2. MASTER AND SERVANT - DEATH BY FALL DURING ATTACK OF VERTIGO HELD ACCIDENT, WITHIN COMPENSATION ACT; “ARISING OUT OF EMPLOYMENT." Where a painter standing on a ladder by reason of his employment fell as the result of sudden attack of vertigo, the injuries causing his death resulted from an accident "arising out of his employment" and not from disease, and compensation under the Workmen's Compensation Act was allowable. (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 3. MASTER AND SERVANT-INDUSTRIAL BOARD'S FINDING ON EVIDENCE FINAL. A finding by the Industrial Board that the death of an employee was the result of an accident arising out of the employment, within the Workmen's Compensation Act, will not be disturbed, where there is evidence to support it. (For other cases. see Master and Servant, Dec. Dig. § 417[7].) Appeal from Industrial Board. Claim under the Workmen's Compensation Act (Laws 1915, c. 106) by Jennie M. Shertzer and another for the death of John H. Shertzer, an employee, against the Board of Commissioners of Greene County, employer. From an award of the Industrial Board in favor of claimants, the employer appeals. Affirmed. William L. Cavins, of Bloomfield, D. W. McIntosh, of Linton, and Guy H. Humphreys, of Bloomfield, for appellant. William L. Slinkard, of Bloomfield, for appellees. REMY, J. The superintendent of the county poor asylum of Greene county, by oral direction of the board of commissioners of said county, the appellant herein, employed one John H. Shertzer, a painter and paperhanger, to do certain painting and paper hanging, for which work said Shertzer was to receive 50 cents an hour for painting and 30 cents a roll for hanging the paper. Appellant was to, and did, furnish the necessary ladders and scaffolding, and was also to select and furnish the paints, paper, and other materials to be used in the work. Shertzer was to be "his own boss" as to how the paint and paper was to be put on. A few minutes after he had eaten a heavy dinner, and while doing the work, Shertzer fell from a ladder on which he was standing and upon the floor of the room where the work was being done. When asked how he came to fall, he replied that he "became dizzy, and seemed to be going round and round." As a result of the injuries thus received, Shertzer died ten days later. The physician who attended him stated that dizziness such as was complained of by Shertzer might have been the result of eating an excessive meal. Appellees, who were the dependents of Shertzer, made application to the Industrial Board for compensation, and, upon hearing evidence showing the above facts, the board found that Shertzer at the time of his injury was in the employment of appellant, and that his death was the result of an accident arising out of and in the course of such employment, and made an award in favor of appellee Jennie M. Schertzer. Appellant has assigned as error that the award is not sustained by sufficient evidence, and is contrary to law. It is first urged by appellant that Schertzer at the time of the accident which resulted in his death was an independent contractor, and that there Vol. VI-Comp. 21. is no evidence to sustain the finding of the Industrial Board that he was at that time in the employment of appellant. [1] It appears from the evidence, as above stated, that Shertzer was hired to do the painting and paper hanging, the materials to be selected and furnished by appellant; that appellant was to supply the ladders and scaffolding required in the conduct of the work and that his compensation was to be 50 cents an hour for the painting and 30 cents a roll for the papering. Under such contract Shertzer could have ceased work at any time he chose, and appellant could have discharged him at any time. The evidence that in the work of putting on the paint and paper Shertzer "was his own boss" must be considered in conection with the other evidence as to the relationship of the parties to the contract, and when so considered it cannot be said that Shertzer must be held to have been an independent contractor. We hold that there is evidence to support the finding of the Industrial Board that Shertzer was at the time in the employment of appellant. See Muncie Foundry, etc., Co. v. Thompson, 123 N. E. 196. Caca v. Woodruff, 123 N. E. 120; Zeitlow v. Smock, 117 N. E. 665. It is asserted by appellant that it conclusively appears from the evidence that Shertzer fell to his death as a result of an attack of vertigo, and that therefore there can be no recovery of compensation, even though it should be found that at the time of the accident he was in the employ of appellant. [2] If it be conceded that. Shertzer's fall was the result of vertigo, it does not follow that the cause of his death was the disease. A fall as a result of vertigo would not, in all probability, have caused death or serious injury, had it not been for the fact that Shertzer was at the time, and by reason of his employment, standing upon the ladder. The exact question here presented was recently decided by this court adversely to appellant's contention. Miller v. Beil, 127 N. E. 567. See, also, Carroll v. What Cheer Stables Co., 38 R. I. 421, 96 Atl. 208, L. R. A. 1916D, 154, Ann. Cas. 1918B, 346; Wicks v. Dowell & Co., 2 K. B. 225, 2 Ann. Cas. 732. [3] The question as to whether or not the death of the employee was the result of an accident arising out of his employment was a question for the Industrial Board. American Hominy Co. v. Davis, 126 N. E. 703. There is evidence to support the finding and award. The award is affirmed, and by virtue of the statute the amount is increased 5 per cent. INDIAN CREEK COAL & MINING CO. v. BEACH. (No. 10734.) (Appellate Court of Indiana, Division No. 1. June 22, 1920.) 