On Petition For Rehearing
Kelley, J.Appellant petitions for rehearing specifying eight (8) contentions.
(1). Appellant suggests that the time of appellee’s conversation with Given, the insurance adjuster, was the first week in March, 1947. The record may be somewhat confusing as to the exact circumstances. Appellee testified that he had a conversation about the matter four or five weeks after his injuries with a man whose name he did not then know. Later, in further testimony, .it became apparent that the name of the insurance adjuster was “Given.” However, we do not think the exact time is controlling. The basic question upon the issue was whether appellee had accepted *126money as compensation benefits. Under the pleadings framing such issue, the burden was on the appellant to prove its allegation that the appellee “has accepted weekly benefits of compensation.” The jury’s verdict on the issue was adverse to appellant. The giving by the court of Instruction No. 13 did not alter the situation. With reference to that instruction, we again refer appellant to the holdings of our court in the cases of Pittsburgh, etc. R. Co. v. Keith and Weis v. Wakefield, cited in the main opinion.
Appellant says that we did not state what evidence we had in mind when we stated “and there is further evidence to the same effect.” There was additional testimony given by the appellee which was of the same import as that quoted. Inferences could be also drawn from the testimony of Lawrence Shedd relative to Given’s authority. Appellant apparently disregards the rule that on appeal we consider only the evidence most favorable to appellee.
(2) . Appellant next says that we erred in “holding that there was no error in admitting into evidence appellee’s Exhibits 12, 13, 15, 16, and 31.” Apparently appellant has not thoroughly comprehended our opinion. We made no such holding. What we held was that said exhibits, admitted over the objection of appellant, had no probative value because the court gave appellant’s tendered Instruction 12, which we set forth verbatim in the opinion. No other evidence was offered or admitted on the question. Further, by reason of such instruction given at appellant’s behest, the latter waived its objections to the admission of the exhibits. Oglebay v. Tippecanoe Loan Company (1907), 41 Ind. App. 481, 485, 82 N. E. 494.
(3) . It is said that we erred in holding that it was not error to refuse appellant’s tendered Instruction *127No. 3. We see no force in this contention. We have again reviewed the court’s Instruction No. 1, in the light of appellant’s urging in the rehearing petition, and adhere to our said ruling.
(4) . Appellant avers that the “undisputed” evidence holds that Young was in the employ of Leslie Colvin and that we erred in holding that at the time of the accident he was in the employ of appellant. On page 189 of the transcript we find from the testimony of said Harve S. Young the following: Question: “Were you (Young) working there about 11:30 or 12:00 o’clock on that day?” Answer: “I was.” Question : “And can you tell this jury at that time who you were employed by?” Answer: “Armstrong Cork Company.” Evidence to the same effect was given by Young in other parts of his testimony. This does not indicate “undisputed” evidence that Young was employed by Colvin at the time of the accident.
(5) . It is claimed that we erred “in failing to hold that the evidence concerning the protruding of the boxes is given solely as to the condition of the boxes when the hoist was at the ground level and that the “undisputed” evidence “. . . is that the hoist was in a stationary position at the second floor when boxes were loaded . . . .” We have reviewed the record and do not find any reason to change our opinion in this regard.
(6) . (7). Appellant contends we erred in holding that it had full and exclusive control of the instrumentality causing the accident and that the “undisputed” evidence is that Leslie Colvin owned the hoist and operated it through his employee, Harve Young. We have again perused the record and adhere to our holding. The “undisputed” evidence is not such as appellant contends.
*128(8). Lastly, appellant says we erred in holding that the damages assessed by the jury are not excessive. We urge upon appellant a further perusal of the cases cited on the point in our opinion.
Petition for rehearing denied.
Note. — Reported in 111 N. E. 2d 82 and Rehearing denied in 112 N. E. 2d 240.