(concurring specially): I concur in the result. While I have no serious objections to the interpretation of the policy made in the opinion, it seems to me to be an unnecessarily strained interpretation. In affirming the ruling of the trial court I prefer to state the following reasons: Employees and workmen in mines are within the provisions of our workmen’s compensation act, whether they so elect or not, and without regard to whether thére are five or more workmen (R. S. 1931 Supp. 44-505, 44-507, 44-508 [c]). Unless the employer has an approved substitute scheme of compensation (R. S. 1931 Supp. 44-537) he is required to secure the compensation payable under the act by carrying insurance, or by making a showing of his financial responsibility so he may be a self-insurer (R. S. 1931 Supp. 44-532). The policy of insurance shall be in accordance witli the provisions of the compensation act, and shall provide that the same may be enforced by the employee (R. S. 1931 Supp. 44-559). So the terms of such a policy are provided by statute. Now, it is my notion that neither the employer nor the insurer who writes an insurance policy for the employer’s workmen can be heard to say that the policy contains provisions less favorable to the workman than the statute provides. To permit either of them to do so would *94render nugatory the insurance provisions of our workmen’s compensation law, and would seriously cripple the law itself.
This appeal is from an order of the court overruling a demurrer to plaintiff’s petition. He alleged that the parties were engaged in mining and operating under the workmen’s compensation act; that he sustained an injury compensable under the act; that in due time he made claim for compensation, which claim was heard by the compensation commissioner, and he was awarded compensation in the sum of $1,764, which award has become final, and the action is brought directly on the policy for the amount of the award. Appellant contends the employer cannot sue on the policy because it contains no provision authorizing him to do so. The statute requires it to have such a provision, and if it is absent it will be read' into the policy by virtue of the statute. Appellant argues that its policy limits its payment to $750 for an injury such as plaintiff sustained. It had no right to limit its liability to less than the compensation act provides. If that were permitted, compensation provided by the compensation act would not mean much to workmen.
The order of the trial court overruling the demurrer to the petition should be affirmed. The only defenses available, as I now see them, are that the employer had an approved substitute scheme of compensation, or had made a showing and had been authorized to be a self-insurer.
Burch, J., concurring.