127 Northeastern Reporter 850. MASTER AND SERVANT-BOOKKEEPER'S KNOWLEDGE OF EMPLOYEE'S INJURY HELD NOT NOTICE TO EMPLOYER REQUIRED BY COMPENSATION ACT. That employer's bookkeeper had actual knowledge of employee's injury did not dispense with necessity of giving employer, a corporation, the written notice required by Workmen's Compensation Act, § 22, which notice required to be served on employer or agent on whom a summons in a civil action could be served. (For other cases, see Master and Servant, Dec. Dig. § 398.) Appeal from Industrial Board. Proceeding under Workmen's Compensatoin Act by Cora Beach for compensation for death of her husband, Paris H. Beach, opposed by the Indian Creek Coal & Mining Company, employer. Award for claimant by the Industrial Board, and the employer appeals. Reversed and remanded. Chas. E. Henderson and James L. Murray, both of Indinapolis, for appellant. John A. Riddle, of Vincennes, for appellee. ENLOPE, P. J. One Paris H. Beach was, on the 29th day of November, 1917, an employee of the appellant company, and it is claimed that on said date he received an injury by being struck in the pit of the stomach, while engaged at his work, by a "jack pipe," which then and there fell. On the 5th day of July, 1919, the said Paris H. Beach filed an application before the Industrial Board, for the adjustment of his claim for compensation for said alleged injury. The case was first heard by one member of the board, but before an award was made the said Paris H. Beach died of cancer of the stomach. Thereafter by agreement of the parties, his widow, Cora Beach, was substituted as a party to the action. The one member of the board who heard said cause made an award, allowing the appellee compensation at $13.20 per week for 300 weeks and burial expenses not exceeding $100. Application was duly made for the review of such award by the full Industrial Board, which application was granted and such review had. Upon review by the full board said board by a majority of its members made the following finding: And the full board having heard the argument of counsel, having reviewed the original evidence, and being fully advised in the premises finds by a majority of its members that on the 29th day of November, 1917, one Paris H. Beach was in the employment of the defendant at an average weekly wage in excess of $24; that on said date he received a personal injury by an accident, arising out an in the course of said employment, which resulted in his death on the 24th day of July, 1919. That the defendant had actual knowledge of the injury to the said Paris H. Beach on the first or second day after it occurred, and had actual knowledge of his death immediately after it occurred. That the said Paris H. Beach left as his sole and only dependent the plaintiff, Cora Beach, his wife, with whom he was living at the time of his injury and death." Upon which finding by a majority of its members, it, by a majority of its members, made the same award heretofore stated. From this award this apeal is prosecuted, and the appellant alleges that "the award of the full Industrial Board of Indiana is contrary to law." The appellant contends that the said award is contrary to law for the reason "that the uncontradicted evidence shows that no notice of any accident or injury to the deceased was given to his employer, and that his employer had no knowledge of the same within the time required by the statute." Section 22 of the Compensation Act (Acts of 1915, p. 392) provides: "Every injured employee or his representative shall immediately upon the occurence of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employee shall not be entitled to pyhsician's fees nor to any compensation which may have accrued, under the terms of this act, prior to the giving of such notice; unless it can be shown that the employer, his agent or representative had knowledge of the injury or death, or that the party required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person, or for equally good reason; but no compensation shall be payable unless such written notice is given within thirty days after the occurrence of the injury or death, unless reasonable excuse is made to the satisfaction of the Industrial Board for not giving such notice." In this case there is no claim that a 1y written notice was given, nor are any of the reasons mentioned in said section for not giving such written notice offered in this case save and except the first only, to wit, "that the appellant had actual knowledge of the said alleged injury on the first or second day after the same occurred," and that therefore, under said section of the statute, no notice was required. The Industrial