At Law. Action by Edgar J. Oliver, administrator of Bud Hall, against the Seaboard Air Line Railway. On demurrer to the petition. Demurrer overruled.

H. P. Cobb and Oliver & Oliver, all of Savannah, Ga., for plaintiff. Anderson, Cann, Cann & Walsh, of Savannah, Ga., for defendant.

BEVERLY D. EVANS, District Judge. This is a suit by the administrator of a deceased employee against an interstate carrier for damages on account. of the alleged wrongful death of the employee while in the service of the defendant. The petition discloses that the deceased employee was injured on March 31, 1912, and died as a result of his injury on August 11, 1915. The petition was filed April 17, 1916. The defendant demurred on the ground that, as the suit was not begun within two years from the date of the injury to the employee, the action is barred.

[1, 2] By Act April 22, 1908, c. 149, § 6, as amended by Act April 5, 1910, c. 143, § 1 (U. S. Comp. St. 1916, § 8662):

"No action shall be maintained under this act [federal Employers' Liability Act] unless commenced within two years from the day the cause of action accrued."

The point for decision is the date from which the accrual of the action by the personal representative is to be computed-whether from the date of the injury to the employee or from the date of the employee's death.

It is within the power of Congress to impose upon a wrongdoer any penalty suitable for the punishment of the wrong inflicted. Congress may authorize a recovery of the wrongdoer of both punitive and compensatory damages, or may apportion a recovery of the damages among different persons having proper relation to the person injured. And this is exactly what Congress did in the Employers' Liability Act (U. S. Comp. St. 1916, § 8657), when it declared an interstate carrier—

"shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee, and, if none, then of such employee's parents, and, if none, then of the next of kin dependent upon such employee, for such injury or death," etc.

It seems plain to me that this remedial statute was intended to give compensation in damages to the employee for injury to his person, and also compensation to the family of the employee where death results from the same injury. Nothing the person injured can say or do between the date of the wrongful act and his death can affect the cause of action given by the statute to his personal representative for the benefit of his family. The act of Congress did not contemplate that the action created in case of the injured employee's death should arise only where death was instantaneous, or where the fatal injury was so severe that the injured employee was deprived of the power of conscious volition. Mich. Cen. R. R. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176.

Furthermore, the damages sustained by an injured employee embrace physical pain and suffering, and in most instances this item forms the basis of the chief part of his recovery; whereas, in cases of actions for wrongful death by the employee's personal representative, no recovery can be had for the pain and suffering endured by the employee because of his fatal injury.

I am aware of the conflicting English decisions under Lord Campbell's Act, and that some of them hold that the cause of action is the defendant's negligence, and that, if the deceased had in his lifetime accepted a sum of noney in full satisfaction and discharge of his claim against the defendant, his would bar the right of the personal representative to recover for the omicide, on the theory that the death of the injured person did not create

a fresh cause of action. The fallacy in this reasoning, as applied to the Employers' Liability Act, is the assumption that the act did not authorize two actions-one by the injured employee commenced in his lifetime, and the other by his personal representative, for the benefit of his family, after his death. See, in this connection, Kansas City Sou. Ry. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83, Ann. Cas. 1915B, 834; Fogarty v. Northern Pac. Ry. Co., 85 Wash. 90, 147 Pac. 652, L. R. A. 1916C, 803. As remarked by Mr. Justice McReynolds in Garrett, Adm'r, v. L. & N. R. R. Co., 235 U. S. at page 312, 35 Sup. Ct. at page 33, 59 L. Ed. 242:

"It is now definitely settled that the act declared two distinct and independent liabilities resting upon the common foundation of a wrongful injury (1) Liability to the injured employee for which he alone can recover; and (2) in case of death, liability to his personal representative 'for the benefit of the surviving widow or husband and children, and, if none, then of the parents, which extends only to the pecuniary loss and damage resulting to them by reason of the death."

It would seem to follow that, as the liability to the plaintiff in this case did not arise until his intestate's death, the cause of action accrued at that time, and, as the suit is brought within two years of the employee's death, it is not barred by the statute.

I do not deem the other grounds of demurrer to be meritorious.
Accordingly the demurrer is overruled.

SUPREME COURT OF CALIFORNIA.

MESMER & RICE ET AL.

ບ.

INDUSTRIAL ACCIDENT COMMISSION et al. (S. F. 8462.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS

EVIDENCE.

Where in the proceeding before the Industrial Accident Commission, it was agreed that the commission's physician examine the servant and report whether his disability was due to injury or disease, his report founded in part on the reports of assistants held competent evidence under the agreement.

(For other cases, see Master and Servant, Dec. Dig. § 404.)

