sumed to have accepted the provisions of this act. * * * Any employer commencing business subsequent to August 1, 1915, may make his election not to become subject to the provisions of this act at any time prior to becoming an employer of four or more employees, in a common employment.

* *

Considering together the various sections and subsections above referred to, they must be held to provide that an employer is subject to the provisions of the act, without his election, if he employ four or more persons in the same business, or if he is an employer of "four or more employees engaged in a common employment."

It seems clear that the manufacture of brick, in the sense that material is made in to brick, and the procuring of material to be used in such manufacture, together constitute but one business or employment.

The commission found, and the evidence supports the finding, that the silica mine was operated by Funk "in connection with his brick business in the city of Wray." The evidence shows that the employer operated a brick manufacturing plant and brick yard in Wray, and that about 20 per cent. of the vc ume of material mined from the silica bed or bank operated by Funk, and at which Sam and William Gaines were working, was used by him in the manufacture of brick at such plant or yard. The evidence shows, and it is not disputed, that more than four persons were employed by Funk in his business which involved the manufacture of brick and the mining of silica used in such manufacture. Those mho were mining silica and those working in the brick yard at Wray were each and all together engaged in a common employment, with n the meaning of the expression "common employment," as used in the Workmen's Compensation Act. The reason is that the purpose of the work of each was a common one; they were working to accomplish the same general end, the manufacture of brick. See definitions of "common employment" in 1 Words and Phrases (2d Series), p. 808.

Under the views expressed in this opinion, there is no ground shown in the record upon which the order and award of the Commission should be set aside. For the reasons above indicated, the judgment of the district court is reversed, and the cause is remanded, with directions to affirm the order and award of the Industrial Commission.

Reversed.

Denison and Burke, JJ., dissent.

FRANK v. DEEMER STEEL CASTING CO.

(Superior Court of Delaware. New Castle. June 4, 1920.)
110 Atlantic Reporter, 561.

MASTER AND SERVANT-COMPENSATION FOR INJURIES
HELD PROPERLY REDUCED.

The Industrial Accident Board held justified by the evidence and to have authority under Workmen's Compensation Law, §. 133, to order injured employee to return to work for employer at wages offered, and under section 103, subsec. "b," to reduce compensation under the law to half the difference between wages earned before injury and those thereafter offered.

(For other cases, see Master and Servant, Dec. Dig. § 419.)
Rice and Heisel, JJ.. sitting

William H. Cooper, of Wilmington, for appellant.
Herbert H. Ward, of Wilmington, for appellee.

Proceedings under the Workmen's Compensation Act before the Industrial Accident Board (No. 9131, March 17, 1920), by Deemer Steel Casting Company, employer, against Mike Frank, employee, for review of agreement between the parties as to compensation for injuries sustained by Frank. The industrial Accident Board diminished the compensation, previouly agreed upon, and the employee appeals.

Award on review affirmed.

At the time Frank was injured and for which he is receiving weekly compensation he was employed as an ordinary laborer about the plant of the appellee company.

This is an appeal by Mike Frank from the award made on review by the Industrial accident Board diminishing his weekly compensation, previously agreed upon. The case originally came before the Industrial Accident Board, October 14, 1919, for commutation of the then present value of the compensation agreed upon, to wit: $10.50 per week based on an average weekly wage of $21.00 per week, etc. The board made the commutation prayed for. From the award the Deemer Steel Casting Company appealed to the Superior Court for New Castle County, and on December 13, 1919, the court reversed the award, holding that the board erred in classifying Frank's injuries and in commuting the weekly payments agreed upon. Deemer Steel Casting Co. v. Mike Frank, 7 Boyce, -, 108 Atl. 283.

Subsequently, February 19, 1920, the Deemer Steel Casting Company petitioned the Industrial Accident Board to review the compensation agreed upon on the ground that the incapacity of the injured employee had diminished. At the hearing the company offered to take Mike Frank back in its employment, and give him steady work at the rate of twentyfive cents per hour for fifty-two and one-half hours per week. The president of the company testified among other things:

"I told him [Mike Frank] after he was hurt that at any time he got so he wanted to work we would give him something to do around the plant at twenty-five cents an hour picking up nails or scrap out of the sand for fifty-two and one-half hours per week, at which he would be permanently employed. That Mike Frank could earn the

amount they offered to pay him.

