show a disrespect for the court or to influence or to interfere with the due administration of justice. Fishback v. State, 131 Ind. 304, 30 N. E. 1088; Percival v. State, 45 Neb. 741, 64 N. W. 221, 50 Am. St. Rep. 568; In re Walker, 82 N. C. 95; 9 L. R. A. (N. S.) note, 1120, and cases cited.

[2, 3] If the language used is clear and explicit and is susceptible of but one meaning which is per se libelous, and which is a direct charge against the court or jury, it would be trifling with justice to say that a publisher could admit the publication and purge himself of the contempt by denying that he intended the meaning which the language plainly and unmistakably conveys; but, if the language admitted is not libelous per se, if it does not show on its face that it was intended to apply to the court and innuendoes are required to show such application, or if it is fairly susceptible of an innocent meaning so far as the court is concerned, the defendant may, by a sworn answer, explain the language by showing that he used it in a sense not libelous, and declare that he did not intend to impugn the motives or integrity of the court or to interfere with or embarrass its proceedings, and such an answer must be taken as conclusive. If he swore falsely he may be punished for perjury.

In view of the principles of law thus stated we proceed to a consideration of the sworn answer of appellant. In this answer appellant states the conditions and circumstances which existed at the time the publication was made, and attempts to explain the language used in such a way as to show that the publication was made in good faith and without any purpose or intent on his part of casting discredit on the prosecuting attorney, the grand jury, or the court, and without any purpose of influencing or embarrassing the proceedings of the court in the administration of justice.

rupt means to return indictments. So far as this language is concerned it is fairly susceptible of the meaning attributed by appellant, and, as so understood, its publication does not constitute a contempt of court.

By the language, "A good pointer has reached us to the effect that Judge Collins tried to confine the grand jury until indictments were agreed upon, but failed," appellant says that he meant only to say that the judge had attempted to confine the grand jury unil it had reached some determination as to the indictments. Appellant states that, at the time of such publication he believed that the court had the same right to order the grand jury to be confined until matters pending before it were disposed of that it had to confine a petit jury, and that such language was not intended as a criticism of the attempted action of the court, and was not intended to impugn the motive of the court in attempting to confine the grand jury. The explanation thus given does not cover the language to which it refers. Appellant did not state what he meant by saying. “A good pointer has reached us," in connection with the statement that Judge Collins had attempted to confine the grand jury until indictments were agreed upon, but failed. If the fact, as stated, that the judge attempted to confine the grand jury until indictments were agreed to was to be regarded as a "pointer" as clearly stated, the writer must have intended to say, and to be understood as saying, that such conduct pointed out or indicated something. When the language we have been discussing is considered with the language immediately following it in the publication, its meaning becomes obvious. The language referred to is as follows:

"Our information is that two members of the grand jury are holding out and refusing to indict and will not sign the indictments. It requires five out of six members to find an indictment. Every known method of coercion has been used, we are told, to secure indictments, but so sion and many rumors are current that the jury far it has failed. The grand jury is yet in seswants to adjourn, but the powers that be refuse to permit adjournment."

[4] The sworn answer wholly fails to ex

Appellant says that prior to the publication of the article, the Republican organization had held a meeting and appointed a committee charged with the duty of procuring evidence as to frauds perpetrated at the November election, 1914, and that such commit-plain the language just quoted so as to show tee had been engaged in an attempt to secure and present such evidence to the grand jury as would result in the return of indictments against a large number of Democrats in the city of Indianapolis. He stated that the language to the effect that the Republicans were having a hard time getting the Marion county grand jury to "come through" with batches of indictments against 150 Democrats, for the alleged violation of election laws was used in said publication with reference to efforts of the committee to obtain and present to the grand jury sufficient evidence to obtain indictments, and that it was not intended to charge or say that the court, prosecuting attorney, or any one else was endeavoring to influence the grand jury by improper or cor

