(133 N.E.) such train which appellant proposed should to enter the train, pushed off the platform be run for the joint accommodation of appel- and killed. It was held that the relationship lant and the men employed at the mine, the of master and servant existed at the time of contracting miner agreed to pay $1 per the accident, and that the widow as a demonth toward the expense of running the pendent was entitled to recover. train, the same to be retained by appellant. In Davies v. Rhymney Iron Co., 2 B. W. C. A certificate was furnished to each miner C. 22, a colliery company provided a train on who executed this agreement, giving him the their railway to take the workmen from the right to ride upon such train between the city colliery to their homes. A collier on reaching of Bicknell and appellant's mine. The dis- the point nearest his home, three-quarters of tance from the city to the mine was about a mile from the colliery, met with an accifour miles. It appears that the Commercial dent. It was held that the accident arose Club of the city of Bicknell in the early his-out of and in the course of the employment. tory of the operation of the train, paid the In Mole v. Wadsworth, 6 B. W. C. C. 129, deficit which appellant had obligated itself a workman, whose only method of getting to to pay, but later such deficit was paid by appellant. Later, the railroad company required a guaranty of $500 per month, but there was no new contract written. At the time of the injury of the decedent the miners were each paying $1.25 per month to ride on the train. The train was operated under the In Walton v. Tredegar Iron & Coal Co., 6 direction of the railroad and by its em- B. W. C. C. 592, a collier, living six miles ployees. Appellant claimed no control over from the pit where he worked, traveled free the deceased before 7 o'clock in the morning of charge to and from his work on a train or after 3 o'clock in the afternoon, and it provided by a railway company at the inwas optional with him as to whether or not stance of the employers. By an agreement he rode on the train. He was not in any the collier indemnified the employers against manner limited by appellant as to how he loss from accident on the journey, and agreed should come to his work and how he should to desist from exercising the privilege of return home therefrom. All of the employees traveling by the train whenever his employdid not ride on the train, some of them ers required him to do so. In getting into walked and some came in automobiles. On this train for the journey home the collier the afternoon of May 4, 1920, as the train was crossing Main street in the city of Bicknell, the deceased while riding thereon in going home from his work, and in attempting to alight, was injured, and died as a result of such injuries. Appellant contends that an injury under such circumstances as these did not arise in and from work was by means of a boat supplied by his employer, was drowned by fall. ing from the boat as he was returning at the usual hour. It was held that the accident arose out of and in the course of the employment. was killed by an accident. It was held that the accident arose out of and in the course of the employment. In Richardson v. Morris, 7 B. W. C. C. 130, a laborer was engaged on a farm on an island about a mile from the mainland. He lived there, in the farmhouse, and was paid but his wife remained with her parents on a yearly wage. He was recently married, the due course of and out of the employment of the deceased. The question here presented has not been decided by this court, but the mainland. One Sunday he wished to vissimilar questions have been given judicial it his wife, and his master ferried him over consideration in other jurisdictions, both in his (the master's) boat. It was a rough American and English, in construing like pro-day, and in attempting to land the man visions of the Workmen's Compensation Act. Laws 1915, c. 106. slipped, injured himself internally, and died soon afterwards. It was held that the accident arose out of and in the course of his employment. In Dominguez v. Pendoia (Cal.) 188 Pac. 1025, it was held that where an employee was killed by being thrown from an automobile furnished by the master to transport the arose out of and in course of his employment within the Workmen's Compensation Act. In Cremins v. Guest, 1 B. W. C. C. 160, a mining company by agreement with the Great Western Railway Company and the Rhymney Railway Company ran a train on their line each morning and evening for the accommodation of their own workmen. The train ran between Dowlais and Bedlinog, employees to the place of work his injuries close to which place the mine was situated, and it was an implied term of the contract of service between the workmen and the employers that the train should be provided by the employers, and that the workmen should be entitled to travel by it to and from their work without charge. There was no obligation to use the train. A workman at the Bedlinog station, who intended to travel home by the train, was, during a rush of workmen In Littler v. Fuller Co., 233 N. Y. 369, 119 N. E. 554, it was held