of the injury to Cruse; that such agreement was filed with and approved by the Industrial Board of Indiana; that compensation was paid in pursuance of such agreement until December 30, 1915, when payment was stopped; that Cruse duly requested an adjustment of his claim for further compensation; that an attorney representing appel payment of compensation to him, has been, $20, and authorizing a weekly compensation held to amount to an admission that there of $11, to be paid by appellant on account had been an accident, for which the employer was liable to pay compensation, but that such agreement or payment is not an admission that the death of such employé was caused by an accident rendering his employer liable to his dependents for compensation. Section 37, Workmen's Compensation Act, Acts 1915, p. 402; Cleverly et al. v. Gas, Light & Coke Co., 1 B. W. C. C. 82-84, 24 T. Llant's insurance carrier made an investigaR. 93 (1907); Perry v. Woodward Bowling Alley (Mich.) 163 N. W. 52, 53, L. R. A. 1916A, pp. 133, 134. In Perry v. Woodward Bowling Alley, supra, the Supreme Court of Michigan say: "The record does disclose that the deceased sustained an injury, and during his disability received compensation; but it is further incumbent upon the claimant to show, by competent evidence from which fair inference could be drawn, that his death resulted from the injury. This the claimant has failed to do, and compensation for the death must therefore be denied." In Cleverley et al. v. Gas, Light & Coke Co., supra, the English Court of Appeals, in speaking of the death of an employé with whom his employers had made an agreement and paid compensation thereunder during the lifetime of the employé, said: "But the agreement only amounted to an admission that there had been an accident, and that the company was liable to pay compensation for the same. It was not an admission that the death was caused by the accident." tion of the case, and as a result thereof, on January 8, 1917, entered into an agreement with Cruse, before the Industrial Board, in which it was stipulated that the employé was entitled to compensation, and that there was then due him payments in arrears aggregating $385; that the employé's weekly payments would continue "until such time as he was able to resume his ordinary duties, or until payments made fully 'complied with the Workmen's Compensation Law; that said amount was paid and weekly payments continued to June 18, 1917, when payment was discontinued." The evidence tends to show that while Cruse was working for appellant, in pursuance of his employment, he received a severe injury to the lower part of his back as the result of an accidental fall, which disabled him at that time for a period of 19 days, and that he was then paid compensation for 5 days; that soon thereafter he tried to work at his trade as a carpenter, [3] We have in the finding in this case but was unable to continue because of the the ultimate facts of decedent's employment; effects of his injury; that about a month that he received a personal injury on Sep- subsequent to his injury Cruse went to Chitember 8, 1915; that he died from such in-cago to visit and rest, and remained there jury on the 8th of July, 1917, and the further for more than a month; that subsequently finding "that as a result of his said injury, and on account of the disability resulting therefrom, the defendant employer paid to said Paul Cruse, during his lifetime, and after his injury" certain compensation. Following the decisions aforesaid, the above statement includes all the facts essential to appellee's right to compensation. It amounts to a finding that said injury resulted from an accident, for which appellant was liable, which necessarily includes the facts that such accident occurred while decedent was engaged in doing the work he was employed to do, and that the injury resulted as a natural incident of such employment. In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306; In re Harraden, 118 N. E. 142. Considering the foregoing in connection with the ultimate facts of relationship and dependency the finding of facts is sufficient to sustain the award in appellee's favor. he went to Albany, where he worked for a news company as a caller until May 10, 1916, when he became severely ill and returned home, but was unable to secure any permanent improvement in his health; that he was injured across the small of the back, and complained of his back, side, and kidneys; that Dr. Light, Dr. Marsh, and Dr. Hersey attended him at different times; that he was taken to the Long Hospital, where he was treated for a time, and he was also treated by Dr. Hersey after he came from the hospital; that he was confined to his bed from March 23, 1917, until his death on July 8, 1917; that Dr. Hersey began treating him in October, 1916. Dr. Worthington testifies that he made an examination of Paul Cruse on June 30, 1917, looked into the history of his case, and diagnosed it as pulmonary tuberculosis; that the records of the Long Hospital showed that from June 30 to September 23, 1916, Cruse had been a patient there, suffering from acute nephritis; that he had night sweats and swelling of the feet; that acute nephritis may develop from an injury; that night The record shows that on September 27, sweats are one of the cardinal symptoms 1915, Paul Cruse and appellant entered into of pulmonary tuberculosis, and they indicate an agreement, showing a weekly wage of that Cruse was suffering from that disease in [4] But it is earnestly contended by appellant that there is no evidence to support the finding that the death of decedent resulted from the alleged accidental injury. 