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the computation of weekly earnings as a basis [ employers during each day or group of days. of an award is to be made as if all the earn- The question presented was whether his comings were earned in the employment of the pensation was to be based upon all of his one who was employer at the time of the in-weekly earnings as longshoreman, or upon jury, provided the services are performed in the wages or earnings paid by the employer

the same occupation."

A case in all respects similar to the one at bar was before the California Supreme Court. Western Supply Co. v. Pillsbury, 172 Cal. 407, 156 Pac. 491, Ann. Cas. 1917E, 390. The facts of that case as stated in the opinion were as follows:

for whom he was engaged at the particular time he received his injury. In the course of its opinion the Massachusetts Supreme Court says:

"It is obvious from the broad scope of the act and its comprehensive dealing with the whole subject that it was intended to provide

"James Mason was employed as a night watch-for the employé as compensation within the man by the applicant, Western Metal Supply the amount which he earned weekly. It canlimits specified therein a definite proportion of Company, and at the same time by five other cor- not be presumed that the Legislature intended porations. He made regular rounds of the premises of the six employers. For his services he re- to offer a scheme of accident insurance which ceived $30 per month from the applicant. The would be illusory or barren to large numbers others for whom he acted as watchman paid him of workmen. 'Weekly wages' as used in the different sums, his aggregate monthly earnings first sentence quoted above plainly means all from the six employers being $116. The West- the wages which the employé received in the ern Metal Supply Company knew that he was course of a permanent employment, which are all acting as watchman for other employers, but did the wages he receives. * * * Therefore, we not know the number of such other employers reach the conclusion that average weekly wages, nor the identity of all of them. Mason's employ-as used in the clause of the act last quoted, was ment was by separate agreement with each of his not intended to apply to recurrent periods of employers, and not by any joint agreement or the entire time of the workmen is devoted to brief service at regular intervals, in cases where joint employment. ** "The dead body of Mason was found upon the premises of like employment for other employers in the same Western Metal Supply Company, general kind of business. *** Although not death having been caused by gunshot wounds stated in precise words, we think that the geninflicted by unknown persons engaged at the eral import of the act is to base the remuneratime of the murder in committing burglary upon by workmen for the grade of work in which tion to be paid upon the normal return received the said premises.' * * * The commission awarded * * * compensation * * * based the particular workman may be classified. upon the aggregate amount which he received demonstrated by his conduct in such regular The loss of his capacity to earn, as from his six employers." employment, is the basis upon which his com

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In discussing the question presented, the pensation should be based." court said:

The statutes of California and Massachusetts, which were under consideration in the cases above referred to, are very similar to the statute of this state which we are called upon to construe.

If Howard had been in the joint service of the three employers, then, under section 49 of the Workmen's Compensation Act, all of the employers would have contributed to the payment of the compensation in proportion to their respective wage liability. He was not in the "joint service" of his employ

"The statute contains no provision which can be said to point to a clear solution of this problem. Probably the framers of this act did not have in mind the specific case of a workman employed in a given capacity by different employers, to each of whom he rendered services for a portion of his time. It must be remembered, however, that the main purpose of the act is to indemnify the workman for the loss suffered by him. The indemnity takes two forms: The furnishing of medical attention, and payment of a proportion of the earnings lost in consequence of the injury. In case of death the amount payable is a percentage of the aver-ers, but in the employment of all, under conage annual earnings of the deceased employé.' A fair compensation is to be paid to the employé, or to the dependents who have lost in him their source of support. It should be based upon the amount which the employé was in the habit of earning in the particular kind of employ-ployers all liable for compensation in a case ment, rather than the amount which he had been receiving from a particular employer."

A like question was passed upon by the Supreme Court of Massachusetts in Gillen v. Ocean Accident & Guar. Corp., Ltd., 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371.

There is no current contracts of service. provision in the act for the joint liability of employers who hold independent, concurrent contracts with the same employé. If the Legislature had intended to make concurrent em

like the one at bar, it would in all probability have made special provision as it did with reference to joint employers. Therefore, if the widow of Howard is to be compensated on the basis of the total average weekly earnIn ings of Howard, it must be by employer A. that case, Gillen, who was a longshoreman, whom he was serving at the time of his inwas injured in the course of his employment jury and death. The amount she should by a steamship company; but, as was custom-receive must depend upon the construction of ary with longshoremen, he worked for other clause (c) of section 76, supra. The term

(125 N.E.)

