5. MASTER AND SERVANT-WORKMEN'S COMPENSATION -REVIEW-DECISIONS APPEALABLE. Workmen's Compensation Act, providing for an appeal from an award of the full Industrial Board, does not authorize an appeal from an order awarding attorney's fees, made by two members thereof. (For other cases, see Master and Servant, Dec. Dig. § 417 [34].) Appeal from Industrial Board. Proceedings under the Workmen's Compensation Act by Harry C. Brown. From an order made by part of the Industrial Board fixing attorney's fees in favor of claimant's attorney, George W. Galvin, the latter appeals. Appeal dismissed. George W. Galvin, of Indianapolis, for appellant. James W. Noel, Eugene H. Iglehart, and Clinton H. Givan, all of Indianapolis, for appellee. BATMAN, P. J. The record in this case disclose that apellee, Harry C. Brown, was an employe of Nordyke & Marmon Company; that he received a personal injury by accident arising out of and in the course of his said employment; that he filed an application before the Industrial Board for an adjustment of his compensation because of such injury, which resulted in a final award in his favor against his employer of $11 per week for 100 weeks, beginning May 14, 1917; that afterwards appellee and his employer entered into an agreement, which was approved by the Industrial Board, whereby the latter's liability to appellee for 74 weeks of its compensation liability was redeemed by the payment of $796.89 in a lump sum; that appellant, George W. Galvin, represented appellee as his attorney in said proceedings; that some time after the adjustment and payment of said compensation appellee filed a petition before the Industrial Board asking that it fix the attorney fee due his said attorney for the services rendered by him in said matter; that appellant entered his special appearance to said petition, and filed a plea in abatement; that afterward appellee's said petition and appellant's said plea in abatement were submitted to two members of the Industrial Board, who heard the evidence and took the cause under advisement; that said two members of the board subsequently overruled appellant's plea in abatement, and made a finding of facts, and entered an order, whereby the fee of appellant for services rendered appellee in the prosecution of his said claim for compensation was fixed and approved at the sum of $88, and appellant was ordered to return to appllee all moneys received and retained by him in excess of said sum; that appellant thereafter filed his petition for a rehearing, and asked an order, setting aside and vacating the order theretofore made by the board, relating to his said attorney fee; that appellant presented his said petition in person to a single member of said board, and requested that he act thereon; and that said member, after considering said petition and being duly advised, overruled the same. Appellant is now attempting to prosecute an appeal from the order made by the two members of the board, relating to his said-attorney fee. Appellee has filed a motion to dismiss the appeal on the ground that this court has no jurisdiction to hear and determine the same, because the record fails to show an award by the full Industrial Board. [1, 2] In determing an appeal the question of jurisdiction is always of primary consideration. It is well settled that the right of appeal is wholly statutory, except where expressly secured by the Constitution. Hall v. Kincaid (1917) 115 N. E. 361. The right of appeal under the Workmen's Compensation Act is not a constitutional. right, but a purely statutory one. The only provision of said act, which confers any authority on the Industrial Board with reference to attorney fees is found in section 65, which reads as follows: "Fees of attorneys and physicians and charges of hospitals for services under this act shall be subject to the approval of the board." Acts 1915, p. 412. It is apparent that this section gives the board power to approve fees of attorneys for services rendered an employe in the prosecution of his claim for compensation, but the question arises as to whether such approval is subject to review by this court on appeal. We must look to the act itself for a determination of this question. The only section of the act conferring the right of appeal from the action of the Industrial Board is No. 61, as amended by the Acts of 1917. Acts 1917, p. 155. In order to determine the scope of the right thereby conferred, we must consider it in connection with certain of the preceding sections. Section 57, as amended by the act of 1917, provides that: "If after seven days from the date of the injury or at any time in case of death, the employer and the injured employee or his dependents reach an agreement in regard to compensation under this act, a memorandum of the agreement in the form prescribed by the Industrial Board shall be filed with the board," etc. Acts 1917, p. 228. Section 58 provides that: * "If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation under this act * * either party may make an aplication to the Industrial Board for a hear-ing in regard to the matters at issue and for a ruling thereon." Acts 1915, Said section 58, and sections 59 and 60 as amended by the act of 1917, provide for the manner of such hearing, for an award in pursuance thereof, and for a review of the same when made by less than all the members thereof. Acts 1917, p. 154. Section 61 then follows, and provides that: P. 410. "An award by the full board shall be conclusive and binding as to all questions of fact, but either party to the dispute may, within thirty days from the date of such award, appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions." Acts 1917, p. 155. (Our italics.) [3, 4] It is quite apparent that the dispute to which reference is made in said section is the difference between