^ & CO t- 45 JOHN ST , N EW YO'iK 36/5" Win (SorttfU ICam ^rljool Hihtatg Cornell University Library KF3615.H77 ».1 A treatise on the American and English w 3 1924 019 312 929 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019312929 A TREATISE ON THE AMERICAN AND ENGLISH WORKMEN'S COMPENSATION LAWS AS INTERPRETED BY THE COURTS AND TRIBUNALS VESTED WITH THE POWER OF ADMINIS- TERING AND ENFORCING SAME By ARTHUR B. HONNOLD OF THE MINNESOTA BAR AUTHOR OF A TREATISE ON OKLAHOMA JUSTICE PRACTICE IN TWO VOLUMES VOLUME I KANSAS CITY, MO. VERNON LAW BOOK COMPANY 1917 OOPTBIGHT, 1917 BY ARTHUR B. HONNOLD (1 HON.COMP.) PREFACE /hilB compensation legislation is comparatively new, it has developed ipidly, as appears from the fact that Workmen's Compensation Acts ave been adopted by the Federal Government, thirty-two states, three ;rritories, and many foreign countries. This legislation has received sufficiently thorough test to demonstrate its merit as a means of deviating certain conditions which have arisen as a result of indus- ial progress, and to assure its permanency. The underlying princi- les have become sufficiently fixed to make of value a text book based a the opinions of the courts and various commissions and officers ested with the power and duty of enforcing these Acts, particularly supplemented by an index furnishing a ready means of reference ad a means of comparing the text of the legislation on which the pinions are based with the text of that Act in which the investigator primarily interested. In this view this book has been prepared. It Dntains references to all material English and American cases and pinions, together with the text of each Act for purpose of comparison 3 above mentioned, and is submitted in the hope that it may duly icilitate investigations into this interesting and valuable class of legis- .tion. Occasion is hereby taken to acknowledge the uniform courtesy of le various commissions, boards, secretaries, and attorneys from whom luch valuable material and information has been secured. A. B. H. St. Paul, Minn. (iii)* TABLE OF CONTENTS OF VOLUMES I AND II VOLUME I TABLE OF ABBREVIATIONS (Page xix) CHAPTER I WORKMEN'S COMPENSATION ACTS IN GENERAI, Section 1-5. Article I. — ^History, purpose and scope. 6-11. Article II. — Construction and operation. 12-19. Article III.— Validity. ARTICLE I Section HISTORY, PURPOSE AND SCOPE 1. History. 2. Theory, purpose, and scope. 3. Report of Wainwrlght Commission. 4. Scope of legislation and change effected. 5. Insurance features. ARTICLE II CONSTRUCTION AND OPERATION Section 6. Construction. , 7. Retroactive operation. 8. Territorial operation. 9. Admiralty jurisdiction. 10. Interstate commerce. 11. Administration. 1 HON.COMP. (t) Ti TABLE OF CONTENTS ARTICLE III Section VALIDITY 12. Police power. 13. Validity as against particular objections. 14. Objections raised under constitutional provisions. 15. New York — Ives Case. 16. Kentucky. 17. Classification. 18. Abolition of defenses. 19. Right to question validity. CHAPTER II ELECTIVE AND COMPULSORY COMPENSATION Section 20. What Acts are elective and what compulsory. 21. Validity of Acts as affected by their elective or compulsory nature. 22. Contractual nature of elective compensation. 23. Presumption, notice and effect of election. 24. Pleading, and proof of election. 25. Abolition of defenses in common-law actions. CHAPTER III PERSONS AND EUNDS LIABLE EOR COMPENSATION Section 26-31. Article I. — Employers, principals, and contractors. 32-40. Article II. — Insurers and funds. 41-48. Article III. — Third persons (indemnity and subrogation). ARTICLE I EMPLOYERS, PRINCIPALS, AND CONTRACTORS Section 26. Primary liability— Who liable as employers. 27. Which of two employers liable. 28. Municipal corporations. 29. Contemporaneous employment by different employers. 30. Principals and contractors. 31. Principal and agent. TABLE OF CONTENTS Vll ARTICLE II INSURERS AND FUNDS, ■Section 32. Distinctive insurance features of Compensation Acts. 33. Option of state insurance, private insurance, or self-insurance. 34. Rights and liabilities of insurance companies. 35. Substitution of parties, subrogation and reimbursement. 86. Premiums. 37. State Insurance. 38. Excessive contributions and credits. 39. Public work. 40. Pension roll and reserve fund. ARTICLE III THIRD PERSONS. (INDEMNITY AND SiJbROGATION) Section 41. In general. 42. California — Exercise of option. 43. Massachusetts. 44. Minnesota. 45. New Jersey. 46. New York. 47. Washington. 48. Wisconsin. CHAPTER IV PERSONS ENTITLED TO COMPENSATION Section 49-69. Article I. — Employes. 70-84. Article II. — Dependents. ARTICLE I EMPLOYES Section 49. Persons entitled to compensation as employes. 50. New York. 51. Contract of service. 52. State employes. VIU TABLE OF CONTENTS Section 53. Municipal employes. 54. California. 55. Federal employes. 56. Previous health of employe. 57. Minor employes. 58. Employes excepted. 59. Farm laborers. 60. Domestic and household servants. 61. Clerks. 62. Casual employes. 63. Connecticut. 64. California. 65. Iowa and Minnesota. 66. Independent contractor. 67. Federal Act. 68. Employe of independent contractor. 69. Officers. ARTICLE II DEPENDENTS Section 70. Who are dependents and what constitutes dependency. 71. Partial dependency. 72. Total dependency. 73. Alien dependents. 74. What children may be dependents. 75. Illegal and divorced wives — Marriage. 76. Nonsupport and desertion. 77. Dependents under federal Act. 78. Claim of dependent. 79. Payment to representatives — Survival of claim. 80. Determination of question of dependency. 81. Presumption of dependency — Husband and wife. 82. Parent and child. 83. California. 84. Proof of dependency. TABLE OF CONTENTS IX CHAPTER V CIRCUMSTANCES UNDER WHICH COMPENSATION BECOMES DUE Section 85-100. Article I. — Injury and accident. 85-91. Division I.— Accident. 92-96. Division II. — Personal Injury. 97-98. Division III.— Diseases. 99-100. Division IV.— Proof. 101-126. Article II. — ^Arising out of and in course of employment. 101-104. Division I. — In general. 105-114. Division II. — Arising in the course of employment. 115-125. Division III. — Arising out of employment. 126. Division IV.— Proof. 127-137. Article III.— Cause and resiilt. 138-139. Article IV. — Occupational diseases. ARTICLE I INJURY AND ACOIDHNT Division I. — ^Accident Section 85. Necessity, definition, and characteristics. 86. Unexpected untovfard event — Extraneous or not. 87. , Intentional act of another. 88. Industrial accidents. 89. Voluntary act in emergency. 90. Fortuitous event. 91. Question of law and fact. Division II. — Pebsonal Injuey 92. Definition. 93. Federal Act. 94. Physical violence or not. 95. Nervous shock. 96. Hernia. Division III. — Diseases 97. Diseases compensable as injuries. 98. Previously existing diseases. TABLE OF CONTENTS Division IV. — Pboob Section 99. Proof of accident. 100. Proof of Injury. ARTICLE II ARISING OUT OF AND IN COURSE OF EMPLOYMENT Division I. — In Genkbal Section 101. "In course of" and "out of" — ^Necessity and distinction. 102. Employments. 103. Hazardous employments. 104. Federal Act. Division II. — Arising in the Coubse of Employment 105. In general. 106. Term of employment. 107. Going to work. 108. Returning from work. 109. Premises of employer. 110. Means of conveyance. 111. Leisure periods — Attendance on personal comforts and necessities. 112. Negligence and recklessness. 113. Disobedience. 114. Deviation from original employment. Division III. — ^Aeising Out of Employment 115. Risks due to employment. 116. Risks peculiar to employment. 117. Risks of commonalty. 118. Risks external to the employment, but special exposure to risk due to employment. 119. Injury from forces of nature. 120. Injury caused by coemploy6 or others. 121. Injury from horseplay or practical joking. 122. Area of duty — Absence— Entry and exit. 123. Incurring of additional risks. 124. Intoxication. 