Opinion
No. 15,158.
Filed March 15, 1934.
1. APPEAL — Appellant's Briefs — Failure to Recite Evidence — Defect Cured by Appellee's Briefs. — Where appellant's briefs failed to contain a condensed recital of the evidence in narrative form, a complete recital thereof in appellee's briefs corrected the defect. p. 372.
2. MASTER AND SERVANT — Workmen's Compensation — Appeal — Weighing Evidence. — Appellate Court cannot weigh the evidence on appeal from the Industrial Board. p. 373.
3. MASTER AND SERVANT — Workmen's Compensation — Appeal — Effect of Industrial Board's Findings. — The finding of facts of the Industrial Board is binding upon the Appellate Court unless there is total lack of evidence to support some essential fact. p. 373.
4. MASTER AND SERVANT — Workmen's Compensation — Appeal — Review of Board's Conclusions. — It is the province of the Industrial Board to determine the ultimate facts and its conclusions upon the evidential facts, if legitimate, cannot be disturbed on appeal even though the appellate tribunal may prefer another conclusion equally legitimate. p. 373.
From Industrial Board of Indiana.
Proceedings under the Workmen's Compensation Act by Mabel M. Lester and others, claimants as defendants of Thomas Lester, deceased employee, opposed by Ice Hardware Company, employer. From an award denying compensation, claimants appealed. Affirmed. By the court in banc.
Horace G. Yergin and Eugene H. Yergin, for appellants.
James L. Murray, for appellee.
Thomas Lester, while in the employ of appellees, met with an accidental injury resulting in his death. The appellants, his dependents, filed their claim with the Industrial Board for adjustment of compensation. Proceedings were had upon this claim, finally resulting in the full Industrial Board entering an order denying compensation. From this order the appellants appeal to this court, assigning as error for reversal, that the award of the full Industrial Board is contrary to law.
The question which we are required to pass upon by the record in this case, requires a consideration of the evidence. Appellee insists that the appellants have failed to set out a 1. condensed recital of the evidence in narrative form as required by rule 21 of this court, and that therefore there is no question before us for examination. We agree with appellee's contention, but they have cured the defects in appellant's brief, inasmuch as they have set out a complete resume of all the evidence contained in the record in their own brief. The appeal is before us for determination on its merits. Hughes v. State ex rel. Sutton (1912), 50 Ind. App. 617, 98 N.E. 839.
A majority of the full Industrial Board found, "that the death of Thomas Lester did not arise out of nor was (it) in the course of his employment with the defendant."
The decisions in this state hold, without exception, that this court will not weigh the evidence in an appeal from the full Industrial Board. The finding of facts made by such board 2-4. is binding upon this court. It is only where there is a total lack of evidence to sustain some essential fact upon which the award is based that it will be set aside. The Industrial Board has the power to determine the ultimate facts in the case and if in doing this it reaches a legitimate conclusion upon the evidential facts, this court must not disturb that conclusion, though it might prefer another conclusion equally legitimate. Lazarus v. Scherer (1931), 92 Ind. App. 90, 174 N.E. 293.
With these rules to guide us, we have carefully examined the evidence in this case. There is sufficient evidence to sustain the finding of facts made by the Industrial Board.
The award is affirmed.