"Now on this 3d day of May, 1920, the above cause coming on to be heard pursuant to legal notice given and the Commission having examined all reports on file. and being well and sufficiently advised in the premises, finds. That the claimant while in the employ of the respondent and in the course of his employment was injured March 13. 1920, and as a result of said injury developed a hernia, and that it would be to his best interest to recive an operation for said injury. "The Commission further finds that he is entitled to an operation and compensation for four weeks at the rate of $14.58 per week. being a total sum of $58.32. "It is ordered that within 10 days from this date the Ætna Life Insurance Company or the Oklahoma Union Railway Company pay to the above claimant compensation computed from March 13, 1920, at the rate of $14.58 per week, continuing until termination of disability, unless within 10 days from this date the respondent will notify the claimant and the Commission of its willingness to pay for the operation. In such event claimant shall in 10 days thereafter notify the insurance carrier or respondent and the Industrial Commission of its willingness to accept said operation. "It is further ordered: If the claimant agrees to accept said operation, the insurance carrier or respondent shall make all necessary arrangements for claimant to receive said operation and pay all cost incident thereto, including the hospital, surgical, nurse, cost of medicine, and other expenses incident thereto, and the traveling expenses of the claimant from his home to the place where said operation will be performed, said operation to be performed within 30 days after the claimant agrees to accept same, unless additional time is agreed upon by the parties thereto. "It is further ordered: That in the event said operation is accepted upon its performance the respondent pay to the claimant 4 weeks' compensation at the rate of $14.58, being a total sum of $58.32. If said operation is refused by claimant, the respondent's liabaility shall cease upon payment of 4 weeks' compensation." The award found that the claimant had developed a hernia as a result of an accident occurring in the course of his employement. and gave him the alternative of an operation or accepting $58.32, four weeks' compensation, and in the event the claimant failed or refused to submit to the operation as ordered by the Commission further compensation, irrespective of the condition of the claimant, was denied. [1-3] Section 7, chapter 14, Session Laws of 1919, provides: "The employer shall promptly provide for an injured employee. such medical, surgical or other attendance or treatment, nurse and hospital service. medicine, crutches and apparatus as may be necessary, during sixty days after the injury or for such time in excess thereof as in the judgment of the Commission may be required. If the employer fails to provide the same. the injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so." It is apparent that the State Industrial Commission has misconstrued section 7, supra, in that they have exercised jurisdiction to order the claimant herein to submit to a major operation under penalty in case of his failure to comply with the order of forfeiting his right to compensation. A careful reading of section 7, supra, herein, fails to disclose the authority for the Commission, directing the injured employee to submit to a major operation under penalty or forfeiting his right to compensation. Section 7, supra, of said act, provides for the injured employee proper medical and surgical treatment at the expense of the employer; and the treatment provided for is in addition to the compensation provided for under the Workmen's Compensation Act of 1919, during disability; but nowhere in said act is the Commission authorized to require the injured employee to submit to a serious operation involving a risk of life, however slight, in order that the pecuniary obligation created by the law in his favor may be minimized. The award in the case at bar presupposes that the operation would be successful, and that the claimant would be cured. This is in excess of the Commission's authority. The respondents in their brief contend that an operation for hernia is not regarded as a dangerous or serious operation, but is a comparatively slight inconvenience, and results in a permanent cure. The record in the present cause does not disclose the kind of hernia the claimant was afflicted with, but we cannot agree with the contention that an ordinary operation for hernia is to be regarded as a slight inconvenience, and we know of no medical authority or reputable physician that would class an operation for hernia as a minor operation. On the other hand, ordinary hernia requires the administration of an anesthetic and an incision of the abdominal wall, and in some instances it proves fatal. The rule appears to be supported by the overwhelming weight of authority that no man shall be compelled to take a risk of death, however slight, in order that the pecuniary obligation created by law in his favor against his employer may be minimized. Tutton v. Steamship Majestic, L. J. 1909 Reports N. S. vol. 78, K. B. p. 530; Blate v. Third Ave. R. Co., 44 App. Div. 163, 60 N. Y. Supp. 732; McNally v. Hudson & M. R. R. Co., 87 N. J. Law, 455, 95 Atl. 122; Donovan et al. v. New Orleans Ry. & Light Co.. 132 La. 239, 61 South. 216. See note 48 L. R. A. (N. S.) 110; McNamara v. Metropolitan Street Ry. Co., 133 Mo. App. 645, 114 S. W. 50; Guild v. Portland Ry. Light & Power Co., 64 Or. 570. 