Bucyrus Co. v. Townsend-65 Ind. App. 687.

against the Bucyrus Company.

From an award for

applicant, the defendant appeals. Affirmed.

Phelps F. Darby, for appellant.

Elmer Q. Lockyear, for appellees.

IBACH, P. J.-Appellees' husband and father was an employe of appellant company, and while so employed it is claimed he received a serious personal injury by accident arising out of and in the course of his employment, from which he died on August 8, 1916. On February 3, 1917, appellees, as dependents of decedent, filed their verified application before the Industrial Board for an adjustment of their claim for compensation, which was granted, and they were awarded $7.29 per week for 300 weeks.

It is contended by appellant that the award of the full board is not sustained by sufficient evidence and is contrary to law. The latter assignment pre1. sents both questions. Union Sanitary Mfg. Co. v. Davis (1916), 64 Ind. App. 227, 115 N. E. 676, 677.

The facts appearing from the finding are that on August 1, 1916, decedent was in the employ of appellant at an average weekly wage of $13.26. On that date he received a personal injury by an accident arising out of and in the course of his employment, which resulted in his death August 8, 1916; that the appellant had actual knowledge of his injury at the time it occurred, and that it rendered first aid at the time of his injury and on the second day thereafter furnished an attending physician who attended him at the hospital until his death. He left surviving him Daisy Townsend, his wife, and the other named appellees, his children. Decedent and his wife and children were at the time of his injury and death living together as one family. Two sons, Elma and Alvis, were working and

Bucyrus Co. v. Townsend-65 Ind. App. 687.

earning wages, and the wife and the other children being wholly dependent upon decedent for their support.

It appears from the record that the decedent had been in the employ of appellant for several weeks prior to August 1, 1916, on what is termed a "band press," a machine used to press a copper band around shells and the shells were shrapnel shells about eight inches in diameter and two and one-half feet long. The band press is about three and one-half feet high. On the floor there was an iron T-rail extending about an inch above the level of the floor. The decedent took a shell and started to the press. His foot slipped on the T-rail as he was about to lay the shell down, and he fell and hit his breast against the lever that operated the press. This lever consisted of an iron rod about an inch in diameter with a steel handle, and was used for starting and stopping the machine. Decedent was taken to his home that night and immediately went to bed complaining of pain in his left side and had trouble in breathing. Two days later he was taken to the hospital under the care of a physician. After the injury there was found a mark over his heart about five inches long. The only sickness he ever had was about a year before, and that sickness lasted about two weeks. He had been at work almost continuously, and always worked at general labor, and had never complained of anything being wrong with his heart or lungs. The attending physician testified that he found him immediately following the accident, suffering from pain in the left side of the chest in the region of the heart, his breathing was bad, jerking whenever he took a long breath, his heart was laboring, and there was an abnormal sound of the heart; also, that a blow over the heart would cause acute heart disease and, in this case, the fall brought on a condi

VOL. 65-44

Bucyrus Co. v. Townsend-65 Ind. App. 687.

tion of the heart known as "pericarditis," and that killed decedent.

In all cases such as the present, before the Industrial Board can allow compensation to a claimant, it must be made to appear that the decedent received a per2. sonal injury by accident arising out of and in the course of his employment, and that the death of the employe resulted from such injury.

It is insisted here that decedent did not die as a result of the accidental injury, but that his death was

due to a disease, neither produced nor aggravated 3. by such injury. While the evidence might permit of a result different from that reached by the Industrial Board, yet we are satisfied that the uncontradicted testimony of the son, the only person who saw the accident, and the testimony of the physician who treated decedent from the date of his injury, who we must assume was a competent physician, together with all the other facts and circumstances shown by the evidence, was sufficient to show an injury by accident arising out of and in the course of decedent's employment, and that such injury proximately caused his death. Columbia School Supply Co. v. Lewis (1917), ante, 116 N. E. 1; Habbe v. Viele (1897), 148 Ind. 116, 45 N. E. 783, 47 N. E. 1; Bayne v. Riverside Storage, etc., Co. (1914), 181 Mich. 378, 148 N. W. 412, 5 N. C. C. A. 857. The dependents were 4. not required to present such proof as would en

tirely exclude the possibility that decedent's death was due in part to a diseased condition of his heart.