that, where an employer, on demand of employees for free transportation from the railway station to the place of building a house hired a truck to carry them to and from work, an employee, injured while on such truck on the way to the station, was injured within the scope of the em ployment under the Workmen's Compensation crew had been relieved from service under Law. the Hours of Service Act (U. S. Comp. St. § 8678), but had obtained permission from the train dispatcher to ride into a terminal on the first train going in that direction, and where under the rules of the company the employees were paid while deadheading into the terminal, the employees, though not on duty within the Hours of Service Act while In Re Donovan, 217 Mass. 76, 104 N. E. 431, Ann. Cas. 1915C, 778, it was held that where a servant was injured while riding to his place of work in a wagon which was furnished by the master incidental to the employment and is a part of the contract of employment the injury arose out of and in the course of his employment under the Work-deadheading into the terminal, were in the men's Compensation Act. employ of the railroad at such time within the Workmen's Compensation Act. In Swanson v. Lathan & Crane, 92 Conn. 87, 101 Atl. 492, it was held that a workman In Central Construction Co. v. Harrison, whose contract required his employer to pay 137 Md. 256, 112 Atl. 627, it was held that, the expense of his transportation to and from where an employer agreed to furnish emhis home while engaged in work out of town, ployees free transportation to and from work, was killed at a railroad crossing while going and arranged with railroad for such transhome after his day's work in an automobile portation, and where employees were at first owned and driven by a fellow workman, transported by regular train, but later, bewhich had been engaged by the employer for cause of increasing numbers, by special work the purpose, that the accident arose out of trains, and where by subsequent agreement and in the course of the decedent's employ- the payment for transportation of such emment within the meaning of that expression ployees was made direct to the railroad by in the Workmen's Compensation Act, and the United States government, for which that the master was liable not only for the the work was being done, an employee, who death of this particular workman, but also for that of the owner and driver of the car who was killed at the same time. was directed to board the wrong train, and, on discovery of mistake was injured by boarding the following regular train which would carry him to his work was injured by an accident which arose out of and in the course of his employment within the Workmen's Compensation Act. In Scalia v. American, etc., Co., 93 Conn. 82, 105 Atl. 346, it was held that the injury and death to tobacco plantation workers fter they had entered into a contract of employment and while being driven to the place [1] From the foregoing authorities the genof work in an automobile furnished by the eral rule seems to be that where the conveyemployer pursuant to the employment con-ance for the employees has been provided by tract, arose in the course of and out of their the employer, after the real beginning of the employment. employment, whether such conveyance be his In Fisher v. Tidewater Bldg. Co. (N. J. own or is one used for his benefit by virtue Sup.) 114 Atl. 150, it was held that, where a of a contract with another, the same being workman was killed some distance from the in compliance with one of the implied or explace of his employment, while boarding a press terms of the contract of employment, train on which the employer furnished free for the mere use of the employees, and is transportation from the place of employment one which the employees are required, or as to the workman's home, the accident caus- a matter of right are permitted, to use by ing death was one which arose out of and in virtue of their contract of employment, the the course of his employment within the employer is liable. In the instant case it is Workmen's Compensation Act, so that his undisputed that the train which was carrywidow was entitled to an award. ing appellant's miners, including the decedIn Western Indemnity Co. v. Leonard (Tex.ent, to and from their place of work was beCiv. App.) 231 S. W. 1101, it was held that, ing operated under a contract between appelwhere a shipbuilding company operated un- lant and the railroad company, and that the der a contract with the federal government, consideration for such operation was paid on a cost plus profit basis and the company's by appellant. We attach no importance to expenses in furnishing railway transporta- the fact that the employee had agreed to tion to its employees were part of the costs, pay, and was paying at the time of the inand an employee, after leaving the train at jury, $1.25 per month for the privilege of usthe place of work and while he was on the ing the train, such sum being retained by aprailroad right of way, started to return to the pellant from the employee's wages. This train on seeing a signal that there would be was but an incident of his employment. It