what the autopsy surgeon meant." The objection was overruled, and the witness answered, "No." Plaintiff's counsel do not attempt to justify this ruling, but assert that it was harmless. We cannot agree. The question of a diseased condition of the heart was one of the vital issues in the case. Defendant produced much evidence tending to establish such diseased condition. In the words of its counsel: "Since respondent could not establish an undiseased condition of the heart by the testimony of the coroner's physician, she introduced his written report, and was permitted to have another doctor interpret that report as not showing a diseased condition, although the terms used admittedly had no definite meaning in medical parlance." But it is said that this error was "cured" by the fact that the defendant afterward called Dr. Wagner as a witness, who testified that he did find a diseased condition of the heart. We fail to see how this cured the error. It still left in the case the incompetent testimony on the side of the plaintiff, to which it is to be added that Dr. Wagner, as a witness, was apparently impeached in the eyes of the jury by his own report as interpreted by Dr. Pallette. said physicians. There was nothing, other than is here stated, to indicate that either of the physicians had any authority to make any admission binding upon the defendant. There was a provision in the policy giving the defendant the right to examine the person of the assured at any time after injury. If this be regarded as indicating that the physicians had authority to make admissions in behalf of the defendant, nevertheless it was not shown that they had made admissions. It was merely shown that they made no denials, without showing any condition or circumstance which called upon them to say anything. [4] In considering the instructions given and refused, it is necessary to keep in mind the fact that the policy here sued upon did not insure against accidental death. It insued only against death as the result of accidental means. The distinction is well recognized in this state. "Where the death is the result of some act, but was not designed, and not anticipated by the deceased, though it be in consequence of some act voluntarily done by him, it is accidenact of the deceased, not designed by him, or tal death; but where death is caused by some not intentionally done by him, it is death by accidental means." Olinsky v. Railway Mail Ass'n, 182 Cal. 669, 189 Pac. 835, 14 A. L. R. 784. [5] The trial court instructed the jury that: or is an un "The term 'accident,' as used in the policy here in question and in these instructions, denotes an event that takes place without one's foresight or expectation, usual effect of a known cause, and therefore not expected. * * * It is an event happening unexpectedly or undesignedly.” The report as first admitted was limited to the portion thereof which stated the physical and pathological findings. Dr. Wagner, in his direct examination by defendant, mentioned that "there was a history of plowing that I had to embody in the notes." He was then asked upon cross-examination if that history formed a material part in his examination and opinion. He replied, "I had to take it into consideration." Plaintiff thereupon offered in evidence the entire report, containing the following recital: "There was a history of a severe strain while plowing and striking a large root." The court overruled defendant's objection that it was hear-sured was due to a rupture caused by a say, and admitted it in evidence. It was hearsay "twice removed," and should have been excluded. It was not admissible for the purpose of impeaching the witness, because it did not tend to contradict or modify what he had testified to. [3] It was shown at the trial that after the autopsy an examination of the body was made by two physicians in behalf of the plaintiff and two others in behalf of the defendant by stipulation "under the terms of the policy." As part of her case in chief, and before any witness had testified for defendant, plaintiff was permitted to show by her said two physicians that neither of defendant's physicians, at the time of the examination, made any statement to the effect that there was a diseased condition of the heart. This was over defendant's objection, and without showing that any conversation whatever took place at said time between any of This instruction, together with plaintiff's instruction No. V, which followed it, tells the jury in effect that, if the death of the as strain naturally incident to the exertion of plowing, but was an unexpected result thereof, the plaintiff could recover. It should not have been given, because- "It fails to give effect to the plain language of the policy, in that it does not distinguish between the result to the insured and the means by which that result was brought about. As we have already pointed out, the insurance is not against accidental injury or death, but is against death resulting from injuries effected by accidental means." Rock v. Travelers' Insur1031 (L. R. A. 1916E, 1196). ance Co., 172 Cal. 462, 467, 156 Pac. 1029, [6] The court refused the defendant's request to instruct the jury to the effect that if the assured received a strain or wrench as a result of the sway or swinging of the plow, and there was no more lurch