The Workmen's Compensation Law Journal

pensation is allowed under the Maryland act is limited can make no difference so far as the question here presented is concerned.

The appellant's counsel contended that the court had no power to grant the prayer referred to in the early part of his opinion, which declared as a matter of law that the injury did not arise out of and in the course of Harrison's employment, because that was in all cases a question of fact to be found either by the jury or by the court sitting as a jury. In support of this contention he relied upon the cases of Jewel Tea Co. v. Weber, 132 Md. 178, 103 Atl. 476; Coastwise Shipbuilding Co. v. Tolson, 132 Md. 203, 103 Atl. 478; and Beasman v. Butler, 133 Md. 382, 105 Atl. 409. Under the facts and circumstances of those cases the court was merely announcing the general rule that all facts and inferences from facts adduced in support of the claimant's case must be submitted to the jury. The question as to whether an injury arose out of or in the course of the employment is ordinarily, like negligence or want of probable cause, a mixed question of law and fact, but when the facts have been ascertained and agreed upon by the parties, or are undisputed, and there is no dispute as to the inference to be drawn from the facts, the question becomes one of law and may be decided by the court.

It follows from the views expressed that the court committed an error in granting the prayer referred to and in reversing the award of the State Industrial Accident Commission.

Judgment reversed, with costs, and new trial awarded.

CLARKSON v. NORTHWESTERN CONSOL. MILLING CO. et al.

(No. 21730.)

(Supreme Court of Minnesota. Jan. 30, 1920.)

175 Northwestern Reporter, 997.

(Syllabus by Editorial Staff.)

MASTER AND SERVANT

WORKMEN'S COMPENSATION "SETTLEMENT" UNCHANGED BY RELEASE WITHOUT CONSIDERATION.

Where an employer and an injured employee agreed, with the court's approval, as to the compensation for a temporary disability, a subsequent release executed by the employee without consideration or the approval of the court was not a "settlement" within Gen. St. 1913, § 8216, authorizing settlements and did not affect the original settlement.

(For other cases, see Master and Servant, Dec. Dig. § 382.)

(For other definitions, see Words and Phrases, First and Second Series, Settlement.)

Appeal from District Court, Hennepin County; Jos. W. Molyneaux. Judge.

Proceedings under Workmen's Compensation Act by Charles Clarkson against the Northwestern Consolidated Milling Company, employer, and the Travelers' Insurance Company, insurer, for compensation for injuries. From a judgment for the employee, defendants appeal. Affirmed.

L. N. Foster and Hoke, Krause & Faegre, all of Minneapolis, for appellant. George S. Grimes, of Minneapolis, for respondent.

PER CURIAM. Charles Clarkson was injured in April, 1918, while in the employ of the relator Milling Company, as the result of an accedent, so as to entitle him to compensation under the Workmen's Compensation Act. On May 20th following he entered into a written agreement with his employer whereby it was agreed that the injuries sustained were such as to constitute total temporary disability, and that he was entitled to compensation from April 28, 1918, at the rate of $12 per month during his disability. This settlement was approved by an order of the district court, which was duly filed with the clerk of court on July 28, 1918. The relator insurance company paid the compensation up to September 23, 1918. Shortly thereafter the employe resumed work, and so continued until February 2, 1919. On October 30, 1918, the employe, at the instance of the insurance company, executed a so-called release from the payment of any further compensation. At the time of the giving of such release the solicitor for the insurance company informed the employe that in case he could not continue his work the only effect of the release would be that the money earned in the mill would be deducted from the amount of compensation allowed. The so-called settlement, or release, was never presented to, or approved by, the district court. It is undisputed that when the employe returned to work he had not entirely recovered from his disability.

The trial court found, as a matter of fact, that the respondent, by reason of his injury and the condition resulting therefrom, was compelled to quit work on February 2, 1919, and "that ever since his injury he has been, and still is, under the same disability. * We fully agree with the learned trial court that the so-called release was not a settlement within the contemplation of section 8216 of the statute. There was no consideration for it, nor was it approved by the district court, and the original agreement of settlement between the parties stands, and the respondent is entitled to have the same carried into effect and to recover thereunder. The question whether such a release and settlement, if approved by the district court, would be final, and not subject to revision or change upon a showing that the employe had not fully recovered, is not involved or considered.