119 N.E.-3 June, 1916; that he was suffering from chron-, News Co., 5 B. W. C. C. 251; Dean v. The ic nephritis when he saw him at his home; London, etc., Co., 3 B. W. C. C. 351. that chronic nephritis always follows acute nephritis, and is always present in a wasting illness; that the history of the case led him to believe that the disease of tuberculosis from which Cruse was suffering was of long standing; that an injury to the back and kidneys of a crushing nature might develop acute or chronic nephritis; that chronic nephritis is a disease which, as far as medical people know, does not cure itself, and will eventually cause death; that it is a wasting and debilitating disease, and reduces the power of resistance and makes the person so afflicted more susceptible to anything infectious; that tuberculosis is an infectious and contagious disease; that every one has "vagotomy" organisms in his lungs and they will become active when vitality is reduced; that the nephritis aggravated the condition that Paul Cruse was in, and set the tuberculosis germs in action that later caused his death. The evidence shows that Dr. Hersey examined Cruse in November, 1916, and that in his opinion, based on the history of the case and the symptoms of the patient, his condition was the result of a former injury. The evidence shows that Dr. Marsh treated Cruse in September, 1915, for the injury to his back; that in May, 1916, he found him suffering from the same cause, manifesting the same symptoms, and in addition thereto he had swollen feet and nephritis; that the symptoms had continued and his present illness "is the result of the old injury from which he has not completely recovered." Dr. R. H. Bandilier testified that Mr. Cruse suffered from acute nephritis while in the Long Hospital; that a jarring injury such as the fall he received will sometimes cause acute nephritis; that in other instances such an injury may precipitate or bring on an impending nephritis, and, in his opinion, Cruse's injury probably increased the severity of the kidney disease from which he suffered. In re Bowers (In re Williams) 116 N. E. 842, this court said: "Likewise the courts, consistent with the theory of Workmen's Compensation Acts, hold with practical uniformity that, where an employé afflicted with disease receives a personal injury under such circumstances as that he might have appealed to the act for relief on account of the injury had there been no disease involved, but the disease as it in fact exists is by the injury materially aggravated or accelerated, resulting in disability or death earlier than would have occurred otherwise, and the disability or death does not result from the disease alone progressing naturally as it would have done under ordinary conditions, but the injury, aggravating and accelerating its progress, materially contributes to hasten its culmination in disability or death, there may be an award under the compensation acts." See, also, Taylorson v. Framwellgate, 6 B. W. C. C. p. 56; Lewis v. Port of London, etc., 7 B. W. C. C. 577; Southall v. Cheshire Co. There is evidence tending to support the finding of facts. The board has drawn the necessary inferences, and there is evidence from which such inferences may reasonably be drawn. The evidence authorizes the inference that the accidental injury suffered by Cruse while in appellant's employment aroused the latent germs of the disease to which he was predisposed, materially accelerated the disease, and caused his death earlier than it otherwise would have occurred. In re Myers, 116 N. E. 314; Columbia School Supply Co. v. Lewis, 116 N. E. 1. The only questions presented by the assignment of errors have been considered. No question of the admissibility of evidence is presented. The death of the appellee having been suggested, the award of the full board is affirmed as of the date of submission. 2. PLEADING 367(4) MOTION TO MAKE COMPLAINT SPECIFIC. Where a states facts sufficient to constitute a cause of accomplaint for personal injury tion under Employers' Liability Act 1911 (Laws 1911, c. 88), on theory that servant was injured ruling of motion made under Laws 1915, c. 62, through negligence of fellow servant, the overto make specific allegation denominated conclusions, but not necessary to the cause of action stated, is not available error. 3. APPEAL AND ERROR 1042(5)—REVIEW— HARMLESS ERROR-MOTION TO STRIKE. ruling of a motion to strike out allegations, where objector fails to show in his brief that there was evidence on such allegations, and the court limited the jury's consideration to a theory not involving the objectionable allegations. 