or sway or swing to the plow than is usual and ordinarily incident to the character of plowing (209 P.) Enough has been shown, we think, to make it apparent that this verdict was predicated upon an erroneous conception of the law, and to necessitate a reversal, even if we could assume that the verdict was not influenced by the admission of the incompetent testimony to which we have referred. that the assured was doing, it was not an ac- falso, Clarke v. New Amsterdam Casualty Co., cident for which recovery could be had un- 180 Cal. 76, 179 Pac. 195. der the terms of the policy. One of plaintiff's witnesses had testified that the ground where the assured was plowing had not been plowed for at least five years, and "was so hard you could not keep the plow in the ground"; that “the plow was jumping in and out of the ground." Under such circumstances we think the defendant was clearly entitled to have this instruction, or the sub, stance thereof, given to the jury. For like reasons, defendant's requested instruction No. XIX, or the equivalent thereof, should have been given. [7] Complaint is made of the court's refusal to give either of several instructions requested by defendant to the effect that: "A theory cannot be said to be established in a civil case, where the facts and circumstances from which it is sought to establish such theory are consistent with it, and are also consistent with a contrary theory." Inasmuch as this case must be sent back for retrial it is proper that we consider the assignments of error relating to the amount recoverable under the policy. In the schedule of warranties attached to and a part of the policy, the assured stated his occupation as "Real estate and investments," with the duties "usual thereto." He further stated therein: "I understand that risks are classified according to occupation, and that my occupation above described is classified preferred." Section 20 of the policy provided: his occupation to one classified by this company "If the insured is injured after having changed as more hazardous than that herein stated, or is injured while doing any act or thing pertain ing to any more hazardous occupation," the amount recoverable should be reduced in inverse proportion to the premiums charged for the respective risks. (Italics ours.) It is true that a verdict may not lawfully be predicated upon mere conjecture or speculation, and that, when two opposite conclusions appear equally probable from all of the evidence, neither of them can be said to be proven; but, from the mere fact that both conclusions or theories are consistent with the facts proven, it does not necessarily follow that both are equally probable. If to the minds of the jury, under such circumstances, the one fairly appears more prob- of plowing is not incident to the occupation able than the other, it is established by pre-of "real estate and investments," but is an ponderance of the evidence These instructions were properly refused. [8] The trial court erroneously instructed the jury to the effect that the burden rested upon the defendant to prove by a preponderance of the evidence that disease was a proximate cause of the death of the assured (Kellner v. Travelers' Ins. Co., 180 Cal. 326, 181 Pac. 61, 63), and refused the specific instructions to the contrary which were requested by the defendant. This error was not cured by the giving of a conflicting general instruction to the effect that the burden was upon the plaintiff to prove by a preponderance of the evidence that the death resulted "from bodily injuries effected solely through external, violent, and accidental means." Rathbun v. White, 157 Cal. 248, 253, 107 Pac. 309, 311. [9] The court further instructed the jury, in effect, that the presence of disease as a proximate contributing cause of the death of the assured would be immaterial, unless they also found that the disease itself would have caused the death of the assured at approximately the same time without the accident having occurred. This was in plain disregard of the terms of the policy, and substantially identical with an instruction which was expressly disapproved by this court in Kellner v. Travelers' Ins. Co., supra. See, The defendant conceded at the trial that the assured had not changed his occupation, but its contention was that the manual labor act incident to the occupation of "farmer," "farm laborer," and "common laborer," each of which was classified by it as "hazardous," and required a premium 21⁄2 times larger than was paid by the assured, and that the amount recoverable under the policy was thereby reduced from $7,500 to $3, 000. [10] Defendant contended at the trial that the court should take judicial cognizance of the fact that plowing is not incident to the occupation of real estate and investments, but is incident to the other occupations above named, and should have so informed the jury. The learned trial judge might well have done so. Courts have taken judicial notice of the general character of business, of a crematory, of building and loan associations, of the lumber industry, of a barber shop and shoe-shining parlor, of a mercantile agency, and of professions generally. "The judicial notice which courts take of matters of fact embraces those facts which are within the common knowledge of all, or are of such general