accident. They found there a bucket of dirty water and some dirty cloths; part of the machinery incasements had been cleansed of the accumulated dust, the walls had been washed, the floor had been scrubbed and was still wet. No one witnessed the accident; but the physician and some of the officials of the company who assembled there soon after were of the opinion that the only way it could have occurred was:—

"That he was wiping this thing, and the electricity came over as it was going through these wires from the machinery, that there are up and across his head. He would be down there right along these wires that go across, and the spark must have come down and he made a circuit there some way or other."

Whether Pietzvak understood from the directions given him that he was positively forbidden ever to enter the 33,000-volt room, or, in other words, whether he had been sufficiently instructed in reference thereto, whether he had been permitted from time to time to do janitor service in that room, and whether he was guilty of violating his instructions or orders, are controverted matters. The evidence bearing upon these controverted points we will not set out specially, for the reason that the Industrial Board has not decided the ultimate question to which they lead, viz.: Was Pietzvak's death due to his willful misconduct?

[1] 1. At the time of his death, Walenty Pietzvak was performing a service for his employer, in the line of work he was engaged to perform, and his death was caused by one of the inherent dangers that lurked in the establishment in which he worked. That the evidence supports the finding that his death arose out of and in the course of his employment we have not the slightest doubt.

But appellant insists that he went there "against the express order and direction of those that he was under obligation to obey," and therefore his death cannot be regarded as arising out of the employment. Indeed, appellant's contention amounts to a confession that his death would have to be regarded as arising out of and in the course of his employment, if it were not the fact (if it be the fact) that he went to the place of his death in disobedience of the instructions of his employer.

2. Should this court pass upon the alleged disobedience? The Indiana Workmen's Compensation Act contains the following provision:

"Sec. 8. No compensation shall be allowed for an injury or death due to the employee's willful misconduct, including intentional self-inflicted injury, intoxication, and willful failure or refusal to use a safety appliance or perform a duty required by statute. The burden of proof shall be on the defendant employer."

[2] The language of said section indicates that the Legislature

did not intend that all forms of willful misconduct other than those mentioned therein should be excluded and disregarded, or that nothing else should be regarded as constituting willful misconduct. On the contrary, said language indicates that the Legislature was sensible of the fact that other forms of willful misconduct might be recognized, but wanted to make sure that those specified would be recognized in the administration of said act. Under the English act-the parent act of which ours is one of the many offsprings-it is held that the willful violation of orders comes under the head of willful misconduct (Dawbarn [4th Ed.] p. 139 et seq.); and in our judgment there is where it belongs. This view of the matter is logical. It tends to avoid confusion and to promote clear thinking. The Industrial Board recognized the need of it by adopting rule 10.

[3] In its original finding the Industrial Board found as a fact "that the injury to and the death of said Walenty Pietzvak were not due to any willful misconduct on his part," but did not include said rule 10 in said original finding. In its finding of facts made on the rehearing the board has omitted the finding as to willful misconduct, but has incorporated therein said rule 10. From this action on the part of the board the conclusion is obvious that the board was of the opinion that the question of willful misconduct was not in issue because it had not been pleaded as provided in said rule. In this the board was entirely right. The adoption of said rule was a reasonable and timely exercise of the authority conferred by the Legislature. Section 55, W. C. A. It tends to facilitate the work of the board and to promote justice. Whatever the question of willful misconduct might have been worth if pleaded, appellant has waived it by its failure to comply with said rule.

The award is affirmed; and by virtue of the act approved March 5, 1917 (Acts 1917, c. 63), the amount thereof is increased 5 per cent.

APPELLATE COURT OF INDIANA.

DIVISION No. 2.

SUGAR VALLEY COAL CO.

VS.

DRAKE. (No. 10071.)*

1. WORKMEN'S COMPENSATION ACT-SCOPE OF EMPLOYMENT-BURDEN OF PROOF.

In cases brought under the Workmen's Compensation Act, the burden is upon the claimant to furnish the evidence from which the inference can

* Decision rendered, Dec. 12, 1917. 117 N. E. Rep. 937.

reasonably be drawn that the injuries or death were caused by an accident arising out of and in the course of the employment, within the meaning of the act.

2. WORKMEN'S COMPENSATION DUSTRIAL BOARD-REVIEW.

ACT-FINDINGS OF IN

Findings of the Board have the same force as the finding of a court or verdict of a jury, and are not to be set aside if there is any evidence upon which they can rest.

3. WORKMEN'S COMPENSATION ACT-RELATION OF SERVANT AND MASTER-DETERMINATION.

It is the work which the workman is performing at the time of his injury which determines whether he is at the time the servant of another, engaged in the discharge of a duty under his employment.

4. WORKMEN'S COMPENSATION ACT-SCOPE OF EMPLOYMENT.

Evidence held not to warrant a finding of the board that decedent, at the time he received the fatal injury while hauling a load of coal to his own home with his own team and wagon, was a servant of defendant operator of coal mine, within the Act.

Appeal from State Industrial Board.

Proceeding under the Workmen's Compensation Act by Ellen Drake for compensation for the death of her husband, against the Sugar Valley Coal Company, employer. From an award of the Industrial Board, the employer appeals. Reversed.

Chas. E. Henderson and Jas. L. Murray, both of Indianapolis, for Appellant.

Miller & Kelly, of Terre Haute. for Appellee.

IBACH, C. J.

