engaged in interstate commerce at the time of his death, be contrary to law?

"(4) Upon the foregoing facts, was Martin C. Maroney employed in interstate commerce at the time of his death?"

The question when and under what circumstances the injury or death of an employee can be said to arise out of and in the course of his employment has been several times recently considered by this court. United Paperboard Co. vs. Lewis (1917) 117 N. E. 276, and cases cited; Haskell & Barker Car Co. vs. Brown (1917) 117 N. E. 555.

The rules and tests generally recognized as controlling in the determination of said questions, and the decisions of courts of other jurisdictions helpful to such end, are there collected and cited. Under the rules and tests recognized in such decisions, the facts, supra, indicated as admitted, show clearly and certainly that decedent's death was the result of an accident received in the course of his employment, and they show with equal clearness and certainty that said accident grew out of his employment, unless the fact that decedent took a short cut to the scene of the work where his employment required him to go is a controlling fact which necessitates a contrary conclusion. Decedent's employment with the Big Four Company, under the admitted arrangement between him and such company, required him in the emergency indicated to respond to the call of the Lake Erie & Western Company, and to report for duty to the place of the accident on the latter's track. Decedent's work

under this arrangement was emergency work. The very character of it, and his duty with reference thereto, was such that he should be, and doubtless was, expected to report for duty at the earliest moment possible after his call, and his employer should, and doubtless did, expect him to take the shortest and most direct route thereto, though such route might expose him to dangers not present in one more circuitous. For these reasons we think the accident which resulted in decedent's death was one which his employer should be held to have anticipated might arise out of the emergency work required of him under his employment, and hence brings the case within the rule and test laid down in the cases supra.

The other questions, supra, submitted by said board require us to determine whether the deceased, when injured, was engaged in interstate commerce. Such question is one of law when the facts are undisputed. Walker vs. Chicago, etc., Ry. Co. (No. 10078) 117 N. E. 969, and cases there cited. However, the statement of the board herein, leaves some doubt in the mind of the court as to what the facts are in the instant case. In the case just cited, this court had under consideration the question now being considered, and there indicated the test generally recognized as of controlling importance in the de

termination of said question. That case, and the cases there collected and cited, will, we think, aid the board in determining what facts will authorize a conclusion that the injured employee was engaged in interstate commerce. See, also, Lamphere vs. Oregon, etc., Co., 116 C. C. A. 156, 196 Fed. 336, 47 L. R. A. (N. S.) 1.

There is language in the statement of facts, supra, to the effect that the authorities of the Lake Erie & Western Company called the car inspector and car repairers of the Big Four Company to go to the scene of derailment with their wreckers and assist in clearing the track; that decedent was one of the Big Four inspectors who responded to said call, and that, while on his way from his home to the place where he should report, for work, he was struck and instantly killed, etc. This statement, when taken in connection with other statements showing that the derailed train and car were engaged in interstate commerce, at least strongly, if not conclusively, shows that deceased when injured was proceeding under a call of the Lake Erie & Western Company "to do a designated specific act in the service of said company, to wit, to clear an interstate railroad track of a derailed car engaged in interstate commerce. Under such a state of facts, the case would be controlled by the following cases, among others: Lamphere vs. Oregon, etc., Co., supra; Walker vs. Chicago, etc., Ry. Co., supra.

On the other hand, said statement of facts contains what purports to be an admission of the parties which we have set out supra, and the portion of which pertinent to the question under consideration we have italicized, supra. This admission shows merely that decedent was on his way to report for work in response to a call from the Lake Erie, etc., Company's authorities, and under the terms of his employment with the Big Four Company. Nothing appears therein to in any way connect decedent's attempted response to said call to duty with any specific act or work of interstate commerce. So far as said admission shows, decedent's going to the place of derailment in response to said call may have been the discharge of an independent duty imposed by his employment with the Big Four Company, which might or might not be part of or connected with commerce, either interstate or intrastate. Such being the state of the facts contained in the board's statement of facts, this court is of the opinion that it should not answer either of the last three questions supra, but that such board should be left to draw its own conclusion in respect thereto in accord with the law as herein expressed, and as recognized and approved in the cases cited.

The board will, in any event, have to find the facts in the case upon the evidence before it, and file a statement thereof and rulings of law; and should the case come to this court

in the regular way, the findings of the board will doubtless cure the infirmity indicated as appearing in said statement.

It follows from what we have said that decedent's going to the place of the derailment of said car in response to his call to duty by the Lake Erie Company, was contemplated by, and was a part of his employment with, the Big Four Company, and hence his injury, received while on his way, was the result of an accident arising out of and in the course of his employment. As to the last three questons submitted, we express no opinion. further than as already indicated.

APPELLATE COURT OF INDIANA.

DIVISION No. 2.

UNDERHILL

VS.

CENTRAL HOSPITAL FOR THE INSANE. (No. 10035.)*

1. WORKMEN'S COMPENSATION-APPEAL-SCOPE.

The finding of facts made by the Industrial Board on conflicting evidence is conclusive on the Appellate Court.

