City of Kendallville v. Twining

DISSENTING OPINION With all due respect to the majority members of this court, I feel that in this particular case they are in error.

The compensation act is remedial, to compel industry to bear part of the loss occasioned by injury or death of persons it employs. Its further purpose is to lift some of the "loss-load" from the backs of the widows and dependent children of workmen who lose their lives while working at their job.

It seems that a liberal construction of the act is required if it is to approach the performance of the purpose and function intended by those who fostered it. Unless it is liberally construed, we have not bettered the position of dependents or aided society in bearing the loss of earnings in the home of the injured or deceased workingman.

For many years, an appeal from the Industrial Board could not go beyond the jurisdiction of the Appellate Court. It is only in recent years that a transfer to this court has been permitted. During the better part of 30 years of the existence of this act, the legislature looked to the opinions of the Appellate Court as the guide to future legislation on the subject. The words of the statute are of doubtful import if they are such as to permit two or more constructions. Likewise the wording is of doubtful import if extraneous matters enter into this court's interpretation. But where such is the case this court will give due consideration to the interpretation of the statute by the department of government and the intermediate court. If the interpretation has been long recognized, it may be inferred that the legislature has adopted such construction. Citizens T. S. Bank v. Fletcher AmericanCo. (1934), 207 Ind. 328, 190 N.E. 868, 192 N.E. 451.

The subject of the instant case does not present a new question but one that for almost 30 years had a settled position in the law of this state. It has been held time and again that in construing the particular section involved in this case (§ 40-1701, Burns' 1940 Replacement), that a question of fact with considerable discretion to make the award fair and equitable was lodged in the fact finding board. This section was re-enacted without substantial change in the 1933 session of the legislature. At that time there was fresh in the minds of the members of the legislature, the case of Fleschner v. Fagg (1932), 94 Ind. App. 685, 180 N.E. 487, which determined this very point.

Under the decisions of this court it must be inferred that the legislature adopted that construction when the section was re-enacted in 1933 with no substantial change.

The same rule of construction was followed in Miller v.Binkley Mining Co. (1934), 99 Ind. App. 257, 190 N.E. 886, andLenne v. Binkley Mining Co. (1933), 97 Ind. App. 680,187 N.E. 842, and by many cases since that time. In none of them did the Industrial Board or the Appellate Court declare the rule to be as announced in the instant case. The construction is too narrow and will have the effect of throwing the burden of the loss on the surviving members of the family, no matter how needy and helpless they may be.

It may be said that because this was not the work by which decedent made the greater part of his living, that the award is sufficient. However, that is reading into the act words that were not placed there by the legislature. If two men under identical contracts were doing the same work for the appellant, one of whom worked on two jobs and one of whom was satisfied with the meager earnings of the part time job and both were killed at the same time, we would get different answers for each of these cases under the rule this day adopted by the majority opinion. Such was not the intent of the legislature and no such intent is expressed in the act. It should not be read into it by this court.

The cause should be affirmed.

Gilkison, J., concurs in this dissent.

NOTE. — Reported in 65 N.E.2d 846.