each year, the employment was seasonal, and compensation should have been computed under the fourth classification in Employers' Liability and Workmen's Compensation Act (Pub. Acts [Ex. Sess.] 1912. No. 10) pt. 2, § 11, providing that where the annual average earnings cannot be ascertained by enumerated methods, they shall be such sum as, having regard to the previous earnings of the injured employee, and of others in same or most similar class, etc., shall reasonably represent the annual earning capacity of the injured employee at the time of the accident. (For other cases, see Master and Servant, Dec. Dig. § 385[20].)

Certiorari to Industrial Accident Board.

Proceedings for compensation under the Workmen's Compensation Act by Peter Cramer and others, dependents, opposed by the West Bay City Sugar Company, employer, and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, to recover for the death of John Cramer. There was an award for partial dependency in plaintiff's favor, and dependents bring certiorari. Award vacated, and cause re

manded..

Argued before Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ.

Arthur Sauve, of Bay City, for appellants.
W. A. Collins, of Bay City, for appellees.

fendant

FELLOWS, J. Deceased, John Cramer, was in the employ of desugar company as a fireman during its "campaign" in the fall of 1916. While so employed, using a heavy iron bar weighing about 90 pounds, in breaking clinkers in one of the furnaces, he received an injury to his right hip or leg by the slipping of the bar and its striking him with some force. This occurred in the fore part of November, but the exact date is in dispute, as is also the length of time he continued to work thereafter. It appears, however, that he became unable to pursue his employment, and remained indoors until Christmas Eve, when he went down town to have his hair cut, accompanied by his brother and a friend. When on the street his crutch slipped and he fell. It is to be inferred that he either received a fracture at or about the place of injury, or that the injury was considerably aggravated by the fall. He does not appear to have received the attention and treatment that his condition required, and not 11th following was he taken to the hospital, where operated upon on the 13th, but did not recover from the shock, and died the same day. The board found the injury reIceived while in the employ of defendant sugar company was the proximate cause of his death, and made an award for partial dependency in favor of plaintiffs, who are his father, mother, and young sister, using the so-called "300 rule" in making the

until January

he was

computation.

was lame and used a cane prior to his employment by defendant, [1] Testimony was introduced tending to show that deceased but this was denied by other witnesses. Members of his family

explain that he had an ingrowing toenail, and when he put on a new pair of shoes this caused whatever appearance of lameness he exhibited, and that he had always been in good health before the accident. The credit of the testimony was for the board. It is true, as claimed by the defendant, that the burden of proof was upon the plaintiffs. But where there is testimony in the record to sustain the finding of the board we cannot disturb such finding in the absence of fraud. Whether the testimony introduced by one side preponderates over that of the other is exclusively for the determination of the board. We have had occasion to consider cases of an accident followed by a subsequent injury, where the original injury was held by the board to be the proximate cause of the disability for which compensation was awarded. Cook v. Charles Hoertz & Son, 164 Ñ. W. 464; Reiss v. Northway Motor & Mfg. Co. et al., 166 N. W. 840, and in each case affirmed the finding of the board. The instant case is not sufficiently unlike these cases to require further comment.

[2] Deceased was unmarried. There is much controversy over the question of the dependency of the plaintiffs. Testimony was introduced showing that they occupied a house owned by a brother of deceased, the rent of which was admitted to be worth $7 per month; that the father owned a farm of 40 acres ; that the parents sold butter and milk; that deceased was usually well dressed, owned an automobile, and took a young lady whom he was engaged to marry to shows and entertainments; and that his wages were not large. On the other hand, it was testified that the farm was heavily incumbered, did not produce enough to pay taxes and interest; that the father was injured in an accident 7 or 8 years previous, and had since been unable to work; that deceased bought all the groceries and gave his parents cash for their necessities; that he clothed the little sister, and the mother positively testified that he had supported them since he was 15 years of age. While the exact sum furnished to plaintiffs by the deceased was not made as definite as it might have been, or should have been, we are not persuaded that we can say that there is no evidence upon which the board could base its conclusion of partial dependency or the weekly amount thereof found by it.

[3] Defendant did not operate its plant the entire year. Its "campaign," which is conducted in the fall, appears from this record to average some 60-odd days. The parties seem to agree that firemen are employed a few days longer, and it is agreed that they average 74 days' work during the year. The employment in defendant's plant may be termed seasonal, and the case falls squarely within Andrejwski v. Wolverine Coal Co., 182 Mich. 298, 148 N. W. 684, Ánn. Cas. 1916D, 724. That case so fully discusses the four classifications found in the statute that it is only necessary to refer to it. The compensation in the

instant case should have been computed under the fourth classification in accordance with the holding in that case.

The award will be vacated, and the case remanded for further proceedings not inconsistent with this opinion.

SUPREME COURT OF MINNESOTA.

STATE EX REL. MARYLAND CASUALTY CO.

ບ.

DISTRICT COURT OF HENNEPIN COUNTY ET AL.*

LE BARON

V.

CURTIS HOTEL CO. (No. 20889.)*

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -FINDINGS EVIDENCE.