131 Pac. 310; Jendrus v. Detroit Steel Products Co. et al., 178 Mich. 265. 144 N. W. 563, L. R. A. 1916A, 381. Ann. Cas. 1915D, 476. In the case of McNally v. Hudson & Manhattan Ry. Co., 87 N. J. Law. 455, 95 Atl. 122, supra, the Supreme Court of New Jersey. in considering a case almost identical with the case at bar. said: * * * "The consensus of opinion of the medical witnesses it that the operation is a major one. accompanied with some peril to life. Although the peril to life seems to be very slight, 48 chances in 23,000, nevertheless the idea is appalling to one's conscience that a human being should be compelled to take a risk of death, however slight that may be, in or- · der that the pecuniary obligation created by the law in his favor against his employer may be minimized. The English cases cited by counsel for defendant do not lay down any such doctrine. We think the sound rule on the subject to be as stated by Lord McLaren, in Donley v. Baird (1908), Scotch Cas. (on page 536), which is as follows: 'In view of the great diversity of cases raising this question. I can see no general principle except this. that if the operation is not attended with danger to life and health. or extraordinary suffering, and if, according to the best medical or surgical opinion, the operation offers a reasonable prospect of restoration or relief from. the incapacity from which the workman is suffering, then he must either, submit to the operation or release his employers from the obligation to maintain him.' * It cannot, however, be properly said that where it appears, as it does in the present case, that a risk of life is involved, that the refusal of the prosecutor to submit to an operation is unreasonable. There was therefore no basis for the order made by the trial judge that the prosecutor should submit to an operation. The compensation adjudged by the court is a weekly compensation. In the event that the prosecutor chooses to submit to an operation and recovers, the defendant can petition the trial court to reduce the compensation or stop it, if the proper number of * * weeks have elapsed for which compensation should have been made." In the case of McNamara v. Metropolitan Street Ry. Co., 133 Mo. App. 645, 114 S. W. 50, supra, the court said: "We do not think plaintiff should be criticized and punished on account of his failure to undergo a surgical operation. He should be accorded the right to choose between suffering from the disease all his life or taking the risk of an unsuccessful outcome of a serious surgical operation. Certainly, defendant, whose negligence produced the unfortunate condition, is in no position to compel plaintiff again to risk his life in order that the damages may be lessened. To give heed to such contention would be to carry to an absurd extreme the rule which requires a person damaged by the wrong of another to do all that reasonably may be done to minimize his damages." The Workmen's Compensation Laws of this state abolish the right of the injured employee to maintain an action for damages in the court, and vests the State Industrial Commission with jurisdiction to award compensation for injuries sustained by the employee in the course of his employment at a fixed rate prescribed by the statute, which amount is 50 per cent. of the average weekly earning, during the disability, or partial disability, of the injured employee until the maximum amount prescribed by the act has been paid. In view of the fact that the law has abolished the right of action of the injured employee to recover damages for his injuries, the law should be liberally and fairly construed in favor of the injured employee, and in making an award the Industrial Commission has no authority to impose any condition upon the injured employee not authorized by law. That part of the award, in the case at bar. directing the claimant to submit to an operation or forfeit his right to compensation, is unauthorized and beyond the jurisdiction of the Commission, and the award herein made is reversed and remanded, with directions that the claimant be allowed compensation during disability as prescribed by law. All the Justices concur, except Miller, J., absent and not participat ing. Under the provisions of section 10, c. 14, Workmen's Compensation Act (Laws 1919), the decision of the State Industrial Commission is final as to all questions of fact, and this court is not authorized to weigh the evidence upon which any finding of fact is based. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) Original suit in the Supreme Court by W. P. Mullen to set aside an award made by the State Industrial Commission in favor of James L. Mitchell. Dismissed. A. W. Harries, of McAlester. for petitioner. R. E. Wood. Ásst. Atty. Gen.. and Wyatt & Waldrep of Shawnee, for respondents. 9 Vol. VIII-Comp. NICHOLSON. J. This suit was instituted in this court by the petition-er, seeking a reversal of an order of the State Industrial Commission awarding to the respondent James L. Mitchell compensation computed from April 11. 