that it was susceptible of any meaning consistent with an honest, fair, and impartial discharge of duty by the court and grand jury in respect to the proceedings then pending. The statement to the effect that every known method of coercion had been used to secure indictments, and the other statement, that two members of the grand jury are holding out and refusing to indict, when coupled with the statement in regard to the "pointer" afforded by the action of the judge in attempting to confine the grand jury until indictments were agreed upon makes the meaning perfectly clear and plain to any reasonable mind. The language under consideration does not require the use of any innuendoes to make its application or meaning clear. It

clearly means that there was an effort being | inherent in every court. It is necessary to made to coerce the grand jury and its mem- the preservation of order, to the enforcement bers into returning indictments against which of judgments, writs, and orders, and theretwo of the members were holding out, and fore is essential to the due administration of that the conduct of Judge Collins, in attempt-justice. Fortunately the occasion for the ing to confine the jury until it agreed on in- exercise of this power does not often arise, dictments, was a "good pointer" to indicate and it is seldom exercised by the courts exhis connection with his effort, and that he had been willing to use his official power to assist in accomplishing the end sought. Such language is an attack on the official conduct of the court, and its publication constitutes a contempt of court. In a contempt proceeding for the publication of an alleged defamatory article relating to a court it was said by the Supreme Court of Illinois that it could not accept

cept in extreme cases. So long as critics confine their criticism to the facts and base them upon the decisions of the court, they commit no contempt no matter how severe the criticism may be; but when they pass beyond that line and charge that judicial conduct was influenced by improper, corrupt, or selfish motives, or that such conduct was affected by political prejudice or interest, the tendency is to poison the fountain of justice "as a reason for discharging the rule, the dis- and create distrust, and destroy the conficlaimer in the answers of any intentional disre-dence of the people in their courts. A feelspect of any design to embarrass the administra

tion of justice. The meaning and intent of the ing thus engendered would create dissatisrespondents must be determined by a fair inter- faction with all judicial determination; it pretation of the language they have used. They would affect the standing and usefulness of cannot now escape responsibility by claiming the courts-would seriously and dangerously that their words did not mean what any reader must have understood them as meaning." People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528.

The Supreme Court of Michigan, in passing on the effect of a sworn answer filed by a defendant in which he sought to purge himself of contempt, said:

“When language is susceptible of two interpretations or constructions, and the party charged asserts under oath that he did not intend the article to be construed as alleged in the innuendoes, he is purged of the contempt; but if the publication is fairly susceptible of but one construction, and its purport is to defame and degrade the court in the eyes of litigants and the public, his denial of any intended wrong does not operate to purge him of the contempt." In re Chadwick, 109 Mich. 588, 67 N. W. 1071. While there is some conflict in the authorities, the overwhelming weight of judicial opinion is in accord with the law as thus announced. Fishback v. State, 131 Ind. 304, 30 N. E. 1088; Territory v. Nugent (La.) 1 Mart. (O. S.) 103, 5 Am. Dec. 702; People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528; Sturoc Case, 48 N. H. 428, 97 Am. Dec. 626; In re Woolley, 11 Bush (Ky.) 111; In re Chadwick, 109 Mich. 588, 67 N. W. 1071; In re Chartz, 29 Nev. 110, 85 Pac. 352, 5 L. R. A. (N. S.) 916, 124 Am. St. Rep. 915; Hughes v. People, 5 Colo. 436; 9 L. R. A. (N. S.) 1119, note.

It is affect the administration of justice. therefore sometimes necessary for courts to exercise their power to punish for contempt, not for the sake of the judges nor to vindicate them, but in order to maintain the standing, the respect, the dignity, and the usefulness of the courts through and by which justice is administered to the people.

It may be proper to say that this court in the consideration of the case has wholly disregarded what is designated as the finding of facts filed with the clerk of the trial court. The judgment is treated as resting solely upon the facts disclosed by the information and the sworn answer of appellant thereto.

The record shows no reversible error.
Judgment affirmed.