2. WORKMEN'S COMPENSATION — AWARD PARTIAL DISABILITY.

Under Laws 1915, c. 106, § 31, declaring the amount of compensation in cases of permanent partial disability, it is within the discretion of the Board to allow a servant who lost three-fourths of the use of his foot not to exceed 200 weeks' compensation, and an award of 934 weeks' compensation was not an abuse of discretion.

3. WORKMEN'S COMPENSATION - AWARD PARTIAL DISABILITY.

Under specific provision of Laws 1915, c. 106, § 41, where an injured employee has been paid his regular salary, or other moneys, while injured and not working, such payments may be deducted from the total award.

4. WORKMEN'S COMPENSATION

PARTIAL DISABILITY.

AMOUNT OF AWARD

By specific provision of Laws 1915, c. 106, § 44, the Industrial Board may award compensation for permanent partial disability in a lump

sum.

Appeal from Industrial Board.

Application by Albert F. Underhill for workmen's compensation, opposed by the Central Hospital for the Insane. From an award of the Industrial Board, the applicant appeals. Affirmed.

* Decision rendered, Dec. 4. 1917. 117 N. E. Rep. 870.

Ward H. Watson, of Indianapolis, James E. Watson, of Rushville, and Sol H. Esarey, of Indianapolis, for Appellant.

Ele Stansbury and Edward M. White, both of Indianapolis, for Appellee.

IBACH, J.

This is an appeal from an award of the whole board rendered on review and final hearing. The finding of facts filed with the award are substantially as follows: On May 16, 1916, Eugene Kellum was in the employ of the Central Hospital for the Insane at a monthly salary of $28, together with his room, board and laundry, which was worth $2.50 per week. On that day he received a personal injury by accident arising out of and in the course of his employment resulting in a 75 per cent permament impairment of the natural use and functions of the left foot. A physician was furnished him immediately upon the receipt of his injury, together with a room, board and laundry, continuously from the time of his injury to the date of the hearing, and he was further paid $28 per month until and including January 31, 1917, and $30 per month beginning on February 1 until April 13, 1917. He performed no service after the date of his injury for the money paid him, or his room, board, and laundry. However, he was entitled to these during the first thirty days after his injury as a part of the proper hospital expenses.

Upon these facts Kellum was awarded compensation at the rate of $5.50 per week for 9334 weeks, and a credit of $394 therefrom was allowed the appellee for the cash payments for board, room, and laundry, leaving a balance of $121.62, which was directed to be paid in a lump sum.

The controversy in this appeal arises solely out of the amount of compensation allowed appellant. He insists that the allowance should have been made under section 29 of the Workmen's Compensation Act of 1915 for a period approximating 500 weeks. This section of the act provides, in substance, that where the injured employee is totally disabled for work, he shall receive 55 per cent of his average weekly wages for a period not to exceed 500 weeks, and appellant's contention might be upheld were it not for the fact that the board has found, and there is evidence to support it, that appellant's injury did not cause a total disability of the natural use of his left foot and that he received no other injury, but rather a 75 per cent "permanent impairment.”"

[1] The finding of facts made by the board on conflicting evidence is conclusive on this court. Interstate Ins. & Steel Co. VS. Szot, 115 N. E. 599.

[2] The award of the Industrial Board was correctly made under the provision of sections 31, 41, and 44 of the Workmen's Compensation Act, supra. Under the provisions of section 31 for specific injuries appellant would have been entitled to compensation for 125 weeks if his foot had been severed at or above

the ankle. The facts of this case do not disclose a severance of appellant's foot or any part thereof; consequently it does not fall within the specific provisions of said section, but comes within the general provision thereof, wherein discretionary powers are given the board in such cases to allow compensation for a period of time not to exceed 200 weeks, and, since it is the duty of such board to weigh conflicting evidence, we cannot say as a matter of law that the Industrial Board abused its discretion in allowing appellant compensation for a period of 9334 weeks.

[3] The finding further discloses that the board deducted from the amount of the allowance figured upon the foregoing basis the amount of cash paid appellant after the expiration of thirty days from the date of the accident, together with the value of the room and board furnished him for almost a year thereafter, which amount he accepted, but for which he rendered no service for appellee. This was justified under the evidence, and was authorized by section 41, supra, which provides:

"Any payments made by the employer to the injured employee during the period of his disability, or to his dependents, which by the terms of this act were not due and payable when made, may, subject to the approval of the Industrial Board, be deducted from the amount to be paid as compensation: Provided, that in case of disability such deductions shall be made by shortening the period during which compensation must be paid and not by reducing the amount of the weekly payments unless otherwise hereinafter specified."

[4] Power is given the board under the statute to require the award to be paid in a lump sum, and there was no error in so doing in this case. Section 44, Workmen's Comp. Act (Acts 1915, pp. 392, 404).

Award affirmed.

APPELLATE COURT OF INDIANA.

DIVISION No. 1.

WALKER

VS.

CHICAGO, 1. & L. RY. CO. (No. 10078.)*

1. WORKMEN'S COMPENSATION ACT-ASSIGNMENT OF ERROR.

Under Workmen's Compensation Act, § 61, as amended by Acts 1917, c. 63, § 3, an assignment challenging the award of the full board * Decision rendered, Dec. 12, 1917. 117 N. E. Rep. 969.