We think the determination of the board should be sustained. Award affirmed.

NOTE.-Reported in 117 N. E. 656. Workmen's compensation: what is an accident arising out of and in the course of employment within meaning of act, Ann. Cas. 1913C 4, 1914B 498, 1916B 1293, 1918B 768.

Moore v. Ohl-65 Ind. App. 691.

MOORE v. OHL.

[No. 9,257. Filed May 8, 1917. Rehearing denied November 16, 1917.]

1. APPEAL.-Briefs.-Sufficiency.-The rules of the Supreme and Appellate Courts relating to the preparation of briefs are not complied with by a mere statement in appellant's points and authorities of general propositions of law which neither by wording nor direct reference are applied to any particular ruling of the trial court relied on for reversal. p. 693.

2. CONTRACTS.-Parol Contracts.-Parol Evidence.-A contract partly in writing and partly in parol becomes a mere verbal contract, and, where it is necessary to resort to oral evidence to establish the terms of a contract, then the whole contract is regarded as being verbal. p. 695.

3.

APPEAL.—Review.-Harmless Error.-Instructions.-Although a contract to furnish board and lodging was in writing, except that the method of ascertaining the amount of compensation required oral evidence, and was, technically, an oral contract, yet an instruction in an action on a note that defendant, who pleaded such contract by way of set-off and alleged it to be written, had the burden of proving that the contract was written was not prejudicial to her, where the evidence showed only that the contract was written and the instruction expressly authorized a recovery for the value of the service shown by the evidence independent of the contract. p. 696.

4. APPEAL.-Review.-Verdict.-Excessive Recovery.-Where, in an action on two notes, one for $700 and the other for $500, defendant counterclaimed for maintenance and support furnished plaintiff, and plaintiff's recovery was for less than the amount due on the $700 note, the court on appeal cannot sustain defendant's contention that, because the undisputed evidence showed that the value of her services was approximately $1,600, the jury must have found for her on her counterclaim and that the recovery was too large, since the jury may have found against defendant's counterclaim and against plaintiff on the $500 note, in which case the verdict was too small. p. 698. APPEAL.-Briefs.-Sufficiency.-Alleged error in the refusal of instructions is not presented for review, where appellant's points and authorities do not refer to the instructions or to any error predicated on their refusal. p. 699.

5.

6. APPEAL.-Briefs.-Argument.-An argument is not a necessary part of a brief, and any question attempted to be presented thereby will not be considered where 'not presented in appellant's points and authorities. p. 699.

Moore v. Ohl-65 Ind. App. 691.

From Clinton Circuit Court; Joseph Combs, Judge.

Action by Sarah C. Ohl against Laurinda Moore. From a judgment for plaintiff, the defendant appeals. Affirmed.

James V. Kent and Thomas M. Ryan, for appellant. Albert J. Bayne, John W. Strawn and William Robison, for appellee.

HOTTEL, J.-Appellee filed in the Clinton Circuit Court a complaint in two paragraphs. The first paragraph was based on a promissory note for $700, executed by appellant on May 9, 1902, due five years after date, and bearing five per cent. interest from date. The second paragraph was based on a note for $500, executed May 23, 1899, due one year after date, and bearing six per cent. interest from date, with a credit of $10 endorsed thereon, of date June 23, 1900, "to be applied on interest," such paragraph containing an averment that a payment of five dollars was made on said note December 26, 1913.

The appellant filed an answer in six paragraphs, viz.: (1) A general denial; (2) the ten-year statute of limitation, addressed to the second paragraph of complaint alone; (3) payment of each note; (4) that each note was executed without any consideration; (5) the fifth paragraph was by way of set-off, the averments of which, material to the questions presented, are hereinafter indicated; (6) the sixth paragraph is addressed to the first paragraph of complaint and sets out in detail the circumstances under which the $700 note was executed, its theory being that such note was executed without any consideration.

A reply in general denial was filed to the affirmative paragraphs of answer. A trial by jury resulted in a verdict for appellee in the sum of $800.

Appellant filed a motion for new trial, which was