125. Susceptibility to risk. Division IV. — Proof 126. Burden, requisites, and sufficiency of proof. TABLE OF CONTENTS XI Section 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. ARTICLE III CAUSE AND RESULT When accident or Injury proximate cause. Wlien proximate cause of disease. When proximate cause of hernia — Proof. Insanity. Resulting incapacity or death. Suicide. Aggravation of existing disease. Aggravation of injury after accident. Additional injury. Treatment in general. Neglect and refusal of operation or medical services. Section 138. 139. ARTICLE IV OCCUPATIONAL DISEASES Occupational diseases. Massachusetts. CHAPTER VI DEFENSES TO COMPENSATION CLAIMS Section 140. Serious and willful misconduct — Purposely self-inflicted injury. 141. Disobedience — Violation of rules. 142. Drunkenness. 143. Burden of proof — Question of fact. 144. Estoppel and res judicata. 145. Negligence, contributory negligence, and assmnption of risk. 146. Defenses under federal Act. Section 147-154. 155-166. 167-174. 175-192. CHAPTER VII COMPENSATION Article I. — Earnings as basis of compensation. Article II.— Disability and incapacity for work. Article III. — ^Death benefits. Article IV. — Payment, release, and related matters. XU TABLE OF CONTENTS Section 193-201. Article V. — ^Treatment and funeral expense. 193-200. Division I. — Expenses of medical, surgical, and hospital treat- ment. 201. Division II. — Funeral expenses. ARTICLE I * EARNINGS. AS BASIS OF COMPENSATION Section 147. What constitutes earnings. ~ 148. Loss of earning capacity. 149. Massachusetts. 150. Computation of earnings in general. 151. Determination of average earnings. 152. Average weekly earnings. 153. Dally wages. 154. Federal Act. ARTICLE il DISABILITY AND INCAPACITY FOR WORK Section 155. "Disability" and "incapacity for work." 156. Permanent total disability. 157. Permanent partial disability. 158. Temporary total disability. 159. Temporary partial disability. 160. Computation in case of previously impaired physical condition. 161. Hernia — California. 162. Scheduled injuries. 163. Eye. 164. Arm. 165. Hand, fingers, foot, and ankle. 166. Disfigurement. ARTICLE III DEATH BENEFITS Section 167. Computation and amount of benefit. 168. California. 169. Minnesota. 170. New Jersey. 171. New York. 172. Washington. 173. Wisconsin. 174. Federal Act TABLE OF CONTENTS XUl ARTICLE IV PAYMENT, RELEASE; AND RELATED MATTERS Section 175. Time, commencement, and continuation of payments. ' 176. Original federal Act. 177. Waiting period. 178. Original federal Act 179. Lump sum payments. 180. Amount. 181. Deductions from award or settlement. 182. Deduction of payments made. 183. Deduction for interest. 184. Increased and reduced compensation. 185. Restriction of employe's rights in insurance contract. 186. Pensions. 187. Change, suspension, and termination of compensation. 188. California. 189. Release. 190. Contracting out. 191. Assignment of compensation rights. 192. Apportionment. ARTICLE V TREATMENT AND FUNERAL EXPENSE Division I. — Expenses op Medical, Subgical, and Hospital Treatment Section 193. Rights, duties, and liabilities in general. 194. Massachusetts. 195. Failure or neglect of employer — ^Procurement of services and treat- ment by employe. 196. Where physician is furnished by employer. 197. Change of physician or service. 198. Expense for vi^hich employer is liable. 199. Recovery by physician. 200. Services of nurse or member of the family. Division II. — Funeeal Expenses 201. Provisions allowing funeral expenses. XIV TABLE OF CONTENTS CHAPTER VIII SETTLEMENT OF CONTROVERSIES Section 202. Article I. — Settlement by agreement. 203-208. Article II. — Remedies. 209. Article III. — ^Legal proceedings in general. 210-215. Article IV.— %fotice and claim. 216-222. Article V. — Evidence. 223-236. Article VI. — Proceedings before special tribunal. 237-250. Article VII. — Proceedings in court. 237-238. Division I. — Original proceedings. 239-245. Division II. — Eeview of decision of special tribunal. 246-250. Division III. — Review by higher court. 251-252. Article VIII.— Costs and attorney's fees. Section 202. ARTICLE I SETTLEMENT BY AGREEMENT Amicable settlements. Section 203. 204. 205. 206. 207. 208. ARTICLE II REMEDIES Deprivation of other remedies. Willful and intentional injuries. Washington. New York. Arizona. Election of remedies after event. ARTICLE III LEGAL PROCEEDINGS IN GENERAL Section 209. Practice. ARTICLE IV Section NOTICE AND CLAIM 210. Notice. 211. Notice to principal. 212. Compensation claims — Sufficiency — Abatement 213. Necessity of claim — Waiver. 214. Time for presentation — Limitations. 215. Federal Act. TABLE OF CONTENTS XV ARTICLE V Section EVIDENCE 216. AdmlsslbUlty. 217. Hearsay. 218. Declarations of ■workman. 219. Burden of proof and evidence to sustain it — Presumption. 220. Report— Evidentiary effect. 221. Medical examination. 222. Federal Act. ARTICLE VI „ „ PROCEEDINGS BEFORE SPECIAL TRIBUNAL Section 223. In general. 224. Jurisdiction. 225. Service of summons. 226. Parties. 227. Pleading and issues under California Act. 228. Taking and reception of testimony. 229. California. 230. Hearing, findings, and award. 231. CaUfomia. 232. Review toy special tribunal. 233. Dismissal. 234. Reopening of case, rehearing, and supplementary proceedings. 235. California. 236. Proceedings under original federal Act. ARTICLE VII PROCEEDINGS IN COURT Division I. — Original Proceedings Section 237. Jurisdiction and practice. 238. Verdict, judgment, and findings. Division II. — Review of Decision or Sfeciai. Tribunal 239. Jurisdiction. 240. Jury trial. 241. Appeal and review. 242. Review of findings and decision. 243. Connecticut. 244. "Washington. 245. California. 1 HoN.CoMP.— b XT! TABLE OF CONTENTS Section Division III. — Review by Higher Coubt 246. Remedies. 247. Right of appeal. 248. / Presentation below and for review. 249. Questions reviewable. 250. Decision. ARTICLE VIII „ . COSTS AND ATTORNEY'S FEES Section 251. Taxation of costs. 252. Contract for fee. CHAPTER IX ILLUSTRATIVE SELECTED FORMS Section 253. Forms for Illustration and reference. 254. Notices — ^Acceptance, rejection, and withdrawal. 255. Notices to be posted, and certificate. 256. . Notice of injury or claim. 257. First report of accident. 258. Employer's reports. 259. Agreements. 260. Application for adjustment of claim — Settlement and petition. 261. Answer to application. 262. Notice of hearing. 263. Arbitration. 264. Attending physician's certificate. 265. Proof of death, and certificate authorizing burial, 266. Subpoena. 267. Petition for review. 268. Notice of hearing. 269. Lump sum settlements. 270. Petition to terminate or modify. 271. Receipt and release. 272. Insurance — Notices. TABLE OF CASES CITED (Page 881) TABLE OF CONTENTS XVll VOLUME II CHAPTER X TEXT OF I.EGISI.ATION Page Arizona 977 California 988 Colorado 1029 Connecticut 1082 Illiaois 1100 Indiana 1121 Iowa 1138 Kansas ; 1158 Kentucky 1170 Louisiana 1200 Maine 1217 Maryland 1233 Massachusetts 1261 Michigan 1288 Minnesota 1308 Montana 1327 Nebraska 1367 Nevada 1383 Page New Hampshire 1402 New Jersey 1407 New York 1425 Ohio 1468 Oklahoma 1503 Oregon 1521 Pennsylvania 1539 Rhode Island 1558 Texas 1575 Vermont 1585 Washington 1600 West Virginia 1619 Wisconsin 1641 Wyoming 1658 United States (Federal Acts) . . . 1672 Great Britain (English Act) 1685 Germany (Synopsis of German Act) 1T06 INDEX (Page 1709) TABLE OF ABBREVIATIONS AND REFERENCES THE STATE BEFORTS ABE CITED BY THEIE FA1£ILIAB ABBREVIATIONS A. C Law Reports, Appeal Casea (1891 et seq., Eng.). Am. St. Rep American State Reports. Ann. Cas American Annotated Cases. Ann. Rep. Kan. B. of L,. Annual Report of the Kansas Bureau of Labor. Ann. Rep. Neb. St. Dept. of L Annual Report of the Nebraska State Department of Labor. App. C Law Reports, Appeal Cases (Unfr.). App. Div Appellate Division (N. T.). Ariz. Op. Atty. Gen Opinions of the Attorney General of Arizona. Atl Atlantic Reporter. Bulletin, III Bulletin of Decisions of the Industrial Board of Illinois. Bui. Ohio Indus. Com. ...Bulletins of Decisions of the Industrial Commission of Ohio. Bui. Wis. Indus. Com. ...Bulletins of Decisions of the Industrial Commission of Wisconsin. B. W. C. C. Butterworth's Workmen's Compensation Cases (British cases). Cal. I. A. C. Dec Decisions of the Industrial Accident Commission of Cal- ifornia (published first in bulletins and afterwards in bound volumes; page references to volumes 2 and 3 are to the bulletins). Col. Indus. Com Industrial Commission of Colorado. Conn. Comp. Dec Connecticut Compensation Decisions. C. C. A. U. S. Circuit Court of Appeals. Cranch Cranch, U. S. Supreme Court Reports. Det. Leg. News Detroit Legal News. Eng. Com. B English Common Bench Reports. F Court of Sessions, Scotland (Fourth Series), Fed Federal Reporter. Gray Gray, Massachusetts Reports. 