phone company, and the petition to be made a party by the insurance company, were sustained and these pleadings stricken. The plaintiff declining to further plead, the petition was dismissed, and this appeal results. This court, in the case of Book v. City of Henderson, 176 Ky. 785, 197 S. W. 490, had occasion to and did construe, in part, section 4890, Kentucky Statutes which is part of the Workmen's Compensation Act, and in so doing said: "It will be seen from the above quotation from the act, that an employee, injured by the negligence of a third party, may, at his option, claim compensation from the employer under the provisions of the act; or proceed at law by civil action against the negligent third party to recover damages; or, third, proceed both against the employer for compensation and against such other third person to recover damages. The third option is, however, limited by the provision that he shall not collect from both; and it is this limitation upon the third option we are called upon to con strue. * * "It is the contention of appellee that, although the employee has the right to proceed against both the employer for compensation and the third party for damages, necessarily by separate and distinct proceedings, one before the Workmen's Compensation Board under the act and the other by action in court, he may not collect any amount from one without waiving his right to proceed against the other; while appellant contends the limitation is only upon his right to collect double damages, in whole or in part, for the injuries he has received. * If it had been the intention of the Legislature to require an injured employee, as many such acts in other states require, to elect whether or not he would proceed against the employer or the negligent third party, it would have given only the first two options set out in the act. But, having given him the option of proceeding against either or both it is not reasonable to believe that the Legislature thereby meant that, in order to avail himself of his right to proceed against both, he must forego, until the end of the litigation with the negligent third party, which might be protracted, the acceptance of small weekly benefits awarded against the employer under the Workmen's Compensation Act. * * * "We, therefore, conclude that the proper construction of this limitation upon the right of an injured employee to proceed against both, that he shall not collect from both the employer and the negligent third party, is, that to the extent he colleects from one he may not collect from the other; from which it follows, the lower court erred in overruling the general demurrer to the fourth paragraph of the answer and in dismissing the petition." Under section 4890, Ky. Statutes, there can be no question of the right of an employer who has paid or become obligated to pay an award of the Board of Compensation to an injured employee to bring and maintain in his own name or that of the injured employee an action against a third person whose negligence was the proximate cause of the injury to the employee to whom compensation was awarded to recover a sum not in excess of the award but can the insurance company which issues the policy to the employer indemnifying him against loss on account of such accidents be subrogated to the rights of the employer and allowed to bring in its own name, or that of the employer or the injured employee, an action against the third party whose negligence brought about the injury, and recover the amount or any part thereof paid by it on the award? That is the exact question in this case, and one we have not before considered, nor one which has been often considered by other courts so far as we are advised. Unqualifiedly, we must hold under the plain and express terms of the statute that the employer who has neither paid nor obligated himself to pay the award to an injured employee has no right of action against a third party whose negligence was the proximate cause of the injury of the employee, for the language of the act is: "The employer, having paid the compensation or having become liable therefor, shall have the right to recover in his own name.' "The payment or obligation to pay the award on the part of the employer is as condition precedent to his right to maintain the action against a third party. The statute gives no right of action in such case to the insurance company either in its own name, or that of the employee to recover the amount paid on the award from the negligent third person who caused the injury from which the award was made. So if such right of action exists it is on equitable grounds of subrogation and not by statute in this state. The statutes on this subject are not the same in all the states. We can conceive no equitable reason why the insurance company should have such right of action against a third person. The employer in conjunction with many other pays to the insurance company a sum larger than that which is required to satisfy all such claims for indemnity, and the insurance company only appropriates from such fund such part as is necessary in the given case to satisfy the award. It has lost nothing whatever. In fact, it has applied a part, only, of a common fund to the satisfaction of an award which it undertook, in consideraion of the deposit of such and the profits to be derived therefrom, to satisfy. Appellants in brief admit as much, saying: fund their "Not only does the statute not give the right of action to an insurance company, but perhaps no equitable reason why it should have such right. The employer in a given