cent of total disability by the rating department of the Industrial Accident Commission. Liability for compensation was resisted on the ground that the applicant had returned to work prior to the termination of the period covered by the disability indemnity and that the injury, though permanent, did not interfere with his vocation at the time he was injured. The indemnities allowed for permanent disability not being dependent upon the earnings of the injured employee during the period covered by the payments awarded, the defense as raised was determined to be immaterial and compensation awarded in the sum of ninety dollars ($90.00), this amount being the sum of the weekly payments for twelve weeks. H. L. WHITE, (No. 787-March 6, 1915) (Chapter 176, Laws 1913) OLINTO BENETTI, Applicant, vs. A. GUIDI AND COMPANY, Defendant. The only issue presented in this controversy was as to the proper rating to be given the permanent partial disability sustained by the applicant. The evidence showed that on October 20, 1914, he had lost. the index and middle fingers of his left hand at the second joints and the tip of the ring finger, by having his fingers caught in a planer. The evidence also showed that at the time of the accident the age of the applicant was twenty-six, and his occupation that of wagonmaker. Upon these facts the Commission determined that the applicant had sustained a partial disability amounting to 10 per cent. Compensation was accordingly allowed for forty weeks at the rate of five dollars. ($5.00) per week. Applicant was further allowed his reasonable medical and surgical expenses. H. L. WHITE, (No. 794-March 6, 1915) (Chapter 176, Laws 1913) L. H. SORRELL, Applicant, vs. STERLING MOTION PICTURE COMPANY AND ROYAL INDEMNITY COMPANY, Defendants. L. H. Sorrell, in person, for Applicant. B. G. Wills, adjuster for the insurance carrier, for Defendants. The applicant was employed as a racing driver and moving picture actor by the defendant, Sterling Motion Picture Company, at Hollywood. On November 12, 1914, while driving a racing car in the production of a picture, the car upset, causing painful injuries. Necessary medical treatment was furnished by the defendants for a time but compensation was not paid for the reason that disability was claimed by them to have terminated within two weeks from the date of the accident. The applicant also contracted a bill for ninety-eight dollars ($98.00) for massage which he claimed should be paid him by the defendants. The testimony showing that no disability had been sustained lasting beyond the fourteen days waiting period prescribed by law, and that the defendants had tendered the necessary medical treatment at their own expense, which had been refused by the applicant, no award was made in favor of the latter. H. L. WHITE, (No. 797-March 6, 1915) (Chapter 176, Laws 1913) TONY VINCENT, Applicant, vs. JOSEPH LOUIS, Defendant. FARM LABOR-BALING HAY UNDER CONTRACT.-Where a contractor engages in baling hay with different farmers upon their ranches, and his employee is injured while on the farm baling hay for his employer and for the farmer, such injured employee is engaged in farm labor at the time of the accident and is not within the protection of the Workmen's Compensation, Insurance and Safety Act. The applicant, Tony Vincent, was engaged on September 10, 1914, in baling hay at Rio Vista, in the employment of defendant, Joseph Louis. In the course of the work a bolt broke in the derrick seat, causing him to fall and sustain a severe strain. As a result the applicant claimed to have a hernia. The evidence showed that the employer was baling hay under contracts with farmers upon different ranches in the vicinity of Rio Vista. It was accordingly decided that the applicant was engaged in farm labor at the time of his injury and was not under the protection of the compensation act. H. L. WHITE, Secretary. (No. 798-March 6, 1915) (Chapter 176, Laws 1913) CESIRA GRASSINI, Applicant, vs. ARCATA AND MAD RIVER RAILROAD COMPANY AND GUARDIAN CASUALTY AND GUARANTY COMPANY, Defendants. Cesira Grassini, in person, for Applicant. Irwin T. Quinn, attorney, for Defendants. The husband of the applicant, Cesira Grassini, was killed on November 26, 1914, at Warren Creek trestle, Humboldt County. At the time of the accident he was working as a section hand for the Arcata and Mad River Railroad Company. While traveling upon a hand car he saw a train approaching and jumped from a trestle to avoid a collision, falling a distance of thirty-five feet to the bottom of a gulch and sustaining a broken neck. The only issue raised in this application for a death benefit was the extent of dependency, the defendants referring this issue to the Commission for the reason that they had no information as to who the dependents were or extent of dependency. After taking testimony the Commission found that the applicant, Cesira Grassini, was the widow of the deceased employee, had been living with him as his wife at the time of his death, and was, therefore, entitled under the conclusive presumption of dependency provided by section 19 (2) of the compensation act, to three times the average annual earnings of the deceased. The applicant was awarded the sum of one thousand eight hundred dollars ($1,800.00) payable in weekly installments of seven dollars and fifty cents ($7.50). H. L. WHITE, (No. 799-March 6, 1915) (Chapter 176, Laws 1913) THOMAS CARROLL, Applicant, vs. ALASKA PACIFIC STEAMSHIP COMPANY, Defendant. Thomas Carroll, in person, for Applicant. McCutcheon, Olney & Willard, attorneys, by J. B. McKeon, for The applicant, a stevedore, at Oakland, on the 24th of. August, 1914, while going down a ladder into the hold of the ship Admiral Farragut, which was moored at Long Wharf, slipped and fell into the hold, causing a fracture of the heel and a crushing of the vertebræ of the lower spine. The defendant had the opportunity to but did not furnish medical assistance. At the time of the hearing there was a deformity of the spine and the injured man needed treatment. It appearing to the Commission that unless adequate medical treatment for a considerable period of time be furnished the applicant that his disability would become permanent, no determination was made as to the permanency of the