notoriety as to need no evidence 618, 625, 45 Pac. 860, 862; Edson v. Southern in their support." People v. Mayes, 113 Cal. Pacific R. Co., 144 Cal. 182, 189, 77 Pac. 894. It must be conceded to be a matter of common knowledge that the manual labor of plowing is not ordinarily incident to the oc- | Iowa, 178, 72 N. W. 448, 64 Am. St. Rep. 170, cupation of real estate and investments in held an identical policy provision to be inlarge cities, but is an act incident to at least operative as applied to the case of an asthe occupations of farmer and farm labor-sured who was injured by the accidental diser; and this is no less a fact because of the charge of his gun while hunting. The Texas circumstance that men in the real estate court, in a case presenting an exactly similar business have been known to plow. situation, refused to follow the Holiday Case, saying: The Washington court, in a similar case, disapproved and refused to follow the Holiday Case, saying: [11] The question of the legal effect of the italicized words above quoted from the policy "The decision is in the very teeth of language has not been adjudicated by the courts of that is plain and simple, and had the effect of this state. Some reliance is placed by plain-destroying the contract made by the parties and tiff upon the line of decisions of which the of substituting therefor one made by the court." case of Berliner v. Travelers' Ins. Co., 121 Lane v. General Accident Ins. Co. (Tex. Civ. Cal. 458, 53 Pac. 918, 41 L. R. A. 467, 66 Am. App.) 113 S. W. 324. St. Rep. 49, is an example, holding that the assured must have actually changed his occupation in order that such a proviso should become operative. But the language here relied upon by the defendant was not in the policy which was before this court in the Berliner Case. It is in fact asserted with apparent reason that the language here relied upon was embodied in defendant's policies in response to the suggestion found in the opinion in the Berliner Case of a means by which the insurer might have avoided the result which there followed. That suggestion was in the following language: "If the company intended to say to the assured that if he did any act which did not strictly belong to his own occupation, but was embraced more properly in some other business, and if thereby any harm to him accidentally resulted, that in such event he could claim nothing under his policy, it was easy for them to do so in plain language." "That," says the defendant, "is precisely what we have done, except that we have provided for a reduction of the amount, instead of a forfeiture of the policy." The United States Circuit Court of Appeals, Sixth Circuit, having before it a policy containing a provision identical with that here under consideration, as applied to a situation substantially analogous, held that the proviso would be inoperative unless the act in which the assured was engaged at the time of injury was "habitual," as distinguished from "casual," and that the case should have been submitted to the jury to determine which of these it was. Inasmuch as the court said in its opinion, "It does not appear that Reading [the assured] ever ran the elevator befcre," we are left in some doubt as to just what question it deemed should have been submitted to the jury. Gotfredson v. German Commercial Accident Co., 218 Fed. 582, 134 C. C. A. 310, L. R. A. 1915D, 312. The Supreme Court of Iowa, in the case of Holiday v. American Mut. Acc. Ass'n, 103 "It seems to us that the holding in the Iowa case practically reads out of the contract that clause" (the one here under consideration). Green v. National Casualty Co., 87 Wash. 237, 151 Pac. 509. tinental Casualty Co., 131 La. 475, 59 South. To the same effect are Montgomery v. Con907; Loesch v. Union Casualty & Surety Co., 176 Mỏ. 654, 75 S. W. 621, and Ridgely v. Etna Life Ins. Co., 160 App. Div. 719, 145 N. Y. Supp. 1075 (affirmed in 217 N. Y. 720, 112 N. E. 1073). We are of the opinion that the better reason, as well as the weight of authority, is in support of that rule which gives effect to the plain intent of the language used by the parties in their contract. [12, 13] In view of what we have said above, it is unnecessary to review the numerous errors claimed to have been committed in the trial of this branch of the case. It should be pointed out, however, that the burden rests upon the defendant, in order to make good its claim in this behalf, to allege and prove that the occupation of “farmer,” or “farm laborer," or "common laborer," as the case may be, was in fact more dangerous than that of "real estate and investments," not merely that it was so classified. Such is the plain intendment of the language used, construing it strictly, as we must, against the insurer. This the defendant did not do in the trial below, but the plaintiff waived this omission (so far as that trial was concerned) by proceeding throughout the trial as if the issue had been properly presented. The judgment is reversed. We concur: SHAW, C. J.; WASTE, J.; LAWLOR, J.; LENNON, J.; RICHARDS, Justice pro tem. (209 P.) PRUITT v. INDUSTRIAL ACC. COMMIS- (Supreme Court of California. Aug. 30, 1922.) ing stand on the same footing as the finding of a judge or verdict of a jury, and are not to be set aside if there is any substantial evidence on which they can