S. J. Peabody Lumber Co. v. Miller

Indiana Court of Appeals

S. J. Peabody Lumber Co. v. Miller

133 N.E. 591, 77 Ind. App. 251, 1922 Ind. App. LEXIS 6

CourtIndiana Court of Appeals

DecidedJanuary 4, 1922

DocketNo. 11,150

StatusPublished

Cited by5 cases

This text of 133 N.E. 591 (S. J. Peabody Lumber Co. v. Miller) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

S. J. Peabody Lumber Co. v. Miller, 133 N.E. 591, 77 Ind. App. 251, 1922 Ind. App. LEXIS 6 (Ind. Ct. App. 1922).

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Opinion

REMY, J.

Appellees, as dependents of Frank N. Miller who lost his life while in the employment of appellant S. J. Peabody Lumber Company, filed with the Industrial Board their application for compensation. Appellants filed a special answer charging wilful misconduct. A hearing resulted in a finding by the board that “On January 29, 1920, Miller was an employee of the S. J. Peabody Lumber Company at an average weekly wage of $20.20; that on said date he was killed as a result of a personal injury of which defendant had knowledge, which was caused by an accident arising out of and in the course of his employment.”

1. It is the contention of appellants that in as much as there was a plea of wilful misconduct, and there was a failure on the part of the board to find specifically that decedent was or was not guilty of wilful misconduct, the finding does not sustain the award. This contention is without merit. It has many times [253]*253been held, and is the law, that the failure of the Industrial Board to find an essential fact is the equivalent of a finding against the party having the burden of establishing such fact. Raynes v. Staats-Raynes Co. (1918), 68 Ind. App. 37, 119 N. E. 809; Chicago, etc., R. Co. v. Kaufman (1921), 78 Ind. App.-, 133 N. E. 399.

2. A further contention of appellants is that the board erred in the exclusion of certain testimony. Rule No. 33 of the Industrial Board provides that the board “may refuse to hear more than three witnesses produced by the same party to prove the same fact.” At the hearing, the board, having heard the testimony of three witnesses on the issue of wilful misconduct, invoked the rule and excluded the testimony of a fourth witness by whom it was sought to prove substantially the same facts as had been testified to by each of the three witnesses previously heard. In this ruling there was no error. See Northern Ind. Gas, etc., Co. v. Pietzvak (1917), 69 Ind. App. 24, 118 N. E. 132.

The award is sustained by sufficient evidence.

Affirmed.

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REMY, J.

Appellees, as dependents of Frank N. Miller who lost his life while in the employment of appellant S. J. Peabody Lumber Company, filed with the Industrial Board their application for compensation. Appellants filed a special answer charging wilful misconduct. A hearing resulted in a finding by the board that “On January 29, 1920, Miller was an employee of the S. J. Peabody Lumber Company at an average weekly wage of $20.20; that on said date he was killed as a result of a personal injury of which defendant had knowledge, which was caused by an accident arising out of and in the course of his employment.”

1. It is the contention of appellants that in as much as there was a plea of wilful misconduct, and there was a failure on the part of the board to find specifically that decedent was or was not guilty of wilful misconduct, the finding does not sustain the award. This contention is without merit. It has many times [253]*253been held, and is the law, that the failure of the Industrial Board to find an essential fact is the equivalent of a finding against the party having the burden of establishing such fact. Raynes v. Staats-Raynes Co. (1918), 68 Ind. App. 37, 119 N. E. 809; Chicago, etc., R. Co. v. Kaufman (1921), 78 Ind. App.-, 133 N. E. 399.

2. A further contention of appellants is that the board erred in the exclusion of certain testimony. Rule No. 33 of the Industrial Board provides that the board “may refuse to hear more than three witnesses produced by the same party to prove the same fact.” At the hearing, the board, having heard the testimony of three witnesses on the issue of wilful misconduct, invoked the rule and excluded the testimony of a fourth witness by whom it was sought to prove substantially the same facts as had been testified to by each of the three witnesses previously heard. In this ruling there was no error. See Northern Ind. Gas, etc., Co. v. Pietzvak (1917), 69 Ind. App. 24, 118 N. E. 132.

The award is sustained by sufficient evidence.

Affirmed.

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133 N.E. 591, 77 Ind. App. 251, 1922 Ind. App. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/s-j-peabody-lumber-co-v-miller-indctapp-1922.

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