(186 Ind. 377)

GOSHEN MILLING CO. v. BAILEY.* (No. 22704.)

(Supreme Court of Indiana. Jan. 24, 1917.) 1. MASTER AND SERVANT 11-EMPLOYERS' LIABILITY ACT-CONSTITUTIONALITY-FOURTEENTH AMENDMENT.

88;

The Employers' Liability Act (Acts 1911, c. sections 8020a-8020k, Burns' Ann. St. 1914) is constitutional.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 11.]

[5] The application of the law as above stated necessarily leads to the conclusion 2. CONSTITUTIONAL LAW 55-MASTER AND SERVANT 2501⁄2 POWERS OF COURT reached in this opinion. It is not necessary TRIAL BY JURY. that the language employed should have ac- Employers' Liability Act (section 8020g, tually brought the court into disfavor and Burns' Ann. St. 1914) § 7, providing for the engendered a want of proper respect and reactions by employés for injuries, is not void as submission of certain questions to the jury in gard for the court, or that it should have actually embarrassed or impeded the progress of the court or the administration of justice therein. If the language used is of a character calculated to produce such effect, it is sufficient. People v. Wilson, 64 Ill. 195, 16 Am. Rep. 528, and cases there cited.

an unwarranted infringement upon the power of the judiciary.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 60; Dec. Dig. 55; Master and Servant, Dec. Dig. 2502.1 3. MASTER AND SERVANT 258(10)

DAN

GEROUS OCCUPATION ACT-PLEADING. A complaint drawn under Dangerous Occu[6] The right to punish for contempt is pation Act (Acts 1911, c. 236; Burns' Ann. St. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Rehearing denied.

1914, 3862d) § 4, need not aver that defend- ment of errors and motion for new trial waives such questions. ant employed more than five persons.

The first paragraph of the complaint in question alleges, in substance, that on July 25, 1911, appellant was a duly organized corporation, and was the owner of and engaged in the care, operation, and management of its factory and building in Goshen, Ind., used for the manufacture of flour, and also in the transmission of electricity; that the factory had a cupola which extended six feet above Failure of appellant to state any proposition or cite any authorities to sustain his position the slanting roof of a part of the building; as respects questions presented by his assign- that certain electric wires were attached to

wires coming from the cupola, and ran across first paragraph is drawn under section 3862d, the roof at a distance of about three feet Burns 1914, or section 4 of the "Dangerous above the roof; that defendant engaged in Occupation Act" of 1911. Acts 1911, p. 597. transmitting or permitted to be transmitted The contention that the paragraph should over such wires electricity of high and dan-aver that appellant employed more than five gerous voltage; that decedent was employed persons is not well made, as the statute does by appellant and was engaged in painting not make that requirement. the above cupola under and about such electric wires, and was liable to come in contact therewith, which appellant knew or should have known; that appellant negligently and carelessly failed to provide full and complete insulation around and about such wires such as would protect persons coming in contact therewith from injury by the electric current; that the wires were covered with some substance for the purpose of insulation, but it had become old, rotten, decayed, worn, and out of repair, so as to be worthless as insulation; that at all times herein mentioned appellant carelessly and negligently maintained such wires in the above condition; that on said date decedent, while engaged in painting the roof and cupola beneath and about such wire, under direction of appellant, came in contact therewith solely by reason of appellant's negligence; that the 4,500 volts of electricity passing over the wire entered the body of decedent causing his death; that decedent was 23 years of age, strong, healthy, and robust concluding with other averments as to appellee and decedent's child.

The second paragraph alleges, in addition to the averments of the first, that appellant employed in its business more than five per

sons.