1. A. C. Dec See Cal. I. A. C. Dec. III. App. Illinois Appellate Court Reports. Ind. Indus. Bd Industrial Board of Indiana. Iowa Op. Sp. Counsel to Indus. Com Opinions of the Special Counsel to the Iowa Industrial Comm.issioner. I. R Irish Reports. In. L. T. Irish Law Times. IP. L. T. R Irish Law Times Reports. Ir. R Irish Reports. Kan. Ann. Rep. B, of L.. Annual Report of the Kansas Bureau of Labor. K. B. , King's Bench. 1 HoN.CoMP. (xix) XX TABLE OF ABBREVIATIONS AND BEFERENCB8 L. Ed Lawyers' Edition TJ. S. Supreme 'Court Reports, L. J. K. B Law Journal King's Bench. L. R. A Lawyers' Reports Annotated. L. R. A. (N. S.) Lawyers' Reports Annotated, New Series. L. T Law Times (British cases) . L. T. Jo Law Times Journal (British cases). L. T. R Law Times Reports (British cases). Mass, Wk, Comp, Cases,. Reports of Cases under the Workmen's Compensation- Act of Massachusetts. Me, Indus, Ace, Com, ... Industrial Accident Commission of Maine, Mich, Wk, Comp, Cases. Decisions of the Industrial Accident Board of Michigan. Minn, Op. Atty, Gen Opinions of the Attorney General of Minnesota. Minn, Op. Dept. of L. .,, Opinions of the Department of Labor of Minnesota, Miso, Rep Miscellaneous Reports (N. T.). Mont. Indus, Ace, Bd, ...Industrial Accident Board of Montana. Md, St, Indus, Aeo, Com, State Industrial Accident Commission of Maryland, N. C, C, A Negligence and Compensation C^es Annotated. N, E Northeastern Reporter. Neb, Ann, Rep, of St. Dept, of L Annual Report of the Nebraska State Department of Labor. Nev, Rep, Indus, Com. . , Report of the Industrial Commission pf Nevada. N. J. Law New Jersey l but the credit for crystallizing this sentiment into workable laws rests with Bis- marck. From the enactment of a sick insurance statute in Ger- many in 1883, the idea of compensation based on risks arising out of the business and impairment of earning capacity spread to other European countries, and finally to the United States. The federal government, 32 states, Alaska, Hawaii, and the Canal Zone now have measures for the relief of injured workmen which are § 1 WORKMEN S COMPENSATION 4 patterned after either the German insuraiice, or the English com- pensation plan, or both.^ In consequence of the common origin- of these Acts, they bear a close resemblance to each other in their essential features.^ The basic German insurance plan and English compensation plan seek the same ultimate end, though by some- what different means, and the term "workmen's compensation" is sufficiently comprehensive for all practical purposes to include both.' 1 Compensation laws are in forde in the following states: Arizona, Cali- fornia, Colorado, Connecticut, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Maine, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington, West Vir- ginia, Wisconsin, and Wyoming. The first Kentucky law was declared un- constitutional, and the present law became effective August 1, 1916. The law passed by the Idaho Legislature was vetoed by the Governor. The states above named have approximately 75 per cent, of the population and nearly 85 per cent, of the workmen engaged in' manufacturing in the continental United States. The original New York Act, enacted in 1910 (Labor Law [Laws 1910, e. 674] art. 14a), was modeled after the English Workmen's Compensation Act of 1897. Ives V. South Bufealo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156. 2 Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; Mackin v. Detroit Timkin Axle Co., 187 Mich. 8, 153 N. W. 49 ; State v. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299. They are the expression of widely prevalent sentiments which have exerted a compelling influence on legislation in other countries as well as in the United States. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398. "Confronted with a legislative history covering more than 30 years and extending to practically all of Europe, to many of the European dependencies, and to more than one-half of the United States, the members of the Legis- lative Assembly of 1915 must be credited with an understanding of compen- sation measures as they were generally understood at that time, and with an intention to employ terms appropriate to such measures as they were gener- ally employed under like circumstances," Lewis and Clark County v. Indus- trial Ace. Board (Mont.) 155 Pac. 268. 3 Id. The Act should be designated and referred to as the "Workmen's Compensa- tion Act," not as the "Employers' Liability Act," though it has some of the 5 ACTS IN GENERAIi § 2 § 2. Theory, purpose, and scope The proper administration of Workmen's Compensation J^cts necessitates an appreciation of the legislative purpose to abolish the common-law system relating to injuries to employes as inadequate to meet modern conditions * and conceptions of moral obligations," and substitute therefor a system based on a high conception of characteristics of both. Gregutis v. Waclark Wire Works, 86 N. J. Law, 610, 92 Atl. 354. 4 It was the Intention of the Legislature of New York to supersede "rules of law governing legal liability" which were stated by Governor Hughes to "offend the common sense of fairness," and to carry out the recommendation of the Wainwright Commission of 1909 that the state should "establish a new system of compensation for accidents to workmen." In re Riheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. All the Compensation Acts, whether elective or compulsory, rest on the notion that the common-law remedy by action involves intolerable delay and great economic waste, gives inadequate relief, operates unequally, and that, whether viewed from the standpoint of the employer or that of the employ^, it is inequitable and unsuited to the conditions of modern industry. Western Indemnity Co. v. Plllsbury, 170 Cal. 686, 151 Pac. 398. In an opinion by Judge Johnson, in the case of State ex rel. v. Creamer, 85 Ohio St. 349, 386, 97 N. E. 602, 603, 39 L. R. A. (N. S.) 694, construing the original Ohio Act, the court says of the Act: "It provides a plan of compen- sation for injuries * * * resulting from accidents to employes. • * « The system, which has been followed in this country, of dealing with acci- dents in industrial pursuits, is wholly unsound. • * * There has been enormous waste under the present system, and « • * the action for per- sonal injuries by employ^ against employer no longer furnishes a real and practical remedy, annoys and harasses both, and does not meet the economic and social problem which has resulted from modern industrialism." 5 The purpose of the Act is to substitute a method of accident insurance in place of the common-law rights and liabilities for substantially all employes except domestic servants, farm laborers, and masters of and seamen on vessels engaged in interstate or foreign commerce, and those whose employment is casual or not in the usual course of trade, business, or employment of the employer, and probably those subject to the federal Employers' Liability Act (Act AprU 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 8657-8665]). It was a humane measure enacted in response to a strong public sentiment that the remedies afforded by actions of tort at common law and under the state Employers' Liability Act had failed to accomplish that measure of pro- § 2 workmen's compensation 6 man's obligation to his fellow man/ a system recognizing every per- sonal loss to an employe, which is not self-inflicted, as an element tectlon against injuries and in case of accident which should be afforded to the workman. Young v. Duncan, 218 Mass. 346, 106 N. E. 1. The originators of the Workmen's Compensation Acts believed that they would lessen crime. Some of the considerations behind them were economic: The difficulty and hardship involved in proving the workman's case, the great waste in procuring a recovery, the delay in obtaining the relief, the uncertainty oftentimes in determining the cause of the accident, the vastly increased dangers, and the impossibility of personal supervision by the em- ployer, under modern conditions of employment, and the necessity of the workman accepting employment under conditions of Increased danger or suf- fering loss of' livelihood. Some were moral: The prevention of the tendency of some workmen to press unfounded claims, and the tendency of some em- ployers to defend by means of questionable 'fairness. Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. 6 The paraniount object of the diverse workmen's compensation enactments which have been adopted by several of the states of the Union and in foreign countries has been the enactment of what has been claimed to be more just and humane laws to take the place of the common-law remedy for the com- pensation of workmen for accidental injuries received In the course of their employment, by the taking away and removal of certain defenses in that class of cases. Adams v. Acme White Lead & Color Wks., 182 Mich. 157, 148 N. W. 485, L. R. A. 1916A, 282. Though the Ohio Act had in view the establishment of an insurance fund, It was passed primarily to protect the life and limb of the employ^. McWeeny V. Standard Boiler & Plate Co. (D. C.) 210 Fed. 507, affirmed 218 Fed. 361, 134 C. C. A. 169. As said by Judge Fullerton: "Theoretically, of course, the employer and employg, on entering into a contract by which the one engages the services of the other, stand on the same plane, but in practice, as it is well known, this ideal condition very seldom exists. Greed and sagacity on the one side, and necessity and incapacity on the other, sometimes lead to contracts that create conditions little short of peonage, and our own reports abound with Instances where men have been induced to work in situations so dangerous to life and limb that the wonder is not that some of them were injured, but rather that any of them escaped injury. Indeed, It is a common thing for an employer, in defense of an action of damages brought by his employe for injury re- ceived, in such a situation, to urge that the dangers of the place were so obvious and apparent that the employs was guilty of contributory negligence for working therein. These conditions, we think, authorize the interference of the Legislature. * * * The obligation of the employe to accept tha 7 ACTS IN GENERAL § 2 of the cost of production^ to be charged to the industry rather than to the individual employer,* and liquidated in the steps end- conditions of the statute can rest on the welfare of the state." State v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466. 7 The object of the Workmen's Compensation Act is to minimize personal Injury, distress, and loss, and throw the burden upon the public as well as on the person injured, recognizing that such loss legitimately enters into the cost of production as wages. City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. E. A. 1916A, 1, Ann. Cas. 1915B, 847. The general purpose of the Act is to make compensation for the numerous accidents and injuries to workmen,' which under present conditions occur in industrial enterprises, a part of the cost of production. It seeks to do this in accordance with a carefully regulated scheme, disregarding many of the prin- ciples of the common law which formerly afCected actions to recover compen- sation for such Injuries. Jillson v. Eoss (E. I.) 94 Atl. 717. "The remedy provided by our Compensation Act is substitutionary in char- acter, furnishing what was purposed to be a more humanitarian and economi- cal system as a substitute for one deemed wasteful to industrial enterprises and commerce, and unfair to employes. Its intent was to afford its protection to all Connecticut employers and employes who might voluntarily choose to make its provision for compensation for injury a part of their contracts of employment. It assumed that accident is incident to employment, and pur- posed to charge its cost in the case of every Injury not caused by the willful and serious misconduct or intoxication of the injured employe to the industry in which it occurred. It Intended that the employe should know what com- pensation he or his dependents would receive in the event of injury, and that payment should 'be made speedily by a procedure at once simple and in- expensive. It intended that the employer should know his liability in this regard, and so might include it among the cost of operation." Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. E. A. 1916A, 436 (opinion by Wheeler, J.). The workmen's compensation legislation is based on the economic principle of trade risk, in that personal injury losses incident to industrial pursuits are, like wages and breakage of machinery, a part of the cost of production. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. The Work- men's Compensation Act is a humane, remedial enactment which is intended to give vitality to the idea that personal injury losses Incident to an employe's service are as much a part of the labor cost of such service as wages paid, and should, in some practicable way, be so treated. Village of Kiel v. Indus- trial Commission of Wisconsin (Wis.) 158 N. W. 68. 8 There is no doubt that it was the legislative intent to compensate work- men for Injuries resulting from Industrial accidents, and that such compen- 8 2 WORKMEN S COMPENSATION O ing with consumption,' so that the burden is finally borne by the community in general.^" The fundamental principle of government sation is charged against the industry because it is responsible for the injury. Klawinski v. Lake Shore & M. S. Ry. Co., 185 Mich. 643, 152 N. W. 213, L. R. A. 1916A, 342. The position in the line of causation which employers sustain in modern industrial pursuits is the basic fact on which employer's liability laws rest. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398; State v. Creamer, 85 Ohio St. 349, 97 N. E. 602, 39 L. R. A. (N. S.) 694. The theory is that each time an employ^ is killed or injured there is an economic loss, which must be made up or compensated in some way; that most accidents are at- tributable to the inherent risk of employment — ^that is, no one is directly at fault ; that the burden of this economic loss should be borne by the industry, rather than by society as a whole; that a fund should be provided by the industry from which a fixed sum should be set apart as every accident occurs to compensate the person injured, or his dependents, for his or their loss. State V. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299. Workingraen's insurance and compensation laws are the products of the development of the social and economic idea that the industry which has always borne the burden of depreciation and destruction of tbe necessary ma- chinery shall also bear the burden of repairing the efficiency of the human machine without which the industry itself could not exist. Lewis and Clark County V. Industrial Ace. Board (Mont.) 155 Pac. 268. The theory of this legislation is that the risk of injury to workmen in the industries covered by the law should be borne by the industries rather than by the individual workman alone. As the ultimate result, the burden thus imposed in the first Instance on the employer will be distributed, as part of the cost of production, among the consuming public. Western Indemnity Co. V. Pillsbury, 170 Cal. 686, 151 Pac. 398; State v. Clausen, 65 Wlash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466. Proper administration of the Workmen's Compensation Act requires appre- ciation of the manifest legislative purpose to abolish the common-law system regarding injuries to employes as unsuitable to modem conditions and con- ceptions of moral obligations, and erect in place thereof one based on the highest present conception of man's humanity to man and obligations to mem- bers of the employe class — one recognizing every personal loss to an employe, not self-inflicted, as necessarily entering into the cost of production and re- quired to be liquidated in the steps ending with consumption. City of Mil- waukee V. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847. In the enactment of the compensation law, the Legislature recognized that 10 See note 10 on following page. 9 ACTS IN GENERAL § 2" parallel with this purpose, and on which all compensation legis- lation is based, the principle which was first advocated by Bis- marck in Germany in about the year 1880, and later by Lord Salis- bury in England', is that in a modern industrial state the risk of the common-law remedies for injuries sustained in certain hazardous Indus- tries were inadequate, unscientific, and unjust, and therefore a substitute was provided, by which a more equitable adjustment of such could be made under a system which was Intended largely to eliminate controversies and litigation and place the burden of accidental injuries, Incident to such employments, upon the industries themselves, or rather upon the consumers of the products- of such industries. McRoberts v. National Zinc Co., 93 Kan. 364, 144 Pae. 247. Injuries sustained by those who perform the manual and mechanical tasks of an industry must be deemed to have been intended by this statiite to be made a social risk, a liability of the Industry, a charge upon the production cost of the article manufactured or the service rendered. In re Rheinwald, 168 App. rHv. 425, 153 N. Y. Supp. 598. In contemplation of the Act and the constitutional provision under which It was passed, accidents In the employ- ment finally fall upon the consumer, and not upon the employ^ or employer ; the State Commission standing between the employe, the employer, and the ultimate consumer. McQueeney v. Sutphen & Hyer, 167 App. Div. 528, 153 N. T. Supp. 554. The theory of the law, and of the underlying constitutional authorization, Is; that the accidents growing out of the operation of industrial enterprises become a legitimate part of what is known in commercial life as the "over- head" cost, the same as the breakage, wear, and tear of machinery and equip- ment, and it is only in those industries which are carried on for pecuniary gain that "the cost of operating the business" can be > taken care of in the- fixing of the price of the product. Allen v. State (Sup.) 160 N. Y. Supp. 85. 10 The plain purpose of Laws 1913, c. 816, was to make the risk of accident one of the Industry itself, to follow from the fact of the injury, and hence that compensation on account thereof should be treated as an element in the cost of production, added to the cost of the article and borne by the community in general. That the statute might be general in its scope provision was made to provide for compensation for every accidental personal injury to an em- ploye arising out of and in the course of the employment, with the two excep- tions specified in the statute. Kenny v. Union Ry. Co., 166 App. Div. 497, 152 N. Y. Supp. 117. The scheme of the statute is to charge upon the business, through insurance, the losses caused by it, making the business and the ulti- mate consumer of its product, and not the Injured employs, bear the burden of the accidents incident to the business. The statute contemplates the pro- tection, not only of the employ^, but of the employer, at the expense of the ultimate consumer. Spratt v. Sweeney & Gray Co., 168 App. Div. 403, 153. ■§ '2 workmen's compensation 10 injury to workmen while engaged in the employer's service is a so- cial risk, chargeable against the business itself, the losses arising from which are to be added to the productive cost and to be borne ultimately by the community at large. This principle has been generally accepted in Europe for years, and is regarded by socio- logical writers as a forward step in the progress and development of a civilized state. It permits an injured workman, or, in the ■event of his death, his dependents, to demand as a right that which N. Y. Supp. 505. The purpose of the Workmen's Compensation Act was to make the risk of an accidental injury one df the Industry Itself, even when iappening through the fault of the workman, treating It as an element of the cost of production, to he added thereto and hence borne by the community in general. Moore v. Lehigh Valley R. Co., 169 App. DIv. 177, 154 N. Y. Supp. 620. The evil sought to be remedied "is one that calls loudly for action. Accidents to workmen in the Industries enumerated in it are all but inevitable. It seems that no matter how carefully laws for the prevention of accidents In such Indtistrles may be framed, or how rigidly they may be enforced, there is an •element of human equation that enters into the problem which cannot be eliminated and which Invariably causes personal injuries and consequent flnan- ■clal losses to workmen engaged therein. Heretofore these losses have been borne by the injured workmen themselves, by their dependents, or by the state at large. It was the belief of the Legislature that they should be borne by the industries causing them, or, perl^aps more accurately, 'by the consumers of the products of such industries. That the principle thus sought to be put into effect is economically, sociologically, and morally sound, we think must be conceded. It is so treated by the learned counsel who have filed briefs In support of the auditor's contentions ; It is so conceded by all modern states- men, jurists, and economic writers who have voiced their opinion on the sub- ject, and the principle has been enacted Into law by nearly all of the civilized countries of Europe, by Australia, by New Zealand, by the Transvaal, by the principal provinces of the Dominion of Canada, and In a partial form, at least, by one or more of South American Republics. Indeed, so universal Is the sentiment that to assert to the contrary is to turn the face against the en- lightened opinion of mankind. The common law does not purport to afford a remedy for the condition here found to exist. It affords relief to an Injured workman In only a limited number of cases — cases where the injury Is the result of fault on the part of the employer and there is want of fault on the part of the workman. For the greater number of injuries traceable to the ■dangers incident to industry, no remedy at all Is afforded." State v. Clausen, •65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466. T-1 ACTS IN GENERAL § 2 they were often compelled to ask as a charity, with the ultimate costs in either event upon the community."^^ This purpose exists, though the primary liability for compensation or insuring the em- ploye against loss rests on the employer.^^ In place of the common- law remedy, which involves tedious delays and great economic waste, it has been sought by this legislation to provide a certain and speedy method by which injured employes and their dependents may secure, at a minimum of cost ^° and free from certain well- 11 Lindebauer v. Welner, 94 Misc. Rep. 612, 159 N. T. Supp. 987. 12 The purpose is ito insure the workman at the expense of the employer against personal injuries not expected or designed by the workman himself, provided such injuries arise out of and in the course of employment. In re Heitz, 218 N. Y. 148, 112 N. E. 750, affirming (Sup.) 155 N. T. Supp. 1112; Trim (Joint Dist. School Board v. Kelly, App. Gas. 667. Compensation legislation rests on the economic and humanitarian principles that compensation should be given at the expense of the business to the em- ploy§ or his representative for earning capacity destroyed by an accident in the course of or connected with his work. Waters v. William J. Taylor Co., 218 N. Y. 248, 112 N. E. 727, affirming. 170 App. Div. 942, 154 N. T. Supp. 1149. 13 Its purpose is to furnish a remedy that will reach every injury sustained by a workman engaged in any of such industries, and make a sure and cer- tain award therefor. State v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 K R. A. (N. S.) 466; Shade v. Ash Grove Lime & Portland Cement Co., 93 Kan. 257, 144 Pac. 249 ; Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398. It was intended by the Legislature that litigation under this Act shall pro- •ceed to a final determination without unreasonable delay. JlUson v. Ross (R. 1.) 