"In an acton under the Workmen's Compensation Act a recovery can be had only upon the basis of disability to labor resulting from the injury received in the course of employment, wthout the intervention of an independent cause, the separate consequences of which admit of definite ascertainment. It cannot be augmented by the fact that the disabling effects of the injury are increased or prolonged by incompetent or negligent surgical treatment, even where the employer is responsible therefor." See also, Della Rocca v. Stanley Jones & Co. (Ct. of Appeal England, Jan. 21, 1914) W. C. & Ins. Rep. 34, annotated in 6 N. C. C. A. 624, and Humber Towing Co., Ltd., v. Barclay, 5 Butterworth's W. C. C. 142 (1911). [1,2] The difficulty in applying the principle announced in the cases cited to the case at bar lies in the fact that here upon the hearing on the petition, there was testimony of physicians to the effect that claimant's present condition of total disability "was entirely due to the original injury in 1915 and that such injury was the proximate cause of his present condition." Another physician testified: "I would consider Mr. Smith totally disabled, and that this condition of total disability is due in large part to the original injury in April, 1917 (1915?). Approximately the original injury was the cause of his resulting present physical condition. I would state that even if this doctor, who treated this arm in the summer of 1915, had done the best that could ordinarily be done by a careful, skilled, prudent physician this arm would still, or might reasonably still, at the present time, be in a condition resulting in total disability." There was other medical testimony before the board from which, if believed by the board, it would appear that by submitting to an operation or operations the condition of plaintiff's arm would be greatly improved, and that thereby he might regain from 25 to 50 per cent of its normal use. This court, however, does not concern itself with the determination of questions of fact, when there is any competent testimony supporting the conclusions reached by the board. In the light of the statements of the physicians quoted above, it can hardly be said that there was no testimony in the case warranting the board in concluding that the claimant's present condition of total disability is due to the original accident. [3] Not complicated, therefore, with claimant's action against Dr. Wedgewood, the order of the board denying the petition should be affirmed. Does the fact that claimant started suit against Dr. Wedgewood by declaration in which he averred that his condition of total disability was the result of malpractice, and not an original accident, estop him from now asserting that such condition is due to the original injury? We are of opinion that the board was correct in holding that the averments of the declaration were not conclusive as admissions against the claimant, but might be considered by the board as evidence in connection with all the other evidence in the case. Ruth v. Witherspoon-Englar Co., supra. [4] The only question remaining is whether respondent State Accident Fund should have credit for the $2,125 received by the claimant from Dr. Wedgewood in reduction of the amount due from it to claimant under the terms of the statute. Our law makes no provision for the application of sums received by a claimant from a third party, not connected with the original accident, in reduction of the master's liability under the act. If such an application should be made, it is a matter of legislative action. rather than judicial interpretation. The order of the board stands affirmed. SUPREME COURT OF MINNESOTA. STATE EX REL. LONDON & LANCASHIRE INDEMNITY CO. OF DISTRICT COURT OF HENNEPIN COUNTY ET AL. (No. 21156.)* 1. MASTER AND SERVANT - INTOXICATION WORKMEN'S COMPENSATION ACT EVIDENCE. The evidence sustains the finding of the trial court that an accident resulting in death was not caused by the intoxication of the decedent and that an award was not prevented by the provision of the Workmen's Compensation Act contained in Gen. St. 1913, § 8203. (For other cases, see Master and Servant, Dec. Dig. § 405[1].) 2. MASTER AND SERVANT - WORKMEN'S COMPENSATION ACT-ACCIDENT ARISING IN COURSE OF EMPLOYMENT -EVIDENCE. The evidence sustains a finding that an accident resulting in the death of the decedent, a traveling man, who was driving an auto furnished by his employer and was on his way to his home, which was the point from which he worked, arose in the course of his employment. (For other cases, see Master and Servant, Dec. Dig. § 405[4].) Certiorari from District Court. Hennepin County; William E. Hale, Judge. Certiorari by the State, on the relation of the London & Lancashire Indemnity Company of America, against the District Court of Hennepin County and others to review a judgment of that court, awarding compensation, under the Workmen's Compensation Act, for the death of Thomas H. Chambers. Affirmed. John F. Bernhagen, of Minneapolis, for relator. McNamara & Walters, of St. Paul, and H. V. Mercer & Co., of Minneapolis, for respondents. DIBELL, J. Certiorari to the district court of Hennepin to review its judgment awarding compensation under the Workmen's Compensation Act for the death of Thomas H. Chambers. The judgment gave compensation against the relator insurance company and the employer and fixed the obligations between themselves of the the insurance company and the employer. Chambers was in the employ of C. C. Wyman & Co. of Minneapolis as a traveling solicitor in the grain business. He was killed in North Dakota on May 5, 1917, by the overturning of an auto furnished him by the company and which he was driving. One phase of the case was considered in State v. District Court, 139 Minn. 205, 166 N. W. 185. The Wyman Company carried indemnity insurance in the relator. The relator claims that there can be no recovery under the compensation act because the intoxication of Chambers was the cause of the accident, and further because the accident did not arise in the course of his employment. It also claims that its policy did not promise indemnity to *Decision rendered, Jan. 3, 1919. 