4. TRIAL 109 CONDUCT OF COUNSEL A judgment will not be reversed for over READING FROM COMPLAINT OPENING STATE 5. APPEAL AND ERROR 971(1)-DISCRETION -EXAMINATION OF WITNESSES. To permit servant's witnesses to state in detail certain evidence of customs and rules of the master's mine, including conversations, notwithstanding the master admitted the customs and is not reversible error, in the absence of and rules, was in the discretion of the court, proof of abuse. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. 6. APPEAL AND ERROR ERROR EVIDENCE. 1051(1)-HARMLESS Admission of statements concerning incidents after servant's injury to prove the customs and rules of master's mine, while error, was harmless, where they were proved by other and competent evidence. 7. APPEAL AND ERROR 1078(6) WAIVED-BRIEF. ERROR Where a new trial is sought, on ground of excessive verdict, failure to direct a point thereto in the brief on appeal is a waiver thereof. 8. APPEAL AND ERROR 1053(4)-HARMLESS ERROR-EVIDENCE-CURE BY INSTRUCTION. Any error that might arise from evidence of expectancy of life of injured servant, a boy of 14 years, was cured by instruction that his ability to earn money and a livelihood after, but not before, he arrived at the age of 21 years, should be considered. 9. APPEAL AND ERROR 854(4) RECORD — CROSS-EXAMINATION-DISCRETION OF COURT. ΤΟ BATMAN, P. J. This is an action by appellee against appellant to recover damages on account of injuries alleged to have been sustained by him while in the employ of appellant in its coal mine. The complaint on which the cause was tried is drawn under what is known as the Employers' Liability Act of 1911. The first paragraph alleges, among other things, in substance, that on his father, who appears in this action as his the 20th day of November, 1913, appellee and next friend, were in the employ of appellant as loaders in a certain room of its coal mine; that on said date one Elmo Allen was in the employ of appellant as a driver to haul empty cars into said room and loaded cars out of said room by the use of a mule; that such cars were operated over a track constructed on a descending grade from the face of the coal, where such cars were loaded, to the 971(3)—REVIEW-entry; that by reason of such fact it was necessary to chock such cars so as to keep them in place while being loaded; that strips of wood, placed on such track under the front wheels of such cars, were used for such that in taking such cars from said purpose; room, it was necessary to remove such chocks; that it was a custom and rule in said mine that when a driver was ready to pull a car so chocked from a room in which it was loaded, that the loaders should assist the driver in removing such chocks; that in so doing one loader would remove the chock from the wheel on one side of the car, and another loader would remove the chock from the wheel on the other side of the same; that in removing such chocks it was the duty of the driver to give directions when the same should be removed, and it was the duty of such loaders to obey and conform to such directions; that on said date the said Elmo Allen, as such driver, hitched a mule to a loaded car, to remove it from the room in which appellee and his said fatner were working as loaders; that each of such loaders took their places at the front end of such car to remove the chocks under the wheels thereof when ordered so to do by such driver; that said driver thereupon directed said loaders to remove said chocks, and about the same time negligently caused said mule to suddenly start said car; that appellee, on receiving such directions, attempted to Appeal from Circuit Court, Davies Coun- obey the same by removing one of said ty; James W. Ogdon, Judge. An objection to the exclusion of evidence on direct examination is not available without a showing of offer to prove such matter at the time of such ruling and set forth in brief. 12. TRIAL 115(4)-CONDUCT OF COUNSEL READING FROM TRANSCRIPT OF TESTIMONY. It was not error to overrule an objection to counsel reading to jury in course of argument what he claimed was a part of the transcript furnished by the official reporter, particularly where the court instructed the jury not to take such as evidence, but to rely solely on their memory of the evidence as given. 13. APPEAL AND ERROR 761-BRIEFS-AB STRACT PROPOSITIONS OF LAW. Where briefs have not been presented setting out errors in instructions in accordance with court rule 22 (55 N. E. vi), and mere abstract propositions of law are stated, no question is sufficiently presented thereon for review. 14. APPEAL AND ERROR 719(1) ASSIGN MENTS OF ERROR-NECESSITY. Errors must be regularly raised by assignment, and not by brief and argument. 