a wet, inclined platform. Held that, as against a demurrer thereto the evidence was sufficient to show that the fall was accidental, that it was caused by the condition of the table and platform, and that the accident arose out of the employment.

Appeal from District Court, Wyandotte County.

Action by Mary Madey and others under the Workmen's Compensation Act, for the death of a servant, against Swift & Co. From a judgment for plaintiff, defendant appeals. Affirmed.

Russell Field, of Kansas City, Mo., and O. Q. Claflin, of Kansas City, Kan., for Appellant.

J. E. Westfall and Prince & Harris, all of Kansas City, Mo., and W. C. Richel, of Kansas City, Kan., for Appellees.

MARSHALL, J.

The plaintiffs recovered judgment under the Workmen's Compensation Act (Gen. St. 1915, §§ 5849-5955) for the death of John Madey. The defendant appeals.

[1] 1. The first question presented is that the court erred in overruling the defendant's demurrers to the plaintiffs' evidence. The facts shown by that evidence were substantially as follows: The plaintiff Mary Madey was John Madey's wife, and the other plaintiffs were his children. John Madey was employed by Swift & Co. in a packing house in Kansas City, Kan. The plant was operated under the Workmen's Compensation Act. John Madey, with a number of other employees, worked at a table trimming the viscera of cattle. The table was about waist-high, about fortyfive feet long, and about two feet higher at one end than it was at the other end. The viscera was moved from the higher to the lower end of the table as each of the workmen did his work. John Madey and the other workmen stood on a platform which was two feet wide and two feet higher than the floor. The platform sloped with the table, and both were wet and slippery. While standing on the platform, working at the table, John Madey fell backward. He was immediately picked up. When picked up, he was unconscious and had a cut in one of his hands, and another cut over one of his eyes. From the place where he fell, he was taken to the office of the company's doctor, and from there he was taken home. On Friday morning he was taken from his home to a hospital, where he remained until the following Sunday, when he died.

The defendant's argument is that the plaintiffs' evidence did not show that John Madey met his death as the result of an injury by accident arising out of his employment. The substance of the plaintiffs' evidence is above set out. That evidence tended to show that Madey's fall was accidental. The facts which the evidence tended to prove bring the case within the statute. The defendant cites a number of decisions, the effect of which is to establish that one person seeking to recover for the death of another under the Workmen's Compensation Act must establish

that the cause of the death comes within the provision of the act. That principle of law is correct, but the evidence in the present cause tended to prove that John Madey met his death under circumstances contemplated by the Workmen's Compensation Act, and was good as against a demurrer thereto. The demurrer was rightly overruled.

[2] 2. In the instructions the court used this language:

"(3) That by reason of the death of said John Madey plaintiffs. are entitled to recover from defendant the sum of $1,801.80 as compensation for his death."

The defendant argues that by that instruction the court left the jury nothing to do but bring in a verdict for the plaintiffs. If the language quoted stood alone, the defendant's argument would be good; but that language did not stand alone. It was given in the following connection, and in the abstract appears in the following manner:

"(1) The plaintiffs allege in their petition, in substance, that on or about the 15th day of June, 1916, John Madey, who was supporting and maintaining the plaintiffs, as husband and father, while in the employ of said defendant and while working in the line of his duty, fell from a certain bench upon which he was standing and struck his head and body, which on the 18th day of said month caused his death.

"(2) That said John Madey had been in the employ of the defendant for six months just prior to said injuries, and received on an average of $11.55 per week.

"(3) That by reason of the death of said John Madey plaintiffs are entitled to recover from defendant the sum of $1,801.80, as compensation for his death."

This court has many times said that instructions are to be construed as a whole, and if not erroneous when so construed, no one of them will be held erroneous. Murphy vs. Gas & Oil Co., 96 Kan. 321, 325, 150 Pac. 581. When read in connection with the remainder of the instruction, the language complained of was correct, and merely stated the allegations of the plaintiffs' petition. It did not state a rule of law. The manner in which the language quoted, as printed in the abstract, might mislead one who cannot understand the English language, but it ought not to mislead a person of average intelligence, or one who is competent to sit as a juror.

3. The defendant's evidence tended to show that Madey fell while in an epileptic fit, and that his death was caused by epilepsy. Under that evidence, the defendant requested a number of instructions concerning the cause of Madey's death. These were refused. That question was sufficiently covered by the instructions where the court said:

"(6) The burden of proof is upon the plaintiffs to prove by a preponderance of the evidence, substantially as alleged in their

petition, that the deceased, John Madey, came to his death by reason of personal injury, by accident arising out of and' in the course of his employment by the defendant, and if this evidence, bearing upon this issue is evenly balanced or preponderates in favor of the defendant, you will find for the defendant.

"(7) If you find from the evidence that said John Madey was caused to fall from the bench where he was working at the time. in question, by reason of an epileptic seizure then your verdict must be for the defendant."

[3] In Baugh vs. Fist, 84 Kan. 740, 115 Pac. 551, this court said:

"It is not error to refuse instructions which are fairly covered by those given." Syl. par. 3.

This principle has often been declared by this court, and numerous cases might be cited in support of it.

The judgment is affirmed. All the Justices concurring.

SUPREME COURT OF KANSAS.

DAVIS

VS.

FOWLER PACKING CO. (No. 21372.)*

WORKMEN'S COMPENSATION-ACTION FOR INJURY-SUFFICIENCY OF EVIDENCE.