On June 29, 1917, appellee filed her claim before the Industrial Board, asserting that her husband's death was caused by an accident arising out of and in the course of his employment with appellant as a teamster. Upon a hearing before the full board, she was awarded compensation. It is appellant's contention that the uncontradicted evidence shows that the relation of master and servant did not exist between it and the decedent at the time he suffered the accident which caused his death, and therefore the case is one which does not fall within the Workmen's Compensation Act.

[1, 2] It is well recognized, in all cases brought under the act, that the burden is upon the claimant to furnish the evidence from which the inference can reasonably be drawn that the injuries or death were caused by an “accident arising out of and in the course of his employment," within the meaning of the Workmen's Compensation Act. It is also established law that the findings of the Industrial Board have the same force as the findings of a court or a verdict of the jury, and are not to be set saide if there is any evidence upon which they can rest.

[3] In determining this appeal we must first ascertain what the deceased was doing when the accident occurred, for it is the

Vol. I-Comp. 39.

work which the workman is performing at the time he is injured which determines whether or not he is at the time the servant of another and is engaged in the discharge of that duty under his employment. Wood's Master & Servant, § 317; Union Sanitary Mfg. Co. vs. Davis, 115 N. E. 676; Pigeon vs. Employers' Liability Ass'n, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; Whitfield vs. Lambert, 8 B. W. C. C. 91. Appellee has filed no brief, but the following, we think, is a fair statement of the substance of all the evidence produced at the hearing:

Appellant operated a coal mine and hired teamsters for the purpose of delivering coal to its local customers. There were two classes of teamsters, some of whom hauled coal during the whole year, and those who hauled only during the busy season. These latter were called "extras." Decedent was of the latter class. Such teamsters furnished their own wagons and teams and were paid by the tonnage hauled. There was no regular employment with the extra teamsters. Sometimes they would haul for appellant a day or two, and then haul for some one else, and at the close of a day it was not known if they would again return for work. Sometimes the teamsters procured their own orders, in which case they would bring them to the mine, and were charged for the coal at the regular mine price, which was accounted for by the teamsters when the coal was delivered and the collections made. The coal thus obtained was resold by the teamsters at their own price; the difference between the mine price and the price on resale making their profit for hauling. No record was made by appellant of any tonnage to be paid for the delivery of coal where it was sold to a teamster for resale or for his own use. On the day in question decedent came to the mine, reported that he wanted some coal for his own use, and that he had an order from a customer on his own account. He was then informed by appellant that it had a delivery also for him to make. It was decided that decedent should deliver his own coal first, and then return and deliver the orders named. Decedent loaded his own wagon, the coal was charged to him on appellant's books, and he drove away, and shortly thereafter was found dead on the highway.

There is also evidence without contradiction which shows that decedent furnished his own team and wagon, was not subject to any rules as to the hours of his work, and could come and go whenever he pleased; that appellant exercised no control or supervision over him in the manner of doing his work, or the road he should travel. Those were all matters for his own selection. It also appears without contradiction that at the time of the accident he was hauling his own coal, with his own team and wagon, in his own way, to his own home, and over the route which he chose for himself, for which delivery he was

not to receive any pay from appellant, and that he was charged for such coal only the price at the mine.

[4] We fail to find any evidence in the record to warrant the finding of the Industrial Board that decedent, at the time. he received his fatal injury, was a servant of appellant within. the meaning of the Workmen's Compensation Act, and therefore the award of the Board is contrary to law.

Award reversed.

APPELLATE COURT OF INDIANA.
DIVISION No. 2.

IN RE BURK. (No. 10142.)*

1. WORKMEN'S COMPENSATION-REPORTS.

Employer who has availed himself of Workmen's Compensation Act (Acts 1915, c. 106) §§ 2 and 3, exempting him from payment of compensation after posting due notice, must make the reports specified in section 67 as to the injuries suffered by his employees in the course of their employment, inasmuch as the exemption does not specifically extend to section 67, and by sections 9 and 19 employers of farm laborers, domestic servants, and persons engaged in interstate or foreign commerce are excepted for the act, except as to section 67, and for the further reason that the duties of the Industrial Board under Burns's Ann. St. 1914, § 8021, transferred from the bureau of inspection, require general oversight of the conditions of labor.

2. WORKMEN'S COMPENSATION ACTS-PENALTIES - WHO MAY SUE "PERSON."

Since under Burns's Ann. Ct. 1914, §§ 251. 252, every action must be prosecuted in the name of the real party in interest except that one expressly authorized by statute may sue without joining the person for whose benefit the action is prosecuted, and since under section 1356 the word "person" extends to bodies politic and corporate, and since the Industrial Board is expressly authorized to sue for the penalty under Workmen's Compensation Act, § 67, for failure to make required reports as to injuries to employees, an action for such penalty may be brought by the state as the real party in interest or by the Industrial Board.

3. WORKMEN'S COMPENSATION ACTS--PENALTIES-VENUE. Under Workmen's Compensation Act, § 67, providing for recovery of penalty for master's failure to make required reports of accidents to employees and mail them to the Industrial Board, the offense of failing to make the report occurs in the county of the employer's business and the venue of the action to recover the penalty is in that county.

Certified questions from the Industrial Board. Questions answered.
CALDWELL, J.

Section 67 of the Workmen's Compensation Act (Acts of 1915, p. 392) is to the affect that every employer shall keep a record of * Decision rendered, Jan. 17, 1918. 118 N. E. Rep. 540.