nesses as corroborating testimony. The value of such testimony depends upon the circumstances of each case and of these circumstances the jury must be the judge." This excerpt from the instruction had better have been omitted, but we do not think it constituted reversible error to give it. The proposition of law therein contained is not erroneous. [10] The next succeeding clause of the instruction was as follows: "When expert witnesses testify to matters of fact, from personal knowledge, then their testimony as to such facts within their personal knowledge should be considered the same as that of any other witnesses who testify from personal knowledge." And the preceding portions of the instruction clearly advised the jury in regard to expert testimony and that it was for them to determine how much weight should be given it. The instruction was not inconsistent with the general instruction to the jury that it was the sole judge of the credibility of the witnesses and the weight to be given their testimony. The exceptions urged are not well taken. [11] VII. The statement in the nineteenth instruction that "alleged verbal statements or admissions should be received with great caution" is complained of. The instruction was a correct statement of the law and was proper under the record in the case. [12, 13] VIII. In instruction No. 24, the court told the jury that the measure of recovery, if any, would be the present worth or value of the life of the decedent to his estate. The court then enumerated and pointed out to the jury the various matters which it might take into consideration in determining the amount of damages and, among other things, advised the jury that it might also "consider the number and age of his children as bearing on the question of his incentive to industry." Appellant cites us to Beems v. C., R. I. & P. R. Co., 58 Iowa, 150, 12 N. W. 222, State v. Rutledge, 135 Iowa, 581, 113 N. W. 461. and State v. Wangler, 151 Iowa, 555, 132 N. W. 22, to the effect that this clause is erroneous. All of these cases, together with other decisions of this court, were reviewed at length by us in Nicoll v. Sweet, 163 Iowa, 683, 144 N. W. 615, L. R. A. 1918C, 1099, Ann. Cas. 1916C, 661. The instruction was evidently drawn in view of our pronouncement in the Nicoll Case. The question involved herein was fully discussed in the majority opinion and in the dissenting opinion in that case. It is not necessary that the arguments, pro and con, be repeated. The Nicoll case was decided, by a divided court. The court is still divided on the question as indicated hereafter. [14, 15] IX. The Western Electric Telephone System, the employer of the decedent, intervened in this action and set up the fact that it had been required to pay to the estate of the decedent, under the Workmen's Compensation Act (Acts 35th Gen. Assem. c. 147,) the sum of $3,441.11, and asked to be subrogated in said amount to the rights of the appellee as against the appellant in the event judgment was obtained. The court instructed the jury, in instruction No. 12, that the telephone company had a right to intervene in the case and present its claim to the court, and then expressly told the jury that it had nothing whatever to do with this matter; that all of the questions in the case as to the rights of the intervener would be taken care of by the court under the law; that the jury should in no manner consider the same; and that it should consider and decide the case as though the intervener were not in the case at all and without regard to any payment made by it to the estate of the decedent. Under section 2477m6 (par.B) of Code Supplement 1913, provision is made whereby an employer, who is held liable for damages under Workmen's Compensation Act, "shall be subrogated to the rights of the employee to recover therefor." In Evans v. Oskaloosa Trac. & Lt. Co., supra, and Fidelity & Cas. Co. v. Electric Co., 187 Iowa, 1014, 174 N. W. 709, we recognized the right of an employer to intervene in an action be tween the representative of the employee and a party charged with the wrongful injury or death. This appears to be fully warranted under the statute. It may be proper practice that such intervention should be made after verdict, but there is no prohibition in the statute against the employer intervening at a prior stage in the proceeding. The evidence of the amount of the award under the Workmen's Compensation Act is not a proper matter for the consideration of the jury, and as stated by the court in its instruction, the jury have nothing whatever to do therewith in determining the liability of the appellant or the amount of damages that should be awarded. The appellant's objections to the testimony as to the amount of the compensation that had been awarded under the Workmen's Compensation Act should have been sustained. The instruction in question was given for the evident purpose of attempting to cure the error in the admission of this testimony. There may be cases where an error in the admission of improper evidence is cured by an instruction to the jury to wholly disregard the same. That was what was sought to be done by the court in the instant case, but it is a matter of common knowledge and experience that evidence of such a character, when once brought to the attention of the jury, does frequently have its effect upon a verdict notwithstanding the admonition of the court to disregard the same. It is