66 Ind. App. 261 | Ind. Ct. App. | 1917
Appellant is a corporation organized and existing under and by virtue of the laws of the State of Indiana, and is engaged in the business of conducting a show.' Appellee is a resident of the city of Indianapolis, said state, and at the time of the action hereinafter referred to he was nineteen years of age. On July 31, 1916, appellee was employed by appellant, his work to be that of a hostler. The con-j tract of employment was made at Indianapolis, and! at the time of making the contract both parties were, and ever since have béen, inhabitants of said state. The show proceeded westwardly, and appellee accompanied it as such employe. On August 7, 1916, the show was in Joliet, Illinois. Appellee began work at five o’clock on the morning of that day and remained on duty continuously until injured as hereinafter stated. About eight p. m. he was driving a team and was engaged in hauling equipment from the show ground to the railroad and in loading cars. He continued in this work until about an hour after midnight, when he temporarily left his team in care of a fellow workman and “went to the sleeping car to go to the toilet and get a drink of water.” The sleeping car was standing on a track a short distance from where he left his team. There were a number of tracks there and a switch engine was engaged in
On October 20, 1916, appellee filed with the Industrial Board his petition for an award, and a hearing was held before the Hon. Samuel E. Artman, a member of said board. Appellant filed special answers and made a defense on the merits. A finding and an award were made by said member. Appellant procured a review and thereupon the full board found, among other things, that appellee’s injury resulted from an accident arising out of and in the course of his employment, and awarded him compensation. Under the provisions of §§ 43 and 44 Workmen’s Compensation Act, Acts 1915 p. 392, the board ordered the commuted value of the award to be paid in a lump sum to a trustee to be appointed by the circuit or superior court of Marion county, Indiana.
The only error assigned .which this court can' recognize is that the award is contrary to law. By the most liberal construction of appellant’s brief it may be said that two propositions are presented in support of said assignment: (1) The evidence does not warrant the finding that the injury by accident arose out of and in the course of the employment; and (2) the evidence shows that appellee received his injury outside the State of Indiana.
“Sec. 2. From and after the taking effect of this act, every employer and every employe, except as herein stated, shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation, for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby; unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.
“Sec. 4. Every contract of service between any employer and employe Covered by this act, written or implied, now in operation or made or implied prior to the taking effect of this act, sháll, after the
“A like presumption shall exist equally in the case of all minors unless notice of the same character be given-by or to the parent or guardian of the minor.
“Sec. 6. The rights and remedies herein granted to an employe subject to this act on account of personal injury or death by accident shall exclude all other rights and remedies of such employe, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury or death.
“Sec. 20. Every employer and employe under this act, except as provided in section 19, shall be bound by the provisions of the act whether injury by accident or death resulting from such injury occurs within the state or in some other state or in a foreign country.”
Appellant contends, however, that said §20 is overcome by the following sections which, it claims, evidence an intention that the act, supra, shall not apply
The award of the Industrial Board is affirmed, and by virtue of the statute (Acts 1917 p. 154) the award is increased five per cent.
Note. — Reported in 117 N. E. 531. Workmen’s compensation: accidents deemed to arise out of and in the course of the employment, see note ante' 261; right to and effect of election with respect to acceptance of provisions of act, Ann. Cas. 1915C 308, 191SB 715; applicability of act to injury received in another jurisdiction, Ann. Oas. 1914D 377, 1916B 162, 191SB 625.