[the doctor] say anything to Mr. Burrows [appellee] about the company paying you for your services? A. I told him that was the reason he was sent to me, because I did and had done surgery work for most of the factories in that end of the city." That upon the doctor's suggestion, and with appellee's consent, a specialist was called to see him and an X-ray was taken of his head. That Dr. H. R. McKinstry treated appellee at the request of the appellant. That after appellee had been down to see Dr. Tinsley he came into the drug store of Homer D. Bassett, with a prescription, and said he had no money, and Mr. Bassett testified, "We called up the Talge Mahogany Company, and they stated over the telephone for me [the druggist] to go ahead and give him what he needed, and charge it to them." This was in the presence of appellee. Afterward he and other members of his family got prescriptions filled which the druggist charged to appellant. That appellee never paid any of these doctors or the druggist, but appellant paid all of them. and that appellee never repaid, nor offered to repay, appellant the money so expended. As applied to the evidence, including what has just been reted, the court gave the jury appellee's instruction No. 9, as follows: (9) There is evidence in this cause tending to establish that defendant paid certain physicians for services rendered plaintiff and paid for drugs furnished to plaintiff. You are instructed, if same were paid without the knowledge, direction, or consent of plaintiff would not be binding upon plaintiff, and such payment, under such conditions, would not establish, or tend to establish, the fact that plaintiff had elected to accept compensation for injuries he may have sustained, under the Indiana Workmen's Compensation Act: nor would the plaintiff be required to repay or offer to repay said sums to defendant, or tender same into court, as a condition to the maintaining of this action, if same were ra'd by defendant, and under the circumstances and conditions mentioned in this instruction." [14, 15] As applied to the evidence above recited, this amounted to an instruction that, even though the appellee asked of the appellant, as his employer, that it incur a liability for said bills for doctors and medicines, pursuant to the duty imposed on employers by the Workmen's Compensation Act (Acts 1915, c. 106, p. 398, § 25) as explained to him by Dr. Tinsley, and that at his request the appellant did engage to pay all of these bills before they were incurred yet, if appellant thereafter paid such obligations without the knowledge, direction, or consent" of the appellee, all the appellee had done to get appellant bound for their payment must be disregarded and the facts would not tend to estabthat appellee had elected to accept compensation under the statute. nor would appellee be required to repay any of the amounts so paid out, as a condition of repudiating the binding force of his first election to proceed under the Workmen's Compensation Act. This was erroneous. It is true that there was also evidence directly to the contrary disputing this evidence as to all points favorable to appellant, and denying that appellee knew that any liability for medical treatment or medicines was incurred by appellant on his behalf, or knew that they had been ordered by appellant when he accepted the treatment by the physicians and when he obtained the medicines at the drug store. And it may be, as counsel assert, that the jury did not believe appellant's witnesses. But appellant was entitled to have questions of fact, upon which the evidence was conActing, submitted to the jury for decision, and not determined by counsel and the court, as declared by an instruction. The instruction No. 9 invaded the province of the jury. If appellee applied for and received medical treatment with knowledge that his employer had engaged the physicians because of the requirements of the Workmen's Compensation Act, and procured prescriptions given him by such physicians to be filled on his employer's credit with knowledge that the druggist had first called up his employer and obtained its promise to pay for them, as these witnesses testified, that would be evidence from which the jury could find an election to proceed under the Compensation Law, with the same effect as if he had accepted weekly payments, and to be repudiated in the same way upon discovery of facts justifying such repudiation. [16] Appellee's instruction No. 10, given by the court, was also erroneous for the same reason. If the appellee had procured appellant to bind itself for the payment of bills for medical attention and drugs. pursuant to the Compensation Law, as was testified by appellant's witnesses, any notice which he thereafter gave of an election not to accept compensation for his injuries would not release appellant from a prior promise to pay the physicians and druggist, if it had made such a promise, nor would the notice before they were actually paid affect appellee's liability to repay appellant for what it was compelled to pay in the discharge of obligations which it had nccurred on behalf of appellant, at his solicitation, if any there were. [17] Appellant's requested instruction No. 10 was to the effect that an election to pursue one of two available remedies was bind ng. and took away the right afterward to pursue the other remedy; but that if appellant had made such a binding election to accept compensation under the Workmen's Compensation Law, a subsequent unsuccessful attempt to recover in an action at law would not defeat his right to receive the compensation which he had so elected to take. The form of this instruction could be improved, but it states a rule of law of which the jury should have been advised, to guard against the possible effect of a mistaken notion which the