Dr. McEntee testified that Frank was able to do the work offered to him. Counsel for Frank made application for a continuance of the case which the board refused to grant unless it could be shown that Frank was not able to do the kind of work offered. It was contended for Frank that the fact of the offer of the company to take him back in its employment and pay him for such work as he was able to do about its plant did not, in itself, establish the earning power of Frank, and that he should be allowed to introduce evidence as to his general earning power. The board made the following informal order, dated the seventeenth day of March, 1920:

"Mike Frank is ordered to go back to work next Monday with Deemer Steel Casting Company, and compensation is to be paid up to and including Sunday, March 7. Thereafter and while he is in the employ of Deemer Steel Casting Company at a wage of thirteen dollars and twelve and one-half cents per week, the compensation payable to Mike Frank shall be fifty per centum of the difference between twenty-one dollars per week, wages earned at and prior to the date of injury and thirteen dollars twelve and one-half cents, the amount at which he goes to work, or three dollars ninety-four cents per week, and a formal order shall be made to this effect."

And also made the following formal order.

"(1) That the payment of compensation heretofore ordered to be paid to Mike Frank at the rate of ten dollars fifty cents per week be terminated as of March 7, 1920; (2) that from the period beginning March 8, 1920, and until otherwise ordered by this board, or terminated by the Delaware Workmen's Compensation Law of 1917,' as amenedd, compensation should be paid by Deemer Steel Casting Company to Mike Frank at the rate of three dollars ninety-four cents per week."

PER CURIAM. The court believe it is not necessary to determine the general earning power of the injured employee in cases where work is offered suitable to his capacity, by the employer, for the reason that under section 3193nn, Code 1915, section 133 of the Delaware Workmen's Com'pensation Law of 1917, as amended, it is provided:

"If an injured employee refuses employment suitable to his capacity, procured for him he shall not be entitled to any compensation at any time during the continuance of such refusal, unless in the opinion of the Industrial Accident Board, such refusal was justifiable. * *

Section 103, subsec. "b." of the act provides :

"For disability for work partial in character (except the particular cases mentioned in the next succeeding subsection [c] of this section), fifty per centum of the difference between the wages received by the injured employee before the injury and the earning power of the employee thereafter, but such compensation shall not be more than fifteen dollars pe. week. This compensation shall be paid during the period of such partial disability for work, not, however, beyond two hundred and eigh'y-five weeks. Should total disability for work be followed by partial disability for work,the period of two hundred and eighty-five weeks mentioned in this subsection (b) shall be reduced by the number of weeks during which compensation was paid for such total disability."

We think that the Industrial Accident Board was justified by the evidence and had the power and authority under section 133 to order Mike Frank. the claimant, to go to work for the Deemer Steel Casting Company, at the employment procured which was suitable to his capacity for work, and under section 103, subsec. "b" to make an order reducing his compensation from ten dollars fifty cents per week to three dollars ninetyfour cents per week, until otherwise ordered by said board or terminated by the Delaware Workmen's Compensation Law of 1907, as amended.

For the reasons stated, the award and order of the said board is in all things affirmed; and it is ordered that a copy of this decision be filed with the prothonotary of this court, and that the prothonotary shall file a certified copy thereof with the Industrial Accident Board.

It is further ordered that the costs of this appeal be taxed against the Deemer Steel Casting Company, the appellee.

STOKES v. MORRIS & CO. (No. 22533.)

(Supreme Court of Kansas. July 10, 1920.)

191 Pacific Reporter 264.

(Syllabus by the Court.)

MASTER AND SERVANT-NEW TRIAL HELD WARRANTED ON GROUND THAT CLAIMANT WAS NOT ENTITLED TO COMPENSTION AS WIFE.

A woman, who claimed to be the wife and sole dependent of a deceased workman, recovered judgment for his death against his employer under the Workmen's Compensation Act. The woman died, and after her death the judgment was revived in the name of her administrator and that of the deceased workman, and the administrator and guardian of a minor child of the deceased was substituted for the plaintiff. On a motion for a new trial, it was shown that the plaintiff was not the wife of the deceased workman, that another woman then living was his wife, and the plaintiff had knowledge of that fact. Held, that the judgment should have been set aside, and that a new trial should have been granted.

(For other cases, see Master and Servant, Dec. Dic. § 4111⁄2, New, vol. 5A Key-No. Series.)

Appeal from District Court. Wyadnotte County.

Action by Lillie Stokes, as widow of Major Stokes, deceased employer against Morris & Co., employer. Judgment for plaintiff, and after her death action was revived in the name of Earl R. Gilbert, public administrator and administrator of Lillie Stokes and Major Stokes, and as administrator and guardian of Ralph Stokes, Motion for new trial on the ground of newly discovered evidence denied, and defendants appeals. Reversed, and new trial granted.

