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 overexertion, 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 10 windows were replaced; and that the work involved no particular effort. Furthermore, 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 breakfast 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 condition 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 company deny that in the telephone communications, or in any other talk, relator, or the doctor, ever stated anything concerning Mr. Rinker's receiving 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 failures where previous premonitions are as insignificant 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 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 v. Brown Co. District Court, 137 Minn. 30, 162 N. W. 678, and Simmers v. Stearns Co. District Court, 137 Minn. 318, 163 N. W. 667. The cases are similar in that the injury was to some 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 dependents, and this court sustained the findings. It is quite a different proposition 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 court 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. SUPREME COURT OF MINNESOTA. STATT EX REL. NELSON DISTRICT COURT OF WABASHA COUNTY ET AL. (No. 21460)* MASTER AND SERVANT-PROCEEDING UNDER WORKMEN'S COMPENSATION ACT-CHANGE OF VENUE. Insurer's proceeding in Wabasha county to determine amount recoverable by insured's employee for accidental injury in course of employment in that county, though employe resided in Hennepin county and insurer and employer were foreign corporations, would not be transferred to that county on employe's order to show cause, as Workmen's Compensation Act (Gen. St. 1913, §§ 8216, 8225, and section 8230, subd. "m"), do not provide for change of venue, and as change of venue statutes do not apply to proceedings under such act. (For other cases, See Master and servant, Dec. Dig. § 396.) Mandamus by the State, on the relation of John Nelson, against the judge and clerk of the District Court of Wabasha County, to require transfer of a proceeding under the Workmen's Compensation Act to the District Court of Hennepin county. Order to show cause discharged. Erling Swenson, of Minneapolis, for relator. 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, are foreign corporations. The complaint was served April 1, 1919, and the matter set for hearing for May 12th. On April 15th relator served an affidavit for change of venue to Hennepin county and filed proper proof. 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 designed to be speedy and summary. No provision for a change of venue is contained therein. Section 8216, Gen. St. 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, subd. "m": 64 'The court,' as used herein, shall mean the district court which *Decision rendered, May 29, 1919. 172 N. W. Rep. 486. 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 fired, and the answer shall be filed within seven days after the service of the complaint. 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 adjustment. 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 hardship for either party. That change of venue statutes have no application to workmen's compensation proceedings was virtually decided in State ex rel. v. District Court of St. Louis county, 129 Minn. 423, 152 N. W. 838. The order to show cause is discharged. SUPREME COURT OF NEBRASKA. MORRIS & CO. V. CUSHING. (No. 20677)* MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW -INJURY "ARISING OUT OF AND IN COURSE OF EM-, PLOYMENT." Action under the Workmen's Compensation Law, as amended by chapter 85, Laws 1917. Under the facts set forth in the opinion, held, that the accident complained of arose out of and in the course of the workman's employment. (For other cases, See Master and Servant, Dec. Dig. § 375(1).) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) Appeal from District Court, Douglas County; Day, Judge. Action by Michael Francis Cushing, a minor, against Morris & Co. for compensation under the Workmen's Compensation Law, after denial of application for compensation. From an award of compensation Morris & Co., termed plaintiff, prosecuted an appeal to the district court, and from a judgment for the employe, termed defendant, Morris & Co. appeals. Affirmed. James C. Kinsler, of Omaha, for appellant. T. A. Donahoe and M. L. Donovan, of Omaha, for appellee. MORRISSEY, C. J. Action under sections 3642-3696, Rev. St. 1913, as amended by chapter 85, Laws 1917, known as the "Workmen's Compensation Law." Michael Francis Cushing, a boy of 16, while employed as a common laborer in and about the packing plant of Morris & Co. suffered the loss *Decision rendered, May 3, 1919. 172 N. W. Rep. 691. Syllabus by the Court. of four fingers. He made application for compensation under the statute. The employer denied liability, whereupon Cushing filed a petition with the_compensation commissioner, as provided in section 15, c. 85, Laws 1917. On hearing, the compensation commissioner awarded the employe compensation at the rate of $10 per week for 100 weeks. Morris & Co. instituted this proceeding, which is in the nature of an appeal from the order of the compensation commissioner, in the district court. Under the peculiar provisions of the statute the titles of the parties are transposed, Morris & Co. being designated as plaintiff and Cushing being designated as defendant. From a judgment in favor of defendant, Morris & Co. has prosecuted an appeal to this court, where the parties retain the same titles they had in the district court. The employment and the injury are admitted. There