[4-6] The second paragraph is based upon the act of 1911, commonly known as the Employers' Liability Act (Acts 1911, p. 145) supra. Appellant alleges that neither of the paragraphs of complaint state facts sufficient to constitute a cause of action, and sets out several reasons therefor, part of which have been discussed and part have been waived for failure to discuss under their points and authorities as required by rule 22 of this court. A demurrer admits as true not only the facts well pleaded, but also all other facts reasonably inferable therefrom. We are of the opinion that it cannot be fairly said that any material fact, requisite to recovery, is omitted from either paragraph of the complaint. Either paragraph was sufficient to apprise a person of ordinary understanding of what he would be required to meet. This is sufficient, and the court did not commit any reversible error either on its rulings upon the demurrers or motions to make more specific. Domestic Block Coal Co. v. De Armey, 179 Ind. 592, 100 N. E. 675, 102 N. E. 99.

[7] Appellant's brief does not contain & condensed recital of the evidence in narrative form as required by rule 22 (55 N. E. v) of this court; therefore appellant has waived all questions based upon the evidence in this case. McClellan v. Thomas, 183 Ind. 310, 109 N. E. 44.

[8, 9] Objection is made to the court's eighth instruction given to the jury. That part objected to is as follows:

The third paragraph alleges facts similar to the above except that it is based upon the common law, and alleges in substance that it was the duty of appellant in maintaining the wire and permitting the same to be used upon its premises for the purposes aforesaid, and particularly in maintaining or permitting "If you should find for the plaintiff on the it to be maintained where appellant's em- second paragraph and that the said Chester ployés would be likely to come in contact fendant's violation of said statute as alleged, Bailey was killed as alleged by reason of dewith the same, to completely and properly then the defendant would not be permitted to insulate it and inspect it from time to time, avail itself of the defense that said Chester and to cause and require the same to be prop-negligence by reason of the assumption of the Bailey was guilty of negligence or contributory erly, thoroughly, and completely insulated risk thereof, nor that the dangers or hazards and inspected from time to time, to the end inherent or apparent in the employment in that any defect in the insulation thereof which said Chester Bailey was engaged, contributed to such injury, nor could said decedent, might be discovered and remedied, and to Chester Bailey, be held to have assumed the maintain and keep such insulation in good risks of the employment." repair, so as not to endanger the life and limb of its employés in the due performance of their duty; and it was appellant's duty to warn its employés of any unusual or extraordinary danger which they might encounter in their employment by reason of the defective condition of such wires. It is then properly averred that appellant negligently and carelessly failed to perform any such duties, and that by reason thereof decedent was killed by reason of the defective condition of the insulation without negligence on his part contributing thereto.

Under section 8020c, Burns 1914, the decedent was not chargeable with contributory negligence because of any risk inherent in the employment, nor could he be charged with the assumption of the risk. We are of the opinion that the court's instruction was not erroneous. Deer v. Suckow Co., 60 Ind. App. 277, 110 N. E. 700; Doan v. E. C. Atkins Co., 111 N. E. 312.

[10] Other objections are made to the giving and refusing to give tendered instructions, but where the evidence is not set out in the brief of appellant in narrative form as [3] Appellant rightfully suggests that the required by rule 22 of this court, it is pre

Appeal from an Award of the Industrial Board.

sumed that the instructions given correctly stated the law as pertinent to the evidence, and those refused, if they stated the law, Proceedings for compensation under the were not applicable to the evidence. De Hart Workmen's Compensation Act by Frank L v. Board of Commissioners, 143 Ind. 363, 367, Davis against the Union Sanitary Manufac41 N. E. 825; Lyons v. Souder, 56 Ind. App. turing Company. From an award of the In443, 105 N. E. 511; Gary, etc., R. Co. v. Hack-dustrial Board, the manufacturing company, er, 58 Ind. App. 618, 108 N. E. 756; Muncie, the employer, appeals and Davis, the emetc., R. Co. v. Hall, 173 Ind. 292, 295, 90 N. ployé, moves to dismiss. Motion to dismiss E. 312. appeal overruled.

[11] Other questions presented by appellant's assignment of errors and motion for new trial are waived by failure of appellant to state any proposition or to cite any authorities to sustain its position.