rest; but a review may be had on the theory that the commission had no jurisdiction to make a finding, where there was no evidence to support it. In Bank. Proceeding under the Workmen's Compen for compensation for the death of Paul R. Conklin, opposed by W. L. Pruitt and others. Compensation was awarded, and Pruitt brings a writ of review. Affirmed in part, and annulled and set aside in part. Where one made a party to a workmen's compensation proceeding at the hearing had ac-sation Act by Luceille Conklin and another tual knowledge of filing of application, was present at the hearing, and when made a party immediately became an actor therein by personally recalling and cross-examining witnesses and submitting the matter for decision, and in all subsequent proceedings was represented by counsel, his conduct amounted to a waiver of the requirement of Workmen's Compensation for petitioner. Act, § 17a, for the service of a copy of the application for compensation, with notice of the time and place of hearing. Clock, McWhinney & Clock, of Long Beach, A. E. Graupner, of San Francisco, for respondents. 2. Master and servant 417(1)—Person aggrieved by want of service in compensation in this proceeding, on a writ of review, proceeding must apply to commission for relief. WASTE, J. Petitioner, W. L. Pruitt, seeks to have set aside and annulled an award of the Industrial Accident Commission, upon the ground that, as to him, the commission acted in excess of its powers and was without jurisdiction in the matter. Two questions are presented for consideration. The first concerns the procedure followed in the hearing on the original application out of The second relates which the award arose. to the sufficiency of the evidence to support the finding of the commission, in so far as it imposes a liability upon petitioner. A party to a workmen's compensation proceeding, contending that no service was made on him, or claiming to be aggrieved by want of notice of pendency of proceeding, should, under Workmen's Compensation Act, § 18b, apply to the Industrial Accident Commission for relief substantially in accordance with Code Civ. Proc. § 473, relative to relief against judgments, etc., taken through mistake, inadvertence, etc. 3. Master and servant 414-Rehearing in compensation proceedings may be limited to hearing of additional testimony. It appears from the record returned by the Where one applying for rehearing in work-respondent that Luceille Conklin and Eunice men's compensation proceeding, though made a G. Conklin, a minor, by her guardian ad litem, party during the first hearing, was present at instituted a proceeding before the Industrial the hearing, heard all of the testimony, cross- Accident Commission against Graham Bros., examined all of the witnesses, testified himself, a copartnership, and its insurance carrier, and was fully apprised of the claim for com- the United States Fidelity & Guaranty Compensation, the commission had power, in view of the broad powers conferred by Workmen's pany, for compensation for the death of Paul Compensation Act, § 64e, to limit the rehear- R. Conklin. Petitioner was not made a paring to the hearing of additional evidence introduced by such party, without again hearing any evidence to establish the claim. 4. Master and servant 361- One hiring truck and driver to another not liable for compensation, if exercising no control over the driver. Where owner of truck hired driver, under agreement that he should receive 25 per cent. of the earnings of the truck and nothing when idle, and hired the truck and driver to a third person, the theory of general and special employment did not apply, and an award of compensation against him was unauthorized, unless he exerted some degree of control over the driver in connection with his employment in the service of the third person. ty defendant in such application. When the matter came on for hearing before the referee of the commission, Pruitt was present as a witness. When considerable testimony had been taken, it appeared to the referee that, by reason of his interest in the proceeding and his apparent relationship to the deceased employee, Conklin, Pruitt should be joined as a defendant in the proceeding, subject to the right of said Pruitt to request and have granted a further hearing, and an order to that effect was made. The referee thereupon inquired of Pruitt if he wished to have the hearing continued to a future date, in order that he might make any preparation for further hearing. Pruitt stated that he He fur 5. Master and servant 417 (7) Commis- was willing to proceed forthwith. sion's findings in compensation proceeding ther stated that, having been present and binding on reviewing court, if supported by having heard all of the testimony and proceedings thus far had, he would like to quesFindings of the Industrial Accident Com-tion the witnesses. The witnesses were mission in a workmen's compensation proceed- thereupon recalled and were cross-examined evidence. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes by him. He also took the stand and testified. 