67, and by sections 9 and 19 employers of farm laborers, domestic servants, and persons engaged in interstate or foreign commerce are excepted from the act, except as to section 67, and for the further reason that the duties of the Industrial Board under Burns' Ann. St.

1914, § 8021, transferred from the bureau of inspection, require general oversight of the conditions of labor.

2. MASTER AND SERVANT 400-WORKMEN'S COMPENSATION ACTS-PENALTIES-WHO MAY SUE-"PERSON."

(3) Where an employer resides and conducts his business in Madison county, and an employé suffers an injury there, in what county is the venue of such an action?

[1] There are certain provisions of the act that seem to require that the first question

be answered in the affirmative. Thus section 3 is to the effect that an employer by serving and posting a notice to that effect may exSince under Burns' Ann. St. 1914, §§ 251, empt himself from the operation of the act. 252, every action must be prosecuted in the Subsequently, however, after he has so exname of the real party in interest except that empted himself, he may waive such exempone expressly authorized by statute may sue tion, which waiver by the terms of the secwithout joining the person for whose benefit Section the action is prosecuted, and since under sec- tion is equivalent to an acceptance. tion 1356 the word "person" extends to bodies 3 literally speaks of an exemption "from the politic and corporate, and since the Industrial operation of this act," but by reading section Board is expressly authorized to sue for the pen-3 in the light of section 2 it appears that exalty under Workmen's Compensation Act, $ 67, for failure to make required reports as to injuries to employés, an action for such penalty may be brought by the state as the real party in interest or by the Industrial Board.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Person.] 3. MASTER AND SERVANT 396-WORKMEN's COMPENSATION ACTS-PENALTIES-VENUE.

Under Workmen's Compensation Act, § 67, providing for recovery of penalty for master's failure to make required reports of accidents to employés and mail them to the Industrial Board, the offense of failing to make the report occurs in the county of the employer's business and the venue of the action to recover the penalty is in that county.

Certified questions from the Industrial Board. Questions answered.

emption, and consequently that acceptance, presumptive or on notice, relates only to those features of the act that require that compensation be paid in case an employé suffers a personal injury or death by accident arising out of and in the course of the employment. There is a like indication from the fact that by the provisions of section 3 notice of exemption or of acceptance is required to be served, not on the public or the Industrial Board, but by posting in the plant where the employés work, or by serving it personally on them. It seems, then, that a fair construction of sections 2 and 3 leads to the conclusion that an employer's right to elect thereunder is limited to a choice in advance whether his liability to injured employés shall be measured by the compensatory features of the act, or determined in some other form of statutory proceedings, or in a common-law action with defenses circumscribed as provided by other sections of the act. Other provisions of the act strengthen such conclusion. Thus by section 4 the effect of an exemption notice given under section 3 is to exempt the employer from the

CALDWELL, J. Section 67 of the Workmen's Compensation Act (Acts of 1915, p. 392) is to the effect that every employer shall keep a record of all personal injuries suffered by his employés in the course of their employment, and that within certain specified times certain reports of the facts shall be made in writing by the employer involved in each case, and mailed to the Industrial Board on blanks to be procured from the board for that purpose, and that any employer who re-operation of the act, except certain sections, fuses or neglects to make such reports "shall one of which is section 67. It follows by be liable to a penalty of not more than twen- very strong implication that, although such ty-five dollars for each refusal or neglect, to notice is given, such an employer must nevbe recoverable in any court of competent ju- ertheless comply with section 67. Section 9 risdiction in a suit by the board." By the is to the effect that the act, except section terms of section 2 every employer, except as 67, shall not apply to the employers of casuotherwise stated in the act, is presumed to al laborers, farm or agricultural laborers, have accepted, and to have elected to be or domestic servants, unless such employers bound by, its compensatory requirements, un-elect to be bound by the act; and by the less he shall have given notice to the contrary as provided by section 3.

The Industrial Board seeks the opinion of this court as indicated by certified questions based on said sections to the following effect:

(1) Is an employer who has availed himself of the exemption features of sections 2 and 3 required to make the reports specified by section 67?

(2) In whose name as plaintiff should an action to recover a penalty under section 67 be prosecuted?

It

terms of section 19 there is a like limitation
and a like exception in case of employers en-
gaged in interstate or foreign commerce.
is apparent from these sections that it was
the legislative intent in passing the act to
require other employers than those operating
under its compensatory provisions to comply
with section 67. We conclude that the first
question must be answered in the affirmative.

There is another viewpoint from which such conclusion is rendered more certain. Thus, while the creating of a compensatory scheme was prominent among the purposes

body politic or corporate.
Corporations (1st Ed.) § 21.

