(Download) "Cole v. Sheehan Constr. Co." by In Banc No. 17287 Appellate Court of Indiana # Book PDF Kindle ePub Free
eBook details
- Title: Cole v. Sheehan Constr. Co.
- Author : In Banc No. 17287 Appellate Court of Indiana
- Release Date : January 27, 1944
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 57 KB
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CRUMPACKER, Judge. This is an appeal from an award of the Industrial Board of Indiana dated May 13, 1944, and comes here upon an assignment of errors charging that (1) said award is contrary to law, and (2) said award is at variance with the mandate of this court directed to said board on April 18, 1943. The latter assignment requires us to set out briefly the record background of this controversy. On December 10, 1942, the appellant filed an application with the Industrial Board for the adjustment of a claim for compensation in which she alleged that she is the widow and sole dependent of one Willie Cole who died November 20, 1942, as the proximate result of accidental injuries arising out of and in the course of his employment by the appellee. Upon final hearing the Industrial Board, on July 6, 1943, found that the said Willie Cole died at the time and in the manner alleged in such application but that the appellant did not live with said decedent at the time of his death and was not wholly or partially dependent upon him for her maintenance and support at such time, and that, therefore, she take nothing by reason of her said application. Upon appeal this court reversed such award upon the grounds that the undisputed evidence established a common law marriage between the appellant and the decedent existing at the time of his death and, though not living with him at that time, the appellant was entitled to his support by virtue of the laws of the State and therefore dependency was conclusively presumed as provided by statute. Sec. 40-1403, Burns' 1940 Replacement, § 16414, Baldwin's 1934; Cole v. Sheehan Const. Co., Ind. App. 1943, 51 N.E.2d 391. Upon transfer of the cause to the Supreme Court it was held that exclusive jurisdiction to find facts in claims under the Workmen's Compensation Act rests in the Industrial Board. That said Board had failed to make any finding in reference to the marital status of the appellant and the decedent and that we had invaded the province of said Board in holding that a common law marriage existed between them at the time of decedent's death, as such holding was, in effect, the finding of an ultimate fact in the first instance. Cole v. Sheehan Const. Co., Ind. 1944, 53 N.E.2d 172. Our decision was therefore reversed with instruction 'to remand this proceeding to the Industrial Board of Indiana with specific directions for that body to determine whether or not the appellant and the decedent, Willie Cole, were husband and wife and, if so, whether he, under the facts to be found by the board, was obligated for her support at the time of his death by virtue of the law of the State, and to make a finding or findings and enter an award accordingly.' This we did with a mandate following verbatim the instructions above set out and, pursuant to such mandate, the Industrial Board on May 13, 1944, entered the following finding and award:
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