fully advised in the premises, by a majority of its members, finds that on the 8th day of September, 1915, one Paul Cruse was in the employment of defendant, Frank Retmier, at an average weekly wage of $20.00; that on said date the New Amsterdam Casualty Company was the compensation insurance carrier of the defendant employer; that on the said 8th day of September, 1915, the said Paul Cruse received a personal injury by an accident arising out of and in the course of his employment, as a result of which he died on the 8th day of July, 1917; that as a result of said injury and on account of the disability resulting therefrom, the defendant employer paid to the said Paul Cruse, during his lifetime and after his injury, fifty-eight weeks’ compen-. sation at the rate of $11.00 per week; that the said Paul Cruse left surviving him as his sole and only dependent and next of kin, the plaintiff, his mother, who at the time of his injury and death was wholly dependent upon him for support; that the defendant employer had actual knowledge of the injury of the said Paul Cruse at the time that it occurred, and also
“Award. It is therefore considered and ordered, by a majority of the members, that the plaintiff be and is hereby awarded against the defendants, two hundred and forty-two weeks’ compensation at the rate of $11.00 p¿r week. It is further ordered that the defendants pay the burial expenses of the ' said Paul Cruse not exceeding one hundred dollars. It is further ordered that the defendants pay the costs of this action.
“Dated this 17 day of October, 1917.
“Industrial Board of Indiana, By “(Signed) Edgar A. Perkins “(Signed) Charles R. Hughes.
Members. ’ ’
We consider first the sufficiency of the finding of facts to sustain the award.
not an ultimate fact. Inland Steel Co. v. Lambert (1917), 66 Ind. App. 246, 118 N. E.. 162; Lagler v. Roch (1914), 57 Ind. App. 79, 85, 104 N. E. 111.
It has also been held that it is proper for the Industrial Board to include in a finding its general conclusions which may be reviewed on appeal, but are not
An agreement to pay compensation during the lifetime of an injured employe, or the payment of compensation to him, has been held to amount to an admission that there had been an accident, for which the • employer was liable to pay compensation, but that such agreement or payment is not an admission that the death of such employe was caused by an accident rendering his employer liable to his dependents for compensation. §37 Workmen’s Compensation Act, Acts 1915 p. 392; Cleverley v. Gas, etc., Co. (1907), 1 B. W. C. C. 82, 84, 24 T. L. R. 93; Perry v. Woodward Bowling Alley Co. (1917), 196 Mich. 742, 163 N. W. 52; L. R. A. 1916A 133, 134.
In Perry v. Woodward Bowling Alley Co., supra, the Supreme Court of Michigan said: “The record does disclose that the deceased sustained an injury, and during his disability received compensation; but it is further incumbent upon the claimant to show, by competent evidence from which fair. inference could be drawn, that his death resulted from the injury. This the claimant has failed to do, and compensation for the death must therefore be denied.” ■
In Cleverley v. Gas, etc., Co., supra, the English Court of Appeals, in speaking of the death of an employe with whom his employers had made an agreement and paid compensation thereunder during the lifetime of the employe, said: “But the agreement only amounted to an admission that there had been
Following the decisions aforesaid, the above statement includes all the facts essential to appellee’s right to compensation. It amounts to a finding that said injury resulted from an accident, for which appellant was liable, which necessarily includes the facts that such accident occurred while decedent was engaged in doing the work he was employed to do and that the injury resulted as a natural incident of such employment. McNicol’s Case (1913), 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A 306; In re Harraden (1917), 66 Ind. App. 298, 118 N. E. 142.
Considering the foregoing in connection with the ultimate facts of relationship and dependency the finding of facts is sufficient to sustain the award in appellee’s favor. But it is earnestly contended by appellant that there is no evidence to support the finding that the death of decedent resulted from the alleged accidental injury.
The evidence tends to show that while Cruse was working for appellant, in pursuance of his employment, he received a severe injury to the lower part of his back as the result of an accidental fall, which disabled him at.that time for a period of nineteen days, and that he was then paid compensation for five days; that soon thereafter he tried to work at his trade as a carpenter but was unable to continue because of the effects of his injury; that about a month subsequently to his injury Cruse went to Chicago to visit and rest, and remained there for more than a month; that subsequently he went to Albany where he worked for a news company as a caller until May 10, 1916, when he became severely ill and returned home, but was unable to secure any perma
Dr. Worthington testified that he made an examination of Paul Cruse on June 30, 1917, looked into the history of his case and diagnosed it as pulmonary tuberculosis; that the records of the Long Hospital showed that from June 30 to September 23, 1916, Cruse had been a patient there, suffering from acute nephritis; that he had night sweats, and swelling of the feet; that acute nephritis may-develop from an injury; that night sweats are one of the cardinal symptoms of pulmonary tuberculosis, and they indicated that Cruse was suffering from that disease in June, 1916; that he was suffering from chronic nephritis when he saw him at his home; that chronic nephritis always follows acute nephritis and is always present in a wasting illness; that the history of the case led him to believe that the disease of tuberculosis from which Cruse was suffering was of long standing; that an injury to the back and kidneys of a crushing nature might develop acute or chronic nephritis; that chronic nephritis is a disease which as far as medical people know does not curé itself and will eventually cause death; that it is a wasting and debilitating disease, and reduces the. power of resistance and makes the person so afflicted more susceptible to anything
In re Bowers (1917), 65 Ind. App. 128, 116 N. E. 842, this court said: “Likewise the courts, consistent with the theory of workmen’s compensation acts, hold with practical uniformity that, where an employe afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the act for relief on account of the injury had there been no dis
There is evidence tending to support the finding of facts. The board has drawn the necessary inferences, and there is evidence from which such inferences may reasonably be drawn. The evidence authorizes the inference that the accidental injury suffered by Cruse while in appellant’s employment aroused the latent germs of the disease to which he was predisposed, materially accelerated the disease, and caused his death earlier than it otherwise would have occurred. In re Meyers (1917), 64 Ind. App. 602, 116 N. E. 314; Columbia School Supply Co. v. Lewis (1917), 65 Ind. App. 339, 116 N. E. 1.
The only questions presented by the assignment of errors have been considered. No question of the admissibility of evidence is presented. The death of the appellee having been suggested, the award of the full board is affirmed as of the date of submission.
Note. — Reported in 119 N. E. 32. Workmen’s compensation: appeal and review under act, L. R. A. 1916A 163, 266, L. R. A. 1917D 186; Ann. Cas. 1916B 475, 191SB 647.