Opinion
No. 17,901.
Filed November 21, 1949.
1. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Dismissal — Reinstatement of Cause by Full Board for Mistake of Fact — Statutory Amendment. — Where the full Industrial Board affirmed order of hearing member vacating his previous order dismissing proceeding to secure compensation and reinstated such cause for trial on merits on grounds of hearing member's mistake of fact in holding person had no authority to bring proceeding as legal representative of dependent of deceased employee, the board properly applied the law as it existed when its jurisdiction was invoked, where the legislature withdrew the power of the board to correct its finding or award at any time for a mistake of fact. Burns' 1940 Replacement (1949 Supp.), § 40-1410. p. 571.
2. WORKMEN'S COMPENSATION — Proceedings To Secure Compensation — Evidence — Administrative Body Not Bound by Strict Rules of Evidence. — The Industrial Board, being an administrative body, is not bound by the strict rules pertaining to the admissibility of evidence in courts of law. p. 572.
3. WORKMEN'S COMPENSATION — Appeal — Evidence — Admissibility — Affidavits and Court Records — Incompetent to Prove Marital Status and Dependency. — In proceeding to secure compensation for death of employee, a power of attorney authorizing Greek Consul General to prosecute such claim on behalf of decedent's widow and minor son residing in Greece, and affidavits of persons in such country without notice to employer, and probate court records in decedent's estate, to which employer was not a party, were incompetent to prove claimant's relationship to and dependency on decedent, because the employer was deprived of the fundamental right of cross-examination and helpless to refute their contents. p. 572.
4. WORKMEN'S COMPENSATION — Appeal — Evidence — Judicial Notice — Rules of the Industrial Board — Appellate Court Will Accept Statement of Rules in Appellant's Brief. — The Appellate Court does not take judicial notice of the rules of the Industrial Board, but where appellant's brief contained the unchallenged statement that they provide for the taking of depositions, the Appellate Court would accept such statement with the observation that the board, by the adoption of the rule, recognized the impropriety of affidavits as an instrumentality of proof in contested matter. p. 572.
5. WORKMEN'S COMPENSATION — Appeal — Evidence — Weight and Sufficiency — Employees Within the Act — Sufficiency to Prove Employment. — Where parties to proceeding to secure compensation for employee's death stipulated concerning employment, injury and death of one Stoyan Kershes, and application named Stoyan T. Kosherkoff, and there was no evidence that they were one and the same person, such evidence was insufficient to show that claimant, Stoyan T. Kosherkoff, was ever in the employ of appellant. p. 573.
6. WORKMEN'S COMPENSATION — Appeal — Determination — Reversal — Industrial Board Has Right To Proceed in Manner Consistent with Opinion. — Where the Appellate Court reversed and remanded an award of the Industrial Board for compensation for employee's death because of insufficient evidence, the board has the right to proceed in a manner not inconsistent with the views expressed in Appellate Court's opinion. p. 573.
From the Industrial Board of Indiana.
Proceeding under the Workmen's Compensation Act by C. Christopoulous, Acting Consul General of Greece, as legal representative of decedent's widow and minor child, and the Administrator of decedent's estate to recover compensation for employee's death against Bass Foundry and Machine Company, and another. From an award for claimants, the employers appeal.
Reversed and remanded. By the court in banc.
Henry L. Humrichouser, of South Bend, for appellants.
Leas Schlatter, of Ft. Wayne, for appellees.
This is an application for compensation under the provisions of the Indiana Workmen's Compensation Act, for the death of Stoyan T. Kosherkoff alleged to have resulted from an accidental injury arising out of and in the course of his employment with the Bass Foundry and Machine Company. It was brought by the appellee C. Christopoulous, acting Consul General of Greece, at Chicago, Illinois, as legal representative of the appellees Helena Kosherkoff and Labro Kosherkoff, widow and minor son respectively of said decedent, residents of Greece and alleged to have been dependent upon him for support. The appellee Vasil K. Spasoff, as administrator of said decedent's estate, also joined as a party plaintiff in the proceedings below. Upon motion of the appellant alleging that the appellee Spasoff, as administrator of the decedent's estate, is not a proper party plaintiff and that no authority is shown in C. Christopoulos, as Consul General of Greece to act as the legal representative of the decedent's alleged dependents, the hearing member of the board dismissed the cause. Later, upon a review of the file, he concluded that the order of dismissal had been entered through his inadvertance and reinstated the cause over the appellant's objection. This order was reviewed by the Full Industrial Board at which time the appellees filed a power of attorney from the alleged dependents of the decedent authorizing the appellee C. Christopoulos, as Consul General of Greece, to prosecute the claim in their behalf. The board thereupon vacated the dismissal order and reinstated the cause to be heard on its merits. In due course the Full Industrial Board found for the appellees and awarded compensation as provided by the Indiana Workmen's Compensation Act in death cases.