the employer and injured employee, arising from a failure to agree as provided in said section 58. The act nowhere makes any express provision for an appeal from an order approving or disapproving attorney fees, and we fail to find any provision from which any such right can be properly implied. Certainly a provision for an appeal from an award growing out of a disagreement between an employer and an injured employee with reference to the latter's compensation, cannot be so construed as to imply the right of appeal in a collateral matter based on the action of the board in approving or disapprovnig attorney fees, which must necessarily arise out of an express or implied contract, between the injured employee and his attorney. The two matters are so far unrelated as to forbid such an implication. We therefore conclude that there is no authority for an appeal from an order of the Industrial Board, approving or disapproving attorney fees. Having reached this conclusion, it is our duty to dismiss the appcal, although appellee has not raised the question in any form. Schultz v. Alter (1915) 60 Ind. App. 245, 110 N. E. 230. [5] But even if the law were otherwise with reference to the question we have been considering, we would still be compelled to dismiss this appeal on the ground stated by appellee. The statue only provides for an appeal from an award by the full board. Acts 1917, p. 155. The record in this case fails to disclose any award from the full Industrial Board, and hence an appeal is unauthorized. For the reasons stated the appeal is dismissed. ACT-INJURIES ARISING OUT OF THE EMPLOYMENT. In proceeding for workmen's compensation, facts surrounding accident held to warrant conclusion that the workman's injury and death arose out of his employment. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION -PROCEEDING-DUTIES OF INDUSTRIAL BOARD. It is the exclusive province of the Industrial Board to consider testimony in a proceeding for workman's compensation and give it such weight as in the judgment of the board is proper. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 4. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS-INJURY "ARISING OUT OF AND IN COURSE OF EMPLOYMENT." "Injury arising out of and in the course of employment" includes Injuries to employees whose services are being performed about the premises of the employer, and at places where their employer's business requires their presence, and subjects them to dangers incident to the busi ness. (For other cases, see Master and Servant, Dec. Dig. § 371.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 5. MASTER AND SERVANT-WORKMEN'S COMPENSATION -EFFECT OF INTOXICATION. Though a workman's injury arose out of the employment, there can be no award of compensation, where his injury and death were due to his intoxication, in view of Workmen's Compensation Act, § 8. (For other cases, see Master and Servant, Dec. Dig. § 381.) Appeal from Industrial Board. Proceeding by Anna Totzke and others for workman's compensation for the death of Anton Totzke, deceased, opposed by the Great Lakes Dredge & Dock Company, employer. From an award of the Industrial Board in favor of applicant, the employer, appeals. Affirmed. W. J. Whinery, of Chicago, Ill, for appellant. DAUSMAN, C. J. For about 25 years one Anton Totzke was in the employ of appellant as a workman. On April 25, 1918, he came to his death under the circumstances hereinafter stated. His widow and minor * Decision rendered, Jan. 31, 1919. 121 N. E. Rep. 675. child, as sole dependents, applied to the Industrial Board for an award of compensation. Answer in two pararagraphs: (1) General denial; and (2) that the injury which caused the workman's death was due to his intoxication. The board heard the evidence and made an award. Appellant contends: (1) That the workman's death did not arise out of the employment; and (2) that it was due to his intoxication. [1] In this finding the board included the following facts: "On and prior to the 24th day of April, 1917, the Inland Steel Company was a corporation owing and operating a steel plant at Indiana Harbor, in Lake county, Ind. The plant of said Inland Steel Company covered a very large tract of ground, the exact size of which is not shown by the evidence. At said time and prior thereto the plant of the said Inland Steel Company was inclosed by a fence. On said date and prior thereto the Great Lakes Dredge & Dock Company, under contract with the Inland Steel Company, was engaged in driving pile on the Lake Michigan front of the plant of the Inland Steel Company and within the inclosure of the Inland Steel Company. The employees of the Great Lakes Dredge & Dock Company at said time were admitted to the plant of the Inland Steel Company upon cards or passes issued to them by the Great Lakes Dredge & Dock Company. Said employees were required to enter the Inland Steel Company inclosure at a gate known as the Baltimore avenue gate. Only the employees of the Great Lakes Dredge & Dock Company and automobiles and other vehicles were admitted at said gate at said time. On the 24th day of April, 1917, one Anton Totzke was in the employment of the Great Lakes Dredge & Dock Company at an average weekly wage of $21.80, and at said time he was employed-by the Great Lakes Dredge & Dock Company in the work of driving piles and constructing a foundation for the said Inland Steel Company at the point hereinbefore designated. Within the inclosure of the Inland Steel Company there is a network of railroad tracks, the exact number of which is not shown by the evidence. From the Baltimore avenue gate of the Inland Steel Company a stone and cinder road, for the use of vehicles and pedestrains, leads to the west across many of the railroad tracks in the Inland Steel Company plant, a distance of about one-half a