jury might otherwise have that if they found for the defendant the injured workman would receive nothing at all. Instructions numbered 19 and 20, requested by the appellant, stated the law as applied to the issues and evidence in this case. They might require modification if there were an issue of fraud or if there were evidence showing that appellee did the acts enumerated in ignorance of some material fact, and that upon learning of such fact he took the necessary steps to revoke the election of remedies made in ignorance of it We do not find it necessary to consider, and do not decide, whether the answers to interrogatories show the refusal of these instructions to have been harmless, since the judgment must be reversed for other rea sons. [18] The appellee was permitted to testify that he did not know the provisions of the Workmen's Compensation Act at the time he received $10 from Mr. Strassler, and at the time his wife received the check for $12.29 which he said he did not indorse. and that he thought these were mere gifts. As applied to this evidence the appellant requested the court to give instruction No. 28, as follows: "(28) I instruct you that ignorance of the law on the part of any ltigant is no excuse when it comes to a determination of his rights with an adversary in the courts. The presumption prevails that every man knows the law, and it follows from the fact that he must be bound by the law. Some evidence has been introduced in the trial of this cause on behalf of the plaintiff, tending to establish the fact that the plaintiff, was ignorant of his rights under the Compensation Act of the state of Indiana and that he did not know there was such a law. I further instruct you that you have no right to consider this fact in determining whether or not the plaintiff elected to take compensation under the Compensation Law, nor should you consider such fact for any purpose whatever in determining the respective rights or the plaintiff and the defendant in this action." As applied to this case, in which no issue of fraud is presented by the pleadings, and there is no evidence of fraud on the part of appellant in taking advantage of appellee's ignorance of the law to deceive or mislead him, this instruction was correct. and should have been given. It is not the law that a person who has done an act, with full knowledge of all material facts, can avoid the consequences annexed by law to such act, by alleging and testifying that when he did it he was not advised that the law gave him a choice between that course and a different one, and that he afterward learned what the law was and choose the different course. If appellee did acts which, in law, amonted to an election to take under the Workmen's Compensation Act, and at the same time preserved the right to repudiate such election and sue at law, it must have been because he was ignorant of a fact or facts material to his rights; not because he had failed to be fully advised as to the law. [19] Some parts of instruction No. 30, reqested by the appellant, were correct as far as they went, but the statement therein that "the burden rests upon the plaintiff to establish by a fair preponderance of the evidence that said sums of money were paid to and received by the plaintiff as a charity or gifts, and not as compensation under the Workmen's Compensation Law," was inaccurate. Appellant had the burden, under its answer, to establish that appellee had elected to accept compensation. This it might do by showing that money was paid to and received by appellee under circumstances raising an inference that it was paid and reeived as compensation. But evidence sufficient to rebut this presumption and overcome such proof would prevent appellant from sustaining the burden resting upon it, and the burden of proof as to this matter did not shift. Without taking up in detail the other instructions, given and refused, of which complaint is made, we think the law which should govern the court in giving instructions upon a retrial of the case has been sufficiently declared. Complaint is made of the exclusion of certain evidence on crossexamination of witness. Appellee does not dispute that the evidence was competent but insists that it was not proper cross-examination concerning anything that had been testified by the witness at the time the questions were asked, and that the questions were not repeated after the witness had been examined on that subject. We do not feel justified in extending this opinion by setting out the facts necessary to a decision of the questions thus presented, as they will probably not arise upon another trial. [20] The act of counsel for the appellee, while arguing the case, in reading to the jury an interrogatory and saying that "your answer to that question should be No," was a breach of his duty as an attorney. The argument should be devoted to convincing the jurors that the evidence before them does or does not prove certain facts, and not to instructing them arbitrarily that they should give a certain answer to an interrogatory. But it appears that counsel thereupon did discuss the evidence relating to such interrogatory, and in view of the large discretion exercised by the trial court over the argument of a case, the question whether the ruling of the court upon appellant's several motions with relation to such misconduct was cause for reversing the judgment will depend upon a consideration of facts which we do not deem it necessary to set out in this opinion, already too long. Therefore we do not decide whether or not such rulings constituted reversible error. The judgment is reversed, with directions to sustain appellant's motion for a new trial, and for further proceedings not inconsistent with this opinion. Townsend, J., absent. WRIGHT v. WEIL BROS. & CO. (No. 10994.) (Appellant Court of Indiana, Division No. 1. May 13, 1921) 130 Northeastern Reporter, 878. 