15. MASTER AND SERVANT 95 - INJURY TO SERVANT-VIOLATION OF STATUTE BY SERV ANT. The mere fact that a servant under 14 years of age is working in violation of a penal law does not preclude his recovery for injury, caused by negligence of a master, and the latter cannot use such statute as a shield. Action by Jonas Butler, by his next friend, Charles E. Butler, against the Vandalia Coal Company. From a judgment for plaintiff, and denial of a motion for new trial, defendant appeals. Affirmed. Henry W. Moore, of Terre Haute, and Alvin Padgett, of Washington, Ind., for appellant. Jesse F. Weisman, of Linton, and W. R. Gardiner, C. K. Tharp, and C. G. Gardiner, all of Washington, Ind., for appellee. chocks, and while so doing his left hand was caught and crushed between said wheel, chock, and rail before he could remove the same; that such injury was caused solely by the negligence of appellant, through said driver, as its agent, servant, and employé, while appellee, without fault on his part, was conforming to an order he was under obligation to obey, by the directions of appellant, to his damage in the sum of $15,000. The second paragraph of the complaint al For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plaint, in the light of these objections, and leges, among other things, substantially the same facts as the first paragraph thereof, except that it does not allege that appellee received the injuries for which he sues, by reason of obeying and conforming to any order or direction given by appellant, or by any of its agents or employés.. It alleges that he received such injuries by reason of the facts that said driver carelessly and negligently started the mule to haul the car of coal at the time appellee stooped and got ready to remove the chock from under the wheel of said car, and thereby caused said mule to pull said car over said chock and appellee's hand, while he was in the act of removing said chock, and before he had time so to do. It also contains certain allegations with reference to the tools, implements, and appliances furnished by appellant to appellee for the purpose of the performance of such work, being dangerous, defective, insufficient, and extrahazardous. Appellant filed a demurrer to each paragraph of the complaint, which was overruled. It also filed a motion to require appellee to state facts necessary to sustain certain alleged conclusions set out in said second paragraph of the complaint, which was also overruled. It also filed a further motion asking the court to strike out and reject certain specified parts of each paragraph of the complaint, which was overruled. Appellant then filed an answer in general denial, and the cause was submitted to a jury for trial on the issues thus formed. A verdict was returned in favor of appellee for $3,000, and judgment was rendered accordingly. Appellant filed a motion for a new trial, which was overruled. It now prosecutes this appeal, and has assigned appropriate errors, challenging the action of the court in the several rulings indicated, to which proper exceptions had been reserved, [1] Appellant contends that the court erred in overruling its demurrer to each paragraph of the complaint, as neither of such paragraphs state facts sufficient to constitute a cause of action against it. It states its objections as follows: (1) The first paragraph shows on its face that the alleged order was in no sense an order, but was purely and only a signal from the driver to the loaders informing them that he was ready to do the spragging; (2) neither paragraph alleges that in responding to the signal it was necessary for appellee or his father to place their hands, or either of them, under the car wheel, or that they were required or expect-juries by reason of the negligence of a feled to do anything which required time; (3) neither paragraph alleges that reasonable time was not given and allowed; (4) the second paragraph alleges that the chocks were removed at a signal from the driver "as said driver would cause the mule to start said car," leaving the only reasonable inference to be that the pulling of the chocks and the starting of the mule was to take place at the same time. We have examined the com low servant in the employ of appellant, as determined by the trial court. It contained facts sufficient to constitute a cause of action on such theory, independent of any matters properly denominated as conclusions in such motion. There was, therefore, no available error in overruling such motion. [3] Appellant also filed its motion to strike out and reject certain parts of each of the first and second paragraphs of the complaint, and assigned reasons therefor. The parts statement, without committing error. The sought to be stricken out of the first para- record in this case discloses that appellant's graph of the complaint relate to certain al- objection to the reading of the complaint in leged instructions given by appellant, to its appellee's opening statement was not limited drivers and loaders with reference to moving to any specific portion of the same, but was loaded cars from its mine, and with refer- addressed to the reading of the complaint as ence to the duty of appellee, as a loader, to an entirety, without offering any reason for obey the orders of the driver in removing such objection. In its brief it does not claim the chocks, on