94 Atl. 717. The Act, by eliminating the proof of negligence, by minimizing the delay In the award, and by making it reasonably certain, seeks to avoid the great waste of the tort action, and to promote better feeling between workman and employer, and accepts as an inevitable condition of industry, the happen- ing of accident and charges its cost to the industry. It imposes upon the employer, presumably, his share of a common loss in a common industry. The period of compensation is limited as a "concession," it is said, "to expe- diency," although logically the spirit and purpose of the Act can only be ' met by having the period commensurate with the period of injury or, depend- ence. The certainty of receipt of compensation for injury follows the Act. Its procedure contemplates a speedy investigation and hearing by a commis- sioner, without the formalities of a court, and without, as a general rule, the § 2 workmen's compensation 12" established rules of law, compensation which will be more uniform than that awarded by juries/* and which, so far as practicable, is- employment of an attorney. It attempts to improve the condition of work- men under modern methods of industry by giving him partial recompense for an injury, with a result more certain and speedy and less expensive than un- der the former method in toil litigation. Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. The purpose of the Act Is to insure that compensation. shall go intact to the injured employe or his dependents without any shrinkage by passing through or into the hands of assigns, agents, attorneys, friends, or relatives ; it being common knowledge that, if a sum of money on its journey from the one from whom to the one to whom it is due passes through the hands of others, it is; inevitable that it suffers diminution, sometimes almost to the vanishing point. State V. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299. The original Ohio Workmen's Compensation Act was passed May 31, 1911 (102 Ohio Laws, p. 524). Its purpose, well expressed in its title, was: "To create a state in- surance fund for the benefit of .injured and the dependents of killed em- ployes, and to provide for the administration of such fund by a state liability board of awards." Id. "A , striking feature of a good Compensation Act is the promptitude and ease with which claims for compensation are settled. Out of a total of 11,377 claims handled during the year, 10,534, or 93 per cent., were settled directly between the parties. Of the remaining 843 claims, 804 were disposed of after hearing by the Commission. There were only 39 court cases in all. Taking the total experience of the Commission to date, only 30 cases out of every 1,000 are brought before the Commission, and only 2 cases are carried to the courts." Rep. Wis. Indus. Com. 1914-15, p. 2. 14 While the legislation of this character is of recent growth in this country, the end sought to be accomplished is thoroughly well understood. The object and purpose of such legislation has been twofold: First, in cases of injury to employes to provide a speedy and inexpensive method by which com- pensation, might be made to them or those dependent upon them without the delay of long and tedious litigation, and at a minimum of costs ; and, second- ly, to substitute a more uniform scale of compensation in cases of accident than could be obtained from the varying and often widely divergent estimates of juries, and also to avoid the application of certain well-established rules of law, which in some cases have seemed to be harsh in their operation. Bren- ner, v. Brenner, 127 Md. 189, 96 Atl. 287. "Injustice to the laborer and hardships to the industries of the state alike called for some plan that would relieve the servant of the necessity of pur- suing his remedy for compensation in the courts, and the master of the har- assments, vexations, and uncertainties attending the trial of aU cases where men are called upon to defend against the charge of negligence. Clearly the 13 ACTS IN GBNEEAIi § 2 regulated as to amount by fixed rules and schedules.*" A full ap- preciation of the scope of this legislation cannot be obtained with- purpose of the Act was to end all litigation growing out of, incident to, or re- sulting from the primary injury, and in lieu thereof give to the workman one recovery in the way of certain compensation, and to make the charge upon the contributing industries alone. The Act is grounded in a humanitarian impulse. It takes account only of the place of injury and the extent of the •disability, and compensates for the conditions resulting from the primary in- jury, or, in other words,, it wiU reject no element of disability if it has accrued in consequence of the first hurt, or as an aggravation arising from any col- lateral contributing cause. The Legislature knew that workmen had been compelled to meet the defense of nonliability on the part of the employer, who might plead the malpractice of the attending surgeon as a bar to recovery, and if they pursued their remedy against the malpractitioner, they might be subject to the hazard. of expert opinion evidence, from which a jury may gen- erally find a sufficient warrant to follow its ovsm inclination. There was no assurance of recovery against either party, or against either offender. On the other hand, the employer and, faithful and competent physicians and sur- geons had been put to the hazard of Ul-founded suits. The deserving had gone from the courts, their wrongs unredressed. The undeserving had taken that which, in good conscience, was not their own, and to cure all the Legislature passed the Industrial Insurance Law covering 'all phases of the premises.' " Ross V. Erickson Const. Co., 89 Wash. 634, 155 Pac. 153. "As the citizens of the state have become familiar with the purposes and actual operation of the compensation law during the past year, the co-opera- tion and assistance received by the commission has increased correspond- ingly. Employers have been relieved of the worry and cost of litigation, and have had the satisfaction of knovnng that the money spent for compensation was being received by the workmen who were Injured, rather than going for attorney fees, court costs, and the expenses and profits of the liability insur- ance companies. On the other hand, injured workmen received compensation as promptly as possible and in a large number of cases where the employer would not have been liable under the former statutes." First Annual Rep. Or. Indus. Ace. Com. June 30, 1915, p. 24. "Although 4,546 accidents were reported to the Commission during the 12 months, only in a few instances did 15 The object in case of disability is to provide to workmen who have sus- tained Injuries in their respective employments a compensation which is based on fixed schedules. Nitram Co. v. Creagh, 84 N. J. Law, 243, 86 Atl. 435. The general purpose of the Illinois Act is to provide a method by which In- juries received by employes In certain classes of occupations may be quickly adjusted, so that something shall be received according to fixed rules for de- termining compensation. Victor Chemical Works v. Industrial Board of Il- linois (lU.) lis N. E. 173. § 3 workmen's compensation 14 out also taking into consideration the fact that the state has an interest in compensation being awarded that the support of the workman or his dependents may not become a public charge.