1. MASTER AND SERVANT COMPENSATION BOARD'S DUTY TO "FURNISH" FORMS DOES NOT REQUIRE FORWARDING. Workmen's Compensation Act, § 56, providing that the Industrial Board shall prepare and cause to be printed and on request furnish free of charge to any employer or employee such blank forms as it shall deem requisite to promote efficient administration of the act, does not impose on the Industrial Board the duty of mailing or transporting the forms which it is required to prepare and cause to be printed; "furnish" meaning to supply or provide. (For other cases, see Master and Servant, Dec. Dig. § 397.) (For other definitions, see Words and Phrases, First and Second Series, Furnish.) Appeal from Industrial Board. Proceedings for compensation under the Workmen's Compensation Act by James F. Wright, the employee, opposed by Weil Brothers & Co., the employer. Compensation was denied, and the employee filed application for review before the full Industrial Board, which application was dismissed, and the employee appeals. Affirmed. Emmett V. Harris, of Ft. Wayne, for appellant. REMY, C. J. Appellant, claiming that he had received injuries by reason of an accident arising out of and in the course of his employment by appellee, filed with the Industrial Board an application for compensation. In a hearing before a single member, of the board, appellant was, on September 3, 1920, denied compensation. On September 13, 1920, appellant filed his application for review before the full board, which application was thereafter dismissed for the reason that it was not filed within seven days after the date of the award, as required by section 60 of the Workmen's Compensation Act (Acts 1915, p. 410). After application for review was filed, and before the dismissal was ordered appellant filed with the board an affidavit, setting forth that on September 4, 1920, which was the next day after he had been denied compensation in a hearing before a single member of the board, appellant was notified of the finding and award, and that immediately upon receiving such notice appellant, who resided at Ft. Wayne, Ind., caused a letter, to be written to the clerk of the Industrial Board, the same being addressed to the offices of the board in the city of Indianapolis, requesting said clerk to forward to appellant a blank form of application for review before the full board; that on September 8, 1920, appellant, having had no response to said letter, caused a typewritten application for review before the full board to be prepared, which, on September 8, 1920, was duly mailed to the Industrial Board, but that because of insufficient postage the same was not delivered, but was returned to appellant, who promptly remailed it with sufficient postage. However, the application did not reach the office of the Industrial Board until September 13, 1920, which was two days late. It is contended by appellant that his failure to file his application for review within the seven days required by the statute was due to the failure of the Industrial Board to forward to him the printed blank application form when requsted by mail so to do; that to forward such printed form was a duty of the board made mandatory by section 56 of Workmen's Compensation Act; and that the rights of appellant cannot be prejudiced by the neglect of the Industrial Board to perform this statutory duty. The provision of said section 56 referred to is as fo!lows: "The board shall prepare and cause to be printed, and upon request furnish free of charge to any employer or employee, such blank forms and literature as it shall deem requisite to facilitate or promote the efficient administration of this act." The meaning of the [1] It will be observed that this provision does not impose upon the Industrial Board the duty of mailing or transporting the forms which it is required to prepare and cause to be printed. word "furnish" as used is to supply or provide Co. v. John P. Sharky Co., 58 Or. 480, 115 Pac. 156. There is therefore, no merit in appellant's contention. [2] A further excuse of appellant for his failure to file the applcation for review within the time required by statute is that there is a rule of the Industrial Board which requires that all such applications shall be on printed blank forms furnished by the board, and that it was impossible for him to comply with this rule because of the failure of the board to send him such blank form. The rule referred to, if there is such a rule, is not set out in any pleading, nor in any way made a part of the record; and this court cannot take judicial notice thereof. Hagenbeck v. Leppert, 65 Ind. App. 261, 117 N. E. 531. Therefore, the validity of such rule or its effect if valid, is not presented. Affirmed. ALVARADO v. FLOWER BROS. ROCK CRUSHER CO. (No. 23342.) (Supreme Court of Kansas. May 7, 1921.) 197 Pacific Reporter, 1091. (Syllabus by the Court.) MASTER AND SERVANT-QUARRYMAN'S INJURY HELD NOT WITHIN DANGER ZONE, WARRANTING COMPENSATION. The proceedings in an action for compensation examined, and held, there was no evidence that the plaintiff, a quarry workman, was injured while he was within the zone of danger from operation of the quarry. (For other cases, see Master and Servant, Dec. Dig. § 373.) Appeal from District Court, Geary County. Action under the Workmen's Compensation Act by Jose Alvarado against the Flower Brothers Rock Crusher Company. Judgment for defendant, and plaintiff appeals. Affirmed. Herrod & Roberts, of Kansas City, and Platt & Coleman of Junction City, for appellant. Jas. V. Humphrey and A. S. Humphrey, both of Junction City, for appellee. BURCH, J. The action was one for compensation. The court rendered judgment against the plaintiff on his own evidence, and he appeals. |