MIMESOTA, DEPT. OF LABOR AND INDUSTRIES, COMPILATION RELATIVE TO WORKMEN'S COMPENSATION ACT. 1920 CJnniPll ICam irlynnl ICtbtary _ Cornell University Library !^M5742.A52L3 1920 iH«tt»..«»«MaHt»at*a.tat.«.<«M«M«»a«i 3 1924 024 690 236 STATE C|i^ MlNWLSCrnr Department of Labor and Industries gatnt Patilv Minnesota. BULLETIN NO. 17 e0|tii]^fl3,tiQn of sf^^Pi'i- COURT DECISIONS ATTORNEY CMiftAL'S OPINIONS DEPARTMENf OF LABOR ADVICE Relative to the WORKMEN'S COMPENSATION ACT From Date When Act was Effective to July, 1920. Published under Section 24a, Chapter 467, G, L.^|^13. Prepared by OSCAR M. SULLIVAN \ Chief Statistician By Direction and Authorization of JOHN P. GARDINER CommlB^oner. ^•■■■■■•"•M»«.»i.«WM#....aiHMt..«..«.ia M «..ai.a..ii.»..t..».,i..a..aM«H»«a..aHaMa..a..>..a..0..^..^,^^ ..«m4» Cornell University Law Library THE GIFT OF ./fe.:...§L:^. " Date...(?^^::yr:^./..'5.,./.'^..?.< STATE OF MINNESOTA Department of Labor and Industries Saint Paul, Minnesota. BULLETIN NO. 17 Compilation of COURT DECISIONS ATTORNEY GENERAL'S OPINIONS DEPARTMENT OF LABOR ADVICE Relative to the WORKMEN'S COMPENSATION ACT From Date When Act was Effective to July, 1920. Published under Section 24a, Chapter 467, G. L. 1913. Prepared by OSCAR M. SULLIVAN Chief Statistician By Direction and Authorization of JOHN P. GARDINER Commissioner FOREWORD Since some of the earlier Bulletins of the Department covering deci- sions and opinions on the Minnesota Workmen's Compensation Act were becoming out of print we have felt it desirable instead of merely printing a Bulletin covering the year's decisions, to .print one which would present in one Volume all the important and interesting decisions since the begin- ning of the act. Wherever possible the Minnesota reference for supreme court cases as well as the Northwestern Reporter citation is given. District court decisions and Attorney General's opinions which have been superseded by the supreme court rulings have been discarded in this compilation. /^/^^ TABLE' OF CONTENTS \ I ij>. I. CONSTITUTIONAUTY AND GENERAL SPIRIT OF INTBi^^^>p-_ PRETATION .X^tt^bttf*-^ 1. Constitutionality ^ ' 2. Spirit of interpretation 13 II. TERRITORIAL SCOPE 14 1. Extra territoriality 14 (a) Common law right located the place of injury 14 (b) Place of contract determines compensation coverage 16 (c) Foreman sent outside state 19 (d) Non-resident agent, work entirely outside state 19 (e) Resident agent, foreign corporation 21 (f ) Scope of insurance policy 22 2. Vessels on Great Lakes 24 (a) Minnesota court holds act governs 24 (b) U. S. court reverses state rulings 26 (c) Federal judiciary code amended 26 (d) U.S. court holds amendment void 27 III. EMPLOYMENT COVERAGE 32 1. Railroad employes \ .• 32 (a) Not common carriers. . ..■'.:'. .". 32 (b) Express company employes 36 (c) Dock laborer 37 2. Domestic service 38 3. Farm laborers 38 (a) Threshing employes 39 (b) Building barn for farm 40 (c) Farmer cannot elect 41 (d) Mixed employment, creamery; raising hogs 41 (e) Care of stock 42 (f ) Farmer engaged in logging 42 4. Casual employment 43 (a) Casual, but in usual course 44 (b) Usual course means ordinary vocation 45 (c) Erection of permanent building 47 f (d) Emergency aid 48 5. Piece workers 49 6. Public employes 51 (a) Policeman 51 (b) Fireman 51 (c) Fireman under home rule charter 52 (d) Volunteer Fireman 54 (e) Citizen assisting officer 54 (f ) County employes 55 (g) Teacher of rural school 55 (h) Village marshal 56 7. Minors 56 (a) Child illegally employed 56 (b) Apprentice violating license law 59 IV. DEPENDENCY 61 1. Wife 61 (a) Voluntarily living apart 61 (b) Living apart, divorce suit begun 62 (c) Living apart through fear 63 (d) Common law wife 65 (e) Wife and two sets of children 65 2. Children 66 (a) Orphans, motherless children 66 (b) Child as actual dependent 69 (c) Status of placed-out child 71 3 3. Parents ''2 (a) Wholly supported '^2 (b) Support defined '^3 (c) Value of contribution 74 (d) Income loss the test 76 (e) Reasonable period 76 V. INJURIES 78 1. Disease or injury 78 (a) Tuberculosis pre-existing 78 (b) Rupture of blood vessel — when compensable 78 (c) Rupture of blood vessel— when not compensable 80 (d) Nephritis following fall 82 (e) Pneumonia following accident 83 (f) Diabetes following injury 84 (g) Diphtheria complicating disability 84 (h) Zanthoma tuberosum 85 (i) Arteriosclerosis 85 (j) Headaches, following injury 85 (k) Goitre 86 (1) Trachoma 86 (m) Asthmatic condition pre-existing 87 2. Infected injuries 87 (a) Scratch proving fatal 87 (b) Venereal infection 88 (c) Blister infected 90 3. Germ diseases 90 (a) Typhoid 90 (b) Smallpox 92 (c) Pneumonia 92 4. Occupational poisonings 93 (a) Hodgkin's diseases 93 (b) Tin poisoning 95 (c) Gas fumes 96 (d) Ivy poisoning. 97 5. Hernia 97 6. Freezing 98 (a) Swamper in woods 98 (b) Janitor — shoveling snow 100 7. Sunstroke 102 8. General 104 (a) No objective symptoms 104 (b) Imaginary loss ot function 105 (c) Ringworm 105 VI. AMOUNT AND PERIOD OF COMPENSATION 106 1. General principles 106 (a) Facts determine class of disability 106 (b) Temporary total in excess of permanent partial 107 (c) Actual wage not average wage 109 (d) Net wages 109 (e) Commission included in wages 110 (f ) Average wage, part-time employment 110 . (g) Interest on accrued payments 112 (h) Accrued compensation part of estate 113 (i) Meaning of word "substantially" 113 (j) The waiting period 113 2. Total temporary 114 (a) Termination ot disability 114 (b) Proviso for temporary partial disability 114 (c) Conflicting evidence, summary finding 115 3. Permanent partial 115 (a) Greater disability the test Hg (b) Not concurrent for two injuries 116 (c) Vested right 117 (d) Eye, light perception only left 118 (e) Both eyes injured, how compensated 118 (f ) Hearing, one ear 119 (g) Finger, partial loss 119 (h) Hand, not loss of arm also 120 (i) Hand, when fingers lost 121 ( j) Leg, ankylosis of knee 122 (k) General schedule, eyes 122 (1) General, body 125 (m) General schedule, leg and body 125 4. Total permanent 126 (a) Total permanent disability defined 126 (b) Loss of second eye 127 5. Fatal 129 (a) Date of death determines rights of dependents 129 (b) Total income 129 (c) Minimum, partial dependency 130 (d) Death of one of two dependents 131 VII. PROCEDURE 133 1. Notice of injury 133 (a) Meaning of actual knowledge 133 (b) Intent of injured man considered 134 2. Posting of notice of insurance 134 3. Time and place for hearing 135 4. Attorney's fees 138 (a) Attorney's fees as statutory costs 138 (b) No lien when informal settlement 138 ic) Fee of 20 per cent excessive 139 (d) Reasonable fees 139 5. Change of venue 139 6. Period for reopening 140 7. Final release 141 (a) Release must be approved 141 (b) Release set aside 142 (c) Release misunderstood 142 8. Revision of rate denied 142 9. Judgment reopened 143 10. Rule as to question of fact. 144 11. Election of act 146 12. Refusal to sign settlement petition 147 13. Writ of certiorari 147 (a) Stipulation not equivalent to writ 147 (b) Writ only on final decision 148 14. Lump sums 148 15. Jurisdiction 150 VIII. LIMITATIONS 152 1. Not retrospective 152 (a) Not retrospective on accrued rights 153 (b) Accrued rights not affected at all 154 2. Suspended as to alien enemies 154 3. Actions or proceedings 155 4. Date of accident report not confidential 156 IX. MEDICAL 157 1. Neutral physician 157 2. Selection of physician 157 3. Inadequate care 158 4. Failure to give care 15S 5. Prejudice 158 5 6. Dentistry Included 159 7. Wife as nurse 159 X. THIRD PARTIES 160 1. Limit of liability 160 2. Employer's recovery depends on negligence 161 3. Employer covered only during occupation 163 4. Employe not barred by compensation settlement 164 5. Coverage on way home 166 XI. WORDS AND PHRASES 169 1. Arising out o£ employment — abridged clause 169 (a) Exceeding scope in good faith 169 (b) Volunteer work in noon hour 171 (c) Employes exchange places 172 (d) Disobeying orders 173 (e) Errand boy disobeying rule 173 (f) Injury outside of service 173 (g) Unauthorized auto ride 174 (h) Street hazard 176 (i) Injured on sidewalk during errand 176 (j) Coverage on arrival 177 (k) Injury in lumber camp 177 (1) Injury outside regular hours 178 (m) Traveling man returning home 178 (n) Practical joking 178 (o) Assault arising out of work 179 (p) Injured by military guard 179 2. Arising out of employment — Act of God 179 (a) Lightning 179 (b) Freezing 181 (c) Sunstroke 181 (d) Tornado 181 3. Arising out of employment — ^limiting subsection 183 (a) Injury while on employer's bus 183 (b) Accommodation ride on employer's truck 186 (c) Coverage on way home 188 (d) Assault for personal reasons '. 189 (e) Injury on walk on premises 191 (f) Injury on returning for pay 192 (g) Teamster caring for own horses 193 4. Employer 194 (a) No liability beyond contractor 194 (b) Teamster lent to another company 195 (c) Teaming under contracts 195 (d) Town or supervisor 196 (e) Farmer or silo company 197 (t) Co-operative creamery 197 5. Intoxication proximate cause 19g (a) Proximate cause is question of fact 198 (b) Conflicting evidence as to intoxication 199 (c) Burden of proof on employer 201 6. Intentially self-inflicted 202 (a) Presumption against suicide 202 (b) Self-inflicted injury to evade draft 203 XIL DEPARTMENT OF LABOR FUNCTIONS 204 Appendix 1 205 1. Present value table 205 Appendix II 209 1. Occupational diseases 209 (a) Tuberculosis 209 (b) Inhaling disease germs 210 Case index 213 6 I. CONSTITUTIONALITY AND GENERAL SPIRIT OF INTERPRETATION I. CONSTITUTIONALITY In a decision which went into great detail the supreme court on July 3, 1914, held the Compensation Act to be constitutional with respect to every point that had been raised. The case is that of Ole Mathison vs. Minneap- olis Street Railway Company, July 3, 1914, 148 N. W. 71, 126 Minn. 286. We give the decision and syllabus in full: 1. Laws enacted by the legislature are presumed to be valid, and will not be declared invalid by the courts, unless they clearly transgress some constitutional limitation. 2. The constitutional requirement, that all persons shall receive the equal protection of the laws, is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a dis- tinction between those who fall within such class and those who do not. 3. When the legislature has determined that a sufficient distinction exists between two classes of persons to justify applying rules to one class which do not apply to the other, such determination is binding upon the courts, unless they can point out that the distinction is purely fanciful and arbitrary, and that no substantial or logical basis exists therefor. 4. Excluding domestic servants, farm laborers, casual employes, and such railroads and railroad employes as are engaged in interstate commerce from the provisions of the Workmen's Compensation Act does not render it unconstitutional as class legislation. 5. The legislature may place employers who become subject to part 2 of the act in a different class from those who do not, and may also place employes who become subjectl thereto, in a different class from those who do not; and abrogating the defenses of contributory negligence, assumption of risk, and negligence of a co-employe. In actions against employers who do not accept such part 2 and permitting such defenses in actions against employers who do accept such part 2, does not render the act invalid as class legislation. 6. Part 2 of the act substitutes the rights, remedies and liabilities therein provided for those previously existing, and employers and employes subject thereto are limited to such rights and remedies; but such provisions impair no constitutional rights, as they apply only to those who have voluntarily chosen to become subject thereto, and such choice is no less optional because part 2 is presumed to have been accepted by all employers and employes who have not given notice to the contrary. 7. The act contains no provision prohibited by the state or federal con- stitution and is valid. Action in the district court for Hennepin county to recover $26,00(1 for personal injury received by plaintiff while in the employ of the city of Minneapolis and engaged in paving along the tracks of defendant company. From an order, Jelley, J., overruling plaintiff's demurrer to that part of the answer which alleged that plaintiff, the city of Minneapolis and defendant company had accepted, were acting under, and were governed by, the provisions of part 2 of the Workmen's Compensation Act (G-. S. 1913, sections 8195-8230), plaintiff appealed. Affirmed. Duxbury, Conzett & Pettijohn, for appellant. Koon, Whelan & Hempstead, for respondent. H. V. Mercer, by consent, 'filed a brief as amicus curiae. Davis, Kellogg & Severance, as amici curiae, filed a brief in favor of respondent. Taylor, C. Plaintiff, an employe of the city of Minneapolis, while engaged in laying paving along and near thei railway track of defendant in one of the streets of that city, was struck by one of defendant's street cars andi received injuries which necessitated the amputation of his leg. Alleging that the injury was caused by the negligence of the defendant, he brought this action to recover damages. Defendant, in its answer, among other things, alleged that plaintiff, the city and defendant had all' accepted, were acting under, and were governed by, the provisions of part 2 of chap- ter 467, page 677, Laws of 1913 (sections 8195-82'30, G. S. 1913), commonly known as the Workmen's! Compensation Act; and that plaintiff's rights were limited and confined to, and were measured and detennined by, the relief provided for in part 2 of that act. Plaintiff demurred to this portion of the answer, and appealed from an order overruling the demurrer. Plaintiff contends that the act violates sections 2, 4, 8 and 13, of article 1, of the Constitution of the state of Minnesota, and the fifth and fourteenth amendments to the Constitution of the United States and is, therefore, unconstitutional and void. Whether this contention be well founded is the sole question for decision. The able arguments and exhaustive briefs pre- sented have received attentive consideration and have been of much assistance. We shall not stop to discuss the shortcom'ings and unsatisfactory results of the law of negligence as applied to present-day industrial conditions; nor the desirability of providing more certain, effective and inexpensive relief for injured workmen than the present common-law actions afford; nor the economic reasons for imposing upon an employer, not because he is at fault, but as a burden incident to his business, the obligation (to con- tribute to the support of employes disabled through injuries received in the course of their employment. Much consideration has been given to these questions by publicists and students of industrial, economic and social problems; and it has become generally recognized that the common law fails to make adequate or equitable provision for the economic loss resulting from a disability which deprives the workman of his earning power. But changes in the laws, and in the public policies recognized in the laws, must emanate from the law-making power and not from the courts. The courts must administer the law as they find it, not as they may think it ought to be. Hence, arguments showing the need for a change in the laws governing the relations of master and servant, should be addressed to the legislative and not to the judicial branch of the govern- ment. The briefs have given considerable attention to these legislative questions, but it is sufficient, for the present purposes, to say that the argu- ments advanced furnish ample basis for legislative action under the police power of the state; and that laws enacted for the purpose of adjusting and determining the respective rights and obligations of employer and employe may make radical innovations in pre-existing policies and rules of law, so long as they do not infringe some constitutional guaranty. (1) In considering the questions now before the court, it is proper to say, at the outset, that all laws enacted by the legislature are presumed to be valid; and that it is the duty of the courts to declare them valid, unless they clearly transgress some limitation upon the power of( the legis- lature imposed by the state or federal constitution. Ross vs. State, 6 Minn. 291, (428); State vs. Corbett, 57 Minn. 345, 59 N. W. 317, L. R. A. 498; Lommen vs. Minneapolis Gaslight Co., 65 Minn. 196, 68 N. W. 53,, 33 L. R. A. 437, 60' Am. St. 450 ; Union Pac. Ry. Co. vs. United States, 99 U. S. 700, 25 L. ed. 496; Powell vs. Pennsylvania, 127 U. S. 678, 8 Sup. Gt. 992, 1257 32 L. ed. 253. The act in question provides that compensation shall be made by the employer to the employe, or in case of his death to his dependents, for injuries sustained in the course of the employment, "provided the employe was himself not wilfully negligent"; but the act does not apply to those rail- roads or those employes of railroads that are subject to the laws of the United States, enacted pursuant to the power to regulate commerce, nor to domestic servants, farm laborers, or persons whose employment is only cas- ual. The act is separated into two divisions designated as part 1 and part 2. The provisions of part 2 apply only in the event that both employer and employe elect to become subject thereto. If either or both elect not be become subject to part 2, the provisions of part 1 apply. If the employer has elected not to become subject to part 21, he cannot interpose as a defense, in an action brought under part 1, that the employe was negligent, unless such negligence was wilful; nor that he had assumed the risk; nor that the injury was caused by the negligence of a co-employe. Depriving the employer of the three defenses named, in case he elects not to become sub- ject to part 2 of the act, is the only substantial change made by part ! In the previously existing law. If the employer declines to accept the pro- visions of part 2, he loses the benefit of these three defenses; if he accepts the provisions of part 2, but the employe declines to accept such provisions, the employer retains the benefit of such defenses. (2) It is claimed that the act violates the equality provisions of the state and federal constitutions, for the reason that it abrogatesi these three defenses, in actions under part 1, brought against employers who elect not to accept the provisions of part 2, but permits such defenses to be inter- posed, in actions under part 1, brought against other employers; and also for the reason that the act excludes from its provisions domesitic servants, farm laborers, casual employes and such railroads and railroad employes as are within the legislative domain of the United States'. That the defenses mentioned may be entirely abolished, or abolished as to certain classes of employments only, is too well settled to require argument. Missouri Pac. Ry. Co. vs. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. ed. 107; Minneapolis & St. L. Ry. Co. vs. Herrick, 127 U. S. 210. 8 Sup. Ct. 1176, 32 L. ed. 109;. Tullis vs. Lake Erie & W. Ry. Co., 175 XJ. S. 348, 20 Sup. Ct. 136, 44, L. ed. 192; Mondou vs. New York, N. H. & H. R. Ry. Co., 223 U. S. 1, 321 Sup. Ctl. 169, 56 L. ed. 327, 38 L. R. A. (N. S.) 44; Missouri Pac. Ry. Co. vs. Castle, 224 U. S. 541, 32 Sup. Ct. 606, 56 L. ed. 875; Vindicator Consol. Gold Mining Co. vs. Firstbrook, 36 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108; Borgnis vs. Palk Co., 147 Wis. 327, 133 N. W. 209; Deibeikls vs. Link-Belt Co., 261 111. 454, 104 N. E. 211; in re Opinion of Justices, 209 Mass. 607, 96 N. E. 308; Ives vs. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156; Sexton vs. Newark District Telegraph Co., 84 N. J. L. 85, 86 Atl. 451; State vs. Creamer, 85 Oh. St. 349, 97 N. E. 602, 39 L. R. A. (N. S.) 694. The power to abolish such defenses rests upon the principle that no person has any property right or vested interest in a rule of law, and that the legislature may change such rules at its pleasiure. Munn vs. Illinois, 94 U. S. 113, 24 L. ed. 77; Mondou vs. New York, N. H. & H. Ry. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. ed. 327; Borgis vs. Falk Co., 147 Wis. 327, 133 N. W. 209; Sawyer vs. El Paso & N. E. Ry. Co., 49 Tex. Civ. App. 106, 108 S. W. 719; Cunningham vs. Northwestern Improvement Co., 44 Mont. 180, 119 Pac. 554; Eertholf vsi. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323; Deibeikis vs. Link-Belt Co., 261 111. 454, 104 N. E. 211. Plaintiff contends, however, that the classifications made by the act are unwar- ranted, and that the constitutional requirement that all persons shall receive the equal protection of the laws is infringed, unless smch defenses are abrogated as to all employers, or remain available to all employers, and unless the act applies to the classes excepted from its operation asl well as to those included therein. It is universally recognized that such constitutional provisions do not prohibit the legislature from prescribing valid rules and regulations, nor from Imposing valid duties and obligations, nor from conferring valid rights and privileges, which apply only to those persons falling within a specified class and not to the general public. Legislation which applies alike to all persons within the designated class, but does not apply to persons outside such class, is well within the constitutional requirement, if there be reasonable grounds for making a distinction between those who fall within such class and those who do not. Barbier vs. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. ed. 923; Holden vs. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42: L. ed. 780; Magoun vs. Illinois Trust & Savings Bank, 170 U. S. 283, 18 Sup. Ct. 594, 42 L. ed. ]037; Atchison, T. & S. F. Ry. Co. vs. Mattbews, 174 TJ. S. 96, 19 Sup. Ct. 609, 43 L. ed. 909; St. John vs. New York, 201 U. S. 633, 26 Sup. Ct. 554, 50 L. ed. 896; Louisville & N. Ey, Co. vs. Melton, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. ed. 921, 47 L. R. A. (N. S.) 84: Mobile, J. & K. C. Ry. Co. vs. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 U ed. 78. 32 L.. R. A. (N. S.) 226, Ann. Cas. 1912A, 463; Mondou vs. New York, N. H. & H. Ry. Co., 223 U. S. 1. 32 Slip. Ct. 169, 56 L. e., 147 Wis. 327, 133 N. W. 209, 37 L,. R. A. (N. S.) 489. This decision we should 15 apply insofar as it determines the questions raised herein. We also have sustained a law of like character. Mathison vs. Minneapolis Street Ry. Co., 148 N. W. 71. These two decisions answer the arguments advanced against the constitutionality of this and similar legislative acts affecting the com- mon-law remedy of a servant for injuries Suffered through the master's negligence. (2) "Eighteen days prior to the time plaintiff came to Wisconsin and there began his work, defendant elected to accept the provisions of the Compensation Act. The question then is whether, under that part of the law above set out, it must be held that plaintiff also had accepted. It seems to us that the status of the employer in respect to the act at the time the employe enters the service in Wisconsin determines what action the latter must take. If at that time the employer is within the act, th6 employe must then elect, and is held to have accepted, unless written notice to the contrary is given. Knowledge of the employer's election to accept is conclusively imputed to all employes. Section 2394-29 of the act. And considering the contract of hiring in this case, as set out in the reply, we reach the conclusion that plaintiff, by failing to give written notice of non-acceptance when he entered the service in Wisconsin, accepted the pro- visions of the act. The employment was for no definite period. When plaintiff, on June 26, 1913, was requested to go to Wisconsin, he was free to accept or refuse. Had he refused, no existing contract between the parties would have been breached. Nor would there had plaintiff then been discharged. Therefore, when he agreed to go, it was in reality a new hiring for that work. That was the first time plaintiff was In position to choose between the two remedies open to him in Wisconsin, in case he, in his contemplated employment, should meet with an injury. The con- tract of hire, referred to in the statute, quoted above, must mean, an agree- ment to work in Wisconsin, where the law applies. "But it Is said, the reply alleges that plaintiff had no knowledge of the law of Wisconsin, especially the statute law. Since plaintiff must plant his right to recover upon the laws of that state, we do not think he caii plead ignorance of either the statutory or the common law, as there administered, which may affect such right. A person is presumed to know and understand the law of the state wherein he tranacts business. These cases so hold: Bentley vs. Whittemore, 18 N. J. Eq. 366; Dank vs. Spald- ing, 9 N. Y. 53; Hill vs. Spear, 50 N. H. 253, 9 Am. Kep. 205. In criminal cases ignorance of the law excuses the foreigner no more than the citizen. It cannot be possible that the laws of any state will permit a discrimination against its own inhabitants as regards remedies for personal injuries, or make such remedies dependent upon knowledge or ignorance of the law on that subject. "The trial court ruled rightly that the sole remedy open to plaintiff is now to be found in the provisions of the Wisconsin Workmen's Com- pensation Act. "Judgment affirmed." (b) Place of Contract Determines Compensation Coverage. The first case in which the question of extra-territoriality of the Min- nesota act was squarely before our supreme court was that of State ex rel. Chambers et al. vs. District Court of Hennepin County, January 11, 1918, 166 N. W. 185, 139 Minn. 205. The principles laid down in this decl^ slon have been applied by the court in all cases presenting extra- territorial features which have arisen since that time. In the particular case ruled upon the employe was a resident of another state, but had been hired by a Minnesota corporation having a business situs only in this state. The employe rendered service both in Minnesota and elsewhere, and was Injured while outside the state. The general principle which the court applied was that the law which applied was that of the place where the contract of employment was made. The decision in full is as follows: 16 "Dlbell, C. Certiorari to the district court of Hennepin county to review a judgment denying the relator compensation under the Workmen's Compensation Act for the death of her husband. (1) "Judgment was entered on the pleadings on motion of the defend- ant employer. The facts stated in the complaint, which we are to take as established, are substantially these: The relator's husband was a resident of North Dakota. He was employed by C. C. Wyman & Co., a Minnesota corporation, doing a general grain brokerage business in Minnesota ana having its place of business in Minneapolis. It does not appear that it haa a business situs elsewhere. The contract of employment was made in Minneapolis. It contemplated the rendition of services by the deceased in soliciting business in Minnesota, North Dakota, and elsewhere. The com- pany furnished him an automobile which he used in performing such serv- ices. While he was in North Dakota on May 5, 1917, the automobile was accidentally overturned and he was killed. "The accident arose out of and in the course of the employment. "The question is whether, with the facts as stated, the motion of the employer for judgment on the pleadings was rightly granted. Liability would be conceded had the accident happened in Minnesota. The claini of the employer is that compensation cannot be awarded for an accident occurring outside the state. "The Minnesota Compensation Act provides for elective compensatioii, G. S. 1913, Sec. 8202, et seq.; Mathison vs. Minneapolis, etc., Co., 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412. The employer and employe become subject to the act only by agreement express or implied. If they elect to become subject to it, they in effect contract that the employe shall receive and the employer will pay the statutory compensation for all accidental injuries arising out of and in the course of the employment, and the employe waives his common-law right of action. It is unimportant whether the cause of the accident is referable to a tortious or a blameless act, or whether, if tortious, the employer or some third person, is blameworthy, or even that the employe is at fault, if not wilfully so. "The statute requires compensation of the employer, when the employer and employe have elected to become subject to the act, 'in every case of personal injury or death of his employe, caused by' accident, arising out of and in the course of employment, without regard to the question of negligence, except accidents which are intentionally self-inflicted, or when the intoxication of such employe is the natural or) proximate cause of the injury. * * *' u. s. 1913, Sec. 8203. The statute evidences no affirma- tive purpose to restrict the operation of the contract to accidental! injuries happening within the state. That a statute might make such limitation expressly is clear; or the wording of it might require such construction by way of proper Inference. "In Connecticut, New York, Rhode Island, West Virginia, Indiana and New Jersej', under varying statutes and with facts changing from case to case, it is held that compensation may be awarded for an injury occurr- ing outside the state. Kennerson vs. Thomas Towboat Co., 89 Conn. 367, 94 Atl. 372, L. R. A. 1916A, 436; Post vs. Burger, 216 N. Y. 544, 111 N. E. 351, Ann Cas. 1916B, 158; Grinnell vs. Wilkinson, 39 R. I. 447^ 98 Atl. 103; Gooding vs. Ott, 77 W. Va. 487, 87 S. E. 862, L. R. A. 1916D, 637 ; Hagenbask vs. Leppert (Ind. App.), 117 N. E. 531; Rounsaville vs. Central R.| Co., 87 N. J. Law, 371, 94 Atl. 392. And see Foley vs. Home Rubber Co., 89 N. J. Law, 474, 99 Atl. 624, where the right to compensation was tacitly con- ceded. Massachusetts and California are opposed. Gould's Case, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372; North Alaska Salmon Co., vs. Pillsbury (Cal), 162 Pac. 93, L. R- A. 1917E, 642. And so are the English cases. Tomalin vs. Pearson, (1909) 2 K. B. 61, 2 B. W. C. C. 1; Schwartz vs. India Rubber, etc., Co., (1912) 2 K. B. 2'99, 5 B. W. C. C. 390; Hicks vs. Maxton, 124 L. T. J. 135, 1 B. W. C. C. 150. The cases are collected and discussed in the treatises and annotated cases. 1 Honnold, Workmen's Comp., Sec, 8; 1 Bradbury, Workmen's Comp., Sees. 34-68; Dosker's Manual 17 Comp., Sees. 261-263; Kennerson vs. Thomas Towboat Co., 89 Conn. 367, 94 Atl. 372, L. E. A. :916A, 4d3; Post vs. Burger, 216 N. Y. 554, 111 N. E. 351, Ann. Cas. 1916B, 158, 10 N. C. C. A. 888. "A consideration at length of the arguments which support the diverse views does not serve our present purpose. Different arguments appeal to different courts. Often a distinction is drawn between an elective and a compulsory act with the suggestion that in the case of the former there Is a contract to pay which is the basis of the right to compensation, that a contract is not local as is a tort, and therefore state boundaries are not important. Whether an agreement to pay Is imported into the contract of hiring where a compulsory act is in force is not material to our inquiry, for ours is not such an act. That under our act there is a contract obliga- tion is clear. The weight of authority supports the view that under an elective act like ours and with the facts such as are present, an accidental injury, though it occurs outside the state, is compensable. This view we adopt. There is nothing in Johnson vs. Nelson, 128 Minn. 158, 150 N. W. 620, opposed. The injury there involved occurred in Wisconsin, and the employer and employe were by their election subject to the compengation act of that state. It was held that the employe could not maintain a com- mon-law action in Minnesota for the Wisconsin injury. "A basic thought underlying the Compensation Act is that the business or industry shall, in the first instance, pay for accidental injuries as a business expense or a part of the cost of production. It may absorbl it or it may put it partly or wholly on the consumer, if It can. The economic tendency is to push it along just as it is to shift the burden of unrestrained personal Injury litigation. When a business Is localized in a state there is nothing inconsistent with the principle of the Compensation Act in requiring the employer to compensate for Injuries in a service incident to its conduct sustained beyond the borders of the state. Tlie question of policy is with the legislature. It may enact an elective compensation act bringing such result if it chooses. In the case before us, the business of the employer was localized in the state. What the employe did, if done in Minne- sota, was a contribution to the business involving an expense and presum- ably resulting in a profit. It was not differenrt because done across the border in North Dakota. It was referable to the business centralized in Minnesota. Sometimes the construction which we adopt will result to the immediate advantage of the employe and against the employer, and some- times the result will be the reverse. "Whatever view is adopted, perplexing situations may arise. Business has scant respect for state boundaries. An industry may be located a part in one state and a part in another, or it may have separate business situs in two or more, and its employes from time to time work in each, and may reside in one or another at their convenience. Situations may arise where it is difficult to say whether the employment is referable by the act of the parties or by intendment of law to a business conducted in one state or another and whether the governing law, applicable to an injury coming from the employment, is that of the one or the other, or whether there may be a recovery of the employer under the compensation act of one state and of a third person under the common law of the state of the injury. They are safely left for determination when they arise. Here, if the facts stated in the complaint are true, the employment was referable to the business conducted in Minnesota, and its Compensation Act is the governing law between employer and employe. We hold that judgment on the pleadings should not have been directed for the employer. (2) "The statute contemplates the review of questions of law arising in the administration of the Compensation Act by certiorari. G. S. 1913, Sec. 8225. It does not intend the review by certiorari of orders and judgments not in their nature appealable under our practice. An order for judgment on the pleadings from early times has been held not appealable. 1 Dunnell, Minn. Dig., Sec. 309. The writ sought to review the order granting the motion for judgment. To convenience the parties, we allowed a remand 18 of the case for the entry of judgment and the making of amendments appro- priate to bring the judgment here for proper review. Some inconvenience has resulted to the parties from relator's improper procedure. We empha- size the importance of the observance of the statute and settled practSce hy withholding from the relator statutory costs. Judgment reversed." (c) Foreman Sent Outside State. Another extra-territorial case presented aspects only slightly different from the foregoing, and was held by the Supreme Court to be governed by the same ruling. In this instance the employe resided in Minnesota, but was sent into different sections of the northwest in connection with general contracting work. The contract of hire was made in Minnesota, and the main office of the employer was in Minnesota. The case is that of State ex rel Maryland Casualty Co. vs. District Court of Rice County, 168 N. W. 177, 140 Minn. 427. "Hallam, J. Albert J. Payant received injuries on August 23, 1917, from which he died. Payant was in the employ of William Kingsley, at Minot, N. D. Kingsley was a contractor residing at Faribault, Minnesota. He did general contracting work throughout the northwest. His general office was at Faribault, and from there he conducted his business. "Payant was a resident of Faribault. He had been a partner of Kings- ley. After dissolution of the partnership, and in October, 1916, Kingsley employed him as general foreman. The arrangement was made at Fari- bault. Payant was to receive $50 a week. He was first sent to Miison City, Iowa. While there, Kingsley took on work at Minot where he 'needed him a good deal more,' so about May 1, IftlYj he sent Payant from Mason City to Minot to take charge of the work there. There was a verbal agree- ment made at Mason City that Payant should stay with Kingsley until Jan. 1, 1918. His salary was raised to $56 a week. Kingsley maintained an office! at Minot during the continuance of the work there, and fop pur- poses of such work. He had personal charge of this office while there; while absent, it was in charge of an employe. "The court found that the contract was made in Minnesota, and found in substance that the accident arose out of and in the course of his employ- ment, and gave compensation to his dependents pursuant to the com- pensation act, G. S. 1913, par. 8195. The only question in the case is whether the Minnesota act is applicable to this case. "In our opinion, the case is ruled by State ex rel Chambers vs. District Court of Minnesota, 166 N. W. 185. The facts are in substance the same. It was there held that where a business is localized in this state, it is the purpose of the statute to compensate for injuries in a service incidental to its conduct though sustained beyond the borders of the state. We are of the opinion that Kingsley's business was localized in this state, that Pay- ant's employment was referable to the business conducted in Minnesota and that compensation was properly allowed. Johnson vs. Nelson, 128 Minn. 158, 150 N. W. 620, was different. It did not involve the question of extra-territorial operation of the compensation law. It is distinguished in the Chambers case. Judgment affirmed." (d) Non-resident Agent, Work Entirely Outside State. In a third case the supreme court applied the rule announced in the Chambers case, even though the employe wa^ resident at all times outside the state and performed all of his work outside the state. The style of the case is State ex rel McCarthy Bros. vs. District Court of Hennepin County, 169 N. W. 274, 141 Minn. 61. The opinion follows: "Quinn, J. Certiorari to the district court of Hennepin county to review a judgment granting to respondents, Von Hagen, compensation under the Minnesota Workmen's Compensation Act (General Statutes 1913, sections 8195-8230) for the death of Arnold Albert Von Hagen, husband of respon- dent Blanche Von Hagen, and father of the three minors mentioned in the 19 complaint. The cause was tried before the court without a jury, and sub- mitted for decision upon the pleadings and proofs of the parties. The court made findings of fact and conclusions of law, and ordered judgment that respondents have and recover the sum of $11 per week for 300 weeks, $100 funeral expenses, and $74.60 costs and disbursements. Judgment was entered accordingly. "On April 8, 1917, and for a number of years prior thereto. Von Hagen resided with his family at their home in Bismarck, in the state of North Dakota. Bismarck is on the east, and Mandan a few miles distant on the west side of the Missouri river. Von Hagen was in the employ, upon a salary and traveling expenses, excepting board and lodging while at his home, of McCarthy Bros. Company, a Minnesota corporation doing a general grain brokerage business in the city of Minneapolis, this state. The con- tract of employment was made there. It was Von Hagen's duty to travel about, call upon the grain dealers throughout his territory, and solicit the shipment of grain to relators at Minneapolis, for sale on commission. He was given no directions as to how or where he might travel; such matters being left to his judgment. Relator's business cards which were presented to its customers, gave Von Hagen's address as Bismarck, N. D. It was there he received his mail. "Decedent spent the night of Friday, April 6th, at his home. The fol- lowing morning he went to New Salem and transacted some business, returning by way of Mandan, where he arrived at about 7:00 or 8:00' o'clock Saturday evening. The channel of the Missouri river, where the railway crosses from Bismarck to Mandan, Is about 600 feet wide and spanned by ai high bridge. It is about two miles from the westerly end of this bridge across bottom lands to the easterly yard limits in the city of Mandan. The railway track across these bottom lands is on a grade of 6 or 7 fee): high. On a line between the Mandan yards and the bridge is a mound' or high tract of land. The ice in the river had gorged at a point about 12 miles above Mandan. . Friday night this gorge gave way, with the result that the railroad track across the bottoms at Mandan was covered with water to the depth of 2 to 3 feet, andi all traffic between Mandan and Bismarck was abandoned from Saturday morning until Monday night. On Sunday morning, for the purpose of getting home. Von Hagen and three other traveling men went down to the easterly end of the yards at Mandan, and, with two helpers, embarked in a round-bottomed skiff and started to row to a point near the bridge. When they reached a point near the mound, they concluded that the current and wind were too strong for them to safely proceed further, and they attempted to turn around, when the boat came into contact with the top of a wire fence and capsized. The men held fast thereto, but the current was strong, the water cold, and they were shortly forced to release their hold. All were drowned, save one of the helpers. "It is urged that decedent was not within the protection of the Minne- sota Workmen's Compensation Act at the time of his death, because it appears that he did not come to his death by reason of an accident arising out of and in course of his employment; that at the time of the accident he had been through with his work since the preceding day; that there was no necessity for his getting home on Sunday; that in order to do so he undertook an extremely hazardous trip for his own purposes, and not in connection with the business of his employers. We are unable to agree with these contentions. Decedent's duties required his traveling from place to place in his territory, which was several hundred miles from his employ- er's place of business. It was proper that he have some regular or fixtedj place for communicating with his employers. His home was near his field of labor. He made it his headquarters, as well as his retreat for over Sun- day^ as he properly would, and as his employers must naturally have expected and intended he should do. Indeed all of the correspondence between them so indicates. We see no reason why he might not properly, and without stepping outside the scope of his employment, return to his home from field of labor on the Sabbath day. The case comes within the 20 rules announced in State ex rel. Chamber et al. vs. District Court, 139 Minn. 205, 166 N. W. 185. We think the trial court was justified in finding from the evidence that decedent came to his death by reason of an accident arising out of and in the course of his employment. When he attemped to cross the river, the usual means of travel by rail had been abandoned because of the high water. The only available means of crossing was by boat. Others had crossed over safely by the same means on the previous day. It was left to decedent's judgment as to how or where he might travel. He may have been somewhat negligent, but there is nothing to indicate an intentional or wilful want of care on his part. He was in the act of returning to the shore when the accident occurred. To justify a recovery under the statute, it is unimportant that the employe might have been at fault if not wilfully so. G. S. 1913, Sec. 8203. The record justifies the findings of the trial court. Affirmed." (e) Resident Agent, Foreign Corporation. A different state of facts from any ruled upon by the .supreme court arose in a district court casei of Winifred Braden vs. Aetna Life Insurance Company, Hennepin county, decided by Judge Hale, May 25, 1920. In this case the employe was apparently hired in the state of Illinois bv) a New York corporation which had a branch office in Chicago. He was killed in a cyclone while traveling in the course of his duties. No action could be brought under the Illinois act because it is not extra-territorial. As the previous decisions on extra-territoriality had not touched on a case of this character the attempt was made to secure compensa.tion under the Minne- sota act. The court held adversely, however. The ruling is as follows: "The above entitled cause came duly on for hearing before the court on May 15, 1920, upon the pleadings and an agreed statement of facts filed with the court. Mr. Charles S. Allbright, special agent, Minnesota Depart- ment of Labor and Industries, appeared for the plaintiff, and Dille, Hoke, Krause & Paegre, and J. G. Stirn, appeared for the defendant. The court having considered the pleadings, agreed statement of facts and briefs and oral argument of counsel, and being fully advised in the premises, finds as Facts. "That the plaintiff is the widow of W. W. Braden, deceased, and the natural guardian of their three minor children. That said W. W. Braden, during his lifetime and on or about August 1, 1918, was hired by the American Ever Ready Works, a corporation, to act as a soliciting agent for It in certain territory comprising portions of the states of Minnesota, South Dakota and North Dakota. And thereafter said Braden continuously acted as such soliciting agent, or traveling salesman, for said American Ever Ready Works, in said territory until the time of his death on June 22, 1919. The contract of employment of said Braden by said American Ever Ready Works was made at the city of Chicago, in the state of Illinois. The said Braden was, at all times, a resident of the state of Minnesota; but his employer, the American Ever Ready Works, was at all times a corporation organized under the laws of the state of New York, having its main office at Long Island City, New York, and a western branch office at Chicago. The business of said corporation was that of manufacturing and selling electric batteries and various patented electrical appliances. Said employer at no time during the period of Braden's employment, or at any time, maintained any office in the state of Minnesota, nor did It have any property in the state of Minnesota. All work in its behalf by solicitors in Minnesota was supervised by the company's western branch office at Chicago, and the said Braden, at all times, did his work under directions from said western branch office at Chicago, 111. The work of said Braden was, during all the times of his employment, solely that of a soliciting sales agent for said American Ever Ready Works. "That on or about June 13, 1919, in the course of his employment with the American Ever Ready Works, W. W. Braden received instructions to 21 cover the following towns outside the Twin Cities in the regular course of his duties, as follows: "June 16th, St. Cloud, Minn. "June 17th, St. Cloud, Minn. "June 18th, Melrose, Minn. "June 18th, Sauk Centre, Minn. "June 19th, Alexandria, Minn. "June. 20th, Fergus Palls, Minn. "June 21st, Fergus Falls, Minn. "June 22d, Fergus Falls, Minn. "June 23d, Breckenridge, Minn. "June 23d, Wahpeton, N. D. "June 24th, Morris, Minn. "June 24th, Ortonville, Minn. "June 25th, Appleton, Minn. "June 25th, Benson, Minn. "June 26th, Willmar, Minn. "June 2'7th, Montevideo, Minn. "June 28th, Glencoe, Minn. "June 29th, Minneapolis, Minn. "And that pursuant to said instructions on June 16, 1919, the aforesaid W. W. Braden left Minneapolis and proceeded to St. Cloud, Minn., calling upon the trade in the towns included in the above mentioned itinerary of the trip up to and including Fergus Falls, at which place he was accidentally killed during the storm which occurred on Sunday, June 22, 1919, between 4:00 o'clock and 5:00 P. M., the body of the afore- said W. W. Braden having been found near the railroad depot at Fergus Falls, Minn. The storm in which said Braden was killed was one of great violence. It was, in fact, a cyclone. Many buildings in the town were destroyed and numerous people were killed in the course of the cyclone. "It is apparent that the deceased had gone to the railroad station to take a train to Breckenridge, Minn., the next town appearing on hls', Itinei^ ary. Evidently while waiting for such train, the cyclone occurred and caused his death. The path of the cyclone extended across the entire city of Fergus Palls. "The deceased was not exposed to injury from said cyclone by reasons of his employment, anything more than the normal risk to which all per- sons happening to be in the city of Fergus Falls at the time of the cyclone were subject; nor did his employment necessarily accentuate the natural hazard from said cyclone. The accident causing the death of said Braden in said cyclone was not one which arose out of his employment. "The defendant, Aetna Life Insurance Company, a corporation, has voluntarily appeared and conceded that, under the terms of a certain policy of insurance issued by it to the American Ever Ready Works, at Chicago, 111., if the American Ever Ready Works, the employer, is liable to pay compensation in this case under the so-called Workmen's Compensation Act, then the said defendant, Aetna Life Insurance Company, is likewise liable. "As conclusions of law, neither the said employer, American Ever Ready Works, a corporation, nor the said employe, W. W. Braden, at the time of his death, was subject to the so-called Minnesota Workmen's Compensa- tion Act. The accident which caused the death of said W. W. Braden did not arise out of his employment. "Plaintiff is not entitled to recover from defendant any sum whatso- ever in this action." (f) Scope of Insurance Policy. Whether an insurance policy written to cover liability under the Minne- sota Workmen's Compensation Act covers employes outside of Minnesota was discussed by the supreme court in- State ex pel. London &• Lancashire Indemnity Co. vst District Court of Hennepin County, 170 N. W. 218;, 141 Minn. 348, and decided affirmatively. The opinion is as follows: 22 "Dibell, J. Certiorari to the district court of Hennemn to review its judgment awarding compensation under the Workmen's Compensation Act for the death of Thomas H. Chambers. Thq judgment gave compenB.ation against tlie relator insurance company and the employer, and fixed the obli- gations between themselves of the insurance company and the employer. "Chambers was in the employ of C. C. Wyman Company, of Minneapolis, as a traveling solicitor in the grain business. He was killed in North Dakota on May 5, 1917, by the overturning of an auto furnished him by the company and which he was driving. One phase of the case was considered in State vs. District Court, 139 Minn. 205, 166 N. W. 185. The Wyman company carried indemnity insurance in the relator. The relator claims that there can be no recovery under the compensation act because the Intoxication of Chambers was the cause of the accident, and further, because the accident did not arise in the course of his employment. It also claims that its policy did not promise indemnity to the Wiyman company for accidents to its employes without the state, and therefore is not liable. These are the issues: (1) 1. "The relator claims that Chambers was intoxicated, and is pre- cluded from recovering by G. S. 1913-8203, which prevents recovery when intoxication is the 'natural and proximate cause' of the accident. The burden of proof is upon the employer. The court found against the relator, and its findings is abundantly sustained. (2) 2. "The relator claims that the accident did not occur in the course of Chambers' employment. He was engaged as a solicitor in the grain business and had his home at Bismarck, which was the point from which he worked. He had been using the auto in the course of his business during the day and was returning homeward. The evidence sustains, if indeed it does not require, a finding that he was in the course of his employment. It is much stronger than the evidence in State vs. District Court, 169 N. W. 274, which is in some respects similar. (3) 3. "The controversy between the Wyman company and the insur- ance company involves the single question whether the insurance policy covered employes outside of Minnesota, and the issue is raised by appropri- ate pleadings between them. "The policy purported to give indemnity in consideration of the pay- ment of the estimated premium and the representations contained in a schedule attached. This schedule stated the address of the Insured, the duration of the risk, the location of all places where business operations were to be conducted, the total estimated annual wages, the description of business operations to be insured, and a number of other matters not presently material. It stated the place of business operations to be at Minneapolis and Duluth, giving the office address of the insured at both places, and elsewhere in Minnesota. Under the head of 'Description of Business Operations to be Insured,' there was the following: 'Grain commission. 'Clerical force and other employes engaged exclusively in office duties. 'Salesmen, collectors, and messengers, traveling in Minnesota. 'Drivers of automobiles and their helpers. 'Drivers of teams and their helpers.' "The Wyman company did not prepare nor sign this schedule. It was not presented to it. It came attached to the policy from the agents of the insurance company a few days before the expiration of another policy, the place of which it was to take. The policy itself gave indemnity as follows: "'(2) Against liability to pay the compensation, and to furnish the medical and surgical treatment provided by the Minnesota Workmen's Com- pensation Act. " 'Condition A. The agreement shall apply to accidents occurring at the place or places described in the schedule, and shall include also drivers and their helpers, salesmen, collectors, and messengers, whose wages are 23 included in the estimated payroll on which the premium of this policy is based, wherever they may be in the service of the assurred, and while engaged in the trade or business in the schedule.' "The description in the schedule is general in terms. It contains no express territorial limitation of liability, but it does refer to men traveling in Minnesota under the heading quoted. The parties had in mind indemnity for liability arising under the Workmen's Compensation Act. This act applies to accidents outside the state in connection with business done in the state and incident to its conduct. In response to this schedule, if it be considered a proposal for insurance, and this is altogether favorable to the relator, the company issued a policy from which we have quoted above. In that policy it assumed to give indemnity for injuries to or the death of men of the class to which Chambers belonged, 'whose wages are included in the estimated pay roll on which the premium of this policy is based wherever they may be in the service of the assured and while engaged in the trade or business described in the schedule.' Chambers' wages were included In the estimated payroll. There is no ambiguity in the policy. If there is any anywhere, it comes when the policy and schedule are put together. The policy proper, in terms not susceptible of misunderstanding, gives just the indemnity which the Wyman company claims. The insurance company signed and issued the policy, containing thei promise of indemnity quoted. It cannot now avoid liability because of the description in the schedule. The court was right in holding the insurance company primarily liable." 2. VESSELS ON GREAT LAKES The application of the Compensation Law to accidents which happen within the navigable waters of the state has passed through a curious history. We will present it here in all of its phases. (a) Minnesota Court Holds Act Governs. In Lindstrom vs. Mutual Steamship Company, March 3, 1916, 156 N. W. 669, 132 Minn. 32'8, our supreme court held that the compensation act applied to an injury sustained on a vessel while in the port of Duluth, and that this application of the law was noti an infringement upon the federal jurisdiction over the subject of admiralty. The decision in part, was as follows : Hallam, J. Defendant is a Minnesota corporation operating the steamship William Livingstone on the Great Lakes, between Duluth, its home port, and ports outside of Minnesota. The Berwind Fuel Company is an employer owning a dock at Diiluth. On June 9, 1914, plaintiff was in the employ of the fuel company engaged in unloading a cargo of coal from said vessel onto the fuel company's dock. While working in the hold of the vessel he was injured through the negligence of defendant. He brings this common-law action to recover damages. Defendant demurrecj and the demurrer was sustained. The demurrer raises one main question; that is: Does the Minnesota Workmen's Compensation Law apply to such a case? If so, It is conceded the demurrer was properly sustained. We are of the opinion that the Minnesota compensation law does apply. (1) 1. No question of territorial jurisdiction arises, for the territorial sovereignty of the state of Minnesota extends to a vessel of the state though it is upon navigable waters. Crapo vs. Kelly, 16 Wall. 610, 21 L. ed; The Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. ed. 264, even upon the high seas; International Navigation Company vs. Lindstrom, 123 Fed. 475; Thompson Towing & Wrecking Association vs. McGregor, 207 Fed 209 124 C. C. A. 479; The Bee. D. C, 216 Fed. 709. No question of conflict of state laws arises. Duluth being the home port, and also the port where the injury occurred, the laws of no state other than Minnesota could apply. 24 (2) 2. There is no serious doubt that the terms of the statute are broad enough to cover the casie. The act is general in its terms, and it applies to all cases within the territorial jurisdiction of the state which are not excepted. Section 8202 excepts "any employer acting as a common carrier when engaged in interstate or foreign commerce by railroad," and "any employer of such common carrier Injured or killed while so engaged." No other exception of consequence here is found in the act. This section does not, either in terms or by any possible implication, except carriers by water or the employes of such carriers. (3) 3. Nor is the act invalid as an interference with interstate com- merce. The right of Congress to pass laws governing the liability of employers engaged in interstate commerce for injuries sustained by their employes while engaged in such commerce, to the exclusion of state legisla- tion upon that subject, is unquestioned, and as to railroads. Congress has enacted some application laws. But Congress has passed no laws regulating the liability of interstate carriers by water, at least not as to any matters here involved, and until Congress legislates upon this subject, it is within the province of the several states to do so. (4) 4. The only doubtful question in the case is whether the Minne- sota compensation act is, in its application to this case, an infringement upon the federal jurisdiction over the subject of admiralty. The constitu- tion of the United States extends the power of the federal courts "to all cases of admiralty and maritime jurisdiction." Article 3, Ch. 2, Section 9 of the Judiciary Act of 1789, saves to suitors "in all cases, the right of a common-law remedy, where the common law is competent to give it." I. TJ. S. Stats, at large, p. 77. This case hinges on the construction of this saving clause. The injury was sustained aboard a ship on navigable waters of the United States. This brings the ease within the jurisdiction of the federal courts of admiralty. Just as clearly it is subject to the common-law juris- diction of the courts of this state. The contention of the plaintiff is that, when action is brought in the state court, the rules of liability are the siame as though the proceeding were in admiralty. In other words, the contention is that where a remedy is sought in a state court, that court enforces, not the laws of its own juris- diction, but the general laws of admiralty, much as the courts of one state, in enforcing liabilities which arose in another, will apply the laws of the state where the cause of actions arose, and since the state has no right to modify or amend the general maritime laws, it is contended the Minnesota compensation law is here inoperative. Tliis Is really the crucial question in the case. It is a federal question, and we think that it is settled adversely to plaintiff's contention by the decisions of the United States supreme court. It is well understood that in the two courts, that is, courts of admiralty and courts of law, not only is the course of proceeding in many respects different, but also "the rules of decision are different." We take it these federal cases establisih well the rule that when the action is brought! in a state court it must be determined according to state law, and not according to the law of admiralty. As the state court in administering its remedy applies its own rules, of liability, it must enforce such rules of liability as are in force in the state, whether they arise from the common law or from statute, and the state may modify by statute its common-law remedies so long as such statutes do not amount to regulation of interstate commerce of an interference with some paramount federal law. We accordingly hold that, where liability is asserted in the courts of this state against the owner of a vessel of this state to redress a maritime tort, the question of whether liability exists is to be determined by the com- mon law of this state, as the same has been modified by the valid general statutes of the state, and, since the compensation act is now the law of this state, substituted for all common-law remedies before existing, that statute 25 furnishes the rule upon which the liability and the extent of it are to be determined. (b) U. S. Court Reverses State Ruling. The next step in the history of this phase of the law was a decision by the U. S. supreme court in a New York case, Southern Pacific Company vs. Marie Jensen, holding that the Workmen's Compensation Act did not apply and that all such cases should be settled under the admiralty law. Wo give some excerpts from the opinion of Justice McReynolds: "That we have a maritime law of our own, operative throughout the United States cannot he doubted. The general system of maritime law which was familiar to lawyers and statesmen of the country when the constitution was adopted was most entirely intended and referred to when it was declared in that instrument, that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisriction.' "One thing, however, is unquestionable; the constitution must have referred to a system of law co-extensive with and operating uniformly in the whole country. It could not have been intended to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which, the constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states. "And plainly we think no such legislation is valid if it contravenes the essential purpose expressed by an act of congress or works material preju- dice to the characteristic features of the general maritime law or inter- feres with the proper harmony and uniformity of that law in its interna- tional and interstate relations. "'If New York can subject foreign ships coming into her ports to such obligations as those imposed by her compensation statute, other states may do likewise. The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the constitution was designed to establish, and freedom of navigation between the states and with foreign countries would be seriously hampered and impeded. * ' * The legislature exceeded its authority in attempting to extend the statute under consideration to conditions like those here disclosed. So applied, it conflicts with the constitution and to that extent is invalid. "Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested with federal district courts 'saving to suitors in all cases the right of common-law remedy where the common law is competent to give it.' The remedy which the compensation statute attempts to give is of a character wholly unknown to the common law, incapable of enforce- ment by the ordinary process of any court, and is not saved to suitors from the grant of exclusive jurisdiction. And finally this remedy is not con- sistent with the policy of congress to encourage investments in ships mani- fested in the acts of 1851 and 1884, which declare a limitation upon the liability of their owners. "The judgment of the court below must be reversed and the cause remanded for further proceedings not inconsistent with this opinion." (c) Federal Judiciary Code Amended. Following the decision in the Jensen case, an attempt was made to remedy the situation by an amendment to the federal judiciary code con- ferring jurisdiction on the federal district courts as courts of admiralty. The amendment became a law on Oct. 5, 1917. It added to the federal code the following words: "Saving to claimants the rights and remedies under the compensation law of any state." Once more maritime accidents were settled under compensation laws although the amendment was somewhat ambiguous in referring to the compensation laws of any state. Often it was uncertain as to which law applied. The general feeling was that the words, "so far as applicable to the specific accident," should be read into the amendment. 26 (d) U. S. Court Hoilds Amendment Void. By a decision on May 17, 1920, the U. S. Supreme Court again stopped the application of workmen's compensation acts to maritime accidents. The case was again a New York case, that of Knickerbocker Ice Company vs. Lillian E. Stewart, May 17, 1920. The decision waa a five to four ruling. Justice McReynolds gave the opinion for the majority which was in part as follows: While employed by Knickerbocker Ice Company as bargeman, and doing work of a maritime nature, William M. Stewart fell into the Hudson river and was drowned — August 3, 1918. His widow, defendant in error, claimed under the Workmen's Compensation Law of New York; the Industrial Commission granted an award against the company for her and the minor children; and both Appellate Division and the Court of Appeals approved it. 226 N. Y. 302. The latter concluded that the reasons which constrained us to hold the compensation law inapplicable to an employe engaged In maritime work — Southern Pacific Company vs. Jensen, 244 XT. S. 205, — had been extinguished by "An act to amend sections 24 and 256 of the Judicial Code, relating to the jurisdiction of the district courts, so as to save to claimants the rights and remedies under the workmen's compensation law of any state," approved October 6, 1917— Chap. 97, 40 Stat. 395. The provision of section 9, Judiciary Act, 1789 (Chap. 20, 1 Stat. 76), granting to United States district courts "exclusive original cognizance of all civil cases of admiralty and maritime jurisdiction * * * saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it," was carried into the Revised Statutes, sections 563 and 711, and thence into the Judicial Code, clause 3; sections 24 and 256. The saving clause remained unchanged until the statute ot October 6, 1917, added, "and to claimants the rights and remedies unden the workmen's compensation law of any state." In Southern Pacific Co. vs. Jensen (May, 1917), 244 U. S. 205, we declared that under section 2, article III, of the constitution (The judicial power shall extend to * * * all cases of admiralty and maritime jurisdiction) and section 8, article I, (congress may make necessary and proper laws for carrying out granted powers), "in the absence of some controlling statute the general maritime law as accepted by the federal courts constitutes part of our national law applicable to the matters within admiralty and maritime jurisdiction"; also that "congress has paramount power to fix and determine the maritime law which shall prevail throughout the country." And we held that when applied to maritime injuries, the New York workmen's compensation law conflicts with the rules adopted by the constitution, and to that extent is invalid. "The necessary conse- quence would be destruction of the very uniformity in respect of maritime matters which the constitution was designed to establish; and freedom of navigation between the states and with foreign countries would be seri- ously hampered and impeded." We also pointed out that the saving clause taken from the original judiciary act had no application, since, at most, it only specified common- law remedies, whereas the remedy prescribed by the compensation law was unknown to the common law and incapable of enforcement by the ordinary processes of any court. Moreover, if applied to maritime affairs, the statute would obstruct the policy ot congress to encourage investments in ships. In Chelentis vs. Luckenbach S. S. Co. (June, 1918), 247 TJ. S. 372, an action at law seeking full indemnity for Injuries received by a sailor while on shipboard, we said: "Under the doctrine approved in Southern Pacific Co. vs. Jensen, no state has power to abolish the well recognized maritime rule concerning measure of recovery and substitute therefor the full indem- nity rule of the common law. Such substitution would distinctly and definitely change or add to the settled maritime law; and it would be destructive of the "uniformity and consistency at which the constitution aimed on all subjects of a commercial character affecting the intercourse of 27 the states with each other or with foreign states.' " And, concerning the clause, "saving to suitors In all cases the right of a common-la-w? remeay where the common law is competent to give it," this: "In Southern Pacific Co. vs. Jensen, we definitely ruled that if) gave no authority to the several states to enact legislation which would work 'material prejudice to the char- acteristic features of the general maritime law or interfere with the proper harmony and uniformity of that law in its international and Interstate relations.' " "Under the saving clause a right sanctioned liy the maritime law may he enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's lia- bility shall be measured by common-law standards rather than those of the maritime law." Thus we distinctly approve the view that the original saving clause conferred no substantive rights and did not authorize the states so to do. It referred only to remedies,: and to the extent specified, permitted continued enforcement by tlie state courts of rights and obliga- tions founded on maritime law. In Union Fish Co. vs. Erickson, 248 U. S. 308, an admiralty cause, a master sought to recover damages for breach of an oral contract with the owner of a vessel for services to be performed principally upon the sea. The latter claimed invalidity of the contract under a statute ofi California, where made, because not in writing and not to be performed within a year. We ruled: "The circuit court of appeals correctly held that this contract was maritime in its nature and an action in admiralty thereon for its breach could not be defeated by the statute of California relied upon by the petitioner." "In entering into this contract, the parties contemplated no services in California. They were making an engagement for the services of the master of the vessel, the duties to be performed in the waters of Alaska, mainly upon the sea. The maritime law controlled in this respect, and was not subject to limitation because the particular engagement happened to be made in California. The parties must be presumed to have had in contemplation the system of maritime law under which it was made." See also the Blackheath, 195 U. S. 361, 365. As the plain result of these recent opinions and the earlier cases upon which they are based, we accept the following doctrine: The constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the states all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and the uniformity in its international and interstate relations. To preserve adequate harmony and appropriate uni- form rules relating, to maritime matters and bring them within control of the federal government was the fundamental purpose; and to such definite end congress was empowered to legislate within that sphere. Since the beginning, federal courts have recognized and applied the rules and principles of maritime law as something distinct from laws of the several states not derived from, or dependent on their will. The founda- tion of right to do this, the purpose for which it was granted, and the nature of the system so administered, were distinctly pointed out long ago. "That we have a maritime law of our own, operative throughout the United States, cannot be doubted. * * * One thing, however, is unquestion- able; the constitution must have referred to a system of law co-extensivo with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other, or with foreign states." The Lottawanna, 21 Wall. 558, 574, 575. The field was not left unoccupied; the constitution itself 28 adopted the rules concerning rights and liabilities applicable therein; and certainly these are not less paramount than they ■would have been if enacted by congress. Unless this be true, it is quite impossible to accfsunt for a multitude of adjudications by the admiralty courts. See Workman vs. New York City, 179 U. S. 552, 557, et seq. The distinction between the indicated situation created by the con- stitution relative to maritime affairs and the one resulting from the mere grant of power to regulate commerce without more, should not be for- gotten. Also, it should be noted that federal laws are constantly applied in state Courts; unless inhibited their duty so requires. Constitution, article VI, clause 2; Second Employers' Liability Cases, 223 II. S. 1, 55. Consequently mere reservation of partially concurrent cognizance to such courts by an act of congress conferring an otherwise exclusive jurisdiction upon national courts, could not create substantive rights or obligations or Indicate assent to their creation by the states. When considered with former decisions of this court, a satisfactory interpretation of the act of October 6, 1917, is difficult, perhaps impossible. The Howell, 257 Fed. 578, and Rhode vs. Grant Smith Porter Co., 259 Fed. 304, illustrate some of the uncertainties. In the first, the district court in New York dismissed a libel, holding that rights and remedies prescribed by the compensation law of that state are exclusive and pro tanto super- sede the maritime law. In the second, the district court of Oregon ruled that when an employe seeks redress for a maritime tort byl an admiralty court, rights, obligations and liabilities of the respective parties must be measured by the maritime law and these cannot be barred, enlarged or taken away by state legislation. Other difficulties hang upon the unex- plained words, "workmen's compensation law of any state." Moreover, the act only undertook to add certain specified rights and remedies to a saving clause within a code section conferring jurisdictioo. We have held that before the amendment and irrespective of that section, such rights and remedies did not apply to maritime torts because they were inconsistent with paramount federal law — wltbin that field they had no existence. Were the added words therefore wholly ineffective? The usual function of a saving clause is to preserve something from immediate interiference — not to create; and the rule Is that expression by the legis- lature of an erroneous opinion concerning the law does not alter it. End- lich. Interpretation of Statutes, Sec. 372. Neither branch of congress devoted much debate to the act under consideration — although, less than two pages of the record (65th Cong., pp. 7605. 7843'). The judiciary committee of the 'house made no report; but a brief one by the senate judiciary committee probably indicates the general legislative purpose. And, with this and accompanying circum- stances, the words must be read. Having regard to all these things, we conclude that congress undertook to permit application of workmen's compensation laws of the several states to injuries within the admiralty and maritime jurisdiction: and to save such statutes from the objections pointed out by Southern Pacific Co. vs. Jensen, It sought to authorize and sanction action by the states in pre- scribing and enforcing, as to all parties concerned, rights, obligation^ liabilities and remedies designed to provide compensation for injuries suf- fered by employes engaged in maritime work. And so construed, we think the enactment is bevond the power of con- gress. Its power to legislation concerning rights and liabilities within the maritime jurisdiction and remedies for their enforcement arii=-es from the constitution, as above indicated. The definite object of the grant was to commit direct control to the federal government; to relieve maritime commerce from unnecessary burdens and disadvantages incident to dis- cordant legislation; and to establish, so far as practicable, harmonious and uniform rules applicable throughout every part of the union. Considering the fundamental purpose in view and the definite end tor which such rules were accepted, we must conclude that in their char- 29 acteristic features and essential international and interstate r«l^*;,°'^!:jji^^ latter may not be repealed, amended or changed except by legislation wica embodies both the will and deliberate judgment of congress. The suD]eci was intrusted to It to be dealt with according to its iP "stvle nf the ease is State ex rel. C ty of Northfield vs. District Court of Rice county. December lo! 1915. 155 N. W. 103, 131 Minn. 352. The opinion is: On July 37, 1914, Christ Johnson, a laboring man. was working for tlie city of Northfield. Minn. He was loading wagons with gravel for use m improving and repairing the streets of the city. His wages were $2 00 per day, payable every Saturday. He has resided in Northfield more than 30 vears, and had worked for the city off and on during a great part of that "time. He began work the last time on July 13, 1914. On July 17, 1914, he was injured in a cave-in; the result being a compound fracture of the left leg. He was immediately taken to the mayor's place of business. The mayor and the street commissioner saw his injuries, ascertained when and how he was injured, and caused him to be taken to his home. Both officials did all in their power to relieve and aS'Sist the injured man. The street commissioner accompanied him to his home, and a doctor was promptly called to attend him. The bill for the doctor's services was subsequently paid by the municipality. No written notice of the injury was ever served upon the city. On April 10, 1915, Johnson instituted proceedings against the city in the district court of Rice county to recover compensation under the provisions of chapter 467, Laws 1913, generally known as the "Workmen's Compensation Act." Gen. St. 1913, 8195-8230. The city denied liability. The proceedings resulted in a judgment against the city, which brings the matter to this court by certiorari. The assignments of error present two questions: (1) That written notice as required by the act was not given; (2) That Johnson's employment was merely casual. 1. "The Workmen's Compensation Act is remedial in Its nature and must be given a liberal construction to accomplish the purpose intended." State vs. District Court, St. Louis County, 128 Minn. 43, 150 N. W. 2U. With this principle as a guide, we proceed to the consideration of the ques- tions raised herein. This is not a case in which a written notice of the injury would be of any assistance to the employer. Relator's mayor and street commissioner were informed immediately after the accident that respondent, whom they knew, had received an injury (which they saw) while in the employment of and working for the city. The record presents a case of actual knowledge by the employer of the occurrence of the injury. The knowledge of the mayor Is the knowledge of the city. The statute does not require a written notice where the employer has. actual knowledge. Section 8213, G. S. 1913; State vs. District Court St. Louis County, 129 Minn. 423, 152 N. W. 838. 2. This is not one of the cases excepted) from the compensation act Johnson was engaged to work for the city at the wage of ?2.00 per day, payable every Saturday. He was not hired for any special length of time. His employment might continue a day or a week or several weeks or months. It may or may not have been casual; this we do not decide. SabeHa vs. Brazileiro, 86 N. J. Law, 505, 91 Atl. 1032, affirmed 94 Atl. 1103. Respondent, when injured, was loading" gravel for use in repairing and improving the streets of his employer, the city. That part of the compensa- tion law relating to excepted cases, so far as is here material, reads as follows: "Nor shall the provisions of this act apply to actions or proceedings to recover damages or compensation for personal injuries sustained by domes- tic servants, farm laborers, or persons whose employment at the time of the injury is but casual and not in the usual course of the trade, business, profession or occupation of his employer." Section 8202. G. S. 1913- Iawb 1913, chapter 467, section 8. 44 The language of the statute leaves no room for construction. Though casual, if the employment is in the usual course of the business, of the employer, the compensation act applies. The Minnesota act in this respect is modeled on the British Workmen's Compensation Law, which has been similarly construed: 1 Bradbury, Workmen's Compensation Law (2d Ed.) 136 et seq. Part of the business o£ a municipal corporation is the improvement and repair of its public streets. Respondent, when injured, was an employe of the relator, and was engaged in this work. The compensation act applies. Judgment affirmed. (b) Usual Course Means Ordinary Vocation. A rather full discussion of the clause, "casual and not in the usual course of the trade, business, profession or occupation," is given by the supreme court in State ex rei. Lennon vs. District Court of Douglas County et al., October 5, 1917, 164 N. W. 366, 138 Minn. 103. The court construed "trade, profession or occupation," to refer to the employer's ordinary voca- tion, and not to occasional side ventures. The decision in full is; "Certiorari to review a judgment of the district court disallowing a claim made by relator under the Workmen's Compensation Act. The undis- puted facts are, in substance, these: "The defendant owned a farm near the village of Osakis, Minn. When the accident, upon which relator bases the claim, happened, defendant did not operate the farm, but had it rented to a tenant, who expected to soon take possession. Defendant lived in the village mentioned, 'where he was dealing in horses, had a livery and auto livery business on a small scale, and also did some auctioneering and dealing in real estate,' presumably as agent. Fire had destroyed the barn on the farm shortly before the accident to rela- tor, and it was necessary to provide some temporary shelter for the tenant's stock. "Early on the 10th of October, 1916, defendant called on relator and asked his assistance in constructing a shed for the purpose stated, inform- ing him that he needed another man, in addition to the two carpenters and help he already had, to finish the work that day. Relator went with defend- ant and four other men to the farm and began to erect a temporary shed, 16 feet by 30 feet, which they would have completed that day but for a delay occasioned by a breakdown of the wagon on which the needed lumber was being brought to the premises. Relator and the two other carpenters were therefore requested to come back the next day to finish the shed and also to build a small chicken house. The work would not require the entire day. They came as requested, and about noon, when relator was assisting in boarding up the chicken house, he struck a nail in such a manner that it flew up and hit one of his eyes, practically destroying' its vision. When relator was requested to come to work nothing was said as to the amount of his compensation. "Upon these facts the court found that the employment of relator was casual only, and was not in the usual course of the trade, business, profes- sion or occupation of defendant; hence denied compensation. "The findings as to the casual character of the employment are not challenged, but it is claimed that the work came within the usual course of the business, trade, profession or occupation of defendant, and that there- fore, under the decision of State ex rel. City of Northfield vs. District Court, 131 Minn. 352, 155 N. W. 103, the injury is covered by the act notwithstand- ing the casual character of the employment. It was part of defendant's business as a landlord, it is argued, to erect or repair the necessary struc- tures on the farm, no matter what other trades or business he might also be engaged in. "In support of this contention relator cites Maryland Casualty Co. vs. Pillsbury et al., 172 Cal. 748, 158 Pac. 1031. However, that case turned upon the question whether a person employed to repair a tractor used on a ranch was excluded from the benefits of the act by a clause reading like the one in our statute. A recovery was denied, and, in the opinion, the court sug- 45 gested arguendo that had the injury been received an the ^"ilf^^^f ,°^ ^^^i^rn on the ranch, which would have become a part thereof, and generally useful only for ranch purposes, the result as to compensation might have been different from the one then arrived at, for the court says a tractor is an instrumentality useful for many things not connected with a rancji, "Thompson vs. Twiss, 90 Conn. 444, 97 Atl. 328, L. R. A. 1916E, 506, is relied on. The principal contentions there were whether the claimant was an employe and whether the employment to clear and develop the defend- ant's lands was casual. The finding that it was not casual, grounded on evidence that the claimant had entered upon a work requiring weeks to complete, was sustained. The court also found that the development of the land was one of the businesses of the defendant 'not evidently the main business, but yet a very substantial one.' The decision is not of much weight here, for both the facts and statutes are dissimilar. There is here no finding to the effect that constructing this cheap temporary shed was any substantial part of the business of defendant, either as a landlord or as a farmer. Nor do we think the evidence would authorize such a finding. The Connecticut law is in the phraseology of the EJnglish act, and provides that the employe shall not be construed to include 'one whose employment is that of a casual nature, and who is employed otherwise than for the pur- poses of the employer's trade or business.' Our act contains this clause: " 'Nor shall the provisions of this act apply to actions or proceedings to recover damages or compensation for personal injuries sustained by domestic servants, farm laborers, or persons whose employment at the tims of the injury Is but casual and not in the usual course of the trade, business, profession or occupation of his employer.' "The words, 'usual course,' must be regarded as more restrictive than the language employed in the Connecticut and English acts. This is the view taken by the California courts in London & Lancashire, etc., Co. vs. Industrial Com., 173 Cal. 642, 161 Pac. 2, and La Grande Laundry Co. va. Pillsbury et al., 173 Cal. 777, 161 Pac. 988. Assuming that the lease obligated defendant to erect a shelter for his tenant's sitock, or that he had voluntarily agreed so to do, we may say, in a certain sense, that the erection became his business or duty. But that cannot be the meaning of the word 'business' in this statute. It must have the same general significance with respect to the work or calling of the employer as the words, 'trade, profession or occu- pation'; hence must refer to the employer's ordinary vocation, and not to every occasional. Incidental, or insignificant work he may have to do. "When we speak of a person's trade or profession we generally refer to that branch of the world's activities wherein he expends his usual every- day efforts to gain a livelihood. There is no evidence that defendant made it a part of his calling to rent out farms or erect buildings, either temporary structures or permanent. For all that appears, this was the only farm he owned, and it may have been of such small area and value that Its renting and care could not properly be classified either as a business or occupation. And certainly neither the renting of the farm nor the construction of this shed can be referred to as coming within the 'usual course' of defendant's business or occupation. "Even the English act has been so construed that the facts of this case would not warrant compensation. It is said to afford compensation for injuries received only in the normal operations which form the part of the ordinary business carried on, and not to Include Incidental and occasional operations having for their purpose the preservation of the premises and appliances used in the business. Hayes vs. S. J. Thompson Co., 6 B. W. 0. C. 130; Rennie vs. Reed, 1 B. W. C. C. 324; Pearce vs. London & S. Western Ry., 82 L. T. R. 487; Bargewell vs. Daniel, 98 L. T. R. 257; Kelly vs. Buchanan, 47 Ir. L. T. R. 228; Alderman vs. Warren, 9 B. W. C. C. 507. The supreme court of Illinois, in construing the clause, 'the usual course of trade, business, profession or occupation of the employer,' in UphofC vs. Industrial Com., 271 111. 