is no complaint as to the amount awarded, provided defendant is entitled to any award. Plaintiff alleges, however, that Cushing had departed from the line and scope of his employment, and that his accident was not one arising out of and in the course of his employment. In April, 1917, Cushing was employed by one of plaintiff's foremen, who, when a witness for plaintiff, gave the boy's duties as follows: "His duties were to carry the boards from the saw, and carry boards from the printing press, and when there would not be any work of that kind to do he was supposed to truck boxes to the various departments and handle lumber and sweep up the floor, in fact, do anything in the line of common labor around the shop." The boy continued in this. line of employment until the day of the injury. On that morning he was directed to assist in unloading a car of lumber that was to be used in the box department where the boy worked. He remained during the forenoon at that task. In the noon hour he ate his luncheon in the box factory. When the hour arrived for the men to resume work, he was met by a laborer from the cooper's shop, who said he would like to have defendant cut some hoops for him. Defendant consented to do this work, and testifies : "I thought if he needed the hoops and wanted to get the barrels out right away, I would saw them." He took a coil of hoops, went into the box factory where he was generally employed, and began to cut the hoops with a hatchet. While he was thus employed, Mr. McCleary, the foreman in the oleomargarine department, came into the room and stated that he wanted a box. There is some discrepancy in the testimony of defendant, the foreman, and the elevator operator, who was present, but it appears that this foreman made it known that he needed a box, and inquired if he could have one made. The elevator operator testifies that he suggested that defendant might make one; that defendant consented, and began work on the box. During defendant's employment, a considerable portion of his time had been taken up in carting boxes away from a circular saw, which was in use in the factory, and generally operated by a "straw boss" named Altman. Defendant now undertook to operate this saw in order to prepare boards for the box. While thus engaged, his hand came in contact with the saw, and he suffered the injury for which recovery is sought. Plaintiff contends that defendant was not acting within the scope of his employment in undertaking to make the boxes; that he had no right to undertake the operation of the saw; and that had he followed the instructions of his foreman he would then have been engaged in unloading lumber from the car. Defendant testifies that on one or two other occasions he had used the saw under instructions from Altman, and his testimony in this respect is not disputed. The record shows that he was subject to the orders of different foremen. These several foremen may have differed in rank, but defendant had during his employment taken orders from each of them. He was only a boy of immature years. As shown by the testimony quoted of the foreman who employed him, it was his duty to "do anything in the line of common labor around the shop.". This being true, he cannot be held to the strict accountability of his acts. Accustomed as he was to take orders first from one foreman and then from another, when the foreman of the oleomargarine department signified his desire that defendant make a box, he might well assume that it was his duty to obey, and that that order countermanded the order given by the other foreman earlier in the day to assist in unloading the car of lumber. It is clear that he was engaged about the premises where his services required his presence, during proper hours of service, and that his labor was calculated to promote the master's business. He had theretofore used the saw under the eye, if not under the direction, of his immediate foreman, Altman, and at the time the accident occurred he was carrying out the order, implied, if not directly expressed, of one of plaintiff's foremen, who stood watching him as he worked. The evidence sustains the finding of the district court, and the judgment is affirmed. Cornish and Sedgwick, JJ., not sitting. COURT OF APPEALS OF NEW YORK. PHONVILLE V. NEW YORK & CUBA S. S. CO. ET AL.* 1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— AMOUNT OF COMPENSATION. An employe earning $35.09 a week, who has lost three-fourths of his right hand, is entitled as compensation to $20 a week for 183 weeks, and not to $15 a week for 244 weeks, since the extent of the employee's injuries limits, not the amount of payments, but the time during which they are to continue. (For other casses, See Master and Servant, Dec. Dig. § 385 (12). 2. MASTER AND SERVANT WORKMEN'S COMPENSATIONCOMPENSATION. Permanent loss of the use of the hand, arm, foot, leg, or eye is equivalent to the loss of the organ itself. (For other cases, See Master and Servant, Dec. Dig. § 385 (11). Appeal from Supreme Court, Appellate Division, Third Department. Proceedings under the Workmen's Compensation Law (Consol. Laws, c. 67) by William E. Phonville for compensation for injuries, opposed by the New York & Cuba Steamship Company, employer, and the Travelers' Insurance Company, insurance carrier. From an order of the Appellate Division (173 N. Y. Supp. 919) modifying, and as modified unanimously affirming, an award by the State Industrial Commission, the employer and insurance carrier appeal. Order of Appellate Division reversed, and award of State Industrial Commission affirmed. See, also, 174 N. Y. Supp. 917. *Decision rendered. April 22, 1919. 123 N. E. Rep. 258. |