This appeal challenges the legality of the board's action (1) in vacating its order dismissing the cause and reinstating the same, and (2) admitting in evidence the power of attorney above mentioned and the appellees' exhibits 1, 2, 3, 4 and 5.
When the hearing member vacated the order dismissing the cause and reinstating the same for trial on its merits the board had power at any time to "correct 1. any clerical error or mistake of fact in any finding or award." Burns' 1940 Replacement, § 40-1410. Whether or not the Greek Consul had authority to represent the decedent's dependents as a party plaintiff was a question of fact concerning which the hearing member evidently concluded he had made a mistake. His action in that respect was reviewed by the full board on April 27, 1948, and, in effect, affirmed. In the meantime the legislature had withdrawn the power of the board to correct its finding or award at any time for a mistake of fact. Burns' 1940 Replacement (1949 Supp.), § 40-1410. The board properly applied the law as it existed when its jurisdiction in this particular was invoked.
The power of attorney complained of is a long double purpose document the first part of which authorizes the Greek Consul General to prosecute this cause for and in behalf of Helena Kosherkoff and her minor son Labro. The second part thereof is nothing more than the affidavit of said Helena whereby she seeks to establish her marriage to the decedent and the dependency of herself and son upon him at the time of his death. As proof of the Greek Consul General's authority to act we think the document was proper. As proof of marriage and dependency, even under the relaxed rules of evidence pertaining to hearings before the Industrial Board, it was not competent. Exhibits 1 and 2 are denominated "Certificate" but do not purport to be certified copies of any official record kept by the Greek government or any sub-division thereof. They amount to nothing more than affidavits. Exhibit 3 does not pretend to be anything else than the affidavit of one Elenia Kosherka. Exhibits 4 and 5 are records of the Probate Court of Allen County in the estate of Stoyan T. Kosherkoff, proceedings in which the appellant was not a party and consequently not bound by the findings and orders entered therein. All of these documents were offered and admitted for the purpose of establishing the relationship of Helena Kosherkoff and her son Labro to the decedent and their dependency upon him when he died. Without them the record is devoid of proof on those essential facts.
We are not unmindful that our courts have held that the Industrial Board, being an administrative body, is not bound by the strict rules pertaining to the admissibility of 2-4. evidence in courts of law. Patton Park, Inc. v. Anderson (1944), 222 Ind. 448, 53 N.E.2d 771, 54 N.E.2d 277; Shelby Manufacturing Co., Inc. v. Harris (1943), 112 Ind. App. 627, 44 N.E.2d 315; General, etc., Tank Car Corp. v. Weirick (1921), 77 Ind. App. 242, 133 N.E. 391. Liberality in such matters, which has for its purpose the ready arrival at the truth, cannot be indulged to the extent that a perversion of the truth is made easy. The informality, countenanced by the law, in the conduct of administrative board hearings does not contemplate a complete breakdown of the safeguards afforded litigants by a reasonably ordered procedure. In the present matter the appellant was confronted by a series of affidavits made by persons in a foreign land. They were made without notice and by their use the appellant was deprived of the fundamental right of cross-examination and left helpless to refute their contents. While we do not take judicial notice of the rules of the Industrial Board, the appellant's brief contains the unchallenged statement that they provide for the taking of depositions. We accept the statement with the observation that the board, by the adoption of the rule, recognized the impropriety of affidavits as an instrumentality of proof in contested matters.
Even though we accepted these affidavits as competent proof there is still no evidence in the record that Stoyan T. Kosherkoff was ever in the employ of the appellant. The 5. only evidence on the subject is a stipulation of the parties concerning the employment, injury and death of one Stoyan Kershes but nowhere does the evidence identify him and Stoyan T. Kosherkoff as being one and the same person.
In Heflin v. Red Front Cash Carry Stores, Inc. (1948), 225 Ind. 517, 75 N.E.2d 662, the Supreme Court said that upon the reversal of an award the cause should be remanded to 6. the Industrial Board which thereupon has the "right to proceed with the same in a manner not inconsistent with the views expressed herein." This pronouncement seems broad enough to authorize the board, in the present case, to rehear the entire matter as it sees fit.
Award reversed and cause remanded.
NOTE. — Reported in 88 N.E.2d 692.