Burton-Shields Co. v. Steele , 119 Ind. App. 216 ( 1949 )

ON PETITION FOR REHEARING The appellant in its brief on petition for rehearing urges that this court should have reversed the award with instructions to enter an award in favor of appellant, and the suggestion is also contained in appellee's brief of a possibility of a need for the clarification of the mandate of this court in the original opinion as to any further proceedings before the Industrial Board.

The mandate of this court as set forth in the original opinion was the only proper mandate which this court has the power and authority to make under the conclusions reached on the issues.

Our Supreme Court in the case of Heflin v. Red Front Cash Carry Stores (1947), 225 Ind. 517, 75 N.E.2d 662, stated on page 665:

". . . The right of the Appellate Court to review an award of the Industrial Board is given by § 40-1512, Burns' 1940 Replacement. Under this statute the review is for errors of law. This statute merely gives the Appellate Court authority to determine whether, upon the facts and law, the action of the board is based upon an error of law or is wholly unsupported by the evidence or clearly arbitrary or capricious. This particular statute does not empower the Appellate Court to order the board to enter an award. By this statute the legislature did not undertake to vest in the court the administrative function of determining whether or not an award should be granted," citing Ma-King Products Company v. David H. Blair (1925), 271 U.S. 479, 46 S. Ct. 544, 70 L. Ed. 1046; 1 Vom Baur, Federal Administrative Law, § 44; Russell v. Ely Walker Dry Goods Co. (1933), 332 Mo. 645, 60 S.W.2d 44, 87 A.L.R. 953; King v. Alabam's Freight Co. (1932), 40 Ariz. 363, 12 P.2d 294; Paramount Pictures, etc. v. Industrial Commission (1940), 56 Ariz. 217, (Opinion on Rehearing 56 Ariz. 352) 106 P.2d 1024; McGarry v. Industrial Commission (1925), 64 Utah 592, 232 P. 1090, 39 A.L.R. 306; Cole v. Sheehan Construction Co. (1944), 222 Ind. 274, 53 N.E.2d 172; Cole v. Sheehan Construction Co. (1944), 115 Ind. App. 303, 57 N.E.2d 625; 42 Am. Jur., Public Administrative Law, § 247.

In the Heflin case, supra, the Appellate Court had reversed an award of the Industrial Board with instructions to said Board to enter an award in favor of the appellant. The Supreme Court upon transfer of this case held that this mandate was improper in the following language:

"It is our opinion that upon the reversal of this award the cause should be remanded to the Industrial Board of Indiana and upon its being so remanded the board should have the right to proceed with the same in a manner not inconsistent with the views herein expressed. If the present mandate were allowed to stand it would preclude the board from hearing further evidence if it so desired or from taking any steps other than to enter a final award. This would be an invasion of the normal rights and duties which said board has prior to the making of any award. It is idle to assume that the board would disregard the directions of the reviewing court. ``For purposes of judicial finality there is no more reason for assuming that a Commission will disregard the direction of a reviewing court than that a lower court will do so.' Federal Power Comm. v. Pacific Power L. Co. (1938), 307 U.S. 156, 59 S. Ct. 766, 768, 83 L. Ed. 1180, 1183." (Our emphasis).

Under the foregoing decision of the Supreme Court it would appear that the board has the power and authority to hear further evidence as to the average weekly wage of appellee's 14. decedent or to take such other steps not inconsistent with our original opinion which it deems proper under the circumstances.

Petition for rehearing denied.

NOTE. — Petition for Rehearing reported in 85 N.E.2d 263.