mile, and this road is the proper route over which the employees of the Great Lakes Dredge & Dock Company should pass from the Baltimore avenue gate in proceeding from said point to the point where the Great Lakes Dredge & Dock Company was driving its piles and constructing the foundation hereinbefore mentioned. On the evening of the 24th of April, 1917, the said Anton Totzke, in company with two other employees of the Great Lakes Dredge & Dock Company, appeared at the Baltimore avenue gate of the Inland Steel Company and presented their passes to the gatekeeper, an employee of the Inland Steel Company, and were admitted into the plant of the said Inland Steel Company. The three employees proceeded westward upon said highway a short distance, the exact length of which is not shown by the evidence, to a track upon which was a locomotive engine of the Illinois Central Railroad Company, which had been leased to the Great Lakes Dredge & Dock Company, and at said point the two employees, who were in company with the said Anton Totzke, boarded said engine and rode from said point to the point where the Great Lakes Dredge & Dock Company was driving this piling and constructing the foundation as hereinbefore mentioned. When said two employees boarded the said locomotive, the said Anton Totzke was standing in the highway filling his pipe, and from said point the said Anton Totzke proceeded westward upon the roadway hereinbefore mentioned, and on his way to his work at the point where the Great Lakes Dredge & Dock Company was driving piling and constructing the aforesaid foundation. While traveling westward on said road, and when passing over the point where one of the railroad tracks crosses said road, the said Anton Totzke was struck by a locomotive, or by the cars attached thereto, switch ing upon said railroad track, and was dragged back toward the Baltimore avenue gate, and in said collision his skull was fractured, three ribs were broken, and both his legs were severed below the knee joints. At the time Anton Totzke entered the plant of the Inland Steel Company on April 24, 1917, at the Baltimore avenue gate, there were nine standard gauge locomotive engines and two narrow gauge locomotive engines switching backward and forth upon said railroad tracks and across the highway upon which the said Totzke was traveling, and in traveling from the said Baltimore avenue gate to the point where he was to perform his work for the Great Lakes Dredge & Dock Company, he was necessarily exposed to the danger of being struck by said locomotive engines at the points where said railroad tracks crossed said road." The evidence tends fairly to support the facts above stated. Indeed there is little, if any, conflict in the evidence with reference to any of said facts. That the workman's injury which resulted in his death arose out of his employment is a legitimate conclusion to be drawn from said facts. [2, 3] Counsel for appellant contends that there is undisputed evidence showing that before the accident the workman was seen going westward toward the particular spot where his work was to be performed, and soon thereafter was seen retracing his steps eastward toward the place where he was found after the accident; that the only inference that can be drawn from the evidence on this point is that he was proceeding eastward with the intention of going out of the plant of the Inland Steel Company for some purpose wholly his own and in no way connected with the employment; and that therefore, the ultimate conclusion must be that his injury and death did not arise out of the employment. The testimony of the witness Mr. Anderson tends to prove what counsel claim it does prove, and, in the sense that no other witness testified that Mr. Anderson did not see what he claims to have seen, Mr. Anderson's testimony is undisputed. But the testimony of a witness may be so inheretly weak as to be unable to stand against the facts shown by other evidence and the inference to be drawn therefrom; or it may be so inconsistent with other facts and circumstances as to have little or no weight; or it may be so inherently improbable that it amounts to mere conjecture. It was the exclusive province of the Industrial Board to consider Mr. Anderson's testimony in connection with all the other evidence, and to give it such weight as in the judgment of the members of the board was fairly attributable thereto. In that respect we cannot disturb the acting of the board; for there are many facts and circumstances in evidence which are inconsistent with his testimony. Furthermore, if it were conceded that when the accident occurred the workman was going eastward, away from the particular point where his work was to be performed, that fact would not necessarily defeat an award. [4] In all these cases the question whether the injury or death arises out of and in the course of the employment does not depend on the minute details of what the workman was doing at the time of the accident, or how he was doing it, or whether he was in any manner at fault. It depends rather on the broader and simpler question whether the injury or death was due to a hazard to which the workman would not have been exposed, apart from the business in which he was employed. See Dow's Case (Mass.) 121 N. E. 19. The Workmen's Compensation Law of the state of Iowa (Acts 35th Gen. Assem. c. 147, § 17 [e] contains the following declaration: "The words 'personal injury arising out of and in the course of such employment' shall include injuries to employees whose services are being performed on, in or about the premises which are occupied, used or controlled by the employer, and also injuries to those who are engaged else where in places where their employer's business requires their presence and subjects them to dangers incident to the business." |