member of the firm of Hege & Co., testified that the deceased was in the employ of said firm as a carpenter at the time of his injury, and that the deceased told him that he had run a splinter or sliver in his thumb while he was at work finishing a room at the residence of James Pierce. Adra M. Tompkins, widow of the deceased, testified that her husband came home on the evening of the day he was injured and told her that he had hurt his thumb, and that he thought he had struck it on a screw. A. A. Kirkpatrick, a physician who attended the deceased after his injury, testified that the deceased stated to him that he had hurt his thumb with a sliver off a screw while at work. The witness said that from the nature of the injury he thought that was correct. Paul C. Graham, another physician who treated the deceased after his injury, testified that the deceased told him that he had pricked the end of his thumb with the burr on a screw. Both physicians gave it as their opinions that the deceased died as a result of the injury to his thumb. The evidence shows that the deceased was injured on April 8, 1918, and that he died as a result thereof on April 18, 1918. On April 17, 1918, his employer, Hege & Co., made a report of the accident in question to the industrial board. This report is in evidence, and states, among other things, that on April 8, 1918, the deceased was injured while in its employ by an accident arising out of, and in the course of, the employment; that the injury was caused by a sliver off a screw being run into the end of one of his thumbs, resulting in infection of his left hand and forearm. This is substantially all the evidence bearing on the question under consideration. [4-7] Appellants contend that the statemets made by the deceased to the several witnesses as to the cause and manner of his injury are hearsay, and therefore incompetent as evidence. Appellees admit that such statements are hearsay, but assert that, under the state of the record, the industrial board had the right to consider the same regardless of such fact. It is firmly settled in this state that a material fact at issue may be established by hearsay evidence, where the same is admitted without objection. Metropolitan Life Ins. Co. v. Lyons (1912) 50 Ind. App. 534, 98 N. E. 824. In that case the court said: "The party against whom such evidence is introduced may not take his chance of obtaining a favorable verdict at the hands of the jury on the evidence so admitted, and then, after an adverse verdict, obtain a new trial on the ground that the verdict does not rest on any competent evidence." The above case has been cited_with_approval in Wagner v. Meyer (1913) 53 Ind. App. 223, 101 N. E. 397; Buttz v. Warren Mach. Co. (1913) 55 Ind. App. 347, 103 N. E. 812; Baxter v. Moore (1914) 56 Ind. App. 472, 105 N. E. 588. The reasons for adopting the above rule in ordinary civil actions apply with even greater force in hearings before the industrial board. It is evidently the intent of the Workmen's Compensation Act that, by concise and plain summary proceedings, controversies arising under the same should be promtly adjusted by a simplified procedure, unhampered by the more technical forms and intervening steps which sometimes incumber and delay ordinary civil actions. Acts 1915, p. 408, § 55. In harmony with the manifest intention of the act, this court has held that the industrial board is not bound by the rules of court procedure in civil actions (Hagenback v. Leppert [1917] 117 N. E. 531); that a motion for a new trial is not an essential to the right of appeal on any question (Union Sanitary Mfg. Co. v. Davis, 63 Ind. App. 548, 114 N. E. 872); that the admission of incompetent evidence by the industrial board will not operate to reverse an award, if there be any basis in the competent evidence to support it (United Paperboard Co. v. Lewis, supra). To deny the application of the rule relating to hearsay evidence, as stated and applied in the case of Metropolitan Life Ins. Co. v. Lyons, supra, in proceedings before the industrial board, would be to violate the spirit of the act by applying a more rigid rule with reference to hearsay evidence in such proceedings than is applied in civil actions. We see nothing unreasonable or harmful in applying the rule announced to proceedings before the industrial board, as it would only require that a party objects to hearsay evidence when offered, in order to overcome the presumption which would otherwise arise that he consented to its admission and consideration by the board. In this case the hearsay evidence was admitted without objection, and the board, therefore, had a right to consider the same, and give it such probative force as it might believe it merited, under all the attendant facts and circumstances. [8-13] Appellants also contend that the report of the accident filed by Hege & Co. with the industrial board, and introduced in evidence, is not competent as an admission against appellants that the deceased was injured by an accident arising out of, and in the course of, his employment. It bases this contention on a number of reasons, which we will consider in the order given. It is claimed that the report is an ex parte statement and within the hearsay rule. It appears to have been introduced in evidence without objection, and, as it is a statement by the party primarily liable, it is competent as an admission, notwithstanding its ex parte character. It is also urged that the report was filed pursuant to section 67 of the Workmen's Compensation Act, which required that it be