1 Thompson on

that led to the enactment, yet there were other purposes, among them, as indicated by the title, being "to promote the prevention of From what we have said it appears that industrial accidents." In order that indus- by virtue of section 252 a person expressly trial accidents may be prevented to the ex- authorized by statute to do so may sue. tent reasonably possible, a first essential is That section is yet in force. Section 1356 that it may be known that accidents happen, simply construes the word "person" as used and the circumstances and the working con- in section 252. But the Workmen's Compenditions under which they happen. To that sation Act is a later enactment than either end the reports specified by section 67 are of these sections, and by its provisions the required to be made, which reports for a like board, regardless of whether it be a body purpose the board, by tne provisions of sec-politic or corporate, is expressly authorized tion 57, is required to tabulate, and to pub- | by statute to sue for the penalties incurred lish the tabulations periodically. In any under such section. It would therefore seem, scheme to prevent industrial accidents, the from a construction of section 252 with secquestion of whether the employer involved in any particular accident is operating under the compensatory features of the act is not an important or essential element. Further to carry out such preventive purpose, and also to unify its administration, by the terms of section 52 of the act, the bureau of inspection was abolished, and its powers and duties conferred by law were continued in force and transferred to the Industrial Board. Such powers and duties so transferred are outlined by section 8021 et seq., Burns 1914. An examination of such sections discloses that by virtue of such transferred powers and duties the Industrial Board is authorized and required to main-porate. An action, however, must be brought tain a general oversight respecting the con

ditions under which the industrial workers

of the state perform their labors, and to take steps in many cases to render such conditions reasonably safe. To that end the reports specified by section 67 are essential. We therefore answer the first question in the

affirmative.

tion 67, that the board may maintain the action provided for by the latter section. The Workmen's Compensation Act makes no disposition of the amount of any such penalty that may be recovered, and consequently any such penalty when so recovered belongs to the state. It would therefore seem that the state in its own name may sue to recover such penalty, it being the real party in interest (see Durham v. State, 117 Ind. 477, at page 480, 19 N. E. 327); but prima facie at least it would seem, as we have said, that the board by section 252, supra, and section 67 of the Workmen's Compensation Act, may maintain such a suit, although not a body politic or cor

in the name of one having a legal entity. 30

Cyc. pp. 21, 26, and 27. "Entity" means a real

being; existence. International Dictionary.
"Legal entity" therefore means legal exist-

ence. The Industrial Board of Indiana is a
creature of the statute. Under the statute
its existence is perpetual, although its mem-
bership may change, and under the Work-
men's Compensation Act it is charged with
important duties. It is an organized body
with a chairman and a secretary. Section
50 et seq., Workmen's Compensation Act.
It therefore has a legal existence.
opinion, it is such a legal entity as may be
expressly authorized by statute to sue. By
section 67 of such act it is so authorized. We
therefore conclude that either the state as
the real party in interest, or the board as
such, because expressly anthorized, may
maintain an action for a penalty under sec-
tion 67.

In our

[2] We proceed to the second question: Every action must be prosecuted in the name of the real party in interest, subject to certain exceptions, among them that a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted. Sections 251 and 252, Burns 1914. The real party in interest is the party entitled to receive the benefits of the suit. Franklin Ins. Co. v. Wolff, 23 Ind. App. 549, 54 N. E. 772. The word "person," as used in the foregoing statutes, "extends to bodies politic and corpo[3] We proceed to the third question. That rate" (section 1356, Burns 1914), which term part of section 67 applicable to this question includes the state (Ervin v. State, 150 Ind. is to the effect that, where an employé suf332, 48 N. E. 249). If the provisions of sec-fers an injury in the course of his employtions 252 and 1356 to which we have referred ment, the employer within one week after be construed together, it results that a natural such injury and knowledge thereof shall person or a body politic or corporate, although make a report of the facts in writing, and not the real party in interest, if expressly mail it to the Industrial Board on blanks to authorized by statute, may sue without join- be procured from the board for that purpose. ing the person for whose benefit the action Failure to do so subjects the employer to a is prosecuted. Ordinarily the term "body penalty as herein before set out. Section 54 politic and corporate" includes only corpo- is to the effect that the board shall be providrations, private, public, and governmental. ed with adequate offices in the city of In8 C. J. 1136 and 1137. Such an organization dianapolis, in which its records shall be as the Industrial Board of Indiana is an kept and its official business transacted duragency of state government, rather than a ing regular business hours. By the terms of

