Railway Company owns the capital stock of the defendant, but the employes are answerable in their employment to the defendant and not to the railway company.

At and for some time prior to his death, which occurred on October 9, 1917, Matthew C. Kelly, plaintiff's husband, was in the employ of the defendant express company as a warehouseman at a salary of $18 per week. Defendant's general office building where Kelly usually worked is at the corner of Third and Broadway streets in the city of St. Paul, and its warehouse is situated some two blocks distant therefrom, near the yards of the Union Depot. There were toilet accommodations in the general office building, but there were none in the warehouse in which deceased was sent to work in sorting express, and the distance between the two buildings was such as to render it impossible for an employe at the warehouse to reach the toilet in case of an exigency. On the day. of the accident decedent had been handling express at the general office building. Shortly before the accident he was directed to go to the warehouse and there assist in sorting express packages which were to be sent by the defendant to points outside the state over the Great Northern Railway Company's lines. While at the warehouse in the course of his employment, deceased had occasion to use a toilet, and sought, as a matter of necessity, shelter under a freight car standing on a side track some 30 feet distant from the warehouse. The car was moved, and he was killed instantly. Although the place to which deceased resorted was an unsafe one, the trial court found that he was not guilty of willful negligence.

It is contended that neither the defendant company nor the deceased was subject to the Workmen's Compensation Act at the_time_of_the accident; that the defendant was owned by the Great Northern Railway. Company; that it operated over the lines of that and other steam railways; that it paid a certain per cent. of its revenue for its railway service, and therefore was a common carrier by steam railroad, and exempt from the operation of the act.

Under the original Compensation Act (section 8202, G. S. 1913), the only common carriers exempted from its operation were those subject to federal legislation. By chapter 193 of the Laws of 1915, section 8202 was amended so as to provide that, "This act shall not be construed or held to apply to any common carrier by steam railroad." Gen. St. Supp. 1917 § 8202. It is clear that the defendant Express Company is a common carrier, but it neither owns nor operates a railroad of any kind. Its employes are not subject to the federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. §§ 8657-8665). It has exclusive control over its employes. In transacting business it avails itself of the various railroads in its territory as a means of shipping express, paying stated rates therefor. We do not think it can be said that the appellant is, within the meaning of the law, a common carrier by railroad. Higgins v. Erie Ry. Co. et al., 89 N. J. Law, 629, 99 Atl. 98. Evidently the legislative purpose of the amendment was to prescribe a rule exempting carriers having to do with the operation of railroads by steam. We hold that the defendant was within and subject to the provisions of the act.

[2] We have no doubt but that the trial court was fully justified, under the showing, in finding that the accident arose out of and within. the course of the employment. It occurred during working hours. There were no toilet accommodations within two blocks. Decedent was of necessity compelled to attend to his call. Defendant was negligent in not providing accommodations in the warehouse. The necessity of the decedent's immediately retiring to some available place, coupled with the absence of accommodations in the warehouse, gave rise to the danger. The case is not without precedent. Newark Pav. Co. v. Klotz, 85 N. J. Law, 432, 91 Atl. 91; Jarvis v. Hitch (Ind.) 65 N. E. 608; State v. District Court, 129 Minn. 176, 151 N. W. 912; State v. District Court, 129 Minn. 502, 153 N. W. 119.

Judgment affirmed.

SUPREME COURT OF MINNESOTA.

STATE EX REL. RINKER

V.

DISTRICT COURT OF PENNINGTON COUNTY, FOURTEENTH JUDICIAL DIST. ET AL. (No. 21345.)*

MASTER AND

SERVANT-WITNESSES-WORKMEN'S COM

PENSATION ACT-FINDINGS-REVIEW.

The finding that the evidence fails to prove that relator's husband came to his death as the result of an accident arising out of and in the course of his employment must be regarded as in effect a finding that he did not die from such cause. The evidence is such that the finding cannot be set aside under the rule announced in State ex rel. Niessen v. District Court, 172 N. W. 133.

(For other cases, see Master and Servant, Dec. Dig. §§ 412; 4101⁄2. New vol. 7A Key-No. Series.)

The statement made to relator by her deceased husband as to the cause of his sudden illness was rightly excluded.

The testimony as to the condition a doctor, called to attend the deceased, found him in a few months prior to his last illness, seems to bear so little upon the vital issue in the case that the error in its reception should not reverse the judgment.

Appeal from District Court, Pennington County; Andrew Grindeland, Judge.

Certiorari by State of Minnesota, on relation of Elizabeth A. Rinker, against the District Court of Pennington County, Fourteenth Judicial District, and others, to review a judgment rendered in favor of the Hanson-Barzen Milling Company in a workman's compensation proceeding to recover for death of relator's husband, Adolph H. Rinker, deceased. Affirmed.