170 N. W. Rep. 218. Syllabus by the Court. the Wyman Company for accidents to its employees' without the state and therefore it is not liable. These are the issues. [1] 1. The relator claims that Chambers was intoxicated and is precluded from recovering by G. S. 1913, § 8203, which prevents recovery when intoxication is the "natural and proximate cause" of the accident. The burden of proof is upon the employer. The court found against the relator, and its finding is abundantly sustained. [2] 2. The relator claims that the accident did not occur in the course of Chambers' employment. He was engaged as a solicitor in the grain business and had his home at Bismarck, which was the point from which he worked. He had been using the auto in the course of his business during the day and was returning homeward. The evidence sustains, if indeed it does not require, a finding that he was in the course of his employment. It is much stronger than the evidence in State v. District Court, 166 N. W. 274, which is in some respects similar. [3] 3. The controversy between the Wyman Company and the insurance company involves the single question whether the insurance policy covered employees outside of Minnesota and the issue is raised by appropriate pleadings between them. The policy purported to give indemnity in consideration of the payment of the estimated premium and the representations contained in a schedule attached. This schedule stated the address of the insured, the duration of the risk, the location of all places where business operations were to be conducted, the total estimated annual wages, the description of business operations to be insured, and a number of other matters not presently material. It stated the place of business operations to be at Minneapolis and Duluth, giving the office address of the insured at both places, and elsewhere in Minnesota. Under the head of "Description of Business Operations to be Insured,” there was the following: "Grain Commission. "Clerical force and other employees engaged exclusively in office duties. "Salesmen, collectors and messengers, traveling in Minnesota. "Drivers of Automobiles and their helpers. "Drivers of teams and their helpers." The Wyman Company did not prepare nor sign this schedule. It was not presented to it. It came attached to the policy from the agents of the insurance company a few days before the expiration of another policy the place of which it was to take. The policy itself gave indemnity as follows: "(2) Against liability to pay the compensation, and to furnish the medical and surgical treatment provided by the Minnesota Workmen's Compensation Law. "Condition A. The agreement shall apply to accidents occurring at the place or places described in the Schedule, and shall include also drivers and their helpers, salesmen, collectors and messengers, whose wages are included in the estimated pay roll on which the premium of this policy is based, whereever they may be in the service of the assured, and while engaged in the trade or business described in the Schedule." The description in the schedule is general in terms. It contains no express territorial limitation of liability, but it does refer to men traveling in Minnesota under the heading quoted. The parties had in mind indemnity for liability arising under the Workmen's Compensation Act. This act applies to accidents outside the state in connection with business done in the state and incident to its conduct. In response to this schedule, if it be considered a proposal for insurance, and this is altogether favorable to the relator, the company issued a policy from which we have quoted above. In that policy is assumed to give indemnity for injuries to or the death of men of the class to which Chambers belonged "whose wages are included in the estimated pay roll on which the premium of this policy is based wherever they may be in the service of the assured and while en gaged in the trade or business described in the schedule." Chambers' wages were included in the estimated pay roll. There is no ambiguity in the policy. If there is any anywhere, it comes when the policy and schedule are put together. The policy proper, in terms not susceptible of misunderstanding, gives just the indemnity which the Wyman Company claims. The insurance company signed and issued the policy, containing the promise of indemnity quoted. It cannot now avoid liability because of the description in the schedule. The court was right in holding the insurance company primarily liable. Judgment affirmed. COURT OF APPEALS OF NEW YORK. TRAVELERS' INS. CO V. PADULA CO., INC.