the duty to provide medical, surgical, and hospital treatment, and, "in case of his neglect or refusal seasonably to do so," makes him liable for the resonable expense incurred by the employee in providing the same. The intent of the act obviously is that the employer shall, in the first instance, have the right to designate and select the physicians who are to give treatment to the employee. The latter is authorized to make his own selection at the expense of the employer only where the employer has neglected or refused to provide the nccessary service. City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916Ă, 1, Ann. Cas. 1915B, 847. See Mass. Bonding Co. v. Pillsbury, 170 Cal. 767, 151 Pac. 419. In this case Pryor made his own arrangements for medical and hospital aid, and the question is whether there was any evidence of neglect or refusal on the part of his employer to supply him with this service. It appears that immediately after the accident Pryor went to see a physician, who merely examined him and permitted him to return to work. He had no further medical care while he remained at Hermosa Beach. Thereafter he went to Porterville, and while there consulted a physician, by whom he was sent to an osteopath for treatment. In October, 1916, some three months after the accident, Pryor left for Portland, Or. While there he incurred further bills for medical treatment and hospital service. On the original submission of the application, the commission found that the employer had neglected to furnish medical and surgical services, and charged him and the insurance carrier with the value of all services rendered by physicians at the place of injury, at Porterville, and at Portland, Or. A rehearing was granted on the single issue of medical expense, and thereafter the commission made its final order, reciting that Pryor had, on the day following the accident, declined the medical treatment then tendered him by his employer, but that the employer had actual knowledge, while the applicant was in Porterville, that he was receiving further medical treatment, and had neglected thereafter to again offer medical treatment. Accordingly the employer was held liable for the charge of the physician consulted at the place of the accident, and for bills incurred in Portland, Or. [4] No question is made of the propriety of allowing the charge of Dr. Hembree, the physician who first examined Pryor. No medical service was provided or tendered at the time of the accident, and the injured man was entitled to consult a physician of his own choice. The briefs discuss to some extent the question of whether the applicant's conduct on the next day was such as to relieve the employer from any ●bligation to then furnish medical service. On this question the commission, on its final hearing, decided in favor of the employer, and we must therefore start with the assumption that when Pryor went to Porterville the employer had not been guilty of any neglect upon which it could be charged with expenses thereafter to be incurred by him. At that time there was nothing to indicate to Leadbettor or the insurance carrier that Pryor either desired or needed medical attention. The conclusion that there was a subsequent neglect, and á consequent liability to pay for the bills incurred in Portland, is based upon the view that the employer had actual knowledge, while Pryor was in Porterville, that he was receiving further medical treatment, and that the defendants should, upon receiving such knowledge, have immediately offered medical treatment of their own choice. Pryor testified that he had told Leadbettor that he was receiving treatment at Porterville. But the commission found that the date of this communication could not be fixed, and made no allowance for the treatment obtained by Pryor at Porterville. On October 16th, when he was leaving for Portland, Pryor wrote a letter to Leadbettor. In it he said: "As for myself, I was injured, while on a job at Hermosa Beach by a bent falling on me. My back was merely examined by Dr. Melvin [a physician at Porterville] and I was sent to an osteopath for treatment. Is the policy made out so I can send the bill to the insurance company, as it hasn't been paid yet?" Under no reasonable interpretation can it be said that this letter conveyed to its recipient information that Pryor still required medical treatment for his injury. The plain import of the communication is that he had already received the needed treatment. The purpose of the communication is shown by the closing sentence, in which he inquires whether the bill may be sent to the insurance company for payment. The only fair interpretation of the letter is that the service had ended, and the claim on that account matured. There is no warrant for saying, in the face of this statement, that there rested upon the employer a duty to tender or supply additional medical treatment, or that his failure to do so constituted any neglect on his part. The award should therefore be modified by eliminating the provision charging the petitioners with liability for the surgical and hospital bills incurred in Portland. The award is annulled, and the proceeding remanded to the Industrial Accident Commission for the making of a new award in accordance with the views expressed in this opinion. We concur: Angellotti, C. J.; Melvin, J.; Wilbur, J.; Richards, Judge pro tem. DISTRICT COURT OF APPEAL OF CALIFORNIA. BASSOT ET AL. ບ. UNITED RAILROADS OF SAN FRANCISCO. (Civ. 2362.)