Root Dry Goods Co. v. Gibson , 71 Ind. App. 77 ( 1919 )

Remy, J.

— The findings of the Industrial Board which are material in determining the questions presented in this appeal are: That on February 15, 1918, appellant company was, and prior thereto had been, engaged in the conduct of a department store; that one Samuel H. ■ Gibson was in the employment of appellant as a salesman, his work consisting chiefly in selling pianos and other musical instruments outside of the store, his only compensation .being a. specified commission on sales made by him, which commissions during the time of his employment averaged $18.53 per week; that under his employment he was subject to the direction of appellant, and was required, when requested so to do, to work inside the store; that on February 15, 1918, he was directed by appellant to take charge of the music department while the representative in charge of that department went to lunch, and by that representative was directed to remain in the store during the afternoon of that day; that, while in the store in compliance with such directions, a call came from another department to lower an elevator, which at times had been used by employes for the moving of merchandise from one floor of the store to another; that, in response to the call, Gibson reached in to the controller of the elevator, started it, and in doing so was accidently canght.by the elevator as it was descending, and was killed. It is further found by the board that the death of said Gibson was not due to intentional self-inflicted injury, and was not due to his use of intoxicants, to wilful misconduct, nor to his refusal to. use safety appliances. On this finding the board awarded his dependents, the appellees herein, compensation for 300 weeks, at the rate of $10.19 per week, and ordered that appellant pay burial expenses; not exceeding $100.

Under proper assignments of error, appellant urges: (1) The insufficiency of the evidence to sustain the finding .of the Industrial Board; and (2) that the award of the board is not valid, because made by but two members thereof.

Keeping in mind the rules of law governing this court in passing upon the evidence in cases of this character (Haskell, etc., Car Co. v. Brown [1918], 67 Ind. App. 178, 117 N. E. 555), we have carefully examined the evidence, and find that there is some competent evidence to support each ultimate fact upon which the award is based.

Section 59 of the Workmen’s Compensation Act, Acts 1915 p. 392, §80201 et seg. Burns’ Supp. 1918, as amended by the act of 1917 (Acts 1917 p. 151, §8020q2 Burns’ Supp. 1918), provides that the board, by any or all of its members, may hear and determine applications for compensation, and make awards. Section 60 of said act provides that, where an award is made by fewer than all tbe members of tbe board, tbe party dissatisfied, if he make application witbin seven days, may have a bearing “before tbe fnll board.” Section 61 of tbe act contains tbe provision that an “award of tbe full board' shall be conclusive and binding as to all questions of fact, but that either party to tbe dispute may witbin thirty days from tbe date of tbe award appeal to tbe Appellate Court for errors of law.” Tbe record shows that in tbe case at bar tbe evidence was first beard, and tbe award made, by one of tbe three members of tbe Industrial Board; that upon application duly filed a later bearing was held before tbe full board, resulting in tbe finding and award from which this appeal is taken, which finding and award is signed by but two members of the board. It is tbe contention of appellant that tbe statute does not authorize- a finding and award except by tbe full board, and that an- award made and signed by only a majority of tbe board has no binding force. In this appellant is in error. Tbe statute ‘does provide that tbe bearing shall be before tbe full board, and tbe record shows that tbe bearing was so held. Tbe statute does not provide that all members of tbe board must concur in a finding and award. If a bearing is before tbe full board, an award made and concurred in by a majority thereof is valid.

There is no reversible error. Judgment affirmed.