no work that day, and was injured in jump-also appears that the train was being used ing across a ditch between him and the train, for the exclusive purpose of carrying appelthe injury occurred in the course of the em- lant's employees, including the decedent, to ployment, within the Workmen's Compensa- and from the place of work. We follow the tion Act. principle above set out, and hold that the decedent's injuries arose in due course and out of his employment. In Payne v. Industrial Comm., 296 Ill. 223, 129 N. E. 830, it was held that where a train (133 N.E.) [2] Appellant cites the case of Vandalia | therefor, it was proper to instruct the jury to R. R. Co. v. Stevens, 67 Ind. App. 238, 114 return a verdict in his favor. N. E. 1001, as a case upon which it relies for the purpose of showing that the railroad company was not a private carrier by virtue of its contract with the mining company, but that it was a common carrier, and as such could not avoid its liability. We need not discuss that case further than to say that the action was at common law for injuries sustained because of the negligence of appellant, and the statements in such opinion are made with reference to the relation of appellee as a passenger to the appellant as a common carrier, the court not primarily considering the relation of the appellee and the mining company at the time of his injury. The question there involved was not the same as in this case. That, notwithstanding the relation of the appellee in that case to the railroad company as one of its passengers as determined by the opinion, he might have elected his remedy against the mining company, instead of against the railroad company, is well established; and the fact, if such it is, that in this case appellees might have their remedy against the railroad company did not preclude them from their remedy, under the Workmen's Compensation Act, against the mining company, appellant here in. The award is affirmed. BAKER v. BREWER'S ESTATE. (Appellate Court of Indiana. Dec. 21, 1921.) An agent claiming a commission on the theory of having done all things required under a contract to sell land must prove an actual sale and transfer of the lands described or that he procured a purchaser ready, willing and able to purchase on the terms stated, and the owner refused to sell, or that by and through his procurement a third party entered into a valid executory contract with the owner for purchase of the land. 2. Brokers 64 (2)-Vendor held not liable under contract for a commission where purchaser did not sell his own farm, and so did not carry out contract. Where a contract of sale of land procured by an agent for vendor provided for forfeiture at the option of vendor on purchaser's default, and that if purchaser did not sell his own farm the contract was void, and the purchaser did not do so, and did not carry out his contract with vendor, the latter is not liable to his agent for a commission for selling his land; and, when this was apparent in an action Appeal from Circuit Court, Sullivan County; Wm. H. Bridwell, Judge. Action by S. M. Baker against the Estate of Orlando C. Brewer, deceased, Louisa Brewer, executrix. From a judgment for defendant, plaintiff appealed. Affirmed. Valmore Parker, of Robinson, Ill., and Lindley & Bedwell, of Sullivan, for appellant. Chas. D. Hunt and Arthur E. De Baun, both of Sullivan, for appellee. ENLOE, J. Appellant filed his verified claim against the estate of Orlando C. Brewer, deceased, which estate was then pending in the Sullivan circuit court, to recover $4,400, as commission for effecting the sale of certain real estate. The claim was based upon two written commission contracts, each of which provided that said Brewer agreed "to accept $135 per acre for said property and to pay a commission of $10 per acre." After the commission contracts were entered into, appellant caused a written contract to be entered into for the sale of real estate between said Brewer and one Vanwey. The description of the real estate owned by said Brewer and involved in this latter contract of sale was 300 acres in township 9, range 10, section 9; also 140 acres in township 9, range 10, section 10, all in Sullivan county, Ind. There was a provision in the contract to the effect that, in case of failure of Vanwey to make either of the payments or perform any of the covenants on his part thereby made and entered into, the contract should, at the option of Brewer, be forfeited and determined; also a further provision that if said Vanwey could not sell his 126 acres where he then lived, the contract was null and void. Vanwey did not sell his said farm, and did not carry out the contract with Brewer. Because of procuring this contract, appellant claimed that his commission was due, and this action resulted. The case was submitted to a jury, and at the close of appellant's evidence, appellee filed a motion, requesting the court to instruct the jury to return a verdict for appellee. Thereupon appellant filed a motion, requesting the court to instruct the jury to return a verdict for appellant, assessing his damages at $4,400. Appellant's motion was overruled, and appellee's