L. S. Ogden and Mead & Bryngelson, all of Minneapolis, for appellant. L. N. Foster, of Minneapolis, and E. M. Stanton, of Thief River Falls, for respondent.

HOLT, J. Certiorari to review a judgment rendered in favor of the defendant in a workman's compensation proceeding.

Relator's husband, Adolph H. Rinker, a man 52 years old, was head miller for the Hanson-Barzen Milling Company at the time of his death, December 29, 1916. In the forenoon of December 26th, he and another man replaced the windows in the mill, removed some days before so as to freeze the flour bugs that had become troublesome. He also moved, on a two-wheel truck, a couple of rollers from the platform or door to a place 20 feet inside of the mill. These rollers were crated and weighed nearly 500 pounds. They were lifted from the ground to the platform. The evidence does not show how this was accomplished. Only one of the three persons who worked with Rinker that day was called to the witness stand. He was called by relator, and testified that Rinker did not help lift the crates to the platform; and that the only thing Rinker *Decision rendered, May 16, 1919. 172 N. W. Rep. 311. Syllabus by the Court.

did was to move them with the truck, two men assisting by tilting the crates so that Rinker could easily shove the nose of the truck under. Between 11 and 12 o'clock Rinker put on his overcoat and went home. On reaching home he looked stunned, pale, and nervous, according to relator's testimony. She was not permitted to state what he said. He stayed home that afternoon, at times lying down. He did not rest well during the night. The next morning about 9 o'clock he went to the mill, but returned within two hours looking pale and exhausted. He telephoned for Dr. Heiber, who came and attended him. He continued nervous and restless, and at times showed distressed breathing. He was unable to remain in the same position any length of time, frequently changing, now lying down, now sitting or walking. At 5 o'clock on the 29th he collapsed suddenly, and just as the doctor arrived. The death certificate gave acute dilatation of the heart as the cause. There is some dispute whether the attending physician added the words, "caused by violent exercise," which now appears in red ink upon the certificate filed with the board of health. In April, 1917, relator caused a post mortem to be made upon the body, which had been kept in the vault of the cemetery. This was done without notice or opportunity to defendant to be present. The physicians who made the post mortem gave acute dilatation of the heart as the cause of death, and said that the muscles or tissues of the heart had given way or ruptured. They also expressed the opinion that this could have been brought about by great exertion or strain, a few days before the actual collapse came. The relator testified that prior to December 26th her husband had always enjoyed good health. In this she was corroborated by neighbors. He had worked for the milling company for upwards of 10 years.

The chief attack is upon this vital finding viz.:

"That the evidence fails to prove that said Adolph H. Rinker came to his death as the result of an accident arising out of or in the course of the deceased workman's employment."

Before compensation could be awarded, relator must establish the very fact which the court finds the evidence fails to prove. The finding is not as direct as might be desired, but must be taken to be of the same effect as if it had stated that Rinker's death was not the result of an accident arising out of or in the course of the employment. How, on certiorari, the findings in proceedings under the Workmen's Compensation Act (Gen. St. 1913, c. 84a) are to be treated by this court was considered and determined in State ex rel. Niessen v. District Court, 172 N. W. 133 (filed May 2, 1919). The findings are not conclusive, but are here reviewed for the purpose of determining whether they are supported by sufficient competent evidence. And the rule guiding us is that if an impartial consideration of the evidence together with all reasonable and fair inferences will lead reasonable minds to but one conclusion, and that conclusion is the opposite of the one made by the trial court, the finding should be set aside. If the record so shows, we have a case where this court may say an error of law permeates the judgment necessitating a reversal.

Tested by this rule, the finding mentioned must be sustained. It is true, acute dilatation of the heart is an "accident" within the definition of the Compensation Act, in that it produces at the time "injury to the physical structure of the body," the muscles of the heart being ruptured. It is also often "an unexpected or unforeseen event, happening suddenly and violently." Section 8230, G. S. 1913, subd. h. We have stated the facts and testimony which are favorable to the contentions of relator, and to that we may add that Mr. Farr testified that Mr. Rinker came to the witness' soft drink parlor, in the forenoon of some day near Christmas, and said he did not feel good and inquired for a bottle of beer or brandy, and in the conversation remarked that he got hurt, but did not say how, where, or when.

On the other hand, inferences tending to sustain the learned trial

court's finding may be drawn from the fact that the one man who worked with Mr. Rinker both in replacing the windows and moving the rollers testified that nothing occurred of a nature to produce a strain, nor was there overexertion, or violent exercise on the part of Mr. Rinker; that a 12-year-old boy could easily do the trucking Rinker did; that only about 10 windows were replaced; and that the work involved no particular effort. Furthermore, Mr. Rinker complained neither to this companion, nor to Mr. Barzen, an officer of the milling company whom he saw on the 27th, of any hurt received in his work. Mr. Barzen said that when Rinker returned to the mill that morning he stated that—

"After a nice night's rest and a good breakfast he started for the mill and felt fine until reaching the top of the hill, when he developed further pain in his chest."