made on a blank prepared and furnished by the industrial board for that purpose, and therefore was not a voluntary statement of a material fact. The record does not disclose what portion of the report is the printed form and what portion was inserted therein by the party making the same. But, conceding that the statement in question is a part of the printed form, it appears in evidence over the signature of the decedent's employer without explanation, and it must be held to have adopted the same. While the law requires that such reports must be made on blanks to be procured from the industrial board for that purpose, it is not so unyielding or unreasonable as to require the adoption of any statement therein, or the making of an answer to any question, which is not in accord with the facts, or about which the party making the report cannot obtain reliable information. It is further urged that such statement is a conlusion of law and not a statement of a material fact. But admitting, without deciding, that such statement is a conclusion of law, still we know of no rule that requires an admission to be disregarded because made in the form of a conclusion of law rather than a statment of fact, and hence we conclude that this reason gives no support to appellant's contention. It is claimed that the uncontradicted evidence shows that the statements made in the accident report are based on hearsay evidence, and not upon facts within the knowledge of the deceased's employer or its agent. If this be conceded, it does not follow that the report must be disregarded. We know of no rule that precludes a party from making an admission based on hearsay evidence if he chooses so to do, and therefore we cannot adopt appellant's view in this regard. It is finally urged that, by the provisions of section 56 of the Workmen's Compensation Act, accident reports received from employers in accordance with section 67 thereof are private records of the industrial board, open only for the inspection of the parties directly involved, and that their use as evidence, against an employer is prohibited. An inspection of said section 56 will disclose that it does not make an absolute prohibition against the use of such report as evidence, the exact provision in that regard being as follows: "These reports shall not be used as evidence against an employer in any suit at law brought by an employee for the recovery of damages." This provision cannot be construted as a prohibition against the use of such reports in proceeding before the industrial board by injured employees or their dependents to secure the compensation due them under the provisions of said act. We therefore conclude that appellant's contention with reference to the competency of the accident re port in question as evidence cannot be sustained. Our conclusion in this regard finds support in the case of Rock v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771. The act of the state of Michigan under which this case was decided provides, as does section 67 of the Workmen's Compensation Act of this state, that every employer shall keep a record of all injuries "received by his employees in the course of their employment." A question arose in the case just cited, as it did in the instant case, with reference to the admission of the accident report of the employer in evidence, and the court in passing on such question said: "We think that such reports from the employer, where all sources of information are at hand when the reports are made, and he has ample opportunity to satisfy himself of the facts, can properly be taken as an admission, and, at least, prima facie evidence that such accident and injury occurred as reported." No evidence was offered to impeach the report so made, or to show that the accident occurred otherwise than stated therein. Considering the evidence as a whole, with all reasonable inference deducible from the facts established thereby, we are forced to the conclusion that the finding of facts is supported by the evidence, and the award fully justified by the facts found. The award is therefore affirmed, and by virtue of the act of March 5, 1917 (Acts 1917, p. 155), the amount thereof is increased 5 per cent. APPELLATE COURT OF INDIANA. NATIONAL CAR COUPLER CO. V. MARR ET AL. (No. 10367.)* 1. MASTER AND SERVANT-COMPENSATION FOR INJURIES— EMPLOYMENT. Where a deceased workman was tapping in a bolt in a sand machine when he fell into the machine and was killed, held that, though he violated instructions, the accident cannot be deemed one which did not arise cut of the employment, so as to preclude an award of compensation by the Industrial Commission; the violation of instructions going to the question of willful misconduct. (For other cases, see Master and Servant, Dec. Dig. § 380). 