Opinion
No. 18,160.
Filed April 12, 1951. Mandate modified May 24, 1951.
1. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Appeal — Scope and Extent of Review — Appellate Court Will Not Controvert Contentions for Reversal. — On appeal from an award of workmen's compensation the burden of controverting the appellant's contentions and arguments for reversal properly rests upon counsel for the appellee and will not be assumed by the Appellate Court. p. 354.
2. APPEAL — Briefs — Failure of Appellee To File Brief — Effect. — In Indiana the failure of an appellee to file a brief controverting the errors complained of by the appellant may be taken as a confession of such errors, and the judgment may accordingly be reversed if the appellant's brief makes a prima facie showing of reversible error. p. 354.
3. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Appeal — Determination — Reversal — Grounds — Absence of Evidence as to Claimant's Weekly Wage. — Where the record of a proceeding for workmen's compensation disclosed no evidence as to the claimant's average weekly wage to serve as a basis for the Industrial Board in fixing compensation, on appeal by the employer, a prima facie showing of error was made so as to justify a reversal of the award of compensation in the absence of the filing of an answer brief by the claimant. p. 355.
4. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Evidence — Burden of Proof — Claimant Must Prove Average Weekly Wage. — In a proceeding for workmen's compensation, proof of the average weekly wage of the claimant is essential to an award of compensation, and the burden rests upon him to establish such fact. p. 355.
5. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Appeal — Determination — Reversal — Grounds — Failure of Appellee To File Brief — Cause Remanded Without Prejudice. — Where an award of workmen's compensation is reversed upon appellant's prima facie showing of error because of the appellee's failure to file a brief, the cause should be remanded to the Industrial Board without prejudice for further proceedings. p. 355.
From the Industrial Board of Indiana.
Proceeding by Ollie C. Adams, as claimant, against the City of Connersville and others, employers, to recover workmen's compensation for injuries received as a result of an accident arising out of and in the course of claimant's employment. From an award of compensation, the employers appeal.
Reversed. By the court in banc.
Albert P. Heeb, of Connersville, and Frank Hamilton, of Greensburg, for appellants.
Phillip Badell, of Rushville, for appellee.
This is an appeal from an award of the Industrial Board of Indiana wherein the appellee was granted compensation for injuries he is alleged to have suffered as the result of 1, 2. an accident arising out of and in the course of his employment by the appellant. The appellee's answer brief was due, under the rules, on February 20, 1951, but to this date he has not seen fit to favor us with one nor has he, upon any occasion, asked us for additional time. The burden of controverting the appellants' contentions and arguments for reversal properly rests upon counsel for the appellee and we will not assume it. Miller v. Julian (1904), 163 Ind. 582, 72 N.E. 588. 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 makes an apparent or prima facie showing of reversible error. Meadows v. Hickman (1947), 225 Ind. 146, 73 N.E.2d 343; Associates Investment v. Snyder (1949), 119 Ind. App. 20, 83 N.E.2d 622; Huffman v. Huffman (1947), 117 Ind. App. 601, 75 N.E.2d 172; Bryant v. School Town of Oakland City (1930), 202 Ind. 254, 171 N.E. 378, 173 N.E. 268; Reed, Admr. v. Brown (1939), 215 Ind. 417, 19 N.E.2d 1015.
We have examined the appellants' brief with care and are convinced that it makes a prima facie showing for reversal in at least one particular. The record discloses no evidence 3, 4. as to the appellee's average weekly wage and therefore the Industrial Board had no basis for fixing compensation in any amount. Proof of the appellee's average weekly 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. Pearson Company, Inc. v. McDermid (1941), 109 Ind. App. 228, 31 N.E.2d 642; Brown v. American Tile Pottery Co. (1931), 93 Ind. App. 344, 178 N.E. 446.
It is so ordered.
NOTE. — Reported in 98 N.E.2d 230.
MODIFICATION OF MANDATE
The authorities that prompted us to reverse this case require us to remand it to the Industrial Board without prejudice. This we failed to do and it is therefore now ordered that this 5. cause be remanded to the Industrial Board for such further proceedings as it sees fit to take not inconsistent with this opinion.