1920, at the rate of $18 per week for a period of 100 weeks, or until the total of $1,800 had been paid, for the loss of one eye while in the employ of the petitioner. [1, 2] The petitioner has failed to file brief as required by rule 7 of this court (47 Okl. vi, 165 Pac. vii), and no reason is given for his failure to file the same, and for this reason the appeal should be dismissed under the authority of Blanlot v. Carbon Coal Co.. 76 Okl. 16, 183 Pac. 880. Furthermore, the petitioner contends that the evidence is insufficient to show that the respondent Mitchell suffered the loss of an eye. The Commission found as a fact that he did suffer such loss, and its decision on all questions of fact is final. Section 10, art. 2, c. 246, Sess. Laws 1915; Board of Com'rs of Cleveland County v. Barr et al., 173 Pac. 206; Choctaw Portland Cement Co. v. Lamb et al., 189 Pac. 750; Stephenson v. State Industrial Commission et al, 192 Pac. 580; Raulerson v. State Industrial Commission, 76 Okl. 8, 183 Pac. 880. Therefore this suit is hereby dismissed. Harrison, C. J., and Pitchford. McNeill, and Elting, JJ., concur. KELLEY v. DELAWARE, L. & WESTERN R. CO. 1. MASTER AND SERVANT RELATION HELD MATTER OF.. LAW REVIEWABLE ON APPEAL FROM COMPENSATION BOARD. The construction of a written contract to determine whether the injured person was an independent contractor or an employee is a matter of law which is reviewable in the courts on appeal from the Compensation Board. (For other cases, see Master and Servant, Dec. Dig. § 417[6].) 2. MASTER AND SERVANT-"EMPLOYEE" AND "INDEPENDENT CONTRACTOR" DISTINGUISHED. The test to determine whether the injured person was an independent contractor or an employee is whether the employer reserved authority only to direct the result to be attained and left the means of attaining the result to the employee, in which case the latter is a contractor, or whether the employer has the right to direct the means by which the result is to be attained, in which case the relationship is that of employee. (For other cases, see Master and Servant, Dec. Dig. § 367.) (For other definitions, see Words and Phrases, First and Second Seriés, Employee; Independent Contractor.) 3. MASTER AND SERVANT-COAL MINE ROCK CONTRACTOR HELD "EMPLOYEE” WITHIN COMPENSATION, ACT; “INDEPENDENT CONTRACTOR." Where a contract for the removal of rock in a mine required the contractor to furnish labor and materials and provided payment at certain prices per yard of excavation. but required the work to be carried on to the satisfaction of the manager and in the manner he directed, authorized the operator to require the contractor to discharge any workman it deemed incompetent or unsatisfactory, and made the contractor and all his employees subject to the direction of the mine foreman. who, under Act June 2, 1891 (P. L. 176), has the supervision of the mine and is the agent of the operator, it reserves to the mine owner and his agent control of the manner of doing the work as well as the result to be attained, so that the contractor was an "employee" within the Workmen's Compensation Law (Pa St. 1920, § 21916 et seq.), and not an “independent contractor." (For other cases, see Master and Servant, Dec. Dig. § 367.) Appeal from Court of Common Pleas. Luzerne County; S. J. Strauss, Judge. Proceedings under the Workmen's Compensation Act by Isabelle Kelley against the Delaware, Lackawanna & Western Railroad Company for compensation for the death of Michael Kelley, employee. The award of compensation by the referee. set aside by the Compensation Board, was reinstated by the court of common pleas, and defendant appeals. Affirmed. Argued before Moschzisker, C. J., and Frazer, Walling, Simpson, Kephart. and Schaffer, JJ. J. H. Oliver, of Scranton, for appellant. Roger J. Dever. of Wilkes-Barre, for appellee. SCHAFFER, J. Michael Kelley, plaintiffs husband, and another were what are known, in the parlance of anthracite mining, as “rock contractors"; their occupation being to make openings in the mines through measures or strata other than the coal. They were engaged to do work of this character by defendant under a written contract, and while proceeding with it Kelley was accidentally killed. His widow entered a claim for compensation. which was awarded her by, the referee. whose finding was set aside on a de novo hearing by the Compensation Board, but reinstated by the court below. From the judgment of the latter, defendant brought this appeal. [1] The question for determination is whether deceased was an employee of defendant or an independent contractor. If the first, compensation is due; if the second. it is not. To decide, it is necessary to construe the written contract of employment; its construction is a matter of law (McColligan v. Penna. R. R. Co., 214 Pa. 229. 63 Atl. 792; 6 L. R. A. [N. S.] 544, 112 Am. St. Rep. 739), and therefore reviewable here (Kuca v. Lehigh Valley Coal Co., 268 Pa. 163. 110 At1. 731). [2] The legal principle which solves the inquiry as to whether a contract creates the relation of employer and employee between the parties to it or makes the performer of it an independent contractor has been recently laid down in Smith v. State Workmen's Insurance Fund, 262 Pa. 286, 105 Atl. 90, where we said: "By this contract the employer reserved to himself no right in connection with the work to be done, excepting the right to question the sufficiency of the result accomplished. measured by the requirements of the contract. * * Where this latter feature is of the substance of the contract it has been uniformly held, and nowhere more strictly and explicitly than in our own state, that the one employed is an independent contractor. The general rule is thus stated. Where a person lets out work to another. the contractee reserving no control over the work or workmen. the relation of contractor and contractee exists, and not that |