The employer is not required to de

section 69 it is made a misdemeanor punish- | more. able by fine for an employer to refuse or liver it to the board, or to file it with the neglect to file with the board evidence that he has complied with certain other requirements of the act. In Re Industrial Board, 117 N. E. 546, this court, in response to a certified question, handed down an opinion that the venue of a criminal prosecution under section 69 is in Marion county, being the county in which Indianapolis is located, assigning as a reason for the opinion that the filing required by section 69 is an act to be performed at the office of the board, which is in Marion county. The court there cites in support of its opinion State v. Yocum, 186, Ind. 478, 106 N. E. 705. That was a prose cution of a father under section 2635a, Burns 1914, for a willful failure to provide his children with necessary food, clothing, etc. The parents had been divorced in Pulaski county, and the custody of the children awarded to the mother without restrictions as to future residence. For proper purposes she removed with them to Allen county. It was there held that the venue of the prosecution was in Allen county, the court saying:

"They [the children] were required to be provided for by appellee [the father] at the place where they were. A neglect to discharge the obligation of the law there broke the law there." For other similar cases see note to State v. Gillmore, 47 L. R. A. (N. S.) 217.

board. The statute names the United States mail as the agency of transmission, and requires of the employer only that he deliver it properly to such agency. When he has done so, he has performed every act that the act requires of him. We are not at present dealing with a case wherein for some reason a report properly mailed fails to reach its destination, or with what would be the further duties of an employer, if any, under such circumstances. We are content to state that, respecting any report required by section 67, the employer has performed his full duty when he has properly made and mailed it. The making of such report and the mailing of it are duties properly connected with the employer's place of business, and ought reasonably to be expected to be performed there. A failure to perform such duty is therefore a failure at such place. Section 310, Burns 1914, is to the effect that actions for the recovery of a penalty imposed by statute should be commenced in the county where the cause, or some part of it, arose, with exceptions not applicable here. Where a cause of action is predicated upon the failure to perform an act, the cause of action arises when the failure is complete, and where the act is not performed, the failure is complete at the place where it should be performed; and consequently the We therefore

answer the third question that in our opinion the venue is in Madison county.

KELLER v. COX et al. (Appellate Court of Indiana.

(67 Ind. App. 381) (No. 9455.)* Jan. 18, 1918.)

We do not regard these cases as control-cause of action there arises. ling here. The idea conveyed by the word "file," when used as a verb, respecting the disposition of a document, is the placing of such document in charge of the proper custodian or recipient for safe-keeping or other purpose. Such a document as is specified by section 69 could therefore be properly filed with the board only by delivering it into the custody of the board at its office where its records are required to be kept and its official business transacted. As to the Yocum Case, to provide food, clothing, etc., for a child involves that such food, clothing, etc., be plac ed or furnished so as to be immediately available to supply the necessities of the child. It results that in the one case the failure is at the office of the board, and the other at the residence of the child.

1. TRIAL 405(1)—EXCEPTION TO THE CONCLUSION OF LAW-EFFECT.

law concedes that the facts within the issues Defendant by excepting to the conclusion of are fully and correctly found.

2. TRIAL ~397(6) — FINDINGS - FAILURE TO FIND FACT-EFFECT.

The failure of the court to find material issuable fact the burden of proving which rests upon one of the parties is a finding against the party having the burden of proving such fact. 3. TRIAL 395(7) CONCLUSION OF LAW SUPPORTED BY FACTS.

In a suit to set aside a deed on the ground of fraud and undue influence, where the facts found by the court showed neither, the conclusion of law that the deed should not be set aside was warranted on the facts, although plaintiff impoverished herself by the conveyance; there being no finding of fact with reference thereto. 4. DEEDS 17(2)-VALIDITY-WANt of ConSIDERATION.

The statute involved here requires that a certain report be made in writing, and that it be mailed to the board. It might very plausibly be argued that the making of a written report to the board includes its actual delivery, were it not for the provision that the report be mailed. It would seem that the latter provision narrows the conception that That a conveyance was made without any valuable consideration is not alone sufficient might otherwise be formed respecting the re-ground for setting aside a deed where the quesquirement that a written report be made to tion arises between the grantor and grantee. the board. In section 67 the making of the 5. TRIAL 396(4)—FINDINGS OF FACT-EVIreport plainly has reference to placing it on DENCE TO SUPPORT. paper properly signed. When the report is thus made, the statute requires that it be mailed to the board; only this and nothing

Where there was evidence tending to prove every material fact found by the court, the contention that the evidence is insufficient cannot be sustained.