312, 111 N. E. 128, L. R. A. 1916E, 329, held that an injury received by a workman hired by a farmer to erect a broom corn 46 shed on his farm was not received in the usual course of business of the employer. The Illinois act differs from ours, in that an employe is excluded from the benefits of the law if the employment is casual, or if the injury did not occur in the usual course of the employer's trade, etc. But the meaning of the latter clause is not affected by the conjunction, which serves merely to show the relation to what precedes. "We can see no grounds upon which this court can disturb the finding of the trial court that relator's employment was casual and not in the usual course of the trade, business, profession or occupation of defendant. Affirmed." (c) Erection of Permanent Building. In another case the supreme court held that the construction of a build- ing which was to be a permanent part of tbe employer's trade was in the usual course of his business. The case is State ex rel. Lundgren vsi Dis- trict Court of Washington County, 169 N. W. 488, 141 Minn. 83. The opinion is as follows: "Proceedings under Workmen's Compensation Act (Gen. St. 1913, sec- tions 8195-8230), in which the trial court held that plaintif was not entitled to recover for the reason, as found by the court, that the employment in which the plaintiff was engaged at tbe time of his injury, was not, 'id the usual course of defendant's business.' Judgment was ordered and entered accordingly, and plaintiff sued out a writ of certiorari to review the same. "In stating the facts in the case, which are not in dispute, we refer to the interest parties as plaintiff and defendant, plaintiff being the employe and defendant the employer. "Defendant is a corporation created under and pursuant to the laws of the state, and since its organization has been engaged in the retail lumber and building business. In May, 1917, the company decided to enlarge its business by adding thereto coal and other fuel. To accomplish this it became necessary to build a shed in which to store a supply of coal for the trade. Plaintiff was employed by defendant for a specific part of con- structing the shed. In the performance of the work he received an acci- dental injury, arising out of the employment, for which he claims compen- sation. He was an employe of defendant. The employment was for the specific purpose of laying a concrete foundation and concrete floor for the shed, and for an agreed compensation, and the court found that it was not casual, within the meaning ofi the compensation act. The court further found, as a conclusion of law, based upon the facts stated, that the employ- ment was not in the usual course of the business or occupation of defendant, and not, therefore, within the compensation law. Judgment was accordingly ordered dismissing the proceeding. "Whether the learned trial court was right in that conclusion is the only question presented by the record. We are unable to concur in that view of the case. While the courts of the different states are somewhat at variance in defining or applying the particular provisions of the compen- sation act here involved, namely, the clause excluding liability of the employer when the employment in which an injury is received is not within 'the usual course of the business or occupation' of the employer (Uphoff vs. Industrial Board, 271 111. 312, 111 N. E. 128, L. R. A. 1916B, 329, Ann. Cas. 1917 D. 1; Carter vs. Industrial Com. (Cal.) 1 Workmen's Com. J. 497; Geller vs. Republic Novelty Works (N. Y.) 1 Workmen's Com. J. 691; Boyle vs. Mahoney et al. (Conn.), 1 Workmen's Com. J. 937; Holbrook vs. Olympia Hotel Co. (Mich.), 166 N. W. 876), we think the liberal view heretofore followed in our former decisions construing the other clause of the act, namley, 'within the scope of the employment,' should apply to and control the determination of the question whether a particular employment be within the usual course of the employer's business or occupation. In the respect stated, we have uniformly applied a liberal, though substantial rule, with a view of giving force and effect to the legislative intent in the enactment of the law. State ex rel. vs. District Court, 128 Minn. 43, 150 N. W. 211; State ex rel. vs. District Court, 131 Minn. 352, 155 N. W. 103, Ann. C&s. 47 1917D, 866; State ex rel. vs. Mstriot Court, 129 Minn 176 151 NW 912 State ex rel. vs. District Court, 138 Minn. 131, 164 N. W. 585, L. K A. 19180, 116 The rule so applied finds ample support in the authorities elsewhere, and is in harmony with the general canons controlling the construction and application of such statutes. It should control in the case at bar. Here the employer was engaged in the lumber material trade, and for the purpose of adding thereto a line of fuel constructed a shed in which to keep and store the new stock. The addition was to become permanently a part of defendant's business, and the shed was a permanent structure, with a solid concrete foundation and floor. While the defendant was not a building con- tractor, nor engaged in specific work of that kind, the construction of the shed in question was in furtherance of Its established business, a neces- sary part thereof, and we discover no sufficient reason for holding that it was outside of and beyond what is customary and usual in a situation of the kind. That should be the test in construing the statute. The construc- tion of the shed should therefore be held within the usual course of defend- ant's business, within the meaning and contemplation of the statute. We so hold. This conclusion finds support in the decision rendered in the case of State ex rel. vs. District Court of Ramsey County, 138 Minn. 416, 165 N. W. 268. "The case of State ex rel. vs. District Court of Douglas County, 138 Minn. 103, 164 N. W. 366, is not in point. There the employment was not only casual, but was for a temporary purpose only. "Judgment reversed, and new trial granted." (d) Emergency Aid. When the employe of one firm calls the employe of another to his assistance in an emergency, the second employe comes, for the time being, into the service of the first employer, and if injured, is entitled to compensa- tion from such employer. This is the finding of the Supreme Court in State ex rel. Nienaber vs. District Court of Ramsey County et a!., 165 N. W. 268, 138 Minn. 416, sustaining the district court. 'The text, in part, is: "The facts are not in dispute and are as follows: "Relator, defendant in the proceeding, was at the time in question engaged in the coal and fuel business in the city of St. Paul, and in the conduct thereof had in his employ drivers who, with teams and wagons owned by relator, carted and delivered coal and other fuel to customers residing in various parts of the city. On June 9, 1917, one of relator's wagons loaded with coal for delivery became so mired in the mud of one of the outlying streets that the horses were unable to move it. Plaintiff was in the employ of the city as a street sprinkler, driving his own team. In the course of his work, he came up to the mired load of coal, and at the request of relator's driver attempted to assist in getting the same out of the mud. To that end he hitched his team in front of the team attached to the coal wagon, and in urging the horses forward one of them stepped upon and crushed and seriously injured plaintiff's foot and ankle. "The trial court found on the facts stated that relator's driver had implied authority in the emergency confronting him to employ plaintiff for the service stated, and that by the employment plaintiff became for the time being, an employ© of relator and entitled to the benefit of the statute. Compensation was awarded accordingly. "The majority of the court concur in the conclusion of the trial court The driver of the coal wagon was engaged in the discharge of the duties of his employment, was confronted with an emergency, relief from which required assistance, and was within his implied authority in employing plaintiff to render the necessary help. The service rendered, though casual standing alone, was in the usual course of relator's business, and, therefore, within the statute. Paul vs. Nikkei et al., 1 Cal. L. A. C. 648; Ginther vs. Knickerbocker Co., 1 Cal. L. A. C. 458. As to the implied authority of the driver and the relation thereby created between plaintiff and relator, see Gunderson vs. Eastern Brew. Co., 71 Misc. Rep. 519, 130 N. Y. Supp. 785; Brooks vs. Central Str. Jeanne, 228 XJ. S. 688, 22 Sup. Ct. 700, 57 L. Ed. 1025. 48 The compensation awarded, namely, $9 per week during the period of dis- ability, not exceeding 300 weeks, is within the evidence, and the assignments of error challenging the same are not sustained. 5 PIECE WORKERS A construction of section 32 of the act which includes piece workers among the employes covered was made by the supreme court in State ex rel. Virginia & Rainy Lake Co. vs. District Court of St. Louis County, Dec- ember 18, 1914, 150 N. W. 211, 128 Minn. 43. The court held that the rule for determining whether a person was an employe depended on whether another person had control of his actions. The decision is as follows: Taylor, C. "The respondent, Bashko, while engaged in getting out ties, poles and posts for the relator, the Virginia & Rainy Lake Co., received an injury which resulted in the loss of the sight of one eye. He made application to the district court of St. Louis county for compensation therefor under the so-called Workmen's Compensation Act. The court sustained his claim, and adjudged that the company should pay the compensation specified in the act in accordance with the provisions thereof. The company brought the matter before this court by certiorari, and contends that Bashko was not an employe but an independent contractor. The only question for deci- sion is whether the evidence is sufficient to sustain the finding of the district court that Bashko, at the time of the accident, was an employe of the company within the meaning of the compensation act. "The company owned large tracts of timber land in the northern part of the state, and were engaged in cutting, preparing and removing the merchantable timber therefrom. They maintained camps at convenient points in which to board and lodge the men engaged in the work. In addition to the men employed at monthly wages there were a large number engaged in cutting and preparing timber at a specified price per piece and known as 'piece-makers.' Bashko was a 'piece-maker.' He boarded at the camp, but paid an agreed price per week for his board. He also paid to the company one dollar per month as a hospital fee, which entitled him to care and treatment in a hospital in case of sickness or injury. The amount due for board and hospital fee was deducted by the company from his earnings. He procured the tools used in his work from the company, and they were charged to him with the understanding that he could either pay for the use of them or purchase them outright. He subsequently concluded to purchase them, and by his direction the price was deducted from his earnings. The company assigned him a specific tract of its land upon which to work, and marked out the boundary between this tract and the tracts allotted to others. He was required to cut the merchantable timber clean as he went, and to manufacture it into ties, poles and posts according to specifications furnished him by the company, and also to pile the brush ready for burning. He was to be paid at a specified rate per piece for all timber cut and prepared in accordance with the specifications. This rate varied according to the size, character and grade of the different ties, poles and posts. The company had an inspector and a foreman, each of whom inspected the work once or twice a week to see that it was properly performed, and that the requirements of the speci- fications were complied with. Under the agreement, Bashko could work as much or as little as he wished; could lay off wlienever and as long as he chose; could work as many or as few hours per day as he saw fit; could proceed in his own way so far as his method of working was con- cerned: and could quit finally whenever he elected to do so. It does not appear that there was any fixed time for payment. Whenever requested, the company counted the ties, poles and posts of the various kinds and grades, and paid him therefor according to the stinulated schedule of prices. 49 "This court, in common with courts generally, has held that one person is not liable for injuries caused by the negligence of another, unless s.uch person possessed the power to control the acts of the other in respect to the transaction out of which the injury arose; and that the test for deter- mining whether one person is an employe of another withm the rule making the employer responsible for the negligence of his employe, is whether the alleged employer possessed such power of control. 2 Dunnell, Minn. Digest, Section 5853, and cases cited in note 49. "The relator relies upon this rule, and insists that the test shows that Bashko was not an employe but an independent contractor. We think the evidence is sufficient to have required the submission of the question to a jury, if it had arisen in an ordinary action at law. Waters vs. Pioneer Fuel Co., 52 Minn. 474, 55 N. W. 52, 38 Am. St. 564; Barg vs. Bousfleld, 65 Minn. 355, 68 N. W. 45; Rait vs. New England F. & C. Co., 66 Minn. 76, 68 N. W. 729; Klages vs. Gillette-Herzog Mfg. Co., 86 Minn. 458, 90 N. W. 1116; Brown vs. Douglas Lumber Co., 113 Minn. 67, 129 N. W. 161. In the Rait case, the defendant employed a contractor to repair a leaky roof. There was no evidence that it reserved any control or supervision over him, except the inference arising from the character of the work and from the fact that it owned and occupied the building. In considering whetiier the defendant was responsible for the negligence of an employe of the contractor the court said: 'Under all circumstances, it was, at least, a question for the jury to say whether, in employing Dinsmore to fix this roof, the defendant surrendered all control over his actions as to the manner of removing the ice and snow from the roof of the building.' In the Klages case, the court considered' the prior cases, and held, in effect, that unless it appeared conclusively that the right to control and supervise the work was not reserved, the question as to whether the relation of employer and employe existed was for the jury. "In the present case, Bashko did not contract to perform a specific and definite undertaking, nor to accomplish a specific and agreed upon result. He did not agree to cut any specific quantity of timber, nor to cut the timber from any specific quantity of land. The company owned the timber and wanted it made into ties, poles and posts. It had established a schedule of prices which it paid for piece-work. Bashko bad worked at piece-work for some years, and could earn more than ordinary wages at such work. He applied for a job getting out timber by the piece, and the company set him to work. The company had a large number of men doing the same kind of work upon the same terms. It is not likely that the owners of valuable timber would permit ordinary workmen to cut and manufacture it for them wholly free from supervision or control. The evidence tends to show that the company did not surrender, but reserved the right to supervise and control the work of Bashko, at least to the extent necessary to prevent waste and loss. They required him to cut the timber clean as he went, and to manufacture it according to specifications furnished by them, and also to pile the brush. They inspected his work from time to time and occasionally directed him to remedy defects therein. They had the right to discharge him at any time, and this right afforded adequate means loi' controlling his work. The evidence was ample to sustain the finding of the trial court under the rule invoked. "The compensation act is remedial in its nature and must be given a liberal construction to accomplish the purpose intended. It provides: The term "employer," as used herein shall mean every person * * * who employes another to perform a service for hire, and to whom the employer directly pays wages. * * * The terms employe and workmen * * • in the service of another under any contract of hire, express or implied, oral or written.' Section 34 c. 467, p. 692, Laws 1913 (Section 8230, G. S. 1913). It is not necessary to construe these provisions, nor the somewhat ambiguous and obscure provisions of section 32 (p. 690) of the act (Section 8228, G. S. 1913), further than to say that they certainly do not confine the 50 relation of employer and employe within any narrower limits than did the rule invoked by the relator. "The decision of the district court is affirmed." 6, PUBLIC EMPLOYES The provisions of section 34 (g) sub-section 1 relating to public employes have also required considerable interpretation. (a) Policieman. The first of the series of decisions was that of State ex rel. City of Duluth vs. District Court of St. Louis County, 158 N. W. 790, 134 Minn. 26. The supreme court held that a policeman employed under such conditions as prevail in the city of Duluth was covered by the act. The decision is: Hallam, J. "A policeman in the employ ofi the city of Duluth was killed while in the discharge of his duty. This proceeding is brought by his dependents under the Minnesota Workmen's Compensation Act (G. S. 1913; sections 8195-8230) to recover compensation. The main question in the case iS'. Does the compensation act apply to a member of the police force of the city of Duluth? The trial court held that the act does apply. We agree with the trial court. "The act in general applies to 'employes' and 'workmen.' This case depends on the question whether a policeman is an 'employe' or 'workman.' General Statutes 1913, section 8230, sub-section (g) defines who are 'employes' and 'workmen,' as follows: 'The terms 'employe' and 'workman' * * * shall be construed to mean: * * * Every person in the service of a * * * city * * * under any appointment or contract for hire, express or implied, oral or written; but shall not include any official of any * * * city * * * Tvijo shall have been elected or appointed for a regular term of office.' "It is not important to determine whether a policeman is a city official, as that term is commonly used. The term 'official,' and 'officer,' are used broadly, and have been held under some statutes to embrace policemen; the question in the case before us is different. It is not whether a policeman is an officer or an official, but whether he is an 'official * * * elected or appointed for a regular term of office.' Clearly he is not. A 'regular term of office' signifies a definite period of time. Under the Duluth charter, policemen receive their office by appointment under civil service rules. They hold office during good behavior. There is no term at all. Manifestly this is not an appointment for 'a regular term of office.' "It does not help to say that the fact that a policeman holds his office for an indefinite term during good behavior does not render him any the more an employe or any the less an official. Perhaps it would not were it not for the language of the statute which makes every person in the service of the city an em.ploye except officials 'elected or appointed for a regular term of office." We cannot ignore this language. It means just what it says. Since a policeman is, in fact, a 'person in the service of a * * "* city,' and is not in fact an official elected or appointed for a regular term of office, he is within the intent and meaning of the act. "We know of no authority or precedent that is helpful. Decisions are cited which hold that policemen are not employes, but they are made under statutes not like ours. None of the statutes so construed are as broad as ours. None of them embrace all persons in the service of the city not officials elected or appointed for a regular term. "Affirmed." (lb) Fir'emen. Following the decision just quoted the supreme court in the case of State ex pel. City of Duluth vsi. District Court of St. Louis County (Granzow 51 vs. City of IJuluth) 158 N. W. 792, 134 Minn. 28, held that a member of the fire department in Duluth comes under the compensation act. "Predericli; E. Granzow, an assistant chief of the fire department of the city of Duluth, was killed while in the discharge of his duty. His widow and ten-year-old daughter commenced proceedings to recover under the compensation act (G. S. 1913, section 8195-8231). . This case involves the question whether a member of the Duluth fire department is an employe within the meaning of the Workmen's Compensation Act. We hold that he is, for the same reason which induced us to hold in State ex rel. vs. District Court of St. Louis County, 158 N. W. 790, that police oHicers of the city are within the act. "One other question is raised here as follows: Deceased was a member of the Duluth Firemen's Relief Association, a voluntary relief association organized to provide for the relief of sick or injured members and the widows and orphans of deceased members. The association receives its money from three sources: (1) From a tax of one-tenth of one mill; (2) from a portion of the insurance premiums collected in Duluth, which are required by law to be paid to the association; and (3) from the voluntary contributions of its members. Membership in the association is optional with firemen. Only those who are members and who contribute are entitled to benefits for themselves or their families. The widow and daughter now draw benefits from the association. "The receipt of funds from the association does not bar them from receiving benefits under the compensation act, nor does it reduce the amount thereof. The act does not so provide, either expressly or by implica- tion. "The source of revenue of the relief association, so far as it depends on the bounty of the state, may be withdrawn at any time. Gibbs vs. Min- neapolis Fire Department Relief Association, 125 Minn. 174, 145 N. W. 1075. So far as it depends on contributions made by the members, it is something the member has purchased for himself with his own funds, and is akin to life and benefit insurance. It is well settled, in death by wrongful act cases, that the fact that the deceased had life insurance does not diminish the amount of damages which his widow and next of kin may recover. This is on the principle that where one through his own providence has pur- chased and maintained insurance on his life, the proceeds thereof should inure to his beneficiaries, and not to the one who has caused his death. A similar principle is applicable here. True, under the compensation act there may be recovery though the death of the employe was not caused by any wrongful act of the employer. At the same time we are of the opinion that the fireman who joins and contributes to the funds of this association should be held to have purchased the protection which the asso- ciation affords, for the benefit of himself and his family, and not for the bonefit of his employer. "Affirmed." (c) Firemen Under Home Rule Charter. The doubt resting on the proper compensation for firemen in cities which have a home rule charter, providing a method of compensation, was dispelled by the supreme court in a decision in which it holds that such fire- men do not come under the compensation act. The case is Markley vs. City of St. Paul, 172 N. W. 215, 142 Minn. 356. The ruling of |the court follows: Quinn, J. "Plaintiff, a fireman employed by the city of St. Paul, while so engaged, was, on October 4, 1917, injured and rendered incapable of performing his duties, and remained so incapacitated to the time of the bringing of this action. The city paid a sum equal to his monthly wage from the time of his injury to February, 1918, and refused to make further pay- ments, claiming that the amount which he was entitled to receive should be determined under the Workmen's Compensation Act. It is contended on behalf of the plaintiff that he is entitled to full pay for the first six months 52 of his incapacity, under the city charter, and accordingly he brought this action to recover the amount of his salary for February, 1918. Defendant interposed a general demurrer to the complaint, which was overruled. Defendant did not answer, and the plaintiff took judgment for the amount demanded. Defendant appealed from the judgment. The city charter was adopted by the voters of St. Paul as a home rule charter in May, 1912, sec- tion 52 of which is as follows; " 'Section 52. All firemen or police officers injured in actual service and thereby rendered incapable of performing his duty shall receive full pay during the period of incapacity not exceeding six months, and if incapacitated for a further period, one-half pay, not exceeding an additional period of six months. Such injured fireman or police officer shall be entitled to reinstatement at any time within eighteen months from the date of injury or incapacity, if physically capable of resuming his duties.' "The Workmen's Compensation Act was subsequently enacted and took effect October 1, 1913. The only question presented is whether this statute repealed section 52 of the charter. If the plaintiit is entitled to receive compensation under the charter, then the judgment is correct; otherwise not. "That a member of a fire department is an employe within meaning of the Workmen's Compensation Act was settled in State ex rel. City of Duluth vs. District Court, 134 Minn. 28, 158 N. W. 791, Ann. Cas. 1918B, 635. We are of the opinion that section 52 of the charter remains in force, notwithstanding the compensation act passed subsequently thereto. "Our constitution, as amended In 1898, authorizes cities to frame their own charters which must be consistent with and subject to the laws of the state. Section 36, Art. 4. The statute enacted to make the foregoing con- stitutional amendment operative and under which the charter in question was amended, is section 1345, G. S. 1913, which provides, in part, as follows: " 'Subject to the limitations in this chapter provided, it (the charter) may provide for any scheme of municipal government not inconsistent with the constitution, and may provide for the establishment and administration of all departments of a city government, and for the regulation of local municipal functions as fully as the legislature might have done before the adoption of section 33, Art. 4 of the constitution.' "The power thus given embraces any subject appropriate to the orderly conduct of municipal affairs. State vs. O'Connor, 81 Minn. 79, 83 N. W. 498; State vs. District Court, 90 Minn. 457, 97 N. W. 132; State vs. District Court, 87 Minn. 146, 91 N. W. 300; Grant vs. Berrisford, 94 Minn. 45, 101 N. W. 940, 1133; State vs. Eobinsoo,, 101 Minn. 277, 112 N. W. 269, 20 L. R. A. (N. S.), 1127; Park vs. City of Duluth, 134 Minn. 296, 159 N. W. 627; Schigley vs. Waseca, 106 Minn. 94, 118 N. W. 259, 19 L. R. A. (N. S.), 689, 16 Ann. Cas. 169; Hjelra vs. City of St. Cloud, 129 Minn. 240, 152' N. W. 408. "The theory of the compensation act includes the idea that the wage- earner ought not to be required to bear the whole result of a personal injury arising out of and in the course of his employment, and that the community ought to share in the loss. The carrying of this theory into practical effect, the subject of which is one o^ public policy, must neces- sarily be committed to the legislature for governmental control. But such provision will not prevent a city operating under a home rule charter from providing additional compensation to a fireman injured in the course of his employment. Nor is a charter so providing inconsistent with the object of the compensation act. It follows that section 52 of the charter in question was not repealed, but remains in force. If the city wishes to avoid the provisions of the same, it must do so by a repeal of the section In question by proper authority. "Affirmed." Before this decision was handed down the legislature had amended the act so as clearly to exempt this class of firemen. 53 (d) Volunteer Fireman. Although there is no court decision as to whether a member of a volun- teer fire deoartment is an employe within the meaning of the compensation act, the attorney general has ruled to this effect in the followmg opmion: "You state that the village of Arlington is incorporated under the pro- visions of Chapter 8, Revised Laws of 1905, and has a volunteer fire depart- ment, the members of which receive no remuneration, and your inquiry is whether the village may be liable in damages for injury sustained by a member of such volunteer department while engaged in extinguishment of a fire. "It is provided by sub-division (g) of section 34, of the Workmen's Compensation Act so-called, that the term employe shall include: 'Every person in the service of a county, city, town, village or school district therein, under any appointment or contract of hire, oral or written; but shall not include any official of any county, city, town, village or school district therein who shall have been elected or appointed for a regular term of office, or to complete an unexpired por- tion or any regular term.' "By the Village Act under which Arlington is incorporated, the village council is authorized 'to establish a fire department, appoint the officers and members thereof, prescribe their duties and provide fire engines and other fire apparatus, engine houses, pumps, water mains, reservoirs and other water works.' "I assume that the members of your volunteer department are appointed by the village council by authority of the statutory provision above referred to, and I am of the opinion that they come within the provisions of the compensation act, notwithstanding the circumstance that they receive no stated compensation. The members of a volunteer department render a valuable service in the protection of the property of the village and Its inhabitants, and in most of the villages there is an ordinance containing, among others, the provisions that volunteer firemen responding to a fire call and registering at headquarters shall be paid some small amount out of the village treasury. "It would seem to be unjust to deny the benefits of the act to firemen who are appointed by the municipal authority merely because the appoint- ment does not carry with it any fixed compensation for the service required!" (e) Citizen Assisting Officer. Another ruling of the attorney general holds that a person injured In the performance of the incidental duties of citizenship is not entitled to compensation. He was asked the following question: " 'A' was not an employe of the city, but was an ordinary citizen. He was called upon by a police officer to aid in the prevention of the escape of an offender against the law, and was injured while making the arrest. Is this party covered under the Workmen's Compensation Law?" His answer was: "The statute defining the term 'employe' as used therein contams the provision that: " 'It shall include every person in the service of a county, city, town, village or school district therein, under any appointment or contract of hire, express or implied, oral or written.' "You will note that the statute contemplates a contract of hire, and in a general way at least the relation of master and servant. "A citizen summoned by the sheriff as a part of his posse, or by a police officer to aid in the arrest or detention of an accused person does not thereby become an employe of the county, or city, but the performance of the duty which he is called upon to perform is one of the incidental duties of citizenship for the performance of which the law does not con- template the allowance of compensation. 54 (f) County Employes. The attorney general has also advised in regard to the status of county employes. The question was asked whether the following persons would be covered by the act: "1. The jailer appointed by the sheriff. "2. Viewers on county ditches or judicial ditches. "3. Engineers appointed on certain ditches, county and judicial. "4. Chainmen on said ditches. "5. Men engaged by the county for maintaining slate roads. "6. County road overseer paid by the state but spending all his time in the county. "7. Clerks in the various offices in the court houses appointed by the officer himself but paid by county funds." The attorney general replied: "It is provided in the Workmen's Compensation Act that the term 'employe' shall include: 'Every person in the service of a county, city, town, village or school district therein, under any appointment or contract of hire, express or implied, oral or written.' "This provision is broad enough to include, and does include, the jailer appointed by the sheriff, the viewers appointed by the county board in ditch proceedings, the engineer appointed by the board to make the survey and the members of his crew, men employed by the county for repairing state roads, and clerks in the various offices in the court house. This answers your inquiry as to these particular employes. "I am of the opinion that the road overseer appointed and paid by the state, although devoting all of his time to state highways within the county, is not an employe of the county in any sense and is not within the act. "To avoid misunderstanding, I deem it proper to call your attention to the provision to the effect that the terms 'employe,' and 'workman,' as used in the act, are interchangeable and have the same meaning, and that the clause 'personal injuries arising out of and in the course of employ- ment' is declared. 'Not to cover workmen except while engaged in, on or about the premises where their services are performed, or where their service requires their presence as a part of such service, at the time of the injury, and during the hours of service as such workmen.' "This seems to cover the seven inquiries submitted by you, all of which are answered in the affirmative with the exception that the county road overseer referred to is held to be in the employ of the state and not of the county." (g) Teacher of Rural School. The question whether a school teacher in a rural school district was covered by the compensation act came before a district court in the case of Martha Mattson vs. School District No. 94, Yellow Mecficine County,, May. 16, 1919. Judge Daly found that the teacher was entitled to compensation. The findings, in part, are as follows: "That on the 28th day of January, 1919, while so employed as such teacher for said school district, in the course of, and while in the per- formance of the duties of her said employment, at the school house in said school district, burning coals fell from a defective stove, then and there furnished by said school district for the purpose of heating said school house, which burning coals set fire to the clothing of the petitioner, whereby she was severely burned about and upon her body and limbs, and was made sick and seriously injured, and was thereby totally disabled, and still is totally disabled from performing the duties of her said employment as such teacher, and has been, and is yet totally disabled from doing any work or earning any compensation whatever in any employment. "It is adjudged and decreed that the said petitioner, Martha Mattson, have and recover of the said School District No. 94, in said Yellow Medicine 55 county 'state -of Minnesota, the sum of two hundred dollars ($200), as and for medical and surgical treatment, medicines and hospital treatment, and services rendered and furnished to her by reason of her injury and dis- ability and that said petitioner, Martha Mattson, recover of the said school District No 94 the further sum of one hundred twenty-six and no/100 dollars ($126 00) as and for compensation Irom the 28th day of January, 1919, to tile 28th day' of April, 1919; and that the said school district; pay to the said Martha Mattson the further sum of forty-two dollars ($42.00) on or before the 28th day of May, 1919, as and for her compensation for the month beginning April 28, 1919, and ending May 28, 1919, and that in default of such payment said petitioner have execution therefor; and that the said petitioner, Martha Mattson, recover of the said School District No. 94 in the county of Yellow Medicine and state of Minnesota, as and for the costs and disbursements of this proceeding, the sum of thirty-three and 95/100 dollars ($33.95); and judgment Is hereby entered and rendered in favor of said Martha Mattson against said School District No. 94 in Yellow Medi- cine county, Minn., for the aggregate sum of four hundred one and 95/flOO dollars ($401.95)." (h) Village Marshal. A case involving a village marshal is that of Henry Klepperlch vs. Village of Cologne, Carver county, January 20, 1915. This is a district court decision. The court found that the accident was compensable and gave its reasons in the following memorandum: "It appears conclusively by the evidence that the village of Cologne, by its proper officers, directed the grading of streets so that the property owners might lay the sidewalks on a uniform grade, and that the work of grading was paid for by such village. Such work, the evidence shows, was being done pursuant to contract let by the village at the time the plaintiff claims he was Injured. There does not seem to be any evidence to over- come the positive evidence of the plaintiff that he was injured in the way and manner as set forth in his complaint. It isi the custom of the village marshal to cut weeds, clean sidewalks abutting village property and do such other work as will improve, beautify and be for the betterment of the village when requested so to do by any officer known to have any voice in the management of village affairs. The evidence also shows that one member of the village council requested or commanded the plaintiff to assist at the grading, at which work the. plaintiff claims he suffered the injury resulting in his sickness and disability. The plaintiff believed it was his duty to do as directed. I believe it was one of the incidental powers conferred' upon a member of the village council to direct the village marshal to do this work, and am inclined to the opinion that the plaintiff was performing work and service within the scope of his employment at the time he suffered the injury complained of." 7. MINORS In two decisions the supreme court has construed the provisions of section 34 (g.) sub-section 2, which touch on the employment of minors, (a) Child Illegally Employed. In a decision of very broad application the supreme court held that a child between 14 and 16 years is not legally employed if there is any ele- ment of danger in the work. It refused to apply the ejusdem generis rule to the general prohibiting clause in the child labor law, and held that there can be no special difficulty in determining what particular employment is or may be dangerous. The case is Wesiterlund vs. Kettle River Co., May 18, 1917, 162 N. W. 680, 137 Minn. 24, and the opinion is: "Common-law action by a minor through his guardian to recover for injuries to his person, caused by the alleged negligence of defendant. It appears from the complaint that defendant is a corporation engaged in operating stone quarries at or near the village of Sandstone, and therein cutting, trimming and shaping stone taken from the quarries for commer- cial uses and for sale -n the market. Plaintiff, of the age of 14 years and 56 4 months, was in defendant's employ, performing certain services and labor in and about the quarries, and while engaged In his work received the injuries of which he complains and for which recovery is sought in this action. Defendant interposed a general demurrer to the complaint, con- tending in support thereof that from the facts stated in the pleading plain- tiff's remedy is under the Workmen's Compensation Statute, and that he cannot recover in this form of action. The trial court overruled the demurrer certifying that the question presented was important and doubtful, and defendant appealed. "The section of the compensation statute referred to provides that the term 'employe,' shall include, among others, 'minors who are legally per- mitted to work under the laws of the state.' We are satisfied that this language will permit of no construction other than as stated in Pettee vs. Noyes, 133 Minn. 109, 157 N. W. 995, namely, that the legislature intended thereby to exclude from the act minors whose employment is prohibited by law. This is made too clear for controversy when viewed in the light of the legal rights of minors in that state, and of our statutes affecting such rights, known as 'child labor laws.' In the absence of legislation to the con- trary, all minors may lawfully engage In such employments or works as their age and capacity fit them, and in this respect are 'legally permitted' to work, though their contracts, except as to necessities, are voidable at their election. "In fact, we have no statute expressly permitting the employment of minors, and the use of words 'legally permitted to work,' was not intended as a reference to permissive legislation. But we have statutes, and have had for many years, known as the child labor laws, by which the employ- ment of minors of certain age is expressly prohibited in specified classes of employment deemed detrimental to tlieir moral welfare and dangerous to their life or limb. And in making use of the language quoted it is apparent that the legislature intended to preserve the status of minors in respect to their employment in dangerous occupations, and to remove them from the compensation act when employed in violation of law. No other construc- tion of the statute can be adopted that would not be in discord with our whole legislative policy upon the subject. This view is sustained by the courts. Stetz vs. F. Mayer Boot & S. Co., 163 Wis. 151, 156 N. W. 971; Stephens vs. Dudbridge (1904), 2 K. B. 225; Hetzel vs. Wasson Piston Co. (N. J.), 98 Atl. 306. It follows that the compensation act can have no appli- cation to the case of an injured minor who was employed in violation of any of the child labor laws of the state. "We turn then to the second question, namely, whether plaintiff's employment was in violation of any laws. We answer the question in the affirmative. Plaintiff was just over 14 years at the time of his injury. The facts with reference to the character of hia work and the place where it was performed are stated in the complaint substantially as follows: Defendant's plant covers several acres of land, upon which are located neces- sary buildings, stone crushers, coal sheds, hoisting derricks, stationary engines. The operating yard is traversed by railroad tracks, upon which defendant operates engines and cars in the movement of material in and about the works. At and near one end of the tracks three large hoisting derricks are located, all equipped with necessary machinery and appliances, and operated by stationary engines. These derricks are used In loading heavy material upon cars to be carted out of the plant either for shipment, or to be dumped outside thereof as waste material. The waste material is referred to In the complaint as 'spalls.' The work of loading the spalls is described at some length in the com- plaint, not necessary here to repeat, but it is shown by the averments to be attended with danger to the workmen, particularly and especially to young boys of the age of plaintiff. Plaintiff was employed in that work and also In connection with the movement of cars about the loading platform. He was injured by being run over by a car being shunted down the track leading to the loading department, the brakes upon which were either defec- 57 tive or out of repair, and which plaintiff was attempting to stop by placing a block in front of the moving wheels. This the complaint alleges was in accordance with the practice and custom adopted by defendant in handling such cars That was of itself dangerous employment for a boy of the age of plaintiff. Plaintiff was not engaged to operate, nor to assist in oper- ating machinery of any kind, though he was in close proximity thereto when in discharge of his duties. "Was this such employment as the statutes of the state prohibit to minors of the age of plaintiff? This question must be answered by the con- struction to be given to sections 3848 and 3870, G. S. 1913. Those statutes in their present form are found in section 9, C. 316, Laws 1913, and section 2, C. 516, Laws 1913. So far as here material, the statutes are substan- tially the same, though section 3870 contains certain provisions, not here material, not found in section 3848. Both statutes prohibit or make unlaw- ful the employment of minors under 16 years of age in the particular kinds of work there enumerated, being of a kind naturally to expose the minor to danger of injury either physical or moral. The various provisions are too numerous to set out at length. The concluding clause, following the enumerated prohibited employment, reads: 'Nor shall they be employed in any capacity whatever in the manufacture of goods for immoral purposes, or any other employ- ment dangerous to their lives or limbs or their health or morals.' "The work for which plaintiff was employed by defendant does not come within any of the specifically enumerated employments, and his employ- ment was rendered unlawful or forbidden, if at all, by this general clause distinctly prohibiting the employment in any work which may endanger the life, limb, health or morals of the minor. The employments specifically referred to iu the statute embrace the operation or assisting in the operation of machinery, the preparation of any composition in which dangerous or poisonous acids are used, or in the manufacture of paints, colors or white lead, or in the operation of any passenger or freight elevator, or the manu- facture of goods for immoral purposes, following which is the general prohibition quoted. "It is the contention of defendant that the general prohibiting clause following the specific enumeration must, under the rule of ejusdem generis, be held to refer to and include only such employments as are substantially similar to one of the classes so enumerated. We do not concur in that view of the statute. The rule invoked is one of construction, employed as an aid in determining the intent of the legislature, and the effect thereof should not be permitted to confine the operation of the statute within nar- nower limits than intended by the lawmakers. That, as well as all other rules of construction, has but one object in view, namely, the ascertainment of the intent of the statute. The general purpose of a statute, as disclosed by the provisions thereof, taken as a whole, often requires that the final general clause, inserted with a view of bringing within its scope matters not specifically mentioned, should not be restricted in meaning by the pro- ceeding specifications. Willis vs. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626; Brown vs. Corbin, 40 Minn. 508, 42 H W. 481; Ft. Smith vs.. Gunter, 106 Ark. 371, 154 S. W. 181; U. S. Cement Co. vs. Cooper, 172 Ind. 599, 88 N. E. 69. "And when it appears that the legislature intended to go beyond the specifications, effect must be given that intent and the statute construed accordingly. The whole purpose of the legislature in the enactment of this statute, as clearly disclosed by its numerous provisions, was the pro- tection of boys and girls from moral or physical harm, who by reason of immature years presumably are incapable of appreciating risks of uijury which are incident to the particular employments. And it is manifest that the concluding clause was inserted for the express purpose of including any employment not embraced in those specifically mentioned which for the same reason might expose them to like dangers. It obviously was not intended as a limitation upon the scope of the statute, but rather as an 58 enlargement thereof, and to fully effectuate the protection Intended thereby to be placed about the young and inexperienced minor child. This view is sustained by reputable authority. Swift & Co. vs. Rennard, 119 111. App. 173; Louisville & Nashville Ry. Co. vs. Lyons, 155 Ky. 396, 159 S. W. 971, 48 L. R. A. (N. S.) 667. "It requires no extended arguments or discussion to demonstrate that it is just as dangerous to a child to' be set to work in a factory, machline shop, or other like industry where he will be hourly exposed to injury from machinery in operation as to set him to work in operating or in assisting in operating the same. Danger of injury of that character is what the legis- lature intended to guard against, and not especially the dangers incident to a particular employment. We therefore hold that the employment of plain- tiff, as disclosed by the comjjlaint, was prohibited by the statute referred to, and exclude the case from the compensation law. "This conclusion does not, as contended by defendant, render the stat- ute unconstitutional, as leaving the basis for its application to doubt and uncertainty. The thing condemned is the dangerous work, and there can be no special difficulty in determining what particular employment is or may be dangerous. If this contention were to be sustained, then many of our statutes of long standing would go down as unconstitutional. For instance, we have a statute which declares that it shall be unlawful to assault another with a dangerous or deadly weapon. Another statute pro- hibits the employment of a minor under the age of 18 years in any practice or exhibition 'dangerous' to his life or health. What constitutes a danger- ous or deadly weapon, and what constitutes a 'dangerous' exhibition will often present a question of fact to be determined before the statute can be held to have been violated. And the statute cannot be held unconstitutional because the determination of that fact precedes the conclusion that it has been violated, or because the determination thereof is committed to the court. Elwell vs. Comstock, 99 Minn. 261, 109 N. W. 113. 698, 7 L. R. A. (N. S.) 621, 109 N. W. 113, 698, 7 L. R. A.) (N. S.) 621, 9 Ann. Casi 270; Louisville & Nashville Ry. Co. vs. Lyons, 155 Ky. 396, 159 S. W. 971, 48 L. R. A. (N. S.) 667. "Therefore we hold that the particular employment of plaintiff was pro- hibited by the statutes referred to, rendering the compensation act inap- plicable to the case. Prom which it necessarily follows that the order appealed from must be affirmed. "It is so ordered." (b) Apprentice Violating License Law. In an earlier decision the supreme court had construed this section not to refer to employment of a minor illegally in cases where licenses were required, but to their employment in cases which were prohibited by law. The decision is that of Pettee vs. Noyes et a!., 157 N. W. 995, 133 Mdnn. 109. Plaintiff's son, 18 years of age, entered the service of defendants, intending thereunder to become an operator of an electric passenger eleva- tor located in defendant's place of business. He was without previous expe- rience in that line of employment, was not licensed for that occupation as required by section 1432, G. S. 1913, and defendant placed him in charge of a regular operator of the elevator to qualify him for the work. He thus became an apprentice, and remained under the tutelage of the instructor for a week or more, and thereafter operated the elevator in his absence. On May 19, 1914, after about two weeks of this service, and when he was engaged in operating the elevator alone, he received the injury for which recovery is sought in this action. It appears that he ran the elevator to a particular floor, at which time he opened the door and stepped out to go upon some errand in another part of the building. He left the door open, intending to return immediately. During his absence the elevator was, by some one, removed to another floor, leaving the elevator door to the shaft standing open. On his return, supposing the elevator still in position, he stepped into the open door and fell down the shaft and was injured. There- after, on July 2, 1914, the parties, the injured party acting in his own behalf, 59 settled and adjusted the compensation for which defendants were liable under the workmen's compensation statute (Gen. St. 1913, Sec. 8195-8230), which was presented to and approved by the district court. The settlement so made and approved by the district court was in all things in conformity with the provisions of that statute, and was subsequently complied with by defendants Thereafter plaintiff, the father and natural guardian, treat- ing the settlement in the compensation proceedings as a nullity, brought this action for the injuries to his son, alleging that they were caused by the negligence of defendants. Defendants interposed in defense, in addition to a denial of the allegations of negligence, the settlement in the compensation proceedings and a compliance therewith by them. At the trial, upon these facts appearing, the court dismissed the action on the ground that the rights of the parties were governed and controlled by the compensation statute, and that the settlement thereunder was valid and binding upon .plaintiff Plaintiff appealed from an order denying a new trial. "The question involved on the appeal is whether the relation of master and servant existed between defendants and plaintiff's soi) at the time of his injury. It it did, the trial court was entirely right in dismissing the action; for there is no claim that the settlement proceedings were irregulat or not in compliance with the compensation statute. Plaintiff's sole conten- tion is that the relation of master and servant did not exist between the parties, because of the fact that the employment was illegal, since the young man was not licensed, and was prohibited by law to operate the elevator without a license; hence, that the compensation statute has no application and the proceeding thereunder was wholly void. "The young man entered the service of defendants as an apprentice and, for aught that is shown, he continued in this apprenticeship up to the He occupied a position similar to that of a student brakeman in the service of a railroad company, and was an employe within the meaning of the law. Rief vs. Railway Co., 126 Minn. 430, 148 N. W. 309. There is no sugges- tion in the record that the situation was ever changed during the two weeks of service, or that defendants entered into any new arrangements as to the extent of the service to be rendered by the young man. No claim Is made that he was employed formally to operate the elevator without assistance, and, for aught that is shown, he continued in this apprenticeship up to the time he was injured. In this situation, it is quite clear that the relation of master and servant, coming into existence when the young man first entered the service, was not brought to an end or interrupted by his act in operat- ing the elevator in the absence of his instructor. On the contrary, the original relation presumptively continued, and would continue for a reason- able time, or until changed by some agreement of the parties, express or implied. Benson vs. Coal Co., 124 Minn. 222, 144 N. W. 774, 50 Ii. Ei. A. (N. S.) 170, 1 Dunnell's Dig. 3438. It does not appear that defendants treated him as fully qualified for the service, or that they had authorized him to operate the elvator alone. The question whether he was employed without license as required by section 1432, G. S. 1913, therefore disappears, and we need not consider whether a contract of employment without such license would be so far unlawful as to justify the court in holding that by reason of the taint of illegajity the relation of master and servant could not exist for any purpose. Hughes vs. Steel Co., 136 Ga. 511, 71 S. E. 728, 36 L. R. A. (N. S.) 547, Ann. Cas. 1912C, 394. In view of the facts here pre- sented, the license was unnecessary, the employment was legal, and created the relation of master and servant, rendering the compensation statute applicable. "This disposes of the case, though we may. add in conclusion that sec- tion S4 of the compensation act (section 8230, G. S. 1913), by which the statute is made applicable to minors 'who are legally permitted to work under the laws of this state,' was intended to exclude from the statute, minors whose employment is prohibited by law. Sees. 3848, 3871, G. S.- 1913. Plaintiff's son was not in this class. He lawfully could be employed in this sort of work, if qualified and possessing the necessary license." 60 IV. DEPENDENCY 1. WIFE The decisions regarding dependent wives have usually hinged on the interpretation of the words, "conclusively presumed wholly dependent unless it can be shown she was voluntarily living apart from her husband at the time of his injury or death." (a) Voluntarily Living Apart. A case in which the supreme court sustained a finding by a lower court that the wife had been voluntarily living apart from her husband is that of State ex rel. Kile vs. District Court of Hennepin County, May 28, 1920, 177 N. W. 934, and is as follows: 1. Only questions of law are reviewable by this court in cases arising under the Workmen's Compensation Act. 2. Whether the evidence sustains a finding of fact does not become a question of law unless all reasonable and impartial minds would reach only one conclusion. 3. The finding that the relator was voluntarily living apart from her husband must stand, as reasonable minds might reach different conclusions in respect to the fact. 4. The fact that she was voluntarily living apart from her husband removed the presumption of dependency, and the evidence shows no actual dependency within the meaning of the statute. Affirmed. Oscar F. Kile, while at work as a laborer in the city of Minneapolis, on July 3, 1919, sustained injuries which resulted in his death. His parents, with whom he had resided, filed a complaint in the district court of Hen- nepin county setting forth that they were dependent upon him for support and were persons entitled to compensation under the Workmen's Compen- sation Law. His widow filed a complaint in intervention asserting that she was the person entitled to compensation under the law. The obligation to pay compensation was conceded and the only controversy was whether it was payable to the parents or to the widow. The trial court found, as a • fact, that the widow had voluntarily left her husband and had voluntarily lived apart from him for more than a year immediately preced- ing his injury and death, and rendered judgment awarding compensation to the parents. The widow brings the matter before this court by writ of certiorari, and contends that the evidence does not justify the finding that she was voluntarily living apart from her husband. Only questions of law may be reviewed by this court in cases arising under the compensation statute, G. S. 1913, section 8225. State ex rel. Niessen vs. District Court, 142 Minn. 335. The question of whether the evidence sustains the findings becomes a question of law: "Only where an impartial consideration thereof, together with all reasonable and fair interferences, will lead reasonable minds to but one conclusion. If reasonable minds may reach different conclusions, the question becomes one of fact and the findings must be sustained." State ex rel. vs. District Court, 176 N. W. 165; State ex rel. vs. District' Court, 142 Minn. 335. In view of the findings, the question for determination is whether there is any evidence from which a reasonable mind could reach the conclusion that she was voluntarily living apart from her husband. She had lived in illicit relations with one Alfred Malm, in the city of Minneapolis, for several years. In the early part of 1918, she went from Minneapolis to Kansas City, Missouri, with Oscar Kile, where they lived together as husband and wife' for some three months before they were married. They were married on May 7, 1918, and about three weeks later she returned to Minneapolis. There is evidence from which the court could find that she went to Minne- 61 apolis for the purpose of procuring a loan on some property she owned there, and with the understanding that she would return to her husband at Kansas City with this money, and that they would then go to Oklahoma. She sold her property, but instead of returning to her husband she went to Wisconsin where she lived with relatives until April, 1919, when she returned to Minneapolis. A few letters passed between them shortly after she left Kansas City, the most important of which was a letter from her written June 16, 1918, to the effect that she could not live with him again unless he changed his ways. She testified that he was a heavy drinker, and intimated that he indulged in gambling, but insisted that she did not leave him and return to Minneapolis on account of his habits, but because she was sick and needed rest. He returned to Minneapolis and waa employed in that city in the summer of 1919, but the date of his return is not given. She knew of his return and that he was living with his parents, but so far as appears neither communicated with the other after the sum- mer of 1918. We are unable to say that from an impartial consideration of the evi- dence, reasonable minds could not reach the conclusion that she was volun- tarily living apart from her husband and the finding must stand. The fact that she was voluntarily living apart from her husband simply removed the presumption of dependency created by subdivision (1) of sec- tion 8208 of the General Statutes of 1913 as amended, but the evidence shows that there was no actual dependency as defined by subdivision (3) or sub- division (3a) of the same section. Judgment affirmed. (b) Living Apart, Divorce Suit Begun. How strong the presumption of dependency is appears from the deci- sion in State ex rel. Geo. J. Grant Construction Co. vs. District Court of Ramsey County et al., 163 N. W. 509, 137 Minn. 283. The court ruled that the employer assumes the burden of proof, and unless the separation is shown to be voluntary, the presumption of dependency holds. The ruling is: "John Reinhart at the time of his death was in the employ of relator, George J. Grant Construction Company, and while engaged in the discharge of the duties of his employment met with an accidental death, for which his widow or those dependent upon him for support, are entitled to com- pensation under the statute. This proceeding was Instituted by the widow to recover the same. On the theory and claim that the widow was not entitled to the relief applied for, the mother of decedent was permitted to intervene in the proceeding for the purpose of presenting a claim under subdivision 2 — 8208, of the compensation act as an actual dependent. After trial, the court found facts entitling the widow to the relief and judgment was entered accordingly. The mother of decedent made no further move in the proceeding, and, so far as we are advised to the contrary, acquiesced in the judgment of the court. Relator challenged the findings of the court as not sustained by the evidence. "The defense interposed by relator was that, at the time of Reinhart's death, plaintiff, his wife, was voluntarily living apart from him, and under subdivision 1 of section 8208 supra, as amended by chapter 209, Laws of 1915, not entitled to the presumption of total dependency there created, and that to entitle her to any relief she was required affirmatively to show actual dependency and extent thereof. "If relator's construction of the statute is sound, it would follow when it appears in a proceeding of this kind, one by the wife for compensation for the death of her husband, that the wife, in fact, was at the time of her husband's death voluntarily living separate and apart from him, there is no presumption of dependency in her favor, and actual dependency, and the extent thereof, must be shown before she may recover the compensation provided by the statute. That may be conceded for the purpose of the case to be the proper construction of the statute. «2 "But the burden to establish the claim that there was such voluntary separation will, in such case, rest with the party presenting it in defense of the wife's right to compensation. In this case that burden rested with relator, and the relator assumed it on the trial and presented evidence in support of the allegation of voluntary separation. But the court found the allegations in this respect not true, and that the wife was not at the time of decedent's death voluntarily living apart from him. If this finding is supported by the evidence, the presumption of total dependency applies, and the judgment below must be Siustained. So the only question in the case is whether the evidence supports the findings upon that subject. But it may be remarked, in passing, that the expression 'voluntarily living apart from her husband,' as used in this statute means, and should be construed to mean, the free and intentional act of the wife influenced by extraneous causes, or as it might be otherwise expressed, her choice deliberately made and acted upon. 29 Am. & Eng. Ency., 1072. "In that view of the statute and its meaning, the findings of the court cannot be disturbed. The evidence is short and not at all confused or com- plicated. At the time of the marriage of plaintiff with decedent she was a widow with four children dependent upon her for support, and decedent was a widower with a son, who was self-supporting. Plaintiff owned her own home, which was equipped with all necessary household goods and furniture, and upon the marriage decedent made hisi home with her, and there con- tinued to reside until about six months prior to his death. During that period and at the time of his death he resided with his mother. The mar- riage was not a happy one. For some cause, not made wholly clear by Ibe evidence, trouble arose between the parties, and they resided separately and apart from each other during the time stated. "Evidence was offered tending to show that plaintiff tired of decedent and drove him from her home, and the claim is that she not only brought about his departure from her home, but thereafter voluntarily insisted upon the separation thus created. Plaintiff denied that she drove decedent away, and she testified that he left of his own accord and without her consent. Subsequent to his departure she insisted upon a discharge of his marital obligations of support, and proceeded against him in the courts for his fail- ure in that respect. "Decedent brought suit for divorce, in which plaintiff answered, demand- ing a divorce in her favor and for alimony and suit money. But that action was commenced and plaintiff's answer interposed therein long after the separation took place, and clearly was not the cause thereof; and the relief demanded by plaintiff in her answer therein is not evidence, at least not conclusive, that the separation of the parties was by her voluntary or other consent. In this state of the evidence, we discover no reason for inter- ference with the findings of the court, to the effect that she did not volun- tarily, of her own free will and choice, separate herself from decedent. The fact that parties thus situated live separate and apart from each other might, standing alone, give rise to an inference that it was voluntary on the part of each. But any such inference is sufficiently rebutted in this case. Plaintiff was therefore entitled to the presumption of dependency and the trial court was right in so disposing of the case. "Our statutes upon this question are entirely different from the statutes of Rhode Island, construed in Sweet vs. Sherwood Ice Co. (E. L.), 100 Atl. 316. The statutes of the several states are at variance upon the subject. Kiser, Workmen's Compensations Acts (C.J. Treatise), 59. Judgment affirmed." (c) Living Apart Through Fear. In another case, the wife was shown to be living apart because of fear of personal violence, and the supreme court held that this did not constitute "voluntarily living apart." The style of the case is State ex rel. London & Lancashire Indemnity Co. vs. District Court of Hennepin County et al., March 15, 1918, 166 N. W. 772, 139 Minn. 409. The text is as follows: 63 "Certiorari to review a judgment of the district court of HenneplB county awarding compensation under the Workmen's Compensation Act to Lillian Rush, for the death of her husband, John Rush. "The court found that on January 25, 1917, John Rush received an accidental injury arising out of and in the course of his employment which caused his death on March 3, 1917. The relator admits that Rush received the injury and that it arose out of and in the course of his employment, but contends that the evidence is not sufficient to sustain the finding that his death resulted from his injury. He fell and struck upon his head, and was unconscious for a few moments. Two or three daysi afterward he resumed his duties and performed his work as usual for a week or more when he was discharged. During this period he appeared to be in norrnal condition except that an impediment in his speech seemed to be more pronounced than theretofore. On February 19th he entered a hospital, where he died on March 3d. The doctor who made an autopsy testified that death resulted from a hemorrhage on the brain of traumatic origin, and that a mici"o- scopical examination disclosed 'repair cells' which showed that the original injury had been received several weeks previously. We are satisfied that the evidence justified the finding. "The statute provides that the surviving wife, 'shall be conclusively presumed to be wholly dependent * * * unless it be shown that she was voluntarily living apart from her husband iat the time of his injury or death.' Laws of 1915, C 209-5 (Gen. St. Supp. 1917, 8208). "The relator contends that the legislature cannot make the presump- tion of dependence conclusive, and claims that plaintiff wa& not in Jact dependent upon her husband, for the reason that she had supported herself for years without assistance from him. The legislature in declaring that a particular fact shall be conclusively presumed does not establish a presump- tion in the ordinary sense of the term, but rather a rule of law to the effect that in the case specified, the non-existence of the fact presumed, is imma- terial. (Ency. of Ev. 884; 2 Wigmore, Ev. 1353.) The legislature can make a presumption conclusive unless such presumption would cut off or impair some right given and protected by the constitution. No provision of the constitution is cited which takes from the legislature the power to define and prescribe the duties of the husband to his wife and children, and the rights to which the wife shall be entitled in consequence of the existence of the marriage status; and we are satisfied that the legislature had power to provide that for the purposes of the compensation law, the wife shall be conclusively presumed to be wholly dependent upon her husband regardless of whether she had or had not been supported by him ini his lifetime. The duty to support her rested upon him as a continuing obligation which could have been enforced at any time. The legislature could recognize the exist- ence of this obligation, and in the plentitude of its power could make such reasonable provision for the wife under the compensation law as it deemed just and proper. "Furthermore, even if the constitutional guaranties would be infringed by making the presumption conclusive in other cases, they would not be infringed by making it conclusive under the compensation law, for the provi- sions of that law are obligatory only upon those who elect to become subject to it, and those who voluntarily assume the liabilities imposed by the law in order to secure the benefits conferred by it have been deprived of no constitutional right. Mathison vs. Minneapolis Street Ry. Co., 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412; State ex rel. vs. District Court, 106 N. W. 185. This same provision was involved in State ex rel. vs. District Court, 137 Minn. 283, 163 N. W. 509, but its validity was not challenged. Similar provisions are found in the statutes of several states and their validity seems not to have been questioned. Nelson's case, 217 Mass. 467, 105 N. E. 357; Finn vs. Detroit, Mt, C. & M. C. Ry. Co., 190 Mich. 112, 155 N. W. 721, L. R. A. 1916C, 1142; Northwestern Iron Co. vs. Industrial Com- mission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366 Ann. Cas. 1915B 877. 64 "The relator contends that plaintiff was voluntarily living apart from her husband and is not entitled to the benefit of the conclusive presumption for that reason. "She had lived apart from her husband for about 12 years, but there is no finding that she did so voluntarily, and the evidence does not require such a finding. According to her testimony, which is the only evidence upon the question, he not only threatened her life, but ordered her to leave and drove her away with a gun, and she left and lived apart from him solely because she was in fear of personal violence. This fails to show that she was voluntarily living apart from him within the meaning of the statute State ex rel. vs. District Court, 137 Minn. 283, 163 N. W. 509 "The statute (subdivision 16, 5 C. 209, Laws 1915) Gen. St Supp 1917 8208, provides that the employer shall pay 'the expense of last sickness and burial, not exceeding in amount one hundred dollars,' except in certain cases not here material. As the evidence shows that such expenses exceed f 100 00 we find no error in the allowance of that amount therefor. "The court allowed plaintiff's attorneys a lien in the sum of $400 upon the amount recovered. The relator raises no question concerning this lien except to call attention to the fact that if plaintiff is not entitled to recover her attorneys are not entitled to a Hen as against the relator. The amount for which the lien is allowed in this case is not questioned by any one, and hence is not before us for consideration, but we wish to call attention to the fact that the proceedings under this law are informal and summary and are intended to be inexpensive; and that only extraordinary circumstances will justify the court in allowing a lien for any considerable proportion of the compensation awarded the dependent. Judgment affirmed." A similar case to the above is that of State ex rel. Nancy D. Green vs District Court of Ramsey Co., February 6, 1920, 176 N. W. 155, which, because of the leading feature of the case, is discussed in Part XII, Words and Phrases, under Intoxication. Proximate Cause. (d) Common. Law Wife. That a common-law wife is a dependent under the Workmen's Com- pensation Act was the finding of the Hennepin county district court in Emma Jenifer vs. Travelers Insurance Company, December 20, 1916. The text of the decision is: "That on and prior to August 12, 1916, Columbus Jenifer was an employe of the Elks' Club of Minneapolis, Minn.; that on and prior to August 12, 1916, the defendant, the Travelers Insurance Company, was duly licensed to conduct a liability business in the state of Minnesota, and that as such licensed insurance corporation did insure the Elks' Club of Minneapolis, against liability on account of personal injury to its, his or their employes; that on August 12, 1916, Columbus Jenifer, then and there, being an employe of the Minneapolis Elks' Club, sustained an Injury which resulted in his death on the above date and that such injury arose out of and in the course of the employment of the aforesaid Columbus Jenifer; that the court fur- ther finds that Emma Jenifer, the plaintiff herein, was on August 12, 1916, the common-law wife of Columbus Jenifer, deceased, and that the plaintiff herein was not living apart from the said Columbus Jenifer on August 12, 1916, or immediately prior thereto. "The court further finds that the aforesaid Columbus Jenifer, deceased, died without issue and left surviving no minor child or children under the age of sixteen years dependent upon him for support. The court further finds that Emma Jenifer, the plaintiff herein, under the provisions of chap- ter 467 of the General Laws of Minnesota, 1913, and amendatory acts, being the Workmen's Compensation Act, so-called, is entitled to and shall receive from the Travelers Insurance Company the sum of $6.50 per week for a period of 300 weeks." (e) Wife and Two Sets of Children. A difficult problem came before the district court of Koochiching county when it was asked to determine the amounts of compensation respectively 65 due to a wife and one child and to three children by a former marriage, residing in Ontario. The court worked out a basis for agreement informally and this was accepted by all the parties. The case is styled Arscneau vs. Minnesota and Ontario Power Company, and the settlement as approved February 16, 1918, is: "The undersigned, being the only parties interested in the above entitled matter hereby petition the court for approval of the following agreement and settlement, and agree and represent to the court as follows: "That they are subject to the provisions of part II of chapter 467 of the Laws of Minnesota of 1913". That said employe, aged 37, residing at Inter- national Palls, Minnesota, did on August 8, 1917, on or about 7:0,0 o'clock P. M. sustain injury while employed by said employer, which injury occurred at International Palls, and resulted in the death of said employe on August 8, 1917, and that said deceased employe was receiving at the time of the injury wages at the rate of $30.00 per week. That the name, age, relation- ship, address, and extent of dependency of each dependent are as follows: "Dolly Arseneau, aged 32 years, widow, Orr, Minn., wholly dependent "Betty Arseneau, aged 1 year, daughter, Orr, Minn., wholly dependent. "Fred Arseneau, aged 16 years on January 30, 1918, Bear's Pass, Ontario, wholly dependent. "Lester Arseneau, aged 14 years, April 12th, son, Bear's Pass, Ontario, Canada, and Theresa Arseneau, aged 12 years, January 6, 1918, daughter, Bear's Pass, Ontario, wholly dependent, and no others were his dependents at the date of his death. "Therefore, it is hereby agreed that said dependents are entitled to and shall receive compensation for said injury and death from employer, begin- ning August 8, 1917, at the rate of $11.00 per week in the aggregate during dependency, payable as follows: "To each of the said Dolly Arseneau, Betty Arseneau and Theresa Arseneau, $2.20 per week, for one hundred twenty-nine weeks, $2.75 per week for the next following sixty-two weeks, and $3.66 for the next succeed- ing one hundred nine weeks, or a total of $853.97; and the parties hereto mutually agreed that said employer may forthwith make a lump sum pay- ment of $705.17 in cash, in lieu of such weekly payments. To the said Lester Arseneau, $2.20 per week, for one hundred twenty- nine weeks, and $2.75 per week for the next succeeding sixty-two weeks, or a total of $454.30, for which the parties have agreed that said employer may forthwith pay in cash, a lump sum of $404.33 ; and "To the said Fred Arseneau, $2.20 per week for one hundred weeks, or a, total of $283.80, for which the parties hereto have agreed that said employer may forthwith pay in cash, a lum sum of $262.14. "That the parties have also mutually agreed that such payments so to be made for the benefit of the said Fred, I,ester and Theresa Arseneau, shall be made to the said Colin Thomson, as such representative of said British Consular Office." 2. CHILDREN Decisions regarding the dependency of children have hinged on the construction of the word "orphan," the possibility of an adult child being dependent and the interpretation of section 34 — (b), "children entitled by law to inherit as children of the deceased. (a) Orphans, IVIotherless Children. The contention was made that the word "orphan," meant simply father- less children. The supreme court held against this in State ex rel. Radisson Hotel, et al. vs. District Court of Hennepirv County, 172 N. W. 897, 143 Minn. 144. The opinion is: "Certiorari to review a judgment in a proceeding under the Workmen's Compensation Act (Gen. St. 1913, C. 84a). 66 "Vera Meakins was accidentally killed in Hotel Radisson, Minneapolis, shortly after 8:00 o'clock in the evening of November 3, 1918. She left surviving a husband and three minor children, the oldest being seven years of age. For several months prior to her death she had been in the employ of the Hotel Radisson Co., in charge of the passenger and freight elevators, and the operators of the hotel. The court found that death resulted from an accident arising out of and in the course of her employment, and that the three minor children were her dependents, and, as conclusion of law, directed judgment to be entered in favor of the respondent, the guardian of the minors, for $11 per week, for a period of 300 weeks, and JlOO tor burial expenses. The findings mentioned, and the conclusion .of law, are properly challenged in this court by relators, the Hotel Radisson Co. and its Insurer. "The deceased was receiving, at the time of her death, a stipulated wage, together with room and board in the hotel, amounting in all to $80 per month. She was the starter of the elevators, and usually performed that part at the entrance of the first floor, hut at times directed this work from the top floor. She was also superintending the elevators in an annex adjoin- ing the hotel, and it was her duty to oibserve and arrange for the hours of service of the various operators, and to examine and note whether the ele- votors and doors worked and closed properly. This required her at times to ride a good deal on the elevators. "The immediate circumstances surrounding the accident are these: Mrs. Meakins had attended as a starter during the day, and had worn her starter's uniform, and appears to have 'punched out' on the time clock at 7:50 P. M., on November 3d. A few minutes after 8:00 she, in street attire, entered one of the elevators and rode up and down for some 15 minutes with the operator, talking to her. What they were talking about is not disclosed. As they were thus occupied, a passenger got off at the tenth floor, Mrs. Meakins followed, the operator closed the door and was just starting to move the elevator up when Mrs. Meakins pushed open the doors and attempted to re-enter. She tripped, the elevator was moving, and she fell back into the pit to her death. "Relators make much of the fact that deceased had 'punched out' on the time clock, and that she was dressed for the street; hence, it is said, the finding is not sustained that she met her death in the course of her employment from an accident arising out of it. This overlooks some persuasive testimony given by the assistant manager of the employer, to the effect that deceased had no stated hours of work, but was practically on duty all the time, as he put it, '24 hours in the day'; that she used her own discretion as to the time within which she wasi to do that which was ex- pected of her. that the wearing of the uniform was not obligatory for her, and that she was not required to punch the time* clock, for her wages were not paid upon its record. The inference is near at hand that she was at the moment of the accident engaged in her work, endeavoring to ascertain whether the doors of the elevator she was riding on locked properly. It seems their defective condition in this respect was the direct cause of her death. We cannot say that the court's finding is not sustained under the rule announced in State ex rel. Niessen vs. District Court, 172 N. W. 133. "The court held the children wholly dependent upon deceased. The fact was that the father of the children, the husband of the deceased, had deserted the family about three years before, and had since contributed nothing to their support. The deceased and her children found a refuge with her father. She was ill for a time and unable to work. As soon as able, she sought and obtained employment, the children in the meantime remain- ing with her father. She bought clothes for them and otherwise contributed to their support. At the time of the accident the children's father was in the army. Under the regulations of the military service, being married, he had been compelled to authorise the government M turn over a portion of his pay for the support of his family. No part thereof had been received up to the time of trial. We need not determine whether the evidence justl- 67 fies a finding that the children were in fact wholly dependents, for section 8208 (1), G. S. 1913, as amended by section 5, chapter 209, Laws 1915 (Gen. St Supp. 1917, Sec. 8208), provides that minor children under the age ol 16 years shall be conclusively presumed to be wholly dependent. The minor children thus referred to are the children of an employe accidentally killed in the course ot employment. The law does not, in terms, exclude the chil- dren of the female employe, and no good reason occurs to us why they should be excluded by construction. That dependents of female employes are intended to be protected by the act is clear, for a dependent husband is specifically provided for in subdivision 11 of said section 5. "The learned trial court evidently regarded the children as coming within subdivision 10 of the section just referred to, which reads: " 'If the deceased employe leave a dependent orphan, there shall be paid forty per centum of the monthly wages of deceased, with 10 per cent additional for each additional orphan with a maximum of 60 per centum of such wages.' "A woman may have obtained a .divorce and have been awarded the care and custody of the children on tlie ground of the husband's misdeeds, and his situation may be such that there is no hope of ever compelling him to contribute to the support of his children, or he may have deserted his family, as in this case. Is this statute to be construed that if the mother, thus left, in an effort to earn a living for herself and children, is accidentally killed while working in an employment where the Workmen's Compensation Act applies, the children should fare worse than would be the case had their father been killed under the same circumstances and the mother had previously voluntarily, without cause, deserted him and the children? In the latter case, the widow could get no part, and there would be no diffi- culty at all in holding that a fatherless child is an orphan, even though Its mother is living. "An important case involving a large bequest under Girard's will, is Soohan vs. City of Philadelphia, 33 Pa. 9. The case limited the provision for 'orphans' in the will to fatherless children. The opinion shows great research. Some stress is there laid upon Girard's French descent, and the meaning of the word 'orphan' in that language; also upon the construction of the trustees of the institution, founded under this provision, had placed upon the meaning of the word, and according to' which the Institution had been conducted for many years. In the course of the opinion it is stated that in a friendly controversy concerning the meaning of the word between John Quincy Adams and Judge Hopkinson in 1833, the former maintained that the word 'orphan' includes those children who had lost both or either parent, while the latter held that the term was to be confined to those who had lost their father only. It is also stated that there was the same uncer- tainty of meaning in. the then published dictionaries. 'An orphan, in legal parlance, is a fatherless child.' Poston vs. Young, 7 J. J. Marsh (Ky.), 501. Stewart vs. Morrison, 38 Miss. 419, placed the same construction upon the word. However, this was held too narrow in the subsequent case ot Hall vs. Wells, 54 Miss. 289. But there can be no doubt that a fatherless child may be classified properly as an orphan. May it also mean a mother less child? In Friesner vs. Symonds, 46 N. J. eq. 527, 20 Atl. 259, it isi said: " 'An orphan is a minor who has lost one or both of his parents. This is the definition given by both Bouvier and Webster. But according to the rule prevailing in this state, it would seem that a minor is not an orphan unless his father is dead.' "The court in Heiss vs. Murphy, 40 Wis. 276, on page 291, says: " 'The word "orphan" includes a minor who has lost both of his or her parents, or one who has lost only one.' "Black defines an orphan as: " 'Any person (but particularly a minor or infant) who has lost both (or one) ot his or her parents.' "Bouvier: 68 " ' A minor or infant who has lost both of his or her parents. Some- times the term is applied to a person who has lost only one of his or her parents.' "Webster: " 'A child bereaved by death of both father and mother, or, less com- monly, of either parent.' "The Century: " 'A. child bereaved of one parent or of both parents, generally the latter.' "The decisions, as well as the dictionaries recognizing that the term 'orphan' may properly be applied to a motherless as well as to a fatherless child, we think it meets with no difficulty of construction to hold that the minors here in question are orphans within thd meaning of subdivision 10 of section 5. cliapter 209, Laws 1915. They have been deserted by their father and bereft by death of their mother, the only parent who for the last three years made any attempt to support them. 'The original idea of designating fatherless children orphans, the same as those who had lost both parents, seems to be that the father was the head of the household and responsible for the care and support of the minors therein. When the father has abdicated that place and deserted the family, the children become indeed orphans when also bereft of their mother. The purpose of the Workmen's Compensation Law is to provide for the dependents of the employe who accidentally meets with death in the employment. To accom- plish the beneficent purpose intended, the law should be given a broad, rather than a narrow, construction. "The judgment is affirmed." (b) Child as Actual Dependent. An important decision on the point whether a child over 18 years of age, who derived support from a parent, may be a dependent even though not physically or mentally incapacitated from earning, is that of the supreme court in State ex rel. Maryland Casualty Company vs. District Court of Ramsey County, 158 N. W. 798, 134 Minn. 131, July 14, 1916. The court found in favor of claimant. We quote the text: "Andrew Anderson was killed while in the employ of Thornton Brothers Company. Thornton Brothers Company was insured in the relator, Mary- land Casualty Company. Anderson left a widowed daughter, 30 years old, who, with her child of six years, lived with him. She regularly derived part of her support from his wages. She made claim under the compensation act and the court allowed it. Relator sued out this writ of certiorari to review the ruling. The question in the case is whether a daughter of 30, not physically or mentally incapacitated, and yet actually deriving support from her father, is entitled to the benefits of the compensation act. "The determination of this question turns on the construction of the various sub-sections of section 14, chapter 467, Laws 1913 (G. S. 1913, S. 8208), as amended by chapter 209, Laws 1915. The sub-sections of section 14 of the original act provide: ■'(1) That a wife, minor children under the age of eighteen years, or those over that age who are physically or mentally incapacitated from earning, shall be presumed to be wholly dependent. '(2') That the foregoing and also husband, mother, father, grand- mother, grandfather, sisters and brothers who were wholly supported by the deceased workman * * * shall be considered his actual depen- dents. '(3) Any dependents named in subdivision 2 who regularly derived part of their support from the wages of the deceased * ■* * shall be considered his partial dependents.' "It will be seen that under this act, while a brother of any age might be a total dependent, a daughter over 18 and not 'physically or mentally incapacitated from earning' could under no circumstances be either a total or partial dependent. Consistent with these provisions, it was provided in subdivision (18) that: 'In computing and paying compensation (in "ase of death) to 69 orphans or other children, in all cases, only those under eighteen years of age, or those over eighteen years of age who are physically or men- tally incapacitated from earning, shall be included.' "And section 34 (c)— (8230-c) provided that: 'A dependent child * * * shall be considered to mean an unmarried child under the age of eighteen years or one over that age, who is physically or mentally incapacitated from earning.' "The act of 1915, amended section 14 of the original act 'to read as follows' : "The amended subdivision 1 provides that the widow, unless voluntarily living apart from her husband, and minor children under 16, are conclu- sively presumed to be wholly dependent. "Subdivision 2 provides that: 'Children between sixteen and eighteen years of age, or those over eighteen, if physically or mentally incapacitated from earning, shall, prima facie, be considered dependent.' "Subdivision 3 provides that: 'Wife, child, husband, mother, father, grandmother, grandfather, sister, brother, mother-in-law and father-in-law, who were wholly sup- ported by the deceased workman * * * shall be considered his actual dependents,' "Subdivision 3 (a) provides that: 'Any member of a class named in subdivision (3), who regularly derived part of his support from the wages of * * * deceased work- man * * * shall be considered his partial dependent, and payment of compensation shall be made to such dependents in the order named.' "These amendatory sections in explicit terms bring within the scope of the act a 'chUd,' if wholly or in part supported by deceased, without the former limitation as to age or physical or mental incapacity. This covers the case of claimant. No doubt would be cast over her claim were it not for the fact that the language of the 1915 amendment leaves sub-section 18 and section 34 (c) unchanged. '*It will be seen then that there is conflict between the amended act, sub- sections 3 and 3 (a), and the unamended sub-section 18 and section 34 (c). Both the old and new provisions cannot be given full effect. "To aid us in arriving at the Intent of the legislature when it has used language that is not readily understood, or not easily harmonized, there are several recognized canons of construction. These are not arbitrary rules, but founded on reason and experience, which are to be resorted to only so far as they will give us aid. "The cardinal rule of statutory construction is that effect shall be given to the intention of the law-makers. Another rule, equally well recognized and somewhat more specific, is that it will be presumed that the legislature in adopting an amendment intended to make some change in the existing law. Thirty-six Cyc. 1165; People vs. Weinstock, 117 App. Div. 168, 102 N. Y. Supp. 349; City of Richmond vs. Sutherland, 114 Va. 688, 693, 77 S. E. 470. It seems reasonably clear that, when the legislature added the word 'child' to subdivision 3, they did not intend that this added word should be mean- ingless, but that, on the contrary, they intended just what they said; that is, that a 'child' should be included, with the other relatives mentioned, as one of those who, if supported by deceased, should be considered a dependent, and within the benefits of the act, and since there is no limitation as to age or capacity in the amended sub-section, and since those under 18 or incapacitated are already provided for in sub-sections 1 and 2, it would seem plain that the word 'child,' as used in sub-sections 3 and 3 (a), should not be limited. If there are other provisions in the old act that are incon- sistent with these provisions of the new, it would seem that, if they cannot be harmonized, the new should prevail as the latest expression of the legislative will. "Another rule of construction is that the history of the law, the condi- tion of the law prior to the amendment, the occasion, necessity and object 69% of the change, are important to be considered in arriving at the meaning of an ambiguous statute. Minn. & Pac. R. R. Co. vs. Sibley, 2 Minn. 13 (Gil. 1) ; Loper vs. State, 82 Minn. 71, 84 N. W., 650; State ex rel. vs. Fitzgerald, 117 Minn. 192, 134 N. W. 728. In this case these all point to the construction we have indicated as the true one. The beneficent purpose of this legisla- tion is well known. It should be construed liberally to the end that full effect may be given to this object. The manifest purpose of the addition of the word 'child' to 3 and 3 (a) was to relieve the statute of the incongruity of glvtog benefits to such as a brother and denying them to a daughter. If the word .'child' is eliminated from those sub-sections as they now stand, there will be the still more absurd inconsistency of including husband, father, grandfather, father-in-law, and still excluding a widowed daughter. The legislature could hardly have contemplated such a result. "Another rule is that, where two sections are so inconsistent that they cannot be reconciled, the one must stand which best conforms to the intent and policy of the statute, and where one section so conforms it is not to be rendered nugatory by an inconsistent provision, though found in a later sec- tion, which does not, and the latter will give way. McCormick vs. Village of West Duluth, 47 Minn. 272, 50 N. W. 128 ; State ex rel. vs. Bates, 96 Minn. 110, 104 N. W. 709, 113 Am. St. Rep. 612. Sub-sections 3 and 3 (a) best conform to the intent and policy of this act. "Another rule is that it is the duty of the court to so construe the statute as to give some effect to every portion of it if possible. Foster vs. Gage, 117 Minn. 499, 503, 136 N. W. 299. If this statute is construed as relator contends, while full effect is given to sub-section 18 and section 34 (c), the amended sub-sections 3 and 3 (a), so far as they add children to the list of eligible dependents, is rendered nugatory. If construed as respondent contends, effect is given to 3 and 3 (a) and some effect is given to 18. In fact, as so construed, sub-section 18 applies to the same sections as before the amendment took effect. "Relator contends that the fact that section 14 was amended 'to read as follows,' indicates an intention that that sub-section should stand in pari materia with the amendatory provisions of sub-sections 3 and 3 (a). We do not so understand the effect of this form of amendment. "A statute providing that a previous one shall be amended 'to read as follows' repeals everything contained in the old statute and not embodied in the new, and the new statute is to be construed, as to any action had after the amendment, as if the statute has been originally enacted in the amended form. State vs. Routh, 61 Minn. 205, 209, 63 N. W. 621; Rundlett vs City of St. Paul, 64 Minn. 223, 66 N. W., 967; Shadewald vs. Phillips, 72 Minn. 520, 75 N. W. 717; State ex rel. vs. Jones, 98 Minn. 6, 106 N. W. 963. That is, all the provisions of the old law which continue in force after the passage of the amendatory act derive their force thereafter, not from the original, but the amendatory act. I. Lewis Sutherland, Stat: Const. (2d Ed.). Sec. 237, (133); Huffman vs. Hall, 102 Cal. 26, 36 Pac. 417; Palmer vs. City of Danville, 166 111. 42, N. E. 629. "An amendment of a statute 'to read as follows' is not, however, to be construed as repealing and re-enacting that statute. Burwell vs. Tullis, 12 Minn. 572, 575 (Gil. 486, 495) I. Lewis Sutherland, State Const. (3d Ed.). Sec. 237 (133). The portions of the amended section which are merely copies without change are considered to have been the law all along. I. Louis Sutherland, State Const. (3d Ed.). Sec. 237 (133); 36 Cyc. 1165; Bar- rows vs. People's Gaslight Co. (C. C.> 75 Fed. 794; Elgin City Banking Co. vs. C. M. cS; St. P. Ry. Co., 160 111. App. 364. The new provisions are con- strued as enacted at the time the amendment took effect. Kerlinger vs. Barnes, 14 Minn. 521 (Gil. 398) ; Gaston vs. Merriam, 33 Minn. 271, 22 N. W. 614; St. Paul, M. & M. Ry. Co. vs. Broulette, 65 Minn. 367, 371, 67 N. W. 1010; McDougald vs. New York Life Ins. Co., 146 Fed. 674, 678, 77 C. C. A. 100; Ely vs. Holton, 15 N. Y. 595, 598. Except for these distinctions, an amendment which incorporates the old law is of no different effect from 70 one made in the form of an independent statute. Kerlinger vs. Barn6s, Supra; St. Paul, M. & M. Ry. Co. vs. Broulette, Supra. "We accordingly hold that under the compensation act as amended a widowed daughter of 30 deriving part of her support from her father is partially dependent on him, and entitled to receive compensation by virtue of the act, though she be not physically or mentally incapacitated, and that the decision of the court below allowing the claim of the claimant is right." (c) Status of Placed^out Child. An interesting discussion of what children are dependent is given in the decision of the supreme court in State ex rel. Varchmin vs. District Court of Ramsey County, June 9, 1916, 158 N. W. 250, 133 Minn. 265, when the court found that a child living in household of deceased at time of his death and subsequently adopted by the widow was not a dependent. The ruling follows: "Charles J. Varchmin was in the employ of the McMurray Company, a corporation. Both were subject to the Workmen's Compensation Act (Gen. St. 1913, sections 8195-8230). In October, 1913, Varchmin came to his death by accidental means, while engaged in the course of his employment. He left surviving him his widow but no child or children of his own. Some time prior to his death, decedent and his wife had taken a child, petitioner herein, from the state school for dependent children, as authorized and pro- vided for by section 4163, G. S.I 1913, with the intention of raising him as their own child. The child was not formally adopted by the decedent, and was at this time under three years of age. Subsequent to decedent's death, proceedings under the compensation statute resulted in an award to the widow in harmony with the terms of the statute. "Thereafter, in December, 1913, the widow, in appropriate proceedings under the statutes of the state, formally adopted the child, and under sec- tion 7156, G. S. 1913, he became her child and lawful heir. In September. 1915, the widow remarried and claim was then made on behalf of the child for the share of the compensation theretofore awarded to the widow, as provided for by subdivision 9, section 8208, G. S. 1913. The matter was duly submitted to the court below, upon the facts here stated, and, after hearing all interested parties, an order was made, denying the relief demanded. The matter was brought here for review on certiorari. "The only question presented is whether petitioner, the child, comes within the scope of subdivision 9 of section 8208, of the compensation statute, and is entitled to the allowance there provided for. We are of the opinion, and so hold, that the question should be answered in the negative. The sec- tion of the statute controlling the question provides as follows: 'In case of remarriage of a widow without children, she shall receive a lump sum settlement equal to one-half of the amount of the com- pensation remaining unpaid. In case of remarriage of a widow who has dependent children, the unpaid balance of compensation which would otherwise become due to her, shall be paid to such children.' "The terms of the statute are clear and fix the rights of widow and children upon the remarriage of the widow. If there be no children, the widow is entitled, on remarriage, to one-half the remaining unpaid compen- sation. If there be children, she must surrender all further right to com- pensation and the whole of the unpaid balance goes to the children. The contention here is that there is a child to whom this unpaid balance should go. It, therefore, becomes necessary to consider whether the petitioner comes within the statute. Subdivision (b), section 8230, provides that 'child,' or 'children,' as used in the compensation act shall 'include posthumous children, and all other children entitled by law to inherit as children of the deceased.' "We need not determine what children come within the statute in gen- eral, for we are here only concerned with the status of petitioner, though it may be remarked that the statute includes all children of the deceased, and other children who have legal claims to his support and the right to inherit in his estate. This might perhaps include children of his wife by a 71 former husband, or children taken into the family and formally adopted by deceased in his lifetime. But we are of the opinion that a child having no such relationship or status to the deceased does not come within the statute, and is not entitled to the allowance there provided for. The whole purpose of the compensation act was to make pecuniary provision for those having lawful claims upon the workman, particularly his widow and his children. The petitioner in the case at bar was not the child of the deceased, nor of the widow. She made him her child after the death of decedent, but that fact cannot bring him within the statute. The statute must be construed as having reference and application to conditions existing at the time of the death of the workman, and not to relationships created by the widow after his death. And though the statute might be construed to iBclude children of the widow by a former marriage, who at the time of his death were living with and dependent upon the workman for support, it cannot well be con- strued to include children coming into an adopted relationship to the widow after his death. We therefore hold that petitioner is not a child having such relation to decedent prior to and at the time of his death as to entitle him to the benefit of the statue in question. "Judgment affirmed." 3. PARENTS Since there is no presumption of dependency as in the case of wife and children, in the case of parents, many questions have arisen as to what constituted actual dependency. (a) Wholly Supported. An early decision in which the supreme court discussed many of the features entering into the question of whether parents were wholly sup- ported or not, is that of State ex rel. Splady, Albee & Smith Co. vs. District Court of Hennepin County et al , 151 N. W. 123, 128 Minn. 338, February 5, 1915. The opinion is: Anton Berg, son of the plaintiffs, was employed by the defendants as a carpenter. He fell on April 16th, and died of his injuries on April 25th. His wages were $24.00 per week, and out of that he paid to his parents for their support $50.00 to $60.00 a month. His father and mother were both invalids and incapacitated for work, the mother having been confined to her bed for six years previous to his death. A daughter lived at home, but simply paid her own board and other expenses, and did not contribute to the parents' support. Another daughter, Mrs. Ella Prince, lived with the parents, and was paid $4.00 a week for the housework and for nursing the father and mother, this sum being paid out of the moneys contributed to their support by Anton Berg. Held: That the parents were wholly dependent, that medical expenses of $200.00 and compensation at the rate of $8.40 per week should be awarded. The case was appealed to the supreme court upon the question ot whether or not the parents were wholly dependent* as held by the district court. The supreme court said on this point: "Section 8208, G. S. 1913, in subdivisions 1, 2 and 3, attempts to define those who shall be deemed 'wholly dependent,' 'actual dependents,' and 'partial dependents.' Subdivision 1 provides that the wife and minor chil- dren shall be presumed to be 'wholly dependent.' Subdivision 2 says that husband, mother, father, etc., who are 'wholly supported' by the workman at the time of his death, and for a reasonable period prior thereto, shall be considered his 'actual dependents.' Subdivision 3 provides that any dependents named in subdivision 2, who regularly derived 'part of their support' from the wages of the deceased workman, shall be considered his 'partial dependents.' Subdivision 12 provides that if the deceased employe leave no widow, children or husband, but does leave a parent or parents, either or both of whom are wholly dependent on the deceased, there shall be paid, it one parent, 25 per cent of the monthly wages of deceased, if both parents, 35 72 per cent thereof. Subdivision 15 provides that "partial dependents shall be entitled to receive only that proportion of the benefits provided for actual dependents which the average amount of wages regularly contributed by the deceased to such partial dependent at and for a reasonable time immediately prior to the injury bore to the total wage of the deceased during the same time." The facts which bear upon the question whether plaintiffs were "wholly supported" by deceased, "wholly dependent" upon him, or whether they derived but "part of their support" from his wages, were "partial depen- dents," are undisputed, and are as follows: "The father was an invalid, and since December 1, 1913, had been wholly incapacitated to contribute in any measure to the support of himself or the members of his family; the mother has been a helpless invalid for more than six years; an unmarried daughter made her home with plaintiffs and paid $4.00 per week for her board, room, etc., which was the cost of these accommodations; a married daughter and her child lived with plaintiffs from August, 1913, to April 16, 1914; during this time she did all the housework and cared for her invalid father and mother. Until December 1, 1913, she received $4.00 per veek in payment of her services. Since that date she performed them gratu- itously. The court found that the reasonable value of the services of this daughter was $4.00 per week over and above her board and that of her child." The question is whether these pratuitous services of the daughter for a few months, made the parents only "partially dependent" upon the son's support. It is clear that the only money the parents or family had for their support came from the son, Anton. He was the real head of the family, the bread winner. The daughter's services had been rendered for but a short time, and may well be considered a temporary help. We should give the provisions of the act a very liberal construction. It is rather difficult to understand on what theory the legislature makes its distinction between those who are "wholly dependent," and those who are but partially so. The criterion should be, as it seems to us, the amount of wages that the workman has contributed monthly to the dependent, rather than whether or not the latter had received some measure of support from other sources. But of course this is for the legislature to determine. It mav certainly be argued with some force that one who owns his home, or for whom others perform friendly services, is not, technically speaking, "wholly depen- dent" upon the cash received from the wages of the worker of the family. Nor is one who receives help from a charitable organization, or from neighbors. But we cannot suppose that the legislature intended that such a person should be considered only a "partial dependent." Giving the act a reasonable and liberal construction, our conclusion is that the trial court was justified in finding that plaintiffs were wholly dependent upon the deceased for their support. (b) Support Defined. One of the best definitions of the word "support," occurs in a district court decision, Joseph and Ida Tauer vs. M. A. Adams & Co., Brown county, July 24, 1915, Judge Olson. This was a case under the Workmen's Compensation Act of 1913. The only question at issue, and to be tried, was whether or not the claimants were actual dependents or partial dependents of the deceased, John H. Tauer, at the time of his death. All other facts in the case were conceded. The court found as follows: That the said deceased was twenty-one years of age and unmarried. That at the time of his death he was receiving wages of $21.00 per week. That he left surviving him his father and mother and some brothers and sisters, and that he had contributed $6.50 per week to the support of his parents. The court held that his parents were partial dependents and awarded compensation at the rate of $3.14 per week, for three hundred weeks, The court further says: 73 The one important undefined word in the law is the word 'support' That word Is used without qualification in the law. And when we come to consider it, the word is found to be somewhat elastic and to have several meanings. "It means more than the actual necessaries of life. It means mainte- nance, subsistence, or the support of an individual or family, or an Income sufficient for such purpose. In the case of children It includes the expense of a proper education. It may include all the necessaries, comforts and luxuries which a person in a given situation in life is accustomed, or entitled to enjoy. "So, whether or not a given income is used for support, depends upon whether or not it is used for maintaining the person supported in the posi- tion and situation of life which he occupies. Whether or not the income is used to provide thei comforts and necessaries of life which that person or family is in the habit of using or enjoying. Under ordinary circumstances snch Income could not be used for laying up a surplus, or for use in a busi- ness interprise. "The claimants have not disclosed what use was made of the $90.00 received from the deceased a little over a month before his death. The funeral expenses paid, however, amounted to some $200.00, and would more than absorb this sum and the $67.00 paid after the son's death. "It also appears that the father was able to and did contribute some support to his parents. The grandparents are within the class of partial dependents, and the fact that claimant contributed to them may well be taken into consideration. The support so given would seem to be a legiti- mate item of family expense. "I conclude that at the time of his death, and for a reasonable time immediately prior thereto, the deceased regularly contributed a part of his earnings to the support of his mother and father." (c) Value of Contribution. The Question often arises in cases of partial dependency whether the amount of contribution was sufficient to offset the value of the board and room received by the employe. This matter was before the supreme court in State ex rel. Ernest Fleckensitein Brewing Co. vs. District Court of Rice County, 159 N. W. 755, 134 Minn. 324. The court held that an admission made by the father on the witness stand "that the amounts contributed were not sufficient to pay for the son's keep," was damaging but not fatal since in conflict with other admitted facts. The opinion follows: "Two principal questions arise: First, was the death of deceased caused by accident. Second, if so, were his parents partially dependent upon him? The burden of proof is upon claimants as to both propositions. "Deceased was a boy of 17, in good health. He was about to test bottles of beer for defects or 'specks,' by subjecting them to electric light. A special testing apparatus was used for the purpose. In order to connect up the electric current he was obliged to utilize the wire of a drop light sus- pended from the ceiling, the. wire being covered by the usual insulating cord. At the end of the cord was the ordinary brass socket and light globe. This drop light was connected with the main wires in the ceiling above. There is evidence from which the court could find that the electric current was on and that the voltage was 110. The floor was of cement and there was water upon It. "Deceased started to detach the globe in order that he might adjust the socket to the testing machine. Another employe saw him when he 'went up — and took hold of the globe.' A few seconds afterwards he heard deceased shriek and looked over, and deceased was lying on the floor. He shouted 'help me," started to get up, fell again and died. When assistance came, he was lying on the floor with the cord under him. One witness said he 'had hold of the globe and the brass part.' He later modified this by saying, 'he seemed to have hold of it, because when I dragged It out, I dragged it clean out of the socket.' Another witness said that when they 74 pulled the cord out the cord slipped through his fingers. The cord and globe were produced In evidence In the trial court, but they are not before us. "We are furnished with no evidence as to the amount of electric current which will cause death, nor as to the voltage which, under the condition here found, would cause a current sufficient to cause a death-dealing volt to pass through a human body. A doctor was called to attend deceased, but the court has not been supplied with the information which he could have furnished. In these respects, the evidence is unsatisfactory. Still there are some things strongly suggestive of accidental death. Boys of 17 do not often drop dead from natural causes. This boy was handhng instrumentalities charged with electricity. Electric shock is a familiar cause of death. Some of the conditions found here, such, for example, as the wet cement floor, were quite conducive to the passage of electric cur- rent. Deceased must have been stricken at the moment he came In contact with the electric wire or socket. In view of the age and previous health of deceased, the manner in which he was engaged, and the manner of his death, we think there was sufficient evidence to sustain a finding that deceased did not die a natural death, but that he did die from accidental or external cause. "The next question is, were the parents of deceased partial dependents? This case arose under chapter 467, Laws 1913, and before the amendment of chapter 209, Laws of 1915. Under the 1913 act, parents 'who regularly derived part of their support from the wages of the deceased, were partial dependents, and were entitled to receive compensation in case of death. The test of dependency is not whether they could support life without the contributions of the deceased, but whether they regularly received from his wages part of their income or means of living. Deceased lived with his parents. The family at home consisted of father, mother, an Invalid daughter of 24, a daughter of 13 and one of 12, and the deceased. At the time of his death deceased was earning $7.50 a week. He paid the whole amount to his parents, and it was used for the family support. Spending money was handed out to him with much parsimony. He received next to none at all. He received his board and lodging along with members of his family. He also received his clothes. The father earned $18 a week. These two items, aggregating $25.50 a week, constituted the family Income, Besides paying ordinary living expenses, the family were saving to pay a $500 mortgage on the family home. If the evidence stopped here, it would hardly be disputed that the parents 'regularly derived part of their support from the wages of the deceased.' He contributed nearer one-third than one-quarter of the family fund, and from the evidence above referred to, it would appear highly improbable that his support subtracted from the family store as large a proportion as he contributed. "The only trouble arises from the fact that on cross-examination the father testified, in answer to questions of counsel, that the $7.50 his son earned was not sufficient to pay for his board and clothing. If such were the fact, in no proper sense could it be said that the parents regularly derived any part of their support from deceased, or that they were dependent upon him. The claim is now made that the father and mother are precluded as to this fact by this testimony of the father. "Ordinarily, where a party makes an admission upon the witness stand, and it is not in any manner qualified, his adversary may, with confidence, rest his case upon it. Such admissions are styled by Mr. Chamberlayne's 'informal judicial admisgions.' Where, however, the admission is qualified, or is inconsistent with other testimony of the same party, it is still evidence against him, but not conclusive. This is particularly true where the admis- sion is based on estimate or calculation. The admission in this case is of this character. It called for the estimate or calculation of the witness. It was made on the spur of the moment. It is quite apparent that the witness made no real calculation of the cost of his son's board and clothing. Other undisputed facts are out of harmony with this admission. The admission 75 was a damaging one, and the trial judge might have found in accordance with it, hut we are of the opinion that he was not hound to do so. "The court found that the parents 'are entitled to a minimum of $6.50 per week as provided by chapter 467, General Laws for 1913,' and judgment was rendered accordingly. The amount is erroneous. The minimum death benefit prescribed by the act of 1913 is $6.00 per week. This minimum w^ei have held applies to partial dependents. State ex rel. vs. District Court of Ramsey County, 156 N. W. 120. The trial court in fixing the amount evidently confused the provisions of the' 1913 act with those of the amenda- tory act of 1915, which fixed the minimum at $6.50 per week. The judgment must be modified so that recovery will be based on an allowance of $61,00 instead of $6.50 per week." (d) Income Loss the Test. In a district court case, L. C. Whiting and Emma Whiting vs. G4-eat Northern Power Company, St. Louis county, May 31, 1917, the court decided the parents were partially dependent even though their income was $175.00 per month. It held that the only question to be considered was whetlier there was an income loss. The ruling is: "That the 'plaintiffs herein are respectively the father and mother of said decedent, and were actually dependent upon and derived part of their support from the wages of decedent, and had regularly derived support from the wages of decedent for a reasonable period of time prior to his injjUry and death. That from the 4th day of June, 1915, up to and until the 4th day of June, 1916, the deceased contributed toward the support of plaintiffs the sum of $360.32, exclusive of all deductions for room and board and other living expenses. That during the month of May, 1916, and from then on until the time of his death, deceased was unable to do or perform work or services of any kind as the result of said injuries. "That the total income of plaintiffs for a reasonable period of time prior to the injury and death of decedent was $175.00 per month, and that the income loss sustained by plaintiffs as the result of the injury and death of deceased was and is $6.50! per week. "That prior to the death of deceased defendant paid as compensation for said injuries to deceased the sum of $31.25. "That plaintiffs actually paid and actually incurred an expense in excess of $100.00 for the necessary funeral expenses of deceased. "That plaintiffs are entitled to judgment against defendant for com- pensation to be paid for a period of not to exceed 300 weeks during' depen- dency of plaintiffs at the rate of $6.50 per week, commencing December 11, 1916, less the sum of $31.25 alreadj^ paid as compensation to deceased prior to his death; and, 22 weeks having expired since said December 11, 1916, and May 14, 1917, said plaintiffs are entitled to judgment against defendant in the sum of $143.00 as compensation due on May 7, 1917, less said sum of $31.25 or the sum of $111.75 compensation after said May 7. 1917, to be paid on the regular pay day of the defendant as near as may be; said plaintiffs are further entitled to judgment against defendant in the sum of $100.00 funeral expenses incurred by plaintiffs." (e) Reasonable Period. The only decision on the question of what constitutes a reasonable period of time before the accident during which the support must have been continued is unfortunately a district court decision, and the holding therefore cannot be taken as final. The case is that of Joseph and Virgie Lones vs. Otter" Tail Powder Company, Otter Tail county, October 29, 1918. The deceased employe had been at the work on which he was killed only three months, and while so employed had earned a higher rate than previ- ously and been contributing more to his parents. The judge held that it was necessary to go back over six months as a reasonable period and aver- age the amounts contributed during that period. With all due deference 76 to the learned trial court, we question whether under such circumstances it was necessary to take so long a period as a reasonable period. Hia find- ing was in part as follows: That plaintiffs are the parents of the said Wayne Lones; that at the date of his death, and for a long time prior thereto, plaintiffs were partial dependents of said deceased. That deceased was in defendant's employ for three months prior to his death, and contributed $50.00 per month during such period to the support of plaintiffs. That for the three months immediately prior to his said employment by the defendant, deceased earned wages averaging $50 per month, and during said period contributed $29 per month upon an average to plaintiff's support. That the average amount so contributed by deceased to the support of plaintiffs during said six months period immediately prior to his death, which is a reasonable period for the purpose of this finding, is $35 per month. 77 V. INJURIES 1. DISEASE OR INJURY A large number of cases arise in which disease is a factor in one way or another, either as existing before an injury and aggravating it, or as following the injury, or as existing independently of an injury and causing doubt whether the disability was due to the accident or to the morbid condition. The supreme court has ruled upon a number of important cases which presented the features mentioned. (a) Tuberoulosis Pre-existing. The court sustained a finding of compensation in the case of State ex rel. Jefferson et al. vs. District Court of Ramsey County, November 16, 1917, 164 N. W. 1012, 138 Minn. 334, where the injured man had had tuberculosis in an advanced state and the employer contended death had resulted from the disease rather than the injury. The ruling is: "This is a case under the Workmen's Compensation Law (Gen. St. 1913, Sec. 8195-8230). in which the district court of Ramsey county awarded com- pensation to Mary Ballauf, for the death of her husband, Joseph Ballauf. The question presented is whether the evidence is sufficient to sustain the finding of the court that the death of Joseph Ballauf was caused by injuries which he sustained while in the employ of the relator Jefferson. That he was crushed under a load of lumber and suffered several broken ribs and other lesser injuries, and that he was confined to his bed from that time until his death six weeks later, is conceded; but the relators contend that his death was caused solely by disease, and did not result in consequence of the injuries which he sustained. An autopsy disclosed that he had pulmonary tuberculosis in such an advanced stage that one lung had been entirely destroyed, and the other to a considerable extent; also that he was suffering from other diseases. "The relators called three physicians who testified that, in their opinion, his death was caused by pulmonary tuberculosis, and that the injuries which he sustained were not sufficient either to cause or hasten his death. The claimant called no physicians, but other witnesses testified that the deceased had worked continuously at hard labor until the accident, had apparently been in good health at all times theretofore, and had never been able to leave his bed thereafter. In view of all the circumstances, we are unable to say that it conclusively appears that the injuries sustained had no part in causing his death, nor that the trial court was concluded by the testimony of the experts. "The decision of the trial court is affirmed." (b) Rupture of Blood Vessel — When Compensable. Two fatal cases were passed upon by the supreme court in which rupture of a blood vessel was alleged to have resulted from accident. In both cases the court upheld an award of compensation. In the first of these cases the rupture is alleged to have been caused by muscular strain and exertion employed in propelling a wheel barrow. The title of the case is State ex rel. Puhlmann et al. vs. District Court of Brown County et al., May 18, 1917, 162 N. W. 678, 137 Minn. 30, the court ruled as follows: "One Ferdinand Berg was stricken with paralysis on September 15, 1915, while in the employ of the relators, in New Ulm, and died the nexlj day. The award under review was made to his widow. The court found: " 'That on said day, while engaged In his said employment, said Ferdinand Berg, while propelling a wheel barrow, loaded with certain mason's tools and appUances, along an alleyway in said city, going from one place of work to another, was suddenly stricken with severe pain and paralysis of the lower limbs and collapsed. That he was taken to his home 78 and there died from such stroke or attack on the next day. That the immediate cause of his collapse and death was thel sudden gmng way or rupture of some blood vessel in his body, with fatal result That the imme- diate cause of the breaking^ or rupture of such blood vessel was the muscu- lar strain and exertion employed by him in propelling said loaded wheel barrow.' . , i. "An important question, and logically the first one, is whether the finding that the cause of Berg's death was thq rupture of a blood vessel, and the further finding that the cause of such rupture was the muscular strain of exertion to which he was subjected in propelling the wheel barrow, are sustained by the evidence. "The evidence is meager. Berg, who was 59 years of age, was a mason's helper. About 8:00 o'clock in the morning he finished the work in which he was engaged, and started with his wheel barrow and! tools for another piece of work a short distance away. His wheel barrow was of iron and weighed some 80 pounds. His tools loaded on it, weighed perhaps 50 pounds. A block and one-half of the distance was up a steep grade. One block, and, as we infer from the testimony, the last one before he turned into the alley where he collapsed, was on a 1 to 11 grade. There is evidence that the alley was rough and full of 'chuckholes' or 'potholes.' The weather about this time had been rainy. At the time he was stricken he suffered severe pain. No autopsy was held. His physician, who reached him within a few minutes, was of the opinion that he sustained a hemorrhage or rupture of the spinal cord, and that his testimony supports the theory that it came from his exertion at the time. Other expert testimony supports It slightly. Taking the expert testimony in connection with the circumstances attending the death, we think the inferences of fact drawn by the court are sustained. "The court found that the rupture of the blood vessel, which resulted in the death of the deceased, was an accident arising out of and in the course of his employment within the meaning of the Workmen's Compensa- tion Act. Whether this finding is sustained is the remaining question. "The act provides for compensation to be paid by the employer 'in every case of personal injury or death of his employe, caused by accident, arising out of and in the course of employment,' etc. G. S. 1913, 8203. The word 'accident,' means 'an unexpected and unforeseen event happening suddenly and violently, with or without human fault and producing at the same time, injury to the physical structure of the body.' G. S. 1913, 8230 H. "That the death of the decedent occurred in the course of his employ- ment does not admit of question. The finding that it Is accidental and arose in the course of his employment is sustained. This is the effect of the authorities — cases cited." In State ex rel. Simmers et al. vs. District Court of Stearns County, June 29, 1917, 163 N. W. 667, 137 Minn. 318, the bursting of a blood Vessel was alleged to have resulted from a fall. The opinion is: "Defendants, Simmers & Campbell, are engaged in the business of quarrying, cutting and preparing granite stone for market at St. Cloud, in this state. Defendant insurance company is engaged in writing Indemnify- ing policies to employers for liability under the Workmen's Compensation Act, and during the time in question was the insurer of the employers. Simmers & Campbell. "January 26, 1916, Eric Larson, now deceased, was in the employ of Simmers & Campbell, at $13.50 per week, assisting in cutting and preparing granite stone for market, and both he and his employers were subject to the provisions of the Workmen's Compensation Act of this state. While so employed, and while at work in the course of his employment, the deceased on January 26th sustained a rupture of a blood vessel, which caused his immediate death. At the time of his death he left surviving him his widow and their five children, four of whom were minors under the age of 18 years, and who, with the plaintiff, were dependent upon deceased and his earnings for support at the time of his death. About those matters there is no controversy. 79 "After the death of her husband plaintiff notified defendants thereof, and of her claim that he came to his death by accident, when a dispute arose; defendants contending that deceased died of natural causes and not as a result of accident, and that therefore they were not liable. Plaintiff then brought this action to have that question determined, defendants appeared and answered, a hearing was had, with the result that the trial court found for the plaintiff, and, in effect, that deceased came to his death as a result of an accident, arising out of and in the course of his employ- ment, and that plaintiff was entitled to recover the amount of $34.72 per month for 300 weeks, and ordered judgment accordingly. J\idgment was entered, and defendants bring the case to this court by certiorari. (c) Rupture of Blood Vessel — When Not Compensable. In State ex rel. Rinker vs. District Court of Pennington County, 172 N, W. 311, 142 Minn. 420, the widow of the deceased workman contended that his death was due to a strain which brought on dilatation of the heart, while the insurance company maintained that the death was due to natural causes. The claimant relied upon the two previous decisions of the supreme court, but the court held that these cases presented stronger states of fact than the instant one and upheld the trial court in holding the case not to come under the compensation act. The opinion follows: "Certiorari to review a judgment rendered in favor of the defendant in a workmen's compensation proceeding. "Relator's husband, Adolph H. Rinker, a man 52 years old, was head miller for the Hanson-Barzen Milling Co. at the time of his death, December 29, 1916. In the forenoon of December 26, 1916, he and another man replaced the windows in the mill, removed some days before so as to freeze the flour bugs that had become troublesome. He also moved, on a two-wheel truck, a couple of rollers from the platform or door to a place 20 feet inside of the mill. These rollers were crated and weighed nearly 500 pounds. They were lifted from the ground to the platform. The evidence does not show how this was accomplished. Only one of the three persons who worked with Rinker that day was called to the witness stand. He was called by relator, and testified that Rinker did not help lift the crates to the plat- form; and that the only thing Rinker did was to move them with the truck, two men assisting by tilting the crates so that Rinker could easily shove the nose of the truck under. "Between 11:00 and 12:00 o'clock Rinker put on his overcoat and went home. On reaching home he looked stunned, pale and nervous, according to relator's testimony. She was not permitted to state what hei said. He stayed home that afternoon, at tunes lying down. He did not rest weVl during the night. The next morning about 9:00 o'clock he went to the mill, but returned within two hours, looking pale and exhausted. He tele- phoned for Dr. Helber, who cam6 and attended him. He continued nervous and restless, and at times showed distressed breathing. He was unable to remain in the same position any length of time, frequently changing, now lying down, now sitting or walking. At 5:00 o'clock, on the 29th, he col- lapsed suddenly and died just as the doctor arrived. The death certificate gave acute dilatation of the heart as the cause. There is some dispute as to whether the attending physician added the words, 'caused by violent exercise,' which now appears in red ink upon the- certificate filed with the board of health. "In April, 1917, relator caused a post mortem to be made upon the body, which had been kept in the vault of the cemetery. This was done without notice or opportunity to defendant to be present. The physlciana who made the post mortem gave dilatation of the heart as the cause of death, and said that the muscles or tissues of the heart had given way or ruptured. They also expressed the opinion that this could have been brought about by great exertion or strain, a few days before the actual collapse came. Relator testified that prior to December 26th her husband had always enjoyed good health. In this she was corroborated by neighbors. He had worked for the milling company for upwar"!" of ten years. 80 "The chief attack is upon this vital finding, viz: , ^. , " 'That the evidence fail^ to prove that said Adolph H. Rmker came to his death as the result of an accident arising out of and in! the course of the deceased -workman's employment.' "Before compensation could he awarded, relator must establish the very fact which the court find^ the evidence fails to prove. The findings are not as direct as might be desired, but must be taken to be of the same effect as if it had stated that Rinfcer's death was not the result of an accident arising out of or in the course of the employment. How, on certiorari, the findings in proceedings under the Workmen's Compensation Act (Gen. St. 1913, c. 84A) are to be treated by this court was considered and determined in State ex rel. Niessen vs. District Court, 172 N. W. 133 (filed May 2, 1919). The findings are not conclusive but are here reviewed for the purpose of determining whether they are supported by sufficient competent evidence. And the rule guiding us is that if an impartial consideration of the evidence together with all reasonable and fair inferences will lead reasonable minds to but one conclusion, and that conclusion is the opposite of the one made by the trial court, the finding should be set aside. If the, record so shows, we have a case where this court may say an error of law permeates the judgment necessitating a reversal. "Tested by this rule, the finding mentioned must be sustained. It is true, acute dilatation of the heart is an 'accident' within the definition of the compensation act, in that it produces at the time 'injury to the physical structure of the body,' the muscles of the heart being ruptured. It is also often 'an unexpected or unforeseen event, happening suddenly and violently.' Section 8230, G. S. 1913, subdivision h. We have stated the facts and testi- mony which are favorable to the contentions of relator, and to that we may add that Dr. Farr testified that Mr. Rinker came to the' witness' soft drink parlor, in the forenoon of some day near Christmas, and said he did not feel good and inquired for a bottle of beer or brandy, and in the conversa- tion remarked that he got hurt, but did not say how, where or when. "On the other hand, inferences tending to sustain the learned trial court's finding may be drawn from the fact that the one man who worked with Mr. Rinker, both in replacing the windows and moving the rollers, testified that nothing occurred of a nature to produce a strain, nor was there over-exertion, or violent exercise on the part of Mr. Rinker; that a 12-year- old boy could easily do the trucking Rinker did; that only about ten win- dows were replaced; and the work involved no particular effort. Further- more, Mr. Rinker complained neither to this companion, nor to Mr. Barzen, an officer of the milling company whom he saw on the 27th, of any hurt received in his work. Mr. Barzen said that when Rinker returned to the mill that morning he stated that 'after a nice night's rest and a good brea,kfast,' he started for the mill, and felt fine until reaching the top of the hill, when he developed further pain in his. chest. "If something in the course of his work had happened to make this previously strong and healthy man call his doctor and, experience the con- dition he related to his employer, not to mention the conditions described by relator, we should expect him to refer to it. The officers of the( com- pany deny that in the telephone communications, or in any other talk, relator, or the doctor, ever stated anything concerning Mr. Rinker's receiv- ing a strain or hurt in his work. The court below could also give credence to the opinion Dr. Gambell gave, that had acute dilatation or rupture of the heart muscles occurred during his work Rinker would have collapsed at once. There are sudden deaths of apparently robust persons from what is commonly called heart failure where previous premonitions are as insig- nificant as here, and where no primary contributing cause can be assigned except by way of conjecture. Shortly before Mr. Rinker expired, he was sitting up playing solitaire. The doctor who was called on the 27th of December thought a few days' rest would restore Rinker to his usual health. In the absence of any testimony pointing to something in the work (which Mr, Rinker was doing on the 26th or previously, as an adequate cause for 81 the rupture of the heart muscles and consequent death, we see no way by which, under the rule stated, the finding mentioned should be held by us perverse or unsustained. "Relator relies upon Puhlmann vs. Brown Co., district court, 137 Minn. 30, 162 N. W. 678, and Simmers vs. Stearns Co., district court, 137 Minn. 318, 163 N, W. 667. The cases are similar in that the injury was to Bome internal organ, a blood vessel, and might have been caused by some strain in the work. But in both cases the court below found in favor of the depen- dents, and this court sustained the findings. It is quite a different proposi- tion to reverse the findings. We may add also that in both the evidence as to the connection between the ruptured or affected organ and the strain of the work of the employe was much more palpable than in the instant case. "The Bourt did not err in excluding what Mr. Rinker stated to his wife, concerning the cause of his not feeling well, when he returned from the mill. She comes clearly within the statute prohibiting persons interested to give conversations had with one since deceased. "It was error to admit the testimony of what Dr. Gambell found when called to treat Mr. Rinker, some' months before his death. But we do not see how the testimony received could have influenced the court in any degree on the finding here questioned. And the learned trial attorney for relator seems to place little faith in a reversal upon that ground. "We are constrained to affirm the judgment." (d) Nephritis Following Fall. Another supreme court case is that of State ex rel. Maryland Casualty Co. vs. District Court of Hennepin County, |(L.e Baron vs. Curtis Hotel Co.), 167 N. W. 1039, 140 Minn. 216. The trial court had found that acute nephritis had developed from a fall sustained by the employe. The supreme court held that the findings of fact were justified by the evidence. The ruling is as follows : "This is a proceeding under section 8225, General Statutes, to determine what compensation, if any, George O. Le Baron, now deceased, was entitled to under chapter 84A of the statute for Injuries sustained by accident on January 3, 1917. "The cause was tried to the court in July. Within two days after the trial was completed, and before the decision was filed, Le Baron died, and his widow was substituted as plaintiff. In its decision the court found that on January 3, 1917, and for several years prior thereto, Le Baron had. been in the employ of the defendant as night watchman at its apartment house; that on that day, while at work in the course of his employment, carrying some letters from the desk in the apartment house to the mail box on the sidewalk, Le Baron slipped on the topmost step of a flight of six stone steps leading from the apartment and fell to the sidewalk, a distance of several feet, thereby accidentally injuring his left knee, hip and back; that imme- diately thereafter he felt considerable pain in his knee, and a dull pain in his back in the region of his kidneys, which continued to the time of the trial; that the injuries from the fall caused a gradual impairment of his health, and that acute nephritis developed from such injuries; resulting in his permanent total disability — and ordered judgment for the plaintiff. The ease was brought to this court for review by certiorari. "The defendant contends that the findings of fact made by the trial court are not justified by the evidence, and that the court erred in its rulings on the admissibility of evidence to the prejudice of defendant. "It appears from the record that decedent, prior to the trial, was, by order of the court, required to submit to an examination by a physician other than one of his own choosing. After making such an examination the physician was called and testified as a witness on behalf of defendant, to the effect that he examined the decedent on June 27th, for the purpose of learning his trouble and the cause thereof, and that after so doing he waa of the opinion that the man was not suffering from acute Bright's: disease, or nephritis, but that he had chronic Bright's disease, and that he did not 82 think the accident had anything to do with causing it; that he found hm in such a state that he did not think that the disease could have developed since January 3d; that he must have had it before. "Defendant insists that the doctor, having been appointed by the court, was practically speaking as an officer of the court, and that, while the court was not bound by his opinion, yet it was bound by his testimony, unless there was some judicial reason for disregarding it and substituting the opinion of another physician of equal standing and ability. We are unable to agree with counsel in this contention. The testimony is conflicting as to decedent's trouble and the cause thereof. Two qualified witnesses testified as physicians on the part of the defendant, and one on the part of plaintiff, and their testimony materially differed as to the probable cause of decedent's trouble. Dr. Reginald Piatt also testified along the same line. He is a graduate of the American School of Osteopathy at Kirksville, Mo., and duly licensed to practice osteopathy in this state and had practiced his profession for some six or seven years. He had attended and treated dece- dent from March 12th to the time of the trial, and was competent to testify. What disease decedent was suffering from and the probable cause thereof, were under the evidence, questions of fact for the court, and the findings thereon have the force and effect of the verdict of a jury. The court, having had the witnesses before it and having heard all the testimony, found the facts in favor of respondent, and, as the inferences necessary to such find- ings are justified by the evidence, these findings should not be disturbed. "The following questions were asked Dr. Piatt: " 'Q. Doctor, from that state of facts, and from the examination you have made, and from your knowledge of the case, are you able to give an opinion as to the probable cause of the acute nephritis from which Mr. Le Baron is now suffering? (This question was objected to 'as incompetent, irrelevant, immaterial, calling for the conclusion of the witness, who isn't qualified to testify as an expert on this subject, and on the further ground that the statement isn't a full statement of the evidence.' The objection was overruled.) " 'A. I consider that I have an opinion as to the probable cause of his present condition. Q. You may state it. A. From the history of the fall and the condition that I found existing in the area through (which) the nerve supply to the kidney and to the suprarenal gland is derived, it is my fixed opinion that his present condition is the result of a traumatic injury to the tenth, eleventh and twelfth thoracic segments of the spine and to the contiguous tissues.' "It is urged that the question assumes as a fact the existence of acute nephritis, which was the main issue upon the trial. While this assumption is clear, and the question, for that reason, in bad form, yet the objection does not cover this phase of the question, and the answer given was not prejudicial to the rights of the defendant. It was based upon the history of the case, the fall, and the condition which the witness found existing with the decedent, without any apparent thought of the objectionable part of the question. "We have considered all of the other objections stated and the rulings thereon, and find no prejudicial error. "The order of the trial court is affirmed." (e) Pneumonia Following Accident. The above reasoning of the supreme court was followed in the district court case of Mary Tallon vs. Superior Iron Mining Company, St. Louis county, January 22, 1920. Judge Freeman ruled, in part, as follows: That oh the 21st day of October, 1917, Henry Tallon received a severe injury to his left leg, due to an accident arising out of and in the course of his employment, and that said injury consisted of a compound fracture o£ the femur bone, just above the knee joint. That as a result of said injury, the employe, Henry Tallon, was com- pelled to stay in the hospital until December 24, 1917; that at the time he left the hospital h° was in a very weakened condition, and that the 83 injury to his left leg had not entirely healed. That after leaving the hos- pital, with the aid of crutches, he was able to get around with difficulty, but was unable to do any work except for a period of about ten (10) or twelve (12) days when he worked as bailiff at the court house in the village of Hibbing during the month of February, 1918. That at the time of his injury, and for a long time prior thereto, he had been suffering with chronic bronchitis and asthma. That on or about March 30, 1918, the employe, Henry Tallon, contracted a cold while at the city of Virginia, St. Louis county, Minn.; that this cold aggravated the chronic condition of the bronchitis and asthma, and that as a result of the cold the employe was compelled to go to bed, and from that time gradually became weaker and weaker until finally on or about April 17th terminal pneumonia set in and the employe died as a result thereof on April 18, 1918. That at the time he contracted the cold, on or about March 20, 1918, the employe, Henry Tallon, was still in a weakened condition as a result of the injury sustained by him on October 21, 1917, and that by reason of his weakened condition, he was unable to successfully combat the cold and bronchitis and asthma. That but for such weakened condition, he would in all probability have recovered from such attack. That the acci- dent of October 21, 1917, and the resulting injuries to the deceased, was a cause directly contributing to his death on April 18, 1918. That during the lifetime of said employe following the accident of Octo- ber 21, 1917, the employer company paid to said employe as compensation for said injury, the sum of two hundred forty dollars ($240.00). As a conclusion of law, the court finds: "That Mary Tallon, the dependent widow of said employe, is entitled to receive compensation from the employer at the rate of $11 per week for three hundred (300) weeks, and there is now due and payable on account of said compensation, one thousand thirty-six dollars ($1,036.00), being the amount accrued from October 28, 1917, to January 20, 1920; being a period of one hundred sixteen (116) weeks, less the sum of two hundred forty dollars ($240.00) paid during the lifetime of the deceased employe, and that the said employer continue to pay to the said Mary Tallon the sum of $11 per week, not exceeding the further period of one hundred eighty-four (184) weeks, together with her costs and disbursements herein. (f) Diabetes Following Injury. In the district court case of Andrew Peterson vs. E. C. Ramstad, Henne- pin county, August 2'8, 1917, the court found that diabetes was a result of the injury and awarded compensation. The findings, in part, are: "That on August 25, 1915, plaintiff was and prior thereto had been in the employ of defendant as a carpenter, and in the course of said employ- ment, and on said day fell with a scaffolding upon which he was working and thereby accidentally received Injuries from which he still suffers and continues to be partially disabled. "That ever since receiving said injuries, plaintiff has suffered from pains in his back and right side, and developed an active case of diabetes as the direct consequence of said injuries. "That as the direct and proximate result of said injuries plaintiff was wholly disabled up to the 25th of August, 1916, and since said last named date plaintiff has been and still is incapacitated by said injuries to the extent of 50 per cent of his ordinary ability and earning capacity." (g) Diphtheria Complicating Disability. In Valentine Johnson vs. E. H. Erickson, June 14, 1918, Hennepin county, a peculiar question was faced because of the fact that the employe had contracted diphtheria five days after the injury, and, of course, the disability due to the disease was concurrent with that due to the accident. Judge Jelley solved the problem by allowing compensation for the period that such an injury would ordinarily disable the man. 84 (h) Zanthoma Tuberosum. In William H. Green vs. Powers Mercantile Co. and the Travelers Insur- ance Co., Hennepin county, June 25, 1918, compensation was sought for disability said to be due to contusions and bruises at the base of the left thumb. A neutral physician was appointed, and in accordance with his report. Judge Molyneaux found that the disability was due to disease. The ruling, in part, follows: "That the court further finds that the disability to the aforesaid ■William II. Green is due entirely to zanthoma tuherosum, a systemic disease very rare In its character and developing a multiple of subcutaneous tumors, and that such condition and disability of the aforesaid William H. Green is not the result of and does not arise from any accidental injury. "As conclusion of law, the court finds that the plaintiff herein Is dis- abled on account of disease, and that he has no claim for compensation under the provisions of the Minnesota law, and that his condition is not due to accidental injury within the intent of such law, which reads, in part, as follows: " 'The word "accident," as used in the phrases, "personal injuries due to the accident," or "injuries or death caused by accident" in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time injury to the physi- cal structure of the body.' "The court finds that plaintiff take nothing herein and that judgment be entered in this case for the defendant." (i) Arterlo-Sclerosis. Compensation was claimed for a slight contusion in the case of Feodor Petrowich vs. Minneapolis Gas Light Co., Hennepin county, April 28, 1919, but the finding of the court was that disability was really due to arterio- sclerosis. The opinion of Judge Hale is as follows: "That upon said 26th day of November, 1917, while shoveling ashes away from the railroad rails upon a trestle upon the defendant's premises, he received some injury to the lower part of his back, the exact nature of which does not appear from the evidence; that upon said day he quit work and thereafter went to Asbury hospital and remained for eight days when he returned to his home; that he was treated by physicians while he was in the hospital, and has had since his release from the hospital several medical examinations by reputable physicians; that the defendant, through its insurer, the Ocean Accident & Guarantee Corporation Ltd., paid to the plain- tiff between the date of his accident and November 8, 1918, fifty-one weeks' compensation at $11.55 per week, or a total of $589.05, and that the defendant by its said insurer paid hospital and medical expenses for and on behalf of the plaintiff in the sum of $174.70 during said period. "That the plaintiff is and was at the time of his accident suffering from an advanced stage of arterio-sclerosis, enlargement of the heart and aorta and valvular heart disease, which condition is progressive in character and not the result of the injury which he sustained. "That the injury which he received at the plant of the defendant was slight in character, consisting of a contusion upon his back. "The court finds as conclusions of law, that the plaintiff has been duly compensated for the injury sustained at the plant of his employer, and that he is entitled to no further compensation; that plaintiff has had full medical relief, and that the defendant is entitled to judgment in this action." (j) Headaches Following Injury. Another complicated case was that of Louis Motzko vs. E. I. DuPont de Nemours & Co., St. Louis county, March 29, 1919. Judge Hughes found that the accident could hot have caused the disability which was claimed. In an interesting memorandum which he appended to the findings he discusses the case as follows: 85 "The employe is a young man 23 years oE age. The injury which he received was quite a violent one, but apparently one that rendered no serious injury to any part of employe's body excepting the cut on the nose. The employe complains of headaches in the frontal sinous region, which head- aches he claims are aggravated when he is in the cold. He also complains of a soreness in the region of the tonsUs. "Dr. Adams, who attended him, testified that the employe would be able to resume his usual employment on the 18th day of October, 1918, or four- teen days after the injury. The employe was examined by Dr. L. W. Mors- man, an eye, ear and nose and throat specialist, at the time of the hearing, and the only thing which the doctor was able to find which would tend to explain the headaches which the employe claims to suffer of were a deviated septum in the nose and infected tonsils. "The court required that the employe be examined by Dr. John A. Winter, of Duluth, Minn., a neutral physician, and he also finds that the only evidence of any abnormal condition from which the headaches might arise is a deviated septum and infected tonsils. It appears to be the opinion of Dr. Winter that the employe's principal trouble is from his tonsils. "Neither of the physicians who examined him would state that the deviated septum or the infected tonsils is a result of the injury, and there is no other testimony from which the court could so find. The burden Is upon the employe to prove those things, and that burden has not been met. "Dr. Tuohey, likewise a neutral physician, made a general examination of the physical condition of the employe, the result of which was negative. "Under all of the circumstances presented there can be no finding that the employe is now suffering of anything which was a result of said injury." (k) Goitre. In the case of Jesse Lockwood vs. Globe Indemnity Company, Hennepin county, April 10, 1917, the court found the disability due to goitre and not to the effects of the injury, and compensation was rel'used. (I) Trachoma. A finding that disability was due to trachoma and not to the entrance of foreign matter into the eye in the course of employment was made by Judge Hughes in the district court case of Mike Churchich vs. Oliver Iron Mining Co., August 11, 1919. The ruling, in part, was: "That on the 7th day of December, 1918, the above named employe, Mike Churchich, was in the employ of the employer as a miner in the said Shiras mine, and that while attempting to remove a portion of the back of a drift in said mine for the purpose of placing timbers therein, a small chunk o£ iron ore of about the size of an egg dropped from the back of said drift and struck the employe at the outer edge of the right eye, causing some irritation to the lids of said eye; that at said time the said employe was suffering of a disease known as trachoma, and that the injury to the eye by the fall of the piece of iron ore in no manner caused the condition of trachoma in said eye. That trachoma is a disease which is only transmitted by introducing the discharge of some substance from an affected eye into another eye, and not by injury. That the injury to the lids of said eye caused by the falling lump of ore may have hastened the progress of the trachoma in said eye, but there is nothing in the evidence from which a finding may be made as to what extent the progress of such disease was caused by such injury. That the said eye now is practically totally blind, and that the employe's other eye is now affected with trachoma. That subsequent to said injury and on the 21st of December, 1918, while the employe was still in the employe of the employer at said mine, employe was injured by a caveln of rock and iron ore in the drift in which he was working, which injured employe's back on the right side thereof, and which disabled him from doing any work for the period of four months thereafter. That said injury to employe's back arose out of and in the course of his employment with the employer, and while both he and the employer were subject to the provisions of the Workmen's Compensation Law, so-called, and that the employer has at all 86 times had full notice and knowledge of said injury to said employes back. That at the time of said Injury employe was earning and receiving as wages from the employer the sum of $5,875 per day. That the employer has neg- lected and refused to pay employe for the disability resulting from the said Injury to his back. .j., •, ^ As conclusions of law, that the employe is entitled to recover from the employer compensation for the injury to his back beginning on the 28th day of December, 1918, at the rate of twelve dollars ($12.00) per week for fifteen (15) weeks, and for ten dollars ($10.00) statutory costs, and five dollars ($5.00) for examination fee of Dr. L. W. Morsman, which employer in open court consented to pay, and tor the witness fees of Dr. L. W. Morsman, which employer in open court consented to pay. Let judgment be entered accordingly. (m) Asthmatic Condition Pre-existing. In the case of John Anderson vs. Travelers Ins. Co., Hennepin county, March 7, 1917, the court took into consideration the fact that the diseased condition of long continuance complicated the disability. The decision was: "That upon submission of tlie report of the aforesaid neutral physician, the court finds that the aforesaid John Anderson is at this time totally dis- abled; that he is 74 years of age; that there is existing at this time a pleural condition which interferes with breathing and that this condition is due, in part, to the accident which the said John Anderson sustained on or about June 25, 1915, as a result of a fractured rib puncturing the lung. "That from the history of the said John Anderson, he was able to do light work, and had done work as a mill sweeper for a period of two years previous to the accident and injury of June 25, 1915, with the exception of a 'lay off' of about eight months, which was not due to physical inability to work. "That there is a history in this case of an asthmatic condition existing for about ten years, and that the injury received to the lung on account of the accident of June 25, 1915, is aggravated by such asthmatic condition. "That at this time there is some pain in the left foot accompanied with swelling, such condition being due to the injury to some extent, but partic- ularly to poor circulation on account of advanced age. "That on account of previous physical condition and advanced age this man has not made the recovery which a younger man would. "That under the provisions of chapter 467, General Laws of Minnesota, 1913, and amendatory acts, the court as a conclusion of law finds that the aforesaid John Anderson is entitled to and shall receive compensation from the Travelers Insurance Company at the rate of $6.60 per wesk for the full period of 130 weeks." 2. INFECTED INJURIES It is a well settled principle that when an injury is aggravated through infection setting in the entire disability so caused is compensable. How- ever, quite a few cases have arisen in which the connection of the infection with an injury or with an injury in course of employment is disputed. (a) Scratch Proving Fatal. In the case of State ex rel. Albert Dickinson Company et ai. vs. District Court of Hennepin County et al., December 14, 1917, 165 N. W. 478, 139 Minn. 30, a scratch had resulted in blood poisoning and terminated fatally. The employer disputed that this had arisen in the course of employment, and carried the matter to the supreme court. The opinion there handed down is; "On April 3, 1916, Robert G. Rackman was employed by the Albert Dickinson Company loading and unloading bags into and from box cars. He quit at 9:03 P. M. He lived some distance away. It took 20 minutes or longer to go on a street car to his home. He arrived home at about 9:30 P. M. When he arrived home he had a scratch on one hand. It was about 87 half an inch long and not very deep, but the skin was 'torn very badly.' and it had been 'bleeding quite badly.' He had wrapped it in a piece ot liandkerchief. This was bloody. The blood was hard. Witnesses say it looked as though the scratch was about two hours old. Deceased had no scratch when he left home in the morning. Men engaged in his line of work often receive scratches upon their hands, sometimes from nails inside of the cars. Deceased worked April 4th and 5th. On the evening of the 5th his finger was much swollen. Blood poisoning had set in. A doctor was called. Deceased was later removed to a hospital. He died a week later. There is in evidence a copy of a letter, dated April 28, 1916, written by the Dickinson company to a representative of the casualty company in which the company carried insurance which contains the following: " 'In regard to the case of Robert I. Rackman, will advise that our superintendent, Mr. Brown, interviewed all the workmen here in the plant, and found only one man that knew anything about R. I. Rackman being injured. We will forward you his signed statement as soon as he returns to work.' "The trial court found that the death of deceased resulted from this scratch, and that the injury arose out of and in the course of his employment. The principal question in the case is, whether the evidence sustains this finding. "The evidence is quite satisfactory that the blood poisoning and the ensuing death were the result of the scratch. The medical testimony is to that effect and the sequence of events leave very little doubt on that point. "That the scratch wag received while he was engaged in his employ- ment is not so clear. There was no direct evidence that the scratch was so received. We think, however, the evidence is sufficient. The fact that deceased had no scratch when he left home in the morning and had one when he came home from work, that he must have come home immediately, for he was home within half an hour of the time he quit work, that the scratch had blood upon it which had hardened, indicating that the scratch had been received earlier than the time he quit work, that it was such a scratch as he was not likely to receive on a trip from his work to his home, and such a scratch as he might well have received while at work, these facts, taken in connection with the letter above quoted, which is of some force as an admission, were such that the court might infer that the scratch was received while deceased was in the course of his usual work and that it arose out of it. "Fleet vs. B. H. Johnson & Sons, 1913, W. C. & Ins. Rep. 149, was a similar case and a similar result was reached; Blaess vs. Dolph (Mich.) 161 N. W. 885, was not dissimilar. Some testimony was received 'subject to objection.' No final ruling on the objection was ever made or requested. The question of the admissibility of this evidence is accordingly not pre- sented by this appeal. Herrick vs. Morrill, 37 Minn. 250, 33 N. W. 849, 5 Am. St. Rep. 841; Ritser vs. Bobo, 39 Minn. 18, 38 N. W. 609; Stitt vs. Rat. Portage Lumber Co., 98 Minn. 52, 104 N. W. 561; Gourd vs. County of Mor- rison, 118 Minn. 294, 136 N. W. 874; Grannls vs. Hitchcock, 118 Minn. 462, 137 N. W. 186. Order affirmed." (b) Venereal Infection. Previous presence of venereal infection was alleged in State ex rel. Adriatic IVlining Comping vs. District Court of St. Louis County et al., 163 N. W. 755, 137 Minn. 435. The supreme court sustained the findings for the injured man in the following opinion: "The facts as disclosed by the findings of the trial court are substan- tially as follows: "Relator owns and operates an iron mine at or near Biwabik, St. Louis Bounty, this state, and at the time here in question, March 4, 1915, the work- man to whom compensation was awarded was in its employ as a miner in and about the mine. While engaged in the discharge of his duties and in breaking up a large chunk of iron ore with a hammer, a particle of the ore flew into his left eye, cutting through the cornea thereof, imbedding 88 itself in the eyeball. A fellow workman removed the particle from the ey« at the time, using in his efforts in that respect a match and handkerchief. The eye was immediately thereafter washed In water from a trough which was used daily by other miners for the purpose of washing their hands and faces. When the particle had been removed from the eye, blood and watery matter was discharged from the eye, which became inflamed and thereafter a gonorrheal infection set in, and resulted finally in the loss of the sight of the eye. Prior to the injury the eye was normal and the workman experi- enced no trouble or pain therefrom. The court found that: "The 'said gonorrheal infection was introduced into the said eye * * * either at the time said particle of ore was being removed, * * * or while said eye was being washed by the employe, or the same resulted from latent gonococci germs in said eye, which by reason of the injury to the eyb, * * * caused subsequent inflammation and ulcer and resulting sore tissue.' "The court further found that the injury arose out of and in the course of the employment and other necessary facts, and ordered judgment for the compensation provided for by the statute in such cases. "The only question presented by the assignments of error is whether the findings of the trial court are sustained by the evidence. We answer the question in the affirmative. "The evidence is clear that the workman received some sort of an injury to his eye in the manner stated by him, the precise character of which is in dispute. There is no dispute, however, about the fact that gonorrheal infection set in soon after the time of the Injury and thereafter progressed to such an extent that the sight of the eye was totally destroyed. And there can be no serious doubt that the facts as claimed by the workman disclose an accidental injury within the meaning of the compensation statute. And this, whether the gonorrheal infection resulted from the use of a soiled handkerchief in removing the particle from the eye, or from washing the eye with water from the trough which was used indiscriminately by the miners, or from a latent germ within the eye set in motion and made active by the violence of the injury to the eyeball. Miller vs. St. Paul City Ry. Co. 66 Minn. 192, 68 N. W. 862; Gardner vs. United Surety Co., 110 Minn. 291, 125 N. W. 164, 26 L. R. A. (N. S.) 1004; 4 Bunnell's Dig. 4871a; Cline vs. Stude- baker Co., 185 Mich. 514, 155 N. W. .519, L. R. A. 1916c, 1139; Sullivan vs. Modern Brotherhood of Am., 167 Mich. 524, 133 N. W. 486, 42 L. R. A. (N. S.) 140 Ann Cas. 1913a, 1116, and authorities there cited. In disposing of the question in proceedings of this kind, whether the findings of the trial court are sustained by the evidence, we apply the rule applicable generally to civil actions to the effect that the findings of a trial court will not be disturbed unless manifestly against the clear preponderance of the evidence. Our examination of the record will not justify that conclusion, and we therefore sustain the findings of the trial court. "It is contended by relator with some earnestness that the weight of the testimony conclusively shows that there was in fact no injury to the workman's eye of a character to permit extraneous infection of that organ in the manner claimed by him or otherwise, and further, that at the time of the alleged injury there was present in the eye an active gonorrheal infec- tion, not latent, but alive and in motion, which ultimately destroyed the eye, a condition for which the injury, whatever it may have been, was in no way responsible. We do not concur in the contention that the evidence is conclusive upon the point, though there is some evidence tending to estab- lish the same. "But, taken as a whole, the evidence resolved the question into one ot fact. In this connection much stress is laid upon the testimony of one of the medical experts who treated the eye about two hours after the injury, and who testified that there was then pus discharge which could not have formed from an infection occurring only two hours before. The premise may be conceded, for it seems entirely impossible that a pus formation could appear in so short a time. But the doctor may have been mistaken as to 89 the character of the discharge. He testified that he did not examine it carefully, and this, together with other testimony tending to show that there was a discharge from the wound, of a bloodyi and watery chE^racter, leads us to the conclusion that the trial court properly solved the point on the theory that the character of the pus discovered by the doctor was not clearly shown to be such as might come from a gonorrheal ulcer. It was further shown, and in this respect there was no dispute, that the workman was not at the time afflicted with the disease. Nor was there any showing that he had been so afflicted at any prior time. "In this view of the evidence the cause of the infection is not left to conjecture or speculation, any further than a doubt as to which of three possible causes was responsible therefor; namely, the removal of the particle from the eye with the match and handkerchief, or bathing the eye in the common water trough, or the theory of a latent gonococci germ. The latter may be rejected as improbable. But as to the other hypothesis the evidence made the question one of fact. "This disposes of the case and covers all that need be said. A further discussion of the evidence would serve no useful purpose. It is sufficient to say that we have examined it with care, with the result stated. Judg- ment affirmed." (c) Blister Infected. In William Johnson vs. Northwestern Steam Boiler Works and IVIichael A Ryan, St. Louis county, April 12, 1917, an infection alleged to have resulted from a water blister was the subject of dispute. The court found: "That on the said date the said employe was required by the said employer. Northwestern Steam Boiler Works, to flatten boiler flues by means of a hammer; that the weight of the said hammer was about 3 pounds; that the length of the handle of the said hammer was about 14 inches, while the proper length of a handle of a hammer weighing 3 pounds is about 18 inches; that it was necessary for the said employe in the performance of his said duties to hit the said flues hard and fast. That the shortness of the said handle of the said hammer caused the said handle to jar and bea^ against the fingers and hands of the said employe with an unusual force; that the said jarring and beating caused a water blister to be formed on the second finger of the said employe's right hand and a poisonous infection to be driven into the said finger at the point where the said blister was being formed; that as approximate and direct result of the said blister and poisonous infection, the said employe has lost the total use of the said second finger of his right hand and one-fourth of the total use of his third finger on the said right hand. "That the said personal injury was due to accident within the meaning of the statute in such case made and provided, and was due to an unexpected or unforeseen event which happened suddenly and violently and produced at the time injury to the physical structure of the body of the said employe." 3. GERM DISEASES Attempts have been made to secure compensation for germ diseases alleged to have been contracted In the course of employment, but the courts have uniformly ruled adversely. (a) Typhocid. The only case of this type to come before the supreme court was State ex rel. Faribault Woolen Mills Co. et al. vs. District Court of Rice County 6t a!., October 26, 1917, 164 N. W. 810, 138 Minn. 210, in which the district court had allowed compensation for typhoid fever. The higher court reversed this in the following opinion: "We are called upon to review the action of the district court of Rice county in allowing compensation under the Workmen's Compensation Act to an employe of the relator for temporary disability caused by typhoid fever, tb? germs of which are alleged to have been ingested by the dnnking of 90 infected water furnished in the relator's factory for the use of its employes, If contracting this disease hy drinking infected water was an accident within the definition thereof contained in the law, the evidence ia probably suffi- cient to sustain the findings of the district court. Our statute, so far aa here important, provides for compensation 'in every case of personal injury caused by accident, arising out of and in the course of employment,' and then provides that the word 'accident,' as used therein, shall 'be construed to mean an unexpected or unforeseen event, happening suddenly and vio- lently, with or without human fault, and producing at the time injury to the physical structure of the body.' G. S. 1913—8203, 8230. "The evidence shows that typhoid fever is a germ disease; that it is produced by taking typhoid bacilli into the alimentary canal; that no deleterious effects result until the bacilli taken into this canal have multi- plied enormously; and that it requires more than a week after the infection for the disease to develop sufficiently for its symptoms to be discernible. The disease does not result from an event which happens 'suddenly and violently,' nor from an event which produces 'injury to the physrical structure of the body' at the time it happens. "Under statutes which provided compensation for personal injury by accident without defining the meaning of the terms used, there was a diversity of opinion among the courts as to whether diseases, and especially the so-called 'occupational diseases' were accidents within the meaning of the statute. The American statutes seem to have been framed largely along the lines of the prior English statute. The English courts held that a disease, unless contracted in consequence of some injury to the physical structure of the body, was not a 'personal injury by accident,' within the meaning of the English law, until by amendment the law was expressly made to include occupational diseases. See cases cited in L. R. A. 1916 A., p. 33, note 28, and p. 35, notes 33 and 34. In Pindlay vs. Tullamore Union, 48 Ir. L. T. 110, 7 B. W. C. C. 973, it was held that typhoid fever was not an accident within the meaning of the law. The courts of Michigan, New Jersey and Ohio seem to have taken the same view as the English courts. Adams vs. Acme White Lead, etc., Works, 182 Mich. 157, 148 N. W. 485, L. R. A. 1916 A. 283, Ann. Cas. 1916 D. 689; Liondale, etc.. Works vs. Riker, 85 N. J. Law, 426, 89 Atl. 929; Industrial Commission vs. Brown, 92 Ohio St. 309, 110 N. E. 744, L. R. A. 1916 B. 1277. The Massachusetts court dis- tinguished tlieir statute from the English statute on the ground that it omitted the element of accident as a condition to recovery, and held that contracting a disease was a 'personal injury,' although it might not be an accident. Re Hurle, 217 Mass. 223, 104 N. E. 336, Ann. Cas. 1915 C, 919, L. R. A. 1916 A. 279; Re Johnson, 217 Mass. 388, 104 N. E. 735. The Wis- consin court held that contracting typhoid fever was an accident within the meaning of their law, but forceful reasons for the opposing view are set forth in the dissenting opinion of Justice Barnes. Vennen vs. New Dells Lbr. Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916 A. 273. The circuit court of appeals for the ninth circuit held that contracting typhoid fever was an accident within the terms of an insurance policy indemnifying against claims 'on account of bodily injuries accidentally suffered.' Aetna Life Ins. Co. vs. Portland Gas & Coke Co., 229 Fed. 552, 144 C. C. A. 12, L. E.'A. 1916 C. 1027. "To avoid the uncertainty previously existing and to make clear the class of injuries to which our compensation law was intended to apply, the legislature inserted therein the above-quoted definition of what shall be deemed an accident within the purview of such law. By restricting the injuries for which compensation is to be made to those caused by accident and by defining the term 'accident' to mean 'an unexpected or unforeseen event, happening suddenly and violently, * * * and producing at the time, injury to the physical structure of the body,' the legislature clearly manifested an intention to exclude from the operation of the law disabilities caused by disease unless the disease resulted from an accident of the char- acter above described; and the courts must give effect to such intention. 91 Industrial Commission vs. Brown, 92 Ohio St. 309, 110 N. E. 744, L. R. A. 1916 B. 1277. "The disease in the present case was not caused by an accident as that term is defined in the law. The disease germs were not taken into the system in consequence of anything which happened 'suddenly and violently,' or which at the time produced 'injury to the physical structure of the body.' Judgment reversed." (b) Smallpox. In Charles N. Poirier' vs. Minnesota Utility Company, St. Louis county, November 3, 1917, the district court dismissed a suit for compensation because of death resulting from contracting smallpox, holding: "That the contracting of smallpox is not an event happening suddenly and violently, nor does it produce at the time, any injury to the physical structure of the body." (c) Pneumonia. A case in which pneumonia had resulted without the intervention of physical accident was presented informally to Judge Roeser, of the district court at St. Cloud, and on May 16, 1919, he ruled as follows: A controversy having arisen between the above parties as to whether or not the claim of the plaintiff comes under the terms of the compensation law, the following statement of facts has been submitted: L. C. Brown, secretary and treasurer of the National Granite Works, above named, was helping the engineer at the quarry on January 28, 1919, repairing a water pump, when the pipe burst and the said Brown was soaked by water. He started for home immediately, having to walk fifteen or twenty minutes to the car line, and waited thirty-five minutes for a car. He contracted a bad cold, and was attended by doctors at Des Moines, Iowa, on the 28tli and 29th of January, and they pronounced him sick with pneumonia and sent him to a hospital, from which he returned, recovered and able to go to work, about April 1st. The said Brown claims that he is entitled to compensation and employer and insurer deny the liability. From the foregoing statement and the law applicable thereto, the court finds: 1. That it is very doubtful whether this accident happened to Brown while in the course of his employment. The statement of facts does not give information as to just what the duties of secretary and treasurer of this company consist of. 2. The statute gives compensation for accidents which happen suddenly and violently, and produce at the time injury to the physical structure of the body. Under the above statement of facts, I fail to see how it can be claimed that Injury was produced to the physical structure of the body. The results of wetting are slow, producing first a cold and later, according to the above statement, it turned into pneumonia. The time that would necessarily elapse to produce such a condition, cannot be called a sudden and unexpected event, nor can it be. said that it produced, at the time, an injury to the body. It differs very materially from a case of freezing or sun stroke, and is more parallel with a case involving typhoid fever, as described in State ex rel. District Court of Rice County, 138 Minn. 210. It has been expressly held in several jurisdictions, under compensation acts quite similar to ours, that pneumonia which develops from getting wet is a disease and not an injury. See: Linnane vs. Aetna Brewing Co. (Conn.), 99 Atlantic, 507; Landers vs. City of Muskegon (Mich.), 163 N. W. 43. This ruling is given with the understanding that the dispute has been voluntarily submitted to this court. If it should develop that this is not the case, this ruling shall not prejudice either party from bringing- the matter before me in the regular way. 92 4. OCCUPATIONAL POISONINGS Under the definition of an accident in the Minnesota Compensation Act there has not been much leeway for including among compensable injuries any of the occupational poisonings. In some instances where the onset Ib with relative suddenness, or where something approximating damage to the body occurs in the beginning, they have, however, been held compensable. In the only case which went to the supreme court, compensation was denied because the connection between the alleged accident and the disease was not established. The court indicated, however, that if such a connection had been proven between inhalation of muriatic acid fumes, and the disease, the supreme court would not have disturbed the finding of the lower court, (a) Hodgkin's Disease. In the case of State ex rel. Johnson Hardware Company et al. vs. Dis- trict Court of Carver County. May 5, 1920, 177 N. W. 644, the supreme court made the following findings: "1. The evidence discloses no facts which will justify an inference that 'Hodgkin's Disease,' from which the employe died, resulted from ulcera- tions in the mucous membrane of his nose, or that those ulcerations were caused by inhaling the fumes of hydrochloric acid used by him in his work as a tinner, and the findings to that effect rest wholly on conjecture. "2. In 1918, the maximum amount which the compensation law allowed to dependents In case of death was the sum of $11.00 per week. "3. Installments payable in the future do not bear interest. "The opinion in full is: "Certiorari to review an award under the Workmen's Compensation Law made by the district court of Carver county to the widow of Henry J. Hoernemann, deceased: "Henry J. Hoernemann died from what is known as 'Hodgkin's Disease,' on October 14, 1918. He had followed the occupation of a tinner and plumber for more than twenty years, and was employed in that capacity by the relator hardware company, at Hector, Minnesota, at the time he became ill. The trial court found that the disease which caused his death known as 'Hodgkin's Disease,' resulted from ulcerations of the mucous membrane of the nose, and that these ulcerations were caused by inhaling the fumes of hydrochloric acid used by him while engaged in the perform- ance of his duties as a tinner. The relators contend that there is no evi- dence whatever to sustain these findings. "Mr. Hoernemann became ill in the latter part of April, 1918, and con- sulted a physician of Hector, who first treated him for a la grippe, and later for Bright's disease. He removed with his family to the village of Norwood, and on June 2, 1918, consulted with Dr. Eklund, of that place, who made an examination and diagnosed his ailment as 'Hodgkin's Disease.' In this examination Dr. Eklund found two ulcerated spots on the septum of the nose, one of which had already healed. He also learned that before becom- ing ill, Mr. Hoernemann had repaired two large water tanks, used for water- ing stock, by soldering the leaky places in them. The time when this work was performed was not fixed with any degree of certainty — one witness saying that it was while the snow was on the ground, and another that it was later. At the trial. Dr. Eklund testified that in his opinion the ulcera- tions, which he found were caused by inhaling the fumes of the hydroohloric acid used in these soldering operations, and also testified that in his opinion the 'Hodgkin's Disease,' from which Mr. Hoernemann died, resulted from these ulcerations. The findings challenged, rest upon this testimony. "Hydrochloric acid, also called muriatic acid in the testimony, is con- stantly used by tinners in their soldering operations to clean the metal, and they frequently inhale fumes from it. It is conceded that these fumes are sterile, containing no disease germs, and, so far as the evidence dis- closes, no deleterious effects result to the tinners from inhaling them. Mr. 93 Hoernemann had used this acid in his work for more than twenty years, and so far as appears never claimed to have suffered any injury or incon- venience from the fumes. . The inhalation which is claimed to have caused the ulcerations in question occurred more than a month before the discovery of the sores. The doctor testified that he was unable to say how long those sores had existed, and that they might have developed within two or three days after the injury or irritation which caused them. He stated that they may have been caused by inhaling dust or dirt, or in many other ways. He also stated that in his opinion they might have been, and in this case probably were, caused by inhaling strong fumes of hydrochloric acid, which burned the membrane, but admitted that he had never known of such a case although he had known of many instances in which such fumes had been inhaled. "The medical experts on both sides state that 'Hodgkin's Disease' is a disease of the lymph and lymphatic glands; that it is not of germ origin so far as known; that what causes it has not yet been discovered; and that it is progressive and fatal, that no remedy or cure for it has yet been dis- covered, although, in some cases its progress may be arrested for a time by radium treatment. Although Dr. Eklund stated each time the question was asked that it was his opinion that Mr. Hoernemann had contracted 'Hodgkin's Disease' from the ulcerations in his nose, the doctor also stated that he did not know the origin of that disease nor what caused it, and that this was the only case of that disease which he had ever found or treated in his practice. The relators presented testimony to the effect that the ulcerations could not have been caused by the fumes of the acid and that 'Hodgkin's Disease' could not have been caused by these ulcerations, but we have considered only the testimony of Dr. Eklund, as this is the testimony on which the claimant relies to sustain the findings. "Ulcerations in the nose are of frequent occurrence and result from innumerable causes. We find nothing in the record tending to point out in any manner the particular cause of the ulcerations in question. That the irritation or injury which produced them may have been caused in many different ways and may have occurred long after the soldering opera- tions, is evident from Dr. Eklund's testimony. He points out no reason for inferring that they resulted from one rather than another of the several causes which may have produced them. That acid fumes had been inhaled in soldering can hardly be considered a reason for attributing them to such fumes, for there is no evidence that they had their inception at or about the time of such inhalation, and no evidence that injury has ever resulted from inhaling such fumes under such circumstances, although all tinners frequently inhale them. Dr. Eklund's statement that in his opinion Mr. Hoernemann became afflicted with 'Hodgkin's Disease' because of the ulcer- ations of the mucous membrane of his nose, when taken in connection with the doctor's further statement that he does not know how that disease originates nor what causes it, can be considered only as a mere guess. It is undisputed that medical science has not yet discovered how this disease is produced or what causes it, and no attempt was made to show that it follows traumatic injuries, or that such injuries have any part in producing it. If the evidence had disclosed any facts from which a reason- able mind could legitimately infer a causal connection between the inhaling of the acid fumes and the disease which caused death, the finding of the trial court would be final. State ex rel. Neissen vs. District Court, 142 Minn. 335; State ex rel Green vs. District Court, 176 N. W. 156; State ex rel Berquist vs. District Court, 176 N. W. 165. But we are forced to the conclusion in this case that the evidence discloses no basis of fact for the findings in question, and that they rest wholly on conjecture and therefore cannot be sustained. Mageau vs. Great Northern Ry. Co., 106 Minn. 375; Wendt vs. Bowman, 126 Minn. 509; Ginsberg vs. Burroughs Adding Mach. Co., 170 N. W. 15. "Although the above conclusion leads to a reversal, it may be well to mention that the amount awarded the widow exceeded the maximum 94 amount allowable under the statute. Section 8208, G. S. 1913, as amended in 1915, fixes the compensation payable to dependents in the cases in which such dependents are entitled to compensation under the law. The court awarded the sum of $55.00 per month in accordance with subdivision 7 of this section, and apparently overlooked subdivisions 17 and 19 thereof, which limit the amount allowable to such dependents in any case to the sum of $11.00 per week. The court also allowed interest on the monthly payments to be made in the future. We find no warrant in the law for allowing interest, before they become due, on installments which by the terms of the law are payable in the future. Judgment reversed." (b) Tin Poisoning. A very interesting case which approaches the border line between injuries due to accident under our law and occupational diseases is that of John W. IVIeisel vs. Swift & Co., Dakota county, July 30, 1919. Judge Con- verse held that the attack of tin poisoning from which the employe suffered had come on so suddenly and had so conformed in every respect to the requirements of an accident under our law that it became a compensation case. The findings are: "That the plaintiff is a resident of the city of West St. Paul, county of Dakota, and state of Minnesota, and was such resident on or about April 4, 1918, residing at 284 East Annapolis street, in West St. Paul, Minn. "That the defendant herein. Swift & Co., is a corporation duly organized and existed under and by virtue of the laws of the state of Minnesota, and engaged in the general meat packing business, with its principal place of business at South St. Paul, Dakota county, Minn. "That the plaintiff is a man of middle age, and on and prior to April 4, 1918, although able to be around and work, and apparently in good health, and believing himself to be in good health was, nevertheless, in a generally debilitated condition, and unknown to himself or any one else, he was suffering from general paresis, arterior-sclerosis, hypertrophy of the heart and pyorrhea. "That on and prior to April 4, 1918, he was in the employ of the defen- dant at South St. Paul, Minn., and that not one or all of his ailments as above set forth was sufficient to deter him from performing his usual work, or to interfere therewith. "That on and immediately prior to the 4th day of April, 1918, he was engaged in the course of his employment in the defendant's tinning room, where his work consisted in dipping containers to be used in packing meat products in vats containing boiling muriatic acid and cold muriatic acid and molten tin. That the room in which he worked was unavoidably more or less filled with fumes and gases from said vats, and the plaintiff was obliged not only to work in and constantly breathe said fumes, but his hands were frequently somewhat bespattered with the acid and tin. "That about 10:30 A. M., on the said 4th day of April, 1918, owing to the condition of gas and vapors and want of fresh air, and his generally debili- tated condition, as herein set forth, he was suddenly overcome and made sick and nauseated, and had to be carried from the room and out into the fresh air, and that he continued to be sick and was unable to perform his usual work until July 31, 1918, when he so far recovered as to return to his work. "That both the plaintiff and the defendant are subject to the provisions- of chapter 467, General Laws of 1913, and acts amendatory thereto, com- monly known as the Workmen's Compensation Act. "The defendant has refused and failed to pay the plaintiff compensa- tion of his medical, surgical or hospital bill, although the same has been duly demanded of the defendant by the plaintiff. "That at the time of the plaintiff's said injury, to-wit: April 4, 1918, he was receiving wages at the rate of $24.50 per week, and that the defendant herein had, actual and proper notice of the facts connected with said Injury at the time of its occurrence. 95 "The court finds, as conclusions of law, that the plaintiff is entitled to compensation under the provision of said chapter 467, and in accordance with the terms thereof at the rate of $12.00 a week for the period beginning April 11, 1918, and ending July 30, 1918, with interest thereon at the rate of 6 per cent per annum from the last date; and for his costs and disburse- ments herein." The judge further explained his view in a memorandum as follows. "Did the plaintiff suffer a personal injury caused by an accident arising out of and in the course of his employment? If he suffered a personal injury caused by an accident there can be no doubt but what it arose out of and in the course of his employment. I take it, no authority need be cited on that part of the question. If the attack which plaintiff suffered on the 4th day of April was due to the condition under which he worked in the tinning room, causing a physical collapse, dizziness and nausea, it surely was a personal injury within the meaning of the statute. State vs. District Court, 138 Minn. 131, 164 N. W. 585; State vs. District Court, 138 Minn. 250, 164 N. W. 916; in re Hurle, 217 Mass. 223, 104 N. E. 336, and cases cited. "That it was caused also by accident seems to be sustained by the above cited cases. "Attention is also called to Brintons vs. Turvey (Eng.), 2 Ann. Cas. 137, and note. "The plaintiff's generally weak condition cannot, in my opinion, be allowed to defeat his right to recover. State vs. District Court, 138 Minn. 250, and particularly quotation from the opinion in the Ismay case, therein quoted. Also see page 230 of L. R. A., 1916A; and Milwaukee vs. Industrial Commission, 160 Wis. 238, 151 N. W. 247." (c) Gas Fumes That an Injury caused by inhaling gas fumes from salamander stoves used to heat the place of work comes within the compensation law was decided in the case of John McGuckin vs. H. S. Koppers Company, Ramsey county, February 23, 1918. This was an action brought at common law, the claimant asking $2,000 damages and $100.00 physician's and hospital bill. The defendant demurred to the complaint on the ground that it did not state facts constituting a cause of action. After hearing argument of counsel, the court ordered the demurrer sustained and the case dismissed as a common law action; ordered further that complaint filed should stand as and for a complaint in an action brought under the compensation law with ten day leave to amend complaint to conform to this law. Another case in which gas poisoning figured was that of Hanna Blom- berg, widow of Matti Blomberg vs. Village of Hibbing, St. Louis county, December 8, 1919. The court found, in part, as follows: "That Matti Blomberg, on the 26th day of January, 1919, and for many years prior thereto, was in the employ of the defendant. Village of Hibbing, as a laborer for hire, and was working at said time and for some time prior to the said 26th day of January, 1919, in the municipal gas plant as an engineer in charge of said plant during one shift of that day. That a part of the duties of the said Matti Blomberg was to fill the retorts in said gas plant with coal and to remove the same at divers intervals after the coal had been coked. That said coke when removed from the retorts in the furnace room of said gas plant sometimes emitted carbon monoxide gas. That sometimes when said coke was removed the product was not all fully coked, and it emitted more gas under such circumstances. That said gas is a poisonous gas, and when inhaled in sufficient quantities, is sufficient to cause death. That at the time in question, on the 26th day of January, 1919, said Matti Blomberg was on duty alone at said place. That owing to said fact there was no one present to aid him in removing the coke from the retorts there located and no one to aid him in wetting down or water- ing said coke as the same was removed from the retorts. That owing to said fact said coke and product removed from the retorts emitted mor€ 96 carbon monoxide gas than would ordinarily happen when two men were engaged in doing said work, and one man was employed in watering the coke as it was removed. "That the deceased, Matti Blomberg, removed the coke from the retorts at about 4:00 or 5:00 o'clock A. M., on the morning of the 26th of January, 1919, and later on or about 6:00 o'clock A. M. of said day, was found dead in a room in said building where said gas plant is maintained. , "As conclusions of law, that the plaintiff for the benefit of herself and children, is entitled to judgment against the defendant for compensation at the rate of eleven dollarsi ($11.00) per week during dependency, not to exceed three hundred (300) weeks from the 26th day of January, 1919, and for the sum of one hundred dollars ($100.00) for funeral expenses. That compensation for the period of forty-five (45) weeks at eleven dollars ($11.00) per week became due and payable on the 7th day of December, 1919, and that plaintiff is entitled to judgment against the defendant in the sum of four hundred and ninety-five dollars ($495.00) therefor, which sum shall be paid forthwith; that plaintiff is entitled to judgment against the defendant in the sum of one hundred dollars ($100.00) for funeral expenses, which sum shall be paid forthwith, making the aggregate sum to be paid forthwith the sum of five hundred and ninety-five dollars ($595.00). That thereafter during dependency, not exceeding the period of two hundred and fifty-five (255) weeks additional, the defendant pay to the plaintiff the sum of eleven dollars ($11.00) per week. "That plaintiff recover her costs and disbursements, including statutory costs in the sum of ten dollars ($10.00). "Let judgment be entered accordingly." (d) Ivy Poisoning. Cases of ivy poisoning have usually been settled as compensation cases without much questioning. In one such case the department gave the following advice: "We would state that poisoning caused by contact with poison ivy is undoubtedly an accident within the meaning of the Workmen's Compensa- tion Act of Minnesota. We know of a number of such cases which have been settled as compensation cases. There is no court ruling on the subject presumably because the matter is so plain that it has never been contested. "We feel that such poisoning conforms with all the tests of an accident provided in section 34, sub-section H of the act, being an 'unexpected or unforeseen event, happening suddenly and violently, with or without human fault and producing at the time, injury to the physical structure of the body.' The only element concerning which there could be a shadow of a doubt would be the suddenness of the onset. "Our supreme court decisions in freezing cases. State ex rel. Virginia & Rainy Lake Co. vs. District Court of St. Louis County et al., October 12, 1917, 164 N. W. 585, and State ex rel. Nelson vs. District Court of Ramsey County et al., November 2, 1917, makes it clear that considerable latitude will be allowed in the construction of these words." 5. HERNIA Hernia claims always have and possibly always will prove troublesome in their adjustment. The compensation laws of a number of states provide definitely that in order to be entitled to compensation for hernia a workman must clearly prove four things. (1) That the hernia is of recent origin (2) that its appearance was accompanied by pain; (3) that it was immediately preceded by some accidental strain suffered in the course of the employment, and (4) that it did not exist prior to the date of the alleged injury. While these rules are not definitely adopted in other states the principles tacitly followed are very similar. 97 An illustration of a clean-cut case of hernia due to accident is the case of Henry Smith vs. The Park Avenue Transfer Co., Hennepin county, Febru- ary 21, 1918, in which the injured had, while walking beside a heavy wagon, been caught between the wagon and a street car approaching him from the rear and severely crushed. The attending physician testified that when the injured applied to him for professional care within a couple of hours following the injury he found a hernia which was operated, and further testified that from the conditions, j. e., there being no adhesion about the inguinal ring and the presence of fresh blood in the sac, convinced him that the rupture was of recent origin and had been produced by the crush between the street car and the wagon in the manner claimed by the Injured. The defense alleged that the man had previously complained of having a rupture, and that he was unable to lift heavy weights, as a man in normal condition might do. In this case the court found that Smith had sustained a rupture as claimed, and com- pensation and the cost of medical and surgical treatment therefor was allowed. Another case in which compensation was awarded for hernia sustained as a result of strain was that of Fred Bauer vs. Red Wing Union Stoneware Co., Goodhue county, July 9, 1918. The court found, in part, as follows: "That on said 2d day of May, 1917, while engaged in said work for the defendant company, and in the course of his employment as such employe, and while engaged in the unloading and lifting of certain moldsi, the plaintiff violently strained and ruptured his side, causing' a femoral hernia, from which injury he was rendered unable to perform his usual employment or to perform any labor. "That by reason of such injury the plaintiff has been compelled to incur large expenses for hospital service and treatment, amounting to forty-five dollars and fifty cents ($45.50). "That because of such injury and operation the plaintiff has been and will be rendered unable to perform his usual occupation, or to perform any labor for a period of seventy-one weeks. "That no payment has been made to the plaintiff for the said injury, under the provisions of said part 2, chapter 467 of the laws of Minnesota for 1913. "That said employer, the defendant herein, had actual knowledge of said accident to the plaintiff at the time of its occurrence or within two days thereafter. "Conclusions of law, that plaintiff is entitled to recover of the defendant the compensation under the Workmen's Compensation Act at the rate of $8.10 per week for a period of 70 weeks, payable In accordance with the pro- visions of said chapter 467, and for said hospital bill of $45.00. "That plaintiff is entitled to recover his costs and disbursements. "Let judgment be entered accordingly." 6. FREEZING The question of when freezing is an accident in the course of and aris- ing out of employment has been treated in two exhaustive opinions by the supreme court. Although the court found that to justify an award special conditions must exist by which the employe is more exposed to the risk of freezing than the generality of workers, the second of the decisions indicated a broad construction of such special conditions. (a) Swamper In Woods. The first case in which the supreme court upheld an award of compen- sation for freezing was that of State ex rel. Virginia & Rainy Lalistrict Court of St Louis County et al., October 12, 1917, 164 N. W. 585, 138 Minn. 131. The ruling is: 98 "Certiorari to review the Judgment of the district court of St. Louis county awarding compensation under the Worlimen's Compensation Act to Joe Niemi, an employe of the relator, Virginia & Rainy Lake Company. The injury for which the award was made was the freezing of the employe's thumh which resulted in its amputation. The questions are these: "1. Whether freezing is a personal injury caused by accident within the meaning of the compensation act. "2. If so, whether the accident arose out of the employment within the meaning of the act. "The statute exacts from the employer compensation 'in every case of personal injury or death of his employe, caused by accident, arising out of and in the course of employment.' G. S. 1913-82'03. The term 'accident,* is defined as follows: "The word 'accident,' as used in the phrases, 'personal injuries due to accident,' or 'injuries or death caused by accident' in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event, happening suddenly and violently with or without human fault and producing at the time, injury to the physi- cal structure of the body. G. S. 1913-8230 (h). "That freezing is a personal injury within the meaning of the com- pensation act is not open to question. McManaman's case, 224 Mass. 554, 113 N. E. 287; Larke vs. John Hancock Mutual Life Insurance Co., 90 Conn. 303, 97 Atl. 320, L. R. A. 1916 E. 584. Nor is it to be questioned that within the statutory definition it is an 'unexpected and unforeseen event,' nor that it Is an event 'producing at the time, injury to the physical structure of the body.' It has been held an accident within a statute giving compensation in case of an accidental injury, but not defining accident. Days vs. S. Trim- mer & Sons, 176 App. Div. 124, 162 N. Y. Supp. 603; Canada Cement Co. vs. Pazuk, 22 Que. K. B. 432, 12 D. L. R. 303, 7 N. C. C. A. 982. So has a sun- stroke which affords a helpful though not perfect analogy. Ismay vs. Wil- liamson (1908) A. C. 437, 42 Ir. L. T. 213; Morgan vs Owners of Steamship Zenaida, 2 B. W. C. C. 19; Davies vs. Gillespie, 5 B. W. C. C. 64. "The difficult question is whether the requirement that the event be one 'happening suddenly and violently' excludes it. Freezing comes sud- denly and violently as distinguished from gradually and naturally or in ordinary course. In common talk, a sudden or violent death is one occurring unexpectedly and not naturally or in the ordinary course of events. In some such sense the words are used in the statute. Their effect is not to exclude from accidental injuries all except such as result from physical force applied from without. It is suggested in argument that these partic- ular words with others employed In the same connection were used in caution to exclude occupational and other diseases. Whether such is their effect is not for decision here. We think that a fair construction of the statutory definition does not exclude freezing, and we hold that it is a per- sonal injury caused by accident within the meaning of the act. "It is not questioned that the employe received his injury in the course of the employment. It is contended that it did not arise out of his employ- ment. It is not enough that it occurred while work was in progress. It must have arisen under such circumstances that a causal connection is traceable between the employment and the freezing, and the freezing must be more than a consequence, shared by the community in general, of exposure to cold. "The freezing occurred in January, 1916. The workman was employed by the relator as a swamper in the woods in the northern part of St. Louis county. He was cutting and handling timber and making roads for swamp- ing. He used an ax, handled the timber with his hands and they came in contact with the snow. The weather was severely cold. He was some four or five miles from camp. There were no facilities for warming. The build- ing of fires was not permitted. The evidence fairly sustains the view that the character of the employe's work subjected him to a risk of freezing not shared by the generality of the community, and sustains the finding that 99 the freezing arose out o£ the employment. In the following cases, all involving injuries by freezing, findings that the freezing arose out of the employment v?ere sustained; McManaman's Case, 224 Mass. 554, 113 N. E. 287; Larke vs. John Hancock Ins. Co., 90 Conn. 303, 97 Atl. 320. L. R. A. 1916 E. 584; Days vs. Trimmer & Sons, 176 App. Div. 12r4, 162 N. Y. Supp. 603; Canada Cement Co. vs. Pazuk, 22 Que. K. B. 432, 12 D. L. R. 303, 7 n! C. C. A. 982. In the following findings that it did not were sustained: Warner vs. Couchman (1911) I. K. B., 351; Karemaker vs. Owners of Steam- ship Corsican, 4 B. W. C. C. 295. "The general question of what constitutes an accident arising out of employment has had consideration by this and other courts. See Sta,te vs. District Court, 129 Minn. 176, 151 N. W. 912; State vs. District Court, 129 Mian. 502, 153 N. W. 119, L. R. A. 1916 A. 344; Mahowald vs. Thompson- Starrett Co., 134 Minn. 113, 158 N. W. 913, 159 N. W. 565; I. Bradbury, workmen's compensation 398 et seq.; I. Bonnald, workmen's compensation 101 et seq.; note L. R. A. 1916 A. 40; notes Ann. Cas. 1913 C. 4, Ann. Cas. 1914 B. 498, and Ann. Cas. 1916 B. 1293; 25 Harv. Law Rev. 401, 517. The case In review does not call for a discussion of the cases. It is enough to say that the finding that the injury was an accident arising out of the employment Is sustained. Judgment affirmed." (b) Janitor Shoveling Snow. A better precedent for freezing cases occurring in the cities is given in the ruling of the court a month later in State ex rel. Nelson vs. District Court of Ramsey County et al., November 2, 1917, 164 N. W. 917, 138 Minn. 260. Here the court reversed the district court and found that a janitor who was shoveling snow from the sidewalk and occasionally went into the building to attend to the fires was working under such circumstances that freezing was an accident arising out of employment. The text follows: "The relator was employed by the Northwestern Telephone Exchange Company. While so employed he froze his big toe, and the freezing resulted in the amputation of his leg. The injury was sustained in the course of his employment. The court found that the freezing was not an accident. It found that it arose out of the employment. Since the trial we have held that freezing is an accident. State ex rel. Virginia & Rainy Lake Co. vs. Hstriet Court, 164 N. W. 585. If the finding that the freezing arose out of the employment within the meaning of the compensation act (G. S. 1913- 8195) is sustained, the relator should have compensation and the judgment should be reversed; otherwise he should not, and there should be an affirm- ance. "The relator was a janitor employed by the telephone company at its Midway exchange in Merriam park. His duties were the usual ones of a janitor. Using his language, he was 'required to keep the building clean, keep the fire going, shovel the snow off the sidewalk, whatever time it was necessary — all such things that belong to a janitor to do.' On February 22, 1916, he went to the building about 5:00 o'clock in the morning, attended to the fires, did some other things about the building, and then started to shovel the snow from the sidewalks. "There had been a heavy fall the night before. He had to shovel a 50-foot front and 140-foot back to the alley. The snow was two or two and one-half feet deep. The weather was very cold. The work of shovel- ing required perhaps one and one-half hours. While doing this work he went, from time to time, into the building to see to the fires and could go at any time he chose. These are the important facts. "In State ex rel. Virginia & Rainy Lake Co. vs. District Court, 164 N. W. 585, we held that the finding of the court that the freezing there involved arose out of the employment was sustained by the evidence. The workman was employed in the northern woods swamping, was several miles from camp, had no facilities for warming or protecting himself, and was peculiarly exposed to severely cold weather. The question whether the trial court's finding was sustained was not difficult. The one presented by the record 100 before us Is. The direct authorities upholding findings in freezing cases are few. We cite those called to our attention. McManaman's Case, 224 Mass. 554, 113 N. E. 287, (stevedore unloading a steamer, exposed to greater cold than that to which one working in the open is ordinarily exposed; not at liberty to stop work to protect himself) ; Days vs. S. Trimmer & Sons, 176 App. Div. 124, 162 N. Y. Supp 603 (workman unloading coal from delivery wagon and carrying into houses of customers ; coal wet and weather severely cold) ; Larke vs. John Hancock Ins. Co., SC Conn. 1303, 97 Atl. 320, L. H. A. 1916 E. 584 (insurance solicitor and collector required to travel in the open weather 15 or 20 miles in very cold, weather; made numerous calls; went in and out of heated houses) ; Canada Cement Co. vs. Puzak, 22 Que. K. B. 432, 12 D. L. E. 303, 7 N. C. C. A. .982 (employe working at the bottom of a quarry pit in intense cold for long hours). In the Massachusetts case, the court concluded that the finding that the workman was exposed to 'materially greater danger and likelihood of getting frozen than the ordinary person or outdoor worker" was sustained. "In the New York case the court said that the industrial commission ■was fully justified in finding from the evidence that the claimant, by reason of his employment in handling wet coal in the storm, was especially affected by the severity of the weather.' The Connecticut case was, in the view of the court, 'a clear case of an employe injured as a result of a greater exposure to the elements than persons in that locality are ordinarily sub- jected.' In the Quebec case, the court, in the course of an extended dis- cussion, said: " 'Thus, as a general principle, the employer is not responsible for damages caused to his workmen by lightning, storms, sunstroke, freezing, earthquake, floods, etc. These are considered as "force majeure," which human vigilance and industry can neither foresee or prevent. The victims must bear alone such burden, Inasmuch as human industry has nothing to do with it, and inasmuch as the employe is no more subject thereto than any other person, * * * Every human being is liable to suffer from events in which he has no share or responsibility. There is here between the accident and the employment no relationship of cause and effect. Hence, it cannot be said of such an accident that it arises out of or in the course of employment. But where the work, or where the conditions under which it is carried on, expose the employes to the happening of a force majeure event, or contribute to bring it into play, or to aggravate its effects, then we are no longer face to face with the sole forces of nature. This is no longer a risk to which everybody is exposed; this is a danger which threatens more particularly the employes who work under special conditions. Hence, the occurring of a force majeure event under such circumstances is an accident arising out of the employment.' "There are two cases in which findings that the freezing did not arise out of the employment were sustained. Warner vs. Coughman (1912), A. C. 35, affirming (1911) I. K. B. 351 (journeyman baker delivering bread from his cart; weather cold and stormy, hands exposed to weather); Kare- maker vs. S. S. Corsican, 4 B. W. C. C. 295 (seaman at work on his ship in harbor; handling frozen ropes; weather very cold but not abnormally so). In the first, the finding of the county court that the workman was not exposed to more than the ordinary risk of those working in the open was sustained; and the court of appeal was 'unable to see that there was any peculiar danger to which the applicant was exposed, beyond that to which that large section of population who are drivers of vehicles, or who are otherwise engaged as out-of-door laborers are exposed.' Emphasis was placed upon the thought that the question was one of fact. In the other the finding of the county court was sustained with the suggestion that: " 'The liability to frostbite is one of the normal incidents to which everybody is subjected by reason of the severity of the climate.' "We see no other freezing cases. Cases involving sunstrokes or heat^ strokes present a similar question. They are the subject of review in State ex rel. Rau vs. District Court, 164 N. W. 916, a heatstroke case, where the 101 evidence is held such as to authorize a finding that the injury arose out of the employment. And we have held that the character of an employe's work may so expose him to the risk of Injury by lightning that a finding of a causal connection is sustained. State vs. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A 1916 A. 344. "The trial court was justified in finding that to an appreciable extent the relator was more exposed to the risk of injury from freezing than the generality of workers, and that the added risk was because of the character of his employment. The causal test of the law is satisfied; and without prolonging the discussion we hold that the relator's work so exposed him to freezing that the finding that it arese out of his employment is sustained. Judgment reversed." 7. SUNSTROKE Similar reasoning to that employed in the freezing cases caused the supreme court to hold that sunstroke under some circumstances may be an accident arising out of employment, reversing the decision quoted on page 46 of Bulletin 14. The case is styled State ex rel. Rau vs. District Court of Ramsey County, November 2, 1917, 164 N. W. 916, 138 Minn. 250, and the opinion is as follows: "For a number of years George Rau had been employed by the city of St. Paul, doing manual labor on Its streets at $2.00 a day, under the direction of a foreman, during which time he and the defendant were bound by and subject to the provisions of part 2 of chapter 467, Laws of Minnesota for 1913, and amendments thereto. On July 1, 1916, while so employed, lie was working on East Robie. The day was hot. He was working in the open, with no protection from the rays of the sun. The street was sandy. It had rained the night before and the sand was moist. During the early part of the afternoon decedent and his fellow workmen rested for a time in the shade nearby. They resumed work at about 3 : 00 o'clock. Shortly thereafter Rau was at work near the middle of the street. A workman saw him stagger and went to his assistance. The foreman gave him a drink of water and then took him to the hospital, arriving there at about 4:30. Rau was hi an unconscious condition; temperature, 110; pulse, 110. He regained con- sciousness at about 11:00 o'clock that evening. The doctor in charge stated that Rau was suffering from sunstroke. On the following day he was con- scious and took liquid diet. He left the hospital on the afternoon of the 3d; on the 4th the physician was called to the Rau home and found Rau's temperature 102 and pulse 100. On the 5th he was improved, but died on the morning of the 7th. The trial court found that the cause of death was sunstroke. "The record contains none of the testimony offered upon the trial, and the case must be considered solely upon the findings of the trial court and determined upon deductions therefrom. "The question here for determination is: Did Rau come to his death by accident arising out of and in the course of his employment, within the meaning of the compensation act? If he did, then the relator is entitled to recover compensation, and the judgment of the district court should be reversed; otherwise affirmed. "The term 'accident,' as used in the compensation act and as therein defined, shall 'be construed to mean an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and produc- ing at the time, injury to the physical structure of the body.' G. S. 1913, 8230. "The first inquiry is: What is sunstroke? It is stated in effect, in Hare's Practice of Medicine, 1915, that sunstroke, more properly called heat- stroke, is a condition of the body produced by great heat; that the chief factor is the presence of great heat, associated, as a rule, with marked humidity and physical exertion; and that heatstroke may occur at night as well as day, provided the atmosphere is hot and moist. Webster's New International Dictionary defines sunstroke as: 102 " 'An affection, often fatal, due to exposure to the sun or excessive heat and marked by sudden prostration, with symptoms like those of apoplexy.' "The Encyclopedia Americana article on the subject begins: " 'Sunstroke : Prostration due to exposure to intense external heat. Such exposure may be duo to the direct or indirect rays of a tropical Fun, or to the excessive heat of an engine room. In either case, heat and physical exertion combine to bring about the results. A high degree of humidity of the atmosphere is one of the most important features, since this hinders free evaporation from the body.' "The conditions surrounding decedent at the time of his injury exposed him to an unusual danger, different from that to which the masses engaged in like employment were subjected. It had rained the night before; the sand was wet; the sun's rays direct, thereby enhancing liability to sunstroke. Decedent was exposed to the direct rays of the sun, in addition to the humid atmosphere emanating from the wet street. "That the injury was sustained in the course of the employment is not denied: that it was an 'unexpected and unforeseen event' is not questioned, and we have no difficulty in arriving at the conclusion that it was an event 'producing at the time, injury to the physical structure of the body, happen- ing suddenly and violently.' It is undisputed that the day was extremely hot. The men had rested for three-quarters of an hour in the shade, and had returned to their labor. Decedent was at work near the middle of the street, when, all at once, he was seen to stagger._ He had been overcome; had suffered a sunstroke. This was a violent injury produced by an external power, not natural. The foreman came to his assistance, gave him a drink of water, and immediately removed him to a hospital, where his tempera- ture was found to be 110, and pulsie 110. He was unconscious and remained in that state until 11:00 o'clock that evening. The intense heat of the sun, associated with the humidity of the atmosphere emanating from the wet sand, as an external cause, was a violent agency, in the sense that it worked upon decedent so as to cause his injury and death. The con- clusion that his death was caused by violent and external means is inevi- table. That a death Is unnatural imports a violent agency as the cause. Paul vs. Travelers Ins. Co., 112 N. Y. 472, 20 N. B. 347, 3 L,. E. A. 443, 8 Am. St. Rep. 758; Pickett vs. Pacific Ins. Co., 144 Pa. 79, 22 Atl. 871, 13 L. R. A. 661, 27 Am. St. Rep. 618. "In the cases of Ismay vs. Williamson (1908) A. C. 437, Morgan vs. Owners of Steamship Zenaida, 2 B. W. C. C. 19, and Davies vs. Gillespie, 5 B. W. C. C. 64, death by heatstroke was held to be an accident within the meaning of the Workmen's Compensation Act. In the Ismay case a work- man, in a weak and emaciated condition, while raking ashes from under the boiler in a stokehole of a steamship, received a heatstroke from the effect of which he died. In affirming a recovery in that case Lord Loreburn stated : " 'To my mind the weakness of the deceased which predisposed him to this form of attack is Immaterial. The fact that a man who has died from a heatstroke was, by physical debility, more likely than others so to suffer can have nothing to do with the question whether what befell him is to be regarded as an accident or not. In my mind, this man died from an accident. What killed him was a heatstroke coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions which experience in this instance had not taught. It was an unlooked-for mishap in the course of his employment. In common language, it was a case of accidental death.' "Concurring in this opinion. Lord Ashbourne remarked: " 'Was this an accident arising out of and in the course of his employ- ment? With great deference to those who hold a contrary opinion, I can myself see no room for serious doubt on the subject. Everything was in the course of his employment and arising out of it. But for the boiler and 103 the heatstroke and the speedy exhaustion it caused, there would have been no accident. Although a heatstroke may be called a disease, it is in this case, in my opinion, a disease directly caused by an accident arising out of and in the course of an employment, particularly dangerous to Williamson, in consequence of his weak state of health.' "In the Morgan case, the workman was engaged as an ordinary seaman on board the steamship Zenaida, while the ship was at port off the Mexican coast. He was ordered to go over the side to paint the vessel. The lieat was excessive, he was seized with sunstroke, and his health was impaired. The trial court was of the opinion that he was suffering from an accident which arose out of and in the course of his employment, and awarded compensation. Upon review, the award was sustained, it being held that the case was governed by the decision in the Ismay case. "There is a marked contrast between the sudden and violent effect of a sunstroke and the drinking of water infected with typhoid germs, as it requires days of time after the infection for the disease to develop, as held in State ex rel. Faribault Woolen Mills Co. vs. District iCourt of. Rice County, 164 N. W. 810. "Where the work and the conditions of the place where it is carried on expose the employe to the happening of an event causing the accident, there is no longer a risk to which all are exposed, and the result is an accident arising out of the employment. Andrews vs. Failsworth Society, 20 Times R. R. 429; State ex rel. Virginia & Rainy Lake Co. vs. District Court of St. Louis County, 164 N. W. 585, and cases cited. Was) decedent exposed to something more than the normal risk to which men, in general, engaged in manual labor upon the streets are subjected in hot weather? If he was, then he was exposed to an extra danger arising out oj his employment, and if that contributed to the accident, then the accident arose out of and in the course of the employment. We are of the opinion that there was a substantial abnormally increased risk, owing to the character of the street coupled with its moist condition, which contributed to the cause of the accident. "Reversed and remanded for further proceedings in accordance with the views herein expressed." 8. GENERAL Under this heading we will present three of the more interesting cases on the great variety of claims for injury that have arisen. (a) No Objective Symptoms. A ruling on an injury which showed no objective symptoms was given in the case of Walter E. Nelson vs. Duluth St. Railway Co., St. Louis county, August 31, 1917, The judge ruled in favor of the employe. His memoran- dum, in part, is: "The defendant claims that the plaintiff was not injured in its employ- ment, but was injured in Johnson's shop before he went to his car. The fall described by Johnson must have been a severe one. A man, six feet tall, and weighing 215 pounds, standing on a piano stool two feet high, falling to the floor and striking on his side and shoulder, with the impetus such height and weight would cause, would, without doubt, have bruised his body. With such a fall, one would naturally expect to find bruises upon the shoulder upon which he struck, and it would be difficult to under- stand why his head was not severely hurt. This must have been in the morning, and the plaintiff worked as motorman in the afternoon, from about 1:00 o'clock to 5:00 o'clock, when he claims the injury was received, and he could not then do his work as motorman. "He was stripped and examined that evening by the defendant's^ physi- cian. There were no bruises upon him. The story told by Johnson is Inconsistent with tbe answer and with the undisputed facts of the case. "It Is not unusual that an injury occurs when there are no objective symptoms. This would be true perhaps particularly with twisted muscles." 104 (b) Imaginary Loss of Function. In a case which was presented to Judge Hanft compensation was claimed for a loss of function, which the judge found upon the advice of a neutral physician to be entirely imaginary. He therefore allowed compen- sation only for the actual impairment concerning which there was and dis- ability. The case is that of IVIike IVIozes vs. E. G. Staude IVIanufacturing Co., and the London Guarantee & Accident Company, Ramsey county, March 20, 1919. The court found: "That in addition to the total loss of the use of his second finger of the left hand, plaintiff has, due to adhesions in the left hand, which had been Infected as the result of the accident, suffered a permanent loss of 10 per cent of the usefulness of the index finger, and 5 per cent of the usefulness of the third finger of the left hand, and that this represents his only loss as the result of the accident in question, in addition to the total loss of the use of the second finger found in the previous compensation settlement, upon which there is unpaid one payment of $12.00 which has been tendered him upon giving due acquittance, but which he refused. "As conclusions of law, that plaintiff is entitled to judgment against defendants in the sum of $12.00 per week for one week unpaid under the previous settlements; three and one-half weeks for the 10 per cent loss of the use of the index finger, and one week for the 5 per cent loss of the use of the third finger; a total of $66.00, together with his disbursements herein." He further discussed the disability in a memorandum: "Before the hearing had progressed to any extent as to plaintiff's testi- mony, it was very apparent to the court that the mental attitude of the plaintiff resulted in imaginary ills for which there was no foundation in fact. Even without the testimony of the physician for the defendant, and the neutral physician appointed by the court, it was very apparent to the court that there was no real foundation for the action of plaintiff in court, and that there was no such loss, if indeed any, of the use of the arm and hand as plaintiff imagined there was. Plaintiff simply refused to use the arm and hand, and kept the hand encased in a glove, for which there was no necessity whatever, and the court is satisfied that the moment plaintiff disabuses himself of the ideas he has in his head that he will soon find that he has no further injury than that testified to by the neutral physician and corroborated by one of the physicians for the defense." (c) Ringworm. A case in which compensation was claimed for ringworm was discussed under Part III., Farm Labor — Care of Stock. The title of the case is Christ Brotan vs. James E. Singleton and John W. Singleton, co-partners as Singleton Brothers, county of St. Louis, July 1, 1919. 105 VI. AMOUNT AND PERIOD OF COMPENSATION 1. GENERAL PRINCIPLES The chief questions that have arisen of a general nature in regard to the amount and period of compensation have related to the problem of how to determine the class of disability and the determination of the proper wage basis. (a) Facts Determine Class of Disability. An important decision by the supreme court settles the contention which has been raised that an employer or insurer should not be required to pay more for an injury on a total temporary basis than if the injury were held to be permanent partial. The court held that this was simply a ques- tion of fact. If the injury is one which will leave no permanent disability, compensation must be on this basis no matter if the length of time required for healing exceeds the period that would be allowed if the injury were permanent. The ruling which was made in the case of State ex rel. Ritchie et al. vs. Distpict Court of Hennepin County et al., 164 N. W. 581, 138 Minn. 135, October 12, 1917, follows: "Respondent was in the employ of relators, Ritchie & O'Connell, a co-partnership, and in the course of his work received an injury for which he was entitled to compensation under the statute. His claim in this respect was recognized by the employers and also their surety, the United States Casualty Company, and on August 18, 1914, a short time after the injury was received, the parties, acting under subdivision 1 of section 8216 of the compensation statute (G. S. 1913), amicably settled and adjusted the compensation to be paid him on the basis of that fixed by subdivision 'b' of section 8207, for a temporary partial disability, namely, one-half the weekly wage for and during the period of disability, not exceeding 300 weeks. The payments were regularly made until April 17, 1917, when relators declined to proceed further under the agreement, on the claim that the injury was, or had become, a permanent partial disability, the compensation for which is that fixed by subdivision 'c' of section 8207, and that the total amount paid by relators under the agreement exceeded that thereby prescribed for an injury of that kind ; hence that they had fully discharged their duty to respondent as imposed by the compensation statute. "Relators then brought this proceeding, setting out in their complaint the tacts stated, and as relief demanded that by the judgment of the court they be relieved from further obligation to respondent under the settle- ment agreement or otherwise. Respondent answered, and therein set out facts entitling him, if true, to judgment for the compensation fixed by the statute, less payments theretofore made by relators. When the matter came on for trial it was stipulated by the parties that the sole issue for determination was whether respondent's injury amounted to a temporary or permanent partial disability. The court found the disability temporary, and not permanent, and judgment was ordered for respondent accordingly, and for the weekly payments of compensation by relators during the con- tinuance of the disability, not exceeding 300 weeks from the date of th« settlement, less all prior payments. "The only question presented to this court is whether the conclusion of the trial court that the disability of respondent is temporary is clearly against the evidence. We answer the question in the negative. The injury suffered by respondent was to his left leg below the knee, and of a character subsequently to require a surgical operation and the removal of about five inches of the tibia bone thereof, which had become diseased by reason of the injury. While it would seem that the removal of a part of the bone would render the limb weaker, of less strength, and therefore a permanent disability, the evidence is clear, and the court so found, that the bone ia gradually reforming and will so continue until the normal condition thereof 106 is fully restored, and the limb thus made as useful as before the injury. This process of reformation of the bone tissue in such cases was fully explained by the medical witnesses, and if their testimony be true, a question for the trial court, there is no room to seriously question the conclusion that the disability is temporary, and not permanent. "The contention of relator is that since the injury has not yet healed, and payments have been made for over two years, the disability should be treated as permanent, and compensation awarded accordingly. The conten- tion is not sustained. The question resolves itself, from the evidence pre- sented, into one of fact. It is not important, at least not conclusive as matter of law, that relator may be required to pay more for the injury. If it be held a temporary, than would be required if held a permanent partial disability. It is apparent under the language of the statute that such a situation may often arise. The compensation for a temporary partial dis- ability may cover a period of 300 weeks, while the same character of injury, if found to be permanent, may be fully compensated by payments during a much shorter period, amounting in the aggregate to much less than that required if the disability be temporary. But with this feature of the statute we are not concerned. It was competent for the legislature to so provide, and if there be anything wrong with the law in this respect it must be cor- rected by the lawmaking body. The statute is plain and unambiguous, and will admit of no construction other than that indicated. It may be remarked, however, that the period of time covered by the healing process in a par- ticular case may be an important factor in determining the nature and character of the disability, for compensation should not be awarded for the longer period upon the naked claim that the injury is temporary. "The case of State ex reL Kennedy vs. District Court, 129 Minn. 91, 151 N. W. 530, is not in point. In that case the employe suffered two distinct injuries to his arm, as the result of the same accident, and the trial court ordered the payment of compensation for each. This was held error; our conclusion being that the two injuries should be treated as one, and' com- pensation awarded accordingly. In. the case at bar there was but one injury, which the court found created a temporary disability. The injury in State ex rel. vs. District Court, 161 N. W. 391, was held by the trial court as one creating a permanent disability, and the only question involved was the amount of compensation to be paid thereafter. The case is not here in point. "This disposes of the case. The findings of the trial court are sus- tained by the evidence, a discussion of which would serve no useful pur- pose." (b) Temporary Total in Excessi of Permanent Partial. An important supreme court decision settling the question whether, in the event the actual disability is greater than the period allowed for the loss of the member in the permanent partial schedule, payment should continue on the total temporary basis with a limit of 300 weeks, or whether the period is absolutely limited when there is permanent impairment to the amount allowed for the loss of a member was filed on July 9, 19210. This decision settles the question in favor of the injured employe. The title thereof is State ex rel. Albert Lea Packing Co. vs. District Court of Freeborn County, 178 N. W. 594. The decision in full follows: "Certiorari to review the judgment of the district court of Freeborn county awarding compensation to Frank C' Dudley, who received an injury while in the employ of the relator, Albert Lea Packing Company. "The schedule of compensation as fixed by Laws 1917, Chap. 351, Sec. 13, is as follows: 'Section 13. Following is the schedule of compensation: (a) For injury producing temporary total disability, GO per centum of the wages received at the time of the injury, subjeet to a maximum compensation of twelve ($12) dollars per week and a minimum of six and one-half 107 ($6.50) dollars per week; provided, that if at the time of injury the employe receives wages of less than, six and one-half ($6.50) dollars per week, then he shall receive the full amount oi such wages per week. This compensation shall be paid during the period of such disability, not, however, beyond 300 weeks. Payments to be made at the intervals when the wage was payable, as nearly as may be. * * * '(c) For the permanent partial disability, the compensation shall be based upon the extent of such disability. In cases included by the following schedule the compensation shall be that named in the sched- ule, to-wlt: * * * 'For the loss of a leg, 60 percentum of daily wages during one hundred and seventy-five (IVS) weeks. 'In all cases of permanent partial disability, it shall be considered that the permanent loss of the use of member shall be equivalent to and draw the same compensation as the loss of that member; but the compensation in and by said schedule provided shall be in lieu of all other compensation in such cases. * * * 'In all other cases of permanent partial disability not above enumerated, the compensation shall be 60 percentum of the difference between the wage of the workman at the time of the injury, and the wage he is able to earn in his partially disabled condition, subject to a maximum of twelve (fl2) dollars per week. Compensation shall con- tinue during disability, not, however, beyond three hundred (300) weeks. * * *' "The injury occurred on November 3, 1917. The plaintiff suffered an impacted fracture of the upper end of his left thigh bone. He was in a hospital from November 3, 1917, to January 11, 1918, and again from' July 18, 1918, to October 3, 1918. The fracture did not unite. It will not unite unless there is another operation. Such operation would be dangerous and of doubtful result. It Is not to be advised. He is upwards of 50 years of age. He suffers great pain and is nervous. If he had suffered the loss of a leg, and the result had been ordinarily favorable, he would by this time be in a condition of partial disability only. His disability up to this tlime is total. He has suffered more than the loss of the use of his leg. Its use is gone, and up to the present time the rest of his body is useless for any •working purpose. The condition of the fracture so affects his hips and other parts of his body and there is such attendant pain that he can remain sitting no considerable length of time. He cannot employ himself in work which may be done by one sitting; nor is there any work suggested which he may do. So the trial court finds. It may be noted in considering the seriousness of his injury that the packing company furnished him the best possible treatment and hospital service to effect a good result. It expended in that behalf $562.25, while the statute strictly roQuires but $100.00. The commendable effort of the company to effect a good result has resulted no more beneficially than we have stated. "Dudley was receiving wages at $18.50 per week, and he was awarded compensation on the basis of 60 per cent, or $11.00 per week, for 300 weeks This is the maximum in amount and time allowed for a temporary total disability. It is also the maximum in amount, and in time allowed, for a permanent partial disability. "The relator contends that the provision of the statute that the perma- nent loss of the use of a member shall be compensated on the basis of the loss of the member, which is in lieu of all other compensation, fixes the maximum compensation at 60 per cent of daily wages for the period of 175 weeks; and that an award beyond such period is not substantiated. "The provision for 60 per cent of wages for 175 weeks is in the portion of the statute referring to permanent partial disability. It is In connection with other provisions fixing a definite award for definite injuries. The com- pensation is for a definite period, a full period of 175 weeks, not for a maximum period of 175 weeks with a possible lesser minimum. We do not find authorities construing a provision quite like our statute, and we con- 108 fine our holding to the precise question before us. While the relator's contention is pressed with force, it is our view that it was not intended by the statute to limit compensation for such injury as we have here to com- pensate for the loss of a leg. The statute is to be construed liberally in favor of the employe. Dudley, aH the time of the trial and from the date of his injury, suffered a total disability, assumed to be temporary, and was entitled to compensation accordingly. It does not appear that the disability will be less within the period of 300 weeks. The parties have such right to readjustment, if occasion comes, as the statute gives them. G. S. 1913, Sec. 8222; State vs. District Court, 136 Minn. 147; Hunnewell's Case, 220 Mass. 351. "Order affirmed." (c) Actual Wage Not Average Wage. "Some confusion has arisen in regard to what wage to use as the basis for the compensation, owing to the practice in many other states of using the average wage. The point was raised in Betsy Carlson, widow of John Carlson vs. Twin City Co., Hennepin county, April 6, 1918. The defendant con- tended that the average earnings for a reasonable length of time prior to the injury should be the basis: of wages for the purpose of computing com- pensation." The court held that the actual wage at the time of injury is the proper basis of computation. In Joseph B. Miller, guardian of Margaret Spodeen vs. City of Minne- apolis, Hennepin county, August 30, 1917, the, court in the- case of a some- what irregular employe so far extended the time for reckoning actual wage as to go back a month from the date of. the accident. As this wasi a fatal case, the ruling was warranted by the language of the law in making the basis in fatal cases a percentagei of the "monthly wages." The court held: "That during the period from May 11, 1917, to June 13, 1917, Inclusive, the said Elsie Spodeen was in the employ of the city of Minneapollsi aver- aging two days per week, making the total weekly earnings of the aforesaid Elsie Spodeen 14.00 per week. "As a conclusion of law, the court finds that the said Elsie Spodeen was not a casual employe within the meaning of section 8202, General Laws of Minnesota as amended by chapter 193, General Laws 1913, and that the said dependent minor child, Margaret M. Spodeen, is entitled to and shall receive from the city of Minneapolis compensation at the rate of $4.00 per week beginning June 13, 1917, and payable fori a full period of 300 weeks from and after said date." (d) Net Wagest The only pronouncement by the supreme court In connection with the question of wages is found in the case of State ex rel. Gaylord Farmers' Co-Operative Creamery Association vs. District Court of Sibley County, 151 N. W. 182, 128 Minn. 486, where the question was whether the wages of an assistant, paid by the buttermaker for the creamery, should be deducted from the wage on which the compensation was to be reckoned. The court held that it should. The decision is as follows: "Brown, C. J. Relator is a corporation, organized under the laws of this state, and engaged in operating a creamery in Sibley county. For some years prior to his death, L. H. Kuhlman was in the employ of the company In the capacity of general manager of its affairs, clothed with full authority in respect thereto. Kuhlman met an accidental death on June 13, 1914, while engaged in the line of his employment, and his widow brought pro- ceedings to recover the compensation provided for by part 2 of the Work- men's Compensation Act. The trial court found that at the time of his death Kuhlman was receiving the sum of $110.00 per month as wages for the services rendered by him, and judgment was ordered in favor of the widow on that basis, as provided for by the statute. Section 14, chapter 467, Laws 1913. "There Is no substantial dispute in the evidence, and the conclusion to be drawn therefrom is one of law. Decedent had been in the employ 109 of the company for many years, and for a year or more prior to his death the company paid him monthly the sum of $140.00, and he was receiving that amount at the time of his death. This was not wholly for his compensation. He was authorized by the company to employ an assistant to aid in the work, whose compensation was to come out of the monthly allowance to decedent. Decedent was not required to employ help. It was optional with him whether to do so or not; but, if employed, the company wasi under no obligation to pay his wages, except as the same was included in the monthly allowance to decedent. An assistant had been employed, and he was engaged In the line of his work at the creamery at the time of the death of decedent, and was paid for his services at the rate of $40.00 per month, but from the $140.00 received by decedent from the company. This amount had been paid him for two or more months prior to the time in question, though previous thereto his salary had been $30.00. His salary was raised to $40.00 two months prior to the accident. "(1-2) From these facts, which as before stated are undisputed, we reach the conclusion that decedent'si salary at the time of his death was $100.00 per month, and not $110.00 per month, as found by the trial court. In fact, it would seem clear that decedent was receiving either $140.00 or $100.00 per month, and not an amount between these figures. It was the contention of the widow in the court below, and by her counsel in this court, that the court should have found the salary to be $140.00, because that sum was paid to decedent each month, and that it was of no concern to the com- pany what decedent did with the money; that the employment of an assist- ant rested wholly with decedent, and his wages were paid from decedent's total income. We do not sustain this claim. The purpose of the compensa- tion statute was to provide a percentage income to the widow, or dependent next of kin, based upon their pecuniary loss. Though decedent was paid this monthly sum of money, the purpose thereof was to defray the expense of operating the creamery, and in view of the fact that the employment of an assistant was necessary, and that his compensation was to be paid therefrom. On the facts stated, then $100.00 of this total amount belonged to decedent, and that amount only was devoted to the family support. This must therefore be treated as the pecuniary loss to the widow, and her per- centage allowance should be based thereon. "The cause therefore is remanded to the court below, with directions to modify Its judgment to conform to the views herein expressed. "No statutory costs will be allowed to relator." (e) Commission Included in Wages. A district court decision which makes it clear that commissions should be included in wages Is that of Charles H. Moope vs. Grossi Brothers, Ram- sey county, July 17, 1916. The part of the findings which relates to this point is as follows: "That on the 5th day of June, 1915, and prior thereto, plaintiff. Charles H. Moore, was a resident of St. Paul, Minn., and was employed by the defendant as a driver. Plaintiff was at said time receiving wages at the rate of $14.00 per week as such driver from defendant, and averaged $3.50 per week as a commission, a total of $17.50 per week." (f) Average Wage, Part-Time Employment. A decision regarding wages which is unique In this state was rendered by Judge Lewis In the case of Mary Klietz vs. Village of North St. Paul, Ramsey county, July 14, 1919. In this case a Minnesota court for the first time took cognizance of average wages, and also for the first time a rate of compensation was fixed which was much larger than could have been arrived at by applying the percentage rate to the actual earningsi of the decedent from the employer for whom he was working at the time of the accident. No authorities are cited in the decision. The man worked for two employers, but it was not a case of joint employment. He was killed while in the service of the one for whom he worked the shortest amount of 110 time. The rule hitherto followed has been that in such cases compensation is based only on what the man actually earned from the employer for whom he was working at the time he sustained the injury. Inasmuch as similar cases occur not infrequently and as this decision may be quoted as a precedent, we are presenting it in full: "After listening to the evidence of said plaintiff and her witnesses and the stipulation of the respective counsel in said case, and being duly advised in the premises, the court finds as facts: "That the plaintiff, Mary Klietz, is the mother of Marie KUetz, a minor of the age of 15 years, and the mother of Fred Klietz, a minor of the age of 12 years, and ever since the death of their father as hereinafter stated said Mary Klietz has had the care, custody and control of both of said minors and brings this action in her own behalf, and in the behalf of said minors, and for their benefit, pursuant to the statute in such case, made and provided; and that the defendant above named is a municipal corpora- tion duly organized, created and existing under and by virtue of the laws of the state of Minnesota with corporate name as above set forth, and as a part of its business as such municipal corporation it owned, controlled and oper- ated an electric lighting plant within the city limits of said village of North St. Paul, and in the generating and distributing of elecricity from place to place in said village for lighting and other purposes, and was engaged in conveying said electricity over wires strung from poles owned and controlled by it, and employed certain men for the purpose of stringing said wires and making house connections with its own wires and plant so as to distribute said electricity for public use In said village, and that the plaintiffs and defendants are both residents of the village of North St. Paul, county of Ramsey, state of Minnesota, and that on the 9th day of October, 1918, and at the time of the accident, hereinafter referred to and for some time prior thereto, Charles Klietz, the husiband of Mary Klietz, and the father of Marie Klietz and Fred Klietz, the plaintiffs above named, was a workman engaged in manual and mechanical labor, and was employed by the defendant in the capacity of assistant lineman and meter reader during the afternoons, and in such times as said defendant had employment for him, and at such times' as he would be able to devote his time in doing said work which said defendant was to pay said Charles Klietz for all services to be performed by him for said defendant on the basis of 35 cents per hour. That in addition to said employment for said defendant said Charles Klietz, with the full knowledge and consent of said defendant, was employed by others during other portions of the day and that his average monthly earn- ings amounted to the sum of $114.60 at and prior to the time he was injured and killed as hereinafter stated, and when at work on full time, and that the average weekly earnings during said period of time, and for a long time prior thereto, was the sum of $24.00 per week. "That on the 9th day of October, 1918, at about 2:30 o'clock in the afternoon of said day while said Charles Klietz was in the employ of said defendant and making a house connection with the electric wires of said defendant at a point in said village of North St. Paul, at or near the inter- section of Seventh street and Norris street in said village of North St. Paul, and while running two certain wires which had been connected by him and the superintendent of said village of North St. Paul, to a certain house located near the southwesterly corner of Norrlsi and Seventh streets In said village, and after fastening said wires to a certain pole onj the southwest corner of said Seventh and Norris streets in said village, and after extend- ing the same across said Norris street for the purpose of attaching said wires to said pole so located on the southeast corner of Seventh and Norris streets so as to connect said wires with the main feed wires oC the electric plant of said defendant, and while said Charles Klietz was in the act of passing said wires to the village of said defendant over the telephone wires of the St. Paul Gas Light Company and St. Croix Power Company, and under the electric wires of said latter named companies, at or near pole on the southeast corner of Seventh and Norris streets in said village 111 of North St. Paul, and said wires in the hands of said Charles Klietz came in contact with the uninsulated heavily charged electric wires of said latter named companies, and said Charles Klietz received a terrific shock of elec- tricity from which he was instantly killed. "That said accident and injury resulting in the death of said Charles Klietz arose out of and in the course of his employment as aforesaid and that such injury was caused by necessary risk or danger of such employ- ment and by reason of coming in contact in the course of his employment with the uninsulated wires of the St. Croix Power Company and St. Paul Gas Light Company, owned, contro'led, maintained and operated by sairl latter named companies along said Seventh street in said village of North St. Paul, and that by reason of said death of said Charlesi Klietz as afore- said funeral expenses were incurred aggregating more than $100.00 and that said defendants had actual knowledge of the occurrence of the injury and death of said Charles Klietz, deceased, at the time thereof, and of his addressi, and that compensation will be claimed therefor as required by law, and that said plaintiffs claim from the defendants, compensation of $11.00 per week, commencing on the 9th day of October, 1918, for a period of 300 weeks, together with said funeral expenses of $100.00 as allowed by law. "That said defendant has refused to pay the said sums and has not paid said plaintiff any sum whatsoever, but Is willing to have said sums determined by said court, as it claims that the St. Paul Gas Light Company p.nd St. Croix Power Company are liable to said defendant under their franchise and under the compensation laws. That said plaintiff, Mary Klietz, the widow of Charles Klietz, and said Marie Klietz and Fred Klietz, his minor children, were wholly dependent upon said deceased for their support and maintenance, and are entitled to recover herein the sium of $11.00 per week, for a period of 300 weeks, commencing on the 9th day of October, 1918, and continuing thereafter for a period of 300 weeks, and that there is now due said plaintiffs the sum of $529.00 for compensation and funeral expenses. "That the plaintiffs are entitled to recover from the defendant herein for their use and benefit the sum of $11.00 per week, for a period of 300 weeks, commencing on the 9th day of October, 1918, and continuing there- after for a full period of the dependency of the plaintiffs. That the amount now due from said defendants to the plaintiffs, including funeral expenses, aggregated the sum of $529.00, and that said defendant pay to said plaintiffs the balance of said sum of $2,871, in weekly payments of $11.00 per week, together with all costs and disbursements of this action." (g) Interest on Accrued Payments. A decision which it noteworthy for its allowance of interest on accrued payments is that of the Hennepin county court in the case of Gust Ring vs. Casualty Company of America, December 8, 1916. The typ^ of injury was the permanent partial. The court found: "That the injuries received by said employe, Gust King, resulted in a deformity and shortening of his left leg, and that he has sustained a perma- nent disability to his left leg and hip and of the bones, muscles and tendons thereof, and has sustained the permanent loss of the use of his left leg and hip. "As conclusions of law the court finds that the said Gust Ring, as such employe, is entitled to recover of and from said Casualty Company of America, as the insurer of said Electric Short Line, and that said Casualty Company of America shall pay to said Gust Ring the amounli of $6.00 per week, for and during the full period of 175 weeks, the said amount being the minimum amount allowed by law for said injuries, and it appearing that there hq.s been paid to said Gust Ring at the time of the signing of this order the sum of $114.00 on said amount, the balance due shall be paid as follows: That the past due payments for 89 weeks, less the amount of $114.00 paid, shall be paid to plaintiff! in a lump sum, and the future pay- ments for said period shall be paid to plaintiff once in every four weeks. 112 "That the plaintiff be awarded and havei and recover of the defendant the sum of $10.00 as and for costs, and $25.00 as and for medical expert witness fees, and also the sum of $43.00 as and for interest on all unpaid payments now due, and his disbursements herein to be taxed and allowed by the clerk of this court." (h) Accrued Compensation Part of Estate. The matter of accrued compensation in the event of an employe's death was presented to the attorney general in the following manner by the department: "An employe was Injured on the 7th day of February and died as a result of said injuries on or about the 12th day of April. He was therefore entitled, before his death, to approximately six weeks' compensation for temporary injury under section 13a. He left no dependents within the pro- visions of section 14 of the act, the only heirs consisting of adult children. The employer was therefore liable for his death only to the amount of $100.00, as provided by section 14, sub-section 16 of the act entitled 'No dependents.' "The question has arisen whether or not the six weeks' compensation to which the decedent was entitled before his death constitutesi one of the assets of his estate provided such compensation was not paid by the employer, or whether the claim for his temporary disability compensation dies with the decedent?" The advice given by the attorney general was as follows: "I beg leave to advise you that the earned compensation under the law provided for in section 13a becomes an asset in his estate, it having been earned and his right to claim the same having been established before his death, it becomes such a claim as to make up part, or at least, an asset of his estate." (i) Meaning of Word "Substantially." On the construction of the word "substantially," as used in section 22 of the compensation act, the attorney general has given the following opinion: "The word 'substantially,' must be construed in connection with the words 'in accordance.' I am of the opinion that the words, 'substantially In accordance,' mean all that Is necessary or essential to comply with the provisions of sections 13 and 14. "Lineberger vs. Tidwell, 104 N. C. 506. "This was a case where the statute provided that certificates of the examination of a married woman should be substantially according to a form prescribed in the statute. I am not aware of any decision of our supreme court construing the word 'substantially' as used in this state. All the decisions that I have been able to find refer principally to contracts. I think that if a settlement Is made in which the employe or dependents receive everything which the law contemplated they should receive, although not exactly as provided for in sections) 13 and 14, still to all intents and purposes it was what the legislature Intended they should receive, then I think that would be a settlement substantially in accordance with sections 13 and 14." (J) Waiting. Period. The department presented before the attorney general the question of when the waiting period begins in the following terms: "An employe was injured by straining himself so as to produce a hernia. He did not at first realize the extent of his injury, but after consulting a doctor and learning of his true condition, and being fitted with a truss, he continued to work for nearly ten weeks. Finally at the suggestion of the insurer of his employer he was persuaded to submit to an operation in order to effect a cure so that the injury would not become aggravated. He was not entirely disabled for work until he went to the hospital for his opera- 113 tion. Must he submit to the two weeks waiting period before receiving .compensation for his Inability to worlc, or Is he entitled to compensation from the first day of his disablement because the act reads "for the first two weelis after Injury received?" The attorney general advised as follows: "I would advise you that the two weeks mentioned in that section dates from the time of the injury, whenever that may be." In effect, therefore there is no waiting period in a case of this type. ' ' 2. TOTAL TEMPORARY The difficulties in connection with total temporary disability usually relate to the fact of the existence of disability or the question oC when it terminates. (a) Termination of Disability. A decision which has a bearing on this is that of Judge Pesler in the case of The IVIoKinney _Steel Co. vs. Adolph Krazor, St. Louis county, March 1, 1919. The action was brought by the employer in order to have the amount of compensation determined. The court took into consideration the fact that the injured man had been offered employment and had refused it A portion of the findings which is of interest follows: "That on the 21st day of August, 1918, while said employe was in the employ of the employer, and while he was engaged in his duties as a brake- man in and about the underground workings of the Commodore mine, he was struck by one of the cars used in said mine and seriously injured, towit: His collar bone was fractured, his right and left arms above the elbow were bruised, and his left ear and scalp superficially cut, whereby said employe was totally disabled until on or about November 20, 1918. That thereafter said employe was able to do light work and was offered employ- ment thereat for substantially the same wages that he had earned prior to his Injury, but said employe neglected and refused to accept such employ- ment." The award therefore ended compensation on November 20, 1918. (b) Proviso for Temporary Partial Disability. Frequently the period of total temporary disability is followed by one of partial disability. In the case of Eli Sigurnjak vs. The Commodore Min- ing Co., St. Louis county, June 28, 1918. Judge Hughes made elaborate pro- vision for whatever state of circumstances should follow the total disability. His conclusions of law are as follows: "The employe is entitled to judgment against the employer as follows: "For the sum of five hundred forty-six and 36/100 dollars ($546,36) as compensation for his said injuries to the date of the trial of this action, the same being the sum of twelve dollars ($12.00) per week from the 11th day of July, 1917, to the 18th day of May, 1918, a period of forty-four (44) weeks and three days, and interest on such payments as they became due at the rate of 6 per cent per annum. "That if the employe will forthwith present himself to the said employer and offer to undertake and do such work at such wages as said company may offer him and shall offer to forthwith enter upon such service as may then be given him and shall offer to gradually increase his work as he is fairly able to do so. In such event the employe shall receive th© sum of twelve dollars ($12.00) per week from the 18tQi day of May, 1918, until he does so present himself for work and make such offer, but if said employe does not forthwith so present himself and make such offer in good faith, then all compensation hereunder, except for said total disability to May 18, 1918, shall cease until this matter has been brought before the court for further examination and hearing. "If said employe shall so forthwith present himself to said employer and make such offer, as aforesaid, and said employer shall refuse or neglect to forthwith give the employe employment in light work which may be 114 gradually increased, In such event the employe shall receive compensation at the rate of twelve dollars ($12.00) per week from said 18th day ol May, 1918, until he shall find employment and shall he paid wages thereunder. "In case said employe is ahle to perform work offered him by said employer, he shall, in order thereafter to be entitled to further compensation for his said injuries, be required to forthwith accept said employment and make an honest effort to perform work he undertakes and if he finds that he is unable to do such work, he may, nevertheless, be entitled to further compensation, provided he makes an honest effort to find other employment and makes an honest effort to perform the same. And in case said employe performs services for the employer as hereinbefore provided, or for other employers in case he is unable to do the work offered by this employer, then he shall be entitled to compensation at the rate of 60 per cent (60%) of the difference between said sum of three dollars and sixty-five cents ($3.65) per day which he was earning at the time of said injury, and the wages he shall be able to earn, or shall earn, in his pai-tially disabled condition, such compensation to be subject to a maximum of twelve dollars ($12.00) per week until he shall be found to be able to do full work at full wages, for a period, however, not exceeding three hundred (300) weeks. "In no event shall compensation extend beyond a period of three hun- dred weeks from and after May 18, 1918. "Either party, the employe or the employer, may at any time before final settlement and final receipt herein bring this matter before the court for further examination and hearing." (c) Conflicting Evidence, Summary Finding. The decision which illustrates the difficulty which a judge sometlmeB has in deciding as to the extent of disability is that of Pine Tree IVIanufac- turing Co. vs. Albert PierzinskI, Morrison county, July 12, 1919. Judge Roeser ruled as follows: "The testimony received at this hearing shows that this man received a very serious injury. Some of the experts, as is usual in these cases, do not agree. One expert doubts that this man had a fracture of the base of the skull, while the attending physician testifies that he had such a fracture and bases such diagnosis upon the fact of unconsciousness or semi-uncon- sciousness for some days and the bleeding from the ears. It seems that as a result of such accident and injury the defendant suffered traumatic neurosis, which, as I understand, is a derangement ofl the nerves caused by injury. The evidence of the learned medical men differs on the questions as to whether he has fully recovered. There seems to be no doubt that he has fully recovered from all bodily injury, but on the question as to whether any injury to his nervous system and to his mentality has become cured the evidence is not so positive, but leaves it in some doubt. The experts seem to agree that a man's nervous system may become so deranged through injury that he believes in good faith that he is still suffering from the effects thereof, and that if such be the case, then he is not fully recovered until his mental condition is such that he no longer labors under such apprehension. They also seem agreed on the proposition that a person who receives an injury sometimes pretends to be still suffering from the effects thereof when they have in fact fully recovered. Such persons are considered malingerers, while others may be malingering, but do it unconsciously. "A condition of this kind is, of necessity, puzzling even to a court, in spite of all of its wisdom and experience. "I have carefully considered all of the testimony of the witnesses, including that of the defendant, and have observed his conduct and appear- ance on the stand, and hereby find that this man will be fully recovered from the effects of such injury within a year after sustaining the same." 3. PERMANENT PARTIAL Two questions of a general nature relating to permanent partial dis- abilities have been before the supreme court. The most important of these 115 dealt with the proper basis of rating when subsidiary parts and major parts mentioned in the specific schedule are both affected. The test that the court set up was the question which constituted the greater disability. (a) Greater Disability tlie Test. The case is that of State ex rel. Broderick Co. vs. District Court of Ram- sey County, November 21, 1919, 174 N. W. 826. The finding is as follows: "1. The Intent and purpose of the Workmen's Compensation Act was to secure to an Injured employe compensation to the extent of the disability actually sustained, and the provisions as to payments for specific injuries must yield thereto when taken together they create a greater disability. "2. The findings of the trial court that the injuries referred to in the opinion created a permanent partial disability of plaintiff's hand held sus- tained by the evidence. "Judgment affirmed. "Certiorari to review a judgment of the district court of Eamssy county in a proceeding under the Workmen's Compensation Act. The tacts are substantially as follows: Plaintiff in the proceeding on the 17th of August, 1918, was in the employ of defendant in its printing establishment as a press feeder. In some accidental way her left hand was caught in the machine she was operating and was severely mangled and injured. The trial court found that the little finger was so seriously mangled as to necessitate ampu- tation at the middle of the fourth metacarpel bone; that the third metacarpel bone was fractured, and not having been reduced, united irregularly and in a curved shape, thereby shortening it a quarter of. an inch, impairing its power and usefulness; that as a consequence of the injury, infection Intervened as a contributing cause to lessen and reduce the effectiveness of plaintiff's left hand as a whole; and further that the usefulness of the hand had thereby been reduced and destroyed one-half, constituting a permanent partial disability within the meaning of the compensation act. Judgment was ordered accordingly. "The only question presented by the record is whether the findings of the court to the effect that plaintiff suffered a permanent partial disability are sustained by the evidence. Or examination of the record discloses ample evidence to support the finding. A discussion thereof would serve no useful purpose and we refrain. While the compensation act makes express provision for the loss of fingers, from the thumb down, it does not necessarily follow therefrom that an injury of the character here disclosed should be treated as a matter of law as the loss of the little and ring fingers only. If the nature of the injury in such a case taken as a whole show by relation a reduction in the power and usefulness of the hand, as well as the injury to and loss of the fingers, the court may and properly should find the tact accordingly, for the intent and purpose of the compen- sation act secures to the injured employe compensation for the disability actually sustained. State ex rel. Kennedy vs. District Court, Clay county, 129 Minn. 91. "Within the rule guiding us in cases of this character, the evidence sus- tains the findings and judgment must be and is affirmed." (b) Net Concurrent for Two Injuries. In State ex rel. Minneapolis Office & School Furniture Co. vs. District Court of Hennepin County et al., May 11, 1918, 162 N. W. 527, 136. Minn 447, the supreme court held that compensation for two permanent partial disabilities sustained at the same time should not be concurrent. The rul- ing follows: „ ^^ „ , ^ "The facts are not in dispute and are as follows: T. H. Gustafson was in the employ of relator, and on March 2, 1917, while engaged in the per- formance of his duties, sustained an accidental injury, resultmg in the loss of the thumb and index finger of his left hand. He was entitled under clause 116 (c) of section 8207, as compensation for the loss of his thumb to 50 per cent of his weekly wage for the period of 60 weeks, and for the loss of the Index finger to 50 per cent of such weekly wages for the period of 35 Weeksl Gustafson was earning, at the time of the injury, $15.00 per week. The trial court held that payments for each injury should be made concurrently, and judgment was ordered for $15.00 per week for 35 weeks, and for $7.50 pet week for the next succeeding 25 weeks, making a total of 50 per cent of his weekly wages for a period of 60 full weeks. The only question presented is whether the trial court was right in that conclusion. "That view of the statute cannot be sustained without wholly eliminat- ing clause (a) of section 8207, wherein it Is provided that the maximum compensation for injuries of the character of those here Involvefi shall not exceed $10.00 per week, for a period not exceeding 300 weeks. Gustafson suffered two distinct injuries, for each of which he was entitled to one-halt his weekly wage, or $7.50 per week, for the specified number of weeks, namely, 60 weeks for one, and 35 weeks for the other injury. If the pay- ments run concurrently, $15.00 per week must be paid, and this will exceed the maximum fixed by the statute. This feature of the statute cannot be ignored, or tte particular provision brushed aside as unimportant. It must be recognized and effect given thereto. But this can be done only by requiring payment for each injury separately during the period of time prescribed by the statute, one to follow the other. That would not violate the maximum, either as to amount or the limitation of time. "The only authorities upon the question which has been called to ou* attention sustain that view of the question. George W. Helme Company vb. Middlesex C. pi. Court, 84 N. J. Law, 531, 87 Atl. 72; Fredenburg vs. Empire United R. Co., 170 App. Div. 942, 154 N. Y. Supp. 351. In the first case citefl the employer contended, in a situation like that here presented, namely, two or more distinct injuries, that the payments should run concurrently, but could not in the aggregate exceed the maximum fixed by the compensation statute, and must cease at the expiration of the period prescribed by law. The court rejected the contention and held that the payments should be required for the separate injuries for a period of time prescribed for each, one following the other. The same conclusion was reached In the New York case above cited. The statutes there construed are the same as our com- pensation law, and we think the rule there applied the only one the statute will bear, without violence to the express maximum limitation as to weekly payments. "The case will therefore be remanded to the court below, for a modifi- cation of its judgment in harmony with this view of the statute. No statu- tory costs allowed." (c) Vested Right. The question of whether permanent partial compensation is a vested right has been raised a few times in this state, but has never been presented to a court. It is desirable that this be definitely settled. In one instance where the department was requested for advice, the following discussion of the matter was given, which might prove of Interest: "We have your letter In which you ask for an opinion on the following state of facts: "An employe sustained the loss of two fingers while in the course of his employment. He was entitled to sixty-five weeks compensation at $11.70 per week, and after being paid regularly for 36 weeks, he committed suicide. Is the compensation for the remaining 29 weeks a vested right? "There Is no Minnesota decision coverinsl this question. The trend of all American decisions seems to be contrary to the vested right theory. "In Schoenrelter vs. The Quincy Mining Co., Michigan Industrial Acci- dent Board, September 8, 1918, the employe had suffered the loss of a finger and died six weeks later of peritonitis. The board held the widow was 117 entitled to accrued compensation, but not to the later payment that would have been made had the man lived. ,„,„"^° Tickzus vs. Standard Office Co., Illinois Industrial Board, April 30 ]918, a similar ruling was made, but this was based on specific language in the Illinoia act. & &<= "In Erie Railroad Co. vs. Callaway, 102 Atl. 6 (N. J.), the claim of vested right was also denied. "The case of Lahonia Oil Co. vs. State Industrial Commission, 175 Pac 836 (Okla.), is not exactly in point.. Compensation had been awarded for 500 weeks. The employe died as a result of the injury. The Oklahoma act does not provide compensation in case of death and on this ground the court held that the compensation should cease. "The recent decision of the New York Industrial Commission in Frank Twonko vs. Rome Brass & Copper Co., also fails to apply because this touches rather the question of accrued compensation. "In conclusion we would say that the probability is strongly against compensation being a vested right. "We would be very glad, however, to have the point ruled upon by one of our district courts so that a precedent could be set for Minnesota." (d) Eye, Light Perception Only Left. In the case of Helmer Strom vs. Arthur Iron Mining Co., St. Louis county, August 3, 1915, the court held that where there was a 90 per cent loss of the sight of an eye and no use remained except perception of light, the basis of compensation should be total loss of vision, or 100 weeks. A stipulation presented by the parties stated: "It is further agreed that the injured suffered a loss of ninety per cent (90%) of the sight of his left eye, as the result of the injury received on the 8th day of November, 1913, this fact being established by an examination and report made by Dr. Clarence E. Lum, on June 1, 1915." The court found "that by said injury said employe suffered the loss of sight of his left eye to such an extent that he is only able to distinguish light, and cannot discern and distinguish objects in front of the eye, and that the said eye is, for all purposes, lost to him and the sight of said eye cannot be restored, and the loss of the said eye is permanent." (e) Both Eyes Injured, How Compensated. Whether a workman who has suffered injuries to both his eyes should be compensated on the basis of the amount of sight oi each eye lost, or in the proportion his loss bears to total loss of sight and hence total disability, is a question that has arisen several times. The opinion of the attorney general on this is: "You call attention to a case in which an employe received injuries resulting in the complete loss of one eye, and an injury to the cornea of the other eye, probably permanent in its character, and impairing the use of the eye to the extent of 10 per cent. You further indicate that the employe was earning wages which would entitle him to the maximum compensation of $11.00 per week, and your inquiry is whether under the Workmen's Com- pensation Act the workman is entitled to demand compensation at the rate of Ill.OOi per week for 100 weeks for the loss of one eye, amounting to a total of $1,100.00, plus one-tenth of this sum for the injury to the second eye; or whether he is entitled under the provisions of the sub-section (d) of section 13 of the act to demand compensation under the provision cover- ing permanent total disability. "I am of the opinion that sub-section (e) of section 13, above referred to, defining permanent loss of the sight of both eyes as constituting perma- nent total disability must be given controlling effect in answering the inquiry, and that in the case you instance the employe has not met with permanent total disability as therein defined. 118 "As I read the act in question, no provisions are made for compensation for a fractional part of total permanent disability. "In paragraph (c) of section 13 of the act it is provided that the com- pensation for the loss of an eye shall be 50 per cent of daily wages during 100 weeks. Then follows the provision that: 'In cases of permanent partial disability due to injury to a member, resulting in less than total loss of such member not otherwise compen- sated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss of the respective member, whiCh the extent of injury to the member bears to its total loss.' "The schedule, as we have seen, fixes the compensation for the loss ol an eye at 50 per cent of daily wages for a period of 100 weeks, or under the section just quoted, where the injury results in partial disability to an eye, the injured employe is entitled to be paid at the rate for thai part of the specified period which tlie extent of the injury bears to its total loss. "I am of the opinion that paragraph (d) of section 13 relates alone to permanent total disability, and as total permanent disability as applied to the eyes is defined to mean the loss of both eyes, that section has no appli- cation." (f) Hearing, One. Ear. Loss of hearing in one ear Is not clearly provided for by the Minnesota Compensation Act. The only guide for determination is the 156 weeks allowed for total loss of hearing, and the general clause providing that par- tial loss of a member shall be compensated in the proportion that the extent of injury to the member bears to its total loss. In the case of John Wheeler vs. Barnett & Record Company. St. Louis county, November 9, 1916, the dis- trict court rated loss of hearing in one ear at one-half of total loss of hear- ing. This would make loss of hearing in one ear compensable for 78 weeks. The ruling Is: "While so in the employe of said Barnett & Record Company in the month of May, 1916, said John Wheeler sustained an injury by an accident arising out of and in the course of his said employment, which injury resulted In the permanent injury to his left ear, causing partial permanent loss of hearing to the extent of 33% per cent thereof. "By reason of inadvertance, said employe failed to give notice of said injury to said employer within 30 days from date of the injury, but due notice thereof was given within 90 days from the date of said accident; and the employer has not shown that it was prejudiced by failure to receive such notice within said 30 days period. "Plaintiff is entitled to recover of the defendant the sum of $11.00 per week for a period of 26 weeks together with $21.70 on account of medical services, amounting in all to $307.70, and all payable on November 29, 1916, together with costs and disbursements herein, to be taxed." (g) Finger, Partial Loss, There has always been considerable doubt as to the proper way to compensate the loss of a portion of the first phalange of a finger. The law provides that the loss of the firsit phalange of a finger shall be considered as loss of one-half of the finger. The contention has been advanced that the loss of any portion of the first phalange shall also be compensated in this way because such loss practically results in the lossi of use of the phalange. This question was presented to the court in Isaac Lindberg vs, London Guarantee & Accident Co., Hennepin county, October 16, 1918. Judge Rock- wood ruled in favor of assessing the actual loss to the phalange, considering the phalange as one-half of the finger. The finding is, in part, as follows: "That while engaged in operating said jointer machine the' end of his right thumb came in contact with a certain knife or knives attached to the cylinder head of said machine, and was thereby severed and amputated at 119 a point about one-eighth of an Inch outward from the base of the nail, leav- ing a small portion of the nail still remaining. "That at the time of meeting with the said injuries, plaintiff was earn- ing and receiving from said Schoch Parlor Frame Co. the sum of eighteen and no/100 dollars ($18.00) as weekly wages. "That said injury has resulted in the involvment and loss of sixty-six and two-thirds per cent (66%%) of the first joint or phalange of plaintiff's right thumb." (h) Hand, Not Loss of Arm Also. In the case of State ex rel. James Kennedy et al. vs. District Court of Clay County et al., October, 1914, 151 N. W. 530, 129 Minn. 91, the supreme court reversed the lower court which had given compensation for the loss of use of the hand and also for the loss of use of the arm sustained in the same accident. The opinion follows: Certiorari to review the decision of the district court of Clay county on a hearmg under the Workmen's Compensation Act. The plaintiff was Alex Rohrenbach, the defendants, the relators in this proceeding. Eohrenbach was injured while performing his duties as an employe of the defendant, Kennedy, a ditching and grading contractor. His hand was drawn into the gears of a ditching machine, crushed and badly torn. The only questions in the trial court and here relate to the nature and extent of the injuries and the basis of compensation. The trial court found that plaintiff's hand was crushed, the flesh, muscles and tendons thereof torn; that these injuries so affected the hand as to cause the plaintiff to lose to a large extent the power to flex the fingers or to grip or use the ordinary workman's tools that he was accustomed to use in the work he was qualified and accustomed to do; that the circulation of blood in the hand was greatly impeded and the nerves of sensation and control impaired to a considerable extent. These injuries, the court found, resulted in the permanent partial disability of the hand, amounting to at least 85 per cent of the total disability or the loss of the use thereof. The court further found that plaintiff also suffered injuries to his right arm "by crushing of the bones thereof, and the straining and tearing of tho ligaments and muscles of said arm, all of which has caused the permanent partial disability of said arm to the extent of at least 35 per cent of the total disability of the loss of the us© thereof." The court found that plaintiff had sustained damages to the hand in the sum of $956.25, and to the arm in the sum of $525.00. It computed the present net worth of the recovery a $891.19 for the injuries to the hand, and $504.32 for the injuries to the arm, making a total recovery of $1,395.51. Judgment was entered in accordance with this decision and the case brought here by certiorari. The provisions of the Workmen's Compensation Act (Laws 1913, chapter 467, G. S. 1913, chapter 84a), that are involved in this case are as follows: (c) "For permanent partial disability the compensation shall be based upon the extent of such disability. In cases included within the following schedule the compensation shall be that named in the schedule, to-wlt: "For the loss of a hand, 50 percentum of daily wages during one hun- dred and fifty weeks. "For the loss of an arm, 50 percentum of daily wages during two hun- dred weeks. "In all cases of permanent partial disability within the foregoing sched- ule, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member." Plaintiff's wages were $15.00 per week. The trial court allowed 85 per cent of total disability for the injury to the hand, or one-half of the wages dliring 127% weeks, and allowed, in addition, 35 per cent of total disabUity 120 for the injuries to the arm, or one-half of the wages during 70 weeks. This made a total allowance of one-half of plaintiff's wages during 197 Ms weeks, only $18.75, or two and one-half weeks less than the schedule allows for the loss of the entire arm at the shoulder. As the court found only 85 per cent of total disability to the hand, and 35 per cent of total disability to the arm, and as it is perfectly plain that plaintiff's injuries do not begin to be as serious as would be the entire loss of an arm, there is something wrong with the result reached by the trial court. We think the trouble arises largely, if not wholly, with the attempt of the trial court to separate the injuries into two units, those to the hand and those to the arm. The record does not leave it entirely clear whether the court intended to find a permanent partial disability in the arm above the elbow. The evidence shows that the bones of the arm that were crushed and the ligaments that were torn were wholly in the wrist and in the forearm, but there is some evidence that muscles in the shoulder were strained. Whether there was anything permanent in those injuries is left in doubt by the evidence. The act provides (G-. S. 1913, section 8230 "k") that "amputations between the elbow and the wrist shall be considered as equivalent to the loss of a hand." We think that injuries between the elbow and the wrist should be considered injuries to the hand. Rakisc vs. D. L. & W. R. Co. (N. J.), 85 Atl. 953. If there were no injuries except to the hand and forearm.we think the court should have awarded compensation based upon a percentage of total disability to the hand. If there were permanent injuries to the arm above the elbow, the court should not have attempted to separate these injuries from those to the hand, but should have found the percentage of total disability to the arm as a whole, and should have awarded compensation accordingly. If the division of the arm into two units for the purpose of fixing compensation under the act is proper, there would be no reason for saying that the thumb, the different fingers, the phalanges of the thumb and of each finger, might each be considered as a separate unit and the compensation allowed for these injuries added together and added to the compensation allowed for the loss of a hand or arm. This was plainly not the intent of the law. There should be but one unit for measuring the injury and the compensation to be awarded. We are unable to say what percentage of total disability the trial court would have found if it considered the disability of the arm as a whole, or If it had found a permanent partial disability to the hand alone, and the evidence does not warrant us in fixing the proper compensation. The case must go back to the trial court for new findings in line with the views we have expressed. Judgment reversed. (i) Hand, When Fingers Lost. When there is a great degree of injury to all tlie fingers and the thumb, the question has arisen in many instances as to what should be the proper basis for compensation, a proportion of the amount for loss of fingers, a partial loss of use of hand or a total loss of hand. In the case of Leiia Kuraske, alias iLelia Quance vs. Northern Bag Co. and the Millers Mutual Casualty Co., Hennepin county, January 9, 1918, the employe had lost por- tions of all the fingers and the thumb at the middle of the second phalange. The insurer contended that settlement should be limited to partial loss of hand, but Judge Dickinson ruled that the basis should be total loss of hand. The finding is, in part, as follows: "That on or about the fifth day of July, 1917, at or about the hour of 12:45 o'clock P. M., and while said Lelia Kuraske was operating a power machine in the factory belonging to the said Northern Bag Co., and while In the scope of her employment, her left hand was accidentally caught between two steel rollers of said power machine in such a manner that the four fingers of said left hand and thumb were crushed and ground in such a manner that it was necessary, therefore, to amputate the four fingers of said hand beyond the third phalange of each and necessitating the ampu- 121 tation of said thumb of said hand at about the middle of the second phalange; that by reason of said accident the said Leila Kuraslte has com- pletely and permanently lost the use of her said left hand." (J) Leg, Ankylosis of Knee. In a serious injury to the knee. Judge Rockwood made a finding of total loss of use of leg. The case is that of John Gatzek vs. City of Minneapolis, Hennepin county, September 18, 1918. The man had sustained a fracture of the femur and ankylosis of the knee. The finding of the court was: "That on and prior to December 4, 1917, John Gatzek was employed by the city of Minneapolis as a laborer, at a weekly wage of $16.80, and that while so employed he sustained an accidental Injury, consisting of a frac- ture of the left leg, which has resulted in partial permanent disability, and that an examination of the said John Gatzek was made on September 2, 1918, by Dr. H. J. Gunderson, pursuant to a certain agreement by and between the parties hereto, and that the report of the said Dr. Gunderson is now before this court in writing, and that this man has sustained a perma- nent Injury equal to the total loss of function of the left leg." (k) General Scihedule, Eyes. At the conclusion of a specific schedule for permanent partial injuries the compensation act contains a clause which states that "in all other cases of permanent partial disability not above enumerated, the compensation shall be based on the wage of the workman at the time of injury and the wage he is able to earn in his partially disabled condition, compensation to con- tinue during disability, but not beyond 300 weeks." The most important finding under this section is that of the supreme court in a case of injury to both eyes, which, together with a previous injury, left a man practically blind. The style of the case is State ex hel. Melrose Granite Co. et al. vs. District Court, Seventh Judicial District (Zinken vs. Melrose Granite Co.), 173 N. W. 857, 143 Minn. 397. The finding is as follows: "This was a proceeding under the Workmen's Compensation Act, in which Zinken, an employe of the Melrose Granite Co., was awarded com- pensation, and his employer and Its insurer, the Travelers Insurance Co., In which it was insured, by writ of certiorari, bring here for review the judg- ment entered for the amounti awarded. "Zinken was a stone mason employed on July 20, 1915, by the granite company in laying the foundation walls of a building it was erecting. Mor- tar was brought to him by a fellow workman, whose duty it was to deposit it on a mortar board. In doing so, he carelessly splashed some of the mortar into Zinken's face and eyes, and the lime burned hisi right eye so badly that it became necessary to remove it, and also Injured his left eye as hereafter stated. Several years before, Zinken's left eye had been struck with a hammer and quite seriously injured. It healed, but the pupil was elongated, there was some adhesion of the iris to the cornea, some scar tissue formed over the cornea, and the eye lacked the power of accommoda- tion. In consequence of this injury, it had lost one-half of its normal power of vision. Zinken's wages was $24.30 per week^ The accident totally disabled him from thereafter earning any wages. One thousand one flundred dollars was paid him in installments of ?22^00 each, pursuant to an agreement for a settlement executed in August, 1915. On June 16, 1917, when the final installment was paid, he executed a release of all further claim he might have against his employer and the insurance conipany In July, 1918, he commenced this proceeding. The trial court found that his left eye, as well as the right, was burned by the lime, and that the scar tissue over the cornea was thereby enlarged to such an extent that he had lost all practical vision, being only able to have light perception through a small section of the cornea. It was found tha ^e was entitled to receive $3,300.00, total compensation, less $1,100.00 which had been paid, and that the release given in consideration of the payment of the latter amount was 122 not binding upon him for the reason that he signed it because he was told and believed that It was a receipt like the other receipts he had signed as the several installments were paid. "As presented in argument, the questions are: (1) Was the court justified in finding that lime was splashed in Zinken's left eye? (2) Was It justified in disregarding the settlement and release? (3) If both questions are answered in the affirmative, was the correct amount awarded as com- pensation? "No useful pupose would be served by a review of the evidence bearing on the question of whether lime was or was not splashed in Zinken's left eye. His own testimony, if credited, would support a finding that it was. The testimony of Tr. Whiting to the contrary is quite persuasive. There might have been a finding either Way, hence, we are not required to hold that the finding in his favor is manifestly against the clear preponder- ance of the evidence, and it cannot be disturbed. State ex rel. Adriatic M. Co. vs. District Court, 137 Minn. 435. "Zlnken testified that Dr. Whiting, who was employed by the Insurance company to attend him, told him, after removing his right eye, that he would be paid $11.00 per week for 100 weeks, that this was the amount allowed by law for the loss of one eye, and that in a short time he would be able to use his left eye as well as ever. Compensation was agreed upon on that basis and payments were made at intervals of two weeks. He was required to sign a receipt for each installment. His employer's bookkeeper told him to sign a paper, saying it was the same as those he had signed before. This paper was the release already referred to. Dr. Whiting testi- fied that he told Zinkcn not to go to the expense of employing a lawyer because the law provided a maximum of $1,100.00 for the loss of an eye, and that the insurance company would pay him this amount voluntarily. There was no other testimony relating to the signing of the agreement for settle- ment of the release. It is apparent that both parties acted throughout on the assumption that Zinken was legally entitled to receive compensation only for the -loss of his right eye. There was no pretense of compensation for the injury to the left eye. Undpr these circumstances we think the court was clearly right in holding that neither the agreement for a settle- ment nor the release barred Zinken from asserting his present claim. "The amount of compensation to which Zinken was entitled must be ascertained by referring to the following provisions of the compensation act: "G. S. 1913, section 8209, reading as follows: 'If an employe receive an injury, which, of itself, would only cause permanent partial disability, but which, combined with a previous dis- ability, does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the subse- quent injury.' "And parts of section 4, chapter 209, G. L. 1915, reading as fo'lows: "(c) For permanent partial disability the compensation shall be based upon the extent of such disability. In cases included by the following schedule, the compensation shall be that named in the schedule, to-wit: "For the loss of an eye, 50 per centum of daily wages during 100 weeks." " 'In all other cases of permanent partial disability not above enumer- ated, the compensation shall be 50 per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn In his partially disabled condition, subject to a maximum of $11.00 per week. Compensation shall continue during disability, not, how- ever, beyond 300 weeks.' "Clause (e) of the schedule provides that the total and permanent loss of the sight of both eyes shall constitute permanent total disability for which compensaion shall be paid for a period of 400 weeks. 123 "It was contended in Zinken's behalf, and the court found, that his is a case of permanent partial disability, entitling him to compensation at the rate of $11.00 per week for 300 weeks. The opposing contention is that at most he was entitled to $11.00 per week for 100 weeks for the loss of his right eye, and to $5.50 per week for same period for injury to his left eye, section 8209, G. S. 1913, as construed in State ex rel. Garwin, 129 Minn. 156, is relied upon as support for thisi contention. In the Garwin case, the workman was blind in one eye, and lost the other eye while engaged in performing the duties of his employment. It was held that he was entitled to receive 50 per cent of his wages for 100 weeks, the amount specifically fixed by the schedule for the loss of one eye. He was compensated on the same basis as though he had been possessed of two normal eyes at the time of the injury and had lost one of them. The explicit provision of the statute led Inevitably to the conclusion reached in that case. But this provision does not fit the case of a workman whose injury destroyed one eye and half of the sight of the other. Under the ruling in the Garwin case, a workman who comes within the scope of section 8209 cannot claim the compensation which is secured to one who has been permanently and totally disabled, but is only entitled to compensation for permanent partial dis- ability. We are now asked to construe the statute to mean that a work- man's eyes are to be valued separately; a good eye, in the case of a man earning the wage of Zinken, at $1,100.00, and an eye which is only 50 per cent efficient, at $550.00. It would be both narrow and illiberal so to con- strue it, whereas we have consistently held that it is (Supp. Den. Dig., Sec. 5c54b; State ex rel. Tinglestad vs. Nye, 136 Minn. 50) to be liberally con- strued in favor of workmen. "Zinken had one perfect and one imperfect eye. Mortar was thrown in both of them and both were burned. At the time when his eyes were thus injured, his eyesight, by reason of the previous injury to his left eye, was a fourth less normal. His employer is required to compensate him only for the disability caused by the loss of three-fourths of his eyesight, with- out reference to the fact that he is now practically deprived of all power of sight, as a consequence of his previous injury combined with the injury for which his employer is responsible. "Clause (e) of ths schedule does not apply, for he has not suffered a total loss of the sight of both eyes, as a result of the injury sustained while in the service of his employer. "In fact, he is not blind, for according to the findings he is still 'able to have light perception and get some slight glimpses through a small sec- tion of the upper part of the cornea,' but he can no longer see sufficiently to do any kind of work. "His employer is liable for compensation for permanent partial dis- ability suffered by Zinken, and the court so finds. It is also found that the extent of such disability equivalent to 75 per cent of the loss of both eyes. "The precise question is this: On what basis is an injured workman's compensation to be determined, when his employer is required to_ compen- sate him for the loss of 75 per cent of the normal power of vision? "Such loss must of necessity be occasioned by an injury to both eyes which may not wholly destroy either of them, or may destroy one and reduce the sight of the other one-half, as was the case here. "On the theory of the petitioner, the basis would be compensation for 100 weeks for the loss of the eye, and for 50 week.s for the other but on the same theory, if one eye were destroyed and the other deprived of ninety- nine one-hundredths of its power of vision, compensation would be made for but 199 weeks, although the workman would be practically blmd, and as we have already pointed out, for the total loss of sight, the statute pro- vided for compensation for 400 weeks. In many cases the adoption of the theory advanced would lead to results which were manifestly not intended by the legislature. 124 "Attention is called to the clause iff the schedule relating to permanent partial disability, due to injury to a member resulting in less than total loss of such member, which is said to lend support to the theory of the petitioner. "In common usage, the term 'member,' as applied to the human body, means the extremities of the body and particularly the arms and legs. See Century Dictionary under member. "But if the term as used in the statute is to be taken to mean an eye as well as a hand or foot, the result of the adoption of petitioner's theory would be the same in the cases above referred to for the purpose of illus- tration. "We conclude, therefore, that compensation in such a case as we have here is not to be made on the basis suggested, but rather under that clause of the schedule which concerns in all cases of permanent partial disability not specifically enumera,ted in the schedule. Zinken is entitled to 50 per cent of the difference between his wages when injured and the wages he is able to earn in his partially disabled condition, subject to a maximum of $11.00 per week for not more than 300 weeks. "He has been wholly unable to earn any wages since he was injured hence, he is entitled to $3,300.00, less $1,100.00 already paid. "The trial court correctly awarded him $2,2f00.00, and its judgment is hereby affirmed." (I) General Schedule, Body. Another application of the general schedule was made by Judge Roeser in the case of Michael Henz vs. Burrell Engineering & Construction Co., and the London Guarantee & Accident Co., Stearns county, September 23, 1918. The portion of the findings which are of interest follows: "That he sustained a sprained wrist, bruises on his arms, legs, back of head, and a sprain in the lumbar-sacro region of the back. That from the shock, and being in a somewhat emaciated condition, his right kidney became and now is dislodged, and the covering holding the same broken. "That the bruises and sprain to wrist are injuries that are only tem- porary and that the sprain to the lumbar-sacro region of the back may be the same, but that the dislodged kidney causes a permanent disability, which renders him incapable of performing common labor, such as he could do before the injury. That the most he can do, as soon as his temporary injuries are cured, will be light work, not always ready to find and uncer^ tain in its duration and compensation. The amount he can earn at such work is rather uncertain and difficult to determine, but cannot reasonably exceed $1.00 per day, average the year around. "That as a result of said injury and disability, his ability to work and earn has been reduced from $3.00 per day to $1.00, a difference* of $2.00 a day, or $12.00 a week, and entitles him to compensation at the rate of 60 per cent of this difference, or $7.20 per week, during the period of such dis- ability, not exceeding three hundred (300) weeks." (m) General Schedule, Leg and Body. The general schedule was applied by Judge Fesler to give an employe a greater amount of compensation that 175 weeks, maximum for total loss of leg, in a case where other complications were present. The style of the case Is Frank Kessler vs. Barnett & Record Co., St. Louis county, March 19, 1920. The court's memorandum in this case was: "Our compensation act recognizes four classes of disability; temporary total, temporary partial, permanent partial and permanent total. The employe here has a permanent partial disability of his left leg, and either a permanent partial or a temporary partial disability of his left hip joint and his left buttock. No difficulty arises over the amount of compensation for the Injury to the leg. The statutory maximum limitation for that is 175 125 weeks. The maximum limitation for the Injury to the joint and the buttock is 300 weeks. In case of concurrent disabilities, the employe Is entitled to compensation for the injury which produced the longest period of disability. Chapter 442, Laws 1919, section 1, subdivision (c). "The stipulation of facts does not make the nature of the accident and injury clear. But the statement of Dr. Edlund is that the employe was squeezed between some piling; his left side was bruised; the muscles of his left buttock are very much atrophied; and there is limitation of some move- ment of the hip joint, due to inflammation in the joint during the time he was in bed after the injury. The disability has continued for a period exceeding 175 weeks. "The controversy has been over the question of fact as to whether the injury extended beyond the leg. The finding is that it did. The more one reflects on the course of the employe's recovery and his present condition, the more certain it seems that there must have been an injury other than that to the femur and no other cause therefor seems as probable as the squeezing between the piling. "It the claim is made that the stipulation of facts does not sustain the findings of fact, the court will allow the employe to produce evidence. If he can, to verify Dr. Edlund's statement of facts. If the facts as found are admitted by the employer, the conclusion of law seems to be right under the citation hereinabove made from the act, especially in view of the supreme court's repeated declarations that the law is to be construed as a remedial statute for the relief of injured employes. "This somewhat irregular disposition is made of the case because the employe has not been represented by an attorney and the court wishes to save him that expense, if possible." 4. TOTAL PERMANENT In two decisions the supreme court has touched upon the question of total permanent compensation. One construed the meaning of total perma- nent disability and the other interprets the section relating to second injuries. (a) Total Permanent Disability Defined. There are many injuries, the supreme court held, which can result in permanently and totally disabling a man, and those set forth in the statute are not intended to be exclusive. Cases must be passed upon as they arise and no hard and fast rule can be framed so as to include them all. The ruling is that in State ex rel. Casualty, Co. of America vs. District Court, Blue Earth County et al., 158 N. W. 700, 133 Minn. 439, July 7, 1916. The opinion follows: "Carl Carlson, a sewer mason, capable of earning at his trade from $5.00 to $8.00 per day, was accidentally injured while in the employ of Wm. C. Fraser. Carlson was at the time of his injury earning $3.00 per day. Fraser had insured his employes! in relator company, and proper notice had been posted and filed so that the liability of the relator became absolute. The parties not having been able to come to an agreement as to the amount due Carlson, the matter was duly heard in the district court of Blue Earth county, which found that Carlson was permanently totally disabled and entered judgment accordingly. Relator brings certiorari. "The only question here is whether there was evidence to support the finding of the district court that Carlson was permanently totally disabled by the accident. It is conceded that he lost the sight of his right eye There is evidence that he has only 5 per cent of! normal vision in his lestt eye, and with the aid of glasses, about one-third normal vision. There is evidence that before the accident his sight was good in both eyes. There is evidence of injury which causes him pain in the head when bending or stooping over. 126 "There is no evidence to indicate that Carlson was anything but help- less. Witnesses were asked to suggest what he could do to earn a living. No one seemed to know or even venture an opinion. The physician who attended him testified that he knew of no trade that Carlson could carry on and earn a livelihood. He himself testified that: 'I don't know of anything I could do. I should think a man should have to see better than what I can now in order to carry on any work.' "Relator made no suggestion at all. In this state of the evidence the learned trial court made its findings that claimant was permanently totally disabled. Relator challenges this finding because the evidence tended to show that with the aid of glasses, about one-third vision remained in the left eye. "The court finds that: 'The said plaintiff in the performance of the duties of said employ- ment, and without fault of his own, was seriously injured by the acci- dental explosion of said molten metal which was thereby thrown ana blown into his face and eyes, and over other parts of his body, with the effect that the plaintiff suffered great bodily injury thereby, and the loss and impairment of the sight of both of his eyes to such an extent that he is rendered incapable of performing the duties of his usual occu- pation, and is disabled and prevented thereby from earning his liveli- hood, and from obtaining employment by reason thereof, and that the injury and disability so suffered by said plaintiff constitutes permanent total disability within the meaning of the statute aforesaid.' "The statute itself does not define the words 'permanent total disability,' although section 13, subdivision (e) chapter 467, Laws 1913 (G. S. 1913, section 8207, subdivision e), provides that certain injuries shall constitute permanent total disability. There are, however, many other injuries which may result in permanently and totally disabling a man. Those set forth ib the statute are not intended to be exclusive. Cases must be passed upon as they arise, and no hard and fast rule can be formulated so as to Include them all. "What is permanent total disability is largely a question of fact, and must depend upon the circumstances of each particular case. The statute itself is highly remedial in its nature. It should be liberally construed and liberally applied to accomplish the beneficial purposes intended, and courts should guard against a narrow construction. In this case the fact that a dim vision still existed in one eye is not controlling. All the facts should be taken into consideration. This is precisely what was done here by the trial judge. He saw the witnesses and heard them testify. He had the injured man before him, observed him, and heard him. From all the evi- dence presented, he found that the claimant was permanently and totally disabled. There was evidence from which such a conclusion could be drawn." (b) Loss of Second Eye. In State ex rel. John Gairwin vq. District Court of Cass County, 151 N. W. 910, 129 Minn. 156, the court ruled that the language of the statute regarding second injuries was so clear that it was impossible to award total permanent compensation for the loss of the second eye, even though such loss would actually cause total permanent disability. The opinion follows: "The proceeding is founded wholly upon part 2 of the compensation act, and we have only to apply the pertinent provisions hereof. This part of the statute creates a new liability on the part of the employers of labor, one not heretofore existing. It involves no branch of the law of negligence, and liability is in no measure dependent upon wrongdoing or neglect of the employer. It deals exclusively with accidental injuries suffered by employes while engaged in the course of their employment, and imposes pecuniary liability upon the employer therefor, on the theory that the industry should bear in part the loss so suffered. No doubt, in the enactment of the statute, and in providing for relief in cases of this kind, the legislature had in mind 127 the fact that persons suffering from permanent partial disability would seek such employment as their remaining ability would fit them to discharge, and express provision was made ini the statute to protect the employer from liability for injuries received by an employe before entering his serv- ice. And to this end section 15 of the act was incorporated therein. That section provides: " 'If an employe receives an Injury, which of itself would only cause permanent partial disability, but which, combined with previous dis- ability, does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the subse- quent injury.' " "The language of the statute is clear and unambiguous, and clearly wasi intended to limit the liability of the employer to compensation commen- surate with the Injury suffered by the employe while In his service, and to relieve him from the consequences of Injuries previously sustained even though both resulted in permanent total disability. From the viewpoint of the legiplature, and the fact that the liability created is founded upon no wrong of the employer, it would seem fairly clear that this limitation upon the liability was deliberately made, and founded In justice and fairness. The employer accepts in his service a disabled employe, knowing of the dis- ability and with the knowledge that under the compensation statute he is liable for accidental injuries to such employe while engaged In his service, but to couple the prior disability with one suffered while in his service and make the employer liable for both would seem a hardship the legislature intended to avoid. At least we think the language of the statute clearly manifests that intention. The statute is too plain to admit of any other view, and there is no room for judicial construction. While it Is true that the combined injuries result in total disability the statute declares that as to the last employer it shall be treated as a partial disability. That the legislature had the right to so provide cannot well be questioned. And though the statute is remedial in the broadest sense of the terms, to be liberally construed, the court is without power or authority to change the plain language thereof by construing it to mean the reverse of what is clearly stated therein. A similar provision is found in the compensation acts of other states, but we have been cited to no case directly construing it, and our research has brought none to light. Mellen Lumber Company vs. Ind. Comm. 142 N. W. 187, cited by relator is not in point. The facts there before the court were unlike those in the case at bar. But it would seem that the judicial precedent is unnecessary to support this view of the statute. We are impressed that to sustain relator's contention would tend only to embarrass partially disabled laborers from securing employment, for employers would be reluctant to engage them if there was a contingent liability to make compensation for injuries previously suffered by them. However, the question of the wisdom and propriety of this provision of the law is not before us. We give effect to it as expressed therein, and if it is deemed harsh and inequitable the remedy is with the legislature. "The record does not present the question discussed by relator in refer- ence to the sufficiency of respondent's answer to raise the question decided; it being contended that the prior injury should be specially pleaded; to be available in reduction of the compensation. The cause comes here on the pleadings, findings, and judgment, and we assume that the findings were fully justified by the evidence presented to the court below, and to corre- spond to the issues litigated whether presented by the pleadmgs or not. Pavelka vs. Pavelka, 116 Minn. 75; 1 Dunnell's Dig. 372. "It follows that relator's compensation is given by section 13 of the act, namely, "for the loss of an eye, 50 per centum of dally wages during one hundred weeks," and the trial court was right in ordering judgment accordingly. "Judgment affirmed." 128 5. FATAL No very important decisions have been rendered by the supreme court in regard to the basis of compensation in fatal cases. Probably the most important of those rendered was the one which followed the amendment to the act in 1915. (a) Date of Death Determines Rights of Dependents. The question before the court was whether the date of the accident or the date of the death determined the amount of compensation that waa to be received. The 1915 law which went into effect July 1st increased the maximum. The case brought before the court was one in which the injury had happened June 30th and the death July 1st. The supreme court found that the date of death was the determining fact. The style of the case is State ex rel. Carlson vs. District Court of Hennepin County, November 5, 1915, 154 N. W. 661, 131 Minn. 96. The findings are: "Certiorari to review an order of the district court in a proceeding under the Workmen's Compensation Act to recover compensation for the death of Charles J. Rapley. Rapley was in the employ of defendant Carlson. On the morning of June 30, 1915, while engaged in the performance of the duties of his employment, he suffered an injury from the effects of which he died at about 1:30 A. M., on the morning of July 1st. Laws 1915, chapter 209, by its terms went into effect July 1, 1915. It increased the maximum and minimum compensation in case of death, and provided that the employer should pay the expense of last sickness and burial, not exceeding $100.00 in amount. This provision was not in the prior law. The trial court held that plaintiff, the widow of the deceased workman, who sued in her own behalf and as mother of her minor children, was entitled to recover under the law in force on the day Rapley died. Relator contends that the law in force on the day he was injured governs. "The trial court was right. The claim of plaintiff for compensation does not arise from the injury to her husband, but is a new and distinct right of action created by his death." (b) Total Income. "Voluntary contributions of a son to a mother constitute part of the mother's 'total income' as the words are used in the compensation act in fixing the compensation of a partial dependent. Such was the decision in State ex rel. Hayden vs. District Court of St. Louis County et al., 157 N., W. 506, 132 Minn. 344. "The only question is whether the monthly contributions of the son to his mother should be considered as 'income' within the meaning of LaiwB 1915, Chap. 209, Sec. 15, which reads as follows: 'Partial dependents shall be entitled to receive only that propor- tion of the benefits provided for actual dependents which the average amount of the wages regularly contributed by the deceased to such partial dependent at, and for a reasonable time immediately prior to the injury, bore to the total income of the dependent during the same time.' "The trial court held that the contributions of deceased were a part of the total income of the partial dependent. Relator contends that these contributions were voluntary on the part of deceased, and that tliey should not be considered as any of her 'total income.' If this contention is sustained, the award, instead of being $6.50 per week, should have been $11.00 per week, the maximum amount relator would have been entitled to receive had she been an actual dependent. If these contributions are to be considered as part of plaintiff's total income, the award made by the trial court is admittedly correct. "We agree with the trial court. The argument of relator that the son's contributions were voluntary, in the nature of gifts to his mother, is 129 iiot entirely sound, as we should not lose sight of the probability that she had earned these contributions, and that the son was doing no more than his duty. But treating the payment as voluntary, even as gifts, the letter as well as the spirit of the compensation law compels the conclusion that the legislature intended that such contributions should be considered as forming a part of the income of the partial dependent. The cases relied on by relator are not compensation cases, and have little application. The question is not whether the presents which a man receives are a part of his 'income,' speaking in a general sense, but what was the legislative intent . as to whether regular contributions by a workman to his mother should be considered as a part of her income in determining the amount of her compensation as a partial dependent. In subdivision 17 of section 14, the 'income loss' of a partial dependent from the death is made the amount to be received in case it is less than the minimum of |6.50 per week. Clearly here the contributions of the workman are treated as 'income.' If such contributions are not income there is no income loss. Again, the law clearly shows an intent that actual dependents shall receive more com- pensation than partial dependents. In this case, if relator's contention Is sustained, she would be entitled to greater compensation than if she were an actual dependent." (c) Minimum, Partial Dependency. Under the 1913 compensation act there was some question whether the minimum applied in cases of partial dependency. This has since been cleared up by an amendment. Some time after the corrective legislative action the supreme court held that the act as previously worded was intended to make the minimum apply. The case is that of State ex re!. Globe Indemnity Co. vs. District Court of Ramsey County, February 4, 1916, 156 N. W. 120, 132 Minn. 249. "Certiorari from the district court of Ramsey county to review a judg- ment awarding compensation under the "Workmen's Compensation Act to the sister of a deceased workman. "1. The death of the deceased occurred on April 30, 1914. The right to compensation is governed by Laws 1913, chapter 467 (Gen. St. 1913, sec- tions 8195-8230), and not by the amendment of 1915 (Laws 1915, chapter 209). See State vs. District Court, 154 N. W. 661. "2. There is evidence, weak and unsatisfactory, that the claimant received support from her brother to the amount of $156.00 per year. The court so found. There is not such a lack of evidence as justifies our intei^ ference. "3. The deceased was earning something like $13.00 or $14.00 a week and not more than a total of $704.00 a year. His sister was a partial dependent. The court gave her $3.00 per week. If she had been an actual dependent, she would have received under subdivision 13 of section 14 (sec- tion 8208), 25 per cent of his wages. The provision of subdivision 15 is that a partial dependent shall receive that proportion of the benefits which an actual dependent would receive, which the average amount contributed by the deceased bears to his total wages. So computed the claimant would receive 156-704 of the amount which a wliolly dependent sister would receive. Subdivision 17 provides that the minimum compensation shall be $6.00 per week, and the maximum $10.00 per week, the payments to be made during dependency not exceeding 300 weeks. There is no limitation of this provision to those wholly dependent. If the claimant had been wholly dependent she would have received, under subdivision 17, the minimum of $6.00 per week, 25 per cent of the total wages of the deceased being less than that amount; and the relator's contention is that the claimant, being a partial dependent, should under subdivision 15 receive 156-704 of the pre- scribed minimum. There is very much to be said in support of this con- tention. Subdivisions 15 and 17 are inconsistent. We have not been able to agree upon the proper construction; but a majority of the justices are 130 of the opinion tliat tliere being no limitation of the minimum to those wholly dependent, the provision for a minimum should apply likewise to partial dependents. No useful purpose is served by discussing the different viewsi presented by counsel. The amendment of 1915 removes the difficulty of construction which this case presents. "Judgment affirmed." (d) Death of One of Two Dependents. In the case of Ella Resch vs. City of St. Paul, Ramsey county, October 21, 1916, the widow shared with a child 45 per cent of the monthly wage of the deceased, amounting to $36.00. The widow having died, the court awarded the surviving dependent half of the compensation the two had been receiving, or $18.00 a month. No reason Is given in the decision why the court split the 45 per cent instead of applying section 14, sub-section 10, under which a dependent orphan would receive 40 per cent. The ruling is: "Adjudged, that at the time of his death, the said Lambert Resch was earning as wages from the defendant the sum of $80.00 per month, and that under subdivision 6 of section 14 of the compensation act, his widow, Baldine Resch, and this plaintiff, were together entitled to receive 40 per cent of said monthly wage, or a sum amounting to $36.00 per month, for a period of 300 weeks during the dependency within that period; that said compensation be divided equally between said two dependents, and that the said William Resch, administrator of the said Baldine Resch, deceased, be and he is hereby entitled to recover judgment against said citv for compensation from the 4th day of August, 1915, to the 8th day of Pfbruary, 1916, at the rate of $18.00 per month and no more, said Baldine Resch having died on said day; and that the plaintiff, Ella Resch, is entitled to recover from the said defendant compensation at the rate of $18.00 per month from the 4th day of August, 1915, for a period of 300 weeks, together with costs and disburse- ments herein sustained. "It is further adjudged that the attorneys for plaintiff are entitled to receive as compensation for their services herein the sum of $50.00 paid out of the compensation to be collected from said defendant." Memorandum — "Lambert Resch owned his own team, and for the use of his team and his own services in operating the city's sprinkling wagon, he received $115.00 per month. The evidence showed that it cost him $32.00 a month to maintain his team. While there is no evidence as to the vallie of his team, or the amount invested therein, it could hardlv be worth more than $600.00, as it was an ordinary draughtl team: and $3.00 a month his interest at the rate of 6 per cent per annum of $600.00. "Deducting $35.00 a month for the maintenance of the team and interest on the investment, we have a net remainder of $80.00 per month, which, it seems to me, under the compensation act, must be considered as his wages. "Defendant introduced some evidence tending to show that the going wages of teamsters driving sprinkling wagons in the season of 1915 was $55.00 per month. "I do not think this affects the question, since the compensation awarded under the compensation act is based in all cases upon the wage an employe actually received, and not upon the market value of his services. In this case, Lamber Resch had a contract under which he was actually getting $80.00 a month net as wages for his personal services, and the compensation of his dependents should be regulated by that amount." In another case, Adam G.and IVIary Schneckenberger vs. Willard W. Morse, Hennepin county, January 2, 1917, a father and a mother were par- tial dependents, receiving compensation under the 1913 law. The father died, and in readjusting the compensation the court held that the mother was entitled to 25-35 of the amount the two had been receiving. The opinion Is: "That partial dependents are not entitled to the same compensation to which they would be entitled had they been wholly dependent. 131 "That a survivor of two partial dependents Is not entitled to the same amount of compensation to VFhich both of said partial dependents were entitled. "That partial dependents are, therefore, not entitled to receive as com- pensation a minimum of 16.00 per week in cases where they would otherwise receive less than $6.00 per week, but are entitled to receive as such compen- sation only a proportionate part of such minimum compensation to be deter- mined by the provisions of subdivision 15 of section 14 ot said chapter 467, to which they would have been entitled had they been wholly dependent. "That subdivision 12 of section 14 provides for the amount and manner of payment ot compensation to which surviving parents and the survivor of theto during the period of dependency are entitled; that said section is con- strued to mean that if both parents survive and they are wholly dependent, they are entitled to 35 per cent of the amoiunt of the wages of the deceased, and that if only one parent survives, or if both parents survive and one or them dies during the period of dependency, the one surviving parent is then entitled to receive only 25 per cent of said wages as aforesaid, the amount payable to a sole surviving parent being 25-35 of the amount paid to both surviving parents, except that in either case a mimimum of a payment of $6.00 per week is provided for; that one of the objects of said subdivision 12 is to lay a basis for the determination of the amount of compensation to which one and two surviving parents are respectively entitled. 'That in the case of parents who are the sole survivors of a deceased employe and who are wholly dependent, where one of said parents dies dur- ing dependency, the sole surviving parent is entitled to 25 per cent of the amount of the weekly wage of the deceased employe, or 25-35 of the amount to which both surviving parents were entitled with a minimum of a pay- ment of $6.00 per week. "That in the case of parents who are the sole survivors of a deceased employe and who were but partially dependent upon the deceased, where one of said parents dies during dependency, the sole surviving parent of the two is entitled to 25-35 of the amount of compensation to which bothi sur- viving parents were entitled. "That said Mary Schneckenberger is entitled to receive in full for the compensation to which she is entitled as the remaining and sole surviving partially dependent parent of said deceased son, Anthony E. Schnecken- berger, the sum of $3.30 per week, or 25-35 of $4.62, the sum per week which has been heretofore awarded to both of said complainants as said partial dependents, said sum to be payable weekly beginning with the 6th day of November, 1916, during the dependency of said Mary Schnecken- berger, but not for a period greater than the remainder of period ending 300 weeks from October 13, 1913." 132 VII. PROCEDURE 1. NOTICE OF INJURY A liberal construction of the phrase, "actual notice," as used in section 19 of the compensation act was given by the supreme court in State ex rel. Crookston Lumber Company vs. District Court of Pennington County, Febru- ary 4, 1916, 156 N. W. 278, 132 Minn. 251. The decision was a follows: (a) Meaning of Actual Knowledge. "It appears that relator, the employer, is a corporation, and at the time in question was engaged in lumbering operations in woods of northern Minnesota. Claimant was in its employ, and while engaged in the line of his work received the injury for which he claims compensation. A limb of a tree, about which claimant was working, fell and struck him on. the head. He was rendered unconscious, but was restored and returned to the camp where his head was bandaged by the camp clerk. The trial court found that this injury resulted in permanent total ■ disability, and compensation was awarded accordingly. It further appears that no notice of the injury waa formally given to the employer as provided for by the statute, within the time therein prescribed or otherwise, but the court found as a fact that the employer had 'actual notice' thereof which, if equivalent to actual knowl- edge, and if sustained by the evidence, is under the statute of equal force with a formal written notice. The findings of the court upon this question, as well as upon the question of permanent total disability, are challenged as not supported by the evidence. We dispose of the contentions in their order. "Claimant received his injury on February 12, 1914. The evidence tends to show that soon thereafter he returned to the camp and informed the camp clerk, an employe of the relator, and was by him treated for the injury. The camp clerk bandaged the injured head, and repeated the same for sev- eral days thereafter. Claimant also testified that the camp foreman knew of his injury, and for that reason relieved him from the strain of heavy labor about the camp. The camp clerk and also the foreman, who claimant testi- fied had notice of his injury, were both called as witnesses by relator, and each contradicted the testimony of plaintiff in this respect. They remem- bered that claimant was a laborer in the camp, but had no recollection of bandaging claimant's head, or otherwise treating him for an injury. The time books of the company were produced, and they disclosed that claimant was at work during the several days subsequent to the injury, when he claims that he was laid up on account of his injury, and that he received wages covering that time. The claim for compensation under the statute was not made until the lapse of some ten months after the injury. But claimant explained the delay to the effect that he did not know of or under- stand his rights under the compensation law. However, if relator had actual knowledge of the injury, no demand or further notice was necessary. State ex rel. vs. District Court, 129 Minn. 423, 152 N. W. 838. "We have given the evidence careful consideration and reach the con- clusion that the findings of the trial court cannot, within the rule guiding this court, be disturbed. We find in the record evidence reasonably tending to support the conclusion that claimant was injured while engaged in the work of his employment, that the injury so received has resulted in total disability, and that such disability existed at the time of the trial. We also find ample evidence to the effect that relator's camp clerk had actual knowl- edge of the injury at the time it was received by claimant, though it does not appear that he realized or understood the seriousness thereof. The evidence further shows that the camp clerk was in general charge of rela- tor's affairs at this particular camp, and was charged with the duty of making a record of and reporting to the company any and all injuries received by workmen. This is conceded. Such being one of his duties. It Is 133 clear that notice to him of the injury and actual knowledge thereof on hla part would he knowledge on the part of the relator, and dispenses with the necessity of giving the formal written notice provided for by statute. The evidence upon this feature of the case is squarely conflicting, and not so palpably in favor of relator's contention that the camp clerk did not know ot the injury as to justify interference by this court. It was a question of fact. 'The trial court found that relator, through the camp clerk, had 'actual notice' of the injury. The statute? provides that 'actual knowledge' of the injury will dispense with the necessity of formal notice. It is con~ tended by counsel that there is a marked difference between actual knowl- edge and actual notice; that the latter may spring by presumption of law from notice of facts sufficient to put a person upon inquiry, and that such is not the 'actual knowledge' the legislature intended as sufficient to dis- pense with formal notice of the injury. We may concur in this contention, but that does not require us to go further and hold that notice of that char- acter was in the mind of the court when drafting the findings. The only notice here shown was notice in fact; there are no facts shown by the record to call for the rule of injury, and the court evidently intended to find actual knowledge. The findings should be so construed. "This covers all that we are required to say. The record perhaps bears some ear marks of suspicion in respect to the good faith of the claim. But the merits of the case were for the trial court. The learned judge below was in favorable position to determine the honesty of the claim, and the truthfulness of the witnesses, and we are not justified in overturning his conclusion. "Order affirmed." District Court title: Lewis Svendsgaard vs. Crookston Lumber Co. (b) Intent of Injured Man Considered. A district court case which illustrates the broad application of the supreme court's ruling is that of Sam Lazovich vs. Hanna Ore Mining Com- pany, St. Louis county, February 28, 1919. The man had received a small skin abrasion June 30, 1918, while at work under ground. He stated that about 10:00 o'clock his hand, arm, shoulder and chest became very badly inflamed and painful, that he went to the shift boss, who was a Finn, and reported that he was sick and wished to go to the surface and go in the dry house in order to get warm. He was an Austrian and did not talk very good English. The shift boss advised him that the crew quit work at 10:30, as it was Saturday, and he should wait until that time. He refused to do so and, therefore, was taken up. Sunday morning a physician was called, and from the appearance of the man he thought he was suffering from pneumonia. Injured desired to go to the hospital, and the doctor advised him that he would take him to the Rood hospital, but the man preferred the Adams hospital. The doctor advised he would see him again the next day and then take him to the Rood hospital, but at 5:00 o'clock in the morning, Lazovich's friends removed him to the Adams hospital where he remained for a period between three and four months. The man had a very close call from death, as his arm and shoulde*' were badly infected. The first regular notice the mine office received was on December 28, 1918. At the conclusion of the trial. Judge Hughes stated that he was of the opinion that the company received notice in view of the fact that the man told the shift boss that he was sick. He added that he could readily see where both persons talked broken English and of different languages, it would be a difficult proposition for one to understand the other. The court therefore found in favor of the injured man. .^ 2. POSTING OF NOTICE OF INSURANCE The statute outlines the procedure to be followed j" .disputed cases and this must be complied with, according to State ex "'■ .L°"^on & Lan cashire Guarantee & Accident Company of Canada vs.. District Court of 134 Hennepin County et al., 158 N. W. 615, 133 Minn. 402. The supreme court in construing the provisions of the law relating to pos.ting and filing notices of insurance held It sufficient if the notice had been posted before the acci- dent and filed with the commissioner of labor before the action was brought. The opinion is as follows: "The procedure in case of dispute is outlined in section 8225, G. S. 1913. Either party may present the matter to the court. The court must decide the merits of the controversy In a summary manner. In the instant case, the real parties In Interest were In court, other parties appeared, and all were heard. Whether the proceeding was brought by the proper party in the first instance is an academical question here. The real dependent became a party, and the court has determined the controversy. The pro- ceedings were summary. The statute intends that they shall be. No prejudicial error can be predicated on the rulings of the court. "Two other questions present themselves: (1) Is the finding that Charles P. Enstad was an employe sustained by the evidence? (2) Was It necessary to the maintenance of the proceeding against the relator that the notice be filed with the labor commissioner before the accident occurred? "The evidence is ample to support the finding that deceased was an employe of the corporation, and not an Independent contractor. ' "The statute, so far as applicable here, provides (G. S. 1913, Sec. 8227): 'If the employer shall insure to his employes the payment of the compensations provided by part 2 of this act. In a corporation or asso- ciation authorized to do business In the state of Minnesota, and approved by the Insurance commissioner of the state of Minnesota, and if the employer shall post a notice or notices In a conspicuous place, or in conspicuous places, about his place of employment, stating that he is so insured and stating by whom Insured, and If the employer shall further file copy of such notice with the labor commissioner of the 8>tate of Minnesota, then, and In such case, any suits or actions brought by an injured employe or his dependents shall be brought directly against the insurer, and the employer or. Insured shall be released from any further liability.' "This proceeding was begun in July, 1915, nearly three months after the notice was filed with the labor commissioner. The statute does not say when the notice shall be filed. It provides that when the notices have been posted and filed as required, the action shall be brought directly against the Insurer. In this case the notices had been properly posted before the accident. The notice was filed with the commissioner of labor after the accident, but nearly three months before this proceeding was instituted. The requirements of the law had been complied with. The dependent widow was strictly within its language. Her claim against this relator can possibly bo defeated by interpolating the words 'before the accident' in the sentence which provides for filing a copy of the notice with the labor commissioner, a thing which the law-makers have not done, although they had the power." 3. TIME AND PLACE FOR HEARINGS That the district court has power to designate time and place for hear- ings was the finding of the supreme court in the case of State ex rel. Duluth Diamond Drilling Co. vs. Distrlat Court of St. Louis County, 152 N. W. 838, 129 Minn. 423. "Emll Clements was Injured on March 2, 1914, while at work for the relator near HIbbing, In St. Louis county. On March 24, 1914, he made an application to the judge of the district court for compensation for the Injury under the Workmen's Compensation Act, and on the same date the judge made an order fixing May 2, 1914, at Hibbing as the time and place for the hearing thereon. 135 "Relator is a corporation having Its principal office and place of busi- ness at Dulutll, in St. Louis county, and on that ground demanded that the place of hearing be changed from Hlbblng to Duluth. This demand was denied. Relator admitted that it had full knowledge of the injury, and also that Clement was entitled to compensation, but insisted that the action should be dismissed on the grounds that the court had no jurisdiction, that there was no controversy between the parties, and that the action was prematurely brought. The parties submitted their evidence and the court rendered judgment awarding compensation to Clement. Thereafter the relator brought the matter before this court by certiorari. "1. Relator says that the court erred in refusing to change the place of hearing from Hibbing to Duluth. Duluth is the county seat of St. Louis county, but the statute provides that both general and special terms of the district court shall also be held at Hibbing. Sections 176, 177, G. S. 1913. The statute further provides that civil actions brought in the dis- trict court of that county against residents of that county shall he tried at the place of holding regular terms of court which is nearest the residence of the defendant; that the place where Its principal office is located shall be deemed the residence of a corporation for the purpose of the statute;' and that the defendant may have the place of trial changed to the place of hold- ing court which is nearest his residence, if a different place has been designated by the plaintiff. Sections 183 and 184, G. S. 1913. Relator insists that by virtue of these statutes it had the absolute right to have the place of hearing changed to Duluth, which is the county seat and its place of residence. We cannot assent to this proposition. The statutes referred to provide for holding the regular terms of court and for determining the place of trial of ordinary civil actions triable at such terms. The Workmen's Compensation Act contemplates that applications thereunder shall not wait for trial until they can be brought before the court at a regular term thereof, but shall be heard and decided summarily by the judge regardless of such regular terms. This act provides that either party may present a verified complaint to the judge, and that, thereupon, he 'shall fix by order, a time and place for the hearing thereof,' and at the time so fixed, 'shall hear such witnesses as may be presented by each party, and in a summary manner decide the merits of the controversy.* Proceedings under this act are governed by the provisions contained in the act itself, and not by the general provisions cited by the relator, and the ruling of the learned trial judge was correct. "2. Relator contends that an injured employe cannot apply to the court for compensation unless he has previously made a demand therefor upon his employer; that the making of such demand is a jurisdictional prerequisite to his right to invoke the aid of the court. The statute pro- vides for giving notice of the injury to the employer unless he has actuftl knowledge thereof; but if he has such actual knowledge, the giving of the notice is not necessary (section 8213, G. S. 1913). It further provides that 'the intere-ted parties shall have the right to settle all matters of compensation between themselves' hut requires such settlements to be substantially in accordance with the provisions of the act and to be 'approved by the judge of the district court.' It further provides that 'in case of a dispute over or failure to agree upon a claim for compensation * * * either party may submit the claim * * * to the judge of the district * * * which judge is hereby authorized to hear and determine such disputes in a summary manner.' Section 8216, G. S. 1913. Other pro- visions regulate the method of procedure. "Relator admits having full knowledge of the injury and consequently formal notice thereof was unnecessary. The statute suggests that the parties make an attempt to agree upon terms of settlement before taking the matter into court, and it is certainly desirable that they should adjubt such matters amicably between themselves if possible to do so; but the statute contains no express requirement that the employe make a demand upon his employer, nor that the employer makd overtures to the employe. 136 Either party may take the initiative, but if neither will do so, there is n 'failure to agree upon a claim for compensation,' within the meaning of the statute. The statute contemplates that the court shall supervise and control all matters and proceedings arising under the act. In case the par- ties effect an amicable settlement, such settlement must be presented to the court and be approved by him as in accordance with the act before it becomes valid and binding; in case they become involved in a dispute over, or fail to agree upon terms of settlement, either party may call upon the court to hear and determine the matter. The court has jurisdiction over the cases arising under the act — both those in which the parties agree and those in which they do not agree — not merely over those in which one party makes demands to which the other party refuses to accede. "3. Relator contends that the claimant had fully recovered from his disability before the hearing, and for that reason was not entitled to com- pensation thereafter. The hearing was held on Saturday, May 2, 1914. Claimant had been at work for the Mahoning Ore & Steel Companiy for a few days prior thereto, and was earning $3.00 per day, being 50 cents perday more than he received from relator before the accident. He stated that he intended to resume work the following Monday, and thought he was able to do so, but that his side still hurt him when lifting anything heavy. The court appointed a doctor to make an examination, who stated that he was unable to find any objective symptoms of injury, but that he believed from the claimant's statements that 'there is an injury to muscle structure in this region, which will gradually recover completely in the course of four to eight weeks of moderate activity or half rest.' The foregoing is all the evidence tending to show disability at the time of the hearing, or the length of time that the soreness in the muscles was likely to continue. "On May 21st, the court made findings of fact and conclusions of law to the effect that the injury had caused a temporary total disability which still continued and would continue for 30 days or more, and directed pay- ment of compensation upon that basis until the further order of the court. Relator made an application to so amend the findings that the claimant would receive compensation until he commenced work for the Mahoning Company and no longer. This application was heard and submitted on June 6, 1914, but no decision was made until October 7, 1914. On that date the court made an order amending the findings by excluding from the period of disability the six and one-half days during which claimant was shown to have earned $3.00 per day, but finding that his total disability still continued, and directing that compensation at the rate of $7.50 per week 'be paid in a lump sum up to the date of these findings, to-wit: May 21, 1914, and that he hereafter receive compensation during disability at the sum ot $7.50 per week,' and that he be paid $20.00 alttorney's fees and $4.00 clerk fees. While the amendment was not made until October, the order contemplates that the amended findings shall speak as of the date of the original findings, namely, May 21, 1914. "The finding that total disability existed at the time of the hearing is clearly not supported by the evidence. The claimant made no such claim; on the contrary, he stated that he had worked on Friday as well as for some days prior thereto, had laid oft on Saturday to attend the hearing, intended to return to work on Monday, and thought he was able to do so, He stated that heavy lifting caused him pain, but did not state that hia work involved such lifting. He stated that he was then employed to take samples of ore from loaded cars, presumably for examination or analysis, by the experts of the company or its customers. The record gives no other information concerning the character of his work, or the sort of services he was accustomed to perform. There is no evidence tending to show that his earning ability was impaired at the time of the hearing. He was, in fact, then earning more than at the time of the accident It it had been made to appear that his employment was merely temporary, and that his earning power was in fact diminished in consequence of the injury, the compensation provided by the statute for such diminution of 137 . earning power, whether partial or total, should have been allowed, but the record discloses no such facts. It follows that the finding, that claimant's disability continued to exist on May 21, 1914, is not sustained by the evi- dence, and that so much of the judgment as directs payment of compensa- tion for disability after that date must be and is vacated. "Relator also challenges the allowance of attorney's fees. The statute provides: 'Costs may be awarded by said judge in his discretion, and when so awarded the same costs shall be allowed, taxed and collected as are allowed, taxed and collected for like services and proceedings in civil cases.' Section 8225, G. S. 1913. Attorney's fees are not allowed in ordinary civil actions and can be allowed only when authorized by the stat- ute. SchmoU vs. Lucht, 106 Minn. 188. In the case cited, it was held that the statute providing for the enforcement of mechanics' liens authorized the allowance of attorney's fees in actions to foreclose such liens. But the statute here In question limits costs which may be allowed to those allowed for 'like services and proceedings in civil cases.' The only costs allowable in civil cases are the actual disbursements and what are usually termed statutory costs. As the court had authority to allow $10.00 as statutory costs, the allowance, outside actual disbursements, will be reduced to the sum of $10.00 and will stand in that amount. "The district court will modify its judgment to conform to the views hereinbefore expressed. No statutory costs will be allowed in this court." 4. ATTORNEY'S FEES The supreme court has touched upon various phases relating to attor- ney's fees in three cases. (a) Attorney's Fees as Statutory Costs. In the Duluth Diamond Drilling Company case, described above, it will be noted that the supreme court held that the statutory costs that could bo allowed were limited to $10.00, and that therefore an allowance of $20.00 for attorney's fees in addition to other costs was excessive. (b) No Lien When Informal Settlement. In another case which went to the supreme court the injured man had made an informal settlement without consulting his attorney and the attorney then tried to bring the case before the court to have a lien allowed on the compensation for his fee. The district court held that there was no provision in the compensation law by which thisi could be done. The matter was taken to the supreme court and the order of the trial court was affirmed. The style of the case is Johanson Vs. Lundin Bros, et al., 175 N. W. 302,'. The opinion is as follows : The attorney of an injured employe, giving a receipt releasing employer from liability in consideration of payments on a settlement approved by the court, held not entitled to recover attorney's fees from employe under Workmen's Compensation Act. (G. S. 1913, Sec. 8225.) "Per Curiam. The only question presented for review in this pro- ceeding is whether the relator is entitled to recover attorney's fees under the provisions of the Workmen's Compensation Act, chapter 84A, G. S. 1913. "The act (section 8225) of the statute provides: 'Costs may be awarded by said judge in his discretion, and when so awarded, the same costs shall be allowed, taxed and collected as are allowed, taxed and collected for like services and proceedings in civil cases.' "(1-2) Attorney's fees are not allowed in ordinary civil actions, and can be allowed only when authorized by statute. Schmoll vs. Lucht, 106 Minn. 188, 118 N. W. 555; State ex rel. Duluth Diamond Drilling Co. vs. District Court, 129 Minn. 423, 152 N. W. 839. 138 "Johanson was injured while in the employe of Lundin Bros., in Sep- tember, 1916. In October they entered into a stipulation, whereby it waa agreed that Johanson should receive $11.00 per week during his disability as compensation. This settlement was approved by the judge of the district court and filed with the clerk. Payments were made thereon up to March 6, 1917, when the respondents refused to make further payments on the ground that Johanson was fully recovered. The relator had been employed as Johanson's attorney, and after considerable correspondence filed a peti- tion with the district court and obtained an order to show cause, which was served upon the respondents. The time for hearing thereon was set by order of the court for May 25th, at which time the respondents appeared and produced a receipt dated April 20, 1917, and signed by Johanson, stating that he had received the sum of $22.00 as the final payment of compensation for his injury, making in all the sum of $231.00, in consideration of which he had released and forever discharged the respondents from liability. The relator then asked leave of court to carry on the action and filed an appli- cation for attorney's fees. The request was granted, and relator filed bis application. Thereafter such proceedings were had that the court made an order disallowing the application upon the grrtund that he was not entitled to recover attorney's fees under the Workmen's Compensation Act. The case comes to this court by certiorari. "The order of the trial court is affirmed." (c) Fee of Twenty Per Cent Excessive. For an interesting obiter dictum' of the supreme court on this subject see concluding paragraph of the opinion in State ex rel. London and Lan- caster Indemnity Co. vs. District Court of Hennepin County, quoted under Dependency, IV, 1 (c). We take it the implication here is that the supreme court considers an award of $400.00 attorney's fees in a fatal case involving $1,950.00, slightly over 20 per cent, to be excessive. (d) Reasonable Fees. In IVIay Murphy Hancock vs. S. K. Brady, Hennepin county, June 25, 1917, the district court allowed a, $10.00 attorney fee as part of the judg- ment against the employer. The compensation involved was $28.00. In Frank Bruletich vs. Oliver Iron IVIining Co., St. Louis county, July 5, 1917, the attorney was allowed $30.00 on a judgment for $1,008.00. In Kay Lobako vs. B. F. Nelson Mfg. Co., Hennepin county, April 13, 1917, the court allowed an attorney's fee of $50.00 on a judgment for $675.00. 5. CHANGE OF VENUE The supreme court has ruled that change of venue statutes do not apply to proceedings under the compensation act. The opinion which waa given in the case of State ex rel. Nelson vs. District Court of Wabasha County et a!., 172 N. W. 486, 142 Minn. 503, was: "Mandamus by the state on the relation of John Nelson against the judge and clerk of district court of Wabasha county to require transfer of a proceeding under the Workmen's Compensation Act to the distridt court of Hennepin county. Order to show cause discharged. "Per Curiam. Order to show cause why mandamus should not issue directing respondents, the judge of the district court of Wabasha county and the clerk of said court, to transfer to the district court of Hennepin county a proceeding, under the Workmen's Compensation Act, instituted in said Wabasha county by the insurer of relator's employer to determine the amount he was entitled to recover on account of an accidental injury received by him in the course of the employment. The accident happened in Wabasha county. Relator, the servant injured, resided and still resides in Hennepin county. The employer, as well as the insurer of the employer, 139 are foreign corporations. The complaint was served April 1, 1919, and the matter set for hearing on May 12th. On April 15th relator served an affidavit for change of venue to Hennepin county and filed proper proot. The respondent clerk refused to transfer the cause, and on the day set for the hearing, relator appeared specially, and objected to the jurisdiction of the court, and demanded that the proceeding be transferred to Hennepin county. ' "The proceeding under the Workmen's Compensation Act is designated to be speedy and summary. No provisions for change of venue is con- tained therein. Section 8216, General Statutes 1913, provides that in case of dispute as to the amount of compensation, either party may submit the claim 'to the judge of the district court of the county which would have jurisdiction in a civil case.' Section 8225 specifies the procedure in case of dispute; a complaint must first be presented to the judge for fixing the place and time for hearing, and then the complaint is to be 'filed with the clerk of the district court of the proper county.' Section 8230, subi-- division 'm': " 'The court," as used herein, shall mean the district court which would have jurisdiction in an ordinary civil case involving a claim for the injuries, or death in question. "The complaint is to be served within four days after filed, and the answer shall be filed within seven days after the service of the complaini. The provisions for a change of venue do not fit in with the procedure under this act. We think there is good reason for not making the change of venue statute applicable, where It was intended to give a speedy adjust- ment. Furthermore, proceedings of this kind are begun by presenting the complaint to a district judge. It is fair to presume that the judge will not fix the place of hearing so as to make the attendance an unnecessary hard- ship for either party. That change of venue statutes have no application to workmen's compensation proceedings was virtually decided in State ex rel vs. District Court of St. Louis County, 129 Minn. 423, 152 N. W. 838. "The order to show cause is discharged." 6. PERIOD OF REOPENING In determining whether or not a settlement made pursuant to the pro- visions of the compensation law can be reopened for readjustment, the entire period of disability from the date of injury to the date in question should be considered in construing sections 26 and 27 of the compensation law. An award of compensation for the purposes of this act includes not only the compensation actually awarded by the court, but in addition such compensation as was paid voluntarily, prior to the award by the court. This was the finding in State ex rel. Edward Tinglestad vs. Hon. C. A. Nye et al., 161 N. W. 224, 136 Minn. 50. "The relator was injured on October 30, 1913. He was paid on the basis of full disability for the period of 18 weeks from November 13, 1913, to March 19 1914 On April 16, 1914, a summons was issued and a complaint was served claiming total disability. On July 11, 1914, the court made its findings and conclusions. It found that the relator was totally disabled from October 30, 1913, to June 11, 1914, a period of 32 weeks, and would be partially disabled from June 11, 1914, to August 20, 1914, a Penod of 10 weeks. It rtound that he had been paid on the basis of total disability from November 13, 1913, to March 19, 1914, and that he was entitled to pay on the basis of total disability from March 19, 1914, to June 11, 1914- and on the basis of partial disability from June 11, 1914, to August 20, 1914. Judgment was entered on October 6, 1914, and on October 30, 1914, it was satisfied. On September 11, 1915, the relator moved for leave to file a pro- posed complaint wherein he asked that th^ judgment be vacated and that he have an award for 300 weeks on the basis of total disability. This motion was denied and this is the. order under review. 140 "The compensation act provides tliat all awards of compensation not exceeding compensation for six months' disability shall be final and not sub- ject to readjustment, but that the amount of any award payable period- ically for more than six months may be modified. "Whether the award made was for more than six months disability, and therefore subject to readjustment, involves a question of difficulty. All settlements are subject to the approval of the court, G. S. 1913, Sec. 8216. The award was not for a period as long as six months after it was made. Payments ceased within such time. In making the award, the court found past disability, for which there had been a voluntary payment, and in effect approved prior payments as in satisfaction of the injury. The whole period for which voluntary payments were made and payments in accordance with the judgment were to be made exceeded six months. The compensation act is to be construed liberally in favor of the workman. We are of the opinion that in determining the six months period the time for which payments were voluntarily made on the basis of the amount fixed by the compensation act, and under a concession of liability, and which were taken into consideration and in effect were approved in making the award, should be added to the further period for which the court directed payments to be made. There is much to be said in support of the view that an application for a read- justment must be made within the period when payments as fixed by the award are to be made; that is, that a readjustment must be sought before the expiration of the period for which payments are directed. If this view is accepted, the relator can have no relief in this proceeding. We reach the conclusion that, at least as applied to an award such as is before us, it should not be accepted. How long the right to apply for a readjustment continues after the payments under the award cease, if it does at all, is not of great present concern. Perhaps by analogy to the general limita- tion of the act the right would be restricted to a definite time. The applica- tion before us was made within a year of the award and the ceasing of pay- ments under it. It should be understood that we limit our decision as to the time within which an application must be made strictly to the facts shown in the award before us. We hold that the right has not expired at the time the application was made. We reach the conclusion that the relator was entitled to file his complaint for readjustment, have a time fixed for a hearing and issue a summons as provided by section 30 of the act. "We find no helpful authority. The case of State vs. District Court, 158 N. W. 825, cited by respondent, involved an application for a new trial upon the ground of newly disicovered evidence and not a right under the statute to apply for a readjustment. "Order reversed." 7. FINAL RELEASES The supreme court has touched upon final releases in two rather impor- tant decisions, one holding that the release must be approved by a district judge as well as the settlement petition, the other setting aside a final release which did not cover the full injury and which was signed under a misapprehension. (a) Release Must Be Approved. The decision holding that the final release must be approved by a dis- trict court was given in the case of Charles Clarkson vs. Northwestern Con- solidated Milling Company and The Travelers Insurance Company, January 30, 1920, 175 N. W. 997. The court's opinion was as follows: "Charles Clarkson was injured in April, 1918, while in the employ of the relator milling company, as the result of an accident, so as to entitle him to compensation under the Workmen's Compensation Act. On May 20th, following, he entered into a written agreement with his employer whereby it was agreed that the injuries sustained were such as to consti- 141 tute total temporary disability, and that he was entitled to compensation from April 28, 1918, at the rate of ?12.00 per week during his disability. This settlement was approved by an order of the district court, which was duly filed with the clerk of court on July 28, 1918. The relator Insurance company paid the compensation up to September 23, 1918. Shortly there- after the employe resumed work and so continued until February 2, 1919. On October 30, 1918, the employe, at the. instance of the insurance company, executed a so-called release from the payment of any further compensa- tion. At the time of the giving of such release, the solicitor for the insur- ance company informed the employe that in case he could not continue his work, the only effect of the release would be that the money earned in the mill would be deducted from the amount of compensation allowed. The so-called settlement, or release, was never presented to or approved by the district court. It -is undisputed that when the employe returned to work he had not entirely recovered from his disability. "The trial court found, as a matter of fact, that the respondent, by reason of his injury and the condition resulting therefrom, was compelled to quit work on February 2, 1919, and 'that ever since his injury he has been, and still is, under the same disability.' We fully agree with the learned trial court that the so-called release was not a settlement within the contemplation of section 8216 of the statute. There was no considera- tion for it, nor was it approved by the district court, and the original agree- ment of settlement between the parties stands and the respondent is entitled to have the same carried into effect and to recover thereunder. The question whether such would be final and not subject to revision or change upon a showing that the employe had not fully recovered is not involved or considered. Affirmed." (b) Release Set Aside. The decision of the supreme court setting aside a final release was rendered in the case of State ex ret. Melrose Granite Co. vs. District Court Seventh Judicial District (Zinken vs. Melrose Granite Co.), 173 N. W. 857, 143 Minn. 397, which is given in full under Amount and Period of Com- pensation, VI, 3. Permanent Partial, (k) General Schedule Eyes. (c) Release Misunderstood. A district court case in which a final release was set aside was that of Frank Spanlch vs. Crete Mining Company, St. Louis county, January 17, 1920. Judge Hughes ruled, in part, as follows: "That at the time employe executed said receipt he did not know or understand that it was a final release and discharge of the employer from further liability under said agreement or by reason of said mjury , that the same was not interpreted to him, and he does not understand, the Engl sh language sufficiently to be able to understand the contents of the receipt when read to him in English, nor is he able to read the ^"^t .^. ^?^«p1d understandingly; that employe believed at the time of the signing of said receipt by him that it was not a final discharge of the employer, and that he would receive further compensation under said agreement. 8. REVISION OF RATE DENIED Tti Dan Flaherty vs Virginia and Rainy iLake Company, St. Louis county, October^i;, Tg'SX court'refused to let the employer mod ty a rate which was in excess of what the law allowed, giving its reasons in the followmg """^Thf employer made the contract of settlement as it is._ There has beenio increase or decrease of incapacity due solely to the >^?ury .^'-i^^l me contract was made. Sec. 8222 (b) does not permit any modification of the original contract. 142 "If courts should permit employers to modify their contracts when they agree to pay more than the law requires them to pay, and should not permit employes to modify their contracts when they agree to take less than the law authorizes them to receive, we would have a jug-handled law; and such was not the legislative intent, and is not the language of the statute. It happens that this court had occasion this day to hold an employe's dependents to a like construction of section 8222 on an application ot such dependents for a modification of their contract. Any other construc- tion of the law or the statute would nullify any contract made under the compensation law that was not strictly for the amount of compensation provided by the statute. 9. JUDGMENT REOPENED In State ex rel. Klemer et al. vs. District Court of Rice County, 158 N. W. 825, 134 Minn. 189, the supreme court discussed the question of whether the court had power upon a sufficient showing of newly discovered evidence to open a judgment awarding compensation. The opinion follows: "The facts of the case as disclosed by the record are substantially as follows: Defendant was accidentally Injured while in the employ of plain- tiffs. The parties were subject to the workmen's compensation statute, and recognizing their liability thereunder, plaintiffs soon after the injury com- menced paying to defendant the sum of $6.00 a week, and continued the same for a period of 25 weeks. No proceedings had been brought in court to compel such payments, or to otherwise require plaintiffs to compensate defendant for his injuries, and plaintiff's act in making the payments was entirely voluntary. After the expiration of the period of payment, 25 weeks, and on May 10, 1915, plaintiffs brought proceedings against defendant in the district court of Rice County, in which all the parties reside, and set out in their complaint the facts just outlined, and further facts made the basis of a claim or their part that the injury suffered by defendant caused only a temporary partial disability from which defendant had fully recovered. The relief demanded was that the court appoint a time and place for the hearing ot the matters alleged. "Defendant answered, denying the allegations to the effect that he had recovered from his injury. The matter came on for trial, and after hear- ing the evidence presented by the respective parties, the court found as a fact that defendant had entirely recovered from his injury, but that he was entitled to recover of plaintiffs certain expenses incurred in effecting his cure, and the sum of $27.00, the amount found due to defendant in discharge of plaintiff's full liability under the compensation act. Judgment was entered accordingly on June 3, 1915. The judgment was paid and satisfied on the same day. "It is conceded that the effect of the judgment and payment thereof fully discharged plaintiffs from further liability to defendant. Thereafter, on September 18, 1915, defendant, through counsel other than the attorney who acted for him in the proceeding just mentioned, moved the court for an order vacating the judgment, and for leave to present to the court newly discovered evidence to the effect that defendant had not recovered from his injury, and that an injury exists which was not discovered or known when the former trial was had. At this point the record is very confusing, and we are not clear as to what happened to this motion. It is, however, not important, for on April 17, 1916, the motion appears to have been renewed, and after hearing the parties, the court granted it, and ordered the judgment opened to the end that defendant might offer further evidence upon the question of his recovery. On plaintiffs' application, a writ of certiorari was issued to review that order. The questions are these: '(1) Whether the court has power upon a sufficient showing of newly discovered evidence to open a judgment awarding compensation. '(2) Whether, if it has such power a sufficient showing was made.' "It is not the contemplation of the compensation act that there be retrials for error as in an ordinary action. Upon the determination of the 143 case, judgment is entered. There is a right to a review of questions of law by certiorari. The act provides that all awards not exceeding the compensation for six months' disability shall be final and not subject to readjustment, and that all lump sum payments shall be final. The court, however, has power to open its judgments and correct or modify them upon the presentation of newly discovered evidence, when manifest wrong has been done, upon substantially the principle upon which rests its inherent power to grant a new trial. This power need not of necessity be invoked before the lapse of the 60-day period in which a review may be sought by certiorari. The statute allowing relief within a year applies. G. S. 1913, section 7786; R. L. 1905, section 4160. This was held a very similar situa- tion. Sheffield vs. Mullin, 28 Minn. 251, 9 N. W. 756. We hold that a court is not powerless to hear evidence newly discovered after judgment when there has been an excusable failure to produce it at the hearing and a wrong adjudication has resulted. "We reach the conclusion that a sufficient showing to support the order opening the judgment was made. It is not at all convinr'.ng; but if all that is claimed is true, the injuries which resulted in the fracture of a limb were misapprehended and not correctly described at the trial, and are more serious than disclosed. The evidence of this was discovered after the rendition of the judgment. We cannot say that there was an abuse of dis- cretion in granting the order. Such applications, however, should be cautiously granted. Awards such as that involved are not subject to read- justment as of right upon the application of a party. The statute negatives the right. It is natural that the injured employe should become dissatisfied with an award when the periodical payments cease or the lump sum payment is exhausted. Applications should be scrutinized closely. They cannot be granted merely because of an increase of incapacity. The application in this case might well enough have been denied. No statutory costs will be allowed. Order affirmed." 10. RULE AS TO QUESTION OF FACT Under what circumstances the supreme court will set aside the finding of a lower court as to the facts in a case was set forth at length in an opinion presented by the court in State ex rei. Niesssn et al. vs. District Court of Ramsey County, 172 N. W. 133, 142 Minn. 335. The ruling which the court followed is that a question of law arises on the evisJence in a particular case where an Impartial consideration thereof, together with all reasonable and fair inferences, will lead reasonable minds to but one con- clusion. The opinion follows: "Brown, C. J. Findings of the trial court that decedent met his death when not engaged in the course of his employment at a time when he was engaged in furthering personal interests. Held, applying the rule stated, sustained by the evidence. "Certiorari to review a judgment of the district court of Ramsey county denying relief In proceedings under the Workmen's Compensation Act. (G. S. 1913, par. 8195-8230.) "It appears from the record that for some time prior to his death Harold J. Nlessen was in the employ of R. H. Merriam & Co., a co-partner- ship doing business in the city of St. Paul, as a traveling salesman in a fixed territory, which he covered sometimes by train and sometimes by automobile. He owned an automobile, and when he used it in his employ- ment the company allowed him $25.00 per week for the expense of operation. At about 8:00 o'clock P. M., on May 28, 1918, near the village of Kilkenny, while traveling with his automobile from Waterville to St. Paul, his place of residence he met with an accident and was killed by the overturning of the machine; the cause of the accident does not appear. He left surviving him as partial dependents, his mother, a sister and brother, in whose bshail the mother brought this proceeding under the Workmen s Compensation Act. The trial court rejected the claim for compensation and as a basis tor that conclusion found as facts: 144 " 'That on May 27 and 28, 1918, deceased was engaged regularly in the line of his employment, up to the time he completed his work at Water- ville in the afternoon of May 28, 1918, whereupon deceased, in the evening of May 28th, departed from Waterville to return to St. Paul by way ot Montgomery, in violation of instructions of his employers and upoui an errand wholly personal to himself, and in so doing met with said accident which resulted in his death. That at the time and place of said accident, the deceased was not in the course oi his said employment or in! the line of his duties as an employe of defendants, and his said accident and death did not arise out of or in the course of his said employment.' "The only question presented to this court is whether the findings embraced with the quotation are sustained by the evidence. The question must be answered and disposed of as a question of law, and not of fact or mixed law and fact; for, as urged by counsel for respondent, review in this court in such proceedings is so limited by the express terms of the com- pensation act. Section 8225, G. S. 1913. A similar limitation is found in the compensation acts of other states, and the rule stated Is generally applied, though some of the courts hold that the findings of the trial court, or of the industrial commission which administers the law in some juris- dictions, are conclusive upon all questions of fact. I. Honnold on Work- men's Compensation, 242, where a collection of the authorities may be found. See also L. R. 4. 1916A,"at page 266. The findings are not regarded as conclusive in this state, for we here review them for the purpose of determining whether they are supported by sufficient competent evidence. In this we apply the rule that a question of law arises on the evidence in a particular case where an impartial consideration thereof, together with all reasonable and fair inferences, will lead reasonable minds to but one conclusion. That is a well-established rule and one ot general application by the courts, 3 Bunnell's Dig. 9707; 38 Cyc. 1514 et seq. If reasonable minds may reach different conclusions, the question becomes one of fact, and where that situation is presented in a compensation case, the findings must be sustained. We have not heretofore enlarged upon the particular point in compensation cases where the evidence has been challenged as insufficient to sustain the findings of the trial court, but expressions in former opinions, in whatever language couched, were not Intended as laying down a broader scope of inquiry by this court. State ex rel. vs. District Court, 128 Minn. 221, 150 N. W. 623; State ex rel. vs. District Court, 129 Minn. 423, 152 N. W. 838; State ex rel. vs. District Court, 132 Minn. 251, 156 N. W. 278 ; State ex rel. vs. District Court of Ramsey County, 132 Minn. 249, 156 N, W. 120; State ex rel. vs. District Court, 1S3 Minn. 439, 158 N. W. 700. The statement found in State ex rel. District Court, 137 Minn. 435, 163 N. W. 755, L. R. A. 1917F, 1094, to the effect that to justify setting the findings aside it must appear that they are manifestly against the pre- ponderance of the evidence, was an inaccurate expression of the rule guiding the court in such cases, for to weigh the evidence and declare the pre- ponderance thereof is to determine a question of fact, and not a question of law. 28 Cyc. 1516. With this statement we pass this feature of the case, and come to the question whether, within the rule stated, there is any evidence reasonably tending to support the findings in this case. "The territory covered by Niessen in his employment was in southern Minnesota, and was comprised of certain towns specially designated by the employer. The evidence tends to show that he had no roving commission to go out and seek business for the company, but was required to make such towns only as were assigned to him from week to week. His itinerary or schedule of towns for the week in which he met his death took him from St. Paul to Shakopee, thence to Carver, Belle Plaine, St. Peter, Kasota, Waterville, Waseca, Morrfstown and Farmington. He had made most all those towns and had reached Waterville on the day of his death; the remaining towns of his schedule being Waseca, Morristown and Farmington. The evidence further tends to show that at Waterville, late in the afternoon of the 28th day of May, the day of his death, he concluded to return to St. 145 Paul by way of Montgomery, Le Sueur Center, and New Prague for the memorial exercises to take place on the 30th; going out the next day, Friday, to make the remaining towns of Waseca, Morristown and Farm- ington. The route selected for the return took him directly away from those towns, and through and into the towns he was not required to make, and so far as appears, in which the company had no fixed trade; at least deceased was not required to make them in his rounds. It was after starting out for the return trip to St. Paul, leaving the towns named unat- tended to, that he met his accidental death. "There was no direct controversy in the evidence, though some thereof is challenged by counsel for relator as untrue. But the truthfulness of the witnesses is not one for this court, but solely for the trial judge. The only (luestion, therefore, is whether the findings of the court to the effect that deceased met his death after he had departed from the course of his employ- ment on an errand personal to himself are not sustained by the evidence as a matter of law. "A careful consideration of the record leads to the conclusion that the findings must be sustained. Whether our conclusion would concur with that of the trial court were the question before us as one of fact, to be determined by a consideration of all the evidence, together with the situa- tion of the parties and the character of the employment and permissible inferences to be drawn from the evidence, we do not stop to consider, though it may be remarked that in the light of some of our decisions the question is not entirely free from doubt. State ex rel. vs. District Court, 129 Minn. 176, 151 N. W. 912. But considered from the viewpoint of the legal sufficiency of the evidence, a different question is presented upon which we can reach no conclusion other than that stated. State ex rel. vs. District Court, 138 Minn. 326, 164 N. W. 1012, L. E. A. 1918F, 881. Judg- ment affirmed." 11. ELECTION OF ACT The Minnesota compensation act of 1913 provided that every employer and employe is presumed to have accepted the act, unless 30 days prior to the accident he elects not to accept its provisions. A special clause, however, provided that during the 30 days immediately succeeding the taking effect of the act, notice of election not to accept its provisions may be given by either party to the other and become immediately effective. Mr. J. Harris was injured on October 15th. On October 29th he elected not to come under the compensation act. He endeavored to maintain in the district court of St. Louis county that his election of October 29th was effective from October 1st when the act went into effect. The district court of St. Louis county ruled against this contention and held that his election not to come under the act did not become effective until October 29th, and that on the date of his injury, to-wit, October 15th, he was under the Work- men's Compensation Act. The supreme court sustained the district court in this construction of the act and held that he could not begin a common- law action against his employer for his injury. The style of the case is Harris vs. Hobart Iron Company, November 27, 1914, 149 N. W. 662, 127 Minn. 399. The opinion follows: "This action was brought by the plaintiff to recover damages for per- sonal injuries sustained on October 15, 1913, while in the employ of the defendant. The plaintiff appeals from an order sustaining the defendants demurrer to his complaint. "The sole question is whether the plaintiff at the time of his Injury was subject to the provisions of the so-called Workmen's Compensation Act (Laws 1913, p. 675, Chap. 467). If he was, the demurrer was rightly sustained. If he was not, it was wrongly sustained. "It is an essential feature of the act that every employer and employe ooming within its terms is bound by it unless he makes an election not to accept it. No provision is anywhere in the act for an acceptance. There la always an acceptance, unless there be an election not to accept. See 146 Mathison vs. Minneapolis Street Ry. Co., 126 Minn. 286, 148 N. W. 71, where the constitutionality of the act was under consideration. "The act was approved April 24, 1913, to be in effect on October 1, 191S. Section 11 of the act provides, among other things, that every employer and employe is presumed to have accepted the act unless 30 days prior to the accident he elects not to accept its provisions and signifies his election by giving a notice in a manner specifically prescribed. Section 12 provides that either party may terminate his acceptance, or his election not to accept, by 30 days' written notice to the other given in a manner specified. Is con- tains this proviso: 'Provided, however, that during the thirty (30) days immediately succeeding the taking effect of this act, notice of election not to accept the provisions of part 2' may be given by either party to the other as above provided, and shall be immediately effective as a notice of elec- tion, upon filing duplicate thereof with the labor commissioner.' "This proviso furnishes the key to the situation presented. Its evident purpose is to permit either party to give notice of his election not to accept within 30 days after the taking effect of the act, and to make the same immediately effective, so as to obviate what might otherwise be the effect of the statutory requirement of a 30 days' notice. "After the plaintiff served and filed his election not to accept, that is, on October 29, 1913, he was not subject to the provisions of the compensa- tion act. Prior to that time he was. He was injured while subject to the act. "The construction of the statute presents no difficulties and justifies no further discussion. "Order affirmed." 12. REFUSAL TO SIGN SETTLEMENT PETITION In John Kubinik vs. Blue Limestone Company, Hennepin county, Jan- uary 19, 192'0, the claimant refused to sign a settlement petition and brought an action for his compensation. The court held that the employer had complied with the law in offering compensation subject to the signing ot said petition and dismissed the action. In his memorandum Judge Bard- well said: "This action is premature, without merit, and has needlessly delayed the payment of compensation which the employer and insurer stand ready and willing to pay upon the usual settlement and petition being executed by plaintiff and approved by a judge of the district court." 13. WRIT OF CERTIORARI The supreme court has discussed the writ of certiorari in compensation matters in two cases. (a) Stipulation Not Equivalent to Writ. In State ex rel. Virginia & Rainy Lake Company vs. Stanley Bashko, October 9, 1914, 148 N. W. 1082, 127 Minn. 519, the supreme court held that a stipulation as to a case could not bring it before the court as upon a writ of certiorari. The decision follows: "Where the time had expired within which findings of the district court can be reviewed (no judgment having been entered), a stipulation of the parties to submit the matter to this court as though a writ of certiorari had been applied for or issued gives this court no jurisdiction. (Reporter.); "Action, in the district court for St. Louis county by Stanley Basliko against the Virginia & Rainy Lake Company to recover for personal injury received while in Its employ. The case was tried before Fesler, J., who made findings and ordered judgment for |1,000.00 payable at the rate of- $10.00 per week for a period of 100 weeks, in favor of plaintiff. Thereupon the stipulation mentioned in the opinion was entered into between, the attor- 147 neys of the parties to the action, that the clerk of the district court should certify and return to the supreme court all of the pleadings, record of testimony and all proceedings, with the same effect and in all respects tiie same as though a petition for a writ of certiorari had heen made in due time and form to the supreme court by the defendant, and the court acting on the petition had caused a writ to be issued, and that all the proceedings should be rertewed by the supreme court bearing upon the questions involved, in all respects as might be done if the proceedings were before that court on a writ of certiorari duly issued. Dismissed. "Per Curiam. The attorneys have stipulated that this case shall be deemed to be before this court as upon a writ of certiorari, but no such writ was ever applied for or issued. They seek to review the findings of the district court in this manner, although no judgment has been entered in that court. Even if such findings could be reviewed by writ of certiorari, and if the parties could substitute a stipulation in place of the writ, neither of which can be conceded, the time within which such findings could be so reviewed had expired before the making of the present stipulation. This court has never acquired jurisdiction of the case and the proceedings in this court are dismissed." (b) Writ Only on Final Decision A writ of certiorari will not lie to an intermediate order, but only to a final decision of judgment. Such was the ruling in the case of State ex rel. Klemer et al. vs. District Court of Rice County, 155 N. W. 1057, 132 Minn. 100. "Employer presented a complaint to the judge of the district court. In which the claim was made that injured had recovered from the disability resulting from the injury and asked the court to fix the period during which he was entitled to compensation. The court found that employe was entitled to 29% weeks of compensation and so ordered on June 3, 1915. The judgment was paid. We quote the rest from the opinion: "In October, 1915, Webster, the injured man, made an application sup^ ported by affidavits of physicians, to vacate the judgment and set aside the finding that he had fully recovered, upon the ground that he had sus- tained an Injury which had not been discovered until after the hearing on June 2, 1915, and that he was still disabled in consequence thereof. To this application relators interposed what is termed in the record as a demurrer. The district court made an order in form overruling the demur- rer, and thereupon relators presented the matter to this court by means of a writ of certiorari. "The so-called demurrer was not a demurrer in any proper sense, and amounted to nothing more than a motion to dismiss plaintiff's application. The order overruling the demurrer amounted to nothing more than a denial of such motion. The court has neither granted nor denied Webster's appli- cation, and it is still pending undetermined. A writ of certiorari will not he to an intermediate order, but only to a final decision or judgment; and a matter pending in the district court cannot be brought to this court for review by such writ until the district court has made Its final decision there- upon. State vs. District Court, 44 Minn. 244, 46 N. W. 349; State vs. Pro- bate Court, 51 Minn. 241, 53 N. W. 463; State vs. District Court, 58 Minn. 534, 60 N. W 546.; State vp. Probate Court, 72 Minn. 434, 75 N. W. 700. "As no decision upon Webster's application has yet been made by tne district court, the writ was prematurely and Improvidently issued. "Writ quashed." 14. LUMP SUMS rict court to order a lui yer or insurer was bef state ©X rel. Ansetn vs. District Court of Ko«ch. -.....= -"„-:, -. 713, 134 Minn. 16, and the finding of the court was that the district court had no authority to order a lump sum settlement. The decision follows: The power of the district court to order a lump sum without regard to the consent of the employer or insurer was before the supreme court m State ex rel. Anseth vs._ District Coyrtaf_Kaoch,ch.ng County 158 148 "Proceedings under the Workmen's Compensation Act to recover com- pensationl for injuries received by John B. Tubbs, in the course of his employment by Julius Anseth as a bartender in a saloon in the city of International Falls, Koochiching county. The trial court awarded compensa- tion in the sum of $1,000.(K> to be paid in a lump sum, and J150.0O for med- ical services. The case comes to this court on a writ of certiorari. "The first question is whether the accident to Tubbs arose out of his employment. The findings of the trial court, which are amply supported by the evidence, show the facts to be as follows: During the month of July, 1915, Tubbs was employed by Anseth as a bartender in the latter's saloon in International Falls. In the course of his employment, and while actually engaged in his duties as bartender in the saloon, he was struck in the right eye by a heavy drinking glass thrown by a patron of the saloon who was so drunk that he did not know the nature of his act or what he was doing. It was a contention of relator on the trial that the glass was thrown by Dubonis, the drunkeni man, in a personal altercation between him and the bartender, but the finding is against this view, and the evidence is such that we must accept as true the version of the matter adopted by the trial court. "Did this accident 'arise out of Tubbs' employment as bartender? Did this employment necessarily accentuate the natural hazard from assault to which all men are subject? In other words, did his employment cause a special degree of exposure to the risk? We have no hesitation in answer- ing these questions in the affirmative. The court will take judicial notice that the position of bartender, patron or spectator in a saloon, especially in one situated where rough characters are apt to congregate and carouse, is quite apt to be one of peculiar danger. Barroom assaults are not of infre- quent occurrence. We had an illustration of one very recently in the case of Lynch vs. Brennan, 131 Minn. 136, 154 N. W. 795, and illustrations might be multiplied indefinitely by reference to other decided cases. "Questions more difficult arise from the court's award of compensation in a lump sum, rather than in weekly payments. The injury resulted in the total loss of the right eye, and therefore entitled plaintiff to compensa- tion of 'fifty per centum of daily wages during one hundred weeks.' Laws 1915, chapter 209, section 13, subdivision (c). Plaintiff's wages were {EO.OO per week, and he was therefore entitled to $10.00 per week for 100 weeks. Instead of making this award, the court without the consent of the parties, gave compensation in the sum of $1,000.00, and judgment was entered against relator for that sum, with $150.00 for medical services and costs. "Two questions arise: (1) Had the trial court the right, without the agreement of the parties, to award a lump sum judgment instead of peri- odical payments? (2) If so, should the weekly payments have been com- muted by taking the present value thereof calculated on a 6 per cent basis? "Section 25 of the act, as amended by Laws 1913, chapter 209, reads as follows : 'Section 25 — Payment in Lump Sum. — The amounts of compensation payable periodically hereunder, either by agreement of the parties so approved by the court, or by decision of the court, may be commuted to one or more lump sum payments, except compensation due for death or permanent total disability, or for permanent partial disability, result- ing from total loss of hearing or from the loss of an arm or a hand or a foot or a leg or an eye or from more than one such member. These may be commuted only with the consent of the district court 'In making such commutations the lump sum payments shall in the aggregate amount to a sum equal to the present value of all future Installments of compensation calculated on a 6 per cent basis.' "The first paragraph of this section is not fortunately worded, but we construe it as providing that the periodical compensation, whether agreed on by the parties and approved by the court as provided in section 25, or fixed where there is a failure to agree, by the decisiom of the court, may be commuted to one or more lump sum payments, except that compensation due for death, permanent total disability, or permanent partial disability 149 resulting from specified conditions, one of which is the loss of an eye, in which cases the periodical payments may be commuted only with the 'con- sent of the district court.' "The only construction that will give force to all the language used is that in the excepted cases the agreement of the parties to commute the periodical payments is ineffective unless the consent of the court is obtained, while in the other cases such consent is not necessary. It does not seem a reasonable construction of the section to hold that the court may, in the absence of the agreement of the parties, against the will of either one, commute the weekly payments to a lump sum payment. The statute makes the consent of the court necessary, and this implies that there must be something to consent to, and we think that something is the agreement of the parties. This is the view taken by the Nebraska court in Pierce vs. Boyer-Van Kuran L. & C. Co., 99 Neb. 321, 156 N. W. 511. We find no statute like ours except in Nebraska, and it seems to us that the court of that state has correctly construed the statute. The whole idea of periodical payments is to give the workman an income payable as his wages were paid. In cases of injuries that are not serious, commutation to a lump sum is left to the agreement of the parties. In cases of more serious injury, the agree- ment is ineffectual unless the court gives its consent, finding a lump sum payment to be for the best interests of the workman. But in no case can the court commute the payments unless the parties agree. "All the authorities agree that the discretion, where it exists, to award a lump sum judgment should be sparingly exercised. In most cases it is much better for the workman and his family that the compensation be paid in installments corresponding to the payment of his wages. This is the plan of the act, and it is only in exceptional cases that the court should approve a commutation. It should be noted that in making such commu- tations the present value of the future installments of compensation, cal- culated on a 6 per cent basis, should be taken. That was not done in this case. In view of our conclusion, that the court should not have commuted the weekly payments, we need not say what their present worth would amount to. "We also think the trial court awarded $50.00 too much for medical services. Section 18 of the act limits the liability for such services, treat- ment, supplies, etc., required at the time of the injury, and thereafter for 90 days, to the sum of $100.00, except that the court may, upon necessity being shown at any time within 100 days after the injury, require the employer to furnish additional medical treatment and supplies during the 90-day period; the total liability not exceeding $200.0fl. This section clearly contemplates an application to the court for additional medical services or supplies and action thereon. There was no application or order of this kind in the case at bar, and we think the court had no authority to make an allowance in excess of $100.00. "The judgment of the court below is modified so that it shall provide for weekly payments of $10.00 per week for 100 weeks, instead of the pay- ment of $1,000.00 in a lump sum, and so that it shall direct the payment of nOO.OO, instead of $150.00, tor the medical services. No statutory costs in this court." 15. JURISDICTION The question of jurisdiction was discussed in a supreme <;ourt decision where an employe brought an action to recover compensation in municipal court. The case is J. Burns vs. Millers Mutual Casualty Company, July 16, 1920. The opinion follows : "This action was brought in the municipal court of Waseca. The com- plaint alleged that in March, 1917, while employed by the Waterville Bjirni- ture Company, plaintiff sustained a personal injury which arose out of and in the course of such employment; that he and his employer were both subject to the provisions of the Workmen's Compensation Act; that the latter was insured pursuant to section 8227, G. S. 1913:'^?^^^"®°°*"=!°^ the injury was given; that the injury sustained resulted in the permanent loss of 50 per cent of the use of one of plaintiff's eyes; that his daily wage 150 was $3.25; that he incurred eixpenses for medical treatment amounting to $51.65; that by reason, of the facts above set forth the insurer became indebted to him in the sum of $1,026.25, of which sum $51.66 and no more has been paid; that in September, 1917, pursuant to a contract with defend- ant, the insurer turned over its assets to defendant, who assumed and agreed to pay its liabilities, Including plaintiff's claim, but had failed to do so. Judgment for $499.0a was demanded. Defendant demurred and appealed to the district court from an order overruling the demurrer. Plaintiff moved to dismiss the appeal on the sole ground that it was not taken in the manner provided by law. The motion was denied. The demurrer was then argued by counsel for each party and an order made sustaining it. From the judgment entered on such order, plaintiff has appealed. "1. The appeal from the municipal to the district court was taken as provided by chapter 283, G. L. 1917. Plaintiff insists that it should have been taken as provided by section 5068, G. S. 1894, for the following reason: The municipal court of Waseca was created pursuant to chapter 229, G. L. 1895. Section 38 of that act reads as follows: 'All appeals from any judgment, order or action of said court shall be had to the district court * * * in like manner and under the same rules of practice and procedure as in cases of appeal from justice to district courts, the general laws of this state relating to appeals from justice courts * * * shall apply to this court.' "It is contended that by the act of 1917 the legislature neither changed nor intended to change the method of taking appeals prescribed by the 1895 municipal court act. The conteotion cannot be sustained. Section 38 was not intended to make amendments to the statute relating to the manner of appealing from justice courts inapplicable to municipal courts, but to include such courts, so that the procedure in both should be the same in taking appeals to the district court. No other ground for a dismissal of the appeal was suggested in the district court, but it is suggested in plainr- tiff's brief, apparently for the first time, that the appeal should have been dismissed because an order of the municipal court overruling a demurrer is not appealable since the amendment to section 38 affected by chapter 104, G. L. 1913 (Sec. 280, G. S. 1913). This point was not raised in the district court, plaintiff basing his motion solely on the ground we have already stated. By failing to raise it and by voluntarily appearing and arguing the demurrer after his motion was denied, plaintiff waived any right he may have had to have the appeal dismissed on the ground that it was not author- ized by statute. Wrolson vs. Anderson., 53 Minn. 508. "2. The demurrer was properly sustained. The argument that the action is based on a contract between the insurer of plaintiff's employer and the defendant, and not on the Workmen's Compensation Act, is not well founded. The insurer's liability arose under the compensation act and could have been enforced only in the manner therein provided and only in the district court. Section 8216, subdivision (m) section 8230, G. S. 1913. Plaintiff's claim for compensation was unliquidated until the parties either made a voluntary settlement determining the amount of the claim and obtained the approval of the judge of the district court, or, if they failed to do so, until the court fixed the amount by its judgment. The insurer's liability was purely statutory. Until it became fixed in the manner provided by statute, there was no Indebtedness and no promise to pay compensation could be implied. Plaintiff was, therefore, bound to state the facts upon which the insurer's liability was predicated. Insofar as he has don© so. it appears that the cause of the action attempted to be stated is not within the jurisdiction of the municipal court, for, if defendant had answered denying liability, plaintiff could not recover without proving the facts necessary to establish liability under the compensation act. Defendant has stepped Into the shoes of the Insurer. The same steps must be taken to charge it that would be necessary if the insurer were the defendant. "Two grounds for demurrer were stated, the first, that the complaint failed to state a cause of action, and the second, that the municipal court had no jurisdiction. The demurrer was good on both grounds and the judgment from which the appeal was taken is, therefore, affirmed. 151 VIII. LIMITATIONS 1. NOT RETROSPECTIVE The 1915 amendments to the compensaUon act include secUon 20a which establishes a limitation of one year from the date of the accident as to the time withm which actions or proceedings could be brought TWs amendment went into effect July 1, 1915. Two efforts have been made to make the amendment effective upon accidents which had happened before July 1, 1915, but both the suggested retrospective rules weT^Jected by the supreme court. icjci^lbu uy (a) Not Retroactive on Accrued Rights. The first of these decisions was State ex rel. Anderson vs. General Aocidenit, Fire & Life Assurance Corporation, 158 N. W. 715 134 Minn 2l In this case the court held that the statute of limitations did not run on claims that existed before July 1, 1915, one year from the dates when the respective accidents happened. The opinion is: "The proceedings for compensation was brought in November 1915 a year and eight months after his injury. The act of 1913 contained no limi- tation upon the time within which a claim for compensation might be made On April 21, 1915, a year and ten days after the accident, the act of 1913 was amended and the following section was added: 'Section 20A Limitation.— The time within which the following acts shall be performed under part 2 of this act shall be limited to the following periods respectively: '(1) Actions or proceedings by an injured employe to determine or recover compensation; one (1) year after the occurrence of the injury.' Laws 1915, chapter 209, section 8. "The concluding section of the 1915 act is as follows: 'This act shall take effect on and after the first day of July, A. D. 1915.' "The court held that the relator's cause of action was barred by the limitation quoted. The correctness of this holding is the single question for decision. "A statute of limitation is construed to operate prospectively unless a legislative intent to give it a retrospective operation Is clear. It is not construed to bar a remedy upon a cause of action accrued at its passage unless the legislative intent to bring such result is expressed or necessarily implied .from the language used. 'The general rule of construction applicable to all statutes is that they are not to be construed as retroactive unless it clearly appears from their language that they were so intended. A statute ought never to be so construed as to cut off an existing right if it be reasonably susceptible of any other construction.' "The postponement of the time when a statute shall become effective evidences an intent to make it of retrospective operation. If such is not the intent why the postponement? In the case last cited the court said: 'No reason Is apparent why the law-makers should depart from the ordinary course of legislative action, by postponing the operation of the law except it be that parties interested might have notice of the passage of the law, and proceed to exercise their then existing rights before its operation should prevent them from doing so.' "If the amending statute of April 21, 1915, had done nothing but give a limitation the postponement of its operation might well enough be con- clusive of an intent to give a retrospective operation. It did much more than prescribe a limitation. It was a revision of the act of 1913. The title of the 1913 act and 13 of its 36 sections were amended and 3 sections were added. Some of the changes were formal; others were substantial. The 152 rates of compensation were changed. The provisions as to dependents and partial dependents were rewritten. The statute was made applicable to minors. There were changes in procedure. Before the amended act could become efficiently and justly operative it was necessary that those interested adjust themselves to it. This furnished a sufficient legislative reason, a very apparent and a persuasive reason, for the postponement of its operation. Indeed, the act of 1913, our first compensation act, was not effective for six months after its passage and this for no reason other than that there might be an appropriate adjustment to the changed relation between employer and employe and adequate preparation for it. If the operation of the 1915 act had not been postponed, it would have been imme- diately effective. It would have operated prospectively but not retrospec- tively. The basis of the claim that it was intended to operate retrospec- tively is that the postponement evidences the legislative intent to that effect, the purpose being to enable those whose causes of action had accrued to present them In the interval. There is no other evidence of such intent. The argument is legitimate, but there was wholly adequate reasons why the operation of the act should be postponed though it contained no statute of limitation. The reason of the postponement Is sufficiently explained without adverting to the limitation. A change from no express limitation upon the time in which to present a claim for an accrued' cause of action to a limitation of 70 days, that is from April 21st to July 1st, would be radical. It would be harsh. It might result in an employe losing his remedy without actual fault. The Workmen's Compensation Act is reme- dial and liberal and was intended to protect the employe. There was no pressing need for so stringent a limitation upon accrued causes of action. It would at once meet an argument on behalf of a workman that it uncon- stitutionally deprived him of a fair opportunity to present his claim. We should not ascribe to the legislature an intent to make such a limitation. We hold that the act of 1915 is not retrospective." (b) Accrued Rights Not Affected at All. In a later case an effort was made to set up the rule that the amend- ment effective July 1, 1915, gave one year from that time within which all accrued rights could be pushed. The court rejected this principle also. The style of the case is State ex rel. Berwind Fuel Co. vsi. District Court of St. Louis County, October 26, 1917, 164 N. W. 812, 138 Minn. 213. "Aaron Lindstrom was injured while in the employ of the Berwind Fuel Company, on June 9, 1914. This action or proceeding for compensation was commenced July 9, 1917. The trial court allowed compensation under the compensation act. Relator makes but one contention, that is, that the claim for compensation was outlawed when asserted. "At the time the injury was sustained the original act of 1913 (chapter 467, G. S. 1913 — 8195-8230) was in force. This act fixes no limitation upon the time within which an action or proceeding shall be commenced. By chapter 209, Laws of 1915, section 8, a new section, 20a, was added to the act of 1913, and this provides that action or proceeding by an injured per- son to recover compensation must be commenced within one year after the occurrence of the injury. This act was approved April 21, 1915, and became effective July 1, 1915, after plaintiff's claim accrued. If section 8 of the act of 1915 applies to plaintiff's claim, then by its terms his claim became barred when the act went into effect. If the act of 1913 applies, his claim was not barred. "We need not discuss the question at length. This court has recently held that section 8 of the 1915 law is not retrospective and that the limi- tation prescribed by that section does not apply to claims arising before the passage of the act. State ex rel. Anderson vs. General A. P. & L. A. Corp.. 134 Minn. 21, 158 N. W. 715. That decision is determinative of this case, for the facts in the two cases are substantially the same and the principle Involved is identical. 153 • -^^ th/iQi. ?^*? ^^"^^ ^^^ ™'^ *''^* the holders of claims accruing prior to the 1915 statute are granted the period fixed by that statute afte? the statute went Into effect in which to present their cUims In other words, that 016 time which elapsed before the statute b^ame operatlvl is disregarded and the cause of action is to be deemed to have accraed It the time the limitation statute became effective. This rule has been adopted by creditable authority The fact is, a new statute of limitation tnaS in general terms, applied literally, would often bar existing rights of action without a fair chance to present them. Such a result would often be harsh and would sometimes render the statute unconstitutional. To avoid such a result and to give the statute a construction, that will enable it to stand courts have adopted rules of construction which in fact modify the literal meaning of the statute. The rules of construction adopted by different courts are not harmonious. "One rule is to construe the statute as applying only to causes of action arising after its passage, unless a contrary Intent is made to appear. "A second rule is to construe the statute as applying only to such existing actions as have already run a portion of the statutory time but which still have a reasonable time left for prosecution before the statutory time expires. "A third rule is to construe the statute as affecting existing causes of action but as commencing to run at the time when the statute takes effect, so that pre-existing causes of action not already barred are treated as if accruing at the time of the enactment of the new statute. "The last rule is that adopted by the supreme court of the United States. Lewis vs. Lewis, 7 How. 776, 12 L Ed. 909; Sohn vs. Waterson, 17 Wall, 596, 21 L. Ed. 737. See also 1 Wood, Limitations (4th Ed.), p. 76; 25 Cyc; Ann. Cas. 1912A, 1041, note. "The first rule is, however, the rule adopted in this state. State ex rel. Anderson vs. General A. F. & L. A. Corp., 134 Minn. 21, 158 N. W. 715, and cases there cited. "The rules are inconsistent. We cannot adopt any two. We adhere to the rule already firmly established in this state. Order affirmed." 2. SUSPENDED AS TO ALIEN ENEMIES There was much question after the beginning of the war and especially after the passage by congress of the "Trading with the Enemy" act con- cerning the status and remedies at law of citizens of countries with which the United States is at war. To meet some of the inquiries which were made of it the department of labor secured the following very compre- hensive opinion from the attorney general: "You ask whether the Federal Trading with the Enemy Act supersedes the principles laid down in our opinion of June 15, 1917, that the rights of enemy aliens are suspended during the war. "The term 'alien enemies' as used in the act of congress has a special and limited meaning. It does not include all persons having that political status. It Includes (1) persons of any nationality resident within the ter- ritory of any nation with which the United States is at war, or resident outside the United States and doing business within such territory, (2) the government and officers and agents of any nation with which the United States is at war, and, (3) such other individuals as may be natives, citizens or subjects of any nation with which the United States is at war, other than citizens of the United States, wherever resident, or wherever doing business, as the President may by proclamation include within the term enemy. It is obvious that a citizen of a nation with which this country is at war, who resides in the United States, and who has not been classified as such by executive proclamation, is not an enemy alien within the meaning of the federal law. 154 "For the purposes of your question, enemy aliens may be divided Into two classes: (1) those included within the Trading with the Enemy act, and (2) those excluded. "Under the various provisions of the Trading with the Enemy act the custodian of alien, property has the exclusive right to take over all prop- erty and interests of every name and nature vested In an alien enemy as under the Workmen's Compensation Law, have ceased to have any legal standing in themselves. As to these, the custodian of alien property has therein defined. Thus alien enemies of class 1, claiming compensation under the Workmen's Compensation Law have ceased to have any legal standing in themselves. As to these, the custodiatt of alien property has automatically taken their places. He may proceed in behalf of such per- sons. (Workmen's Compensation Board of Pennsylvania, June 8, 1918.) "As to alien enemies of class 2, these persons have not lost their legal standing, and they may enforce their claims for compensation as depend- ents in their own behalf. "It follows that our opinion of June 15, written before the enactment of the act of congress, is, insofar as it denies the right of aliens of class 1, superseded by that act. "You also ask whether the statute of limitations prescribed by section 20A, chapter 209, Session Laws 1915, is automatically suspended as to enemy aliens by the state of war, or suspended only in case an alien enemy depend- ent sues and the defendant sets up in abatement that the plaintiff has no standing in court. "The statute of limitations is, of course, a matter of defense. It bars the remedy but not the right. It may always be waived as a defense. A complaint showing on its face that the period of limitation has expired is not demurrable for that reason. The fact that the action is barred by the limitation of such statute must be affrmatively alleged in the answer. Sec- tion 7710, G. S. 1913, provides as follows: 'Any of the following grounds of disability existing at the time when a cause of action accrued shall suspend the running of the period of limitation until the same is removed, provided that such period, except in the case of infancy, shall not be extended for more than five years nor in any case for more than one year after the disability ceases. '4. That the plaintiff is an alien and the subject or citizen of a country at war with the United States.' "In my opinion the one year limitation prescribed by section 20A, aforesaid, is to be read in connection, with said section 7710, and the run- ning of such period of limitation is suspended as to such aliens as do come within the proscription of the act of congressi and who cannot sue until after the war is ended. (Class 1.) As to alien enemies of class 2, to whom the courts are open, the statutes of limitation! are not suspended. "You also ask if an alien enemy residing in the United States has any remedy if an employer or insurer refuses him compensation. It is my opinion that an alien enemy residing in the United States and engaged in a non-hostile occupation, who has not been included within the class of 'enemy aliens' by executive proclamation, has a remedy under such cir- cumstances in a court of competent jurisdiction. Clarke vs. Morey, 10 Johns 69; Arndt Ober vs. Met Opera Co., 169 N. Y. Supp. 944; Case & Comment, Vol. 23, No. 12, page 985; Memo, of Hanft, J., in Horvath vs. Kostrom, Ramsey County, Minn., District Court, June 15, 1918." 3. ACTIONS OR PROCEEDINGS Because the question had sometimes been raised whether the applica- tion of an injured person to the department of labor for assistance in adjusting the case was the beginning of proceedings within the meaning of section 20A the matter was referred to the attorney general in the fol- lowing manner; "We are writing to ask for your opinion as to the meaning of the words 'actions or proceedings' as employed in section 20'A of the Workmen's 155 Compensation Act. The point of especial interest to us is whether in view of the language of section 24A of the same law, by which officers and employes of the Department of Labor are empowered to 'assist so far as possible in adjusting differences between the employe or his dependent and the employer under part 2 hereof,' an application by an employe or his dependent to this department for assistance in securing compensation con- stitutes 'proceedings'." The reply of the attorney general was as follows: "The section referred to relates solely to the limitation of time within which the employe may institute proceedings for the enforcement of his claim against his employer, and I think it quite clear that the words quoted as therein used refer to proceedings in court tor the establishment of the claim. "I am of the opinion that the duties of the labor commissioner under the provisions of section 24A are advisory in character, and that the pre- sentation by an employe to the labor commissioner of his claim against his employer for compensation under the act is not the institution of an action or proceeding for the enforcement of the claim." 4. DATE OF ACCIDENT REPORT NOT CONFIDENTIAL The attorney general has given the following advice regarding the change made by the 1919 legislature in the accident report law and in the section providing the statute of limitations: "Replying to your inquiry as to the duty of the commissioner in the matter of furnishing information concerning reports filed under the pro- visions of chapter 359, Laws 1919, and the effect of the provision therein contained that: 'No such report nor any part thereof, nor any copy of the same, nor any part thereof, shall be open to the public, nor shall any of the contents thereof be disclosed in any manner, by any official or clerk or other employe of the state having access, thereto, but the same may be used for state investigation and statistics only.' "Another statute, chapter 363, Laws 1919, approved on the same day fixes the time within which actions or proceedings by an injured employe to recover compensation shall be begun to 'one year after the employer has made written report of the injury to the commissioner of labor of the state.' "In view of the provisions above referred to I think the commissioner may properly disclose the circumstances that a report has been filed in his office by the employer in accordance with the provisions of chapter 359, but without any information as to the facts stated in the report. "Obviously the two statutes when read together contemplate that there shall be public information to the extent that a report has been filed and no information as to its contents." 156 IX. MEDICAL 1. NEUTRAL PHYSICIAN The only decision in which the supreme court has touched on any of the medical aspects of the law is that of State ex rel. Maryland Casulty Co. vs. District Court of Hennepin County, Le Baron vs. Curtis Hotel Co., 167 N. W. 1039, 140 Minn. 216. The question before the court was whether the trial court was bound by the report of the neutral physician which it had appointed. The supreme court held that the lower court was not bound to follow such a report. The case is given In full under V. Injuries, (d) Nephritis Following Fall. 2. SELECTION OF PHYSICIAN In George Anderson vs. Cedar Lake Ice Co., Hennepin county, December 8, 1914, Judge Hale refused to hold the employer liable for medical care obtained by the employe after the employer had furnished a doctor. The employe was dissatisfied with the care he had received. The circumstances were as follows: The injured employe was sent by the insurance company to a physician. The physician discharged the man in about a week and said that he was cured. The injury was a head injury and the man was suffering dizzy spells and went to another physician, who found that he had suffered a serious head -injury and took the man to a brain specialist. The injured man and the physician then went to the office of the insurance company and told them that the man had come to the physician for treatment and that the physician then accompanying the injured was caring for him. The insurance company did not tell the injured that they would not pay this physician, nor they did not tell him that he should go back to the physician to whom they originally sent him. They simply made no com- ments whate>rer. The man asisumed that they had agreed to permit him to go to the physician of his choice. The insurer latPr contended that inas- much as they had furnished a physician in the first instance, and that the man had never requested them to furnish him another physician, and they had never refused to furnish one, that the employe went to his own physician of his own accord and was liable for whatever bills he incurred. In another district court case. Mads Madsen vs. Metropolitan Milk Com- pany, Hennepin county, October 25, 1915, the employer had offered medical attention. The employe had refused and hired his own physician. The court again held that the employer was not liable for the medical expense in such a case. The finding was: "That said Mads Madsen engaged Dr. C. P. Nelson to treat him for said injury, and that after said Dr. C. P. Nelson had rendered first aid to him, said Mads Madsen was furnished medical and surgical treatment by the Metropolitan Milk Company and the General Accident, Fire & Life Assur- ance Corporation, Ltd., its insurer, as provided by the Workmen's Com- pensation Law, but refused to accept the attention of the physician fur- nished by said employer and insurer, and continued to have his injury treated by said Dr. C. P. Nelson. "As conclusions of law, the court finds: "That said employe is entitled to compensation from the 25th day of January, 1916, to the 30th day of March, 1916, at the rate of $9.00 per week, and from March 30, 1916, to April 26, 1916, at the rate of $3.00 per week, aggregating in all, $96.00. "That said employe having refused medical treatment at the hands of his employer, is therefore not entitled to have Dr. C. P. Nelson's bill paid by said employer, except that charge made by said Dr. C. P. Nelson for first treatment." 157 3. INADEQUATE CARE The medical care In compensation cases is often a source of disnute In some cases employes hire a physician without being able to establish a clear case of refusal to act seasonably on the part of the employer In such instances they have to meet the expense themselves A clear case of failure to provide adequate care is found in Mike Biandich vs. Commodore Minrng Co., St. Louis county, March 9, 1918, in which the court ruled: "That after said employe was discharged by the hospital conducted by the employer, it became necessary for said employe to procure medical atten- tion and medical service elsewhere. "That said employe is entitled to a reasonable expense incurred by hun m providing medical and surgical treatment, medical and surgical supplies required by him as a result of said injury, and thereafter during disability of said employe, the amount of which is $12.50." 4. FAILURE TO GIVE CARE Many cases occur, of course, in which the employer disputes liability entirely, and in such instances an award for medical expenses usually goes along with the award of compensation. An illustration of this is Carl Sat- terstrom vs. G. W. Lind and T. G. Laughren, St. Louis county. May 8, 1917 in which the court found that: "Plaintiff was obliged to and did expend for medical treatment and hospital care the sum of $121.55, no part of which has ever ' een repaid to him, and no compensation or wages have been paid him for any period subsequent to said date, November 25, 1916. "That plaintiff is entitled to recover of defendant Laughren the sum of ?121.55, together with compensation at the rate of $6.50 per week, pay- able weekly or upon employer's regular pay-days, beginning the 9th day of December, 1916, during disability, except that said sum of $121.55 and all amounts due and payable at the rate of $6.50 per week up to the time of judgment shall be payable upon the entry of judgment." 5. PREJUDICE A decision dealing with the question of prejudice as a result of failure to accept medical treatment and reducing the compensation accordingly was given in the case of W. J. Van Pelt vs. Hanna Ore Mining Co., May 3, 1920. Judge Freeman ruled, in part, as follows: "That on the 11th day of October, 1918, the plaintiff, whUe in the employ of the defendant and in the usual course of his employment, received an injury arising out of the employment; that said injury consisted of a severe injury to the foot which resulted in a falling of the arch so that the plaintiff was able to continue work only with great difficulty and with considerable pain and suffering; that the plaintiff continued to work for the defendant company although suffering froni said injury, and although advised by the defendant's physician and by the superintendent of defend- ant company to lay off from work and givel his foot a chance to get well. "That at the time of the hearing the plaintiff was suffering from a third degree flat foot as a result of said injury, that this is a permanent injury and that it resulted in 50 per cent loss of use of said foot. "That if the plaintiff had taken proper care of himself at the time of the injury and had followed the advice of the physician, the damages sustained by reason of said injury would not have resulted in the loss of the use of the foot to exceed 25 per cent of the use thereof. "That at the time of this injury plaintiff was making $6.60 per day. "As a conclusion of law, the court finds: "That the plaintiff is entitled to compensation at the rate of $12.00 per week for 31 '^ weeks, together with his costs and disbursements herein." 158 6. DENTISTRY INCLUDED Although there have been no definite rulings by any court on this point, the position of the .department of labor and Industries has always been that dental expenses were included under the medical section of the law. An early opinion of the department was given in response to the following question: "Will you kindly advise us what your understanding or impression of section 18 of the compensation law is as respects dentist bills. Can this section in any way be held to obligate the employer to pay dentistry bills for repairing teeth broken in an accident, or for putting in a false tooth in place of one knocked out entirely?" The department's reply was as follows: "Replying to your favor of Octobar 16, relative to dentist bills, would state that dental bills have uniformly been construed to come under section 18, and in a number of cases that have come before the courts, dental work has been allowed under that section." 7. WIFE AS NURSE The question has often arisen whether or not an injured person is entitled to recover for the services rendered by his wife in nursing and caring for him, after his removal from a hospital and during the balance of his period of disability. This point was passed on by the district court in the case of William Darvielson vs. Peter Peterson, Itasca county. December 13, 1916. The case was submitted to the court on an agreed statement of facts, together with all the pleadings. The court did not allow pay for the wife's services and dismissed the matter in a memorandum as follows: "The above entitled matter was submitted to the court upon the plead- ings and an agreed statement of facts, and the findings of fact herein made are based on said pleadings and agreed statement of facts. "Prom said stipulation it appears that the only matter in controversy and dispute between the parties is the right of plaintiff to recover in this """ matter an additional sum for the care and nursing given him by his wife while at his home. The matter was submitted to the court without argu- ment or the presentation of any authorities whatever. From the stlpuls- tion of fact, it appears quite clear that whatever was done by plaintiff's wife was done gratuitously. He never paid, nor agreed to pay her anything for such services, and, in all probability, neither, party at the time of the injury and at the time of his request to be taken home, had in mind or con- templated any charges for such services. It never appeared to me that plaintiff would be entitled to recover for the services of his wife thus ren- dered under the compensation act, but it having been submitted, a some- what careful examination of all the authorities obtainable upon the subject has been made and one case which appears clearly to be squarely in point has been found, and it seems to be a well considered one. City of Mil- waukee vs. Miller et al., 144 N. W. 188. This is a Wisconsin case, but the statute of Wisconsin appears to be identical with our own so far as medical, surgical and hospital services are concerned." 159 X. THIRD PARTIES 1. LIMIT OF LIABILITY In the case of Mahowald vs. Thompson Starrett Company et al., 158 N. W. 913, 134 Minn. 113, the supreme court held that the liability of a third party, operating under the compensation law, for the injury or death of another's servant, was limited by the provisions of the compensation act. "Action to recover damages for death by wrongful act. The jury prop- erly found that the negligence of defendant was the proximate cause of the death of plaintiff's intestate, Gebhardt Mahowald, and that the damages sustained amounted to ?6,500.00. Defendant moved for a new trial, and plaintiff appeals from the order granting the same. "The Workmen's Compensation Act was designed to furnish compensa- tion whenever employes suffer injury or death in the course of the employ- ment from accidents arising out of it. It was intended to let those employers and employes who so have chosen escape from the harsh conse- Quences which too often result from the application to their status of the common-law rule of negligence, contributory negligence, assumption of risk and the negligence of fellow servant. And every person who Is entitled to avail himself of the compensation law is presumed to have so done when the relation of employer and employe was assumed. As remedial legislation it should not receive a narrow construction, but should be applied fairly and broadly with a view to confer the benefits intended. It may be that in some particular case remedies afforded by the law outside of this act would be to the servant's advantage. But, where both employer and employe have concluded to be bound by the compensation act, in respect to accidental injuries suffered in the employment, courts should not be too prone to exclude an accident when it does occur from the operation of the compact. It will not do to adopt a rule excluding an accidental injury from the com- pensation act if the servant may recover more damages under other pro- visions of law, and including it only when otherwise no compensation is attainable. Both employer and employe must be treated with the same fairness. Had the death of Mahowald been brought about by some irre- sponsible party under circumstances such as here, would Bernard-Cope Manufacturing Company be compelled to pay his dependents compensation? Clearly, it would not, except under the Workmen's Compensation Act. But it the Bernard-Cope Manufacturing Company is liable under the act, then this defendant, also being thereunder, is liable to the same extent, but not further. "That the accident befell Mahowald in the course of his employment admits of no doubt. He was then doing his usual work in a customary man- ner, driving along a street at a place where properly he might be expected to travel in the discharge of the duties in hand. There was no departure from the master's service up to the accident. The question not so free from doubt is whether the accident arose out of his employment. We think it should be held to have so arisen. Mahowald's duties kept him continu- ously on the streets of a large city in charge of his employer's team. In that position certain risks are inherent, such as collision between his team and other vehicles, runaways, and the like. The erection of new buildings is constantly going on. Hoisting materials for these, as well as hoisting heavy articles in moving, is often done over or adjacent to the traveled por- tions of the street. These matters and others Involve risks to a teamster whose attention has also to be given to his team and the road. Had the heavy load of beams crashed to the street just in front of the team, thereby causing a runaway resulting in his death, could it have been said that the accident did not arise out of his employment? We apprehend not. There would seem to be no good reason for drawing a distinction between the supposed case and this. 160 'An injury, to come within the compensation act, need not be an anticipated one nor, in general, need it be one peculiar to the particular employment in which he (the employe) is engaged at the time.' State ex rel. People's Coal '& Ice Company vs. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344. "The accident which befell MaJhowald was a street risk. I£ his employ- ment as a teamster upon the streets of a large city, where he not only had to look out for his own safety, but also for that of- his employer's team and rig, necessarily accentuated the street risks to him above those to other occasional travelers, it suffices for the conclusion that this accident arose out of his employment. Although the risk from the accident in question may be said to be external to the employment, yet the employment caused a special degree of exposure to this risk. "The case is remanded, with directions to reduce the verdict to the full amount allowance in cases of accidental death under the Workmen's Com- pensation Act, and enter judgment for such amount against defendant." 2. EMPLOYER'S RECOVERY DEPENDS ON NEGLIGENCE The supreme court has given an interesting construction of the third party clause in the case of Carlson vs. Minriieapoiis Street Railway Conri- pany, 173 N. W. 405, 143 Minn. 129. The points ruled on are stated in the syllabus as follows: "Under the Workmen's Compensation Act, the employer's right to recover the amount which he was compelled to pay to his employe's depend- ents from a third party, whose act was the cause of the accident, depends upon whether the negligence of such third party was the proximate cause of the injury." "Under the Workmen's Compensation Act, where an employe is injured in the course of his employment by the actionable negligence of a third party, a statutory remedy accrues to him or his dependents for compensa- tion against his employer and a common-law remedy against such third party, though he cannot proceed against both. If he elects to pursue the former remedy, he waives the latter, and his employer is subrogated to the right." The opinion in full follows: "Plaintiff was engaged in the scavenger business in the city of Minne- apolis. Charles J. Rapley was employed as one of his teamsters, and during the early morning of June 30, 1915, while in the performance of his duties, he dumped a load of waste into the river below the Washington avenue bridge, and then started on his way home. He drove up the incline from the river and along Twenty-first avenue south to its intersection with Wash- ington avenue. As he turned to the east to cross the bridge, one of defend- ant's street cars approached and struck the left wheel of the wagon, throwing Rapley from his seat on the wagon to the pavement, thereby injuring him so that he died within a short time. At the time of the acci- dent, deceased, the appellant and respondent were all subject to the pro- visions of Laws 1913, Chap. 467 (G. S. 1913, sections 8195-8230), the Work- men's Compensation Act. Rapley left surviving him, Dorothy, his wife, and several minor children as dependents. Mrs. Rapley proceeded against the appellant under the compensation act. She recovered at the rate of $10.80 per week for the period of 300 weeks, beginning July 14, 1915, and in addition thereto the sum of $100.00 funeral expenses. The proceedings were reviewed by this court, the judgment affirmed and appellant paid the sum of $3,340.00 thereon. "The plaintiif seeks to recover from the defendant in the present action, under the compensation act, the amount which he was so compelled to pay upon the judgment referred to, with costs and expenses. At the trial the court submitted to the jury, whether negligence on the part of the 161 defendant or Its employes caused the collision which resulted in the injury and death of Kapley. The jury found that there was no neglect on the part of the defendant or its employes. Plaintiff moved for a new trial on the ground that the verdict was not justified by the evidence and was contrary to law. The motion was denied. Plaintiff then moved the court to proceed with the trial, and for judgment in his favor. This motion was denied, judgment entered in favor of the defendant and the plaintiff appealed. "It is alleged in the complaint that, while in the course of his employ- ment as plaintiff's teamster, Charles J. Rapley was driving across the defendant's track in the intersection of Twenty-first avenue and Washington avenue south in the city of Minneapolis, the defendant company so care- lessly and negligently ran and operated one of its street cars that it struck the wagon belonging to plaintiff, in which Rapley was then riding, with such force that the driver was thrown therefrom to the pavement and so injured that he died shortly after. "Section 8229, G. S. 1913, reads as follows: 'That where an injury or death for which compensation is payable under part 2 of this act Is caused under circumstances also creating a legal liability for damages on the part of any party other than the employer, such party also being subject to the provisions of part 2 of this act, the employe in case of injury or his dependents in case of death, may, at his or their option, proceed either at law against such party to recover damages, or against the employer for compensation under part 2 of this act, but not against both. 'If the employe in case of injury, or his dependents in case of death, shall bring an action for the recovery of damages against such party other than the employer, the amount thereof, manner in which, and the persons to whom the same are payable, shall be as provided for in part 2 of this act and not otherwise; provided that in no case shall such party be liable to any person other than the employe or his dependents for any damages growing out of or resulting from such injury or death. 'If the employe or his dependents shall elect to receive compensa- tion from the emplover, then the latter shall be subrogated to the right of the employe or his dependents to recover against such other party, and may bring legal proceedings against such party and recover the aggregate amount of compensation payable by him to such employe, or his dependents hereunder, together with the costs and disbursements of such action and reasonable attorney's fees expended by him therein.* "It is contended on behalf of the plaintiff that he is entitled to recover from the defendant company, under the act, the amount which he was required to pay to decedent's dependents, regardless of whether it was guilty of negligence contributing to the accident. The statute provides, that, where an injury or death is caused for which compensation is payable, under such circumstances as to create a liability for damages on the part of any party other than the employer, who is also subject to the provisions of part 2 of the act, the employe or his dependents, as the case may be, may proceed, either at law against such other party than the employer to recover damages, or against the employer for compensation, but not against both, clearly distinguishing between the meaning of the terms 'compensation' and 'damages.' It is also provided that if the employe or his dependents bring an action for the recovery of damages against such other party, the amount thereof and manner in which, and the persons to whom paid, shall be as provided in part 2 of the act, and that in no case shall such third party be liable to anv party other than the employe or his dependents for any such damages. The act provides that, if the employe or his depend- ents elect to receive compensation from the employer, then the latter shall be subrogated to the rights of the employe or his dependents to recover against such other party, and may bring legal proceedings to recover the aggregate amount of such compensation. , « -^ ,- "The language is susceptable of but one meaning. It speaks for itself. The Dhrase, 'legal liability for damages,' we think, has reference to common- 162 law liability. The act does not take from the employe or his dependents the common-law right of recovery against the defendant company, if it was negligent. The case of McGarvey vs. Independent Oil & Grease Co., 156 Wis. 580, 146 N. W. 895, is In point. In that case the supreme court of Wisconsin, in speaking of this very subject, says: 'It is conceded, as the fact is, that in case of an employe, in the course of his employment, being injured by the actionable negligence of'a third person, a statutory remedy accrues to him for compensation against his employer, and a common-law remedy against such third person, though he cannot have but one satisfaction.' "The jury found that there was no negligence on the part of the defendant. There being no negligence, there was no common-law right of action. The verdict is supported by the evidence. Affirmed." 3. EMPLOYER COVERED ONLY DURING OCCUPATION The attempt was made to invoke the benefit of the third party clause of the compensation act limiting liability in a case where the third party was an employer under the act, but the accident had not occurred while he was doing anything in his capacity as employer. The supreme court held that in such a case the compensation law could not be invoked. The case was that of Hade vs. Simmons. 157 N. W. 506, 132 Minn. 344. The opinion fol- lows: "Plaintiff's intestate was in the employ of the city of Minneapolis in the capacity of a street sweeper, and on June 4, 1914, while engaged in the course of his employment, was struck and killed by an automobile negli- gently operated by the defendant. Plaintiff, as administratrix of his estate, brought this action under section 8175, G. S. 1913, and on the trial below recovered a verdict for $4,333i00. Defendant appealed from an order denying his alternative motion for judgment or a new trial. "Defendant contends: (1) That the facts disclosed by the record bring this case within the workmen's compensation statute (chapter 467, L. 1913). and that plaintiff's sole remedy, as the surviving widow of decedent, is ore for the compensation there imposed upon the employer; and (2) that the evidence wholly falls to establish the allegations of negligence on the part of defendant, and is conclusive of decedent's contributory negligence. "1. The facts in reference to the first contention are as follows: Dece- dent was injured and killed by being struck by defendant's automobile at a time when he was engaged in the discharge of his duties as an employe of the city. Defendant was the owner and in control of the automobile, and was operating it in taking his daughter to the public school, and solely in his behalf and not otherwise. He was at this time the secretary and treasurer of Nye-Jenks & Co., a corporation engaged in the grain business at Minneapolis, and employing in the conduct of its business a large number of laborers. The corporation was subject to the compensation statute. It is the claim of defendant that the injury causing decedent's death was accidental, and because of the fact that he (defendant) was secretary and treasurer of the corporation, which was subject to the compensation statute, that the case is controlled by part 2 thereof, and that plaintiff's exclusive remedy is under the law. We do not sustain the point. The mere fact that defendant was an officer of the corporation does not extend to him the protection of the statute. He was not engaged in the discharge of any duty he owed the corporation at the time of the injury to decedent, nor was he in the performance of any of its business affairs. On the contrary, he was engaged in his personal pursuits, wholly distinct from the business of the corporation, during which time the corporation was in no way respon- sible for his acts. If proceedings had been commenced to subject the corporation to liability, under the compensation act or otherwise, they would have failed by reason of the fact that defendant was not at the time acting as its officer or agent. The case does not then come within section 33 of that statute. The case would, no doubt, be different had it appeared 163 that defendant was at the time engaged in the discharge of his duies as secretary or treasurer of the corporation. But witli no such facts appear- ing, and there being no liability on the part of the corporation, defendant Is in no position to claim benefits of the compensation statute. Section 33 of the compensation statute has reference solely to cases where the injury complained of was the act of a third person, also under the compensation act. Defendant as an individual was not subject to that statute, and it therefore does not apply." 4. EMPLOYE NOT BARRED BY COMPENSATION SETTLEMENT In another case, Podgarski vs. Kerwin, December 19, 1919, 175 N. W. 694, the supreme court reaffirmed the rule just stated, that the mere fact that the man is an employer of labor is not sufficient to bring him within the third party clause limiting liability. In addition the question was presented whether the injured employe could maintain an action against the third party employer, notwithstanding that he had made a settlement with his own employer. The court held that he could. The opinion follows: "Action at law for personal injuries alleged to have been caused by the negligence of defendant. In addition to joining issue on the allegations of negligence and the nature and character of plaintiff's injuries, defendant interposed by way of special defense a claim that the rights and liabilities of the parties were controlled by the Workmen's Compensation Act, and that, if plaintiff was entitled to any relief for the injury complained of, the measure thereof was the amount fixed by that act. The defense was by the rulings of the trial court and the verdict of the jury entirely eliminated from the case, and an award of general damages given plaintiff in the sum of $7,000.00. Defendant appealed from an order denying a new trial. "The facts are substantially as follows: At the time of the injury in question, plaintiff was in the employ of the Peoples' Coal and Ice Company, a corporation doing the business indicated by its name, in the city of St, Paul. Both were under and subject to the compensation act. At about 7:30 o'clock on the morning of September 16, 1918, plaintiff, in the due course of his employment, was engaged in the delivery of a load of coal at the residence of a customer of his employer. The truck on which the coal was carted to the place of delivery while being unloaded, was stationed in the public alley in the rear of the residence where delivery was being made. "Defendant was then and for some time prior thereto had been engaged as an individual in the wholesale paper trade, and as to his employes was subject to the compensation act. At the time of the accident, defend- ant had started on the way to his place of business in another part of the city, using his automobile as a means of conveyance, and negligently ran into and Injured plaintiff while he was so engaged in the delivery of the coal as just stated. "Plaintiff's employer, the coal and ice company, was protected from losses of this kind by indemnity insurance, and SiUbsequently entered into an agreement of settlement with the plaintiff, the insurance company con- curring therein, by which plaintiff's compensation under the statute was agreed to and thereafter paid to him in monthly installments. Such pay- ments were being made at the time of the commencement and trial of this action. "Under the several assignments of error defendant contends: (1) That the rights of the parties on the facts presented are controlled by the compensation act; (2) that the damages awarded by the jury are excessive; and (3) that plaintiff's counsel was guilty of misconduct in his address to the jury, for which a new trial should be granted. 164 "The provisions of the compensation act which are involved and upon which defendant relies in support of the first contention are those dealing with the rights and liabilities of third persons who negligently cause injury to the employes of another. G. S. 1913, p. 8229, covers the subject in two subdivisions, the first of which treats of the third person negligently caus- ing such an injury who, as to his own servants and employes, is within and subject to the act; the second with the third person causing a like injury who is not within or subject to the act. "The primary inquiry upon this branch of the case is whether on the facts disclosed by the record, which are not in dispute, defendant is in position to invoke the protection of the statute in defense to the action, or in reduction of the amount of the recovery given by the jury; in other words, whether he was on the particular occasion and at the time of the injury 'subject to the provisions of the act' within the meaning and intent of the statute. The trial court ruled adversely to defendant, and held that he was not as to this transaction within the act, and therefore not entitled to its benefits or protection. "The question is not perhaps entirely free from doubt, but a careful consideration of the question leads us to the conclusion reached by the court below. By the terms of section 8203 where both the employer and the employe are subject to the act, the latter is entitled to compensation for an injury received during the course of his employment without regard to the question of negligence on the part of the employer; compensation follows from an accidental injury. Under subdivision 1 of the section under consideration, an employer whd is within the act, is made liable tor com- pensation for injuries to the employes of another employer where the injury Is caused under circumstances creating a legal liability against him; in other words, the employer who is subject to the act, is liable for com- pensation in such case only where his act creates a legal liability against him, which necessarily excludes accidental injuries. While the statute makes it clear that in either case the injury for which compensation is given must as to the employe arise out of and in the course of the employ- ment, there is no express provision prescribing when and under what cir- cumstances the third party employer may or may not claim the benefits of the limited liability thus imposed upon him; it does not prescribe that to be entitled to the protection of the statute he must show that the act causing the injury was committed at a time when he was engaged in the affairs of his own employment. But we think, though the statute is silent upon the particular point, that it should be so construed. "It seems clear that the legislature did not\ intend to extend the pro- tection of the statute to the culpable third party employer merely because he happened to be an employer of labor and as to his own employes within the statute. No reason occurs to us why an employer should receive pro- tection from a negligent injury occasioned while in the pursuit of his personal affairs, wholly disconnected with and unrelated to his business employment, as upon a pleasure drive with his automobile on a holiday or of a Sunday. It is a well-known fact that business concerns, through their servants and employes, have frequent and almost daily transactions with each other in the delivery of commodities by one to the other, which nec- essarily expose their employes to injury* when upon or about the premises of the employer with whom such transactions ai>e had, as well as when the employes come in contact with each other in the discharge of their duties elsewhere. This was well understood by the legislature when fram- ing and enacting the statute, and we conceive the purpose of that body to have been to limit the liability of the third party employer to injuries aris- ing from relations of that kind, and not to extend to him a blanket exemp- tion from liability for his wrongful acts, based on the naked fact that h» occupies that relation to industrial life. Hade vs. Simmons, 132 Minn. 344, 157 N. W. 506. We so construe the statute, from which it follows that the limited liability is not available to defendant, unless the act causing the injury here complained of had some relation to and connected with the 165 business -which he then carried on, as to which he was an employer within the meaning of the law. "That question, in the light of the rule of the law as applied to the employe in a similar situation, is not difficult to answer. It is a well-settled general rule that an injury suffered hy an employe in going to or returning from the employer's premises where the work of his employment is carried on, except in special instances not here involved, does not arise out of his employment as to entitle him to compensation. 1 Honnold, Workmen's Compensation, 105 and 107, and authorities there cited. The same rule should apply to the employer and negligent acts committed by him in the careless operation of an automobile which he employes in going to and returning from his business premises should be held not within the pro- tection of the statute. Such is this case. Plaintiff had just started in his automobile for his place of business, and before reaching the public street negligently ran into and injured plaintiff. He was not then upon or near his business premises, and the use of the automobile as a means of con- veyance thereto had no relation to the conduct of the business there car- ried on. We therefore hold that, since the injury complained of did not arise out of the conduct of defendant's business, he is not entitled to the benefit of the limited liability fixed by the compensation act. Hade vs. Simmons, supra. We have been cited to no case directly in point. In Winter vs. Peter Doelger Brewing Co., 95 Misc. Eep. 150, 159 N. Y. Sup. 113, it was held that an employer in a given case might as to his own employes occupy the position of a third party employer within the statute. The decision was based on the fact that the injury there complained of did not arise out of the particular emplotyment in which both the employe and employer were engaged. But on the facts of the case at bar, we find no difficulty in following the rule stated even in the absence of all foiir precedents. "The further contention of defendant that, though the case comes within the second subdivision of the third party provisions of the act, plaintiff cannot maintain the action, for the reason that the settlement for his injuries with his employer and the payment of the amount agreed upon operated by force of the statute to transfer his right of action to his employer. The contention is not sustained. The right of action against the third person not subject to the act is expressly given to the employe not- withstanding settlement has been made with his employer. The statute is clear on the subject, and a recovery in such an action necessarily will conclude all parties and not expose the third party to a second suit. Such is the rule in practically all of the states having statutory provisions similar to our own. Book vs. City of Henderson, 176 Ky. 785, 197 S. W. 449; Gones vs. Fisher, 286 111. 606, 122 N. E. 95; Rogers vs. 111. Central Railway Company, 210 111. App. 577. In Carlson vs. Minneapolis Street Railway Company, recently decided, 173 N. W. 405, the defendant was sub- ject to the act. The cases cited by defendant from Illinois are not in point, as shown by (Jones vs. Fisher, supra. "The other points made by defendant do not require discussion. We have considered them with care, and discovered no reason for interference with the verdict. The damages may be large, but the evidence as to the character of the injuries was conflicting, presenting a question for the jury. The trial court has approved the verdict. We find no substantial merit in the claim of misconduct on the part of plaintiff's counsel. "Order affirmed." 5. COVERAGE ON WAY HOME In Otto vs. Duluth St. Ry. Co., November 16, 1917, 164 N. W. 1020, 138 Minn. 312, the defendant sought to establish that an employe who did extra work in the evening, and was injured on his way home to supper. Was injured in the course of his employment and could recover under the compensation act. The court held as follows: 166 "Plaintiff recovered a verdict of $6,000.00 for personal injuries received •when a street car, operated by defendant in the city of Duluth, collided with an automobile driven by him. A blended motion for judgment not- withstanding the verdict or a new trial, was denied on condition that plain- tiff consent to a reduction of the verdict to $4,500.00 The consent was given; defendant appeals. "The main contention of defendant here is that the evidence conclu- sively established that plaintiff's only remedy for the injury sustained was a proceeding against his employer under the Workmen's Compensation Act. The trial court entertained the opposite view, and held that the evidence was insufficient to carry this defense to the jury. The facts are these: Plaintiff was In the employ of the Duluth Edison Electric Company, as a 'trouble man'; that is, when on duty he went, as soon as notified, to any place on the system where the service which his employer was giving its patrons was interrupted to remedy or restore it. He had been in the employ many years. At the time in question his salary was $100.00 per month for a certain stated hours of work each day, namely, from 9:00 A. M. to 6:00 P. M., but he could be called, and was frequently called, to do extra night work. When so called, he received 1% times the u=iual pay for the time spent on duty. The company furnished him with a Ford runabout to use in his work. This automobile, when not in use, was kept in a garage provided by the company. Plaintiff, when off duty, used this machine for his own purposes whenever he wished, without any objection being made by his employer. Defendant, as well as plaintiff's employer, are under the Workmen's Compensation Law. "Before quitting time on July 10, 1916, plaintiff reminded his foreman that the employe whose turn it was to care for the 'trouble' that night was ill and might not be able to come. Thereupon the foreman requested plain- tiff to come back after supper and take the place of the ailing man. Plain- tiff answered that he could not well do this, for he had planned to go out with his wife that evening. The foreman insisted that he return or see that some other person take charge of the 'troubles' that night. At 6:00 o'clock, the regular quitting time, plaintiff took the automobile to drive to his home for supper. He drove north on Second avenue east, and as he approached Second street an eastbound street car was receiving or dis- charging passengers at the intersection. This car started up about the time plaintiff entered the crossing, and he proceeded to cross Second street. At this moment a westbound car approached rapidly. There is quite a down grade going west from Third avenue east to Second avenue east. The street car was beyond control of the motorman and struck the automobile, throwing plaintiff out and inflicting several injuries. The ques- tion is: Was plaintiff in the course of his employment at the time of the accident? "We think it clearly appears that he had completed his regular work, and had not entered upon the extra work which he was to perform that night. The burden was upon defendant to prove that plaintiff was per- forming work for his master at the time the accident happened. There was no evidence that he was to receive pay for the time occupied in going to and returning from his supper. The statute leaves little room for doubt or argument on the question before us, for it provides that the phrase 'per- sonal Injuries arising out of and in the course of employment' shall be held 'not to cover workmen except while engaged in, on or about the premises where their services are being performed or where their services require their presence as a part of such service at the time of the injury, and during the hours of service as such workmen.' Section 8230, subdivision '1,' G. S. 1913. The injury did not take place during the hours of plaintiff's service. He had completed the hours of his regular everyday service, and he had not begun the hours of his extra service. The time was then plaintiff's, used for his own purposes. The employer had no control over him until his return. Morier vs. St. Paul, M. & M. Ry. Co., 31 Minn. 351, 17 N. W. 952, 167 47 Am. Rep. 793; Slater vs. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, 5 L. R. A. (N. S.) 598; Edwards vs. Wingham Agr. Imp. Co., 6 B. W C. 0. 511. "The Wisconsin workmen's compensation act provides: "'Every employe going to and from his employment, in the ordinary and usual way, while on the premises of his employer, shall be deemed to be performing service out of and incidental to his employment." St Wis 1915, Sec. 2394-3. "The court, in Hornburg vs. Morris, 163 Wis. 31, 157 N. W. 556, held that a fireman, while returning from his dinner, was not in the employ of the city, so as to have a claim under the act for compensation for injuries suffered in an accidental collision on the way. The authorities cited and relied on by appellant do not seem to be in point. In Wallin vs. Eastern Ry. Co., 83 Minn. 149, 86 N. W. 76, 54 L. R. A. 481, the negligent act causing the injury occurred during the time of the employment, for such time included going to and returning from the place of work. So in Kuehmichel vs. Western Union, 125 Minn. 74, 145 N. W. 788, the messenger who caused the injury began his service for the master whem he started on his way to the office at the command of his superior. In Mahowald vs. Thompson-Starrett Co.. 134 Minn. 113, 158 N. W. 913, 159 N. W. 565, the servant was engaged in his work in the proper place at the time of the accident. In Re Sundine, 218 Mass. 1, 105 N. E. 433, I. L. R. A. 1916A, 318, the injury was received upon the premises of the employer. The same in effect was the case in, Moore vs. Manchester Lines, 3 B. W. C. C. 527. Zabriskie vs. ES-ie Ry Co., 86 N. J. Law, 266, 92 Atl. 385, L. R. A. 1916A, 315, and like cases, rightly hold that where the toilet facilities are so placed that employe must cross a public street in order to reach them from their place of work, they are within the protection of the compensation act while crossing the street for the purpose of going to the toilets." 168 XI. WORDS AND PHRASES 1. ARISING OUT OF EMPLOYMENT— ABRIDGED CLAUSE Probably the words which must be construed most often in connection with the compensation act are "arising out of and in the course of employ- ment." In this state there are numerous supreme court decisions which help to make the meaning of the expression clear as well as a considerable number of district court cases which illustrate the application of the prin- ciples laid down by the higher court. (a) Exceeding Scope in Good Faith. One of the earliest decisions in which the supreme court construed the expression under discussion was that of State ex rel. Duiuth Brewing & iVIalting Companly vs. District Court of St. Louis County et al., 151 N. W. 912, 129 Minn. 176. In this case the court held that when a servant in good faith went outside the scope of his employment to further his master's busi- ness, the compensation act would still cover him when he sustained an injury. It also held that the term cannot be restricted to injuries caused from anticipated risks of the service. The opinion in full is: "If the injury arose out of and in the course of the employment the judgment is right. "The injured servant, Charles DeCook, had worked for relator, in the bottling house of its brewery at Duiuth, Minn., as the foreman's helper during more than five years prior to the accident. In the bottling room were a number of electric light bulbs. To protect them against breakage a wire screen cover was provided. These screens were fastened with a lock to prevent the bulbs from being stolen. The foreman carried the key — a simple three-cornered contrivance. It was part of DeCook's duty to replace any of the light bulbs which broke or became defective. In doing this he had to get the key from the foreman, unlock the cover, take the broken bulb to the foreman, then go to the office or store room for another bulb, replace it, lock the guard, and return the key to the foreman. On April 9, 1914, DeCook had occasion to go to the basement where some other employes were engaged. One of these handed DeCook what appeared to be an empty cartridge shell of unusual length. It occurred to DeCook that the empty shell could be easily fashioned into a key so as to save the time and energy spent in hunting up the foreman and carrying the key back and forth when light bulbs had to be replaced. During the working hours, in the afternoon of April 9, 1914, DeCook went to the place in the room where the tools and appliances to make the ordinary repairs called for in the business were kept, took a hammer and began to hammer the supposed empty shell into a key. The shell happened to be an unexploded dynamite cap and the third blow set it off. A fragment therefrom pierced plaintiff's right eye and destroyed the sight. "It is earnestly insisted that the facts show DeCook to have departed from his duties as a servant when he met with the accident, and to have been engaged in something entirely at variance with the master's business and without the scope of the employment. Dynamite caps were neither kept nor used in relator's establishment, and, it is said, DeCook had no express or implied authority to make a key, hence the accident cannot be held to have arisen out of the employment. "The law in question was intended to relieve against the hardships resulting from the many unfortunate accidents which do take place in this age of extensive use of complicated machines and appliances, and of great enterprises necessitating the indiscriminate employment of large forces of laborers and mechanics. All questions of the employer's fault or negligence is eliminated from cases arising under this act. The intention was to com- pensate all accidental injuries growing out of and received in the service except those intentionally self inflicted or due to intoxication. The statute 169 Is Highly remedial in character. The courts ought therefore to guard against a narrow construction, and should not exclude a servant from the benefits thereof unless constrained by unambiguous language of the clear intent as gathered from the entire act. "Both employer and employe in this case are within part 2, which provides that in every case of personal injury, 'caused by accident,' arising out of and in the course of employment, without regard to the question of negligence,' compensation shall be paid according to a fixed schedule (Sec. 8213, G. S. 1913). The clause here involved is afterwards defined in the act in these words: 'Without otherwise affecting the meaning or interpretation of the abridged clause, "personal injuries arising out o£ and in the course of employment," it is hereby declared: Not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the injury and during the hours of service as such workman, and shall not include an injury caused by the act of a third person or fellow employe intended to injure the employe because of reasons per- sonal to him, and not directed against him as an employe, or because of his employment.' (Sec. 8230, 1.) "The trial court found expressly that DeCook was within the partial definition quoted when injured; and the evidence sustains the finding in that respect. However, the so-called definition is rather in the nature of a limitation of the clause than an inclusive definition thereof, so that it still is to be determined whether the injury to DeCook arose out of and in the course of his employment. In England and also in some courts here attempts have been made, with more or less success, to formulate general rules with regard to the shade of distinction between the terms out of and in the course of, as used in the act. All agree that the expressions are not intended to be synonymous. An injury may be received in the course of the employ- ment, and still have no causal connection with it so that it can be said to arise out of the employment. Bryant vs. Fissell, 84 J. L. 72, McNicol's case 215 Mass. 497, Barnes vs. Nunnery Colliery Co., Ltd., 1912 App. C. 44 (Eng.) Plumb vs. Cobden Flour Mills Co., Ltd., 1914 App. C. 62 (Eng.) also reported in vol. 109, Law Times, p. 759; Hills vs. Blair, 148 N. W. 245; Hopkins vs. Michigan Sugar Co., 150 N. W. 325. Under the decisions it is reasonably clear that DeCook's injury was received in the course of employment. The doubtful proposition is whether it arose out of the employment. "We shall not attempt to formulate a definition of the phrase, acci- dental injury arising out of the employment, except to say that the accident causing the injury must arise out of work or business being done for the master either by direct or Implied authority. The trial court evidently took the view that DeCook in good faith believed he was furthering his master's business and performing an act which he might reasonably be expected to do when he undertook to supply himself with a key. He had never been told that the light bulbs were to be under lock as to him who wals charged with the duty of seeing that the broken and defective ones were replaced. He had a variety of matters to attend to in which he, like servants generally, had to rely on the promptings of his own judgment as to details. Unde- sirable, indifferent, and of little value indeed are the services of an employe who must be expressly directed! as to the time, manner, and extent of doing each particular task. Hence, when a servant undertakes in the course of his employment, during the proper hours therefor, and in the proper place to do something in furtherance of his master's business and meets with accidental injury therein the trial court's finding, that the accident arose out of and in the course of employment, should not be disturbed, unless it is clear to us that the ordinary servant, in the same situation would have no reasonable justification for believing that what he undertook to do when injured was within the scope of his Implied duties. If another servant duly engaged in the master's work had had his sight destroyed, instead of DeCook, in this accident the thought would have been almost irresistible that this law was meant to cover such injury. But, upon the facts in this case, we doubt whether DeCook should occupy a less favorable position. If 170 the attempt to make a key was reasonably within the scope of his employ- ment, the fact that, from ignorance or error of judgment, he made use of dangerous material, not provided by the master, should not necessarily exclude the conclusion that the injury arose out of the employment. The term cannot be restricted to injuries caused from anticipated risks of the service if the law is to be of the benefit intended. "Our conclusion is that the judgment is right, and should stand. "Affirmed." (b) Volunteer Work in Noon Hour. In another supreme court case, Aggie Hanson vs. NO'rthwestern Fuel Co., November 7, 1919, 174 N. W. 726, 144 Minn. 105, the court held practically the same rule to apply even though it was disadvantageous to the working man since he could have recovered more at common law for the injury. The opinion is: "Action to recover damages for personal injuries. The case was dis- missed, as a common-law action, and retained for an award of compensa- tion according to the terms of the compensation act. The plaintiff appeals from an order denying his motion for a new trial. "The plaintiff was in the employ of the Standard Laundry Company in St. Paul. He was run over by a truck of the defendant company. All three, the plaintiff, the defendant, and the laundry company, were under the com- pensation act. "The plaintiff brought this action to recover on the defendant's com- mon-law liability. The answer alleged that all three were under the compensation act, and the fact was so. "The evidence established a prima facie case of common-law liability. The court was of the opinion that the plaintiff, as a matter of law, was within the compensation act, and that plaintiff's injury arose out of and in th« course of his employment, within G. S. 1913, section 8195, and upon the motion of the defendant dismissed the action as a common— law action and retained it for an award of the compensation fixed by the Workmen's Com- pensation Act. "The plaintiff was a laundry driver. He had a down town route. He used a horse and wagon gathering laundry from the different hotels in the morning and returning it in the evening. He usually commenced work about 6:00, stabled his horse at noon in a barn near the laundry and com- menced work again at 1:30 in the afternoon. On the day of his injury he worked in the forenoon and stabled his horse at the usual time. After lunch he was about town when, he remembered that he had not collected laundry from the Brinsmead Hotel as he should have done. It should have been taken at 11:00 and should have been at the laundry at 12:00. It was to be returned at 5:00. He immediately went to the hotel, which was but a short distance away, took the bag of laundry on his back, and started for the laundry some six blocks distant. On the way he was Injured by the auto truck. "The court was right in holding, as a matter of law, that the injury to the plaintiff arose out of his employment. It was a street risk to which his work subjected him. This should be understood to be settled law In this state as it is generally in other states. Mahowald vs. Thompson-Starrett Co., 134 Minn. 113, 158 N. W. 913, 159 N. W. 565, and cases cited; Kunze vs. Detroit, etc., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252; Burton Auto Transfer Co. vs. Ind. Ace. Com'r (Cal. App.) 174 Pac. 72; Keaney's Case, 232 Mass. 532, 122 N. E. 739; Globe Ins. Co. vs. Ind. Ace. Com., 36 Cal. App. 280, 171 Pac. 1088; Consumers' Co. vs. Ceisllk (Ind. App.); 121 N. E. 832; Bachman vs. Waterman (Ind. App.) 121 N. B. 8. It is now the definitely settled law in England. Dennis vs. A. J. White & Co. (1917) App. Cas. 478; Arkell vs. Gudgeon, 118 L. T. R. 258. "The injury arose in the course of the employment of the plaintiff. It is true that he was not using his delivery wagon and that it was not customary to carry laundry as he was doing at the time; but he was working in further- 171 ance of his employer s interest. The laundry was received by the laundry company after the accident and laundered. He did not step aside from his work for some Purpose of his own but was actually furthering the business of the company. It had never told him to do or not to as he did. Such an fwf wn,n^ hf r'^°- ^IJ^ l'^^"" ^^^^ " ^° "J^J-y liad not intervened there would have been no thought of criUcism. It would be too severe a rule that would permit a finding, if the proceeding were against the laundry company under the compensation act, that the plaintiff was not in the course of his employment. The result here should be the same. The holding that as a matter of law, the injury arose out of the employment was right The cases on principle, and some with somewhat resembling facts support the rule. Mahowald vs. Thompson-Starrett Co., 134 Minn. 113 158 N W 913 159 N. W. 565; State vs. District Court, 141 Minn.. 61, 169 N W 274- State vs. District Court, 172 N. W. 897; Griebvs. Hammerle, 222 N Y 382 118 N E 805; Mueller Con. Co. vs. Ind. Board, 283 111. US, 118 N B 1028 L r'a' 1918P, 891, Ann. Cas. 1918E, 808; Kunze vs. Detroit, etc., 192 Mich. 435 'l58 N. W. 851, L. R. A. 1917A, 252; Robinson vs. State (Conn.) 104 Atl '491- Print Motor Co. vs. Ind. Com., 168 Wis. 436, 170 N. W. 285; Dennis vs' A J White & Co. (1917) A. C. 479; Arkell vs Gidgeon, 118 L. T. R. 258. "The compensation act provides that the person injured may proceed under the compensation act against his employer, or against a third party by a common-law action for negligence. To recover against the third party he must prove his common-law cause of action. If he recovers in a common- law action he can, have no greater amount than that fixed by the compensa- tion act. If he takes under the compensation act his employer is subrogated to his common-law action against the third party and his recovery is lim- ited to the amount payable under the compensation act, G. S. 1913, section S229. The statute gives no right to proceed against the third party under the compensation act. "At the close of all the testimony the defendant moved that the case be dismissed as a common-law action and that the court either grant or deny compensation under the Workmen's Compensation Act. The motion was granted. The defendant Invited an award of compensation. It cannot con- test the question of its liability to the extent to which the laundry company was liable. There is nothing now to do but fix compensation. See Maho- wald vs. Thompson-Starrett Co., 134 Minn. 113, 158 N. W. 913, 159 N. W. 565. "The order is affirmed and the case remanded with directions to the court to entertain such further proceedings as may be appropriate. "Order affirmed." (c) Employes Exchange Places. An application of the rule given above is shown in a district court case entitled Glenn L. Peck vs. George Adcock, Crow Wing county, February 28, 1914. The claim had been set up that because two employes changed work and one was injured, the injury did not arise out of the employment. The court held against this. The statement of the case follows: Adcock operated a small saw mill and employed Peck at different jobs about the mill and on the date of the injury, November 10, 1913, he was employed as a trimmer, but on account of the weather being cold, he changed with another employe on the edger, the edger then being somewhat out of repair. The man running the edger took Peck's place. After running the edger for a half hour or so with one of the rolls removed from the edger, a board shot back over the saw while being fed into the edger and struck Peck on the arm, breaking it at the wrist. It was contended that the injury did not arise out of and in the course of his employment, and further, that he wilfully, grossly and carelessly caused his own injury by removing from the trimmer to the edger without authority. It was shown that the foreman had often seen these changes made and had spoken to the man working on the edger not to change again, but had never said anything to Peck. The court held that the injury was not wilfull and arose out of and in the course of employment. 172 (d) Disobeying Orders. On the other hand a district court has laid down the principle that when an employe is injured while acting in disobedience to the master's orders he is not entitled to the benefits of the compensation act and becomes a volunteer rather than an employe. The case is that of W. J. Williams vs. Levi J. Hadley & E. O. Merchant, Hennepin county, June 7, 1916. The ruling in part is: "The court further iinds that the disobedience of said orders given by the defendants to the plaintiff was the proximate cause of the injury to the plaintiff and that plaintiff in disobeying said orders in taking said horse from said battery stables was guilty of wilful misconduct and by reason of said wilful misconduct and such disobedience, the plaintiff was not engaged in The court further finds that the taking of said horse under the circumstances immediately after a direct command not to do so, placed the plaintiff in the position of a volunteer and not in the position of an employe, acting In the course of his employment. That by reason thereof, the said accident happened without the course of the employment of said plaintiff and by reason thereof the plaintiff is not entitled to compensation against the defendants, and as conclusions of law the court finds that the defendants are entitled to judgment against the plaintiff; that plaintiff take nothing by this action and that defendants recover their costs and disbursements herein." (e) Errand Boy Disobeying Rule. A similar district court case is that of Clarence W. Freeman and Alvada M. Freeman vs. J. H. Allen & Co. and Globe Intdeminity Co., Ramsey county, January 8, 1919. In this case the court denied compensation to the parents in a fatal case where an errand boy had gone on an elevator contrary to instructions. The finding is: "On and prior to September 4, 1918, said Donald L. Freeman, age six- teen years, was in the employ of J. H. Allen & Co., as a stencil cutter and errand boy in said defendant's place of business in a building located at Sixth and Broadway streets in the city of St. Paul in said county. On said September 4th, said Donald entered the freight elevator of said Allen & Co. in said building at the first fioor, which elevator was propelled upward by the boy in charge thereof. At the fifth floor of said building said Donald and the elevator boy got off the elevator and the elevator continued to move upward and said Donald attempted to re-enter said elevator and was accidentally caught between the elevator and wall of the shaft, and was injured, and he died shortly thereafter from said injury. "At the time of said injury said Donald was receiving wages at the rate of $40.00 per month for services he rendered, and he was turning over to his said parents the full amount of said wages, and had been doing so for some time previous to said injury, $30.00 per month of which was expended by his said parents for his support. "Said Donald had been theretofore instructed by his said employer to keep away from said elevator and not to ride thereon, and it was no part of his duty to go to said fifth floor, and his use of said elevator was not known to said employer, nor was the fact that he went to said fifth floor, and he was not in the course of his employment at the time of said injury. "Said injury to said Donald did not arise out of and in the course of his said employment. As a conclusion it is determined that the plaintiffs are not entitled to any relief." (f) Injury Outside of Service. In another district court case compensation was denied because it did not appear that the deceased employe had any duty whatever at the place where he was injured although he was on the employer's premises at the time. The case is Bertlia McVey vs. R. F. Jones, doing business as Long- fellow Gardens, Hennepin county. May 2, 1919. Judge Hale's findings are: 173 "That the defendant has owned and operated a zoological garden in the city of Minneapolis, Minn., known as the Longfellow Gardens, for many years last past; that in said Gardens, during all of said time, the defendant kept a number of wild animals for exhibition, among them being two lions, one a male and the other a female; that on or about the 15th day of Novem- ber, 1918, said lions were removed from their summer quarters to winter quarters in said Gardens, a distance of about five hundred (500) feet; that for several months immediately preceding the said 18th day of November, 1918, one J. W. McVey was in the employ of defendant, doing general work in and about said Gardens; that on the 18th day of November, 1918, the said J. W. McVey reported to the defendant at his office for work; that at said last mentioned time the defendant instructed the said J. W. McVey to go to the summer quarters where said animals had been kept and place some canvass over a place where several dogs of the defendant were being kept; that the said J. W. McVey lelt said office and within a few minutes there- after defendant's attention was attracted by the shouts of said J. W. McVey and that defendant immediately thereafter rushed to the place where said lions were caged and there found the said J. W. McVey standing In front of the cage of said lions with his arm inside of the cage in the mouth of said female lion; that he finally succeeded in releasing the said J. W. McVey, whose arm was badly torn and lacerated by the bites and scratches of said lion; that said J. W. McVey was immediately thereafter conveyed to the City Hospital of the city of Minneapolis where he died on the 21st day of November, 1918, from the effects of the wounds he received as aforesaid and that at the time he received such wounds he was not intoxicated; that there was a wire netting over and in front of said cage where said lions were kept made of fine mesh to a height of five or five and one-half feet from the ground and that it was impossible for said lions, or either of them, to put their heads or feet through said mesh or wire; that in addition to said mesh said cages had steel or iron bars about one-half inch thick and about two and one-half inches apart reaching to the full height of said cage; that in front of said cage and five feet distant therefrom two iron chains about three feet in height were stretched across the ends and full length of said cage; that said J. W. McVey, on said 18th day of April, 1918, had no duties to perform in connection with said lions or in the immediate vicinity of said cage and he was at the place of said Injury when he was Injured as aforesaid without any instructions or directions to be there from the defend- ant or anyone else in authority to direct him, and that the injury aforesaid to said J. W. McVey did not arise out of or in connection with his employ- ment by the defendant. "That the said J. W. McVey left surviving him Bertha McVey, the above named plaintiff, his wife, and Adeline McVey, of the age of thirteen years, a daughter. That during the employment of the said J. W. McVey by the defendant at the times and places aforesaid his average wages were the sum of seventeen dollars per week. That after said accident deceased claimed that he was looking for his tools which were from thirty-five to forty-five feet distant from the place of the accident. "That the defendant is entitled to the judgment of this court dismissing the above entitled action with prejudice." (g) Unauthorized Auto Ride. The abridged clause was again discussed by the supreme court in State ex rel. Milier vs. District Court of Hennepin County et al., November 16, 1917, 164 N. W. 1012, 138 Minn. 326. In this instance a messenger boy had departed from the usual scope of his employment by taking a ride on a truck and while so doing was injured. The court held the accident did not arise out of the employment. The opinion is: "Certiorari to review a judgment dismissing a proceeding under the Workmen's Compensation Act. The judgment recites that, when the cause came on for hearing, defendant's motion to dismiss was granted, on the ground that the matter alleged in plaintiff's complaint showed on its face that the accident, on account of which compensation was sought, did not 174 arise out of or in the course of plaintiff's employment. The facts stated in the complaint are in substan<;e these: Plaintiff, 17 years old, was in the employ of defendant as a messenger at $7.00 per week. In this work he was provided with car fare when the distance to carry the message was con- siderable, but not when the distance was as short as the one from the defendant's place of business to a certain theatre, or five blocks. On November 20, 1916, at 3:00 o'clock in the afternoon, plaintiff, who had been sent by an employe of defendant, having authority to do so, to the theatre for tickets, was returning with them to the defendant's office. It is alleged that plaintiff was unusually busy that day and, in his haste to return to the office to continue his duties, he climbed upon an automobile truck which was proceeding in that direction, and, while so riding, he slipped on a roller upon the floor of the truck, became entangled In the gears thereof and was severely injured. Upon the hearing of the motion, it was conceded that the truck was not the property of defendant or under its control. "No doubt the facts alleged show that the accident happened while plaintiff was in the course of his employment. But it must also appear that it arose out of the same. It. must grow out of it or be incidental thereto. State ex rel. Duluth Brewing & Malting Co. vs. District Court 129 Minn. 176, 151 N. W. 912, Mahowald vs. Thompson-Starrett Co., 134 Minn. 117, 158 N. W. 913, 159 N. W. 565; State ex rel. Virginia & Rainy Lake Co., 164 N. W. 585. This definition of the phrase 'arising out of the employment' often quoted with approbation, is by Chief Justice Rugg in McNicol's Case 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306: " 'It (the injury) "arises out of" the employment, when there is appar- ent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment then it arises ''out of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workman would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.' "The majority of the court are of the opinion that plaintiff's employ- ment was such that reasonable men could not conclude that as an incident thereto, it might be expected that the hazard of accidental injury from obtaining rides on passing vehicles was connected therewith. It is thought that since plaintiff was provided with car fare when the messages were to gc beyond a certain distance, he was to walk on all other occasions, an3, therefore, when he sought other methods by which to accomplish his tasks he departed from the scope or ambit of his employment, and while so doing was not protected by the compensation act. "The writer dissents from this conclusion and the disposition accordingly made of the appeal herein. The statute contemplates findings to be made after hearing of testimony, or, perhaps, upon stipulated facts. Whether an accident arises out of and in the course of an employment is ordinarily the ultimate decisive question of fact, to be determined upon a consideration of various facts and circumstances and the inferences to be drawn therefrom. It seems to me that the allegations of the complaint herein are broad enough to admit proof which would warrant a finding that the accident arose out of the employment. "It is entirely possible that, had testimony been received, it would have appeared that plaintiff was required at all times to carry messages over and along crowded streets, that he had to proceed with dispatch, that no 175 order had been given him how to cover the ground, that his work was such, at the time in question, that he had to be back quickly, that messenger lads usually avail themselves ot such 'lifts' as they may be able to obtain from vehicles on the streets. And it is conceivable that, from such testimony, reasonable men might well conclude that one of the hazards of a messenger in defendant's employ was from accidents upon vehicles which he might ride, or be permitted to ride, on his errands. In other words, that the acci- dent was attributable to the peculiar liability to street risks inherent in the employment. Beaudry vs. Watkins, 191 Mich. 445, 158 N. W. 16, L R. A. 1916E, 576; Kunze vs. Detroit Shade Tree Co., 192 Mich. 435, 158 N. W. 851, L. R. A. 1917A, 252. I concede that employers of messenger boys may limit the scope or sphere of the employment. And a departure from such limit might constitute an added risk for which compensation could not be had under the law. But in this case there may not have been any restriction. Defendant may even have known and acquiesced in the method adopted by plaintiff in dispatching its business. If plaintiff availed himself of the opportunity to ride on passing vehicles, with the knowledge and assent of defendant, his so doing could not be considered an added risk. Mann vs. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368, L. R. A. 1916D, 86. "In the absence of proof and finding, it should not be assumed that plaintiff, in getting on this truck, did a wrongful act or turned aside from the employment to serve his own purpose so as thereby to place himself outside the pale of the act, as was held ia Brice vs. Edward Lloyd Ltd., 2 B. W. C. C. 26; Spooner vs. Detroit Saturday Night Co., 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17. "If the employes in certain vocations ordinarily pursue some customary method of doing their work, the risks or hazards connected with the method thus pursued grow out of, or become incident or peculiar to, those vocations. And does not ordinary observation convince us that the customary method pursued by messenger lads of 17 years, and younger, in performing their work upon the streets of a city is to avail themselves of a ride on the way afforded by the opportunity of boarding passing vehicles? That this may be a negligent method of doing the work does not affect the right to be compensated for accidental injuries under this law. I therefore think the court should not have dismissed the case, but should have heard the evi- dence and made proper findings, the controlling one of which would have been whether or not the accident which caused the injury arose out of and in the course of plaintiff's employment. "But for the reason first above stated the decision of the learned trial court must be sustained. Judgment affirmed." (h) Street Hazard. There has been a tendency on the part of some courts to hold that accidenits due to the street hazard do not arise out of employment and to place them outside the scope of the compensation act. Our supreme court here has definitely adopted the other rule in the case of Mahowald vs. Thompson-Starrett Company, July 14, 1916, 158 N. W. 913, 134 Minn. 113. This opinion will be found given in full in Third Parties X, I„ Limit of Liability. Another case in which the supreme court held that the street risk was covered by the compensation act was that of Aggie Hanson vs. Northwestern Fuel Company given in full in Words and Phrases XI, 1, (b). (i) Injured on Sidewalk During Errand. Notwithstanding the clearness with which the supreme court adopted the other rule in the first case mentioned above, the district court of Hen^ nepin county in Alexander N. Desforges vs. Natio^nal Novelty Company, Hennepin county, March 8, 1917, held that when an employe was sent on an errand and slipped on an icy sidewalk it was not an accident arising out of the employment. The finding was': 176 "That the plaintiff above named is not now suffering and has never at any time suffered disability produced by an accident arising out of and occurring in the course of his employment by the defendant above named on February 20, 1916. "As conclusions of law the court finds that the plaintiff is not entitled to compensation from defendant under the provisions of part 2, chapter 467, G. L. 1913, and that defendant is entitled to his costs and disbursements herein." The department is unable to follow the reasoning of the lower court in view of the distinct pronouncement of the supreme court. (j) Coverage on Arrival. The question of when coverage begins is often a difficult one to decide. An interesting ruling was given in the case of Charles Faster vs. Piedmont Apartmentsi, Ramsey county, June 24,, 1918, in which the plaintiff was injured on the employer's premises and when arriving considerably ahead of the regular. time for beginning work. The court found for the plaintiff, holding: "That on November 11, 1917, at about the time or hour from five or six o'clock P. M. approximately at 5:30 to 5:40 P. M., said plaintiff sustained injuries by accident, which arose out of and in the course of his employ- ment and occurred as follows: "While on his way to work and while entering the basement door of the Piedmont Apartments at Ninth street and Smith avenue in the city of St. Paul, and when at a point about three to six feet inside of said door, said plaintiff stumbled and fell over a truck that had been left standing in the entryway and which he was unable to see as the electric light in the entrance had burned out. "That as a result of and on account of said accident aforesaid the plain- tiff sustained a cut on his left knee and a severe bruising and wrenching of his right shoulder, and on account of said injuries it became necessary for him to engage medical attention, which cost him ini all six dollars. That as a result of said injuries, said plaintiff or employe has been partially dis- abled and rendered unfit to pursue his occupation and work to this extent, namely, that he could only perform sufficent work such as relieving the regular operator of the elevator and acting as the valet or personal attend- ant of one of the officers of the defendant, for which he has been furnished with a room at the Piedmont Apartments, and also board. The value of said room and board amounts to $18.00 or $20.00 per month. That said disability has continued from the date of the injury to about May 18, 1918. (k) Injury in Lumber Camp. In Fred Cook vs. Alger, Smith & Company, St. Louis county, 1914, the district court held an accident compensable which occurred while the employe was in a lumber camp operated by the employer, but not perform- ing his usual services. "Fred Cook was hired by his employer on December 12, 1913, to work on roads being constructed in and about latter's lumber camps in Lake county, Minn. He was boarded and lodged in a camp constructed and oper- ated by the employer in the vicinity of the work said employe was engaged in doing. Among the buildings were a sleeping camp and an eating camp that had been in operation for several weeks prior to February 16, 1914, and during that time a large sheet of ice was formed Immediately in front of the door leading from the sleeping camp to the eating camp. While 'passing from the sleeping camp to the eating camp to get his breakfast, and before he was suitably dressed for the work on the roads for which he was hired, he stepped on the sheet of ice aforesaid, slipped and fell and injured the deltoid muscle of his right arm and shoulder. Such injury to said employe was caused by an accident arising out of and in the course of his employ- ment.' Compensation awarded." 177 (I) Injury Outside Regular Hours. A case in which was discussed an injury which happened outside of the regular hours of service but while the employe was on the employer's prem- ises and from the extent of her duties might still have been performing service is State ex rel. Radisson Hotel va District Court of Hennepin County, which is given in full under Dependency, IV, 2. Children (a) Orphans-Motherless Children. ' (m) Traveling Man Returning Home. For two cases in which the coverage of a traveling man on his way home is discussed, see State ex rel. Niessen vs. District County of Ramsey County, under Procedure, VII, 10. Rule as to Question of Fact and State ex rel. London & Lancashire Indemnity Co. vs. District Court of Hennepin County, under Territorial Scope, II, 1 (f) Scope of Insurance Policy. (ni) Practical Joking. The question of whether the victim of a practical joke by fellow employes Is covered by the compensation act was considered by the supreme court in State ex rel. H. S. Johnson vs. District Court of Hennepin County et al., April 12, 1918, 167 N. W. 283, 140 Minn. 75. In this case the employe while attending to his own work had been injured by horse play on the part of other employes. Holding the Injury compensable, the court expressed itself as follows: "The relator company operates a woodworking factory. Filas was employed by it. The court finds that some of the employes of the relator, referred to in the evidence as boys or kids, were accustomed during work- ing hours to throw missiles such as blocks of wood and sash pins at one another and at others including Filas; that the relator knew of the custom or should have known of it in the exercise of diligence; that on May 31, 1917, a fellow employe of Filas threw a sash pin at him in sport and without intending to injure him; that it hit him in the eye and destroyed his vision; that Filas was at the time engaged in his work; that he did not then and had not at any time engaged with his fellow employe in sport of this kind. These findings were sustained. Filas claims that he at no time engaged with his fellow employes in throwing missiles and that he complained to the company of the acts of the particular employe. No specific findings are made upon these points. The court finds that the accident arose out of Filas' employment. Whether it did is the only question. "The rule is well enough settled that where workmen step aside from their employment and engage in horse play or practical joking, or so engage while continuing their work, and accidental injury results, and in general where one in sport or mischief does some act resulting in injury to a fellow worker, the injury is not one arising out of the employment within the meaning of compensation acts. 1 Honnold, Work Comp., 121; Bradbury, Work, Comp., 649; Dosker, Comp. Law, 106; Boyd Work, Comp., 476; note, 12 N. C. 0. A. 89; note, Lu R. A. 1916A 23, 47-93; HuUey vs. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203; Coronado Beach Co. vs. Pillsbury, 172 Cal. 682, 158 Pac. 212, L. R. A. 1916F, 1164; Flshering vs. Pillsbury, 172 Cal. 690, 158 Pac. 215; Federal, etc. Co. vs. Havolic, 162 Wis. 341, 156 N. W. 143, L. R. A. 1916D, 970; De Fillippis vs. Falkenberg, 170 App. Biv. 153, 155 N. Y. Supp. 761; Armitage vs. L. & Y. Ry. Co., (1902) 2 iK. B. 178; Fitzgerald vs. Clark, (1908) 2 K. B. 796. "Here we conceive the situation to be different. Filas was exposed by his employment to the risk of injury from the throwing of sash pins in sport and mischief. He did not himself engage in the sport. His employer did not stop it. The risk continued. The accident was the natural result of the missile throwing proclivities of some of Filas' fellow workers and was a risk of the work as it was conducted. In McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, injuries resulting from blows adminis- tered in frenzy by an intoxicated fellow worker known by the employer to be in the habit of becoming intoxicated and in that condition to be danger- ous, were held to arise out of the employment. Liability was rested 'upon 178 the causal connection between the Injury of the deceased and the conditions under which the defendant required him to work.' In Clayton vs. Hardwick Colliery Co., 9 B. W. C. C. 643, a finding that a boy who was working with other boys in a colliery picking stones from coal and was injured by a stone thrown by another boy was so subjected by his employment to a special risk that the Injury arose out of his employment was sustained. In Challis Vs. London, etc. Co. (1905) 2 K. B. 154, the injuries to an engineer who was driving his engine under a bridge and was hit by a stone thrown by a boy from the bridge were held to arise out of his employment. And see Pekin Cooperage Co. vs. Industrial Board, 277 111. 53, 115 N. E. 128; in re Leper (Ind. App.) 116 N. E. 324; Kopp vs. American, etc. Co., 186 111. App. 605; State vs. District Court, 134 Minn. 16, 158 N. W. 713, L. R. A. 1916F, 957. "The ultimate finding that the injury to Filas arose out of his employ- ment is sustained by the evidence. Judgment affirmed." (o) Assault Arising Out of Work. For a decision in which the supreme court ruled on an assault arising out of circumstances inherent in the employment, see State ex rel. Anseth vs. Disitrict Court of Koochiching County, discussed under Procedure, VII, 14. Lump Sums. (p) Injured by Milltapy Gusrd. lu IVIartIn C. Benson vs. General Accident Fire and Life Assurance Com- pany, Hennepin county, September 4, 1917, it was disputed that an employe accidentally shot by a military guard was covered by the compensation act. The following ruling was given in favor of the plaintiff: "As a conclusion of law, the court finds that the injury to this plaintiff by gun shot wound on May 1, 1917, constituted an accidental injury arising out of and in the course of his employment as comprehended by the pro- visions of chapter 467, General Laws of Minnesota 1913, and amendatory acts, and that this plaintiff is entitled to receive as compensation for the above described accidental injury 60 per cent of his dally wages or the sum of $10.80 per week for a period of ten weeks, making the total amount of $108.00." 2. ARISING OUT OF EMPLOYMENT, ACT OF GOD On the question of when an injury due to so-called "act of God" can be an accident arising out of and In the course of employment, our supreme court has taken a position among the most liberal of any taken by the vari- ous compensation tribunals of the country. In some jurisdictions a very narrow application of the law is made in cases of this character, a Ken- tucky court actually going so far as to rule outside the scope of the law, cases in which the wind had blown particles Into the eye. In Minnesota there are four supreme court decisions which take a broad view of the matter. (a) Lightning. The earliest and in some ways the strongest decision in which our supreme court held an injury by "act of God" to be compensable was that of State ex pel. People's Coal & Ice Company vs. District Court of Ramsey County, 153 N. W. 119, 129 Minn. 502, in which the employe had been killed by a stroke of lightning. The opinion follows: "Certiorari to the district court of Ramsey county to review its judg- ment adjudging that Caroline Newmann was entitled to compensation under the Workmen's Compensation Act for the death of her son. "The deceased was employed by relator as a driver on one of its ice routes. He drove an open wagon and his duties required him to work in all kinds of weather. It was permissible to seek shelter from storms, in such way as one might; but the necessity of prompt daily deliveries required the drivers to complete their routes in substantial disregard of weather conditions. 179 On the morning of September 1, 1914, during a severe rain storm, accompanied by lightning, the deceased was on his usual route. He left his team in the street and went towards a large elm tree standing just within the lot line, either for protection: from the storm, or on his way to solicit orders. There was an iron fence along the lot. Just as he reached the iron fence lightning struck the tree and struck him and he was killed, his body falling upon the fence. It may be mentioned, though little import- ance is attached to it, that he carried a steel pick in a holster on his left hip in accordance with the usual custom. He had been working all morning in the storm, using an uncovered wagon, and subject to the elements. "The Workmen's Compensation Act, so far as here material, requires compensation to be paid by the employer 'in every case of personal Injury or death of his employe, caused by accident, arising out of and in the course of employment. * * * .- Laws 1913, p. 677, chapter 467, §9. "In State vs. District Court of St. Louis county, supra, page 176, 151 N. W. 912, we adverted to the distinction drawn by the courts betwteen the statutory phrases 'arising out of and 'in the course of.' We did not then deem it wise to attempt the making of a definition accurately distinguishing the two phrases; and the case before us does not call for such distinction. We leave ourselves free to determine the meaning of the compensation act, and the constructions which should be given its various provisions as litiga- tion presents them. Counsel concede that the only question is whether the death of the decedent was from an accident arising out of his employment, it being conceded that his death by lightning was an accident. They base their arguments chiefly upon cases involving injury or death by lightning, supplemented by cases illustrating the principles thought to underly them. "U the deceased was exposed to injury from lightning by reason of his employment, something more than the normal risk to which all are subject, if his employment necessarily accentuated the natural hazard from lightning, and the accident was natural to the employment, though unexpected or unusual, then a finding is sustained that the accident from lightning was one 'arising out of employment.' An injury, to come within the compensa- tion act, need not be an anticipated one; nor, in general, need it be one peculiar to the particular employment in, which he is engaged at the time. "Only three cases involving deaths from lightning are cited — an English, an Irish and an American case. Since the submission of the case another American case, Klawinski vs. Lake Shore & M. S. Ry. Co. (Mich.) 152 N. W. 213, has been decided. "In Andrew vs. Failsworth Industrial Society, Limited, (1904) 2 K. B. 32, 90 L. T. 611, a leading case, a bricklayer was killed by lightning while working on a scaffold some 23 feet from the ground. His position, under the evidence adduced, subjected him to peculiar danger and risk from lightning. A finding that his death arose out of his employment was sustained. "In Kelly vs. Kerry County Council, 42 Ir. L. T. 23, it was held that one killed by lightning while working on a public road did not come to his death from an accident 'arising out of his employment' The court distinguished the facts of the case from those present in the Andrew case just cited, holding that there was present no peculiar risk or danger incident to the employe's work so that it could be said that the accident arose from his employment. No evidence was offered of a peculiar risk or hazard from lightning incident to his employment. "The English case and the Irish case are not regarded as inconsistent. In the Scotch case of Rodger vs. School Board, 1912 S. C. 584, the court, in commenting upon them, tersely states the distinction in this way: 'To be struck by lightning is a risk common to all and independent of employment, yet the circumstances of a particular employment might make the risk not the general risk, but a risk sufficiently exceptional to justify its being held that accident from such risk was an accident arising out of the employment.' ISO "In Hoenlg vs. Industrial Commission of Wisconsin, 159 Wis. 646, 150 N. W. 996, an employe was struck and killed by lightning while working on a dam. The Industrial Commission held that his death did not arise out of his employment. The circuit court affirmed its holding, saying however, that upon the same evidence it would not make a like finding,, and its holding was sustained by the supreme court. By the Wisconsin statute the findings of the commission are final upon questions of fact; and by section 30 (p. 688) of the Minnesota act the review by the supreme court in com- pensation cases is by certiorari, and it is a review of questions of law and not of questions of fact. "The Michigan case, Klawinski vs. Lake Shore & M. S. Ey. Co., supra involved the death of a railway section hand killed by lightning when in a barn near the right of way to which he had gone tor protection from a storm. The court cites the Irish case, Kelley vs. Kerry County Council, supra, which it considers controlling. It cites no other case, but refers to the holding of the Wisconsin Industrial Commission, affirmed in Hoenig vs. Industrial Commission, supra. The man was exposed to no peculiar danger by the character of his work. The court, in referring to cases under the English law, said that compensation had always been denied for injury by lightning 'except in cases where the employment necessarily placed the employe at the time of his injury In a position subjecting him to unusual risk from lightning.' The opinion of the court was that 'decedent by reason of his employment was in no way exposed to injuries from lightning other than the community generally in that locality.' "Many other cases, useful in arriving at a conclusion, are cited in the very helpful briefs of opposing counsel, and in the carefully considered memorandum of the trial court. We do not stop to review them. They are the subject of editorial consideration in the monographic notes of the dif- ferent series of selected cases and in the legal journals of the period and are easily accessible to the profession. See 1 Bradbury's Workmen's Com- pensation Act, 398-518. "We are of the opinion that the evidence is sufficient to sustain a find- ing that the accident to the decedent resulting in his death was one 'arising out of his employment. "Judgment affirmed." (b) Freezing. For two decisions in which the supreme court held that under certain circumstances injury due to freezing was compensable, see State ex pel. Virginia & Rainy Lake Co. vs. District Court of St. Louis County, October l!2, 1917, and State ex rel. Nelaom vs^ District Court of Ramsey County, November 2, 1917, discussed under Part V. Injuries, 6 — F'reezing, (a) Swam- per in Woods and (b) Janitor, Shoveling Snow. 'The second of these, the Nelson case, is the one in which the supreme court adopts the language of the Quebec court in taking tha broad view of accidents due to "force majeure." (c) Sunstroke. For a supreme court decision in regard to sunstroke in which the rea- soning in very similar to that in the freezing cases, see State ex rel. Rau vs. District Court of Ramsey County, November 2, 1917, discussed under Part V. Injuries, 7 — Sunstroke. (d) Tornado. No cases relating to injuries sustained in tornado have gone to our supreme court, although the tests of whether any such cases would come under the compensation act would be exactly the same as those laid down in the cases just mentioned. A case of injury due to tornado was brought before the Hennepin county district court and is discussed under Part II. Territorial Scope, 1 Extra Territoriality (e) Resident Agent, Foreign Cor- poration. The style of the case is Winifred Braden vs. Aetna Life Insurance Company, decided by Judge Hale, May 25, 1920. Without in any way 181 impugning the finding of the district court, we are unable to see how its reasoning squares with that of the supreme court in the cases reviewed here. As showing the dei)artment's view of these Injuries, we are reprinting from our Bulletin No. 16 the following discussion: The Department of Labor and Industries was requested for advice in a number of cases which arose out of the Fergus Falls tornado. For such cases to have any chance to be considered compensation cases, it is neces- sary, of course, to prove that the employes involved have been subjected to more than the average hazard by reason of their employment. In two cases the department felt that such extra hazard was present and so advised the insurance companies which applied for good offices. Settlements were made in accordance with the department's opinion. In the most serious of the cases, that of the night watchman who was killed, the department's advice was as follows: "After carefully reviewing the circumstances in the case, we feel that there would be a strong presumption that this man was subject to more than the ordinary hazard from the storm by reason of his duties of night watch- man, and while there does not appear to be any evidence that he was actually engaged in activities out of doors in connection with his employ- er's property at the time of the storm, it Is a reasonable presumption that he was so engaged. "The testimony of one man, that he saw the decedent on the loading platform in front of the mill ten minutes before the storm, is especially pertinent. "In view of the facts brought out in the investigation we would feel that the reasoning of our supreme court as given in State ex rel. Peoples Coal & Ice CO'mpan,y vs. District Court of Ramsey County, 153 N. W. 199, that so called lightnins caop, and in State ex pel. Nelson v«. District Court of Ramsey county, 164 N. W. 917, the freezing case, would bring this case within the purview of the compensation act. In the second case mentioned the supreme court quoted approvingly the language of the Quebec court as follows : " 'Thus, as a general principle, the employer is not responsible for the damages caused to his workmen by lightning, storm, sunstroke, freezing, earthquake, floods, etc. These are considered as "force majeure" which human vigilance and industry can neither foresee or nrevent. The victims must bear alone such burden, inasmuch aa human industry has nothing to do with it and inasmuch as the employe is no more subject thereto than any other nerson. * * * Every human being is liable to suffer from events in which he has no share or responsibility. There is here between the accident and the emnlovment no relationship of cause and effect. Herce, it cannot be said of such an accident that it arises out of or in the course of employment. But where the work, or where the conditions under which it is carried on, expose the employes to the happening of a force majeure event, or contribute to bring it into play or to aggravate its effects, then, we are no longer face to face with the sole forces of nature. This is no longer a risk to which everybody is exposed; this is a danger which threatens more particularly the employes who work under special conditions. Hence the occurring of a force majeure event under such conditions is an accident arising out of the employment.'" The opinion in the other case which it was felt came under the act was. "This accident occurred on Sundav afternoon, on which day there was no work, but the employes were seated in one of toe company s tents when a storm came up. and which was a part of the Fergus F?"« «y«^°f- ^^ place of the accident being thirty-five miles from Fergus Falls When the storm came up the several men in the tent attempted t° ^^ol^f^^^ ^^^ tent, and seeing that this was useless they all started to run to an abando^ied shack about 70'0 feet away. After the injured had run about 10<) feet from the tent a gust of wind blew him against a fence, causing his right arm to be laTerated by the barb wire, but causing no permanent injury, and no disability except perhaps for about two weeks. 182 "The injured did not suffer any injury while attempting to hold down the tent, and the sole injury he suffered was due to the heavy wind which blew him against the barb wire fence while he was seeking shelter. "We feel that this case would probably come within the scope of the compensation act. Two questions are involved. First, whether the man was in the course of employmeat at the time, and, second, the question of whether the accident was caused by the act of God. While there are no marked precedents in this state there is a very strong line of decisions in other states which would tend to hold an accident under such circum- stances as being in the course of employment. The most recent of these is Holt Lumber Co. (Sam Bebeau) vs. Industrial Commission of Wisconsin, 170 N. W. 366. In Henry Helgeson vs. Mount Fleecer Timber Co^ the Mon- tana industrial board held that such an accident was within the scope of the act, January 23, 1919. "On the second point whether this accident was caused by an act of God, we would refer you to the decisions of our own supreme court in State ex rel. Peoples Coal & Ice Ca vs. District Court cf Ra.m>sey County, 153 N. W. 119, the so-called lightning case, and in State ex rel. Nelsoni vs. District Court of Ramsey County, 164 N. W. 917, the freezing case. In this latter opinion the supreme court adopts the language of the Quebec court. "We feel that following the same line of reasoning these men were quar- tered by a construction company in tents and were under a peculiar risk as a result of a storm, and that, therefore, such an accident would be held to arise out of employment." 3. ARISING OUT OF EMPLOYMENT— LIMITING SUBSECTION The Minnesota Workmen's Compensation Act in addition to the clause "arising out of and in the course of employment" contains a sub-section which further narrows its scope. This is sub-section 34 (i) : "Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of employment,' it is hereby declared: "Not to cover workmen except while engaged in, on, or about the prem- ises where their services are being performed, or where their service requires their presence as a part of siuch service at the time of the injury, and during the hours of service as such workman, and shall not include an injury caused by the act of a third person or fellow employe intended to injure the employe, because of reasons personal to him, and not directed against him as an employe, or because of his employment." A considerable number of supreme court decisions construe the effect of this limiting sub-section and in not a few district court decisions the finding hinges upon, its meaning. (a) Injury While on Employer's Bus. The most complete consideration that the supreme court has given to the sub-section is contained in the case of Arthiur C. Nesbitt vs. Tv/in City Forge & Foundry Company, April 1, 1920, 177 N. W. 131. In this case the question before the court was whether an injury sustained by an employe while being transported to the employer's premises in a bus provided by the employer was put outside the scope of the compensation act by the sub-section. The opinion follows: 1. As a general rule an injury suffered by an employe, in going to or returning from the employer's premises where the work of tis employment is carried on does not arise out of his employment so as to entitle him to compensation under the Workmen's Compensation Act. isa "2. Construing sub-section (1), section 8230, G. S. 1913, it Is held that an accidental injury to a workman sustained while he was riding to his place of work In a conveyance furnished by his employer in compliance with one of the terms of the contract of employment and for the use of his employes, but in which the workman was not directed or required to ride, does not arise out of and in the course of the employment; it appearing that the injury was received before, and not during the hours of the work- man's service, when his employer had no control over him and before the beginning of the period covered by his wages. Affirmed. "This is an appeal from an order denying defendant's motion for judg- ment, notwithstanding the verdict, in an action for damages for personal injuries caused by defendant's negligence. "It is urged as the sole ground for reversal, that plaintiff and defendant were both under the Workmen's Compensation Act of this state when plain- tiff was injured and that he is entitled only to the compensation provided tor by that act. Briefly stated, the facts are as follows: "Defendant was making shells for the United States government at Stillwater in this state, carrying on its business in two separate buildings, respectively known as the 'Upper' and the 'Lower' plant. A large number of men were employed in each building. Plaintiff worked at the upper plant as a furnace feeder. He worked eight hours per day, was paid by the hour, and received pay from the time when he 'punched in' on the time clock in the building where he worked. The upper plant was located a mile or more from the end of the nearest street car line. The men employed there objected to walking from the car line to the plant when they went to work. To satisfy them, defendant put in service two of its automobile freight trucks, running them from the upper plant to the car line to carry its employes to and from their work. It was part of his contract of employ- ment that plaintiff, in common with other employes, should have the right to ride gratis on these trucks in going to and returning from his work. While thus riding on his way to his place of work but before reaching it, and before the beginning of the period for which he received wages, he was injured as the result of the negligence of the driver of the truck, and brought this action to recover general damages. "At the close of the plaintiff's case, defendant reQuested the court to dismiss the jury and proceed to dispose of the case under the compensa- tion act, and at the close of all the evidence it moved for a directed verdict on the ground that plaintiff's only remedy was under that act. The court ruled against defendant in each instance and plaintiff had a verdict for $2,5OO.0(>. "The decision of the case turns upon the construction of those portions of the compensation act which read as follows: 'If both employer and employe, shall * * * become subject to part 2 of this act, compensation * * * shall be paid * * * in every case of personal injury * * * caused by accident, arising out of and in the course of employment.' "Section 8203, G. S. 1913. 'Without otherwise affecting either the meaning or interpretation of the abridged clause, personal injuries arising out of and in the course of employment, it Is hereby declared: 'Not to cover workmen except while engaged in or about the prem- ises where their services are being performed, or where their service requires their presence as a part of such service at the time of the injury and during the hours of service as such workmen.' "Sub-section (1), section 8230, G. S. 1913. ., . .i, , , "The latter provision has been referred to or considered in the tol- lowing cases. State vs. District Court of St. Louis County^ 129 Minn. 176; Otto vs. Duluth Street Ry. Co., 138 Minn. 312 ; State vs. District Court of Itasca Countv 140 Minn 470; Brickson vs. St. Paul City Ry Co., 141 Minn. 1^6 StaLvs^^Distrfci court of Hennepin County, 175 N. W. 110; Podgorski vs. kerwin, 175 N. W. 694. In none of them did the facts present the pre- 184 cise question now before us. Defendant refers us to decisions of other courts tliat fairly sustain its contention tliat plaintiff's injuries were caused by accident arising out of and in the course of his employment. "Donovan's Case, 217 Mass, 76; Littler vs. George Fuller Co., 223 N. Y. 369; and Scalia vs. Am., etc.. Tobacco Co., 105 Atl. 346; (Conn.), are the leading American cases and are directly in point. The weight to be given them Is lessened by the fact that they were decided under statutes which do not contain the qualifying provision found in our statute and set out above. "This court has several times had before it cases involving the question of whether a person when Iniured was engaged in the discharge of the duties of his employment so as to subject his employer to Uability therefor, Rosenbaum vs. St. Paul Ry. Co., 38 Minn. 173; McDonough vs. Lanpher, 55 Minn. 501; Benson vs. C. St. P. M. & O. Ry. Co., 78 Minn. 303; Wallin vs. Eastern Ry. Co., 83 Minn. 149; Thomas vs. Wisconsin Central Ry. Co., 108 Minn. 485. "Whether a servant was acting in the course of or within the scope of his employment so as to subject his master to liability to a third person for the consequences of the servant's acts has been very frequently considered by this court. From among such cases plaintiff has selected Morier vs. St. P. M. & M. Ry. Co., 31 Minn. 351, and Kuehmichel vs. W. U. Telegraph Co., 125 Minn. 174, as demonstrating that he was not in the line of his employment when injured. , All but the last of these cases arose prior to the enactment of the compensation law, and it was not involved in the Kuehmichel case. It was involved in Podgorski vs. Kerwin, supra, where the court said: 'It is a well settled general rule that an injury suffered by an employe in going to or returning from the employer's premises where the work of his employment is carried on, except in special instances not here involved, does not arise out of his employment so as to entitle him to compensation.' "Upon this general rule some courts have ingrafted the following excep- tion: 'When an employe is injured while riding to his place of work in a conveyance provided by the employer, after the real beginning of the employment, in compliance with one of the implied or express terms of the contract of employment, for the mere use of the employes, and is one which they are required, or, as a matter of right, are permitted to use by virtue of that contract, the injury may be held to have arisen out of and in the course of the employment so as to entitle the employe to compensation.' "This statement of the exception to the rule is taken from Donovan's Case Supra. Cases in which it has been given or denied recognition are collected in 1 Honnold on workmen's compensation, section 110; Brad- bury's workmen's compensation, section 480; L. R. A. 1916A, pp. 61, 235; L. R. A. 1918F, p. 907. So far as we have discovered, the statutes in all of the cases where the exception has been recognized do not contain the quali- fying clause which is in our statute. "Practically all compensation statutes make use of the words, 'in the course of the employment.' It is generally stated that the phrase refers, among other things, to the period of employment. It had been an endless source of difficulty to determine when that period begins and endsi. We think the legislature undertook to set the question at rest by sub-section (i) section 8230. Great Britain's compensation act contains part of the phrase- ology of this sub-section. It provides that the act shall not apply where the accident occurred elsewhere than on, in, or about the premises on which the employe had undertaken to execute the work. The English cases con- struing this provision of the act are not in harmony. Some do and others do not recognize the above stated exception to the general rule. Section 25 Harvard Law Review, 405. 185 "In the 1911 report to the legislature of the Minnesota employes' com- mission, sub-section (i) appears in the identical form in which it is found in the statute. In an explanatory note appended to it the commission said that it was intended to put a few limitations upon the expression 'personal injuries arising out of and in the course of employment,' for fear that it might not receive the same interpretation that it was meant to have. In State vs. District Court of St. Louis county, supra, this court also spoke of sub-section (i) as being in the nature of a limitation of the general clause, 'arising out of and in the course of employment.' We are now called upon to decide whether the general rule stated in Podgorski vs. Ker- win, supra, should be made subject to the exception heretofore mentioned in view of the limitations expressed in sub-section (i). "When plaintiff was injured, he was not in, on, or about the premises where his services were performed, unless it may be said that the truck on which he was riding was for the time being part of such premises. A situation might arise which would require such a holding. It is not present here, for, when plaintiff was injured, he was not at a place where he was performing or might perform any service for defendant; nor at a place where his presence was required, as he had not been directed to ride on the truck and was under no obligation to ride on it. He was doing so for his own convenience, as he had a right to do under his contract of employ- ment. The injuries were suffered before and not during his hours of service as a workman employed by defendant, at a time when defendant had no control over him, and before the period covered by his wages had begun. The facts here presented are less favorable to the contention that plaintiff was within the act than they were in Otto vs. Duluth Street Railway Co., supra, or in Erickson vs. St. Paul City Railway Co., supra, where a similar contention was not sustained. What was said in the opinions in those cases points to the conclusion we reach in this case. "We hold that the express terms of sub-section (i) section 8230, G. S. 1913, exclude plaintiff from the operation of the compensation act, and that he was properly permitted to recover in this action. "It may be that cases will arise where it will be a hardship to an employe to deny him compensation for an injury received while on his way to his place of work. It may be desirable to extend the act so that it will apply to cases of that sort. That, however, is a matter for the considera- tion of the legislature and will doubtless receive at its hands the attention it merits. "Order affirmed." (b) Accommodation Ride on Employer's Truck. A supreme court decision similar to the above but in which the circum- stances were not as strong was that of Gilbert E. Erickson vs. St. Paul City Railway Company, November 29, 1918, 169 N. W. 532, 141 Minn. 166. The employes were being taken in the directions of their homes, after an extra job, on the employer's truck as a mere matter of accommodation. The opinion Is: '1. Where a workman has completed his day's work and has left the premises where he was employed and is not then engaged in per- forming any service of his employment and meets with an accident, he is not within the Workmen's Compensation Law.' '2. There was sufficient evidence tending to show negligence on the part of defendant to make a question for the jury.' Two actions in the district court for Ramsey county to recover for per- sonal injuries received when a motor truck upon which plaintiffs were riding collided with defendant's street car. The answer alleged negligence on the part of plaintiff. The cases were tried separately before Brill, J., who denied defendants' motions for directed verdicts and a jury which returned a verdict of $300.0ia in the Erickson case and a verdict of $2,500.0a in the O'Malley case. From orders denying Its motions for judgment notwith- standing the verdict or for a new trial, defendant appealed. Affirmed. 186 W. D. Dwyer and C. D. O'Brien, for appellant. P. J. McLaughlin, for respondent. Taylor, C. Both these actions arose out of the same accident and rest upon the same state of facts and present the same questions. They were tried separately in the district court, but were argued and submitted together in this court. In both cases the plaintiff recovered a verdict and the defendant appealed from an order denying its motion for judgment notwithstanding the verdict or for a new trial. Our observations apply equally to both cases. The questions presented are: (1) Whether the facts bring the cases within the Workmen's Compensation Law; and (2) whether the evidence is sufficient to sustain the finding of negligence on the part of defendant. 1. Defendant asserted in its answer that the cause of action came within and is governed by the Workmen's Compensation Law, and that a common law action for damages will not lie. By consent the parties tried this issue to the court as a preliminary proceeding before beginning the trial of the case proper, and the court ruled that the case was not within the compensation law. Defendant urges this ruling as error. The plaintiffs were employes of the Northern States Power Company and members of a crew engaged in maintaining, altering and repairing its power lines in and near the city of St. Paul. The crew went wherever their services were needed and when they had completed the work at one point would proceed to another. The company provided an auto truck with a driver on which tools and materials used by the crew were carried, and upon which the members of the crew rode when moving from one point on the line to another. The company did not convey the members of the crew to the place of work in. the morning, nor return them to their homes at night. The truck was kept near the residence of its driver on Rice street and pro- ceeded from there in the morning and returned there at night. Members of the crew going in the direction traveled by the truck were at liberty to ride on it if they wished, and availed themselves of this privilege whenever they found it convenient to do so. On the day of the accident they were at work on Prior avenue a short distance north of University avenue, and in order to complete the job had worked until nearly lOiO'O o'clock in the evening, several hours later than the usual quitting time. The foreman then announced that the work was finished and directed the men to report at another location In the morning. Two of the men had departed pre- viously; the others, including the plaintiffs, got on the truck which proceeded south along Prior avenue to University avenue, where it collided with one of defendant's street cars. The injuries for which plaintiffs seek to recover were sustained in this collision. The Workmen's Compensation Law in section 8203, 6. S. 1913, provides compensation for Injuries, "arising out of and in the course of emplyoment," and in subdivision (i) of section 8230, G. S. 1913, declares that this pro- vision is "not to cover workmen except while engaged in, on, or about the premises where their services are being performed, or where, their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen." It is clear from these provisions that workmen who have completed their day's work, and have left the premises where they were employed and are not engaged in performing any service of their employment, are not covered by the compensation law, until they again enter upon the per- formance of the service for which they are employed. In the case at bar it will be noted that the accident happened after the employes had com- pleted their day's work and had left their place of employment and while they were proceeding toward their respective homes. Although they were riding on the truck of their employer, it clearly appears that their contract of employment imposed no obligation upon the employer to transport them to or from the place of work, and that they were merely riding as licensees to serve their own convenience. Their service for the day had terminated, ,187 they had left the place where such service had been performed, and were no longer engaged in performing any service for their employer. Under such circumstances they were not within the provisions of the compensation law and the trial court ruled correctly. Otto vs. Duluth Street Railway Co. 138 Minn. 312, 164 N. W. 1020. 2. Prior avenue, extending in a northerly and southerly direction crosses University avenue, extending in an easterly and westerly direction, at the foot of the easterly approach to the bridge over the railway tracks at the Minnesota transfer. Two street car tracks extend along University avenue over which interurban cars run at frequent intervals, westbound cars running on the north track and eastbound on the south track. Univer- sity avenue is a wide street. Immediately north of the westbound track is a platform at which westbound cars receive and discharge passengers. This platform is about 30 feet in length and the west end of it is about 75 feet east of the east line of Prior avenue. Between this platform and the north line of University avenue and north of the westbound interurban track, there is another street car track which extends west along University avenue to Prior avenue and then turns north along Prior avenue. A Hamline car was standing at or near the platform on this last mentioned track and a westbound interurban car stopped at the platform. The Hamline car started toward Prior avenue and a trifle later the interurban car started in the same direction alone the adjoining track. As the Hamline car turned north on Prior avenue, the truck on which the plaintiffs were riding passed it going south and immediately afterward collided with the interurban car. The view between the driver of the truck and the motorman of the inter- urban car had been obstructed by a building and by the Hamline car until they were within a few feet of each other. Defendant insists that the accident resulted solely from the negligence of the driver of the truck, and that there is no evidence which will warrant a finding of negligence in the operation of the street car. Defendant con- cedes that the negligence of the driver of the truck is not imputable to his passengers, and that the case turns upon whether the evidence justified the jury in finding that defendant was negligent in the operation of the street car. Plaintiff asserts that defendant was negligent in failing to have the car under control and in operating it at an excessive and dangerous rate of speed without giving warning of its approach. The evidence is conflicting. The motorman testified that he sounded his gong continuously after leaving the platform until the collision; the occupants of the truck testified that no warning was given. Witnesses testified that the street car had attained a speed of no more than six or eight miles per hour and was stopped within three or four feet after the collision; other witnesses testified that the street car was running at the rate of 25 miles per hour and proceeded 25 or 30 feet after the collision before it stopped. Defendant argues forcibly that the distance from the platform where the car had stopped to the point of collision being not more than 125 feet and being upon an upgrade the car could not have attained any great speed. But a policeman who saw the collision measured the distance that the street car shoved the truck along the track and testified that this distance was 25 feet. If this testimony is true, and the car pushed the truck sideways along the track an3 upgrade for that distance before the motorman was able to bring it to a stop it must have been running at a high speed to acquire such momentum. We think that the evidence made the question as to defendant's negligence a question for the jury. Order affirmed in both cases. (c) Coverage on Way Home. Another decision in which the supreme court construed the subsection is State ex rel. Otto vs. Duluth Street Railway Co., which is given in full under Third Parties X, 5. Coverage on Way Home. In this case the question was whether an employe who did extra work in the evening and was injured while on his way home to supper, was covered by the compensation act. 188 (d) Assault for Personal Reasons. The Supreme Court has construed that portion of the sub-section relat- ing to assault for personal reasons in Statei ex rel. Common' S«hool District No. 1, Itasca County vs. District Court of Itasca County, 168 N. W. 555, 140 Minn. 470. The opinion is: "Certiorari to the district court of Itasca county to review a judgment awarding compensation under the Workmen's Compensation Act to a school teacher in the employ of school district No. 1 of the county. "The facts are not in dispute. The school district employed a young woman to teach in the Round Lake school some 35 miles from Deer River in Itasca county and 25 miles from Black Duck, in Beltrami county, these two places being the nearest railway points. The county is densely wooded and sparsely settled. The school was a one-room school and 15 pupils attended. The nearest house was a half mile away and the boarding place was a mile or a mile and a quarter. On the morning of September 20, 1916, an unknown man asked for food at the boarding place of the teacher. On the evening of that day, when her work at the schoolhouse was finished, she started for her boarding house taking a short cut through the woods. She had some papers which she intended to correct at home in the evening and a book to study. As she was on her way, and when just off the school grounds, she was criminally assaulted by this man for the gratification of his passions and as part of the transaction he shot her, destroying the sight of her left eye. Some months later his bodv was found in a creek some miles away and with a bullet wound through the heart and a revolver nearby. He had evidently committed suicide. There is no mistaking the facts recited. The assailant saw the teacher in the morning, lurked about until the oppor- tunity came after she left school, and then committed the assault for pur- poses of his own. "The compensation act requires of the employer compensation 'in every case of personal injury or death of his employe, caused by accident, arising out of and in the course of employment, etc' G. S. 1913-8203. The word 'accident' as used in the phrases 'personal injuries due to accident' or 'injuries or death caused by accident' in this act shall, unless a different meaning is clearly indicated by the context, be con- strued to mean an unexnected or unforeseen event, hannening suddenly and violently, with or without human fault and producing at the time, injurv to the physical structure of the bodv. Personnal injuries, etc. — ^Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of employment,' it is hereby declared: " 'Not to cover workmen except while engaged in, on or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen and shall not include an injury caused by the act of a third person or fellow employe intended to injure the employe because of reasons personal to him, and not directed against him as an employe, or because of his employment' G. S. 1913-8230. "It is not questioned that a wilful assault may be an accident within the definition of the act. Without stopping to consider whether the injury to the teacher occurred in the course of employment, as the statute used the term, since she was away from the place of her definite school work, and on her way home, and upon that question this opinion is not to be taken as intimating a view, we pass to a consideration of whether it arose out of emplovment within the meaning of the statute. "The phrase 'arising out of employment,' is usual to compensation acts though some do not have it, and it has been provocative of litigation. That under some circumstances an injury from an assault is one caused by acci- dent arising out of the employment is without question; and it is as much without question that under other circumstances it is not. "When the nature of the employment is such as naturally to invite an assault, or when the employe is exposed to an assault by the character of 189 hia work, as when he Is protecting or in charge of his employer's property and the assault naturally results because ot the employment and not because o£ something unconnected with it, so that it is a hazard or special risk of the work, the cases say that it arises out of the employment. The follow- ing are illustrative: Trim Joint District School vs. Kelly, 1914 A. C. 667 (schoolmaster in industrial school assaulted by pupils) ; Weekes vs. Stead, 7 B. W. C. C. 398 (foreman whose duty it was to hire men, those apply- ing being of a rough class, assaulted by man to whom he refused work); Nisbet vs. Rayne, (1910) 2 K. B. 689 (cashier assaulted and killed for pur- poses of robbing him of employer's money) ; Anderson vs. Balfour, (1910) 2 I. R. 497 (gamekeeper assaulted by poacher); Challis vs. London, etc., Co., (1905) 2 K. B. 154 (engineer driving engine under bridge hit by stone thrown by a boy on bridge) ; re Reithel, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304 (mill superintendent shot by trespasser whom it was his duty to remove) ; Chicago Dry Kiln Co. vs. Industrial Board, 276 111. 556, 114 N. E. 1009 (night watchman assaulted while protecting employer's property) ; Ohio, etc., Co. vs. Industrial Co., 277 111. 96, 115 N. E. 149 (watchman assaulted) ; Hellman vs. Manning Sand Paper Co., 176 App. Div. 127, 162 N. Y. Supp. 335 (watchman assaulted) ; Carbone vs. Loft, 219 N. Y. 579, 114 N. E. 1062 (workman assaulted by fellow worker apparently as result of a quarrel) ; Polar Ice & Fuel Co. vs. Mulray (Ind. App.), 119 N. E. 149 (employe whose duty it was to collect shortages from deliverymen shot as result of quarrel with one of them about collections). "When the assault is unconnected witli the employment, is personal to the assailant and the one assailed, is not because the relation of employer and employe exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, the cases say that the intentional injury does not arise out of the employment. The following are illustrative: Murphy vs. Berwick, 43 Ir. Law Times, 125 (cook in hotel assaulted by drunken customer of adjoining bar); Mitchison vs. Day Bros., (1913) I. K. B 603, (employe, a driver of a van, assaulted and killed by a drunken man under circumstances constituting manslaughter) ; Armitage vs. Lancashire, etc., (1902) 2 K. B. 178 (workman injured by piece of iron thrown by angry fellow workman); Blake vs. Head, 5 B. W. C. C. 303 (felonious assault by employer) ; Walther vs. American Paper Co., 89 N. J. Law, 732, 99 Atl. 263 (night watchman killed by fellow employe for purpose of robbing him of hi^ pay) ; SchmoU vs. Weisbrod etc., Co., 89 N. J. Law, 250, 97 Atl. 723 (collector of brewing company assaulted by unknown person in a rough locality where his work took him, no showing that motive was robbery or that employer knew of character of locality); re Harboe, 223 Mass. 139, 111 N. E. 709i, L. R. A. 1916D, 933 (night watcliman killed by police officer who mistook him for a robber). "These and many other cases are cited on one phase or the other Of the question in the various treatises and annotations. Bradbury's Work Comp. 587 et seq.; 1 Honnold Work Comp. 87, 120; Dosker, Comp. Law, 113; Chartres, Work Comp. 112-114; notes, L. R. A. 1916A, 64, 309; L. R. A. 1917D, 123; notes, 6 N. C. C. A. 1010-1030, 11 N. C. C. C. A. 235-254. "There are no cases in this state of direct value. State vs. District Court, 134 Minn. 16, 158 N. W. 713, L. R. A. 1916P, 957, is cited. There an injurj^ to a bartender who was struck by a glass thrown by a drunken cus- tomer was held to arise out of employment. The fact that there was no personal altercation was noted. State vs. District Court, 167 N. W. 283, is cited There it was recognized that an injury coming from horseplay or practical joking might, under particular circumstances, be said to arise out of the employment. These cases suggest, as do others which we might cite, and perhaps particularly so those which have given compensation when the injury was caused by lightning or freezing or heatstroke, the liberal construction which we put in favor of the employe upon the language of the statute. It is not a question of fault or negligence. It is a question of 190 causal relation between the employment and the injury for which compen- sation is sought. "The cases which are here cited from various jurisdictions, and ot which we have indicated briefly the nature, arose under statute not limit- ing the meaning of the phrase, 'arising out of employment," by excluding intentional acts of third persons. We find not more than a half dozen states having compensation acts with such a limitation, and the English act has not, and in none having such limitation do we find construction. The impor- tant statement is that compensation injuries 'shall not include an injury caused by the act of a third persoa or fellow employe intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of hiS- employment.' "The act of the unknown man was in its beginning solely to gratify hia personal lust, and it was not directed against the teacher because she was a teacher, or as an employe, or because of her employment. The employ- ment may have given the occasion, and without the employment there might have been no opportunity, but there was no causal connection between the employment and the criminal act of the unknown assailant. Whether without the clause excluding intentional injuries by third persons, or per- sonal reasons and unconnected with the employment there could be com- pensation, we do not inquire. In any event, the statutory exclusion is effec- tive to prevent compensation. In reaching this conclusion, we have exam- ined all the cases cited to us, and the carefully prepared and helpful memor- andum of the trial court. Judgment reversed." (e) Injury on Walk on Premises. A very narrow application of the sub-section and one which, in the light of the supreme court decisions probably would not be justified now, was made in the early months of the compensation act by Judge Catlin, of the Ramsey county district court. The case was Fred Katzenmaiep vs. John Doeren, Ramsey county, December 31, 1914. The facts in the case were: The plaintiff came to work at 7:30 A. M. He had lost the use of his right leg from his hip down when a child three years of age, and three years prior to receiving the injury complained of, had suffered a stroke of paralysis on his left side affecting his left leg and foot and crippling him so tWat he could not stand upright without crutches. On account of his physical con- dition, the plaintiff had fallen at numerous times in various parts of the city. On this particular morning, while walking on crutches on the said cement sidewalk leading from the street to the factory, he fell and fractured bis left leg so that it was permanently disabled. This accident occurred before he reached the factory building and before he performed any serv- ices or work for his employer. The court held that the accident did not occur in the course of and arise out of the employment. Commenting on its decision in a memorandum, the court states as follows: "Several cases, sustaining claims of employes where injuries were incurred under somewhat analogous conditions, do not warrant the court in sustaining the claim of the plaintiff in this action, because of the difference in the phraseology of the statutes of the state in which tbe decisions were rendered. Comparison of the Minnesota act with that ot the English Work- ingmen's Compensation Law, wltli the federal law, and with the similar laws enacted by various states in the Union, shows that the right of employes to compensation has been very much more circumscribed by the express terms of our act. Under the Wisconsin act, by the express terms of the statute, an employe is entitled to compensation for injury sustained on his employer's premses while going to and departing from his labor. Other acts embrace such injuries because sustained while doing something 'inci- dental to the work' for which he is employed. Nearly all the statutory laws of this character provide that the Injury must 'arise out of and in the course of employment,' as does the Minnesota act. But our statute expressly provides — as no other act does — that the clause, 'personal injuries arising 191 out of and in the course of employment,' shall not cover 'workmen except while engaged in, or about the premises where their services are being per- formed, or where their service requires their presence as a part of such service at the time of injury and during the hours of service as such work- men." The act is, by its terms, much more limited than any other statute and less humanitarian, but the question of limitation and of humanitarianism and the general policy of the law are questions for the legislature and not for the court. Neither sympathy for the plaintiff in his pathetic condition nor wishes that the law were broader and less circumscribed in its terms can properly move the court to give to the language of the act a meaning which will bring the unfortunate plaintiff within its terms and entitle him to com- pensation. He worked for the defendant and was on his premises at the time of the accident, but was not engaged where his service was being per- formed, or where his service required his presence as a part of such service during the hours of service as such workman." (f) Injury on Returning fop Pay. Another discussion of the sub-section is given by Judge Fesler in the case of iLouis Studeman vs. The Northwest Paper Co., St. Louis county, July 23, 1919. A different set of circumstances was presented from any that have been before the supreme court thus far. "The employe had completed his work at 8:00' A. M., and came back at 3:15 P. M., in order to draw his pay. While going to the office and while on the employer's premises for this purpose he was run down by a train and killed. The court's memorandum is: "No provision is made by the Workmen's Compensation Act for the use of a demurrer. In order to comply with section 30 of the act and give the parties a decision in a summary manner, and comply with suggestions heretofore made by the supreme court to make the procedure fit the spirit of that section, the order made herein is applied to the procedure used by the parties, the demurrer is treated as an answer admitting the allegations of the complaint and judgment is rendered on the pleadings, the procedure is not regular, but it makes a record on which the merits of the contro- versy may easily be determined on certiorari. "The merits are to be decided on the interpretation of section 34 (i). The question is : Did Studeman come within the exception that the act was 'not to cover workmen except while engaged in, om, or about the premises where their services are being performed, or where their service requires their presence as a part of such service at the time of the injury, and during the hours of service as such workmen? Decisions of other courts or indus- trial commissions, working under differently worded statutes, are not very helpful. Our supreme court has not considered a similar state of facts. Some language used in Otto vs. Duluth Street Railway Co., 138 Minn. 312, 314, would inf erentially support the employer's contention here, but probably would not be used, without a qualification, in a case where the claim would be made that paying the employe his wages was part of the performance of the contract of employment. "When he was killed Studeman was on the premises where his services were being performed. Probably he was not where his service required his presence as a part of such service at the time of the injury. If the word 'employment' were used instead of the word 'service' in this clause, we might reasonably say that paying him his wages was part of the performance of the contract of employment — a distinction made In some of the cases cited. See Haekley vs. Industrial Comm., 165 Wis. 586. It will be noticed that the word 'employment' is used in the clause 'personal injuries arising out of and in the course of employment'; but in undertaking to define its meaning by a method of exclusion, the word 'service' only is used. If the legislature had any intent in shifting from the one word to the other, it must have been for the purpose of limiting the right to recover for injuries occurrmg only while the employe was performing his part of the contract of employment. "But however that may be, it seems plain that Studeman was not killed during the hours of service as such workman. These words must be given 192 some definite meaning. There they must limit the employer's liability to the eight-hour shift, or extend it throughout the entire twenty-four hours of the day. If such is the alternative, the legislature must have intended the former. We are willing to liberally construe any remedial statute, but no liberal construction of the act can justify the inclusion of the hour of 3:15 P. M. within the hours of Studeman's service between midnight and 8:00 A. M. "The defendant's death did not arise out of and in the course of his employment, and his widow cannot recover compensation therefor." (g) Teamster Caring for Own Horses. A case which had little standing even under the abridged clause, but which was clearly barred by the limiting subsection was that of a teamster who furnished his own horses and was injured while caring for them. The matter went to the supreme court and resulted in the judgment of the district court being upheld. The style of the case is State ex rel. Jacobson vs. District Court of Hennepim County, December 5, 1919, 175 N. W. 110. The opinion follows: "The relator's husband worked for Minneapolis, driving a sprinkler. He furnished his services and the use of his team and the running gears of his wagon for a stated daily compensation. He worked eight hours a day, from 8:00 in the morning until 5:00 In the evening, with an hour off at noon. He fed and stabled his team at his own expense. One evening, after his day's work was done, he was killed by one of his horses while he was caring for it in his stable. It is held that the accident did not arise out of his employment and that he was not entitled to compensation under the Workmen's Compensation Act. Dibell, J. "Certiorari to the Hennepin county district court to review its judgment denying compensation to the relator under the Workmen's Compensation Act. (Gen. St. 1913, chapter 84-a) for the death of her husband. "The relator's husband, Charles Jacobson, was employed by Minne- apolis. He was driving a sprinkling wagon. He furnished his team and the running gears of the wagon. The city furnished the tank. He kept the sprinkler in the rear of his house and stabled his horses in his barn on his premises and fed and cared for them at his own expense. He worked eight hours a day, commencing at 8:00 and quitting at 5:00, with an hour off at noon, and received for his services and the use of his team and wagon, $6.00 per day. "On the day of his injury he had finished his day's work, had gone home and stabled and fed his horses, and had eaten his supper. After supper he went to the stable to doctor one of his horses which had a sore neck. While he was so engaged the horse killed him. "The Workmen's Compensation Act gives compensation to an employe for a personal injury caused by an 'accident arising out of and in the course of his employment.' G. S. 1913, 8195. It does not give compensation to employes 'except while engaged in, on, or about the premises where their services are being performed, or where their services require their presence as a part of such service at the time of the injury, and during the hours of service as such workmen.' G. S. 1913, 8230 (1). "The facts stated give no right to compensation. The plaintiff's work for the day was done. He was not to do service for the city until the next morning. The horses were his and he fed and cared for them and furnished them and his wagon ready for work at a definite time. The accident did not arise out of his employment any more than would an accident which came while he was repairing his wagon or while doing other work in prep- aration for the next day's work for the city. The relator cites cases where a teamster, injured while caring for his horses after their work for the day was done, was allowed compensation. Smith vs. Price, 168 App. Div. 421, 153 N. Y. Supp. 221; Costello vs. Taylor, 217 N. Y. 179, 111 N. E. 755; Sub- urban Ice Co. vs. Industrial Board, 274 111. 630, 113 N. E. 979. They Involve situations where a teamster was doing work for his employer in the care of his employer's team and as a part of the work for his employer. In 193 none of them did the employe furnish his team ready for work, and receive an Injury while caring- for it out of the work hours for his employer. The distinction is obvious and basic. Nothing said should be understood as an intimation that one employed as was relator's husband would not have com- pensation if injured by horses which he was using at the time in his work for his employer, though it chanced that he owned them. "Judgment affirmed." 4. EMPLOYER The question of who is the employer often becomes very important in a compensation case. There have been many disputes centering around this point and there are some interesting decisions bearing upon it, chiefly by the district courts. The one case which has gone to the supreme court unfor- tunately was decided more on the technical point of whether the evidence justified the finding than upon any of the general principles entering into the matter. (a) No' Liability Beyond Contractor. In the case of State ex rel. Carl Berquist vs. District Court of Beltrami County, February 6, 1920, 176 N. W. 165, Adv. sheets. The injured man sought to establish that a person who had made a contract for the repair of his building was the employer and not the man who had taken the contract. Both district and supreme courts ruled against him. The opinion follows: "Certiorari to review a judgment of the district court disallowing a claim made by the relator under the Workmen's Compensation Act. The findings were that one Wilcox entered into a written contract with one Johnson, whereby the latter undertook to make certain repairs on a building owned by the former; that Johnson employed relator as a carpenter to work on the building and that while so employed he sustained am accidental injury to one of his eyes; that at the time of the injury he was not in the employ of Wilcox, and that the relationship of employer and employe did not exist between them. "The principal question presented is whether the findings are sustained by the evidence. As was pointed out in State ex rel. Niessen vs. District Court, 142 Minn. 335, a question of law arises on the evidence introduced in a proceeding under the Workmen's Compensation Act only where an impart tial consideration thereof, together with all reasonable and fair inferences, will lead reasonable minds to but one conclusion. If reasonable minds may reach different conclusions, the question becomes one of fact and the find- ings must be sustained tor the reason that when reviewed in this court the sufficiency of the evidence to support them must be treated as a question of law under the express terms of the act. Section 8225, G. S. 1913. "It would serve no useful purpose to state the evidence here. It has been carefully considered and we are clearly of the opinion that it supports the findings. ' ' ;* !'♦ |*7P| "Even though relator had been employed by Wilcox, it is not niade certain by the record before us that such employment would have been in the usual course of the latter's trade, business, profession, or occupation so that the case would fall within the provisions of the compensation act as construed in State ex rel. Lennon vs. District Court, 138 Minn. 103 and in State ex rel. Foss vs. District Court, filed herewith. "The trial court did not err in sustaining an objection to the following question put to relator: 'Did Tom Johnson tell you he was going to enter the service?' referring to Johnson's entry Into the military service of the United States during the war with Germany. The contention that, if the question had been answered in the affirmative, it would have demonstrated the impossibility of Johnson being relator's employer at the time of the injury, cannot be sustained. 194 "There was no error in the admission of Wilcox's ledger account with Johnson in connection with the written contract between them, which expressly provided that Wilcox should pay the workmen their weekly wages. The fact that he paid relator his wages and charged the amount to Johnson tended to establish Wilcox:'s contention that he was not relator's employer. "The judgment is affirmed." (b) Teamster Lent to Another Company. A complicated master and servant relationship appeared in the district court case of Mabel Mattscn, widow of Fred Mattson, vs. D. M. Gilmore Com- pany, Hennepin county, May 25, 1920. The circumstances of the hiring were found by the court to be as follows: "That about eight years ago or on or about October 1, 1911, Fred Matt- son having been for several years an employe of the D. M. Gilmore Company, by reason of a contract or arrangement made and entered into by and between the D. M. Gilmore Company, his employers, and the Gilmore Mc- Ardle Company, the aforesaid Fred Mattson together with a team of horses and a rig belonging to the D. M. Gilmore Company began to do hauling and general teaming work for the Gilmore McArdle Corporation doing busi- ness under the trade name of the Link Belt Supply Company and continued so to do at all times hereinafter mentioned up to and including the date of his death March 5, 1920, performing services for the Gilmore McArdle Com- pany by using a team and rig which was the property of the D. M. Gilmore Company at all times hereinafter mentioned and continuing upon the pay- roll of the D. M. Gilmore Company, it being admitted in the agreed statement of facts that at the time of his death the aforesaid Fred Mattson was being paid weekly wages by the D. M. Gilmore Company at the rate of $19.50 per week and the Gilmore McArdle Company paying to the D. M. Gilmore Com- pany for the services of the aforesaid Mattson and the team and rig the sum of $200.00 per month for the use of the aforesaid Mattson and team and rig, and that the aforesaid team and rig according to the agreed state- ment of facts when not in use for the Gilmore McArdle Corporation was kept in a barn belonging to D. M. Gilmore Company, and that the aforesaid Fred Mattson, deceased, had the care of the aforesaid team and rig at all times upon the premises of the aforesaid D. M. Gilmore Company." Judge Jelly further discussed the situation in a memorandum as fol- lows: "The term 'employer' shall mean every person who employs another to perform a service for him and to whom the employer directly pays wages (G. S. 8230) (d) there is always a contract, expressed or implied between employer and employe. "There was a contract between Fred Mattson and the D. M. Gilmore Company and under it Fred Ma-ttson performed services for the D. M. Gil- more Company in driving and caring for its team. "The D. M. Gilmore Company directly paid wages to Fred Mattson for such services. There was a contract between the D. M. Gilmore Company and the Gilmore McArdle Corporation. "There was no contract between the Gilmore McArdle Company and Fred Mattson. The Gilmore McArdle Company never paid anything to Mattson. "The D. M. Gilmore Company did pay Mattson under their contract J19.50 per week, and here is the only basis of compensation fixed by the act as shown by the agreed statement of facts." (c) Teaming Under Contracts. Two cases are at hand in which district courts have ruled on the ques- tion of who is the employer of a teamster when he is sent by the owner of the team to work for another party. In both the court ruled that the original teaming contractor was the employer. In Nestor IMattson vs. IVlatt Alto and tlie Village of Aurora, St. Louis county, February 27, 1918, the court appended a memorandum to the decision, which is in part: 195 "The term employer 'shall mean every person who employes another to perform services for him and to whom the employer directly pays wages/ "There Is always a contract, express or implied, between employer and employe. "There was a contract between Alto and Mattaon, and under it Mattson performed services for Alto in driving and caring for his team. "Alto paid Mattson directly for such services. "There was a contract between Alto and the village of Aurora. "There was no contract between said village and Mattson. "The viUage never paid anything to Mattson. "The village of Aurora never paid any wages to Mattson, h«nce there Is no basis of compensation as between Mattson and said village. "Alto did pay to Mattson under their contract eighteen dollars per week, and here Is the only basis of compensation fixed by the act or shown in the evidflnce. "'Where the owner of a team hires out the team and a driver to another, the hirer having under the contract nothing to do with the driving of the t«am, the relation of master and servant still exists between owner aad driver as regards the driving and care of the team.' "Chapman vs. People's Ice Co. 125 Minn. 168, and cases cited: "Rongo vs. Waddington Sonsi, 94 Atl. 408; Dale vs. Saunders Bros., 112 N. B. 571; Western Indemnity Co. vs. Pillabury, 159 Pac. 721, Kirkpatrick vs. Industrial Accident Co., 161 Pac. 274." In George Hughes vs. Village of Stewartville, Olmsted county, March 8, 1918, the court held similarly. The memorandum says: "Ryther admitted that he had employed plaintiff on various occasions to drive team for him and that he had employed him on work which was being done for the village; that he paid the men who were employed ta drive the teams, and that the village paid him for the labor of both the man and the teams. "Plaintiff himself testified that on this particular occasion he received his pay from Ryther, and it conclusively appeares that Ryther was paid by the village for the services of both men and both teams that were furnished at this time. If the village, as claimed by plaintiff, had employed him on this occasion] it seems strange that he should have gone to Ryther for his pay instead of to the village by whom he claims to have been employed." (d) Town or Supervisor. One of the interesting cases in which the dispute turned upon the Question of who was the employer was that of Cora Turnbull vs. The Town of Great Scott, St. Louis County, October 31, 1918. "The decedent, according to a summary furnished us by one of the counsel, 'was working for the Oliver Iron Mining Company as a fire patrol- man in the town of Great Scott, his duties requiring him to look out for incipient fires that might occur in that particular portion of the town where he was stationed. He had a good deal of idle time on his hands when the weather was not dry and fire menace general. The Oliver Iron Mining Com- pany had permitted him to occasionally do some work on the side, such as driving a team for the town of Great Scott, or others, at such times when there was no immediate fire hazard and very close attention was not required. He had worked once or twice before for the town of Great Scott and his name had appeared on the pay roll as driving a team for one of the town supervisors. "Four or five days just before the accident he had been put to work by one of the town supervisors to drive a team owned by that supervisor on a road grader with another man who handled the levers on the grader. The bridles on the team became tangled and Mr. Turnbull got off and went around in front to disentangle the bridles when the team became scared and ran away and he was thrown under the scraper and badly injured and died the same night. His name was^ not put on the pay roll for this time he 196 wbrked on the road and the town refused to pay anything for his time. Mr. Dawson, the town supervisor, whose team he was driving, did pay the widow for the four or five days that Mr. Turnbull drove his team. The town of Great Scott took the position that he was working for the town supervisor and not for the town and as stated above the case was contested on the question of who was the employer and who was liable to pay workmen's compensation to the widow." Judge Dancer found that the man was working for the town of Great Scott at the time of the injury. The award of compensation is of interest because it follows the usual rule, and is based solely upon the amount earned in the part time employment. We quote this portion of the findings : "That on or about July 8, 1&18, said David S. TurnbuU entered into the employ of said defendant town of Great Scott as a workman upon one of the town roads then being improved by said defendant town, and from and after July 8th until the accident and injury hereinafter mentioned, said David S. TurnbuU continued in the employ of said town of Great Scott, in driving a team hitched to a large heavy wheel grader, then being used in grading and otherwise improving said town road. The compensation of said David S. TurnbuU while engaged at said work was the sum of $3.50 per day. "That plaintiff has demanded of said defendant town of Great Scott the payment of compensation to her as surviving spouse and sole dependent of said David S. TurnbuU, as provided for by chapter 467, G. Li. 1913, as amended, at the rate of 60 per cent of the average compensation which plaintiff's intestate was earning and receiving from said defendant at the time of receiving said injury and death as above set forth, but has been notified by said defendant that said defendant will pay her no compensation whatever in settlement of her claim against said defendant. "The plaintiff has received nothing from said defendant on account of the death of her said husband, although defendant had immediate notice of said injury and death. , "Wherefore, the court finds that plaintiff is entitled to recover of defend- ant the sum of $7.35 per week beginning July 12, 1918, and continuing during, dependency, not to exceed 300 weeks, payable as follows: In monthly pay- ments on the regular pay days of the defendant, except that all payment for the period of from July 12, 1918, to the entry of judgment herein, shall be deemed due aiid payable at once. Plaintiff is also entitled to recover her costs and disbursements herein." (e) Farmer or Silo Company. In the case of George Lindqu'ist vs. United States Keystone Silo Co., Hennepin county, January 3, 1919, the employe had been injured while assisting in the erection of a silo. The contract between the silo company and the farmer provided that the farmer should furnish the labor. As an accommodation for the farmer the silo company had sent Lindquist on this job. He had assisted in erecting several silos, but in each instance it was the understanding that he was to be paid by the farmer. The question was presented before the court of who was the employer. Judge Dickinson found that the farmer was the employer in the following ruling: "That on the 23d day of August, 1918, plaintiff sustained an accidental injury to his right foot by stepping upon a nail while assisting in the erec- tion of a silo on the farm of one Gotchier, near Clear Water, Minn.; that plaintiff was not in the employ of the defendant at the time that he received said injury. "That plaintiff is not entitled to recover from the defendant in said ac- tion and that the defendant is entitled to judgment of dismissal." (f) Co-operative Creamery. The question of who is the employer under certain arrangements by a co-operative creamery was referred to the attorney general with the result that he gave the following ruling: 197 "The Workmen's Compensation Act applies only to the relation of employer and employe. The question whether the relation o£ master and servant exists is frequently a question of fact and not a question of law. If the creamery company in the instant case does not hire their assistants, does not have the right to discharge them and does not have the right to supervise and control their work, then they are not employes of the creamery company. If they are not employes of the creamery company, but are hired by the secretary, are subject to his control and direction, including the right to dismiss them from the service, then they are his employes, and in case of accidental injury he would be liable to them under the Workmen's Com- pensation Act. The test for determining whether one person is the employe of another, within the rule making the employer responsible for injuries received by the employe, is whether such person possesses the power to control the other in respect of the transation in which the injury arose. State vs. Virginia, 128 Minn. 43, "In an earlier case the court said that unless it appears conclusively that the right to control and supervise the work was not reserved, the ques- tion whether the relation of employer and employe existed was for the jury, Klages vs. Gillette, 86 Minn. 458. "By the application of these general principles you will be able to deter- mine as well as any one can determine, in advance of a court decision, whether the men employed under the secretary in the operation of the creamery should look to him or to the creamery company for compensation in case of accidental injury." 5. INTOXICATION PROXIMATE CAUSE The construction of the term "intoxication as proximate cause" has been before the supreme court several times. (a) Proximate Cause is Question of Fact. In State ex rel. Green et al. vs. District Court of Ramsey County, Feb- ruary 6, 1920, 176 N. W. 155 Adv. Sheets, the supreme court held that the question whether Intoxication was the proximate cause of the injury was one of the facts for the trial court and that it would not distrub the finding unless the evidence was so strong that reasonable minds could reach no other conclusion. In the case before it the Intoxication was conceded, but the court found that it was not the proximate cause of the injury. The opinion follows: "Certiorari in review of a judgment of the district court of Ramsey county in proceedings under the Workmen's Compensation Act. "It appears from the records that defendant at the time in question was the owner and operator of the Pey Hotel in the city of St. Paul. For a time prior to February 25, 1918, and up to the time of his death on that day, Thomas Davis was in her employ at a salary or compensation of $35.00 per month, his duties being to attend the furnace or heating plant of the build- ing which was located in the basement. The basement was reached by means of a stairway leading from an alley in the rear of the premises. On the day named at about 1:00 o'clock in the afternoon Davis in going to his work in some way tripped and fell down the stairway, receiving injuries ■which caused his death. Plaintiff is his widow and brought the proceeding to recover the statutory compensation in such cases provided. "It stands conceded on the record that decedent was intoxicated at the time, and the court so found that fact. The court further found that the fall down the stairway and resulting death was not the natural result of the intoxication, nor shown to be the proximate cause thereof, and awarded plaintiff the compensation fixed by the statute. The correctness of that con- clusion presents the only question in the case. The additional point made by relator that decedent was not in the course of his employment at the time of the accident is not sustained by the record. Decedent had been in relator's employ for some time, and though neglectful of his duties had not been discharged. He was rightfully upon the premises and on the way to the.place of the performance of his work. Of this the record presents no 198 Question. We therefore hold without further comment that decedent was in the relator's employ at the time of the accident and in the course of his employment within the meaning of the statute, and come directly to the question whether the trial court was right in the conclusion that the intoxi- cation of decedent was neither the natural nor the proximate cause of his injury and death. "General Statutes 1913, section 8203, of the compensation act provides that compensation shall be paid according to the schedules therein con- tained in every case of injury or death of an employe by accidental means, without regard to the question of negligence: 'Except accidents which are intentionally self inflicted or when the intoxication of such employe is the natural or proximate cause of the injury, and the burden of proof of such fact shall be upon the employer.' "The question whether the intoxication of decedent was the natural cause of his injury and death may be passed without comment. It clearly was not. Whether it was the proximate cause thereof presents another and different question, though on the facts here presented we hold that it was correctly disposed of by the trial court. "In controversies under the Workmen's Compensation Act the contribu- tory negligence of an injured employe is not a bar to his right to condensa- tion. The intoxication of a person injured by the alleged negligence of another has usually been treated in actions at law for damages as a con- tributing cause thereof, and sufficient to defeat a recovery. But that condi- tion of the injured person is not per se contributory negltgenee. 2 Dunnel's Dig. 7028, and cases cited there. It constitutes a bar to relief under the compensation act when only shown to be the proximate, as distinguished from the contributory cause of the injury complained of. This distinction necessarily follows from the express language of the statute, by which contributory negligence of the employe is expressly excluded from con- sideration in determining the liability of the employer. In this view of the law applicable to the case we are of the opinion, that the court below, was not bound to find that the intoxication of decedent was the proximate cause of his injury and death. From the facts presented reasonable minds might reach different conclusions upon the question, rendering the determination thereof by the trial court final. State ex rel. NIesson vs. District Court, 142 Minn. 335, 172 N. W. 133. The proximate cause of an injury is that act or event which in natural and continuous sequence, unbroken by any intervening efficient cause, produces the same. The record clearly shows the intoxication of decedent. The extent thereof the trial court does not And. The record also shows that at the time of the accident the stairway, the means of access to decedent's place of work, was to some extent not in good order. There was no railing by which one might guide his course up or down the stairway; one was placed therein soon after the accident. On the day following the injury some ice and snow was found on the first three or four steps of the stairway, and the trial court might well enough have assumed its presence on the day of the accident. From this state of the evidence we conclude that the proximate cause of the acccident lay between the intoxication of decedent and the condition of the stairway, presenting a question of fact for the trial judge; and within the Neissen case supra, his conclusion thereon Is not open to review in this court. "Judgment affirmed." (b) Conflictinig Evidence as to IntoxicatiO'n. The first case involving intoxication to come before the supreme court was State ex rel. Nelson-Spellisey Implement Company vs. Meeker County, 150 N. W. 623, 128 Minn. 221. The opinion was as follows: "Plaintiff's intestate, her husband, was on October 27, 1913, accidentally killed by the overturning of an automobile which he was driving, and on the claim that he was an employ of the Nelso-Spelllsey Implement Co., a cor- poration, and that the accident and his death arose out of and in the course of his employment, she brought proceedings for the compensation pro- 199 vided for by part 2, of chapter 467, p. 675, Laws 1913, known as the 'Work- men's Compensation Act.' The matter duly came on for hearing in the district court, where findings of fact were made and judgment ordered for plaintiff in harmony with the provisions of that statute. Thereafter defend- ant brought the proceeding to this court for review by certiorari. "The principal issues of fact on the trial below were: (1) Whether the decedent was an employe of the company at the time of the accident; and (2) whether the accident was caused by his voluntary Intoxication. It appears from the record that defendant is a corporation organized under the laws of this state, with its principal place of business at Litchfield, and at the time in question was engaged In buying and selling farm imple- ments, wagons, carriages and automobiles, repairing automobiles and carry- ing passengers by automobiles for hire. Decedent entered the employ of defendant in July, 1912, and continued therein, according to plaintiff's con- tention, until the day of his death, which occurred on October 27, 1913. The duties of his employment consisted, among other things, in setting up and repairing autorhobiles and farm machinery, and operating and driving auto- mobiles in defendant's auto livery business. Defendant contended on the trial that decedent was not in its employ on the day of the accident, and that his term of employment, though previously existing, ended and: terminated by decedent's resignation the day preceding his death, and that he was not acting for defendant on the day in question. Also that the accident was caused by the intoxicated condition of decedent. The court found the facts in plaintiff's favor, and to the effect that decedent was at the time of his death in the employ of defendant, acting in the course of his employment, and that the automobile which he was driving was accidentally overturned, and that decedent was not intoxicated. "The assignment of error challenges the findings of the court, its refusal Id amend and modify the same, the constitutionality of the statute upon which the proceedings and judgment are founded, and one ruling admitting certain evidence over defendant's objection. "None of the assignments require extended discussion. We find from a reading of the record evidence tending to support the claim of plaintiff to the effect that decedent continued in defendant's employ up to and including the day of the accident, as well as evidence tending to show that his rela- tions with defendant ceased and were terminated prior thereto; we also find evidence tending to show that decedent was at times addicted to the excesi- sive use of intoxicating liquors, that he drank of such liquors on the day in question prior to starting on the particular trip with the automobile, and also during the time thereof, and also evidence that he was not an habitual drinker, and was not intoxicated on this occasion. In this state of the record we are limited in our inquiry to the question whether the evidence, if satisfactory to the trial court, reasonably tends to support the plaintiff's contentions. We hold that it does. The evidence objected to and now complained of disclosed a conversation between decedent and the witness, a person not interested in. the action, in which decedent stated that he was to remain in the employ of defendant until the week following the conversa- tion, which would extend his employment beyond the date of the accident. The trial was by the court, and though the evidence was perhaps incompe- tent, because a self-serving declaration, the admission thereof was clearly not prejudicial. Defendant further contends that, because decedent pro- ceeded to the point of destination over a route which took him beyond that generally traveled between the two points, he exceeded and went beyond and outside the scope of his employment, and assumed all risks encountered while so engaged. There can be no controversy about the general rule invoked, but it has no application to the facts here presented. At the time of the accident decedent was on the return trip to Litchfield, in the usually traveled way, and was then within, the scope of his employment. If he had been injured while driving the car beyond the point of destination a different situation would be presented. But his death did not occur at that time. "The validity of the statute is challenged on various constitutional grounds; namely, that it deprives the parties of the right to a jury trial; 200 that it deprives the employer of his property without due process of law; that it unlawfully encroaches upon the judiciary; deprives the parties of their right of appeal, and, if construed to apply to contract relations existing prior to its passage, that it impairs the obligations of such contracts in vio- lation of both the state and federal constitutions. "These questions do not require discussion. They were all presented in the case of Mathison vs. Minneapolis Street Railway Co., 126 Minn. 286, 148 N. W. 71, and were disposed of adversely to the present contentions. •The reasons for our conclusions are clearly and fully stated in that opinion, and need not here be repeated. We are clear that the statute was intended to apply to relations of employer and employe existing at the time of its passage and continuing thereafter, and we so hold. But this does not render it obnoxious to the constitution, as imparing the obligations of the contract, arising from such relation. As remarked in the Mathison case, and held by the courts generally, no person has any vested right to a rule of law or form of procedure, except perhaps when some form of redress permitted by existing law is expressly stipulated for in the contract. Nor does the fact that the statute does not grant the right of appeal affect its constitutionality. J. T. McMillan Co. vs. State Board of Health, 110 Minn. 145, 124 N. W. 828. The right of review by certiorari is open to both parties, by which all rights may be fully protected. In fact this method of reviewing is expressly given by the statute. Section 30. This covers all questions requiring special mention and results in an affirmance. "Judgment affirmed." (c) Burden of Proof on Employer. For a supreme court decision in which stress was laid on the point tiat the burden of proof that intoxication was the natural and proximate cause of the accident, is on the employer, see State ex rel. London & Lancashire Indemnity Co. vs. District Court of Hennepin County, given in full under Territorial Scope II, 1, (f) Scope of Insurance Policy. As further illustrating the difficulty of bearing the burden of proof in these cases we may cite two district court cases involving the point. The iirst is Clara Peterson, widow of Andrew Peterson, vs. W. J. Schindler, Ramsey County, March 7, 1917: "The plaintiff claims that said fall from said truck was an accident which grew out of and befell said deceased in the course of his employment by the defendant and that his consequent injury and death were caused by an accident growing out of and arising in the course of his employment. "The defendant admitted in open court upon the trial hereof that deceased's death was the immediate consequence of his fall from said truck at said time, but he denies that deceased was then acting as his servant in the course of his employment, and he alleges and contends that deceased was intoxicated at the time and that his fall and injury were naturally and proximately caused by his intoxication at the time. "Upon consideration of the evidence adduced upon these issues, I find that said deceased suffered said injury while on his way from a wholesale hardware establishment where he had been working for the defendant to defendant's barn for the purpose of putting up his team and quitting work for that day and that said injury grew out of and arose in the course of his employment and that the said injury was not caused by an intoxicated con- ■dition of sajd deceased. I "The evidence is somewhat conflicting on the issue of intoxication, and there is no witness who actually saw the accident happen. It happened •at about 5:30 P. M. There is some evidence that at 2:30 P. M., two hours earlier, deceased was intoxicated to such an extent that he staggered and could not talk well. And there is evidence that when picked up after the accident he smelled of liquor and was drunk. I do not place much credence in the testimony to the effect that he was drunk when taken into the ambu- 'lance after the accident since it is undisputed that the fall rendered him dazed and partially unconscious and that he had suffered at that time an 201 injury and dislocation of his fifth cervical vertebra sufficient to thereafter cause his death, and the symptoms which the witness attributed to drunken- ness are probably more properly attributable to his injury. "On the other hand, there is evidence of three witnesses who worked with him all that afternoon to the effect that he was sober all that after- noon and sober at 5:15 P. M. when he started for the barn. "The burden of proving that Intoxication was the proximate cause of this injury was upon the defendant and he has not sustained it. The pre- ponderance of the evidence indicates that Peterson was sober." The other case is Vemdla Sanberg vs. Foley Bros, and Quinlan, Marshall county, August 10, 1917. Without discussing the evidence the court found- "The claim made by the defendant that the death of said Charles H Sanberg was due to his voluntary intoxication Is not sustained by sufficient evidence." 6. INTENTIONALLY SELF-INFLICTED There is only one supreme court case which has touched upon any phase involving an application of the expression "Intentionally self-inflicted." This relates to the question of how far it may be presumed that suicide was intended. (a) Presumption Against Suicide. In State ex pel. Oliver Iron Mining Company vs. District Court of St. Louis County, et al., October 12, 1917, 164 N. W. 5«2, 138 Minn. 138, the supreme court held that in the absence of positive evidence the presumption is against suicide. The opinion is: "Vlnko Arko was employed by the Oliver Iron Mining Company as an underground miner. He worked with another employe, Joe Grum. They would blast and then shovel the lose earth and ore. They used for blasting dynamite, fuses and dynamite caps. The dynamite was kept nearby In a box, under lock and key. On the morning of February 29, 1916, the two men were engaged In shoveling ore that had been loosened by a blast. Shortly after they started work, Arko left his work and went to a 'cross- cut,' a usual thing for that time of the day. In a few minutes an explosion was heard and Arko was found about 100 feet from his place of work, lying on the ground dead, his chest and vitals badly torn by explosion. "The trial court allowed compensation under the compensation act to Arko's wife. The employer brings certiorari. The assignments of error raise the one question whether the death of deceased was caused by acci- dent arising out of and in the course of his employment, or by suicide, If Ihe death was caused by accident there seems small doubt that It was an accident arising out of and In the course of employment. The question in the case is, therefore, was the cause of the death accident or suicide? "No one saw the occurence and the circumstantial evidence is very meagre. There was no occasion to use explosives for blasting at that time and there would be none until the loose dirt and ore had been shoveled out. This would take about two hours. There was, therefore, no occasion for deceased to go for explosives at that time or for him to have them on his person. There Is evidence that two burnt-out fuses such as were used In exploding dynamite were found lying near his body, though this is denied. The box containing the explosives was locked, but the key was In Grum's jacket, and this lay on the box so that deceased had easy access to it. There is evidence that deceased 'wasn't feeling just right' and 'didn't look just like natural' that morning. When found he was lying on his back In a position in which it is argued he would not be likely to accidentally fall and there was blood on the dirt directly above him, but not on the sides, and from this it Is contended that he must have been lying In that position when the explosion occurred. Relator argues that deceased must have gone to the box and obtained explosives, and that he then lay on his back and deliberately committed suicide. 202 "On the other hand, the evidence shows that, after the explosion, Grum found his jacket on the dynamite box in the same place as he had left it ■when he went to work, with nothing to indicate that it had heen disturbed. There is evidence that deceased, as did other men also, sometimes carried dynamite caps in his pockets and that these easily exploded. There is some evidence that the explosion of dynamite caps was sufficient to cause the injury which deceased suffered, though this is denied. The evidence is that the clothing and watch of deceased were blown outward indicating that the explosive that killed him was carried in. or under his clothing. "Other facts and circumstances are mentioned in the testimony, most of them unimportant and none or all of them conclusive of either theory. If death is not the result of suicide, the employer must respond. The evi- dence may be too meager to establish affirmatively either accident or sui- cide, but when violent death is shown, the presumption, arises that it was not self-inflicted. 'As between accident and suicide the law for logical and sensible reasons supposes accident,' until the contrary is Sihown. McAlplne vs. Fidelity & Cas. Co., 134 Minn. 192, 158 N. W. 967; Hale vs. Life Indem- nity & Inv. Co., 61 Minn. 516, 63 N. W. 1108, 52 Am. St. Repp. 616; Lindahl vs. Supreme Court I. O. F., 100 Minn. 87, 110 N. W. 358, 8 L. R. A. (N. S.) 916, 117 Am. St. Repp, 666; Kornig vs. Western Life Indemnity Co., 102 Minn. 31, 112 N. W. 1039; O'Connor vs. Modern Woodman of America, 110 Minn, 18, 124 N. W. 454, 25 L. R. A. (N. S.) 12'44; Peterson vs. Prudential Ins. Co., 115 Minn. 232, 132 N. W. 277; Gilbert vs. City of Tracy, 115 Minn. 443, 132 N. W. 752; Milwaukee Western Fuel Co. vs. Industrial Commission, 159 Wis. 635, 150 N. W. 998. The evidence is surely not conclusive of suicide. We conclude that the determination of the trial court that death was accidental is sustained. Judgment affirmed." (b) Self-inflicted injury to Evade Draft. An illustration of an self-inflicted injury is given in the district court case of Tony IVIaduri vs. Oliver iron Mining Company, St. Louis county, December 1, 1919. Judge Hughes found as follows: "That on said 16th day of April, 1918, the employe by the use of an axe cut off two portions of his right index flnger; that in cutting off the said portions of the said flnger the employe struck the flnger two blows with the axe ; that both of the portions of said finger which had been cut off were found immediately after same had been cut off, and received in evidence in this case, and were admitted to be the portions of the employe's finger that had been cut off. That employe at that time was subject to draft into the military service of the United States and was very shcfftly thereafter sent into such service. "That the said cutting off of the said portions of said index flnger by the employe was done intentionally and wilfully, and not by accident, and that such injury did not result from an accident arising out of or in the course of the employment. "That the employer is entitled to judgment dismissing the employe's complaint, for its costs and disbursements, including $10.00 statutory costs. "Let judgment be entered accordingly." 203 XII. DEPARTMENT OF LABOR FUNCTIONS As the relation of the Department o£ Labor and Industries to the admin- istration of the compensation act is somewhat unusual and differs from the plans in effect in other states, we are presenting here a discussion of it. Under section 24-A the Department of Labor has four points of contact with the administration of the Workmen's Compensation Law. First, to advise an employer or an employe or his dependent of his or their rights under the act. Second, to assist in adjusting differences between the employe or his dependent and the employer. Third, to act as representative ill court, of one of the parties to a com- pensation proceeding. Fourth, to observe in detail the operation of the act throughout the state. It will be noted that with the exception of the third point of contact the department is at no time acting in a partisan capacity. It is a branch of the state government intrusted with the task of supervising the operation of a law in such manner that equity is done. Even when one of its employes is acting as the representative in court of a compensation claimant he does so rather as "friend of the court" than as an ordinary attorney. The depart- ment will use every means at its disposal to see that the facts are discovered and that justice is done a compensation claimant. On the other hand it is not only its privilege, but its positive duty, to reject and refuse to further any claims which it becomes convinced have no merit. The feature of the work upon which the department wishes to lay the greatest stress is the informal adjustment of differences. Through its power to summon witnesses and take testimony under oath the department is in a position to get at the facts in any case and propose a basis of settlement. If employes and employers availed themselves more frequently of the department's service in this respect much more could be saved in litigation expense and ill feeling. In practice we find that the department can bring about an adjustment far more readily in the early stages of a controversy than if it receives a case after it has been hawked around among various attorneys and meddling friends of the claimant and the employer thoroughly embittered by the claims made on him. In general, court actions will be brought only after the department has tried to adjust the case and the employer or insurer has refused to accept adjustment or the proffered basis of settlement. When an adjustment is negotiated and the claimant refuses to accept the basis of settlement the department proposes, no obligation to bring a court action will be admitted. It will be noted the law nowhere says the department employes shall act as representatives in court, it merely gives discretionary power to do so. Under no circumstances will the department take into court a case the merits of which are dubious. As to the fourth point of contact, "observing the operation of the law" the department will feel at liberty to inquire into any feature of a com- pensation case or any incident in connection therewith whenever it considers the public interest demands, whether there is any complaint by the injured man or not. We state this here because occasionally our authority to inquire into a settlement apparently satisfactory to both sides is questioned. 204 APPENDIX I 1. PRESENT VALUE TABLE We are reproducing herewith the present value table which was first printed in Bulletin 12 and later reprinted partially in Bulletin 15. We would strongly urge the use of this table in all efforts to ascertain the present value of periodical payments of compensation. The checking done in the statistical division of the department has shown numerous errors in the calculation of present value. When these have been approved by the court it is usually a matter of considerable difficulty to get them readjusted. We also wish to call attention to the fact that the only way by which present value can be determined accurately is by the use of the table. The practice which has been fairly common of reckoning present value in a rough way by an interest method always results in too large a value for the deduc- tion and the injured man is the loser. To illustrate the use of the table, suppose that an injured employe is entitled to $7.50 per week for 175 weeks, and that the employer has paid him at the rate of $7.50 per week for 13 weeks, and that the parties then agree to commute the remaining 162 weeks to a single lump sum payment. How much is coming to the employe? Turning to week No. 162 in the table we find that the present value of one dollar per week at 6 per cent for 162 weeks is $148.4370. The present value of $7.50 per week for 162 weeks would therefore be $7.50 times as much or $1,113.28. SIMPLE INTEREST— SIX PER CENT PER ANNUM. Showing the present value of $1.00 per week due in any number of weeks from one to iive hundred and fifty: 1 9988 29 28.5092 57 55.1731 2 1.9965 30 29.4757 58 56.1103 3.. 2.9931 31 30.4412 59 57.0466 4 3.9885 32 31.4056 60 57.9819 5 4.9828 33 32.3689 61 58.9161 6 5.9759 34 33.3312 62 59.8493 7 6.9679 35 34.2923 63 60.7816 8 7.9587 36 35.2525 64 61.7128 9 8;9485 37 ...36.2115 65 62.6430 10 9.9370 38 37.1695 66.' 63.5723 11..... 10.9245 39 38.1265 67 64.5005 12. . . .- 11.9109 40. 39.0823 68 65.4278 13 12.8961 41 40.0372 69 66,3540 14 13.8802 42 40.9909 70 67.2793 15 14.8632 43 41.9437 71 68.2036 16 15.8450 44 42.8954 72 69.1269 17 16.8258 45 43.8460 73 70.0492 18 17.8055 46 44.7956 74 70.9705 19 18.7840, 47 45.7442 75 71.8909 20 19.7614 48 46.6917 76 72.8102 21 20.7378 49 47.6382r 77 73.7289 22 21.7130 50 48.5836 78 74.6461 23 22.6872 51 49.5280 79 75.5625 24 23.6602 52 50.4714 80 76.4780 25 24.6322 53 51.4138 81 77.3926 26 25.6031 54 52.3552 82 78.3061 27 26.5729 55 53.2955 83 79.2187 28 27.5416 56 54.2348 84 80.1304 205 85 81.0410 86 81.9508 87 82.8595 88 83.7674 89 84.6742 90 85.5802 91 86.4851 92 87.3892 93 88.2923 94 89.1944 95 90.0956 96 90.9959 97 91.8952 98 92.7937 99 93.6911 100 94.5877 101 95.4833 102 96.3780 103 97.2718 104 98.1646 105 99.0566 106 99.9476 107 100.8377 108 101.7269 109 202.6152 110 103.502'6 111 104.3890 112 105.2746 113 106.1592 114 107.0430 115 107.9258 116 108.8078 117 109.6889 118.... 110.5690 119 111.4483 120 112.3267 121 113.2042 122 114.0808 123 114.9565 124 115.8313 125 116.7053 126 117.5783 127 118.4505 128 119.3218 129 120.1923 130 121.0618 131 121.9305 132 122.7983 133 123.6653 134 124.5314 135 125.3966 136 126.2610 137 127.1245 138 127.9871 139 128.8489 140 129.7098 141 130.5699 142 131.4291 143 132.2875 144 133.1450 145 134.0017 146 134.8575 147.; 135.7125 148 136.5666 149 137.4199 150 138.2724 151 139.1240 152 139.9748 153 140.8247 154 141.6739 155 142.5222 156 143.3696 157 144.2162 158 145.0620 159 145.9070 160 146.7512 161 147.5945 162 148.4370 163 149.2787 164 150.1196 165 150.9597 166 151.7989 167 152.6374 168 153.4750 169 154.3118 170 155.1478 171 155.9830 172 156.8174 173 157.6510 174 158.4838 175 159.3158 176 160.1470 177 160.9774 178 161.8070 179 162.6359 180 163.4639 181 164.2911 182' 165.1176 183 165.9432 184 166.7681 185 167.5922 186 168.4155 187 169.2380 188 170.0598 189 170.8807 190 171.7009 191 172.5203 192 173.3390 193 174.1568 194 174.9739 195 175.7903 196 176.6058 197 177.4206 198 178.2346 199 179.0479 200 179.8604 201 180.6721 202 181.4831 203 182.2933 204 183.1028 205 183.9115 206 184.7195 206 207 185.5267 208 186.3331 209 187.1388 210 187.9438 211 188.7480 212 189.5515 213 190.3542 214 191.1561 215 191.9574 216 192.7579 217 193.5576 218 194.3566 219 195.1449 220 195.9525 221 196.7493 222 197.5454 223 198.3407 224 ....199.1353 225 199.9292 226 200.7224 227 201.5148 228 202.3065 229 203.0975 230 203.8878 231 204.6774 232 205.4662 233 206.2543 234 207.0417 235 207.8284 236 208.6144 237 209.3996 238 210.1842 239 210.9680 240 211.7512 241 212.5336 242 213.3153 243 214.0963 244 214.8766 245 215.6563 246 216.4352 .247 217.2134 248 217.9909 249 218.7677 250 219.5438 251 220.3192 252.... 221.0940 253 221.8680 254 222.6414 255 223.4140 256 224.1860 257 224.9573 258 225.7279 259 226.4978 260 227.2670 261 228.0356 262 228.8034 263 w.. 229.5706 264 230.3371 265 231.1030 266 231.8681 267 232.6326 268 233.3964 269 234.1595 270 234.9220 271 235.6838 272 236.4449 273 237.2054 274.... 237.9652 275 238.7243 276 239.4828 277 240.2406 278 240.9977 279 241.7542 280 242.5100 281 243.2651 282 244.0196 283 244.7735 2^84 245.5267 285 246.2792 286 247.0311 287 247.7823 288 248.5329 289 249.2828 290 250.0321 Z91 250.7807 292 251.5287 293 252.2760 294 253.022T 295 253.7688 296 254.5142 297..- 255.2590 298 256.0031 299 256.7466 300 257.4895 301 258.2317 302 258.9733 303 259.7142 304 260.4545 305 261.1942 306 261.9333 307 262.6717 308 263.4095 309 264.1467 310 264.8832 311 265.6191 312 266.3544 313 267.0891 314 267.8232 315 268.5566 316 269.2894 317 270.0216 318 270.7531 319 271.4841 320 272.2144 321 272.9442 322 273.6733 323 274.4018 324 275.1296 325 275.8569 326 276.5836 327 277.3096 328 278.0351 329 278.7599 330 279.4842 331 280.2078 332 280.9308 333 281.6532 334 282.3751 335 283.0963 336 283.8169 337 284.5369 338 285.2563 339 285.9752 340 286.6934 341 287.4110 342 288.1281 343 288.8445 344 289.5604 345 290.2757 346 290.9903 347 291.7044 348 292.4179 349 293.1308 350 293.8432 351 294.5549 35Z 295.2661 353 295.9767 354 196.6867 355 297.3961 356 298.1049 357 298.8132 358 299.5208 359 300.2279 360 300.9345 361 301.6404 362 302.3458 363 303.0506 364 303.7548 365 304.4584 366 305.1615 367 305.8640 368 306.5660 369 307.2674 370 307.9682 371 308.6684 372 309.3681 373 310.0672 374 310.7658 375 311.4637 376 312.1612 377 312.8580 378 313.5543 379 314.2501 380 314.9453 381 315.6399 382 316.3340 383 317.0275 384 317.7204 385 318.4129 386 319.1047 387 319.7960 388 320.4868 389 321.1770 207 390 321.8666 391 322.5567 392. 323.2443 393 323.9323 394 324.6198 395 325.3067 396 325.9931 397 326.6789 398 327.3642 399 328.0490 400 328.7332 401 329.4168 402 330.1000 403 330.7826 404 331.4646 405 332.1461 406 332.8271 407 333.5076 408 334.1875 409 334.8669 410 335.5457 411 336.2240 412 336.9018 413 337.5791 414 338.2558 415 338.9320 416 339.6077 417 340.2829 418 340.9575 419 341.6316 420 342.3052 421 342.9782 422 343.6507 423 344.3227 424 344.9942 425 345.6652 426 346.3357 427 347.0056 428 347.6750 420 348.3439 430 349.0123 431 349.6801 432 350.3475 433 351.0143 434 351.6806 435 352.3465 436 353.0118 437 353.6766 438 354.3408 439 355.0046 440 355.6679 441 356.3306 442 356.9929 443 357.6546 444 358.3159 445 358.9766 446 359.6368 447 360.2966 448 360.9558 449 361.6145 450 362.2728 451 362.9305 484 384.3602 518 405.8987 452 363.5877 485 385.0013 519 406.5242 453 364.2444 486 385.6420 520 407.1492 454 364.9007 487 386.2823 521 407.7737 455 365.5564 488 386.9220 522 408.3978 456 366.2117 489 387.5613 523 409.0215 457 366.8664 490 388.2002 524 409.6447 458 367.5207 ^^^ 388.8385 525 410.2675 459 368.1744 fl lllVilt ^26 410.8898 460 368.8277 fl tln^lcn 527 411.5117 461 369.4805 lit ^qi ^S72 ^28 412.1331 462 370.1327 495 392 0232 ^29 412.7541 463 370.7845 497 392 6588 ^30 413.3746 464 371.4358 493; '. ". '. ". '. '. '. '. '. '. ;393'.2938 531 413.9947 465 372.0867 499 393.9285 532 414.6143 466 S7Z.7370 500 394.5626 533 415.2335 467 373.3868 501 395.1963 534 415.8523 468 374.0362 502 395.8295 5S5 416.4706 469 374.6850 503 396.4623 536 417.0885 470 376.3334 504 397.0946 537 417.7059 471 375.9813 505 397.7264 538 418.3229 472 376.6287 506 398.3578 539 418.9395 473 377.2756 507 398.9887 540 419.5556 474 '377.9221 508 399.6192 541 420.1713 475 378.5681 509 400.2492 542 420.7865 476 379.2135 510 400.8787 543 421.4013 477 379.858b 511 401.5078 544 422.0157 478 380.5031 512 402.1364 545 422.6296 479 381.1471 513 402.7646 546 423.2431 480 381.7907 514 403.3923 547 423.8562 481 382.4337 515 404.0196 548 424.4688 482 383.0764 516 404.6464 549 425.0810 483 383.7185 517 405.2728 550 425.6928 20s APPENDIX II 1. OCCUPATIONAL DISEASES Because of its close connection with the compensation feature and as illustrating the type of case which will come under the act if our law is amended in a similar manner to those of other states, we are presenting in this Appendix two cases which went to the supreme court and involved a common law determination of liability for occupational diseases. (a) Tuberculosis. In Margaret R. Hansman vs. Western UniO'ii Telegraph Company, North- western Telephone Exchange Company and J. E. Treat, October 24, 1919, 174 N. W. 434, the supreme court upheld a verdict for $18,500.00 asi damages to an employe who was alleged to have contracted tuberculosis on account of improper working conditions. The opinion follows: "1. A lessor who leases property with a covenant to keep it properly heated is liable to an employe of his tenant for a negligent failure to heat properly. Following Glidden vs. Goodfellow, 124 Minn. 101. "2. The evidence sustains a finding that the defendant telephone com- pany negligently failed to heat properly premises leased to the telegraph company in the employ of which the plaintiff was. "3. The evidence does not require a finding that the plaintiff was at fault in caring for herself or in remaining at work under the conditions to which she was subjected while working for the telegraph company so as to prevent a recovery from the telephone company for its negligent failure to heat. "4. The evidence sustains a finding that the tuberculosis from which the plaintiff is suffering was the proximate result of the negligent failure of the telephone company properly to heat the premises in which she worked for the telegraph company. "5. The verdict is not excessive. Order affirmed." Action to recover damages alleged to have been sustained through the negligence of the defendant's telegraph company and telephone company. A verdict was directed in favor of the telegraph company. The jury found a verdict against the telephone company and it appeals from the order denying its alternative motion for judgment or a new trial. This case was here before, and is reported in 136 Minn. 212. "1. The plaintiff commenced work in an office ai Luverne, Minn., on January 24, 1914, in the joint employ of the telephone company and the telegraph company. In April, 1914, her work for the telephone company ceased, and from then on she worked for the telegraph company. The premises were leased by the telephone company from one Treat. In the lease, 'the lessor agrees to keep said premises heated with hot water heat during the entire term of this lease whenever artificial heat is necessary to keep said premises at a temperature of 70 degrees above zero Fahrenheit without extra cost to said lessee.' The telephone company leased the premises to the telegraph company from, about May 1, 1914, and until February, 1915, and agreed to furnish heat substantially in accordance with the terms of its lease with Treat. This brings the case in accord wltn Glidden vs. Goodfellow, 124 Minn. 101, and Glidden vs. Second Ave. Inv. Co., 125 Minn. 471 ; and for the negligence of the telephone company in fail- ing to furnish heat it was liable to the plaintiff, although she was working for the telegraph company. "2. There is sufficient evidence of the negligent failure to provide heat. It tends to show that in the winter months of 1914 and 1915, and until the company moved in February, 1915, the office was nearly constantly 209 cold and unfit tor occupancy for the plaintiff's work. The plaintiff says that in November and December, 1914, and January, 1915, the temperature ranged from 50 to 55 degrees, and rarely reached 60 degrees. In this she may be inaccurate and her statement may be an exaggeration. The evidence is ample that the room was continually cold, that complaint was made of it to the telephone company officers with whom the plaintiff came in contact, and that while some apparent effort was made to remedy conditions, there was no substantial improvement. There is evidence that some of the men avoided the office and worked elsewhere. The case is not one, if the evi- dence is believed, of an occasional and perhaps unavoidable exposure to cold, but of a continuous exposure for several months. "3. The plaintiff is now afflicted with tuberculosis and claims that th« cause of it is to be found in the conditions to which she was subjected. The defendant urges that she was herself at fault and is barred of recovery either upon the general theory of contributory negligence, or of a voluntary assumption of the risks of the conditions obtaining. The jury found to the contrary, and we can not say that its findings is not sustained. There is nothing in the living conditions of the plaintiff, nov in her care for her health, which requires a finding that she was at fault. She knew that it was very cold and uncomfortable in the office. It can not be said as a matter of law that she knew or anticipated, or should have known or anticipated such injurious results as came, or that she should have known or anticipated results at all serious. It can not be said as a matter of law that she should have abandoned her work because of the failure to heat. "4. A seriously contested question is whether the tuberculosis from which the plaintiff is suffering came from her exposure to the conditions in the office. She says that in January, 1915, she noticed some trouble in her throat and bronchial tubes, and developed a hacking or cough, and noticed somewhat of a weakening of her general health. She gradually grew weaker, and in July ascertained that she was suffering from tubercu- losis. The evidence of her family history and her condition before and while at Luverne are given in detail. Two physicians who examined the plaintiff and heard the testimony were of the opinion that her present trouble is traceable to her exposure. There is medical testimony that it is not so traceable. The defendant claims that the plaintiff had a bad family history and that she was predisposed to tuberculosis. In determining whether her present condition is ascribable to her exposure at Luverne, this claim hardly helps the defendant. Young vs. St. Paul, etc., 170 N. W. 845. Upon a consideration of the evidence we are ot the opinion that the question was for the jury. The following cases are cited as useful, but in no sense are they controlling. Keegan vs. Minneapolis, etc.. Street Railway Co., 76 Minn. 90; Decker vs. Chicago, etc., Ry. Co., 102 Minn. 99; Mageau vs. Great North- em Ry Co., 106 Minn. 375; Healy vs. Hoy, 115 Minn. 321; State vs. James, 123 Minn. 487; Glidden vs. Goodfellow, 124 Minn. 101; Wendt vs. Bowman, 126 Minn. 509 ; Young vs. St. Paul, etc., Ry. Co., 170 N. W. 845. "5. The verdict was for $18,500.00 It is claimed tihat it is excessive. Conservatively invested, it will bring a tidy income without an impairment ot the capital. The plaintiff is 27 years ot age. She was getting $40.00 per month when working for the telegraph company. The evidence favorable to the plaintiff indicates that she will always have a fight for life, and is properly a sanitarium subject. All this means an expenditure of money. She must be well cared for if she makes a winning fight. She cannot go ainong people as she could were she not afflicted with tuberculosis. She cannot expect to be the mistress of her own home. To a considerable extent she is socially ostracised. There was evidence from which the jury could find the conditions recited. We cannot say that the verdict is excessive as the result of passion or prejudice. The trial court did not think it so. "Order affirmed." (b) Inhaling Disease Germs. In O'Reilly vs. Powers Mercantile Co. et al., December 12, 1919, 175 N. W. 117, the supreme court upheld the district court in refusing damages 210 in an alleged case of occupational disease where the evidence failed to show the real cause of the plaintiff's illness and there was no evidence or neglect on the part of the defendants. The opinion follows: "In an action against an employer to recover damages for illness claimed to have been caused by inhaling disease germs, while at work in a room where fur garments were stored, as the result of the alleged negligence of the master in failing to notify the plaintiff of the dangerous condition of such room, held that the court was justified, under the evidence, in direct- ing a verdict for the defendant. "Quinn, J. Action to recover damages for illness contracted through the alleged negligence of defendants. The trial court directed a verdict in favor of the defendants at the close of plaintiff's testimony. From an order denying his motion for a new trial as to defendant Ganley Company, plaintiff appealed. "The defendant. Powers Mercantile Company, owned a four-story build- ing fronting on Fifth street in the city of Minneapolis, in which it conducted a department store. The Ganley Company is a corporation engaged in the repair of buildings in and about that city. "The Powers Company employed the respondent to make certain changes and repairs in its store, and on April 22, 1918, respondent under- took the relining of a room, located in the center of the fourth floor of the store, with ordinary tar paper. This room was approximately 14x16 feet, with a 7-foot 9-inch ceiling, and had existed and been used since 1916 as a place to store furs and fur garments received for that purpose from customers. It was sealed up tight and lined with two thicknesses of paper nailed onto the wall. The only openings into the room were two doors, one of which was kept closed. "The respondent directed the plaintiff and one Davies, carpenters in its employ, to re-line this room with paper furnished them. The work consisted in removing certain hangers which were in the way, and the loose fragments of the old paper and putting on the new. The rolls of new paper were left outside the room near the entrance and cut into strips as needed. Plaintift worked six hours on April 22d, and five hours on the following day, when he was taken sick as hereinafter outlined. "Plaintiff was a man in good health, 58 years of age, and had for nearly 40 years been engaged at carpenter, cabinet and mill work in that vicinity. He testified that while at work in this room on the afternoon of the second day he was taken suddenly ill; that his limbs became weak, perspiration came out all over his body; that he became dizzy and his eyesight became dim; that he left the room and went to the carpenter shop, where he remained until quitting time, when he went home; that he took a little supper and went to bed at about 9:00 o'clock, and awoke the next morning with a choking, strangling sensation; that he tried to drink but could not swallow, and then sent for Br. O'Brien. "Appellant contends that the walls and air of this room was impreg- nated with infection and disease germs emanating from the putrefaction of the furs and skins kept therein and from the chemical with which such furs were treated; that the plaintiff's Illness was brought about by Inhaling the same while so at work; that the respondent knew or ought to have known the condition of such room, and that it was its duty to have informed the appellant thereof and cautioned him as to the danger which might result therefrom, and because of a failure to do so, it was guilty of negli- gence. "The trial court assigned two reasons for granting the motion for a directed verdict; (1) That the evidence failed to show the real cause of plaintiff's illness; (2) that there was no evidence of neglect of either of the defendants. "It appears from the testimony that Davies continued to work in and about the room for about a week, when he was taken ill with symptoms similar to those of the plaintiif. O'Brien was the only physician who gave 211 testimony upon the trial. He testified that he was called to see O'Reilly on April 25th ; that he found him in a highly nervous condition, his voice was muffled and he had difficulty in breathing; that his trouble developed into facial paralysis; that the patient was under his care for seven weeks, dur- ing which time he visited him at his home 10 or 12 times; that thereafter the patient came to his office and was under his observation. The doctor further testified that in his opinion there was a possibility, if any of the hides were not thoroughly cured, that there might bei a chance for septic poison, or from the chemicals used in the tanning of the hides or for killing the germs that might destroy the furs a toxic condition might exist; that in his opinion the patient's condition might have been brought about either from a toxic or septic condition, or from other causes. "The witness Flynn testified that he had been in the fur business for about 30 years, three years with the Powers Company; that the room in question was built at his suggestion for the purpose of storing customers- furs; that he personally handled all the furs that went into that room; that they were thoroughly cleaned before being put there, and that nothing other than the paper was used to keep out moths and vermin; that during the busy season he was in and out of the room on an average of five or six times per day, remaining from a half to three-quarters of an hour, and that he had never contracted any illness therefrom, nor had they ever had any complaint from any of their employes working about this room on account of any ill effect therefrom. "The record is barren as to proof that respondent knew or had reason to believe that either the air or the walls of the room contained any disease germs or other dangerous infection. There was no proof that any hides not thoroughly cured were ever put into the room. Nor were chemicals of any kind ever used to protect the furs from moths or other vermin. We think the evidence justified the court in directing a verdict. "Affirmed." 212 iVn:j.'.-A