pensation shall not affect the claim or right of action of such injured employe against such other person, but such injured employe may proceed at law against such person to recover damages; and any employer having paid, or having become obligated to pay, compensation may bring an action against such other person to recover damages." It being further provided that, since the employer or employe, under such circumstances may sue, either thereof, upon bringing such action, is required to notify the other of such fact, and the one so notified may join as a party plaintiff, and if upon notice he fails to join as party plaintiff, his right of action against such third party shall be barred. The employer's right of recovery in such action, to the extent of the compensation which he is obligated to pay his employe under the provisions of the act, together with attorney's fees and costs, takes precedence over that of the employe. [2] As we have seen, the injury was one for which Miles was entitled to an award of compensation under the provisions of the act, and, conceding it was sustained under circumstances out of which a cause of action for damages arose in his favor against the building company, such cause of action, while not the subject of an assignment by him, was nevertheless, to the limited extent specified in the statute and by operation of law, vested in the employer who, as to his interest therein, was entitled to sue thereon in the manner specified in said section. In cases of the character mentioned in section 26, the interest of the employer in the cause of action which the injured employe has against the third party, whose negligent act caused the injury, is in the nature of a lien thereon which he can enforce by action in his own name and which right cannot be impaired or destroyed by any act of the injured employe not concurred in by the employer. The building company, due to whose act the injury occurred, must be deemed chargeable with notice of the fact that, under the provisions of section 26, petitioner as the employer of Miles had an interest in the latter's cause of action for damages which could not be divested by any act of the injured party, and hence that any settlement made with or release obtained from Miles without petitioner's concurrence could not affect the latter's right to sue for the recovery of any sum which he was obligated to pay the employe under the provisions of the act. From what has been said, it follows there is no merit in the contention that the findings are not supported by the evidence. Conceding, as claimed, that some of the findings consist of conclusions rather than findings of fact, petitioner could not have been prejudiced thereby. The award is affirmed. We concur : Conrey, P. J.; James, J. GLOBE INDEMNITY CO. ET AL. V. INDUSTRIAL COMMISSION OF COLORADO ET AL. (No. 9709.) (Supreme Court of Colorado. Jan. 5, 1920.) 186 Pacific Reporter 522 COMPENSATION; 1. MASTER AND SERVANT—WORKMEN'S DISCRETION OF COMMISSION IN DETERMINING DEGREE OF DISABILITY. By Workmen's Compensation Act, widest discretion is vested in Industrial Commission to determine whether under particular circumstances there should be applied the rule that the degree of disability is to be determined by general impairment of earning capacity, without respect to any particular kind of labor, or determined by impairment of earning capacity in the kind of labor in which claimant was employed when injured; age, education, training, physical and mental capacity, and adaptability being open to consideration. (For other cases, see Master and Servant, Dec. Dig. § 385.) 2. MASTER AND SERVANT-WORKMEN'S COMPENSATION; NO DISTURBANCE OF FINDING OF COMMISSION ON CONFLICTING EVIDENCE. The Supreme Court will not disturb finding of fact by the Industrial Commission, made on conflicting evidence, and determine whether a 70 per cent. impairment of claimant's earning capacity as a miner by reason of his special limitations was in fact a 70 per cent. impairment of his general earning capacity, though with many men it might have been only a slight impairment of general earning capacity. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) En Banc. Error to District Court, City and County of Denver; Francis E. Bouek, Judge. Proceedings under the Workmen's Compensation Act by Matt Kamby, the employee, opposed by the Colorado Mining & Development Company, a corporation, the employer, and the Globe Indemnity Company, a corporation, the insurer. Compensation was awarded by the Industrial Commission, the award affirmed by the district court, and to review its judgment the employer and insurer bring error. Judgment affirmed. Matt Kamby, defendant in error (hereinafter designated as "claimant"), was employed by plaintiff in error the Colorado Mining & Development Company in its mining operations, and plaintiff in error the Globe Indemnity Company was the insurer of the mining company. All were subject to the provisions of the Workmen's Compensation Act (chapter 179, Laws of 1915, p. 515). Claimant was injured on the 14th day of October, 1916, by a falling timber which broke his left leg about two inches above the knee. The sole question for the determination of the commission was the extent and degree of claimant's disability. On this subject there was received in evidence, by agreement, the written report of Dr. Buchtel, whose conclusion is that "temporary disability should be for ten months. Permanent disability five per cent." Also the written report of Dr. Stuver, whose conclusion