I dissent. Under the provisions of the Workmen’s Compensation Act an employer who neglects or refuses to supply nursing for an employee is liable for the reasonable expenses incurred. (Lab. *424Code, § 4600.) The liability is based upon a neglect or refusal to supply the nursing.
The injury occurred July 18, 1944. The attention by the employee’s wife at his home dated from April 5, 1946, to September 27, 1946. On the latter date the employee was returned to the hospital. On November' 25, 1946, he was taken home and remained there until February 27, 1947, at which time he was sent to a rest home.
An adjustment or compromise of the disability claim was approved by the commission but set aside and a new hearing ordered. The referee before whom the hearing was held suggested that the nursing bill of the wife might be compromised by the respective parties but this suggestion was not followed by the insurance carrier. The award of $7.00 per day, amounting to $1,890, followed the refusal of the carrier to compromise.
The majority opinion states that; “We agree with the rule that where the services are rendered without the knowledge of the insurance company and are not of an extraordinary nature, that a member of a family should not be permitted to claim a right to compensation.” I assume that the attention given or the services rendered in this case may not be classified as “of an extraordinary nature.’’ I agree with that portion of the quotation in the majority opinion from 1 Campbell’s Workmen’s Compensation, page 649, section 732, that nursing charges by members of the family of an employee, unless by a graduate or practical nurse, are not allowable, and that no payment is warranted reasonably within the field of duty under the marital obligation, but I disagree, as the majority opinion holds, that the insurance carrier “impliedly, if not expressly” requested Mrs. Elliston to perform the services in expectation of payment therefor.
After numerous continuances caused by Mrs. Elliston’s former attorney, on July 7, 1947, the referee declared: “The nursing services are in error. They are never allowed in these proceedings, and the reason for that is that the wife takes her husband for better or for worse, and unless there is a contract, expressed or implied, by virtue of services rendered, the Commission has invariably held that the wifely services are not recoverable.” At the same hearing the wife testified that no request was made for nursing services to the insurance company and that she had no experience in nursing. She had mentioned the matter to her former attorney but did not know whether he had communicated with the employer or the insurance carrier. She stated that she had never been engaged in *425remunerative employment at any time during her married life, but had been offered a position at $70 a week during her husband’s illness, which she did not accept, even during the period when her husband was in the hospital.
The conclusion is reached in the majority opinion that “impliedly, if not expressly” a contract was entered into between the wife and one of eight physicians and surgeons who treated the employee at various times. It is not claimed that the doctor was regularly employed by the insurance carrier though his first report of examination and diagnosis of the employee’s physical condition after he had been treated by other physicians was made to the insurance carrier. The doctor was paid for his services on an order made by the commission directed to the carrier. There is no evidence that the employer or the carrier authorized the doctor to engage nursing service for the employee. There is no evidence that the doctor said anything that could reasonably lead Mrs. Elliston to believe she would be paid for her wifely nursing and attention. There is no evidence that the physician ever suggested to the carrier that the wife should be paid for her services. There is no evidence that at the time the employee was permitted to go home, the wife ever contemplated that she would or should be paid for her services. No application was made for payment to the wife until many months after the employee returned home.
Whether the carrier neglected and refused to supply nursing care (Lab. Code, § 4600), and whether an implied or express oral contract had been entered into by the employer or insurance carrier and the employee or his wife, presented questions of fact. It is the reviewing court, not the commission, that has determined that “impliedly, if not expressly” a contract was made between the respective parties.
Evidently the commission had no thought of an express or implied contract. The finding of the commission is: “1. It is true that Ruth Elliston, applicant’s wife, has rendered services to the applicant herein over and above those services which a wife renders to her husband under general circumstances. It is further true that the services thus rendered were reasonably required to cure and relieve applicant from the effects of injury herein, and that but for the rendering of said services by said Ruth Elliston, the defendant carrier herein would have had to pay for nursing services in excess of the amount found herein to cure and relieve applicant from the effects of said injury.”
*426According to the record the ordinary charges payable to practical nurses is $8.00 per day. The wife requested $10 per day. The amount fixed by the commission was $7.00 per day. The commission found that nursing services were required and that the carrier would have to pay “in excess of the amount found herein to cure and relieve applicant from the effects of said injury.”
The point is not the amount involved, but whether any relative or friend may take over a task of nursing, without requesting approval of the party who will eventually be called upon to pay, give the impression by failing to file a timely claim that the services are rendered because of love for the injured employee, and thereafter reap a reward, as in this case, in the sum of $1,890.
Heretofore the general rule has been to deny such application. In one instance the employment of a relative, not a trained or practical nurse, has been ruled upon. In County of Los Angeles v. Industrial Acc. Com., 8 Cal.App.2d 492 [48 P.2d 97] a claim for wage adjustment for nursing services rendered by the injured party’s son was presented and allowed but annulled on review. As in this ease, the nursing assistance was necessary. At page 493 the court said: “On the other hand, it is admitted that after her discharge from the hospital she made no request to the county or its representatives for the services of a nurse. Substantially the only support for the claim in this respect is that she went to the physician’s office regularly once a week and that he must have known that she needed nursing services, but made no arrangement for her to obtain such services.” Then follows the statutory provision involved in this case. The court continued (p. 494) : “So far as appears from the evidence the services rendered to the employee by her son were rendered by him gratuitously, as by a son to his mother, and without any contract or claim for compensation. We find no authority for the proposition that under these circumstances there was any legal foundation for a subsequent claim such as was allowed by the award in this case. In Galway v. Doody Steel Erecting Co., 103 Conn. 431 [130 A. 705, 44 A.L.R. 693], the Supreme Court of Connecticut had under.consideration the validity of an award in favor of the claimant’s wife for services rendered in nursing him during convalescence, in a proceeding brought under the Workmen’s Compensation Act of that state. The injured employee had been transferred from the hospital to his home because the surgeon in charge advised that his recovery would be has*427tened thereby, and with the knowledge that the claimant would need a very considerable amount of nursing from his wife. In holding against the claim for compensation on account of services thus rendered by the wife the court said: ‘His helpless condition doubtless required that Mrs. Galway should be in attendance or within call, but there is nothing in the finding to show that the services rendered were other than those which might reasonably be expected from any affectionate wife who was physically able to give them, or that they were not voluntarily and gratuitously rendered. ’ ” As stated in the County of Los Angeles case (p. 494) : “This same observation may appropriately be made in the ease at bar. ’ ’
The award insofar as it covers the wife’s claim should be annulled.