* 1. PARTIES "REAL PARTY IN INTEREST”—EMPLOYEE. Although adjustment and payment of compensation operated, in view of Workmen's Compensation Act, § 31, to transfer legal title to employee's claim for damages against defendant, alleged to have caused the injury to the employer, or his surety, the employee still retained an equitable interest, and was a real party in interest, in view of Code Civ. Proc. § 378; section 369 being permissive only. (For other cases, see Parties, Dec. Dig. § 6[2].) (For other definitions, see Words and Phrases, First and Second Series, Real Party in Interest.) Appeal from Superior Court, City and County of San Francisco; Daniel C. Deasy, Judge. Action by Marcel Bassot and another against the United Railroads of San Francisco. From judgment of nonsuit entered against him, plaintiff named appeals. Affirmed. L. M. Hoefler and George F. Snyder, both of San Francisco, for appellant. * Decision rendered, Dec. 4, 1918. Rehearing denied by Supreme Court Jan. 30, 1919. 177 Pac. Rep. 884. Wm. M. Cannon and W. M. Abbott, both of San Francisco, for respondent. LENNON, P. J. This is an action for damages for personal injuries sustained by plaintiff Bassot in a collision with the street car of defendant. At the time of the accident, Bassot was an employee of a corporation that carried compensation insurance with plaintiff insurance company. The compensation due Bassot having been adjusted and paid, this action was commenced in the name of Bassot and the company. Defendant's demurrer to the complaint on the ground of misjoinder of parties plaintiff was overruled, and, after issue joined, the cause proceeded to trial. At the close of the evidence, defendant made a motion for nonsuit as to both plaintiffs, which was granted as to Bassot on the ground that he was improperly joined as a party plaintiff, and denied as to the insurance company. The trial proceeded as between the company and defendant, and resulted in a verdict for defendant. This is an appeal by Bassot from a judgment of nonsuit entered against him. The record in the case consists simply of the judgment roll and the proceedings on the motion for nonsuit. * [1] Section 31 of the Workmen's Compensation Act (St. 1913, p. 295) provides that the making of a lawful claim for compensation "shall operate as an assignment" of any right to recover damages which the injured employee may have against any other person for the injury, and the employer or his surety "shall be subrogated to any such right." The section also provides that "any amount collected by the employer* in excess of the amount paid by the employer, or for which he is liable, shall be held by him for the benefit of the injured employee." Respondent is correct in its contention that this section operates to transfer the legal title to the claim for damages to the employer or his surety, but it is also true that the employee still retains an equitable interest therein as to any surplus that may be recovered over the amount paid him by the employer, and he is therefore a real party in interest in the litigation. Although section 369 of the Code of Civil Procedure provides that "a trustee of an express trust * * may sue without joining * the person for whose benefit the action is prosecuted," section 378 of that Code provides that "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this title." There is ample authority in this state to the effect that the provisions of section 369 are permissive only, and that the beneficiary of the trust may properly be joined as a party plaintiff with the trustee by virtue of section 378. Daley v. Cunningham, 60 Cal. 530; Cerf v. Ashley, 68 Cal. 419, 9 Pac. 658. It therefore follows that, while Bassot was not a necessary party to the suit, he was at all events a proper party thereto, and that the lower court was in error in granting the motion for a nonsuit and dismissing the action as to him. * [2] We are of the opinion, however, that the judgment should be affirmed because it affirmatively appears from the record that the error of the trial court was harmless. Although Bassot was dismissed from the action, he remained represented in court by the agent designated by the statute to represent him as plaintiff. The case was conducted to its conclusion by the attorney whom Bassot had selected to represent him. The verdict of the jury, amounting as it does to a finding that the defendant was without fault in the accident out of which the action arose, was a negation of the existence of any right whatsoever in Bassot, as Bassot's interest in the case was of necessity predicated upon a showing of negligence upon the part of the defendant and a recovery in excess of the sum that Bassot had already received as compensation. Judgment is affirmed. We concur: Sturtevant, Judge pro tem.; Beasly, Judge pro tem. DISTRICT COURT OF APPEAL OF CALIFORNIA. FIRST DISTRICT, DIVISION 1. California, CROSARO ET AL. ບ. INDUSTRIAL ACCIDENT COMMISSION ET AL. (Civ. 2566.)