Board found in accordance with the claim of the appellee that the appellant had such actual knowledge, and the question which we have to consider is. Is there any evidence in the record to support said finding? If there is, this award must be affirmed, otherwise reversed. The deceased in his said application for 'compensation had alleged that the appellant had actual knowledge of said injury, and at the hearing there was an attempt to establish this fact. The deceased in his testimony given before the one member of the Industrial Board had testified, so far as material to the point now under consideration: ones. * * "Mr. Blakely was with me. * * * It knocked the breath out of me and Mr. Blakely carried me back, but I went back to work in a couple or three hours. * *After my injury and at the time no representative of the mine or any of the bosses knew anything of it unless some one told them. I did not tell them. * * * William McQuade was the superintendent at the time. I did not talk to him about it. * * * I did not talk to any one, except some of the men. I do not know which I think Mr. Gray is the only one I told about getting hit. I never gave the mine any other kind of notice, or take any thought about it. * * I never sent regular word to my boss. * * I told Mr. Gray about getting hit in the stomach the night following. * * * I think he asked me why I was not at work. * * * I do not remember that I told Mr. Gray to tell them I was sick. * * * At the time the jack pipe blew off I told Ed Gray. the bookkeeper, about it when I came home. He lived right here. * I talked to Jack or Pat or Bill [McQuade]-I don't know which one.' * * From the foregoing it conclusively appears that the knowledge, which it was necessary for appellant to have, which would excuse the giving of the notice required by the statute, must rest, if at all, upon the conversation had, as testified to between the deceased, Paris H. Beach, and Ed Gray, one of the bookkeepers at appellant's mine. Was notice to Ed. Gray a sufficient notice to bind appellant in the matter of its having knowledge? The statute then in force concerning the giving of notice (section 23 of said act) provided: "Said notice shall be given personally to the employer or any of his agents upon whom a summons in civil action may be served under the laws of this state. * It will not be contended that a summons served on Ed Gray, as one of the bookkeepers, at his home at the time and under the circumstances disclosed by the testimony of the deceased, without a further showing that there was no superior officer of appellant company in said county upon whom service of process could be had, would be a valid service; and it has been expressly held that a conversation between the wife of an injured employee and the bookkeeper, at the employer's factory, was not a verbal notice to the employer of the accident, nor can it be inferred that the bookkeeper was under any duty to communicate what the wife told him to the employer, or that he actually did so. Eydman v. Premier, etc., Co., Ltd. (1915) W. C. & Ins. Rep. 82. The finding of the Industrial Board as to the appellant's knowledge of said accident, not being sustained by any evidence, the said award is therefore contrary to law. The award of the Industrial Board is therefore reversed, and this cause remanded to the Industrial Board for further proceedings. MILLER ET AL. v. BEIL ET AL. (No. 10759.) (Appellate Court of Indiana, Division No. 1. June 2, 1920.) 1. MASTER AND SERVANT DEATH OF EPILEPTIC FROM DROWNING IN TANK AN ACCIDENT "ARISING OUT OF EMPLOYMENT." Where an epileptic employee during a seizure fell into a tank of water because in a position where his employment required him to be, and was drowned, the accident "arose out of his employment," though its remote cause was to be found in his own physical condition, and his dependents were entitled to compensation under Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 373.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment. 2. MASTER AND SERVANT-ACCIDENT ARISING OF EMPLOYMENT QUESTION OF FACT FOR INDUSTRIAL BOARD. Whether or not the death of an employee was the result of an accident arising out of his employment was a question of fact for the Industrial Board. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act for the death of Carl Beil, the employee, by Frank J. Beil and Charlotte E. Beil, against Jacob Miller and John Young, the employers. Compensation was awarded by the Industrial Board, and the employers appeal. Judgment affirmed. Turner, Merrell & Locke, of Indianapolis, for appellants. REMY, J. Appellants were in the business of threshing wheat and other grain. Steam power was used, and appellants had in their employ at the time one Carl Beil whose duty it was to haul water from a nearby reservoir, in a water tank drawn by horses. The water tank was made of wood, and was 72 feet long, 3 feet wide, and 28 inches deep, with an opening in the top 23 inches square. By the side of the opening, and fastened to the top of the tank, was a pump. When the tank was being filled, the water was pumped through a hose which connected the pump with the reservoir. In operating the pump it was necessary for Beil to |