case, together with other employers, pays to the insurance company a fund greater than the losses it will sustain. In paying a claim for the employer therefore the insurance company simply appropriates money paid for that purpose. It has, therefore, no equitable right of compensation from a third perosn who may be in default." case. But it is insisted that the employer, being at a constant expense in providing or maintaining a fund for the payment of such claims, is properly given by the statute a right of action against the tort-feasor to recoup the loss sustained. The employer by the statute has the right only when be has paid or obligated himself to pay such award, and in no other The mere fact that he has paid an insurance premium does not operate to give him the right to maintain such action, and the statute cannot be so construed. Where he does not pay or obligate himself to pay the a ward of the board to the injured employee neither he nor the insurance company have a cause of action against the third party causing the injury. but the injured employee may have such action even though he accepts compensation from the employer, and if he recover a judgment greater than the award he can have only the excess and not the whole amount, for the extent of the award it would be double damages or compensation which is not allowable. If the judgment be only equal to or less than the award, the injured employee having already received or been allowed that amount cannot, under the express terms of the statute, take the benefits of the judg ment; nor is there any one else entitled to take the benefit of such judg ment in cases where the award was paid by the insurance company and not by the employer. Neither the employer nor the insurance company having suffered a loss is not entitled to take the benefit of the judgment. In states where the insurance companies are entitled to recover against a negligent third party the statute is so worded as to confer the right and not as in the Kentucky Statute which by implication excludes the insurance company from the right. The trial court made no mistake in holding appellant without right prosecute the action and in dismissing their petitions. Judgment affirmed. to CULLICUT v. BURRILL ET AL. (Supreme Judicial Court of Maine. Nov. 5, 1921.) 1. MASTER AND SERVANT ACTION FOR BENEFIT OF COMPENSATION INSURER PROPERLY INSTITUTED IN NAME OF EMPLOYEE. Where employee of assenting employer under Workmen's Compensation Act was injured through negligence of third person, and a settlement was effected between employer, employee, and the insurer. an action brought under R. S. c. 50, § 26, for the benefit of the insurer, was properly instituted in the name of the employee. (For other cases, see Master and Servant, Dec. Dig. § 400.) 2. MASTER AND SERVANT-ISSUES ON SUBROGATION UNDER COMPENSATION ACT. Where an employee brings action against a negligent third person, under R. S. c. 50, § 26, for the benefit of insurer entitled to subrogation, the issues involved are the same as in an ordinary action of tort between parties who do not sustain the relation of employer and employee. (For other cases, see Master and Servant, Dec. Dig. § 389.) Motion from Superior Court, Penobscot County, at Law. Action by John T. Cullicut against Thomas F. Burrill and others. Verdict for plaintiff. On motion for new trial. Motion granted and verdict set aside unless plaintiff remits. Argued before Cornish, C. J., and Spear, Philbrook, Dunn, Wilson, and Deasy, JJ. George H. Morse, of Bangor, and W. B. Pierce, of Dexter, for plaintiff. Gillin & Gillin, of Bangor, for defendants. CORNISH, C. J. This is an action of tort for personal injuries. The plaintiff, at the time of the accident, October 30, 1917, was an employee of Cyr Bros., who were building a dam in Corinna for the defendants, near the defendants' woolen mill. Above the plaintiff as he worked, and about 15 feet from the ground, was a 12-inch galvanized iron blower pipe 80 feet long, which connected the defendants' woolen factory on one side with a picker house on the opposite side of the stream. Near this blower pipe were two wooden ventilator shafts, extending up through the roof of the dyehouse to a height of 22 feet; the opening of the shaft being about 2 feet 6 inches square. In a heavy wind on the day alleged, one of these shafts fell upon the blower pipe, which in turn gave way and fell upon the plaintiff, causing the injuries complained of. [1] Cyr Bros. were assenting employers under the provisions of the Workmen's Compensation Act, and a settlement has been effected between the employer, employee, and the insurance company which was carrying the risk. This action is brought under the provisions of R. S. c. 50, § 26, for the benefit of the insurer, and was properly instituted in the name of the employee. Donahue v. Thorndike & Hix, 119 Me. 20, 109 Atl. 187. The jury rendered a verdict for the plaintiff in the sum of $7,000. and the case is before the law court on defendants' general motion for a new trial. [2] Regardless of the subregation element of the action, the same issues are involved as in an ordinary action of tort for negligence between parties who do not sustain the relation of employer and employee to each other. There was no claim by the defendants of any contribu tory negligence on the part of the plaintiff. That leaves simply the question of negligence on the part of the defendants and the amount of the verdict to be considered. The negligence complained of is in the faulty construction, insecure fastening, inadequate support, and improper maintenance and repair