Affirmed.

GIBBS v. ALMSTROM. (No. 21464.)

(Supreme Court of Minnesota. Jan. 30, 1920.)

176 Northwestern Reporter, 173.

(Syllabus by the Court.)

3. MASTER AND SERVANT-EMPLOYEE DRIVING EMPLOYER'S CAR FOR COEMPLOYEE'S ACCOMMODATION NOT INJURED IN THE COURSE OF HIS EMPLOYMENT WITHIN WORKMEN'S COMPENSATION LAW.

Defendant was an employer and was under the Compensation Act and was engaged in the conduct of his business. Plaintiff and his employer were likewise under the Compensation Act. Plaintiff was driving an automobile belonging to his employer. The automobile had been assigned to another employee of the same employer, but one doing business in other territory, and was being taken by plaintiff from a railroad station at the request of this fellow employee and solely as an accommodation to him. The evidence sustains a finding that the accident did not

arise in the course of plaintiff's employment and that the case is not within the third party provision of the Compensation Act.

(For other cases, see Master and Servant, Dec. Dig. § 375[1].)

Appeal from District Court, Hennepin County; Wm. C. Leary, Judge. Action by Fletcher B. Gibbs against Clarence Almstrom. Verdict for plaintiff, and from order denying new trial defendant appeals. Order affirmed.

Denegre, McDermott & Stearns, of St. Paul, for appellant.

S. R. Child and Sherman Child, both of Minneapolis, for respondent.

HALLAM, J. On June 21, 1918, plaintiff, while driving an automobile on Harmon Place in Minneapolis, came into collision with an automobile driven by defendant, on Twelfth street, at its intersection with Harmon Place. Plaintiff was injured. The jury gave him a verdict for damages. Defendant appeals.

[1] 1. The evidence is in conflict but it sustains a verdict that defendant was negligent. Defendant was approaching plaintiff from his left. Plaintiff therefore had the right of way. Chapter 119, Laws 1917, § 22 (Gen. St. Supp. 1917, § 2552). Plaintiff's testimony is that, when his front wheels were just beyond the sidewalk line, he saw defendant, his front wheel just about crossing the sidewalk line, in other words that plaintiff was nearer the point of intersection than defendant. Defendant concedes that when he reached the center of the street, plaintiff was but ten or fifteen feet to his right. Marks on the cars showing that the front of defendant's car struck the rear left wheel of plaintiff's car. tend to corroborate plaintiff's evidence that he was first at the point of intersection. Plaintiff testified that defendant did not slacken his speed and from the fact that plaintiff's car "rolled over a couple of times" the jury might infer that defendant's car struck it with force.

Nor do we think the case depends on the question of who struck the sidewalk line first. The statute does not warrant drivers of vehicles in taking close chances. When a driver approaches a street intersection, if he sees a vehicle approaching from his right, and near enough so that there is reasonable danger of collision if both proceed, then it is his duty to yield the right of way.

Plain

The question of plaintiff's negligence was a jury question. tiff testified that he was driving cautiously at about nine miles an hour. Witnesses for defendant placed his speed much higher. The determination of this fact was for the jury. We cannot say that plaintiff's testimony was not true.