* 5. MASTER AND SERVANT-WORKMEN'S COMPENSATION LAW-ACTION FOR DEATH. Despite Code Civ. Proc. § 1902, providing that actions for wrongful death may be maintained by the administrator or executor, held that, under Workmen's Compensation Law, § 29, as amended by Laws 1916, c. 622, § 7, where the dependents of an employee killed by the negligence of another not in such employ elected to claim under the act, and the cause of action was assigned to the insurance carrier, etc., the insurance carrier could maintain against the wrongdoer an action for the employee's death. (For other cases, see Master and Serant, Dec. Dig. § 389.) 6. MASTER AND SERVANT - WORKMEN'S COMPENSATION— POWER OF LEGISLATURE. Under Const. art. 1, § 19, the Legislature, though restricted by section 18 from abrogating the existing cause of action for death, had power to provide that one negligently killing an employee subject to the Workmen's Compensation Law should be liable to his dependents instead of next of kin. (For other cases, see Master and Serant, Dec. Dig. § 347.) Chase and Hogan, JJ., dissenting. Appeal from Supreme Court, Appellate Division, First Department. Action by the Travelers' Insurance Company against the Louis Padula Company, Incorporated. From an order of the Appellate Division (170 N. Y. Supp. 869)-reversing an interlocutory judgment, which overruled a demurrer to the complaint, sustaining the demurrer and dismissing the complaint, plaintiff appeals. Reversed, and interlocutory judgment reinstated and affirmed. E. C. Sherwood, of New York City, for respondent. COLLIN, J. The action is based upon the provisions of section 29 of the Workmen's Compensation Law (Consol. Laws, c. 67, as amended by * Decision rendered, Nov. 12, 1918. 121 N. E. Rep. 348. Laws 1916, c. 622). The section, prior to amendments (Laws of 1917, c. 705, § 8) inapplicable here, was: "Subrogation to Remedies of Employees.-If an employee entitled to compensation under this chapter be injured or killed by the negligence or wrong of another not in the same employ, such injured employee, or in case of death, his dependents, shall, before any suit or claim under this chapter, elect whether to take compensation under this chapter or to pursue his remedy against such other. Such election shall be evidenced in such manner as the commisison may by rule or regulation prescribe. If he elect to take compensation under this chapter, the cause of action against such other shall be assigned to the state for the benefit of the state insurance fund, if compensation be payable therefrom, and otherwise to the person, association, corporation, or insurance carrier liable for the payment of such compensation, and if he elect to proceed against such other, the state insurance fund, person, association, corporation, or insurance carrier, as the case may be, shall contribute only the deficiency, if any, between the amount of the recovery against such other person actually collected, and the compensation provided or estimated by this chapter for such case. Such a cause of action assigned to the state may be prosecuted or compromised by the commission. A compromise of any such cause of action by the employee or his dependents at an amount less than the compensation provided for by this chapter shall be made only with the written approval of the commission, if the deficiency of compensation would be payable from the state insurance fund, and otherwise with the written approval of the person, association, corporation, or insurance carrier lialiable to pay the same. Wherever an employee is killed by the negligence or wrong of another not in the same employ and the dependents of such employee entitled to compensation under this chapter are minors, such election to take compensation and the assignment of the cause of action against such other and such notice of election to pursue a remedy against such other shall be made by such minor, or shall be made on behalf of such minor by a parent of such minor, or by his or her duly appointed guardian, as the commission may determine by rule in each case." The complaint alleged in effect: In May, 1915, the plaintiff was, under the Workmen's Compensation Law, the insurance carrier of the Brand & Silverstein Iron Works of which Adolph Littman was an employee. Littman received injuries, solely through the negligence of the defendant, Louis Padula Company, Incorporated, causing his death, under conditions making the law applicable, and the employer and the plaintiff, the insurance carrier, liable. He left surviving as dependents a widow and two minor children, who elected to take compensation under the law, and not to pursue their remedy against the defendant, which was not in the employ of the iron works. In June, 1915, the state Industrial Commission, in due course of proceeding, awarded compensation to the dependents, for the payment of which the plaintiff was and is liable. The dependents duly assigned to the plaintiff, with the approval of the commission, the cause of action against the defendant for negligently causing the death of Littman. Judgment for the sum of $25,000 is demanded. The defendant demurred to the complaint on the ground that it did. not state facts sufficient to constitute a cause of action. The Special Term overruled the demurrer. The Appellate Division reversed the dcision of the Special Term, sustained the demurrer, and dismissed the complaint on the ground that the action must, under section 1902 of the Code of Civil Procedure, be prosecuted by an executor or administrator of Littman, Section 1902 is: "Action for Causing Death by Negligence, etc.-The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent, who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, |