
    WILHELMINA NAPOLEON, RESPONDENT, v. WILLIAM McCULLOUGH, APPELLANT.
    Argued June 29, 1916
    Decided November 20, 1916.
    On appeal from the Supreme Court, in which the following ■per -curiam was filed :
    “This is a case under, the Workmen’s Compensation act. The prosecutor seeks to reverse the judgment because the trial judge failed to make a finding that the death of the petitioner’s decedent .was the result of injuries received by him while in a state of intoxication, and that such intoxication was the natural and proximate cause of such injuries. Whether or not that was so, presented a question of fact for the court to determine.
    “There was testimony of witnesses to the effect that they saw the petitioner’s decedent shortly before the occurrence of the accident in an intoxicated condition sitting on the seat of the wagon driving the horses.
    “There was also testimony to the effect that the deceased, just before the accident happened, appeared to be all right.
    “The only, eye witness to the happening of the accident testified that the deceased appeared to him to be all right and that a jounce of the wagon threw the deceased to the street.
    “This being the state of the evidence,' the trial judge was warranted in making the finding that he did. He was under no legal duty to make an express finding negativing the assertion of the prosecutor that the deceased was intoxicated at the time he received his injuries, and that such intoxication proximately caused his injuries and death. Such a negative finding was necessarily included in, and will be presumed from, the finding of the trial judge that the accident arose out of and in the course of the employment of the deceased.
    “Judgment will be affirmed, with costs.”
    For the respondent, Brogan & Sullivan.
    
    
      For the appellant, James A. Sullivan.
    
   Per Curiam.

The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Tkenchard, Bergen, Black, "White, HepPENHEIMER, WILLIAMS, JJ. 10.

For reversal—ISTone.  