Kane & Kane, of Noblesville, for appellant. Gentry & Campbell, of Noblesville, for appellee.

FELT, C. J. This is an appeal from an There being no reversible error shown in award of the Industrial Board of Indiana. the record, the judgment is affirmed.

(63 Ind. App. 548)

UNION SANITARY MFG. CO. v. DAVIS. (No. 9661.)

Appellee has moved to dismiss the appeal, and the first reason assigned therefor is that appellant filed no motion for a new trial after the final award was made by the board. The record shows a finding and an award by the board, and an application by appellant for a review by the full board of the award, which was granted, and the case was heard by all the members of the Industrial Board, and the award made and entered, from which this appeal was taken.

is contrary to the finding of facts stated by the board. (5) The award is contrary to law. (6) The board erred in its rulings of law upon the facts found. (7) The board erred in its award of compensation upon the facts found. [1] The Workmen's Compensation Act (Acts 1915, p. 392) provides:

(Appellate Court of Indiana. Jan 23, 1917.) 1. MASTER AND SERVANT 417(3) WORKMEN'S COMPENSATION ACT APPEAL FROM AWARD-MOTION FOR NEW TRIAL. Workmen's Compensation Act (Acts 1915, c. 106) § 59, provides that the Industrial Board, or any of its members, shall hear the parties and determine the dispute in any summary manner, Appellant has assigned as error: (1) The and that the award, with the findings of fact, award is not sustained by sufficient evidence. rulings of law, and any other pertinent matters, (2) The award is contrary to the evidence. shall be filed with the record of the proceedings, and a copy sent immediately to the parties in (3) The award is not sustained by the finding dispute. Section 60 provides that if an applica- of facts stated by the board. (4) The award tion for review is made to the board within seven days from the date of the award, the full board, if the first hearing was not held before it, shall review the evidence or hear the parties, and shall make a new award and file the same in like manner. Section 61 provides that an award of the board, if not reviewed in due time, or an award on such review as provided in section 60 shall be conclusive and binding as to all questions of fact, but that either party may appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions. Held, that the Legislature did not contemplate ingrafting on the procedure provided by the act all the requirements relating to appeals from judgments in ordinary civil suits, and, where there was a finding of compensation by the board, and an application by the employer for a review by the full board, which was granted, and the case heard by all the members of the Industrial Board, and an award made and entered, the employer's appeal therefrom to the Appellate Court would lie, although there was no motion for new trial.

"Sec. 59. The board or any of its members shall hear the parties at issue and their repre sentatives and witnesses and shall determine the dispute in any summary manner. The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue shall be filed with the record of proceedings, and a copy of the award shall immediately be sent to the parties in dispute.

"Sec. 60. If an application for review is made to the board within seven days from the date of the award, the full board, if the first hearing was not held before the full board, shall review the evidence or if deemed advisable, as soon as practicable hear the parties at issue, their representatives and witnesses, and shall make an award and file same in like manner as specified WORK-in the foregoing section.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 417(3).] 2. MASTER AND SERVANT ~417(4)

MEN'S COMPENSATION ACT-APPEAL. Where the employer's exceptions, shown on appeal to the Appellate Court from final award of the Industrial Board, are sufficient under the provisions of the Workmen's Compensation Act, and would have been sufficient without showing an exception to the first award of the board, the record setting forth the proceedings on review by the full board, and the employer's exception to the final award from which appeal to the Appellate Court was taken, the employe's contention that the record does not show that the exception was taken "at the time" is not available.

[Ed. Note. For other cases, see Master and Servant, Dec. Dig. 417(4).]

"Sec. 61. An award of the board, as provided in section 59, if not reviewed in due time, or an award of the board upon such review as provided in section 60, 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 the award appeal to the Appellate Court for errors of law under the same terms and conditions as govern appeals in ordinary civil actions. The board, of its own motion, may certify questions of law to said Appellate Court for its decision and determination."

An examination of the whole act shows clearly that the intention of the Legislature