
    Robert E. Wilson v. Walter K. Barrows.
    October Term, 1922.
    Present: Watson, C. J., Powers, Taylor, Miles, and Slack, JJ.
    Opinion filed January 15, 1923.
    
      Master and Servant — Workmen’s Compensation Act — Findings of Fact — Compensation for Injuries Not Based on Negligence — Sufficiency of Findings Not Baised by Exception to Judgment — When Findings Conclusive in Supreme Court— Supreme Court Cannot Amend Exceptions.
    
    1. In a case under the Workmen’s Compensation Act, appealed from the commissioner of industries to the county court, held that there was no error in the refusal of the court to grant a requested finding of fact, where the evidence on the subject-matter of the request was conflicting.
    2. A proceeding against an employer under the Workmen’s Compensation Act is not based upon the negligence of the defendant or his servants, hence a request to find that the accident was entirely beyond his control and that no one in his employ had anything to do with it, was- wholly immaterial and properly refused.
    3. An exception to a judgment as not warranted by the findings, does not raise the question of whether the findings are warranted by the evidence. •
    4. In a case tried by court without a jury, where the case is triable by jury, the Supreme Court is bound by the findings below, pursuant to statute (G. L. 2259), and cannot supplement them by scanning the transcript or exhibits, notwithstanding that reference is made to the transcript.
    5. The Supreme Court has no power to grant leave to amend exceptions, its functions being to hear and pass upon the merits of exceptions coming before it, and not to grant or amend them.
    Appeal from decision of commissioner of industries to tbe county court. Trial by court at the March Term, 1922, Rutland County, Fish, J., presiding. Judgment on findings of facts for the plaintiff. The defendant excepted. The opinion states the case.
    
      Affirmed.
    
    
      Max L. Powell for the defendant.
    
      Jones & Jones for the plaintiff.
   Miles, J.

The main question here raised is whether the plaintiff was an employee of the defendant at the time of the injury. The case was started before the commissioner of industries, from whose award the case was appealed to the county court, and from that court came to this Court on exceptions by the defendant. The case was tried by court and judgment was rendered for the plaintiff, to which the defendant excepted. The other exceptions saved were to the court’s failure to find as requested in defendant’s requests 5, 10, and 12.

Request 5 is as follows: “'While there was no written contract or express contract, it was understood between the parties that the winter’s cut should be hauled by the teams that worked or as much as weather conditions permitted and it was understood between the claimant and defendant Barrows that he should work throughout the winter the same as the other teams worked.” No error appears in the refusal of this request, for the evidence on the subject-matter of it was conflicting. The claimant testified that there was no agreement and nothing said as to the length of time he was to work.

Request 10 was as follows: “There is no conflict in the evidence as to any material fact.”- The matter here requested is contrary to the fact as is shown by what is said respecting request 5, and the denial to find as requested was not error.

Request 12 is as follows: “That the accident was entirely beyond the control of the defendant Barrows and no one in his employ had anything to do with the accident.” This request was wholly immaterial. The action is not based upon the negligence of the defendant nor of one of his servants. The matter therein requested had no bearing upon any issue in the case and was properly denied.

The only remaining question for our consideration, is the exception to the judgment. This is upon the ground that it is not warranted by the findings. But the court, “from a consideration of the whole evidence,” has expressly found that the plaintiff was an employee of the defendant at the time of his injury. To this finding no exception was taken. But the defendant seeks to avail himself of the benefit of such an exception through his exception to the judgment, and he argues that there was no evidence supporting that finding. But an exception to a judgment as not warranted by the findings, does not raise the question of whether the findings are warranted by the evidence. Walcott v. Mongeon, 88 Vt. 361, 364, 92 Atl. 457.

The evidence not being before us for the purpose of testing the sufficiency of the finding upon which the judgment rests, reversible error is not made to appear.

Judgment affirmed. To be certified to the commissioner of industries.

On Motion for Beargument.

After the opinion in this case was handed down, the defendant had leave to file a motion for reargument, pending which the judgment and certificate have been stayed.

Four grounds are stated why a reargument should be granted. Under the first three, the defendant claims that the exception to the judgment entitles him to challenge the-sufficiency of the evidence to support the findings and judgment. In a case tried by court without a jury, where the ease is triable by jury, this Court is bound by the findings below, pursuant to statute, and cannot supplement them -by scanning the transcript or exhibits, notwithstanding that the transcript is referred to. G. L. 2259; Powell v. Merrill, 92 Vt. 124, 130, 103 Atl. 259.

The fourth ground, if such it may be called, is merely a request for leave to amend the exceptions. Such leave this Court has no power to grant. Its functions are to hear and pass upon the merits of exceptions coming before it, and not to grant or amend them.

The motion as a whole is without merit. It fails to state specifically in what respect the decision is erroneous.

Motion dismissed and stay vacated. Let the certificate go down.  