The evidence failing to support the verdict, the judgment is reversed.

Appeal from District Court, Wyandotte County.

Action by Fannie Davis against the Fowler Packing Company. Judg ment for plaintiff, and defendant appeals. Reversed, with directions to enter judgment for defendant, unless it should appear to trial court that on a new trial the evidence would show that the injury occurred at defendant's plant, in which case a new trial might be granted.

William G. Holt and J. K. Cubbins, both of Kansas City, for Appellant.

Francis E. Howe and Walter E. Daish, both of Kansas City, for Appellee. WEST, J.

The defendant appeals from a judgment recovered by the widow of William Davis, who, it is claimed, died as a result of his foot being frozen while at work in the defendant's packing house. The allegation was that he was working as a helper and *Decision rendered, Nov. 10, 1917. Motion to modify judgment denied, Dec. 13, 1917. 168 Pac. Rep. 1111. Syllabus by the Court.

trucker in the defendant's dry salt cellar, and that while in its employ helping and operating a truck in such salt cellar he received in the due course of his employment an injury to his feet, "in this, to wit, the same were frozen, and afterwards from such injury" he became ill and died.

The defendant's chief contentions are that there was no evidence to warrant the conclusion that his injury was received in the defendant's plant, and that, even if so, it was not the result of an injury from accident under the Workmen's Compensation Act (Laws 1911, c. 218). The widow testified that the deceased left home all right on February 19, 1916, and came home between 4 and 5 o'clock with one of his feet frozen. That he usually came home from 6 to 7, and 8; that she did not do anything for the foot, but called the packing house doctor. The foreman testified that Mr. Davis worked in the curing department; that he was supposed to work in the dry salt department; that he did not work in the freezer on the 19th. The witness also stated that the deceased worked in a cooler; that neither of his feet was frozen at any time while working at the plant to the knowledge of the witness; and that Mr. Davis did not on the 19th complain to him about his feet, and never said anything to him about either of his feet being frozen. The timekeeper gave evidence that the deceased did not work the week of February 19th; that the last time he worked was January 22d. Several doctors testified to an injury to the foot and finding gangrene therein and to the amputation of some of the toes. One gave his opinion that the blood poisoning from which the patient suffered originated in the foot; another, that the septic condition arose from the foot and leg.

There is sufficient evidence to warrant a finding that the deceased died from blood poisoning resulting from an injury to the foot, although on the latter point there was much diversity of opinion. But we have searched the record and the transcript in vain to find any evidence that the foot was frozen while at work in the packing house. In his opening statement counsel for the plaintiff said that the plaintiff alleged:

"That her husband left her as usual and went to work; that he went to work in the salt cellar, and it is admitted and pleaded that thereafter on the evening some of the officers of the company sent him in the freezer, and while working in freezer No. 6 taking meat off the hook and loading it on a truck to load it on the cars his right foot was frozen; that he still worked there, and in a little while he complained to one of the foremen, Mr. Clark, I believe it was, that his foot was stiff and cold and he could not work any longer. Mr. Clark then sent him in the boiler room to get his feet warm, and after that, about 4:30, he went home.

*

We have already indicated all the evidence found in the abstracts or transcript touching the place and cause of the injury,

and, giving to it all its natural and reasonable significance, we can conclude only that the deceased died from blood poison; that his foot was injured by freezing; and that it possibly may have been frozen while at work in the defendant's plant. But it is equally reasonable and probable that it may have been frozen on his way from the plant or at any one of numerous other places. Certainly there is no evidence on which to base the conclusion that the foot was frozen while at work in the packing house, and it is equally certain that the opening statement to the jury almost entirely failed of support by subsequent proof.

It being impossible to find anything to support the plaintiff's allegation, it follows that she is not entitled to recover.

The judgment is reversed, with directions to enter judgment for the defendant, unless it shall be made to appear to the trial court that, if a new trial be granted, evidence will be introduced showing that the injury occurred at the defendant's plant, in which event a new trial may be granted. All the Justices con'curring.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

SUFFOLK.

IN RE MCMAHON.

IN RE MASSCHUSETTS EMPLOYEES' INS. ASS'N.

1. WORKMEN'S COMPENSATION-APPEAL-CONSIDERATION OF PAYMENTS ON ISSUE OF DEPENDENCY.

Where claimant for compensation for a death under the Workmen's Compensation Act (St. 1911, c. 751) has not appealed from the decision of the Industrial Accident Board that certain payments by deceased to claimant were not contributions to the support of the family, the Supreme Judicial Court cannot consider such payments in determining whether claimant was partially dependent for support upon deceased.

2. WORKMEN'S COMPENSATION-REVIEW-FINDING.

The finding of the Industrial Accident Board that claimant father was partially dependent for support upon his deceased son must stand if there was any evidence to warrant the finding.

3. WORKMEN'S COMPENSATION ACT-DEPENDENCY.

A son's contribution of $27 to his father, though given for the purchase of articles of household furniture, could have been adjuged a contribution to the support of the father within the act.

4. WORKMEN'S COMPENSATION-PARTIAL DEPENDENCY OF FATHER.

Though dependency of a father upn his son implies that the father relied on the son for support or help to a substantial degree, partial * Decision rendered, Jan. 2, 1918. 118 N. E. Rep. 189.