is: "Considering this man's occupation I believe that his permanent partial disability is not less than from fifteen to twenty per cent." Also the written report of Dr. Hegner, which states: "In my opinion this man's disability is such that he cannot resume his work as a miner. I would make a conservative estimate of seventy per cent. total permanent disability for the present with every prospect of this increasing." In addition there was the oral testimony of Dr. Hegner, who stated that his estimate of 70 per cent. disability was intended to mean disability as a miner, and it was confined solely to the injured leg and not intended to apply to the entire body as affected by the injury in question. "The man's usefulness outside of this depends upon not only his physical condition but his mentality. * * * It depends upon his mentality, and his will and his occupation. * ** If he had the mentality he could earn more than he did as a miner-but I would not put it at 15 or 20 per cent. "Q. Probably not as much as that? A. Certainly, that is plenty." It further appeared that claimant was born in Austria; was a naturalized citizen of the United States; had been in this country 28 years, during practically all of which time he had been engaged in mining. The commission found "that the claimant had sustained 70 per cent. loss of the use of the left leg," and made its award accordingly. From a judgment of the district court affirming such award, plaintiffs in error prosecute this writ. D. L. Webb, of Denver, for plaintiffs in error. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen. (H. E. Curran, of Silverton, of counsel) for defendants in error. BURKE, J. (after stating the facts as above). Plaintiffs in error contend that the commission and the court misconstrued the meaning of the phrase "impairment of earning capacity," erroneously limiting it to the particular occupation in which claimant was employed when injured; that whereas the evidence shows that claimant may have sustained a 70 per cent. "impairment of earning capacity" as a miner, it conclusively appears that his general "impairment of earning capacity" did not exceed 20 per cent.; hence the finding and award of the commission are unsupported by any evidence. It appears that the rule contended for by plaintiffs in error for determining the "impairment of earning capacity of claimants," and which we will designate as "Rule No. 1,” is, “The degree of disability is to be determined by the claimant's general impairment of earning capacity without respect to any particular kind of labor," to support which the following, among other authorities, are cited: Grammici v. Zinn, 219 N. Y. 322, 114 N. E. 397; Boscarino et al. v. C. & D. Inc., 220 N. Y. 323, 115 N. E. 710, Ann. Cas. 1918A, 530; Modra v. Little, 223 N. Y. 452, Ann. Cas. 1918D, 177, 119 N. E. 853. Whereas, the rule contended for by defendants in error, and which we will designate as "Rule No. 2," is, "The degree of disability is to be determined by the claimant's impairment of earning capacity as it relates to the kind of labor at which he was employed when injured," to support which the following, among other authorities, are cited: Duprey v. Md. Cas. Co., 219 Mass. 189, 106 N. E. 686; Gillen v. O. A. & G. Corp., 215 Mass. 96, 102 N. E. 346., L. R. A. 1916A, 371. Both of these contentions may be wrong, as a simple illustration will demonstrate. An expert engraver, past middle age, engaged for years in that business, commanding high wages thereat and having no other special skill and no other regular occupation, is temporarily employed at very low wages carrying brick and mortar in a wheelbarrow in building construction. While so employed he sustains an injury to his right hand, trivial in its effect to incapacitate him for general work, but making it wholly impossible for him ever again to secure employment as an engraver. Both the language and spirit of the act would be violated in his case by the application of Rule No. 1. The same man, under the same circumstances, engaged in the same occupation, sustains an injury to his foot of such a character as to permanently incapacitate him from running a wheelbarrow, but having no effect whatever upon his earning capacity as an engraver. Both the language and spirit of the act would be violated in his case by the application of Rule No. 2. [1] We are of the opinion that the widest possible discretion is vested in the commission to determine whether, under a given set of circumstances and a particular state of the evidence, the first or second rule, or a combination of both, should be applied. Age, education, training. general physical and mental capacity, and adaptability, may, and often should, be taken into consideration in arriving at a just conclusion as to the percentage of impairment of earning capacity. [2] The claimant in the instant case testified before the commission. They were thus enabled to make an application of these tests which is impossible to us. It will be observed that Dr. Hegner in his testimony gave due weight to these considerations, and that Dr. Stuver did not claim to do more than fix a minimum per cent. of impairment of earning capacity. There is sufficient in the record, as it comes before us, to demonstrate that the commission was justified in finding, and may have found, that as to claimant's ability to change his occupation, or perform general physical labor, he was a much older man than his years would indicate; that he was a person of low mentality and scant adaptability; that