Appellants contend that the evidence fails He also mentioned the subject to some of to show that the deeds in controversy were his children. made "in contemplation of death," or that they were "intended to take effect in possession or enjoyment at or after such death," and that by the use of "and" in joining the two phrases, above quoted, the Legislature has required proof of both before property so transferred can be subjected to payment of the inheritance tax; also that the reservation in the deeds of possession and control of the land conveyed for a definite period, to March 1, 1916, considered in connection with the other undisputed facts of the case, show conclusively that the conveyances were not intended to take effect in possession or enjoyment at or after the death of the grantor, and that they were made without any reference whatever to such death.

It is agreed by the parties that the evidence shows that the decedent was 79 years of age when he made the conveyances in controversy, and that he died on December 27, 1915, 1 year and 5 days after the execution of the deeds to his several children; that the consideration named in the deeds did not pass, but was made a basis for computing the war tax; that prior to his last illness decedent had never had any severe sickness, had never consulted a physician except for rheumatism, and had been a strong rugged man; that he was in good health both prior and subsequent to the execution of the deeds on December 22, 1914, except he suffered from rheumatism; that his last illness was of three or four days' duration, and he died of double pneumonia, when 80 years of age. The evidence also shows that for many years decedent was a prosperous farmer and stockman; that he looked after his several farms and kept and cared for several head of live stock, personally, on his home place; that he cared for such live stock until a few days before his death; that at times he was considerably crippled by rheumatism and took treatments for it from a physician; that on two or three different occasions during the summer of 1914, the decedent talked to his son-in-law, Wilbur Armstrong, about deeding his land to his children, and in substance said he had more than he could handle and he would make his children share part of the load; that his children were all working hard and he was in a position to help them get ahead.

The evidence also shows that all of the decedent's children were adults, prosperous and self-sustaining; that on Sunday before the deeds were executed all the children except Mrs. Armstrong, who was sick, met at the home of their father and talked over the subject of dividing up the land; that he asked the opinion of each child, talked over the part that should go to each, said he wanted to divide up his property with his children if satisfactory arrangements could be made, and they said they would be satisfied with the division he would make; that in making the division he took into account some indebtedness due him from one of his sons-in-law; that decedent had control of the lands so conveyed to the time of his death.

There was also evidence tending to show that he had some knowledge of the inheritance tax law when he executed the deeds to his children.

[2] The trial court inferred from the facts and circumstances of the case shown by the evidence that the conveyances under discussion were made in contemplation of the death of the grantor. While there is no direct evidence warranting such inference, when the age, condition of health, statements, conduct, and surroundings of the decedent are considered in connection with the conveyances made by him, it appears that the trial court may reasonably have drawn such inference, though it may be said that other and contrary inferences may with equal, or greater, certainty be draw from the facts and circumstances shown by the evidence.

The further question arises as to wheth

er the evidence is sufficient to sustain the inference that the transfer was "intended to take effect in possession or enjoyment at or after" the death of the grantor.

The grantor was in his usual health when he made the conveyances, and he set a definite date when the grantees should come into possession and enjoyment of the property conveyed by him.

If the facts and circumstances shown by the evidence, in connection with the conveyances and the reservation of full possession by the grantor to the date named in the deeds, reasonably authorize the inference The evidence also shows that he talked to that in fixing such date the grantor contemC. M. Ware, his physician, when getting med-plated that his death would occur on or beicine, and in substance said he had to start at 3 o'clock in the morning and work till night to get all his work done; that he thought he would divide his land up with his children and stop some of the work he was doing; that at another time in 1914 he said he had been thinking about the matter they had talked about in the spring, and he then said, "I think I will make a deed to the children and let them have the responsibility."

fore the date so named in such reservation, it would follow that the transfers were made to take effect at or after the death of the grantor within the meaning of the statute.

But if the word "and," in the concluding part of clause 4, supra, may be read as "or," then the finding that the transfers were intended to take effect in possession or enjoyment at or after the death of the grantor becomes unimportant, and the decision may

rest upon the finding that the transfers were | tate of Gordon, 186 N. Y. 471, 79 N. E. 722, made in contemplation of death.

Section 1: "That a tax shall be imposed upon any transfer of property, real, personal or mixed: * [Clause 4] When the transfer is of tangible property within the state, made by a resident * * by deed in contemplation of the death of the grantor * * * and intended to take effect in posses-will, by the laws of inheritance, and by such sion or enjoyment at or after such death. [Clause 5] When any such person * * be comes beneficially entitled, in possession or expectancy, to any property or the income thereof, by any such transfer, whether made before or after the passage of this act."