ADMISSIBLE IN EVIDENCE IN ACTION THERE

ON.

In action on award, the award was admissible in evidence.

5. ARBITRATION AND AWARD 85(3)-TESTIMONY OF ARBITRATOR ADMISSIBLE IN ACTION ON AWARD.

In action on award, testimony of arbitrator as to what was said and done by himself and the parties at the time of the hearing, and as to what he charged the parties for his services, held not objectionable.

"average weekly wages," used in section 40 14. ARBITRATION AND AWARD 85(3)-AWARD of said act, is defined in said clause (c) of section 76 to be "earnings of the injured employé in the employment in which he was working at the time of the injury." Does this definition mean that the average weekly wages of Howard is the amount he was receiving from the one employer for whom he was washing windows at the time, or does it mean the amount he was receiving in his employment as janitor? What is meant by the words "in the employment?" Webster defines "employment" as "occupation, business, which engages head or hands." Worcester Appeal from Superior Court, Delaware says, “employment" means "business, occu-County; Robert M. Van Atta, Judge. pation, object of industry, engagement, vocation, calling or profession." If we apply Action by William L. Milhollin against these definitions to the word "employment" Samuel Milhollin and another. as used in clause (c) of section 76, as we for plaintiff, and defendants appeal. must, then, under the facts of this case, Howard's employment was that of janitor, and he was engaged in that employment for three employers, and was injured while so employed.

It follows that the compensation to be paid to the widow should be based upon the total earnings received by Howard from his three employers.

ENLOE, J., dissents.

(71 Ind. App. 477)

MILHOLLIN et al. v. MILHOLLIN. (No. 9885.)

firmed.

Judgment
Af-

Harry Long and George W. Cromer, both of Muncie, for appellants.

George H. Koons and George H. Koons, Jr., both of Muncie, for appellee.

MCMAHAN, J. The appellee's complaint was in two paragraphs. It is alleged in the first paragraph that Nathan Milhollin died testate in 1901 leaving a widow, Mary Milhollin, and three children, William L. Milhollin, appellee, Samuel Milhollin and Allie M. Beuoy, appellants herein, as his only heirs and lega tees; that the estate of said Nathan Milhollin was administered, and finally settled in the Delaware circuit court in 1903; that the widow, Mary, died intestate in 1909 leaving said three children as

(Appellate Court of Indiana. Nov. 26, 1919.) her sole and only heirs; that an administra

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1. ARBITRATION AND AWARD 3 LEGAL CAUSE OF ACTION NOT NECESSARY TO SUBMISSION.

In action on award of arbitrator to whom the parties had submitted their disputes, with regard to the settlement of their deceased father's estate and the settlement of a partnership between father, plaintiff, and one of defendants, it was no defense that the claims had been adjudicated by the judgments settling the estate and partnership, since a legal cause of action is not necessary to authorize a submission and award; a dispute or honest difference of opinion being sufficient.

2. HUSBAND AND WIFE 25(1)—AGENCY BE-
TWEEN GOVERNED BY GENERAL RULES.
The relation of agency between husband
and wife is governed by the same rules which
apply to other agencies.

3. HUSBAND AND WIFE 25(6)-HUSBAND'S
AUTHORITY TO MAKE ARBITRATION AGREE-

MENT FOR WIFE.

In action on an award, evidence held sufficient to sustain finding that husband of one of the defendants had authority from such defendant to enter into and make agreement to arbitrate.

tion was had upon her estate and final settlement made in 1910; that in January, 1912, certain differences and controversies existed

between appellants and appellee in relation to mutual dealings and business transactions by and between them arising out of the estate of Nathan Milhollin and in connection therewith, and in the settlement of a partnership between Nathan Milhollin and his said two sons, and the expense of William Milhollin in defending certain litigation relative to certain real estate that had been owned by said partnership; and that said partnership was administered and finally settled by said Delaware circuit court in 1903. The several claims alleged to have been in dispute are fully stated, and it is alleged that for the purpose of settling all of said disputes, differences, and controversies, the said three children, William, Samuel, and Allie, by their oral agreement submitted said

differences between them to arbitration and

referred the same to Dee R. Jones as arbitrator; that notice was given, and that the parties met and appeared before said Jones, who as arbitrator heard the evidence and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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in overruling appellants' separate motions for a new trial on the grounds that the facts as found by the court are not sustained by sufficient evidence and are contrary to law, and because of the alleged errors in the admission of certain evidence. The first claim of appellants is that there is no evidence that Allie M. Beuoy ever agreed to submit the claims to arbitration; that the alleged agreement to arbitrate was made by her husband, Charles Beuoy; and that he had no authority from her to make any such agreement.