motion was sustained, the jury was instructed accordingly, and returned a verdict for appellee. After appellant's motion for a new trial was overruled, judgment was rendered for appellee, and this appeal followed. [1, 2] The substantial question presented by the motion for a new trial is as to whether the court erred in giving the jury a per For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes It emptory instruction to return a verdict for appellee. The claim was for a commission earned under the contract entered into between the appellant and said deceased. proceeded upon the theory that appellant had done all things by him to be done under said contract. This could be satisfied by: (a) Proof of an actual sale and transfer of the lands described; or (b) by proof that the appellant had procured a purchaser who was ready, willing, and able to purchase said lands upon the terms stated, and that deceased had refused to self; or (c) by proof that by and through the procurement of appellant a third party had entered into a valid executory contract with the deceased for the purchase of said land. A careful reading of this record fails to disclose any evidence which will satisfy either of said conditions. The court did not err in giving said instruction, and the judgment is therefore affirmed. NICHOLS, J., not participating. PIONEER COAL CO. v. HARDESTY et al. (No. 11247.) 5. Master and servant 405(1)-Industrial Board's finding sustained, if facts proven with reasonable inferences will sustain it. In proceedings under Workmen's Compensation Act, a finding of the Industrial Board must be sustained if the facts proven, taken which may be drawn therefrom, will sustain it. in connection with the reasonable inferences 6. Evidence 54-Inference not drawn, where sufficient facts are wanting or from proven facts inconsistent with other well-established facts. sufficient facts are wanting, or from facts proven which are inconsistent with or repelled by other facts equally well established. An inference should not be drawn where Appeal from Industrial Board. Proceedings under Workmen's Compensation Act (Laws 1915, c. 106) by Erma Hardesty and others for compensation for death of Asa Hardesty, the husband and father of the claimants, opposed by the Pioneer Coal Company, employer. Award for claimants, and employer appeals. Reversed. Elmer E. Stevenson, of Indianapolis, for appellant. E. E. Perry and J. M. Haley, both of Ft. Wayne, for appellees. BATMAN, P. J. This appeal involves an (Appellate Court of Indiana, Division No. 1. award of compensation in favor of appellees Dec. 21, 1921.) 403-Compensation 1. Master and servant In proceedings under the Workmen's Compensation Act, the burden of establishing each fact necessary to a legal award of compensation, rests upon the applicants. Appellant challenges the sufficiency of the evidence to sustain the finding that Asa Hardesty, the husband of Erma Hardesty and the father of the remaining appellees, received personal injuries from an accident, arising out of his employment by appellant, from which he died. The undisputed evidence establishes the following facts. On January 7, 2. Master and servant 405(1)—Compensa- 1921, and for a week prior thereto, Asa Hartion award cannot be based on mere conjec- desty was in the employ of appellant as a ture. night watchman at its coalyard, which covIn proceedings under Workmen's Compen-ered a considerable area. There was an ofsation Act, facts necessary to a legal award fice building on the yard, and coal, sewer of compensation must be based on something more than mere guess, conjecture, surmise, or pipe, horse feed, etc., were stored at various places thereon. Near the center of the yard, and about 200 feet from the office building, a small one-story shanty, containing possibility. 3. Master and servant 405 (4)-Compen-was sable injury provable by circumstantial evi- two rooms, which was used by the night dence. In proceeding under Workmen's Compensation Act for death of employee, the fact that employee's death was caused by an accident arising out of his employment may be established by circumstantial evidence. 4. Master and servant 405 (4)-Finding of compensable injury to watchman killed by assailant held unwarranted. watchman as a place of shelter and to warm himself. None of the coal was close to the shanty, as it was piled near the outside of the yard, some of it being as much as 400 or 500 feet therefrom. The front room contained a stove and some benches and chairs, and the rear room was used for keeping repairs for harness. Hardesty was the only person whose duty required him to be at the In proceedings under Workmen's Compen-yard during the night. He was required to sation Act for death of a night watchman feed the horses kept on the premises early in wounded by an unknown assailant while on duty, evidence held insufficient to sustain a the morning, in order to have them ready finding that he was injured in an accident for use when the other employees came to arising out of his employment. work. On the morning of the day named, one For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (133 N.E.) be found. To these circumstances