City of Connersville v. Adams

Wiltrout, P. J. This is the second review of'this .case.- Appellee was granted an award of compensation for in juries, alleged to have been suffered as the result ,of.:an accident arising out of and in the course of his ■ employment by appellant. Appellant prosecuted a- review.. Appellee failed to file a brief. This court thereupon- stated: “It is settled law in this state that the failure of •an appellee-to file a. brief controverting the errors complained of by an appellant may be taken as a confession'of such errors and the judgment may accordingly be reversed- if the appellant’s brief iriakesan apparent or prima facie showing of re- yersible error. - “We have examined the appellant’s brief with care'and are. convinced thát it 'makes a prima facie ^showing ior • reversal in at least one particular. :The' record discloses-no -evidence-as to the appellee’s average weekly wage and therefore the Industrial Board had-no basis for fixing compensation in any aniount.' Proof of the' appellee’s average weekly *583 wage was essential to .an, award of compensation and. the burden rested upon him to. establish such fact. This requires a reversal of the award.,", “It is so ordered.” Later the mandate of the opinion was modified* in the following language: • “The authorities that prompted iis to" reverse-this case require us to remand it to thie Industrial . Board without prejudice. This, we failed to do and';! it is therefore now ordered that this cause be • remanded to the Industrial Board for such further proceedings as it sees fit to take not inconsistent with this opinion.” City of Connersville v. Adam s (1951), 121 Ind. App. 353, 98 N. E. 2d 230. Thereafter the Industrial Board made...an order whereby the cause was set for hearing for . the sole purpose of hearing evidence concerning the average. weekly wage of appellee. Appellant filed- a ■ written motion to vacate and set aside this order. This‘motion was overruled. Additional evidence was heard concerning appellee’s -average weekly wage and a new award entered in favor of appellee. . - Appellant argues that the overruling of its motion was error. - It argues that in the previous reviéw it had presented by its brief the following grounds for reversal of the award: (1) that there was no evidence that appellee sustained an accidental injury arising out of ánd in the course of his employment.;, and .¿(2) that appellee’s condition , was riot the result •• of ■ an accidental injury and was not aggravated or: caused by such an accidental’injury; that by failing tó file a brief appellee confessed error; as to all grounds presented; that the order is in contravention.- of: .the ■iriandate of this 'court in that it did not require, a heáring de no.vo on all the issues presented; that in the absence *584 of further ■ evidence on .any issue except that of -the average weekly wage compensation must be denied. Where an appellee has failed to file a brief the court may, in its discretion, take different courses of action: (1), it may order the appellee to file a brief; (2) it may take upon itself a consideration of the questions presented, without any aid from appel'le'e';'' (3) it may réverse the judgment or award if apparent' dr' prima facie error is shown by appellant’s assignment of errors and brief. 2 Gavit, Indiana Pleading and Practice, 2540, §516; Meadows v. Hickman (1947), 225 Ind. 146, 73 N. E. 2d 343; Sheldmyer v. Bias (1942), 112 Ind. App. 522, 45 N. E. 2d 347; Cleveland, etc., R. Co. v. Wuest (1907), 40 Ind. App. 693, 82 N. E. 986. The latter course is not taken in the interest of the appellant, but for the protection of the court and in ' . order to relieve the court of the duty which properly rests upon counsel for appellee. Meadows v. Hickman, supra. If apparent or prima facie error is not shown the judgment or award will not be reversed. Mazac v. City of Michigan City (1934), 98 Ind. App. 366, 189 N. E. 400; Goossens v. Jenkins (1937), 103 Ind. App. 492, 8 N. E. 2d 1014. Where appellant ’, is • urging several alleged errors it is not necessary . to-a .reversal that there be an apparent or prima facie showing in appellant’s brief that all matters- alleged to-constitute error actually constitute prima facie error. Frequently, in. reversing the judgment, where appellee.-.has not -filed, a brief, the court does not specify the exact -apparent or prima facie error shown. - Nevertheless, on the previous review of this case .. .we .determined that appellant’s -brief made a prima,facie-showing for-reversal in -at least one par *585 ticular, in that the transcript disclosed no evidence as to appellee’s average weekly wage. Such determination became the law of this case. It was not necessary to go beyond such determination, and we did not do so. Inasmuch as we concluded that prima facie error was shown in this respect we treated appellee’s failure to file a brief as a confession of error as to this point only. The Board’s action in setting the case for hearing on the sole question of appellee’s average weekly wage was in no manner inconsistent with the previous opinion in this case, and did not constitute an abuse of discretion. School City of Hammond v. Moriarity (1950), 120 Ind. App. 663, 93 N. E. 2d 367. Had appellant wished to introduce further evidence on other subjects, Rule 18 of the Industrial Board prescribes the procedure which it should have followed. Appellant contends that there is no evidence of probative value to establish that appellee received an accidental injury arising out of and in the course of his employment, and the evidence is still insufficient to establish his average weekly wage; that the uncontradicted evidence forces a conclusion contrary to that reached by the Board. On the date in question appellee was a city fireman, and had been so employed for approximately five years. While answering a fire call on this Saturday evening appellee got a roof ladder and picked up the booster line. He testified, “I dropped the booster line to put up the roof ladder and I reached down to pick up the booster line and I was just one step from the ladder, so I started to put the line over my right shoulder to step with it. Instead of that, I was so close to the ladder I pushed and stretched with the booster line and made a step at the same time, as I did that there was just a stiffness hit me across the hips and back. . . .” *586 Another fireman said appellee flinched as though he was hurt, and he took over the booster line. . Appellee notified his superiors and fellow firemen that he had been-injured. He had never had an injury to • his spine' or back or complained of his back prior to this time, nor had he lost any time for such reason. The fireman who- slept across from appellee that night testified to appellee’s actions during the night and that “I, knew then that there must be something wrong.” Appellee was off duty the following day. The stiffness started to leave and pain started Monday morning. Other firemen thereafter' worked in appellee’s place for about four months, except for certain light work which appellee' performed, when his pay status was terminated. Appellee weighed 170' or 172 pounds at the time of the fire. Thereafter he lost weight, going down to 137 pounds. A compensable injury by accident may be occasioned by lifting or straining. Puritan Bed Spring Company v. Wolfe (1918), 68 Ind. App. 330, 120 N. E. 417; Vonnegut Hardware Co. v. Rose (1918), 68 Ind. App. 385, 120 N. E. 608; Terre Haute, etc., Mfg. Co. v. Wehrle (1921), 76 Ind. App. 656, 132 N. E. 698; Heflin v. Red Front Cash & Carry Stores, Inc. (1948), 225 Ind. 517, 75 N. E. 2d 662; Indian Creek Coal, etc., Co. v. Calvert (1918), 68 Ind. App. 474, 119 N. E. 519, 120 N. E. 709; Small, Workmen’s Compensation Law of Indiana, 100, §5.3. While the testimony of the medical experts is conflicting, there is evidence from which the Board could have legitimately found that the physical condition from which appellee suffered arose from an accidental injury arising out of and in the course of his employment. *587 Evidence was also introduced as to the amount of appellee’s average weekly wage. . If such evidence was not as detailed in its computations as appellant desired, it had the privilege of cross-examination, or- of introducing further evidence from its own records. Award affirmed with statutory 5% penalty. Note. — Reported in 105 N. E. 2d 912.