Testimony considered, and found to be sufficient to justify the findings of the trial court, and that there were no prejudicial errors in the rulings on the admissibility of evidence.

(For other cases, see Master and Servant, Dec. Dig. §§ 405[1], 417[8].)

Judge.

Certiorari to District Court, Hennepin County; Charles S. Jelley, Certiorari by the State, on relation of the Maryland Casualty Company, to review an order of the District Court of Hennepin County awarding compensation under Workmen's Compensation Act to George Order affirmed. an employee, against the Curtis Hotel Company, employer.

0. Le Baron,

Barrows & Stewart, of St. Paul, for relator.

Geo. R. Smith, H. Stanley Hanson, and Leo J. Gleason, all of Minneapolis, for respondents.

QUINN, J. This is a proceeding under section 8225, General Statutes, to determine what compensation, if any, George O. Le Baron, now deceased, was entitled to, under chapter 84a of the statute, for injuries sustained by accident on January 3, 1917. The cause was tried to the court in July. Within two days after the trial was completed, and before the decision was filed, Le Baron died, and his widow was substituted as plaintiff. In its decision the court found that on January 3, 1917, and for several years prior thereto, Le Baron had been in the employ *Decision rendered, May 17, 1918. 167 N. W. Rep. 1039. Syllabus by

the Court.

of the defendant as night watchman at its apartment house; that on that day, while at work in the course of his employment, carrying some letters from the desk in the apartment house to the mail box on the sidewalk, Le Baron slipped on the topmost step of a flight of six stone steps leading from the apartment, and fell to the sidewalk, a distance of several feet, thereby accidentally injuring his left knee, hip, and back; that immediately thereafter he felt considerable pain in his knee, and a dull pain in his back in the region of his kidneys, which continued to the time of the trial; that the injuries from the fall caused a gradual impairment of his health, and that acute nephritis developed from such injuries, resulting in his permanent total disability—and ordered judgment for the plaintiff. The case was brought to this court for review by certiorari.

The defendant contends that the findings of fact made by the trial court are not justified by the evidence, and that the court erred in its rulings on the admissibility of evidence to the prejudice of defendant.

It appears from the record that decedent, prior to the trial, was, by order of the court, required to submit to an examination by a physician other than one of his own choosing. After making such an examination the physician was called and testified as a witness on behalf of defendant, to the effect that he examined the decedent on June 27 for the purpose of learing his trouble and the cause thereof, and that after so doing he was of the opinion that the man was not suffering from acute Bright's disease, or nephritis, but that he had chronic Bright's disease, and that he did not think the accident had anything to do with causing it; that he found him in such a state that he did not think that the disease could have developed since January 3; that he must have had it before.

Defendant insists that the doctor, having been appointed by the court, was practically an officer of the court, and that, while the court was not bound by his opinion, yet it was bound by his testimony, unless there was some judicial reason for disregarding it and substituting the opinion of another physician of equal standing and ability. We are unable to agree with counsel in this contention. The testimony is conflicting as to decedent's trouble and the cause thereof. Two qualified witnesses testified as physicians on the part of the defendant, and one on the part of plaintiff, and their testimony materially differed as to the probable cause of decedent's trouble. Dr. Reginald Platt also testified along the same line. He is a graduate of the American School of Osteopathy at Kirksville, Mo., and duly licensed to practice osteopathy in this state, and had practiced his profession for some six or seven years. He had attended and treated decendent from March 12 to the time of the trial, and was competent to testify. What disease decedent was suffering from and

the probable cause thereof were, under the evidence, questions of fact for the court, and the findings thereon have the force and effect of the verdict of a jury. The court, having had the witnesses before it and having heard all the testimony, found the facts in favor of respondent, and, as the inferences necessary to such findings are justified by the evidence, these findings should not be disturbed.

The following questions were asked Dr. Platt:

"Q. Doctor from that state of facts, and from the examination you have made, and from your knowledge of the case, are you able to give an opinion as to the probable cause of the acute nephritis from which Mr. Le Baron is now suffering?" (This question was objected to "as incompetent, irrelevant, immaterial, calling for the conclusion of the witness, who isn't qualified to testify as an expert on this subject, and on the further ground that the statement isn't a full statement of the evidence." The objection was overruled.) "A. I consider that I have an opinion as to the probable cause of his present condition. Q. You may state it. A. From the history of the fall and the condition that I found existing in the area through [which] the nerve supply to the kidney and to the suprarenal gland is derived, it is my fixed opinion that his present condition is the result of a traumatic injury to the tenth, eleventh ,and twelth thoracic segments of the spine and to the contiguous tissues."

It is urged that the question assumes as a fact the existence of acute nephritis, which was the main issue upon the trial. While this assumption is clear, and the question, for that reason, in bad form, yet the objection does not cover this phase of the question, and the answer given was not prejudicial to the rights of the defendant. It was based upon the history of the case, the fall, and the condition which the witness found existing with the decedent, without any apparent thought of the objectionable part of the question.

We have considered all of the other objections stated and the rulings thereon, and find no prejudicial error.

The order of the trial court is affirmed.