2. MASTER AND SERVANT-REVIEW - APPLICATION - PRESUMPTION.

Where an application to the Industrial Accident Commission to have evidence stricken was never formally acted upon it must be assumed to have been denied.

(For other cases, see Master and Servant, Dec. Dig. § 417[5].)

3. MASTER AND SERVANT- WORKMEN'S COMPENSATION ACT EVIDENCE-EXCLUSION OF CUMULATIVE EVIDENCE.

An award of the Industrial Accident Commission cannot be set aside for error of procedure in admitting incompetent evidence which was

* Decision rendered, July 1, 1918. 173 Pac. Rep. 1099.

merely cumulative, where there was other evidence ample to support the findings.

(For other cases, see Master and Servant. Dec. Dig. § 417[8].)

In Bank. Application by George Walter Wilson to the Industrial Accident Commisison for award for injuries alleged and suffered in course of his employment by Mesmer & Rice. From an award for applicant, Mesmer & Rice and the Georgia Casualty Company made application for review against the Commission and George Walter Wilson. Award affirmed.

Redman & Alexander, of San Francisco, for petitioners.

Christopher M. Bradley, of San Francisco, and R. T. Lightfoot and Lee Utley, both of Los Angeles, for respondents.

ANGELLOTTI, C. J. The Industrial Accident Commission, in a proceeding duly instituted by respondent Wilson, made an award in his favor against petitioners as compensation for injuries alleged and found to have been suffered by him in the course of his employment by petitioner Mesmer & Rice. Petitioners seek by means of a writ of review to have this award annulled.

On the trial before the commission it was stipulated that Wilson received an injury, and that such injury arose out of and happened in the course of his employment. The only question apparently was as to the nature, extent, and duration of the disability caused thereby. The claim of petitioners before the commission was that the disability for which compensation was sought was due to a certain disease with which it was claimed Wilson was afflicted, rather than to the injury confessedly received by him at the time of his accident. A great deal of evidence was introduced before the referee by the respective parties on this issue, and it is not claimed here that there was not sufficient evidence to support the conclusion that the disability for which compensation was awarded was due to the injury. The claim is that the award is void because made before all the evidence was taken, and because of the reception of evidence of unsworn reports of certain doctors, without notice to petitioners.

It appears that, at the close of the taking of the evidence before the referee, it was suggested by Wilson's attorney that the physician of the commission examine Wilson and determine definitely for the information of that body whether his disability was due to the disease. This suggestion was acceded to by the attorney for the petitioners. The record fairly shows that, although the latter at first requested that the examination should be made under certain specified conditions, including the holding of the applicant in a hospital under the direction of Dr. Southworth "for a period of six or eight weeks, or such time as Dr. Southworth should determine," it was finally understood that Wilson was to submit himself to an examination by Dr. H. E. Southworth, the physician of the commission, who was to take whatever measures he might deem necessary to reach a conclusion, and that his report was to be made to the referee, to be used by the Industrial Accident Commission in arriving at a conclusion, and that upon such examination and report being made the case was to be submitted for decision. Such, in effect, was the order of the referee, expressly assented to by all parties. The report of Dr. Southworth was presented, accompanied by the reports to him of two doctors whom he had in consultation with him in the case. One report (from Dr. Ide) was a report of certain symptoms of Wilson as shown by an examination, without any expression of conclusion except as to prospect of recovery and idea of proper treatment. The other (from Dr. Johnson) was simply a report of the result of a Wasserman test, the answer being “negative." The written report of Dr. Southworth stated that Wilson had been under his attention for "past many days" in a hospital, that he had Drs. Ide and

Johnson in consultation and inclosed their reports to him, that a urinalysis revealed nothing abnormal, that, during the time of his observation he was unable to associate any systemic disorder which might produce local head symptoms such as complained of by the patient, and that he was of the opinion that the disturbance is local and the result of injury.

[1] There is no good basis for a claim that the award was made before all the evidence had been taken. As we have seen, the undertaking of all parties was that the matter was to be submittd for decision upon receipt of the report of Dr. Southworth. No further evidence was to be taken. Petitioner's real grievance is that Dr. Southworth submitted to the commission with his own report, and as a part thereof, the reports to him of two assistants whom he had called in to make certain examinations, and to give to him the result of those observations for his own use in coming to a conclusion, and that these reports were thus made evidence in the proceeding. It cannot fairly be disputed that, in view of the understanding that he was to take whatever measures he deemed necessary to reach a conclusion, he had the right to employ assistance to make certain observations as to Wilson, including a serological examination, and to report the result for his information in observing Wilson, and in coming to a conclusion. This he did, and upon their reports to him and his own personal observation of the case, continued “for many days," he made his own report to the commission. There can be no doubt that his report was, in view of the understanding of the parties, competent evidence to be considered by the commission and that it, together with the evidence actually introduced on the hearing before the referee, furnished full support for the conclusion of that tribunal.