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

6. TRIAL 395(5)-SPECIAL FINDINGS-UL- | trial, plaintiff appeals. Reversed, with inTIMATE FACTS. structions.

Appeal from Circuit Court, Fountain Coun- should divide the proceeds among appellant's ty; I. E. Schoonover, Judge.

three daughters. That said Melissa Jane orally consented to the proposal. That some time thereafter, at the request of appellant, and without the knowledge of appellee, appellant was taken to Covington by her daughter Mrs. Allen, and her husband, where she

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

did not have sufficient income or property left for her reasonable support. If it be true that the conveyance was improvident, and that appellant thereby impoverished herself and did not have sufficient means left to provide for her reasonable support, still it does not follow that the court erred in its conclusions of law; for no facts are found which show the conveyance to have been improvident, or that appellant did not have sufficient means left for her reasonable and comfortable support.

executed the deed and caused it to be duly Appellant contends that the conclusions recorded. That appellant received no val- of law are erroneous, because appellant imuable consideration for the conveyance, poverished herself by the conveyance, and which was executed July 13, 1909, reserving the rents and profits of the land to appellant for life. The deed was thereafter mailed to appellant by the recorder, and a few weeks after receiving the same appellant delivered it to appellee Melissa Jane, with arrangements as aforesaid as to sale of the land and distribution of the proceeds. Appellant rented her land both before and after the deed was executed, and received the rents therefrom, amounting to about $60 per year, which was the reasonable rental value thereof. At the time the deed was executed appellant drew a widow's pension of $8 per month, which has since been increased to $12 per month. That appellant owns personal property of the value of $100, and a small house located on the land of her sonin-law worth $75, and has no other property or income except as above shown.

For some time prior to July 13, 1909, appellant lived with her daughter Sarah E. Allen, and thereafter for about four years, and in February, 1913, she went to reside at the home of her son Joseph Keller, where she continued to reside. That each of her daughters expressed a willingness to render their mother any care and attention she required without charge. That appellant's general health is reasonably good, but she is unable to walk about without assistance. That she is illiterate, cannot read or write, but "is a person of sound mind and understanding, and was at the date of the execu tion by her of said deed, and fully understood the business she was directing and transacting, and deeded it of her own voli

tion without being influenced by her."

The findings also show that before bringing this suit appellant requested a reconveyance to her by appellees of the real estate aforesaid, and caused a deed in due form to be duly presented to them for that purpose, and that they refused to execute the

same.

The court stated its conclusions of law to the effect that appellant was not entitled to recover, and that the deed in controversy should not be set aside.

[1, 2] Appellant excepted to the conclusions of law. By so excepting she concedes that the facts within the issues are fully and correctly found. The failure of the court to find a material issuable fact the burden of proving which rests upon one of the parties is a finding against the party having the burden of proving such fact.

[3] No facts are found which show undue influence or fraud in procuring the conveyance, but, on the contrary, the ultimate facts found show that appellant was of sound mind and fully understood what she was doing and executed the deed voluntarily, free from any influence of the grantee.

[4] The findings do show that the conveyance was made without any valuable consideration, but this alone is not sufficient ground to set aside a deed where the question arises between the grantor and grantee. Barnes v. Bartlett, 47 Ind. 98-103; Aldrich v. Amiss, 179 Ind. 303-305, 99 N. E. 419.

The court did not err in its conclusions

of law on the facts found.

[5] Appellant also contends that the evidence is insufficient to sustain the finding of facts, but such contention cannot be sustained, since there is evidence tending to prove every material fact found by the court.

[6] A special finding should contain only the ultimate facts in issue, and may not properly contain mere evidentiary facts.

[7] The trial court may properly state in established by the facts and circumstances its finding any ultimate or inferential fact shown by the evidence in the case.

[8] Ultimate facts are inferred from evi

dentiary facts and circumstances, and are fully warranted where they may reasonably dyke, 153 Ind. 508-512, 55 N. E. 434; Craig

be inferred therefrom. Bradway v. Groen

v. Bennett, 146 Ind. 574, 575, 45 N. E. 792; Barrett v. Sipp, 50 Ind. App. 304-314, 98 N.

E. 310.

[9] As grounds for a new trial appellant urges that the court erred in excluding certain evidence. Appellant offered to prove by competent witnesses that they were acquainted with the cost of the reasonable care, attention, and maintenance required by appellant in her condition, and that the same amounted to $400 per year; that her total income did not exceed $204 per year. The testimony was excluded on objections made by appellees, to which rulings appellant duly excepted. Appellant also offered to prove that appellant's enfeebled condition was incurable, and that her condition would not improve, but would grow worse. This evi dence was also excluded on objection by ap pellees, to which ruling appellant excepted. Some of the evidence suggested may have been excluded because of the form of the questions, but numerous questions were asked seeking to prove the facts suggested, and there is enough in the record to require this court to consider the alleged error in excluding the offered evidence.