C. W. Trickett, of Kansas City, Kan., for appellant.
McCanles, Thompson & Gorsuch, of Kaffsas City, Mo., for appellee.

MARSHALL, J. The defendant appeals from a judgment against it under the Workmen's Compensation Act (Gen. St. 1915. §§ 5896-5942). Major Stokes was injured November, 1917, while he was an employee of the defendant, and according to the verdict of the jury died as a result of that injury. The plaintiff brought the action as the widow of Major Stokes. The defendant came within the operation of the Workmen's

Compensation Act.

The serious question presented arises out of the order overruling the defendant's motion for a new trial. One of the grounds of that motion was newly discovered evidence material to the defendant, which it could not with reasonable diligence have ascertained and produced at the trial. The newly discovered evidence tended to show that the plaintiff was not the wife of Major Stokes at the time of his injury and death. An agreed statement of facts filed on the hearing of the motion for a new trial recited that Major Stokes was married to Lillian Wembly, another woman, January 9, 1909; that in February, 1918, he filed an action for divorce against his wife, Lillian Stokes, formerly Lillian Wembly, but that action had not been tried, nor disposed of, but was pending, on the date of the death of Major Stokes, June 28, 1918; tha Major Stokes and his wife, Lillian Wembly Stokes, separated, and that after such separation the plaintiff and Major Stokes lived together when the plaintiff took the name Stokes, and afterwards went by that name. The affidavit of Lillian Wembly Stokes was filed, in which she stated that she was married to

Major Stokes at Newton, Kan., and was the mother of Ralph Stokes and Homer Stokes, children of Major Stoles; that Major Stokes never got a divorce from her; and that he and she were husband and wife until his death. The affidavit of the attorney who filed the petition for a divorce for Major Stokes was presented, and it tended to prove that the plaintiff, Lillie Stokes, knew that Major Stokes had a living wife.

The evidence produced was sufficient to establish the fact that the plaintiff was not the w fe of Major Stokes at the time of his death. If she was not his wife, and he had a wife living at that time, the plaintiff cannot recover compensation in this action for herself or for the dependent members of the family of Major Stokes. Part of the statute under which the plaintiff seeks to recover reads:

"'Dependents' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. 'Members of a family,' for the purpose of this act, means only widow or husband, as the case may be, and children." Laws 1917, c. 226, § 2, subd. (j).

If the evidence produced on the motion for a new trial was true, the plaintiff was not the wife of Major Stokes at the time of his injury and death, and was not then a member of his family within the meaning of the Workmen's Compensation Act. She cannot recover compensation as the wife of Major Stokes; neither can she recover in any other capacity, because she does not come within any of the provisions of the act. Ellis v. Coal Co., 100 Kan. 187, 163 Pac. 654, supports this conclusion. See, also, Armstrong v. Industrial Commission, 161 Wis. 530, 154 N. W. 844; Hall v. Industrial Commission, 165 Wis. 364, 162 N. W. 312, L. R. A. 1918D, 829. 1 Honnold on Workmen's Compensation, § 75, and notes.

The plaintiff cites authorities which hold that a woman who innocently lives with a man whom she believes to be her husband, but who has a wife living, can recover compensation. We have two difficulties in following these authorities, the first of which is our statute, of which a part has been quoted, and the second of which is that in the present case the evidence tended to show that the plaintiff knew that Major Stokes had a wife living.

After judgment was rendered in this action, the plaintiff died, and the action was revived in the name of Earl R. Gilbert, public administrator and administrator of the estates of Lillie Stokes and of Major Stokes, and Earl R. Gilbert, as such administrator and as guardian of Ralph Stokes, was substituted for the plaintiff. It is argued that the substitution was proper and avoided the consequences of a judgment having been wrongfully obtained in favor of the plaintiff. It is also argued that the defendant has waived its right to object to the substitution by filing its motion for a new trial instead of objecting to the substitution. It is further argued that a defect of parties or a want of proper parties cannot be presented or reached by a motion for a new trial. The fault in this argument lies in the fact that the judgment was improperly obtained, that the plaintiff had no right of action, and that the defendant may have valid defenses against all parties for whose benefit a judgment might be obtained. On the showing made, a new trial should have been granted, and the defendant should have been permitted to set up any defense that it may have against the substituted party and against those for whose benefit a judgment might be obtained by the substituted party.

The judgment is reversed, and a new trial is granted.

All the Justices concurring.