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. V. 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].) Rehearing denied, Oct. 7, 1919. 184 * Decision rendered, Apr. 29, 1919. 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 employees, who had supervision of said decedent, it was the duty of said decedent to report to one of the defendants' agents, servants, and employees and to 'register off' for the day's work; that said decedent had been accustomed to making such report and 'register off on each and every day that he worked for a long time prior to the 3d day of November, 1915. "Fifth. Plaintiff further alleges that on the said 3d day of November, 1915, at about the hour of 7 o'clock, said decedent had, during all said 3d day of November, 1915, been at work in the roundhouse or engine house washing boilers of engines belonging to the defendants; said engines having on said 3d day of November, 1915, and a few days prior thereto, been used by defendants in transporting its trains and cars from Francis, Okla., to Denison, Tex., and from Denison, Tex., to Francis, Okla., and it was contemplated by defendants, their agents, servants, and employees to again use said engines for the purpose of transporting and pulling its trains from Francis, Okla., to Denison, Tex., and from Denison, Tex., to Francis, Okla.; and that said night was very dark, and that plaintiff's decedent, upon leaving said enginehouse, fell into the pit in which said turntable was located, striking his head against the cement floor or bottom of said pit, fracturing his skull and breaking his neck, from which wounds said decedent then and there instantly died. Plaintiff further alleges that a short time prior to 7 o'clock, the time prior to which decedent was required to 'register off' for the day, one of the agents, servants, and employees of the defendants receivers, notified said decedent that he would be required to return after supper and do extra work in his capacity as a boiler washer for said defendants. "Sixth. Plaintiff alleges that said turntable was situated north and east of the engine house or place where said decedent was required to work, and about 20 feet therefrom, and that it was necessary for said decedent to pass around and near said turntable in performing his duties and especially in going to the place where he was required by defendants to 'register off' from the day's work. "Seventh. That the defendants receivers, their agents, servants, and employees, well knew that the said turntable and the pit in which the same was situated was a dangerous place,, and that all the defendants' agents, servants, and employees engaged in work similar to the work that said decedent was engaged in necessarily had to pass about, around, and near the said turntable, all of which was known to the defendants receivers, their agents and employees, and that said defendants receivers, their agents, servants, and employees, were guilty of gross neglect towards its workmen, and especially toward said decedent, in failing to keep and maintain any lights of any character in or about said turntable, and in or about the pit in which said turntable was situated, and that said neglect was the immediate and proximate cause of said decedent falling into said pit, and was the immediate and proximate cause of his death. "Eighth. Plaintiff further alleges that said decedent was comparatively a young man, being at the time of his death about 37 years of age and capable of earning the sum of $2.50 per day by his labors; that he was attentive to his work and reasonably expected to become more efficient in his services and to earn greater sums of money per day; and that said decedent was a strong, healthy man, and with a reasonable expectancy of living to an old age, to wit, the age of 74 years. "Ninth. Plaintiff further alleges that this plaintiff, administratrix, is the surviving wife of said decedent, and Myrtle, about the age of 12 years, Alger, about the age of 9 years, and Scott, about the age of 5 years, and Opal, of about the age of 15 months, are the surviving children of this plaintiff and said decedent, and that the children and this plaintiff are the sole and only surviving heirs at law of said decedent, and that the said decedent contributed his earnings to the support and maintenance of this plaintiff and said children, and would have continued to have contributed to their support for and during the balance of his life. "Tenth. Plaintiff alleges that by reason of the acts and injuries and negligence of said defendants receivers, their agents, servants, and employes, this plaintiff and her said children have been damaged in the actual sum of $25,000. "Wherefore, premises considered, plaintiff prays that said defendants and each of them be cited to answer this petition, and, on final hearing hereof, that she as administratrix have judgment for the sum of $25,000 for the use of herself individually and her said children, Myrtle, Alger, Scott, and Opal, and that said judgment be declared a lien upon the property and funds of the St. Louis & San Francisco Railroad Company, a corporation, which may be in the hands of the defendants receivers, and that the same be established as a claim against said property and money, and for such other relief to which she may show herself entitled, whether in law or equity." Thereafter, to wit, on October 2, 1916, the defendants filed their answer to said petition, which answer presented the following defenses, to wit: First. General denial. Second. Special denial of negligence, and allegation that the death of said intestate was caused solely and entirely by his own negligence and want of care. Third. Contributory negligence. Fourth and Fifth. Assumption of risk. On November 10, 1916, plaintiff filed her reply, consisting of general denial of new matter alleged in the answer. The cause having been submitted to the jury, they returned into court the following verdict, to wit: "We the jury drawn, impanneled and sworn in the above-entitled cause, do upon our oaths find for the plaintiff and assess the damages: For Francis Bandy, formerly Jones.. For Opal Jones the sum of.. .