1 was made upon him, or claiming to be agAt the conclusion of the testimony, in answer grieved by want of notice of the pendency of to a question of the referee, Pruitt stated he was willing to submit the matter, which was done. the proceeding, should apply to the commission for relief substantially in accordance with the provisions of section 473 of the Code of Civil Procedure. Workmen's Compensation Act, § 18b. [3] Petitioner next complains that no evidence, testimony, or stipulations of any kind were introduced by or on behalf of the applicants for compensation upon the rehear The commission thereafter made its findings and award, holding Pruitt liable for compensation as a joint employer with Graham Bros., and awarded the applicants compensation in the sum of $5,000. In due time Pruitt applied for a rehearing before the commission, and subsequently filed a supple-ing; that the attorneys for petitioner objectmental petition, in which he set forth an out- ed to such procedure, but the referee proline of certain evidence which he desired to ceded to hear only the evidence introduced present in his own behalf. Upon this pe- by the defendant Pruitt; that there was not tition the commission granted a rehearing. at that time any evidence introduced estabWhen the matter came on again, Pruitt was lishing the applicants' claim against Pruitt, present in person and was represented by an the contention being that Pruitt never at any attorney. The record does not disclose that time has had an opportunity to object to the any objection was made by any of the parties stipulations which were previously offered in to the proceeding. Although the petitioner evidence, to cross-examine the witnesses on now contends that he demanded that he be behalf of the applicants, nor to object to the furnished with a copy of the testimony taken testimony introduced against him, and that at the previous hearing, the record does not the final proceedings did not actually amount bear him out in that behalf. Pruitt appears to a rehearing; that all that was done was to have been permitted to present any and to open the case as it stood in the first inall the testimony he desired in support of his stance and allow Pruitt to offer additional defense. A number of witnesses were called matters that he had by way of defense. and examined by him. The matter was There is no merit in this contention. Pruitt, thereupon submitted without objection or having been present at the first hearing, at protest from him. The commission made its which he was made a party defendant, havdecision after such rehearing, finding that ing heard all of the testimony, having in the testimony produced thereon was not suf-person cross-examined all the witnesses who ficient to change or modify the facts set were called at that time, and having himforth in the findings made upon the first hearing. It accordingly affirmed the findings and award theretofore made. self testified, was fully apprised of the claim of the applicants for compensation. Upon the rehearing he proceeded without objection, was accorded every opportunity to offer such testimony as he desired, and to seek such stipulations as he or his counsel might feel would be material in presenting his defense. In seeking such rehearing he had set forth an outline of the new evidence he de [1, 2] In seeking to have such award annulled, the petitioner contends that the Industrial Accident Commission was without jurisdiction to make any award against him, for the reason, first, that no copy of the original application for compensation, with the notice, of the time and place of the hear-sired to present in his behalf. ing thereof, was served upon him at the time Under subdivision (e) of section 64 of the he was joined as a defendant before the com- Workmen's Compensation Act the commismission, or at any time. There is nothing in sion has very broad powers in the matter of this contention. Petitioner had actual knowl-rehearings. If it considers that the issues edge of the filing of the application, and was raised by an application for a rehearing have present at the original hearing. When made theretofore been adequately considered, it a party to the proceeding, he immediately be- may determine the matter by confirming, came an actor therein by personally recalling without a rehearing, its previous findings. and cross-examining the witnesses who had If a rehearing is deemed necessary to detestified in his presence and hearing, and termine the issues raised, or any one or submitting the matter for decision. In all more of such issues, it may order a rehearsubsequent proceedings he was represented ing thereon and consider the matters raised by counsel. His conduct in the matter by such application. If at the time of grantamounted to a waiver of the requirements of ing such rehearing it shall appear that no the act (St. 1917, p. 846, § 17a) as to service sufficient reason exists for taking further tesand notice. It was substantially the same as timony, the commission may reconsider and that of one who appears in court proceedings redetermine the original cause, without even under similar circumstances, and must be setting a time and place for such further held to have had like effect. Massachusetts, hearing. The case of Carstens v. Pillsbury, etc., Co. v. Industrial Acc. Comm., 176 Cal. 172 Cal. 572, 158 Pac. 218, so urgently relied 491, 492, 168 Pac. 1050. Furthermore, a par- upon by the petitioner in support of his conty subsequently contending that no service | tention, is not in point. All the evidence in |