If something in the course of his work had happened to make this previously strong and healthy man call his doctor and experience the condition he related to his employer, not to mention the conditions described by relator, we should expect him to refer to it. The officers of the company deny that in the telephone communications, or in any other talk, relator, or the doctor, ever stated anything concerning Mr. Rinker's receiving a strain or hurt in his work. The court below could also give credence to the opinion Dr. Gambell gave, that had acute dilatation, or rupture of the heart muscles, occurred during his work, Rinker would have collapsed at once. There are sudden deaths of apparently robust persons from what is commonly called heart failures where previous premonitions are as insignificant as here, and where no primary contributing cause can be assigned except by way of conjecture. Shortly before Mr. Rinker expired he was sitting up playing solitaire. The doctor who was called on the 27th of December thought a few days' rest would restore Rinker to his usual health. In the absence of any testimony pointing to something in the work which Mr. Rinker was doing on the 26th, or previously, as an adequate cause for the rupture of the heart muscles and consequent death, we see no way by which, under the rule stated, the finding mentioned should be held by us perverse or unsustained.

Relator relies upon Puhlmann v. Brown Co. District Court, 137 Minn. 30, 162 N. W. 678, and Simmers v. Stearns Co. District Court, 137 Minn. 318, 163 N. W. 667. The cases are similar in that the injury was to some internal organ, a blood vessel, and might have been caused by some strain in the work. But in both cases the court below found in favor of the dependents, and this court sustained the findings. It is quite a different proposition to reverse the findings. We may add, also, that in both the evidence as to the connection between the ruptured or affected organ and the strain of the work of the employe was much more palpable than in the instant case.

The court did not err in excluding what Mr. Rinker stated to his wife concerning the cause of his not feeling well, when he returned from the mill. She comes clearly within the statute, prohibiting persons interested to give conversations had with one since deceased.

It was error to admit the testimony of what Dr. Gambell found when called to treat Mr. Rinker, some months before his death. But we do not see how the testimony received could have influenced the court in any degree on the finding here questioned. And the learned trial attorney for relator seems to place little faith in a reversal upon that ground. We are constrained to affirm the judgment.

SUPREME COURT OF MINNESOTA.

STATE EX REL. NELSON

V.

DISTRICT COURT OF WABASHA COUNTY ET AL. (No. 21460)*

MASTER AND SERVANT-PROCEEDING UNDER WORKMEN'S COMPENSATION ACT-CHANGE OF VENUE.

Insurer's proceeding in Wabasha county to determine amount recoverable by insured's employee for accidental injury in course of employment in that county, though employe resided in Hennepin county and insurer and employer were foreign corporations, would not be transferred to that county on employe's order to show cause, as Workmen's Compensation Act (Gen. St. 1913, §§ 8216, 8225, and section 8230, subd. "m"), do not provide for change of venue, and as change of venue statutes do not apply to proceedings under such act.

(For other cases, See Master and servant, Dec. Dig. § 396.)

Mandamus by the State, on the relation of John Nelson, against the judge and clerk of the District Court of Wabasha County, to require transfer of a proceeding under the Workmen's Compensation Act to the District Court of Hennepin county. Order to show cause discharged.

Erling Swenson, of Minneapolis, for relator.
Granger & Clemens, for respondent.

PER CURIAM. Order to show cause why mandamus should not issue directing respondents, the judge of the district court of Wabasha county and the clerk of said court, to transfer to the district court of Hennepin county a proceeding, under the Workmen's Compensation Act, instituted in said Wabasha county by the insurer of relator's employer to determine the amount he was entitled to recover on account of an accidental injury received by him in the course of the employment. The accident happened in Wabasha county. Relator, the servant injured, resided and still resides in Hennepin county. The employer, as well as the insurer of the employer, are foreign corporations. The complaint was served April 1, 1919, and the matter set for hearing for May 12th. On April 15th relator served an affidavit for change of venue to Hennepin county and filed proper proof. The respondent clerk refused to transfer the cause, and on the day set for the hearing relator appeared specially, and objected to the jurisdiction of the court, and demanded that the proceeding be transferred to Hennepin county.

The proceeding under the Workmen's Compensation Act is designed to be speedy and summary. No provision for a change of venue is contained therein. Section 8216, Gen. St. 1913, provides that in case of dispute as to the amount of compensation either party may submit the claim "to the judge of the district court of the county which would have jurisdiction in a civil case." Section 8225 specifies the procedure in case of dispute; a complaint must first be presented to the judge for fixing the place and time for hearing, and then the complaint is to be "filed with the clerk of the district court of the proper county." Section 8230, subd. "m":

""The court,' as used herein, shall mean the district court which *Decision rendered, May 29, 1919. 172 N. W. Rep. 486.