an exceedingly difficult matter for a court to determine whether or not error in the admission of such improper testimony is cured by an instruction of this character. In some cases it undoubtedly is, and in such a case a reversal because of the admission of such testimony, when such an instruction is given, would be wholly unwarranted. It is equally true that in other cases the admission of such evidence cannot be cured by such an instruction. The size of the verdict in the instant case is very persuasive of the claim of appellant that the jury were not entirely free from the effect of the testimony in regard to the award that had been made under the Workmen's Compensation Act. We think the appellant was prejudiced by this evidence. The jury might easily believe that more than $3,400 of any award made by them would not go to the appellee, but would be paid to the intervener. We are strongly persuaded to the opinion that the jury gave this fact consideration in awarding the damages. We think that this is a case where the instruction given by the court to the jury to disregard the improper testimony did not remove the prejudice that resulted from its erroneous admission. It does not necessarily follow that there should be a reversal and retrial of the case because of our conclusion in this regard, but we are disposed to give to the appellant the benefit that is claimed for this error. This can be accomplished by a reduction of the verdict in the amount of the award made under the Workmen's Compensation Act as proven in this record. This amount was $3,441.11. If the appellee shall within 30 days from the filing of this opinion file a remittitur of said amount, the judgment will be affirmed; otherwise, a new trial will be granted. This reduction will also ineet the question of excessive verdict heretofore discussed. [16] X. Error is predicated upon the refusal of the court to give certain instructions requested by the appellant. The subject-matter of these requested instructions where pertient was covered by the instructions that were given by the court. We have examined them with care and find no error in the refusal to grant any of the same that would warrant interference on our part. [17] XI. Error is predicated upon the receipt in evidence in rebuttal of the testimony of a witness who made observations in regard to the appellant's lines during the trial, and testified in regard thereto. The objection was urged that the evidence was not proper rebuttal and incompetent and improper. The objection was overruled. The record satisfies us that this evidence was proper rebuttal testimony. The appellant offered testimony regarding the custom of the appellant in the manner in which it placed the primary and secondary wires on crossarms and in regard to the general custom of the company in the use of brown insulators and white porcelain and green glass insulators for wires carrying a different voltage. The appellant did not limit this inquiry to the conditions existing at the time of the injury, but inquired generally as to the practice of the company in that regard. The testimony complained of was to meet this line of evidence and to show the practice and custom of the appellant in regard to the manner in which said wires were placed and carried on the poles. Upon the record, the objection interposed to this testimony was not well taken. The appellee had a right to meet in rebuttal the evidence offered by the appellant. We think the testimony complained of went no farther than this, and was admissible. Except in the particulars heretofore pointed out, we find no error in this record requiring any interference on our part, and the judgment of the trial court is therefore affirmed on condition. Stevens, C. J., and Evans and Weaver, JJ., concur. Arthur, J., concurs except as hereafter stated. Preston, Arthur, and De Graff, JJ., dissent as to the approval of instruction 24, discussed in division 8 of the opinion, and would reverse on that ground. Faville, J., disapproves of instruction 24, but does not regard it as reversible error in the instant case. GILMORE v. WESTERN COAL & MINING CO. (No. 23678.) (Supreme Court of Kansas. April 8, 1922.) 205 Pacific Reporter, 1018 (Syllabus by the Court.) MASTER AND SERVANT ARBITRATOR'S POWER ΤΟ AWARD COMPENSATION IN LUMP SUM LIMITED. The Workmen's Compensation Act forbids an arbitrator to make a lump-sum award for a schedule injury partial in character and permanent in quality, except for the portion of the compensation due and unpaid at the time of the award. (For other cases, see Master and Servant, Dec, Dig. § 385 [20]. ) Appeal from District Court, Crawford County. Action by Thomas Gilmore against the Western Coal & Mining Company for compensation, in which the arbitrator awarded a lump sum for a schedule injury, loss of an eye, and the court modified the award to one for periodical payments, and the plaintiff appeals. Affirmed. Phil Callery and J. E. Callery, both of Pittsburg, for appellant. J. J. Campbell, of Pittsburg, J. M. Challiss, W. P. Waggener, and Walter E. Brown, all of Atchison, for appellee. BURCH, J. The action was one for compensation. The injury was a schedule injury-loss of an eye-and the arbitrator awarded compensation in a lump sum. The court modified the award to one for periodical payments, and the plaintiff appeals. When the Legislature revised the Workmen's Compensation Act in 3- -Vol. X-Comp. 1917, it provided