DeArmond v. Myers Gravel & Sand Corp.

251 N.E.2d 51, 145 Ind. App. 351, 1969 Ind. App. LEXIS 394

• Court: Indiana Court of Appeals
• Decided: September 29, 1969
• Docket: No. 1068A180
• Status: Published

Opinion

Carson, J.

This cause is returned to us for further consideration of the findings of the Full Industrial Board which purports to be in compliance with our opinion dated December 13th, 1967, wherein said cause was remanded to said Board.

In the opinion wherein we ordered the remand which is reported in 142 Ind. App. 60, 231 N. E. 2d 864, at page 867, we said:

“Disregarding this immaterial evidence, there is uncontradicted testimony of two witnesses that the two children were dependent on the decedent. In the case King v. Illinois Steel Corp., supra, we held that where the facts are uncontradicted the determination of dependency is a matter of law.”

By direct reference to the case of King v. Illinois Steel Corp. (1931), 92 Ind. App. 456, 176 N. E. 161, we feel that the only possible construction of the above paragraph is that our opinion held that the appellants, Dwight McDade and Duane Louis McDade were dependents as a matter of law.

Our opinion and order did not authorize the Board to make a determination of dependency as a matter of law but, only the right to make a finding of fact on the evidence with reference to the degree of dependency as either full or partial dependents, and to enter an award based upon such finding not inconsistent with our opinion.

This cause is again remanded to the Industrial Board to make a finding of fact as to the degree of dependency and to enter an award upon such finding.

Lowdermilk, P.J., Cooper and Sullivan, JJ., concur.

Note. — Reported in 251 N. E. 2d 51.