[2, 3] We may assume for the purposes of this decision that the written reports of Drs. Ide and Johnson to him, which he submitted with his report, were not competent independent evidence for the consideration of the commission, and that the application of the petitioners to the commission made March 15, 1917 (two months before the award was made), that the same be stricken out and withdrawn from the record, should have been granted. This application apparently was never formally acted on and must be assumed to have been denied. But the failure of the commission to reject the incompetent evidence could not affect its jurisdiction to make the award. The proceeding in review is not an appeal. The award "cannot be set aside for errors of procedure only, or for insufficiency of the evidence, where there is substantial evidence to support the findings, or for rulings. upon the admission or exclusion of evidence, amounting only to error and not affecting the jurisdiction." Massachusetts Bonding, etc., Co. v. Industrial Accident Commission, 168 Pac. 1050. Independent of the evidence alleged to be incompetent, there was ample evidence to support all the findings. This is not disputed. So it cannot be claimed that the commission was without jurisdiction to make the award because of an absolute want of proper evidence to support the findings of fact essential to such jurisdictions, as was the case in Carstens v. Pillsbury, 172 Cal. 578, 158 Pac. 218, and Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 324, 153 Pac. 24. The situation here is not such, in our opinion, as to warrant an annulment of the order upon the principles stated in the opinions in those cases. At most, we have here a refusal on the part of the commission to strike out incompetent evidence which was merely cumulative of other evidence, and in no way essential to support the conclusion of the commission. It may further be noted that, in view of the report of Dr. Southworth, the other reports were of no substantial importance.

The award is affirmed.
We concur

Judge pro tem.

Sloss, J.; Shaw, J.; Melvin, J.; Wilbur, J.; Richards,

SUPREME COURT OF CALIFORNIA.

WHITING-MEAD COMMERCIAL CO.

V.

INDUSTRIAL ACCIDENT COMMISSION. (L. A. 5581.)*

1. MASTER AND SERVANT-WORKMEN'S COMPENSATION— INJURIES "ARISING OUT OF EMPLOYMENT."

Such acts as are necessary to the life, comfort, and convenience of the servant while at work, though strictly personal to himself and not acts of service, are incidental to the service, and injury sustained in their performance arises out of the employment.

(For other cases, see Master and Servant, Dec. Dig. § 371.)

2. MASTER AND SERVANT-WORKMEN'S COMPENSATION— INJURIES "ARISING OUT OF EMPLOYMENT."

Where a servant employed in wrecking buildings was burned while lighting a cigarette by the match igniting a turpentine soaked bandage on his hand, the injury was one arising out of the employment; the indulgence in tobacco satisfying a natural want and being necessarily contemplated by the employer.

(For other cases, see Master and Servant, Dec. Dig. § 373.)

In Bank. Proceedings under the Workmen's Compensation Act (St. 1913 p. 279), by Miguel Duarte, opposed by the Whiting-Mead Commercial Company, employer. There was an award by the Industrial Accident Commission, and the employer brought a writ of review, and the award was affirmed, and the matter was transferred to the Supreme Court. Award affirmed.

R. L. Horton, of Los Angeles, for petitioner.

Christopher M. Bradley, of San Francisco, for respondent.

SLOSS, J. The District Court of Appeal for the Second Appellate District issued a writ of review to test the validity of an award of compensation made by the Industrial Accident Commission. The proceeding resulted in a judgment affirming the award. Upon application of the employer the matter was transferred to this court. Our further examination has led us to a concurrence with the conclusions of the District Court of Appeal. We, therefore, adopt the opinion of that court, prepared by Works, Judge pro tem., as a correct statement of the facts and an adequate treatment of the questions of law arising on those facts. The opinion reads as follows:

"The Whiting-Mead Commercial Company was engaged in the business of wrecking houses, and Miguel Duarte was one of its workmen. While at work on one of the comapny's jobs Duarte ran a nail into the palm of his right hand, but the wound was not so severe as to cause him to cease his work, although the hand had to be bandaged. Twice during the day, once at noon and once at about 3 o'clock, the bandage was soaked with turpentine by an agent of the company in an endeavor to alleviate the pain caused by the nail wound. Soon after the second application of the turpentine, Duarte temporarily ceased his labor and struck a match for the purpose of lighting a cigarette. The saturated bandage was ig

* Decision rendered, July 3, 1918. 173 Pac. Rep. 1105.