statements of the parties, and in February, [ v. Ray, 50 N. C. 125; Morse on Arbitration 1912, made and rendered his written award, & Award, p. 36. wherein it was found and decided that Sam- The next contention is that the court erred uel owed appellee $455.22, and that Allie owed appellee $111.25. A demand by appellee and a refusal by appellants to comply with the terms of the award and to make payment are alleged, and judgment is demanded for the amount of the award; a copy of the award being attached to and made a part of the complaint. The second paragraph of complaint was upon an open account. Appellants filed a demurrer to both paragraphs which was overruled as to the first and sustained as to the second. The court found the facts specially, and stated its conclusions of law thereon in fa- [2] The appellants make no claim that a vor of appellee, and rendered judgment for husband may not act as the agent of his the appellee for the amount named in the wife, and as such bind her by an agreement award with interest. Appellants excepted to to arbitrate. The only claim is that there each conclusion of law, and filed a joint and was no evidence that the appellant Allie M. separate motion for a new trial. Beuoy authorized her husband to act as agent in said matter. The relation of agency between husband and wife is governed by the same rules which apply to other agencies. These rules and the authorities in support of them are set out in Roper v. Cannel, etc., Co., 121 N. E. 96. See, also, 13 R. C. L. 1167.

The errors assigned are that the court erred (1) in overruling a demurrer to the first paragraph of complaint, (2) in each of the conclusions of law, and (3) in overruling the motion for a new trial. The appellants contend that the court erred in overruling their demurrers to the first paragraph of complaint and in each of the conclusions of law for the reason that the final settlement of the estates of Nathan and Mary Milhollin, and of the estate of said partnership, are final judgments, determining and adjudicating all the claims mentioned in the complaint and award, and that there were and could be no disputes and controversies arising out of such estates and partnership to arbitrate so long as the judgments of the court settling said estates and partnership remained in force and effect.

Charles and Allie M. Beuoy were married in 1892 or 1893, and ever since that time the husband has looked after and transacted all of his wife's business. He was one of the executors of Nathan Milhollin's estate, the administrator of Mary Milhollin's estate, took sole charge of litigation in which his wife was interested, and for a year or more prior to the date of the alleged arbitration had represented his wife in several meetings with the appellee and Samuel where efforts were. made to settle their conflicting claims, [1] This contention is an evasion of the and a short time before the meeting with real question presented by the record and Jones, who made the award sued on, he met cannot prevail. It is not necessary that a the appellee and Samuel at a time when it party should have a legal cause of action to was proposed or agreed that one Maynard authorize a submission and award and to should settle their claims for them, and bind the parties by the award. The differ- when the parties met with Maynard for that ence of opinion between the parties upon the purpose he was present to represent his wife. whole case, including the appellants' legal This attempt to settle the conflicting claims liability as well as the amount of the claims, failed. The relationship between Charles might have been submitted to and determin- Beuoy and appellee was somewhat strained, ed by the arbitrator. To furnish a sufficient so much so that they did not deal directly basis for entering into a submission no le- with one another. After the meeting with gal cause of action in favor of either party Maynard, appellee made a proposition to his need exist. That there is a dispute, contro- brother Samuel to submit their claims to eiversy, or honest difference of opinion be- ther one of three lawyers who had repretween them concerning any subject in which sented them in certain litigation. Samuel they are both interested is enough, nor in- notified Charles of William's proposal, and deed is it necessary that they should have a short time thereafter Samuel informed come to the actual point of dispute; for a William that they were willing to submit the matter simply in doubt may be submitted. matters in dispute to Dee R. Jones, and, in It is sufficient to sustain the arbitration if accordance with an arrangement between the appellee's claim was made in good faith, William and Samuel, William was to see that it was disputed by appellants, and that Jones and ascertain when he could hear the it was submitted to arbitration. Downing v. matter. This was done. William reported Lee, 98 Mo. App. 604, 73 S. W. 721; Findly to his brother that Jones would hear them

(125 N.E.)

