*1 360 protected. The case inquired fully into just fairly result tried and a
below. affirmed.
Finding no reversible error 2d 852. Reported N. Note. — et et al. v. al. January 19,083. 19, Rehearing denied Filed December [No. 24, 1958. Transfer denied March 1958.] *2 Nowicki, Raskosky George Walter Edward J. Kohl, Hammond, appellants. all of for
Raymond Karr, Chicago, and Martin A. of East Ruff appellee Helen Roll. oseph Tinkham, J Travis, William Tink- Travis Singleton, counsel, Hammond, ham & Company. Inland Steel 18, 1956, J. On October one J. L.
Crumpacker, Roll, employee Company of Inland Steel at East Chicago, Indiana, injuries died of caused an acci arising out dent of and of his course said em ployment. living At time of his death he was with Lucy Roll one who claims she then his common 10, since October
law and had been such formerly one Maurice married to Roll had been children, Charles, had three whom she Marshall and, together Marshall, Phyllis all minors and John living Lucy, all with the their were with mother time J. L. the time of his death. At Roll, daughter, Jeannine Elizabeth minor Roll had a although living- 1950, whom, with born December legal Roll, wife, under ob Helen he was his divorced ligation support. guardian natural guardian
children, Helen as the natural adjusted separate filed claims each Jeannine Indiana, the Industrial Board compensation with wholly contending offspring respective each L. Roll at the time support said J. dependent for on the appears record of his appointed Helen L. Roll his ex-wife of J. the death *3 Court, by the Lake his estate administratrix of petition whereupon Lucy remove her as Roll filed petition came on for a hear- In said such. due course ing entered the fol- of which court result as lowing order: Roll, now Helen J. Administratrix “Comes by attorney, Raymond herein, person and her Lucy Ruff, petitioner, person and and Raskosky Kohl; attorneys, Nowicki, and & her day on 26th petition filed heretofore October, 1956, by Lucy is' now submitted court; now moves Administratrix denied, petition be which motion is now said overruled; And by the court the court now having duly premises and advised in heard evidence, now all the said removal is sustained; by the And the court court now finds Roll, is that Helen. divorced ex-wife of said kin decedent and next and is therefore not
qualified Administratrix; to act such And the Lucy court further finds that said Roll the wife Roll, deceased; of J. L. And the further court orders Helen J. to file Report Roll her Final Administratrix, doings herein; of her To which ruling of the court said Helen J. Roll ex- files ceptions. ordered, considered, adjudged “It is therefore and decreed the court that Helen divorced ex-wife of decedent and not next of qualified kin to act as therefore such Administratrix; And the court further finds Lucy decedent said J. herein; And the now orders that further showing Report Helen J. Roll file her Final herein doings as Administratrix.” copy above Roll attached certified of the upon application compensation order to her but appellee Company motion of the Inland it was Steel hearing pleading stricken from the member subsequently the Industrial Board who it in admitted applications evidence E.” as “Exhibit The two together consolidated and tried In- with admitting Company liability awaiting land Steel compensation Board’s decision amount and to paid. whom be should When the matter Board, E,” Full motion of Company, Inland Steel was stricken from the record and, remaining consideration of the evidence case, the Full Board found “that on.the date injury accidental and death J. L. Roll was unmar- ried relationship no marital whatever existed be- and. tween the decedent plaintiff Roll,” J. L. Roll “that the Roll, namely, minor children of said Marshall, Phyllis Charles LaVern Allen Wayne Marshall, John dependent were not upon de- cedent J. L. Roll at the time of injury said accidental *4 and death.” The Full Board further found that daughter Jeannine decedent’s his ex-wife Helen, wholly dependent upon “was him support on the date of his death and only the sole and de-
364 wholly persons neither other pendent, no there time L. Roll at the partially dependent J. award, upon the find- above entered death.” The guardian ings, Roll relief appellant denied granted Jeannine of the children period of 350 per week for a Elizabeth $33.00 guardian payable the natural Helen weeks dependent. compensation for no Roll claims The at common law admits her as she herself years period for a five existed L. Roll had not J. (a), 1952 Re- Burns’ before his death. See §40-1403a award, however, charges placement. error She respects. children two of the Marshall behalf the widow First, says marital status as she her adjudicated by finally fully and L. Roll was E” and Superior as evidenced Lake Court strike said exhibit therefore error to it was Second, contends she as an item evidence. record marriage to L. Roll is all evidence of men to conclude way compels reasonable one at the time of his death law wife his common she step-children and were his her children and therefore wholly dependent upon conclusively presumed to be Re- §40-1403a, support. Burns’ See him placement. pres-
Taking questions up in the order of their these binding effect, inquire under entation we first adjudicata, of the decree of res rules the established full, Court, heretofore set out in Lake found “that Roll is the the court wherein decased.” of said J. question position respect this The following largely upon comment found predicated judgments pages of the in Restatement Law. 336: *5 proceeding in a the creation or “Where judicial of a termination status or determination given competent proper a valid court has after notice judgment binding judgment, is final persons on all in the as to the existence of world judgment subject is status. The not col- judgment by anyone, lateral attack unless the was jurisdiction void because not did have competent over the status or was not to render the judgment notice give or there proper was failure to opportunity to be heard. far as the As concerned, judgment binding is status only tion of persons subject jurisdic- on who are to the judgment, the court which rendered the persons subject but also on personally to the jurisdiction of the court.” We must point concede that if the issue in the probate matter before the Lake Court was status Roll in relation judgment determining decedent J. issue adjudication binding court was an rent on the herein and the Industrial Board well. All we have to enable us to determine the issues probate matter is the decree entered the court which we have quite set out. heretofore It indicates clearly proceeding it which was based brought petition by Lucy was a primary purpose removing Helen Roll as administratrix deceased, estate of which was sustained and a entered that said Helen Roll “is the divorced ex-wife of said decedent and not next qualified of kin and is therefore not to act as such administratrix.”