of the ventilator shaft. The defendants' answer is that the shaft was properly constructed and maintained, and that the accident was caused solely by a hurricane, for which they were not responsible. These two issues were sharply contested. Upon both, the jury found in favor of the plaintiff. The method of construction of the shaft, the strength and character of the materials used, and the manner in which it was supported or stayed in order to withstand the elements, were questions peculiarly within the experience and province of practical jurymen. A careful study of the evidence dees not convince the court that their conclusion was manifestly wrong on this branch of the case. [3] As to the defense of vis major, undoubtedly the legal principles governing in this jurisdiction were correctly stated by the presiding Justice in his charge. No exceptions were taken, and we must therefore assume that the rules were clearly and adequately stated. This left a question of fact to be determined by the jury upon contradictory evidence. After a thorough analysis and comparison of the tes.imony taken, in connection with the fact that no other structure of any kind in Corinna on the day in question appears to have been affected by the gale, our conclusion may be expressed in the language of the court in a former case: "The storm, though a severe one, was not so extreme that it might not have been reasonably anticipated as likely to occur; nor was it so overpowering and unusual that the cause of the accident should be regarded, according to the definition adopted by writers, as an act of God. or vis major." Toole v. Beckett, 67 Me. 544, 24 Am. Rep. 54. The damages awarded, however ($7,000), we think were grossly excessive, and indicate lack of appreciation of the evidence on this point on the part of the jury. [4, 5] It was incumbent upon the plaintiff to prove the extent and seriousness of his injuries. No bones were broken. The only objective symptom of injury according to the testimony of the attending physician was the difficulty the plaintiff had in rotating his head to the right. The same physician says that at the time of the trial there was an improvement in this respect. He diagnosed the injury to be one to the ligaments and nerves of the back, developing after a week or 10 days, some apparent withering of the muscles of the right arm, affecting es pecially the forefinger. The doctor made 22 calls in all between October 30 and December 6, 1917. His medical services then ceased, and there is no evidence that the plaintiff received any further medical aid, or that he called for any. The expenses amounted to $75 or $80. injury is not proved. The plaintiff has done little work since the accident, but he is up and about, and drives for pleasure his own bile, which he cranks with his left hand. Without rehearsing all the evidence on the question of injury, it is sufficient to say that in the opinion of the court the awarded damages are grossly extravagant. dict for $4.500 should be ample for the injuries proved to have been sustained. Permanent automo A ver Motion for new trial granted, and verdict set aside, unless the plaintiff, within 30 days after the filing of this mandate, remits all of the verdict in excess of $4,500. MAGUIRE'S CASE. (Supreme Judicial Court of Maine. Nov. 1, 1921.) -- 1.MASTER AND SERVANT COURT WITHOUT JURISDICTION OF COMPENSATION APPEAL LODGED IN COUNTY OF HEARING INSTEAD OF COUNTY OF INJURY. Under Workmen's Compensation Act, § 34, requiring presentation of copies certified by the clerk of the Industrial Accident Commission to the clerk of the courts of the county in which the injury occurred. whereupon any justice of the Supreme Judicial Court shall render a decree with the same effect as though rendered in equity, except there shall be no appeal therefrom on questions of fact, jurisdiction is in such county alone; and an appeal, though lodged in the county in which the hearing is had on claimant's request under section 33, is not perfected so as to give the law court jurisdiction to review the decree of the sitting jusaffirming the commission's decision, the court in equity not having general jurisdiction under the act, but only such jurisdiction, restricted as to place and procedure, as specified, the decree of the sitting justice being purely a ministerial act required for the final determination by the law court, which does not possess in such appeals, powers possessed in ordinary equity appeals. (For other cases, see Master and Servant, Dec. Dig. § 417[1].) Appeal from Supreme Judicial Court, Androscoggin County, at Law. In the matter of Mary Margretta Maguire's Case. Appeal from decree confirming finding of Industrial Accident Commission. Appeal dismissed. JJ. Argued before Cornish, C. J., and Spear, Hanson, Dunn, and Deasy.. George C. Webber, of Auburn, for Mary Margretta Maguire. CORNISH, C. J. R. S. c. 50, § 34, regulates appeals from the decisions of the Industrial Accident Commission under the Workmen's Compensation Act in these words: "Any party in interest may present copies certified by the clerk of said Commission of any order or decision of the Commission or of its chairman, or of any memorandum of agreements approved by the commissioner, together with all papers in connection therewith, to the clerk of courts for the county in which the injury occurred; whereupon any justice of the Supreme Judicial Court shall render a decree in accordance therewith and notify all parties. Such decree shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though rendered in a suit in equity duly heard and determined |