But an examination of all the provisions | equitable results. of the several statutes above mentioned in- [11] Where two constructions are possible, duces the belief that the use of the word "and" in clause 4, § 1, of the Indiana act, was the result of a clerical error or a mere oversight, because of the ambiguity and inconsistency it brings into the act, which would have been avoided by using the word "or," as employed in the acts from which our statute was taken.

transfers were intended to take effect at or Board awarding employé a sum for hospital after the death of the grantor.

There being some evidence tending to prove that the conveyances were made in contemplation of the death of the grantor, the decision is sustained by sufficient evidence. No reversible error is shown. The judgment is affirmed.

CALDWELL, C. J., and IBACH, DAUSMAN, HOTTEL, and BATMAN, JJ., concur.

and surgical expenses in addition to the compensation agreed on between parties, employer and others appeal. Reversed.

J. W. Fesler, Harvey J. Elam, and Howard S. Young, all of Indianapolis, for appellants.

HOTTEL, J. This is an appeal from an award of the Industrial Board of Indiana in which it approved a claim filed by appellee for medical and hospital expenses incurred and paid by him seven months after the ac cident which resulted in his injury. The un

JOHN A. SHUMAKER CO. et al. v. KEN- disputed facts pertinent to the question in

DREW. (No. 10317.)

volved, as disclosed by the stipulations of

(Appellate Court of Indiana, Division No. 1. the parties and the findings of the board, Nov. 20, 1918.)

385(16)

1. MASTER AND SERVANT
WORKMEN'S COMPENSATION-MEDICAL AND
HOSPITAL EXPENSES CONSTRUCTION OF
STATUTE.

Where injured employé was furnished physician during week following accident, but after apparent recovery and some months after accident required further medical attention because of tumor, resulting from injury, employer was not required to reimburse employé for surgical and hospital expenses in treatment of tumor; such expenses not having been contracted during the 30 days immediately following injury, under Workmen's Compensation Act, § 25, requiring employer to pay such expenses during "first thirty days," and such statute not contemplating full 30 days of treatment intermittent in character but only such treatment as is required during the first successive 30 days.

are as follows: On August 31, 1916, appellée was in the employ of appellant Shumaker Company and, on that day, received a personal injury by an accident "arising out of and in the course of his employment, which at the time consisted apparently of a surface bruise of the left leg below the knee." As a result of said injury, appellee was disabled for work for a period of one week and was. at the time, provided with a physician furnished by appellants. This physician attended appellee on August 31, 1916, and on September 2, 1916, and on said occasions treated the surface bruise on appellee's left leg. which was then the only injury susceptible of diagnosis. This treatment was of a character such as the apparent injury required and was all that said injury appeared to require. The physician was paid in full by the employer. Afterwards, as a result of the

2. MASTER AND SERVANT 385(16)-WORKMEN'S COMPENSATION ACT-MEDICAL EXPENSES "INJURY." Workmen's Compensation Act, § 25, mak-injury sustained on August 31, 1916, a tumor ing employer liable for injured employe's medical and hospital expenses during the 30 days after "injury," construed so that the 30-day period commences with actual disability of employé and not with accident, so that, if disability is not concurrent with accident, the period does not start running until medical attention becomes necessary.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Injury.]

3. STATUTES

.POSE.

184-CONSTRUCTION-PUR

In construing an act, its general purpose and scope should not be overlooked. 4. MASTER AND SERVANT 385(16)-WORKMEN'S COMPENSATION-MEDICAL EXPENSES.

Where medical attention was given, em

ployer was not liable for hospital and medical expenses not contracted during the following 30 days, the injury under Workmen's Compensation Act, § 25, having taken place at such time, though, after expiration of the 30 days and after having apparently recovered, a tumor developed in employé's leg as a result of injury.

Appeal from Industrial Board.

Proceedings under Workmen's Compensation Act by John Kendrew against the John A. Shumaker Company, employer, and others. From an independent order of the Industrial

or bursa developed in the deeper structures of appellee's left leg, which became "so pronounced that it was diagnosed as such on the 28th day of March, 1917." Appellee then informed the foreman under whom he worked of the condition of his leg, but appellants did not furnish him with the necessary surgical or hospital supplies and services required for the treatment of his injury as then diagnosed. Appellee thereupon provided the proper treatment at an expense to himself of $35 for surgical services and $65 for hospital charges, no part of which has been repaid to him by appellants. The parties agreed to a compensation allowance of

$12.90 a week, beginning on April 11, 1917, and continuing during total disability not to exceed 500 weeks, and it is from an independent order of the Industrial Board, allowing appellee the further sum of $90 for hospital and surgical expenses, that this appeal is prosecuted.