$ ... 200 00 1,000 00 1,200 00 1,400 00 1,800 00 $5,600 00 "W. C. Lee, Foreman." Thereafter, on the 1st day of December, 1916, and within three days after the rendition of this verdict, the defendants filed in said cause their motion for new trial, which said motion was by the court overruled, and defendants excepted. Thereupon case-made was duly prepared, served, and settled as required by law, and the cause was brought to this court for review by petition in error. The errors relied upon are as follows: First. The court erred in overruling defendants' demurrer to plaintiff's evidence. Second. The court erred in overruling defendant's motion for peremptory instructions. Third. The court erred in refusing to give to the jury the several written instructions requested by defendants and in refusing to give each of said instructions separately and severally. Fourth. The court erred in giving to the jury the several instructions to which defendants excepted at the time and in giving each of said instructions separately and severally. Fifth. The court erred in receiving the verdict of the jury apportioning the damages among the widow and minor children. Sixth. The court erred in rendering judgment on the verdict of the jury and in rendering separate judgments in favor of the widow and minor children. Seventh. The court erred in overruling the defendants' motion for a new trial. [6] The testimony in this case shows, in substance, that the railway company at the time of the accident, and for a number of years prior thereto, maintained a division at the town of Francis, Okla., where the accident occurred, at which it maintained and used, as facilities and instrumentalities in operatng its trains, a roundhouse, turntable, and numerous tracks for the handling of its locomotives, and that engines coming from the north and south, respectively, were disconnected from the trains and stored in the said roundhouse and tracks and then others sent from said roundhouse and tracks to be used in place of the one stored, and that said line of railway extended from the town of Francis, Okla., south to Denison, Tex., and points further on in the state of Texas, and from Francis, Okla., north to Monett, in the state of Missouri, and other destinations north and beyond Monett, and that the deceased had been an empolyee of the said railway company at Francis, Okla., for about two years prior to the accident which resulted in his death, in the capacity of boiler washer. For about one year after he began working for the company, he was on the night shift, and that about one year prior to the accident he had been upon the day shift, and that while upon the day shift he worked eleven hours, beginning at 6 a. m. and quitting at 7 p. m., and that the company had installed in a room adjoining the roundhouse a clock where employees were required to register on coming on duty and going off duty; that the deceased on the 2d day of November, 1915, the date of the accident, registered as follows; Morning, in, 6:41, out, 12:02, afternoon, in. 12:41, out, 7:07. His time card for that day also shows, hours, 11, amount, $2.00, and bears the indorsement: "Examined and distribution is correct. J. H. Huckins, Foreman." J. H. Huckins, foreman of the roundhouse, testified: "Last time I saw him on the 2d, night of the 2d, when found him next morning, morning of the 3d, and he and I put a switch engine out together about 5.30 p. m. I handled the engine and he held the table for me, and we went to the coal shed and got some coal, and back to the water tank, and he taken water on the engine, and he throwed the switch for me, and I back out on what was called the out-bound track after this engine was set out for night service. I never saw him any more after that until next morning. I told him after we got through with this switch engine that I wanted him to come back and wash the pile driver that was coming in off the road for a washout, but we would call him when the pile driver got in, that I did not know what time they would get in, might be 12 o'clock and might be 1 o'clock. Did not have him called for that work, but told Mr. Johnson, the night foreman, about what I told the deceased about 8:30 or 9 o'clock, and told him to have deceased called." E. C. Johnson, night foreman, testified. That the deceased was supposed to work in the roundhouse and by the side thereof. Once in a while they washed boilers by the side of the roundhouse over by the old rip track. Saw deceased about 7 p. m. in the clock room; seemed to be checking out. The foreman told me about 7:15 or 7:20 the deceased would be back that night to wash the pile driver boiler; suppose the deceased was then out around the roundhouse. He told me he was coming back to wash the pile driver boiler. I said, "All right." The last time I saw him was about 9 o'clock. About that |