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— DEFENSES-ABANDONMENT. Where an employer against whom the dependents of a deceased employee sought an award abandoned the second paragraph of its answer setting up willful misconduct, that defense was waived. (For other cases, see Master and Servant, Dec. Dig. § 401.) Appeal from Industrial Board. Application by Viola E. Marr and others, as dependents of Thomas Marr, deceased, for an award against the National Car Coupler Company * Decision rendered, Jan. 23, 1919 121 N. E. Rep. 545. for injuries resulting in death arising out of employement. From an award of compensation, by the Industrial Board, defendant appeals. Affirmed. Joseph W. Hutchinson, of Indianapolis, for appellant. DAUSMAN, C. J. Appellees, as dependents of one Thomas Marr, deceased, filed their application for an award against appellant. Appellant answered in two paragraphs: (1) General denial; and (2) averring willful misconduct. The Industrial Board awarded compensation. The nature of the case is fully disclosed by the following statement of facts included in the finding made by the board: "On the 2d day of January, 1918, one Thomas Marr was in the cmployment of the defendant company as a sand mixer at an average weekly wage of $17.37. On said date the said Thomas Marr was making an adjustment upon the sand mixer machine, which it was his duty to assist in operating. While making said adjustment, the said Thomas Marr accidentally fell into said machine, which was in motion at the time. By falling in said machine, the said Thomas Marr was instantly crushed to death." Appellant abandoned its second paragraph of answer, and the only contention presented is that the workman's death did not arise out of the employment. This contention is based on the theory that the superintendent of the plant had given the workman certain instructions which were violated by the latter, that the effect of the instructions was to limit the scope of the employment, and that the violation of the instructions by the workman put him entirely outside the employment. one. The superintendent testified: * * * * * * * "I gave him the instructions to be careful around machinery; not to make any alterations until he stopped the machine. I cautioned him several times about being careful around machinery. * * * He had been working on sand mixers prior to the time he began working on this * I have told him many a time that, if he had anything to fix to report it to the mechanics. * Some men have tapped in bolts that depends somewhat on where the bolt is. It would depend on the man whether it would be a dangerous operation for a man to stand where Mr. Marr is said to have been standing, stooping over, facing the revolving pan. I could do it, I think, and not get hurt. He (Marr) looked after the machine and every man on the machine; and, if there were any lost bolts that he or any other man noticed, it would be his duty to have it fixed." [1,2] The uncontroverted evidence discloses that the workman was "tapping in" a bolt when he fell into the machine; but it would be illogical to hold that his death did not arise out of the employment, even if it should be conceded that he violated the instructions. The insistence that he violated instructions has no bearing on that point. It goes rather to the question of willful misconduct. But we may not even intimate an opinion as to what it would be worth in that direction, for appellant has waived it by expressly abandoning its second paragraph of answer. The award is affirmed, and by virtue of the statute (Laws 1915, c. 106) the amount thereof is increased 5 per cent. SUPREME COURT OF IOWA. DES MOINES UNION RY. CO. บ. FUNK, INDUSTRIAL COM'R, et al· (No. 31300.)* 1. COMMERCE-WORKMEN'S STATE COMMERCE. COMPENSATION ACT-INTER All controversies touching liability of railroad company engaged in interstate commerce to its employees likewise engaged are removed by federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) from sphere of state legislation, and commission provided for in Workmen's Compensation Act has no jurisdiction of case of injury while engaged in interstate commerce. (For other cases, see Commerce, Dec. Dig. § 8[6].) 2. MASTER AND SERVANT-TESTING POWER OF BOARD UNDER COMPENSATION ACT-INADEQUATE REMEDY BY APPEAL. Under Code 1897, § 4154, railroad company against which board of arbitration appointed under Workmen's Compensation Act had made award in favor of widow of deceased servant, killed in interstate commerce, held entitled to certiorari to test right of board to act; remedy by appeal after confirmation of award by district court not being plain, speedy, or adequate. (For other cases, see Master and Servant, Dec. Dig. § 417[3].) Appeal from District Court, Polk County; Lawrence De Graff, Judge. Certiorari to test the right of a commission appointed under the Workmen's Compensation Act to hear and determine the liability of a railroad company to its employee when the injury arose at a time when both were engaged in interstate commerce. Opinion on rehearing, superseding former opinion (164 N. W. 648). Reversed. Parrish & Cohen, of Des Moines, for appellant. Miller & Wallingford and Oliver H. Miller, all of Des Moines, for appellees. GAYNOR, J. Martin Walker was employed by the plaintiff company as a wheel borer in one of its shops at Des Moines, where, on the 25th day of August, 1915, he was accidentally caught upon a revolving shaft of certain machinery, receiving injuries from which he died. Prior to this accident both employer and employee had elected to accept the terms of the Workmen's Compensation Act (chapter 147 of the Laws of the ThirtyFifth General Assembly). Myrtle M. Walker, widow of the deceased, applied to the Industrial Commission, alleging that her husband came to his death by accident while in the course of his employment, and asking that her damage or compensation be assessed as provided by said act. A board of arbitration was organized and proceeded to hear the case. The plaintiff herein, as the employer of the deceased, appeared, and denied liability on the alleged grounds: First, that the deceased was not in the course of his employment at the time of his death; and, second, that his said employer, plaintiff herein, was at that time engaged in business as a * Decision rendered, Jan. 27, 1919. 170 N. W. Rep. 529. |