[2] 2. The damages are not excessive. The verdict was for $2.600. Plaintiff was twenty-seven years old. His actual expenses were about $300. He was disabled for six weeks, but lost no salary. Beside other painful lacerations and bruises, the bridge of his nose was broken, causing stoppage of the nasal passage, and causing disfigurement and a defect in speech. Defendant contends that this condition of the nose may be cured by an operation. This contention requires scant comment. We recognize the principle that a person injured is required to exercise reasonable precaution to keep down damages caused by the acts of the wrongdoer, but no man is required to risk his life upon the operating table for any such purpose. This proposition has been decisively settled in this state. Maroney v Minneapolis & St. Louis Ry. Co., 123 Minn. 480, 144 N. W. 149, 49 L. R. A. (N. S.) 756; Otos v. Great Northern Ry. Co.. 128 Minn. 283, 150 N. W. 922; Peterson v. Branton, 137 Minn. 74. 77, 162 N. W. 895

[3] 3. Defendant contends that plaintiff cannot maintain a commonlaw action for damages but that his claim is limited by the "third party"

Defendant

provision of the Compensation Act. G. S. 1913, § 8229. claimed to be an employer of labor, and subject to the Compensation Act, and that he was engaged in the conduct of his business when the accident occurred. The jury so found. Plaintiff was in the employ of the United States Gypsum Company. This company was under the Compensation Act. The court submitted to the jury the special question:

"Did this accident arise out of and in the course of the employment by plaintiff by the United States Gypsum Company?"

The record before us does not show whether the jury answered that question, but defendant's counsel in their brief concede that it was answered "no."

If this answer stands the verdict must stand. We think the evidence sustains the jury's finding. The United States Gypsum Company was engaged in the sale of building material. Plaintiff was its city salesman in Minneapolis. He was in charge of the company's Minneapolis office. The employes there were a stenographer and himself. He worked on a salary. He received his instructions from the Chicago office of the company. In general his duties were to make quotations, accept orders and solicit business in Minneapolis and St. Paul. He traveled all about these cities. An automobile was assigned to him by the company. car the company bought and maintained. Plaintiff kept it in a garage at his residence.

This

The car plaintiff was driving at the time of the accident was not the car assigned to him. It had been assigned to L. M. Herron, a country salesman for the same company, and was to be maintained by the company. Herron also lived in Minneapolis. He had no connection with the Minneapolis office. He traveled about the country. He, too, received his orders from the Chicago office. Herron had been advised that a car had been shipped to him for his use and was expected to arrive in Minneapolis. He expected to be out of the city when the car arrived, and had asked plaintiff as a personal favor to him to look after the car. Later he sent plaintiff the bill of lading and the key, and asked him to advance the freight, and take the car to plaintiff's garage, until he could call for it. Plaintiff had taken the car from the freight house, bought gasoline, supplied some trifling parts, and was complying with the request received from Herron when the accident happened. He expected Herron to reimburse him for the expenses incurred and Herron did so. Plaintiff had the use of a double room in a garage and he expected to let part of the space to Herron. Plaintiff had no instructions from the company as to this car. He was discharging no duty owed by him to the company. So far as appears, what he did was of no consequence or concern to the company. It was purely a favor to Herron. It was not in furtherance of the employer's business, as in State ex rel. Duluth Brewing & M. Co. v. District Court, 129 Minn. 176, 151 N. W. 912. He was not working overtime to save his master's property as in Munn v. Industrial Board, 274 I11. 70, 113 N. E. 110. Herron was not authorized to call upon plaintiff to do this duty for the company, and there was no emergency which warranted him in so doing as in State ex rel. v. District Court, 138 Minn. 416, 165 N. W. 268, L. R. A. 1918F, 200. The question whether plaintiff was in the course of his employment was submitted without objection to the jury. The evidence sustains their verdict.

Order affirmed.

PODGORSKI v. KERWIN. (No. 21489.)
(Supreme Court of Minnesota. Dec. 19, 1919.)
175 Northwestern Reporter, 694.

(Syllabus by the Court.)

1. MASTER AND SERVANT WORKMEN'S COMPENSATION ACT; APPLICATION TO NEGLIGENT THIRD PARTY EMPLOYER.

To entitle a third party employer, whose negligent act causes injury to the employee of another, to the protection of the Workmen's Compensation Act (Gen. St. 1913, § 8229, subd. 2), it must appear that the act complained of arose out of or had some relation to the business carried on by him, as to which he was an employer within the meaning of the

statute.