may be added those which point to a motive for the assault, in no way connected with the services he was performing for appellant. In view of these facts, and the rule stated above, we are forced to the conclusion that there is no substantial evidence to sustain the finding under consideration. of said employees came to the yard early, | further supported by the fact that no eviand, not seeing Hardesty, looked about to dence of any theft, or attempted theft, could find him. He entered the shanty and found him in the rear room, unconscious, but still alive. He had been seriously injured by being struck on the head, and was covered with dirt and blood. He had evidently been struck with a piece of a single-tree, which was found in the shanty with blood on it. This weapon did not belong there, but had been brought in from the outside. The stove was partly tipped over, its pipe was down, the benches were upset, the harness was pulled from the wall, blood was spattered on various objects, giving evidence of a fierce struggle. Hardesty was removed to a hospital, where he died two days later, without regaining consciousness. [1-4] In determining the question presented by this appeal we must bear in mind that the burden of establishing each fact necessary to a legal award of compensation rests on the applicants. Haskell, etc., Car Co. v. Brown (1917) 67 Ind. App. 178, 117 N. E. 555; Hege & Co. v. Tompkins (1918) 69 Ind. App. 273, 121 N. E. 677. Also that such facts must be based on something more than mere guess, conjecture, surmise, or possibility. Swing v. Kokomo, etc., Co., 125 N. E. 471; St. Louis, etc., Co. v. Ind. Comm., 298 Ill. 272, 131 N. E. 617. In the instant case there is no evidence from any witness as to who inflicted the fatal injuries on the decedent, or why they were inflicted. No one testified that he was assaulted because he was the watchman on duty, or that he was injured in the defense of his employer's property, or by reason of any other fact connected with the service [5, 6] In reaching this conclusion we have not been unmindful of the rule that a finding of the Industrial Board must be sustained if the facts proven, taken in connection with the reasonable inferences which may be drawn therefrom, will sustain the same. This rule, however, cannot be applied arbitrarily, but judgment must be exercised in so doing, in accordance with correct and common modes of reasoning. As said by this court in a recent decision: "An inference should not be drawn where sufficient facts are wanting, or from facts proven, which are inconsistent with, or repelled by, other facts equally well established. An inference cannot be said to be reasonable which can only be drawn by a capricious disregard of apparent truthful testimony that is in itself probable, and is not at variance with other proved or admitted facts." Russell v. Scharge (1921) 130 N. E. 437. Failing to find any evidence to sustain the finding challenged, the award is reversed. (No. 11233.) Dec. 21, 1921.) Appeal and error 761-Trial 397 (6) -Failure to base error on failure to find is waiver of error; failure to find is equivalent to finding against party having burden of proof. Failure to find a fact is equivalent to a finding against the party having the burden of proving such fact; and, where there is no proposition or point addressed to the failure to find a fact, but only propositions or points addressed to the sufficiency of evidence, such failure cannot be considered. in which he was engaged. This, however, CHICAGO & E. R. Co. v. KAUFMAN et al. does not necessarily preclude a finding that the decedent received his injuries by accident | (Appellate Court of Indiana, Division No. 1. arising out of his employment, as that fact may be established by circumstantial evidence. Recognizing this, we have carefully. reviewed the evidence, and considered appellees' brief, in an effort to find some substantial circumstance which would support such finding, but our efforts have been unsuccessful. In fact the surrounding circumstances are opposed to such finding. The injury was not inflicted in the office building where appellant's safe was located, or out in the yards where the coal, feed, etc., were stored, but in a shanty where nothing of substantial value was kept. The place where the strug-2. Master and servant 367-Corporation liagle occurred does not indicate that the decedent had surprised his assailant in some felonious act. It rather indicates that his assailant had sought him out, and entered the shanty for the purpose of inflicting an injury upon him. The finding of a deadly weapon with blood upon it, which had been carried into the shanty from the outside, is strong evidence of that fact. This conclusion is his compliance with section 68. ble for compensable injury to contractor's workman. In a proceeding against a railroad company and its contractor under Workmen's Compensation Act, to recover for the death of the contractor's employee, the company was liable, though deceased was not in its employ, where it had not exacted from the contractor the certificate required by section 14, showing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |