ant paid plaintiff, as compensation, $264, being $12 a week, and also all hospital and medical services, which amounted to $198.50 additional.

At the time of the injury plaintiff was working on the upper part of a one-story brick building. His work consisted in taking the wheelbarrows, loaded with bricks and said to weigh about 30 pounds, from a hoist or elevator, and wheeling them to the different parts of the building as needed by the workmen. Plaintiff testified that the scaffolding gave way just as he was about to remove a wheelbarrow, and that he fell with the elevator about 30 feet. Upon examination it was discovered that he received an injury to the "third lumbar vertebra." Plaintiff contends the injury is permanent.

To determine this point expert testimony was introduced by the parties. On the part of plaintiff a physician testified that his examination showed the spine to be normally flexible. He further testified.

"Q. And this spine, then, is normally flexible now, or just as flexible as any spine would be that had never been injured? A. It seems to be." A doctor called by defendant on cross-examination testified:

"Q. Did you find any evidence at the present time of any injury to his back? A. No. Q. And is it not a fact that you find him to be in perfect physical condition at the present time? A. As far I could make out by my examination. Q. So that, if the X-ray shows some injury at some time, it is true that he has recovered from that injury now? A. As far as I can determine by an examination."

* * *

He also testified that he did not find any abnormal conditions. When the case was tried, plaintiff went through a course of bending exercises in the presence of the trial judge, so that the court seems to have been well advised. At the time of the trial plaintiff was employed by an outfitting company at Omaha as a bill collector, and his work required him to travel on the street cars from place to place about the city. For this work he was receiving $17 a week for a working day of 4 hours. It may be added that when plaintiff fell he sustained a fractured wrist, but in the oral argument and in the briefs his counsel says that, the wrist having become normal, no claim was made for additional compensation on that account

In view of the finding of the compensation commissioner and the judgment of dismissal by the district court, we do not think the case should be reversed. There is some conflict in the testimony as to the condition at the time of the trial, but there is sufficient to support the judgment. Miller v. Morris & Co., 101 Neb. 169, 162 N. W. 417. Finding no reversible error, the judgment is affirmed. Rose, J., not sitting.

SUPREME COURT OF NEBRASKA.

MUNCASTER
ບ.

GRAHAM ICE CREAM CO. ET AL. (No. 20121.)*

MASTER AND SERVANT -- SERVANT'S ACTION AGAINST THIRD PARTY-ATTACHMENT.

Under the provisions of section 3659, Rev. St. 1913, an employee has the right to sue a third party for damages, even though his employer

Decision rendered, March 27, 1919. 172 N. W. Rep. 52. Syllabus by the Court.

has settled with the employee in accordance with the provisions of the Workmen's Compensation Act, if he makes his employer a party to the action.

(For other cases, see Master and Servant, Dec. Dig. § 389.)

Appeal from District Court, Douglas County; Redick, Judge. Action by Joshua Muncaster against the Graham Ice Cream Company and the Baker Ice Machine Company. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Gray & Brumbaugh, of Omaha, for appellant.
J. E. von Dorn, of Omaha, for appellees.

ALDRICH, J. Plaintiff commenced an action against defendant to recover damages for personal injuries received growing out of the alleged negligence of the Graham Ice Cream Company. Plaintiff was an employee of the Baker Ice Machine Company, who had contracted to install some machinery for the Graham Ice Cream Company. The ice machine company settled with the plaintiff under the provisions of the Workmen's Compensation Act (Rev. St. 1913, §§ 3642-3696), and now refuses to proceed further and to commence an action for damages against the Graham Ice Cream Company, on behalf of the plaintiff. So plaintiff, as is his right under the statute, commenced an action against both defendants to recover damages.

Now the issue is: Can the plaintiff maintain this action under the provisions of section 3659, Rev. St. 1913? It is claimed that plaintiff suffered his personal injuries and damages growing out of the carelessness and negligence of the Graham Ice Cream Company, which is a third party under the provisions of the Workmen's Compensation Act. In other words, after having received compensation under this act, does that bar plaintiff from commencing an independent action in damages against the Graham Ice Cream Company? Under the provisions of section 3569, the Legislature intended beyond question to give to the injured employee a right of action where the injury complained of grew out of carelessness or negligence of a third party, and we hold that plaintiff has the right to maintain this cause of action under section 3659, and is bound under its provisions to strictly follow the procedure provided for, and in case of recovery of damages the funds must be distributed in the matter of expense, etc., under the provisions of this act. Evidently the intent of the Legislature was not to limit an employee to the recovery only of the Workmen's Compensation Act; but when, as a matter of justice, the employee was entitled to recover a greater compensation than is provided for in the act, then he had the right to proceed under the provisions of section 3659, and to recover as much as a jury would warrant for his damages and injuries, and, after so recovering, to deduct there from the necessary expenses which his employer had been to in paying out under the provisions of the act. In other words, the plain provisions of this act must be carefully and accurately followed in all of its provisions. It is valid, and the plaintiff is entitled to whatever provisions of compensation there may be growing out of this act. The Baker Ice Machine Company is simply subrogated to the position of the plaintiff herein, and in case the Baker Ice Machine Company, after having settled with the employee under the Workmen's Compensation Act, refuses to go ahead any further, and washes its hands of the whole proceeding, then plaintiff should not be prevented from proceeding under the provisions of this act, as he has done in this case.

This case, therefore, must be reversed and remanded for further proceedings.

Reversed and remanded.

Cornish, J., not sitting.

LETTO, J. (concurring). I concur for a different reason. My_view is that plaintiff's right of action, if any, against the Graham Ice Cream Company, a third person with whom he had no contractual relations, is not given by the Workmen's Compensation Act, and that section 3659, Rev. St. 1913, allowing the subrogation of the employer, is merely to provide for the reimbursement of the employer for payments made by him to the injured person, under the provisions of that act.

If the employer, after paying the amount of the statutory compensation, refuses or neglects to bring his action against the negligent third party, this does not deprive the injured person of his right of action against the wrongdoer; but he should, as in this action, make his employer and the alleged wrongdoer both parties to the action. In such case he is entitled to recover his damages from the third party, less the compensation paid, as provided in section 3659, and the employer, if he asks for the relief, will be entitled to a judgment equal to the amount of the compensation he has paid. Smale v. Wrought Washer Mfg. Co., 160 Wis. 331, 151 N. W. 803; Otis Elevator Co. v. Miller & Paine, 240 Fed. 376, 153 C. C. A. 302.

This section should be construed, not to defeat the injured person, but to do justice between him and his employer.

Sedgwick, J., agrees with this concurrence.

SUPREME COURT OF OKLAHOMA.

RAULERSON
บ.

STATE INDUSTRIAL COMMISSION OF OKLAHOMA ET AL, (No. 10496.)*

MASTER AND SERVANT-INDUSTRIAL COMMISSION'S DECISION ON FACTS NOT REVIEWABLE.

In a suit instituted in this court to review an award of the state Industrial Commission, the suit must be to review an error of law, and not an error of fact. Their decision as to all matters of fact is final. (For other cases, see Master and Servant, Dec. Dig. § 417[7] )

Original suit in the Supreme Court by John Raulerson appealing from an award of the State Industrial Commission of Oklahoma on the theory that it erred in not allowing adequate compensation for personal injury against the Tulsa Boiler & Sheet Iron Works and the Kansas Employees Interinsurance Exchange. Dismissed.

* Decision rendered, Sept. 16, 1919. 183 Pac. Rep. 880. Syllabus by the Court.

་

Wilson, Tomerlin & Buckholtz, of Oklahoma City, for plaintiff.

S. P. Freeling, Atty. Gen.. R. E. Wood, Asst. Atty. Gen., and Twyford & Smith, of Oklahoma City, for respondents.

HIGGINS, J. Suit was instituted in this court, by plaintiff, wherein he complains of an award of the State Industrial Commission, for the reason that the award is inadequate to compensate him for the injuries received by him.

He states that he was employed by the Tulsa Boiler & Sheet Iron Works, and while in its employ sustained an injury to his foot; that after his injury a settlement was had with him, but, owing to his unmaturity of age, he being a minor, the settlement was inadequate; that the settlement was confirmed by the commission; that thereafter he discovered that he was more or less permanently injured, made application to the commission to have the award set aside, whereupon, by order of the commission, the case was reopened, and upon further hearing the commission made an order, denying the application to set aside the award previously made, whereupon this suit was commenced.

The defendant contends that the award by the commission, in passing upon matters of fact is final and not subject to a suit of this kind. In section 10, art. 2, of chapter 246, Session Laws 1915, in defining the powers of the State Industrial Commission, it is provided:

"The decision of the commission shall be final as to all questions of fact, and except as provided in section 13 of this article, as to questions of law."

In Board of Commissioners v. Barr, 173 Pac. 206, it is held: "Under the provisions of section 10, art. 2, of the Workmen's Compensation Act * the decision of the State Industrial Commission

is final as to all questions of fact."

This suit is instituted upon the theory that the commission has erred in not allowing adequate compensation; that the wounds inflicted justify a greater compensation. This is a quqestion of fact, and the law as laid down in Board of Commissioners v. Barr, supra, is controlling. Therefore this suit is hereby dismissed.

SUPREME COURT OF OKLAHOMA.

LUSK ET AL.

ข.

BANDY. (No. 9127.)*

1. MASTER AND SERVANT-CASE BY PLEADING AND EVIDENCE WITHIN FEDERAL EMPLOYERS' LIABILITY ACT CONTROLLED THEREBY,

A case which by allegation and proof is brought within Employers' Liability Act April 22, 1908, c. 149, 35 State. 65 (U. S. Comp. St. §§ 86578665), is controlled by that act. although its provisions may not have been referred to in express terms in the pleadings.

(For other cases, see Master and Servant, Dec. Dig. § 256[1].)

* Decision rendered, Apr. 29, 1919. Rehearing denied, Oct. 7, 1919. 184 Pac. Rep. 144. Syllabus by the Court.

Error from District Court, Pontotoc County; J. W. Bolen, Judge. Action by Francis Bandy, nee Francis Jones, administratrix of the estate of Clay Jones, deceased, against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Verdict and judgment for plaintiff, motion for new trial overruled, and defendants bring error. Affirmed.

W. F. Evans, of St. Louis, Mo., R. A. Kleinschmidt, of Oklahoma City, and Jones & Foster, of Muskogee, for plaintiffs in error.

Robt. Wimbush and W. C. Duncan, both of Ada, for defendant in

error.

JOHNSON, J. This action was commenced on the 23d day of December, 1915, in the district court of Pontotoc County, by plaintiff, under the name of Francis Jones, as administratrix of the estate of Clay Jones, deceased, to recover of the defendants damages for the alleged wrongful death of the said Clay Jones. The action was instituted under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The petition, exclusive of caption and formal allegations, is as follows:

"That the defendants are the duly appointed, qualified, and acting receivers of the St. Louis & San Francisco Railroad Company, a corporation, and that said receivership is pending in the District Court of the United States for the Eastern Division of the Eastern District Court of the State of Missouri, and as such receivers the defendants are in charge of the property of said railroad company, said property consisting, among other things, of railroads, cars, stations, shops, roundhouses, turntables, engines, etc. That said receivers are operating said railroad, a line of which passes through the state of Oklahoma in the county of Pontotoc, and a line of which extends from Denison in the state of Texas, to the city of Sapulpa, in the state of Oklahoma, and from the city of Sapulpa in the state of Oklahoma, to the city of Monett in the state of Missouri, and that there are agents of the defendants in Pontotoc County upon which service of summons may be had.

"Second. Plaintiff further alleges that heretofore, to wit, on the 3d day of November, 1915, the plaintiff's decedent. Clay Jones, was in the employ of the defendant's receivers in the capacity of a workman and boiler washer in the town of Francis, state of Oklahoma; that on said day and date, and for some time prior thereto, the said decedent was engaged as a boiler washer in washing boilers of engines belonging to the defendants receivers, which said engines were used by the defendants in both interstate and intrastate commerce and traffic from the town of Francis, state of Oklahoma, to the town of Denison, state of Texas, and points within the state of Missouri along defendants' line of railroad, said points being to this plaintiff unknown.

"Third. Plaintiff further alleges that while said decedent was so employed as hereinbefore set out in paragraph 2 of this petition, and for a long time prior thereto, the defendants receivers owned and operated in their yards at Francis, Okla., a turntable; that said turntable was used and operated by the defendants for the purpose of turning defendants' engines, which said engines were used by the defendants receivers in transporting freight and passenger cars from the town of Deinson, to the town of Francis, and from the town of Francis to the town of Denison, and to ther points both north and south of the town of Francis, which points are to this plaintiff unknown.

"Fourth. Plaintiff further alleges that it was the duty of her decedent. Clay Jones, to work hours a day for the defendants, and that his day's work terminated at 7 o'clock in the evening, and under the rules and regulations prescribed by the defendants, their agents, servants, and