It is contended by appellants that on the expiration of 30 days from August 31, 1916, their liability to furnish an attending physician and to provide hospital service ceased; and that this is so notwithstanding the ad

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

mitted facts showing that, after the slight injury which was discovered and treated at the time of and immediately following the accident, there later developed as a direct result thereof a more serious condition which was not susceptible of diagnosis and treatment during the period of the first attendance of the physician, Appellants rely on and cite the following cases in support of their contention: In re Henderson, 116 N. E. 315; Born & Co. v. Durr, 116 N. E. 428; Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N. W. 767; McMullen v. Gavette Const. Co., 200 Mich. 203, 166 N. W. 1019; In re Carroll, 225 Mass. 203, 114 N. E. 285.

In this connection, the case of In re McCaskey, 117 N. E. 268, is referred to by appellant, and, although it is not contended that said case is controlling in the present instance, the suggestion is made that an erroneous rule or principle is announced therein and should be modified in this opinion, which involves the same principle. The contention is that in the McCaskey Case this court erroneously held that under the Workmen's Compensation Act an "injury" occurs only at the time of disability, whereas, in fact, a proper interpretation of said act makes the injury concurrent in point of time with the "accident" which causes it and that any peWe deem it unnecessary to enter into a riod of time which runs from the date of the lengthy discussion of the question here pre-injury must necessarily run from the date sented or of the cases cited by appellants of the accident which causes that injury. in support of their contention, since we are of the opinion that their position is sustained by the language of the Workmen's Compensation Act. Section 25 of that act provides that

"During the thirty days after an injury the employer shall furnish or cause to be furnished free of charge to the injured employé, * * * an attending physician; * * and in addition such surgical and hospital service and supplies as may be deemed necessary by said attending physician, or the Industrial Board."

It is further provided in the same section that

"If in an emergency [or] on account of the employer's failure to provide the medical care for the first thirty days, as herein specified, or for other good reason, a physician other than that provided by the employer is called to treat the injured employé during the first thirty days, the reasonable cost of such service shall be paid by the employer subject to the approval of the Industrial Board." Acts 1915, p. 398. (Our Italics.)

[1] It will be observed that this act does not provide for or require such emergency or other treatment by a physician, as the development of an injury may from time to time make necessary; nor does it require or contemplate full 30 days' treatment, intermittent in character and given at such times as the progressive development of an injury may require. On the contrary, the act specifically limits the liability for medical treatment to a period covered by the first 30 days after the injury. We find nothing in the act under consideration, or in the authorities construing that act or similar acts in other jurisdictions, which can be said to warrant a holding that, in order to cover the different phases of a progressive injury, the period of medical treatment at the expense of the employer may be divided into parts, some of which may reach into a period beyond the first 30 days following the injury. This court has given to the section under consideration an interpretation which, impliedly if not expressly, holds to the contrary. In re Henderson, supra; Born & Co. v. Durr, supra.

Appellants' statement of the holding in the McCaskey Case is rather broad, but we recognize that there is authority which tends to support their contention as to a proper interpretation of the Compensation Act. Duf fy v. Town of Brookline, 226 Mass. 131, 115 N. E. 248; In re Carroll, 225 Mass. 203, 114 N. E. 285; McMullen v. Gavette Const. Co., 200 Mich. 203, 166 N. W. 1019; Cooke v. Hol. land Furnace Co., 200 Mich. 192, 166 N. W. 1017; Smith v. Solvay Process Co., 100 Kan. 40, 163 Pac. 645.

In the McCaskey Case, we directed attention to the fact that, in fixing the period during which the employer should furnish medical service for an injured employé, the Legislature has designated the 30 days following the injury, rather than the 30 days following the accident, and we there said, at page 269 of the opinion:

"The language of the statute, and justice and reason alike, authorize the conclusion that the services of an attending physician for which compensation was intended was a service to be rendered after there was an actual known physical injury; and hence where, as in this case, the undisputed facts show an accident to an employé in the presence of his employer, the immediate effects of which are not such as to indicate to either employer, or employé, any disability within the meaning of the act in question or any injury requiring the services of attending physician as provided in said act, and such physician is, at the time, neither asked for or called by the employé, nor furnished by the employer, and it turns out later that the injury resulting from such accident is more serious than was at first thought, and is employé, within the meaning of the statute here in fact such as results in a disability of the involved, the 30-day period during which the employer must, under said section 25, supra, of this act, furnish an attending physician, bewithin the meaning of the act in question degins to run when the disability to the employé velops from such injury."

[2-4] The effect of this holding is to say that the word "injury," as used in section 25, means an injury which results in a disability contemplated by the Compensation Act, and that so long as such injury is one which both the employer and the employé regard and treat as not requiring the services of a