the occasion he received his that the first paragraph contains anything alleged injuries. Such allegations were al- not proper to have been read to the jury in legations of facts, clearly pertinent to the such statement. As to the second paragraph, theory on which such paragraph is drawn, it confines its objection to the matter indicatand the court did not err in refusing to ed, supra, which in making the issues it had strike out the same. The parts of the sec- claimed were conclusions, and had sought ond paragraph of complaint, which appellant first to have sustained by allegations of sought to have stricken out, were mainly the facts, and later to have stricken out. It is same matters, alleged in his former motion not contended in this court that the reading to be conclusions, and were of the nature in- of the remaining portion of such second pardicated, supra. They are not set out in full agraph was error. It thus appears that apbecause of their length, and a restatement pellant's objection in regard to such opening of the same is unnecessary here. It has been statement was too broad to be available, even held that a judgment will not be reversed on if it could be said that any specific portion account of the overruling of a motion to of such second paragraph should have been strike out. Ohio Valley Trust Co. v. Wernke excluded on a proper objection. Southern R. (1912) 179 Ind. 49, 99 N. E. 734. Moreover, Co. v. Adams (1912) 52 Ind. App. 322, 100 N. appellant has failed to show in his brief E. 773. However, we may add that had that there was any evidence submitted to the such objection been limited to the reading in jury on the allegations, which it sought to such opening statement of that portion of have stricken from said second paragraph of such second paragraph on which it now complaint. We may therefore indulge the predicates error, the overruling of such obpresumption that there was none, since the jection would not have been reversible error, burden rests on appellant to show error. for the reasons stated supra in passing on Taking this fact in connection with the fur- the action of the court in refusing to strike ther act that the court by an instruction giv-out such allegations in the formation of the en at the request of appellant, in effect, limited the consideration of the jury as to such paragraph, to a theory which in no way involved such alleged objectionable allegations, it is clear that the overruling of such motion, if error, was harmless. Portland, etc., Co. v. Gibson (1915) 184 Ind. 342, 111 N. E. 184. issues. [5] Appellant complains of the admission of certain detailed evidence, relating to the custom and rule of the mine, that the loaders should help the drivers under certain conditions, including certain conversations with and directions of the mine boss and boss driver. It contends that such custom and rule could have been so stated by the ing the incidents by which they became possessed of a knowledge of such fact, and cites the case of Conner v. Citizens,' etc., R. Co. (1896) 146 Ind. 430, 45 N. E. 662, in support thereof. But conceding this to be true, it does not follow that the court erred in per dents, notwithstanding appellant admitted the existence of such custom and rule on the trial of the cause. The admission of such evidence under the circumstances was within the sound discretion of the court, and in the absence of a showing of an abuse thereof, its admission does not constitute reversible er [4] Appellant contends that the court erred in permitting appellee's counsel, in his open-witness in the first instance, without detailing statement, to read to the jury the second paragraph of the complaint, over his objection. The statute governing trials by jury provides that when the jury has been sworn, the party upon whom rests the burden of the issues may briefly state his case, and the evidence by which he expects to sustain it. Sec-mitting the witnesses to detail such incition 558, Burns 1914. The Supreme Court has held that the extent of such statement is left much to the discretion of the trial court. Aylesworth v. Brown, 31 Ind. 270; United States, etc., Co. v. Poetker, 180 Ind. 255, 102 N. E. 372, L. R. A. 1917B, 984. It is evident that as a general rule the action of the court in permitting a reading of the entire complaint to the jury would not be an abuse of [6] Complaint is also made of the ruling of such discretion. If, perchance, any portion the court in permitting the witness Dave of a complaint, or any paragraph thereof, Fulkerson to state what Fred Brooks, a boss contains matters of surplusage, which is of driver of appellant, had said to him after the such a nature that it might reasonably tend accident, with reference to getting the assistto prejudice the jury in the trial of the ance of the loaders in helping with the cars. cause, the court on a proper objection, in It is apparent that such evidence' was introthe exercise of its discretion, might exclude duced as tending to establish a custom or the reading of such portion in the opening rule in appellant's mine. It is claimed that ror. |