disability, and that determination was postponed until such time as the existence and extent of such disability could be definitely ascertained by competent medical experts. An award was made in the sum of $312 for the total temporary disability up to the 23d of February, 1915, and thereafter the sum of $13 a week until the termina tion of the disability. Also the reasonable value of medical services rendered within ninety days to applicant. H. L. WHITE, Secretary. NOTE. On April 2, 1915, the defendant petitioned for a rehearing on jurisdictional grounds and also upon the ground that there was no evidence to sustain the finding of the Commission as to the amount of applicant's average annual earnings, and it appearing that for stevedores the average annual earnings are determined by the Commission based upon an agreement between a considerable number of employers and employees engaged in the stevedoring business as to the fair approximation of average earnings of stevedores, and that evidence of such agreement was by inadvertence omitted from the record of this proceeding, and that a further hearing would be necessary to correct this omission, an order granting a rehearing was made by the Commission on April 27, 1915. A hearing was had and thereafter on the 23d of June, 1915, the Commission made an order confirming original findings and award. On July 15, 1915, defendants again made petition for a rehearing on jurisdictional grounds and the Commission, for the reason that the issues raised had been previously considered, made an order denying rehearing on July 27, 1915. A writ of review was issued out of the Supreme Court and on September 10, 1915, the court made an order that the case be submitted on briefs. (No. 829-March 6, 1915) (Chapter 176, Laws 1913) O. M. SPANGLER, Applicant, vs. J. J. PHILBIN AND AETNA LIFE INSURANCE COMPANY, A CORPORATION, Defendants. PROXIMATE CAUSE-FRACTURE OF LEG-SYPHILITIC CONDITION OF BONE-LIABILITY OF EMPLOYER.-Where an employee sustains a very slight blow to his leg not sufficient to do more than bruise and break the skin of a normal person, but by reason of a syphilitic condition his bones have become very brittle, and he sustains a fracture because of the said slight blow, the employer is not liable for compensation on account of such fracture. The disability in this case was proximately caused, not by accident, but by specific disease. LIABILITY OF EMPLOYER UNNECESSARY OPERATION-ERROR OF APPLICANT'S PHYSICIAN. Where, by reason of an oversight of applicant's physician in misunderstanding and misreporting the result of a Wassermann test at the time of a conference upon the condition of the injured employee, a very painful and unnecessary operation is performed upon a wrong theory of the cause of the illness, and by reason of such unnecessary operation, the period of disability of the applicant is greatly prolonged, and aside from this factor no cause appears by which the applicant should be allowed compensation for his injury, the applicant is not entitled to compensation by reason of this error in judgment and unnecessary operation, even though the insurance company acquiesced in the mode of treatment prescribed by the applicant's physician and sanctioned such treatment. (From opinion on order denying rehearing. Commissioner Will J. French dissenting.) The facts are stated in the opinion. Compensation was denied. E. L. Stockwell and C. F. Laumeister, attorneys, for Defendants. OPINION. On the 1st day of June, 1914, one O. M. Spangler, applicant herein, a foreman plasterer engaged upon one of the buildings at the Panama Pacific International Exposition, while ascending a ladder to a scaf folding accidentally struck the shin of his right leg against a brace, fracturing the tibia. He suffered disability forthwith, and for some weeks, but it was not regarded as serious or that a fracture had occurred. On the 21st of July he was sent to a hospital where a growth was discovered which his physician took to be sarcoma. On the 23d of July he was operated on and the growth removed and a piece of bone was taken from the well leg and grafted in to take the place of diseased bone in the injured leg. He remained in the hospital sixty days and then for thirty days walked around on crutches when, in stepping down some marble steps, he came down rather heavily upon his leg from which the bone had been taken and fractured the tibia of that leg. He was returned to the hospital, re-examined and found to be suffering with a specific disease of great virulence which has reached the tertiary stage. The A principle of very general application in determining controversies under compensation laws is that the employer takes his employee subject to the physical condition he is in at the time he enters the employment and is responsible for any injuries which may happen to such employee arising out of and happening in the course of the employment, even though a normal person might not have been injured by the accident complained of, but there are certain exceptions to the application of this rule, few in number, and applicable only in extreme cases. case under consideration affords one of these exceptions. Applicant is a sufferer from spontaneous fracture not at all due to any injury sustained in the course of the employment, but, as stated above, to a specific disease from which he has long suffered. The blow which he could have given to his shin in striking the brace while stepping from the ladder to the scaffolding was scarcely of enough force to break the skin of the shin. It might conceivably have broken a lamp chimney but could have worked no injury to the bones of a leg not rendered extremely brittle by a cause lying outside of anything for which the industry or occupation of applicant could in any wise be responsible. It matters not that applicant was ignorant of the fact of his diseased condition, or that the physicians in charge were slow in diagnosing the nature of his disease, but when, after the fullest investigation, the nature of the disability became manifest, this Commission had no alternative but to deny any and all compensation, either for medical treatment or as a disability indemnity, on the ground that the injury complained of did not arise out of the employment. It was due to a |