Mr.

on a certain date. On the day fixed the two
brothers and Charles Beuoy, representing his
wife, met with Jones, and the parties stat-
ed their contending claims to him.
Beuoy at the time said he was representing
his wife, and he presented her claims against
the appellee and took a very active part in
the general discussion relative to the claims
of his wife and of William. In his talk and
statement when they were giving their state-
ments to Jones, he would refer to the claims
of William as if they were claims against
himself instead of against his wife, as is evi-
denced by such remarks as: "I don't think
I am morally bound." "I am certain I am
not legally bound." At times when they
were going over their respective claims be-
fore Jones, Charles became quite emphatic
in relation to what he thought about some of
the items, and said he never would consent
that he or his wife should pay more than a
certain share of some claims, and possibly
none of others. The parties met with Jones
about 10 o'clock a. m., talked their matters
over with Jones until noon, adjourned, and
returned in the afternoon. It took about
four hours to go over the matter with Jones.
When they finished, Jones informed them
that it would take him at least two weeks to
decide the questions; that he had to look up
some law and study the facts; that, when

enter into a further discussion of that subject.

Appellants also contend that the court erred in allowing the award to be admitted in evidence, in permitting the arbitrator Jones to relate what was said and done by himself and parties at the time of the hearing of the disputes and controversies, and in permitting Jones to testify what he charged the parties for his services as arbitrator.

[4, 5] There was no error in the introduction of any of this evidence. The award was the foundation of the cause of action and was properly admitted in evidence. The appellants have pointed out no particular objections to the testimony of the witness Jones, and we see no objection to it. The same facts were proven without objection by three other witnesses. There was no error in overruling the motion for a new trial. Judgment affirmed.

NICHOLS, J., not participating.

(71 Ind. App. 564)

In re MEYER'S ESTATE.
MARTIN v. SIEVERT et al.

(No. 10109.)

Court of Indiana, Division No. 1.
Dec. 12, 1919.)

STITUTE "GIFT CAUSA MORTIS.'

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To constitute a "gift causa mortis," there must be a delivery or transfer of the property in expectation of death from an existing ill

ness.

he decided it, he would send each of them a (Appellate copy of his decision, which he did. Mr. Beuoy on receiving the copy of the award was not satisfied with it. He informed his 1. GIFTS 53-MUST BE DELIVERY TO CONwife about the award and acquainted her with its contents. With the knowledge of his wife he wrote to Jones criticizing the award, and sent Jones a check for their share of the costs. He received another letter from Jones which he answered. Mrs. Beuoy was present when this letter was answered, and was kept informed as to the contents of the letters from Jones, and those which her husband wrote to Jones. She was present during the trial of this cause, but did not take any part in the management of the defense or testify as witness.

[3] We are of the opinion that the evidence is sufficient to sustain the court in finding that Charles T. Beuoy had authority from his wife to enter into and make an agreement to arbitrate.

The contention of appellants that the findings of the court are contrary to law is based upon the theory that the disputes and controversies grew out of the final settlement of the Milhollin estates and the partnership of Nathan Milhollin and sons, and that these claims and controversies were barred by the judgment made and entered in the final settlement of said estates and partnership, and were for that reason not subject to arbitration. We held otherwise in ruling upon the demurrer to the complaint, and need not

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Gift Causa Mortis.]

2. GIFTS 66(1)-EvVIDENCE INSUFFICIENT TO SHOW NO DELIVERY OF GIFT CAUSA MORTIS.

A letter to a bank, "As I have to go to hospital and have an operation, and should there anything happen to me, I make my money payable to Mrs. M.," did not show a valid gift causa mortis; no delivery of the money having been made to Mrs. M.

3. APPEAL AND ERROR 1056(6)-ExCLUSION

OF EVIDENCE HARMLESS.

Exclusion of evidence offered by plaintiff was harmless, where plaintiff would not have been entitled to recovery in any event.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

In the matter of the estate of Julia S. K. Meyer, of which John Sievert was administrator. Petition by Lydia C. Martin, claiming certain money as trustee. Judgment for the administrator, and the petitioner appeals. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

M. R. Sutherland and R. N. Smith, both of La Porte, for appellant.

Frank E. Osborn, Lee L. Osborn, Kenneth D. Osborn, and M. E. Leliter, all of La Porte, for appellee.