It true that court found in said decree that Roll is the wife deceased,” of said J. L. way knowing, we have no in the absence pleadings proceeding, whether such presented within the issues court for determination. rule in Indiana that determining of a the conclusiveness rendered in the trial
matter in issue wherein plead- by an examination of the must be ascertained ings judgment. ex rel. Angola State Bank v. State 620. That (1944), 222 Ind. 52 N. 2d Sanders of such reason of the absence we are unable do relied an pleadings. on as “Where subject matter, estoppel, adjudication on the establishing any particular of which state facts *6 by result, proved only judicial it can offer- it is the be ing complete duly a record or authenti- in evidence proceedings copy of the entire in which cated rendered; S., Evidence, . . judgment . .” J. 32 C. §647b, and cases cited. contends, nevertheless, appellant
The that “Exhibit estoppel, E,” as a bar or was ad if not conclusive persuasive item of evidence missible adjudicates. respectable facts it There is authority S., Judg that to effect. See C. J. difficulty ments, applying rule The such to §839. present fact that situation' lies nowhere in appear that court entered E” does it that Roll on its Roll, deceased.” The is analo L. J. situation gous jury’s no which has to a verdict n “A verdict is not evi entered. The rule that: been showing judgment upon it, because dence without appear that the verdict has been set it cannot judgment arrested, and that without aside or the verdict is evidence of the facts found S., Evidence, it, .” 32 J. It is . . . C. our §647b. opinion that the Industrial Board committed considered striking “Exhibit E” from the record. no error “Exhibit E” what there that the evidence is Without of J. appellant was common law wife L. Roll when he died? We have searched the record find except testimony none the uncorroborated appellant which, accepted if herself Board, amply sufficient to sustain her contention. Tending testimony, however, to discredit her fact ten after she claims months she and entered marriage regis into contract she went to work and employer tered with Marshall con tinued to work under that name until L. Roll’s appears It further she did have her social se curity changed card
until four months Roll died. These incidents may have convinced the Industrial Board idea of a common law Roll came to the may after his death. However that be the subject evidence on the is not all in the favor nor is it of such a compel nature as con contrary clusion to that the Industrial Board. That powerless we are situation disturb the Board’s award.
Award affirmed. Rehearing
On Petition *7 Upon appel- consideration of the Crumpacker, rehearing lants’ we to have concluded holding withdraw our E” “Exhibit was inadmis- upon sible evidence because it shows no the wife is of said J. deceased,” following: substitute is merely
When
offered not
as evidence
proof
of its own
but existence
some fact or facts
supposed
judg
existence
which the
founded,
general
ment was
rule is that
it
binding upon anyone
except
parties
thereto,
might
legally
those
parties
who
have become
privity
Lasher,
and those
with them.
Administratrix
2d 296.
572, N. E.
App.
(1940), 107 Ind.
Gerlach
v.
seeking
in mind that
must be borne
It
pay
Company to
Steel
compel
appellee Inland
guardian of
compensation, as the natural
of J. L.
alleged step-children
the benefit
the time
dependents at
deceased,
to be his
claimed
liability
deny
appellee does
While
it
not admit
J. L. Roll
does
the death
owing
for said death is
compensation
objected
proof
of that
issue
In
it
fact
wards.
which,
through
E”
of “Exhibit
a consideration
right
proceedings,
had the
in these
it
defendant
sole
culminating
proceedings
party to the
It was not a
do.
E”
of which “Exhibit
certified
might
legally
party
have
copy nor
become a
thereto
parties
privity with
who
it in
those
to those
nor is
might
proceedings
have become
so.
our con
opinion that
the Industrial Board committed
sidered
striking
E”
no error
from the record.
rehearing
Petition for
overruled.
Reported in
Note. —
Rehearing denied
Inc. 19,023. 22, Rehearing [No. Filed November denied 16, December 1957. Transfer denied March 1958.]