Garden City Sand Co. v. Abney

155 N.E. 514, 85 Ind. App. 657, 1927 Ind. App. LEXIS 23

• Court: Indiana Court of Appeals
• Decided: March 10, 1927
• Docket: No. 12,835.
• Status: Published

Opinion

Remy, J.

Commodore P. Abney lost his life while working in a sand pit owned by the Garden City Sand Company; his widow and children, appellees herein, made application for compensation. On March 18, 1926, the cause was heard by one member of the Industrial Board; at the close of the hearing, after each side had rested, the member made the following finding and award: “And said member having heard the evidence that was submitted now finds that the same is not sufficient on which to base a finding, and said cause is hereby remanded for the hearing of additional evidence at such time as will suit the convenience of the Industrial Board.”

•On June 18, 1926, the same member of the board, .having heard additional evidence, made an award in favor of appellees, which on review was concurred in by-the full board. It is urged by appellants that at the hearing before the single member of the board, after the evidence was submitted, and there had been a finding that the evidence was insufficient, the member was without authority to hear additional testimony at a future date. The action of the single member in permitting additional evidence to be introduced at a subsequent hearing was irregular, but since appellants had notice of, and appeared at the second hearing before the single member and also at the review before the full board, with opportunity to introduce testimony, they could not have been harmed.

The remaining question is: Was appellees’ decedent, at the time he received the injuries which resulted in his death, an employee of appellant Garden City Sand Company, or was he an independent contractor? That was a question of fact for the Industrial Board. A. E. Norris Coal Co. v. Jackson (1923), 80 Ind. App. 423, 141 N. E. 227.

There is competent evidence to sustain the award.

Affirmed.