Opinion
No. 16,597.
Filed October 14, 1940.
1. WORKMEN'S COMPENSATION — Independent Contractors — Determination of Status — Question of Fact. — Questions as to whether compensation claimant was an independent contractor, and whether the disability was one from which he has suffered from childhood, were questions of fact for the Industrial Board to determine. p. 356.
2. APPEAL — Briefs — Evidence — Condensed Recital Not Given — Effect. — Where appellant's contentions could be determined only from the evidence, and appellant's brief did not contain a condensed recital thereof, as required by Rule 18, Clause 5, no question was presented for review. p. 356.
3. APPEAL — Determination — Record Not Searched to Find Cause for Reversal. — The Appellate Court will not search the record to find cause for reversal. p. 356.
From the Industrial Board of Indiana.
Proceedings under the Workmen's Compensation Act by Bruce Nelson, claimant, against the Kosciusko Produce Corporation, employer. From an award granting compensation, the employer appealed.
Affirmed. By the court in banc.
Fitzgerald Duggan, of Mentone, for appellant.
Koontz Widaman of Warsaw, for appellee.
This appeal is from an award in favor of appellee and against appellant, made by the Full Industrial Board of Indiana, after hearing an application for review of an award made by one member of the board.
The errors assigned are that the award is contrary to law, and "is not supported by sufficient evidence." The first error is sufficient to present the questions sought to be reviewed.
Neither the finding of facts upon which the award is based, nor its substance, nor the award is set forth in appellant's brief. The brief, however, discloses that appellee was awarded compensation at the rate of $8.80 per week, beginning January 17, 1939, during the period of his total disability, not exceeding the period fixed by law.
The brief of appellant does not contain any condensed recital of the evidence, nor what purports to be such. It is true that under the first heading therein, "Statement of the Case," 1. the contention is made that all of the plaintiff's evidence, as well as that of other witnesses, "indicate he (appellee) was an independent contractor," and further that "it is evident that the disability is one from which the plaintiff has suffered since childhood," but, as heretofore stated, appellant has wholly failed to support either contention by bringing to the attention of this court, through the medium of its brief, any condensed recital of the evidence showing that either contention is well taken. Each presents a question of fact for the Industrial Board to determine.
Clause 5, Rule 18 of the Rules of the Supreme and Appellate Courts of this state, effective from and after July 1, 1937, and applicable here, provides, among other things, that the 2, 3. brief of the appellant, if the insufficiency of the evidence to sustain the verdict or finding in fact or law is assigned, shall contain a condensed recital of the evidence in narrative form, so as to present the substance clearly and concisely. No such recital appears. We cannot tell from an examination of said brief whether one or more witnesses testified, nor the substance of the evidence given by any witness who did so. Whether either of appellant's contentions is tenable must be determined from the evidence which is not before us, and no question is therefore presented for review. That this court will not search the record to find cause for reversal has so often been held that no citation of authorities to this effect is deemed necessary.
No reversible error being shown, the award is affirmed, and increased 5 per cent as required by statute.
NOTE. — Reported in 29 N.E.2d 322.