for payment of compensation for the first week of disability, partial in character but permanent in quality, and then provided as follows: "Thereafter compensation in a lump sum shall be paid as provided in the following schedule: * "(15) For the loss of an eye, or the complete loss of the sight thereof, 50 per cent. of the average weekly wages during 110 weeks." Laws 1917, c. 226, § 3. Sections 11, 12, and 13 of the same statute treat of arbitration, and section 13 contains the following provision: "No award shall be or provide for payment of compensation in a lump sum, except as to such portion of the compensation as shall be found to be due and unpaid at the time of the award * * The result is: An arbitrator is deprived of power to make a lump. sum award (Boyd v. Mining Co., 105 Kan. 551, 185 Pac. 9), and the provision for lump-sum payment found in section 3 applies only when compensation is settled by agreement or by action. The judgment of the district court is affirmed. BROWNLEE v. TEXAS CO. (No. 24724.) (Supreme Court of Louisiana. March 27, 1922. Rehearing Denied April 17, 1922.) In a suit for compensation under the Employers' Liability Act for the loss of an arm amputated when the attending physician discovered an infected bone, evidence held to show that plaintiff, a laborer around an oildrilling apparatus, was struck on the arm and injured by the engine. (For other cases, see Master and Servant, Dec. Dig. § 405 [4].) Appeal from First Judicial District Court, Parish of Caddo; J. H. Stephens, Jr., Judge. Suit under the Employers' Liability Act by J. S. Brownlee against the Texas Company. From a judgment denying compensation, plaintiff appeals. Judgment avoided and reversed, and case remanded. Long & Long, of Shreveport, for appellant. Hampden Story, Charles Blish, J. S. Atkinson, and Alex Smith, all of Shreveport, for appellee. By Division A, composed of Chief Justice Provosty and Justices Overton and Leche. LECHE, J. This case involves purely a question of fact. Plaintiff was employed by defendant and worked as a laborer around the machinery and rigging of an oil-drilling apparatus. His arm became sore to such an extent that he had to quit work. He went to a sanitarium, where shortly after his arrival, it was discovered that a pocket of pus had formed on his arm, the result of an infected bone, and it finally became necessary in the opinion of attending physicians to amputate the arm. The fact at issue is whether this injury was caused by a blow or blows received by plaintiff while in the course of his employment by defendant Plaintiff testifies that on or about the 1st of August, 1920, while holding the heavy end of a piece of timber to be used as a head post brace on the derrick, his arm came into contact with and was hit by the engine; that he paid little attention at first to the injury, although it hurt him for quite a while. Then his arm got worse. He poulticed it and kept on working until about the 11th. He then went, at the suggestion of de'endant's field manager, to see the doctor, who gave him a salve to spread on the bruise. As the injury seemed to be getting worse, he finally went to a sanitarium, with the result stated. Plaintiff's declaration to the physician in the sanitarium, at a time not suspicious, and the testimony of reputable physicians as to the probable cause of the injury and as to the time in which such injuries usually become infected, satisfy us that plaintiff's testimony is truthful. Defendant relies upon declarations said to have been made by plaintiff when his arm became sore to the effect that he had been stung by some insect. Plaintiff may have made such statements at a time when he did not suspect the gravity of his injury, but such statements are not sufficient to outweigh proof which to our minds makes it certain that the injury did occur as claimed by him. We are therefore constrained to reverse our learned brother on a question of fact and to hold that plaintiff has established the basis of his demand by a preponderance of evidence and with legal certainty. We are unable, owing to the lack of proof in the record, to fix the amount of compensation to which plaintiff is entitled, and will therefore remand the case for the purpose of enabling the parties to establish by proof the data necessary to fix such compensation. For these reasons the judgment appealed from is avoided and reversed, and it is now decreed that plaintiff is entitled to compensation under the Employer's Liability Act (Laws 1914, No. 20), and it is further ordered that this case be remanded to the district court for the purpose of enabling the parties to furnish the evidence necessary to compute the compensation to which plaintiff is entitled under said act. Rehearing refused by Division B, composed of Justices O'Niell, Land and Baker. BALLOU'S CASE (Supreme Judicial Court of Maine. April 12, 1922.) 116 Atlantic Reporter, 591. 1. MASTER AND SERVANT — INDUSTRIAL ACCIDENT COMMISSION'S FINDINGS NOT REVIEWABLE. In proceeding under the Workmen's Compensation Act, the Supreme Judicial Court is bound by the Industrial Accident Commission's finding of fact, in the absence of fraud, if there is any legal evidence supporting the findings, (For other cases, see Master and Servant, Dec. Dig. § 417 [7].) 2. MASTER AND SERVANT ADMISSION OF INADMISSIBLE TESTIMONY IN COMPENSATION PROCEEDINGS IMPRO PER. In proceedings under the Workmen's Compensation Act, the practice |