ENLOE, J. Lydia C. Martin, petitioner, appellant, filed her petition in the La Porte circuit court, claiming certain money as trustee under an alleged gift causa mortis made by the deceased Julia S. K. Meyer, just prior to her death. A demurrer to the petition was overruled, answers and reply filed, and cause submitted to the court for trial; the venue having been changed to the St. Joseph circuit court. The court found for the defendant, and rendered judgment accordingly. Appellant's motion for a new trial having been overruled, this appeal is prosecuted, and the only error assigned is the action of the court in overruling the motion for a new trial.

"(3) There must be an actual delivery of the chattel to the donee, so as to transfer the possession to him, in order to constitute a good gift, causa mortis."

There is no evidence in this record, nor was any offered, that tended even in any way to show an actual delivery of the money in question to the appellant-a fact necessary to be shown before she could rightfully demand a judgment in her favor.

[3] Until there was some evidence tending to establish this fact, there could be no prejudicial error in excluding the testimony offered.

The judgment is therefore affirmed.

(71 Ind. App. 343) CENTLIVRE BEVERAGE CO. v. ROSS. (No. 10548.)

This motion was based upon the following grounds: That the decision was not sustain- (Appellate Court of Indiana, Division No. 2. ed by sufficient evidence; is contrary to law; and alleged errors in excluding certain of- 1. MASTER AND SERVANT 405(6)-WORK

ferred testimony which, in the view we take of this case, need not be considered. The alleged gift was attempted to be founded upon two instruments in writing, written on the same day, and just prior to the writer's (Mrs. S. K. Meyer's) entering a hospital at Springfield, Ohio, to be operated upon for tumor, and from which operation she died on the second day thereafter. The letter above referred to was, it appears, written to friends in Indiana, from the hospital in Springfield, Ohio, in which city the deceased was then living. That part of the letter to appellant, relied upon as constituting the gift, was as follows:

"I wish, dear Ma, you could be with me; but you cannot, I know. I will make my money payable to you, and if there should be anything happen to me, get a good stone and a vault for my grave.

The other letter was addressed to the La Porte Savings Bank, La Porte, Ind., and was as follows:

"As I have to go to hospital and have an operation, and, should there any thing happen to me, I make my money payable to Mrs. L. C. Martin, La Porte, Indiana. Was deposited August 20, 1912, to Mr. Crumpacker, with 4 "Truly, per cent. interest.

"Mrs. Julia Silberstorf Kreidler Meyer."

[1, 2] To constitute a donation causa mortis, there must be a transfer, or delivery of the property, in expectation of death from an existing illness. Smith, Adm'r, v. Dorsey, 38 Ind. 451, 10 Am. Rep. 118, and authorities cited; Smith, Adm'r, v. Ferguson, 90 Ind. 229, 46 Am. Rep. 216. In Redfield on Wills, vol. 3, p. 327, it is said, in discussing requirements of a valid gift:

Nov. 19, 1919.)

MEN'S COMPENSATION; EVIDENCE TO SUPPORT FINDING OF DISABILITY AND DIMINUTION OF EARNING POWER.

Where an award is made under Workmen's Compensation Act, § 31, last paragraph, for a case of permanent partial disability, including any disfigurement which may impair the usefulness or opportunity of the injured employé, the Legislature not having specifically provided for a certain definite injury, the fact of disability and resulting diminution of earning power must be found as a matter of fact, and such finding must be sustained by the evidence to sustain an award.

2. MASTER AD SERVANT 385(11)-COMPEN

SATION FOR LOSS OF EARNING CAPACITY.

The Workmen's Compensation Act does not give compensation for loss of a member, but for the loss of earning capacity actually caused by the loss of the limb.

3. MASTER AND SERVANT 417(7) · WORKMEN'S COMPENSATION; CONCLUSIVENESS OF BOARD'S FINDINGS.

The Industrial Board's findings of fact in workmen's compensation cases are conclusive on the Appellate Court only when sustained by the evidence.

4. MASTER AND SERVANT 405(6) — WORK

MEN'S COMPENSATION; LOSS OF TESTICLE NOT A PERMANENT PARTIAL DISABILITY.

In proceedings to recover under Workmen's Compensation Act, § 31, last paragraph, for permanent partial disability caused by the loss of a testicle, evidence held insufficient to show any permanent partial disability from such injury.

Appeal from Industrial Board.

Proceedings under the Workmen's Compensation Act by Sam J. Ross, the employé, opposed by the Centlivre Beverage Company, the employer. Compensation was awarded

For other cases see came topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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