a 70 per cent. impairment of his earning capacity as a miner, which might have been nothing more than a 5 per cent. impairment of the general earning capacity of many men, was in fact, by reason of his special limitations, a 70 per cent. impairment of his general earning capacity. It thus appears that the alleged error in the instant case goes solely to a finding of fact made by the commission upon conflicting evidence. That this court will not disturb such a finding so made is too well settled to admit of further discussion. Passini v. Industrial Comm., 171 Pac. 369; Industrial Comm. v. Johnson, 172 Pac. 422. The judgment is therefore affirmed. MARCHIATELLO v. LYNCH REALTY CO. 1. MASTER AND SERVANT - WORKMEN'S COMPENSATION; ESSENTIALS OF COMMISSIONER'S FINDING IN RENDERING PRO FORMA JUDGMENT STATED. Under Gen. St. 1918, § 5383, as amended by Pub. Acts 1919, c. 142, § 16, finding of commissioner in rendering a pro forma judgment should omit statement of what witnesses testified to, and should include only the material and relevant facts ascertained by commissioner from the testimony, together with questions of law made by the parties and ruled upon by the commissioner. (For other cases, see Master and Servant, Dec. Dig. § 417 [44].) 2. MASTER AND SERVANT-INJURY "ARISING OUT OF EMPLOYMENT," WITHIN WORKMEN'S COMPENSATION ACT, DEFINED. An injury arises out of an employment, within Workmen's Compensation Act, when it occurs in the course of the employment, and is the result of a risk involved in the employment, or incident to it, or to the conditions under which it is required to be performed. (For other cases, see Master and Servant, Dec. Dig. § 371.) (For other definitions, see Words and Phrases, First and Second Series, Course of Employment.) 3. MASTER AND SERVANT-WORKMEN'S COMPENSATION; INJURY FROM ACCIDENTAL DISCHARGE OF PISTOL BY Where the employer knew that a foreman acting as paymaster kept pistol in the employer's office, and failed to reqire that the pistol be kept out of the sight of a 15 year old errand boy, injuries to a watchman from incidental discharge of the pistol while being handled by the boy was due to risk of the employment, and therefore arose out of the employment. within the Workmen's Compensation Act. (For other cases, see Master and Servant, Dec. Dig. § 373.) Case Reserved from Superior Court, New Haven County; John P. Kellogg, Judge. f Proceeding under Workmen's Compensation Act by Angelo Marchiatello for compensation for death of her husband, opposed by the Lynch Realty Company, employer. Pro forma judgment by the compensation commissioner for employer, and case reserved to Supreme Court of Errors by the superior court. Superior court directed to remand case with instructions to make award in favor of plaintiff. Marchiatello was employed as night watchman on the premises of the respondent employer, who was engaged in erecting dwelling houses. The employer had a small office in a rather remote part of Waterbury, which was used in the work. It contained three rooms, one used at this time as a construction office, another by the foreman, who was asleep at the time in question, and the other room, separated from the construction office by a board partition, in which the night watchman and a fellow employee were engaged in conversing. The night watchman was on Sunday morning, October 21, 1917, engaged upon his duties, and upon a desk in the construction office at this time lay a Colt automatic pistol. This pistol had been in the construction office for a sufficient length of time, so that the fact that it was kept there was known to a number of the employees of the respondent employer, including Cote, a 15 year old boy, who acted as water and errand boy and in part as timekeeper. Cote had seen and handled the pistol before in the office. The foreman was also paymaster, and frequently had large sums of money in his possession in the construction office, and as a matter of peresonal protection he carried with him and kept in reach this pistol. Cote reached the office on this Sunday morning, and saw the pistol on the desk, was curious about it, and while fooling or experimenting with it, without intent on his part to do harm, the pistol went off, and the bullet penetrated the board partition separating this office from the room in which the night watchman was, and hit him while he was engaged in the course of his employment, and inflicted a wound from which he died. Francis P. Guilfoile, of Waterbury, for plaintiff. WHEELER, J. (after stating the facts as above). In this case the compensation commissioner made a pro forma award and filed the same in the superior court and that court, being of the opinion that the decision therein involved principles of law which were not free from reasonable doubt, and which public interest required should be determined by this court, reserved the case for the opinion of this court. General Statutes, 5383, as amended by chapter 142, § 16, Public Acts 1919. [1] The finding of the commissioner should have omitted its statement of what different witnesses testified to, and it should have included such facts as might have been found from this testimony. We cannot find the facts from this testimony, and hence we cannot use it in any degree. The finding should be made up of material and relevant facts proven before, or ascertained by, the commissioner, together with the questions of law made by the parties and those ruled upon by the commissioner. [2, 3] The reservation presents a single question, based upon the |