* MASTER AND SERVANT-WORKMEN'S COMPENSATION ACT -REVIEW. Where Industrial Accident Commission had power to hold hearing, to take evidence, and to make findings thereon, its findings, though erroneous, are binding on the Court of Appeal, under St. 1913, p. 318, § 84; court's only power being in case where commission exceeds its authority. (For other cases, see Master and Servant, Dec. Dig. § 417 [7].) Proceedings under the Workmen's Compensation Act by Angelo Crosaro and another for compensation for death of Guiseppe Crosaro. Order of Industrial Accident Commission refusing petitioners any allowance, and petitioners apply for writ of review to have order annulled. Affirmed. I. F. Chapman, of San Francisco, for petitioners. Chris. M. Bradley and Barry J. Colding, both of San Francisco (Theodore Hale, of San Francisco, of counsel), for respondents. STURTEVANT, Judge pro tem. This is an application by the petitioners for a writ of review to have annulled an order of the Industrial Accident Commission refusing the petitioners any allowance as dependents under the Workmen's Compensation Act. The commission had regular hearings and made a full set of findings. From the latter it appears that the petitioners are, respectively, the surviving father and mother of Guiseppe Crosaro, who was killed in an accident in the early part of 1918; that Guiseppe was 23 years of age at the time of his death and had never been married. There is an express finding that neither of the petitioners was, at the time of the death of Guiseppe, "wholly nor partially dependant upon the employee for support." In their application the petitioners aver that said last-mentioned finding is not supported by the evidence, and they ask that the order of the commission refusing them an allowance as dependents be annulled. We think the prayer of the petitioners cannot be granted. The commission took evidence on the subject of dependency, and the evidence shows that the petitioners could have lived, and did live, on the earnings of the father; and, as the commission had the power to hold the hearing, to take evidence, and to make findings thereon, such findings are, under these facts, binding on this court. True, the petitioners allege that "the findings are not supported by the evidence," but their real contention in this behalf is that the commission erred in its conclusions based on the evidence. Not intimating that the commission erred, yet if it did no court has power to correct mere errors of the commission. Stats. 1913, p. 279, § 84. It is only excess of power that can be examined into by the courts. As an abstract proposition, power to hear and determine is power to determine it wrong as well as right. McFarland v. McGowen, 98 Cal. 331, 33 Pac. 113. * Decision rendered, Nov. 25, 1918. 177 Pac. Rep. 489. Vol. LIII-21. The order of the commission is affirmed. We concur: Lennon, P. J.; Beasly, Judge pro tem. DISTRICT COURT OF APPEAL OF CALIFORNIA. CELLA INDUSTRIAL ACCIDENT COMMISSION ET AL. MASTER AND (Civ. 2570.)* SERVANT-WORKMEN'S COMPENSATION MEDICAL CASE-RIGHT TO AWARD. Where workman, directed by master to one hospital, went to another and was refused care, he was not entitled to an award for medical services under St. 1913, p. 290, § 19, subd. (b). (For other cases, see Master and Servant, Dec. Dig. § 3931⁄2.) Application by Rafaelo Cella, sometimes known as R. Lee for writ of review to annul an order of the Industrial Accident Commission, denying an award in petitioner's behalf in his proceeding for workmen's compensation opposed by the Producers' Hay Company, employer, and the Etna Life Insurance Company, insurer. Order of the Commission affirmed. I. F. Chapman, of San Francisco, for petitioner. Chris. M. Bradley and E. L. Stockwell, both of San Francisco, for respondents. STURTEVANT, Judge pro tem. This is an application for a writ of review for the purpose of having annulled an order made by respondents refusing to make an award in behalf of the petitioner covering hospital charges. About November 9, 1917, Rafaelo Cella was injured while in the employment of Producers' Hay Company (which is hereinafter refered to as the company). On the 16th he was told by the company's physician to go to the St. Francis Hospital. The petitioner did not do so, but went to St. Joseph's Hospital, and now claims that he did so through ignorance. In this behalf he alleges that he is an Italian, and can neither read, write, nor speak English. However, the fact was clearly established that the petitioner was directed to go to the St. Francis Hospital and the address was given in writing. These facts do not show any neglect or refusal on the part of the company to furnish the petitioner hospital service. Yet it is clear that the commission could not make an award to petitioner for such services except it be first shown that the company had neglected or refused to furnish such service. Stat. 1913, p. 279, § 19, subd. (b). The respondent commission did not exceed its jurisdiction in refusing the petitioner an award. Its order is therefore affirmed. We concur Lennon, P. J.; Beasly, Judge pro tem. * Decision rendered, Nov. 25, 1918. 177 Pac. Rep. 490. |