¶1'(dissenting): I cannot agree that a correct disposition has been made of this appeal. Heretofore it has been invariably held that in an appeal in a workmen’s compensation case our jurisdiction is limited to questions of law, and insofar as the judgment depends on the facts, to determine whether there was substantial evidence to sustain the judgment. This rule was well stated in Leamos v. Wilson & Co., 136 Kan. 613, 616, 16 P. 2d 490, in the following language:
“The rule is established by statute (R. S. 1931 Supp. 44-556) and the decisions of this court that the responsibility of determining the facts rests in the trial court, and this court is bound thereby, if there is any evidence from which a reasonable inference may be drawn to sustain the findings of the trial court. (Shay v. Hill, 133 Kan. 157, 299 Pac. 263; Paul v. Shelly Oil Co., 134 Kan. 636, 7 P. 2d 73.) Under the rule thus established, we are bound to accept as true the testimony most favorable to the appellee, and, if from this testimony a reasonable inference may be drawn which will sustain the findings of the trial court, it is the end of our jurisdiction.”
¶2The rule has been repeatedly followed. (See the cases cited in the annotations to G. S. 1935, 44-556, and G. S. 1937 Supp. 44-556.)
¶3In the instant case the trial court found nothing in the evidence that would warrant it in holding that the payments made were compensation and not wages, as is shown in a part of the findings quoted in the opinion.
¶4In Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431, and Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15, principally cited in support of the opinion, the trial court had found in favor of the claimant, appeal was by the respondent, and what was said in affirming the lower court was based on facts as found by the lower court, and not in opposition thereto.
¶5I cannot escape the conclusion that in the instant case this court is substituting its finding of fact for that of the trial court.
¶6I am authorized to say that Mr. Justice HaRvey concurs in this dissent.