^^ § 3. Report of Wainwright Commission In its report to the IStew York Legislature, the reasons for the* departure from lohg-established custom in the enactment of com- pensation laws are summarized by the Wainwright Commission as; follows: "First, that the present system in New York rests on a. basis that is economically unwise and unfair, and that in operation- it is wasteful, uncertain, and productive of antagonism between, workmen and employers. Second, that it is satisfactory to none,, and tolerable only to those employers and workmen who practically disregard their legal rights and obligations, and fairly share the burden of accidents in industries. Third, that the evils of the: system are most marked in hazardous employments, where the- trade risk is high and serious accidents frequent. Fourth, that, as matter of fact, workmen in the dangerous trades do not, and prac- tically cannot, .provide for themselves adequate accident insur- ance, and therefore the burden of serious accidents falls on the workmen least able to bear it, and brings many of them and their . workmen ignore the Compensation Act and bring suit against their employers. In several cases workmen instituted suit, under the provisions of section 22, alleging they were injured 'from the deliberate intention of the employer to pro- duce such injury.' In two instances, also, workmen brought action after the Commission had paid the full amount of benefits provided by the law. This litigation, however, has so far been unsuccessful. The fact that suit had been instituted by two workmen after receiving the benefits provided by the law on account of their injuries, and after executing final settlement vouch- ers in favor of the accident fund, created speculation as to the motives behind ' this Utigation. This was, however, made plain later, when definite informa- tion came to the Commission that solicitors were visiting Injured workmen at the hospital, offering varying amounts per week, if the workman would sign a contingent fee contract authorising suit to be brought against the en> ployer." Id. p. 19. 16 Gerber v. Central Council of Stockton, 2 Cal. I. A. C. Dec. 580. 15 ACTS IN GENERAL § 4r families to want." " This indictment of the old system is followed by a statement of the anticipated benefits under the new statute as follows: "These results can, we think, be best avoided by compelling the employer to share the accident burden in intrin- sically dangerous' trades, since by fixing the price of his product the shock of the accident may be borne by the community. In those employments which have not so great an element of danger, in which, speaking generally, there is no such imperative demand for the exercise of the police power \of the state for the safeguard- ing of its workers from destitution and its consequences, we recom- mend, as the first step in this change of system, such amendment of the present law as will do away with some of its unfairness in theory and practice, and increase the workmen's chance of re- covery under the law. With such changes in the law we couple an elective plan of compensation, which, if generally adopted, will do away with many of the evils of the present system. Its adop- tion will, we believe, be profitable to both employer and employe, and prove to be the simplest way for the state to change its system of liability without disturbance of industrial conditions. Not the least of the motives moviiig us is the hope that by these means a source of antagonism between employer and employed, pregnant with danger for the state, may be eliminated." ^* § 4. Scope of legislation and change effected The change made by this legislation is radical, even revolution- ary,^" and works fundamental changes in the familiar principles IT Ives V. South Buffalo Ky. Co., 201 N. T. 271, 94 N. E. 431, 34 L. E. A. (N. S.) 162, Ann. Cas. 1912B, 156. 18 Id. ; In re Kheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. 19 Ives V. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. B. 431, 34 L. K. A. (N. S.) 162, Ann. Cas. 1912B, 156. This Act must in fairness be deemed to have been enacted In furtherance of a legislative determination, enforced by explicit mandate of the people through amendment of the state Constitution, that a new and different scheme and basis of Indemnity for industrial acci- § 4 workmen's compensation 16 governing the employer's heretofore existing liabihty for negli- gence."" In place of the liability in an action for damages, in which the employer was liable only in case he or his representative was negligent or at fault, a liability is imposed on the employer for any accidental injuries to his employes arising out of the employment — a liability which, as a general rule, is not conditioned on the employer's negligence or the employe's want of negligence. The Compensation Acts ordinarily require that the injuries shall not have been caused by the employe's intoxication or willful mis- conduct, and abrogate the common-law doctrines of assumption of risk, contributory negligence, and negligence of fellow servant."^ dents should be adopted in this state, In the light of the social experience of other commonwealths and covintries. In re Eheinwald, 168 App. Piv. 425, 153 N. Y. Supp. 598. 20 Mackin y. Detroit-Timkin Axle Co., 187 Mich. 8, 153" N. W. 49. Under the common law the burden of industrial accidents fell on the workman, where no fault was attributable to either employer or workman. Under the Compensation Acts it falls principally on the employer. Western Indemnity Co. v. PlUsbury, 170 Cal. 686, 151 Pac. 398. 21 Id. Compensation for injury, regardless of fault. Is the basis of the Compen- sation Acts. Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. The policy of the state of Illinois is to be found ,in the Compensation Act, and requires payment to employes in case of accident growing out of and in the course of the employment, without reference to the doctrine of negligence. Blauvelt v. Chicago & A. E. Co., Bulletin No. 1, 111., p. 181. The Compen- sation Act applies to no individual or corporation on the doctrine of tort, but it applies only by reason of its terms, which make it so. Radigen v. San- itary Dist. of Chicago, Bulletin No. 1, 111., p. 138. Recovery of compensation under the Michigan Act does not depend upon, and'is not affected by, the employer's negligence. Grand Trunk Ry. Co. of Canada v. Knapp (C. C. A.) 233 Fed. 950. The Compensation Act was intended to relieve against the hardships re- sulting from many unfortunate accidents which do take place in this age of the extensive use of complicated machines and appliances and of great en- terprises necessitating the indiscriminate employment of large forces of labor- ers and mechanics. All question of the employer's fault or negligence is eliminated from cases arising under this Act. The intention was to com- pensate all accidental injuries growing out of and received in the service, 17 ACTS IN GENERAL § i The right to be compensated for an injury ordinarily has about it no element of pension, rebate, bounty, or charity."" Nor does it except those intentionally self-inflicted or due to Intoxication. State Du- luth Brewing & Malting Co. v. District Court, 129 Minn. 176, 151 N. W. 912. The fundamental difference between the conception of liability and com- pensation is found in the presence in the one, and the absence from the other, of the element of actionable wrong. The common law and liability statutes fur- nished an uncertain measure of relief to the limited number of workmen who could trace their injuries proximately to the master's negligence. Compen- sation laws proceed upon the theory that the injured workingman is entitled to pecuniary relief from the distress caused by his injury, as a matter of right, unless his own wUlful act is the proximate cause, and that it is wholly immaterial whether the injury can be traced to the negligence of the master, the negligence of the injured employs or a fellow servant, or whether it re- sults from an act of God, the public enemy, an unavoidable accident, or a mere hazard of the business which may or may not be subject to more exact classi- fication; that his compensation shall be certain, limited by the impairment of his earning capacity, proportioned to his wages, and not dependent upon the skill or eloquence of counsel or the whim or caprice of a jury; that as between workmen of the same class who suffer like injuries, each shall re- ceive the same compensation, and that, too, without the economic waste inci- dent to protracted litigation and without reference to the fact that the injury to the one may have been occasioned by the negligence of the master, and to the other by reason of his own fault. Lewis and Clark County v. Indus. Ace Board (Mont.) 155 Pac. 268. The employer is responsible to the employe for every accident in the course of the employment, whether the employer is at fault or not, and whether the employs is at fault or not, except when the fault of the employ^ is so grave as to constitute serious and willful misconduct on his part. Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156. Neither the doctrine of respondeat superior nor the rule relative to the employer's liability for negligence controls in proceedings for compensation. In re State Workmen's Compensation Com'n, 112 N. E. 571, 218 N. Y. 59. Compensation is given without regard to the fault of the master at comnion law or under the Employers' Liability Acts. In re Heitz, 218 N. Y. 148, 112 N. E. 750, affirming (Sup.) 155 N. Y. Supp. 1112; Linde- bauer v. Weiner, 94 Misc. Rep. 612, 159 N. Y. Supp. 987. The Act was passed 22 State V. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299. The words "insurance fund," "compensation," "award," and "commutation" all negative the idea of pension or rebate of any kind. Id. This legislation is not a substitute for disability or old age pensions. In re Madden, 222 Mass. 487, 111 N. E. 379. HON.COMP. — 2 § 4 workmen's compensation 18 make the employer an insurer of the life or health of the employe during the hours of labor.^* Under the Washington Act, how- to benefit workmen In hazardous employments who were without a legal rem- edy. In re Heitz, supra. ' Th^ plain purpose of Iec. 525. The Iowa Act is broad enough to include accidents happening be- yond the borders of the state, and an employs, Injured outside the state while working for an employer living in the state under a contract of employment made in Iowa, can recover compensation under the Iowa Act. (Code Supp. 1913, title 12, c. 8A) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 22. Resident employer.— ^The corporation owning the ship on which the workman was injured was chartered under the laws of Maine and had a technical place of business in Maine, in which state the ship was registered, but the ship had heen built in California, and prior to the accident had never been on the Atlantic coast. Seventy-five per cent, of the business of the ship was done through San Francisco, and the remainder from other Pacific coast points. The ship was regularly engaged in coast line trade, with headquarters at San Francisco and 51 per cent, of the stockholders resided in California. The ma- jority of the board of directors and all but one of the corporate ofiicers also resided in California. The Commission held that the employer was a resident of the state of California for the purpose of determining liability under the Compensation Act. Gallagher v. Western Steam Navigation Co., supra. 69 Davidheiser v. Hay Foundry & Iron Works, 8T N. J. Law, 688, 94 Atl. 309, affirming 94 Atl. 1103, and following American Radiator Co. v. Rogge, 87 N. J. Law, 314, 93 Atl. 1083, affirming 86 N. 3. Law, 436, 92 Atl. 85. 7 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. 71 Where a traveling salesman residing in the state made a contract of em- -ployment in the state with an employer residing in the state, and thereafter moved to Utah and was there injured in the course of his employment, the § 8 workmen's compensation 40 injury are in the same state, the law of that state governs/^ though the employe lives and ordinarily works outside that state." The Wisconsin Act covers all accidents happening within the bounda- ries of the state, whether on land or on boat.'* The fact that the employer is also liable for compensation under the law of the foreign stete where the accident occurred does not prevent the California Act from also applying where both the employer and employe reside in California and the employment contract was made in that state, it not being unusual for the law of two different states to govern the same transaction.''" In an- swer to the contention that to give an Act an extraterritorial op- eration might permit a double recovery, the New Jersey court said : California Act did not apply. In a case so holding (Commissioner French dissenting) it was said: "While the Commission has held informally that it has jurisdiction over injuries taking place outside the exterior 'boundaries of the state in those cases where the contract of hire was entered Into within the state, it does not deem it wise or prudent or fairly ■within the intent of the Act to seek to extend the jurisdiction of the Commission to take cognizance of injuries happening outside of the state to persons not residing within the state, even though the contract of hire was entered into within the. state with an employer residing within the state. This Commission seeks jurisdiction only over citizens of the state." Croadv. Parafflne Paint Co., 1 Oal. I. A. C. Dec. 179. 7 2 Where an employg, suing in New York, was hired and was working in New Jersey at the time of his Injury, his right to recover was governed by the New Jersey Act Waselewskl v. Warner Sugar Refining Co., 87 Misc. Rep. 156, 149 N. X. Supp. 1035. The New Jersey Act controls where the contract of employment was made in New Jersey and the injury occurred in New Jersey. Pensabene v. F. & J. Auditore Co., 78 Misc. Rep. 538, 138 N. Y. Supp. 947. 73 Traveling salesmen, ordinarily working in other states and living outside of Minnesota, though in the employ of a Minnesota company, come under the Minnesota Workmen's Compensation Act whenever they come within the terri- tory of Minnesota, and, if injured in an accident arising in the course of their occupation, they are covered by the Minnesota Act. , Op. Atty. Gen. on Minn. Wlk. Comp. Act, Bui. 9, p. 17. 7* Lewandowski v. Crosby Transportation Co., Rep. Wis. Indus. Com. 1914^ 15, p. 9. 7B Sandberg v. Kruse, 1 Cal. I. A. C. Dec. 441. 41 ACTS IN GENERAL § 8 "Recovery of compensation in two states is no more illegal, and is not necessarily more unjust, than recovery upon two policies of accident or life insurance." '° If both the employer, the industry being conducted outside the state, and the injured employe, are non- residents, but the accident occurs in California, the Commission has stated. that on grounds of comity it will refer the case to the do- mestic forum of the parties and decline to try the proceedings, unless the convenience of both litigants otherwise requires/' On the theory that the right to compensation, though contrac- tual, rests on the statute rather than on the contract of employment^ the New Jersey Act has been held by the New Jersey courts to apply where the employment contract was made in another state and re- quired services to be performed in New Jersey where the injury was received,'* the court saying: "The Workmen's Compensation Act indicates a public policy of the state, which will be enforced even as against a contract made in another state." '* In a New York case it was held that, where an employer having an office in New York was insured under the Workmen's Compen- sation Act as to employes working in that state, the payroll on work done outside the state being used as a basis for such insurance, 76 BounsavlUe v. Central R. Co., 87 N. J. Law, 371, 94 Atl. 392. T7 Sandberg v. Kruse, 1 Cal. I. A. C. Dec. 441. 78 Where a servant employed in New York died in New Jersey of injuries received there, compensation was properly awarded under the New Jersey Act; the right to compensation resting on the statute rather than on the con- tract of employment. The liability is indeed contractual in nature by force of the very terms of the statute, but it is not the result of an express agree- ment between the parties ; it is an agreement, implied by the law, of a class commonly known as "quasi contracts." American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 Atl. 85. 79 American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 Atl. 85, 94 Atl. 85, affirmed in 87 N. J. Law, 314, 93 Atl. 1083; Davidheiser v. Hay Foundry & Iron Works, 87 N. J. Law, 688, 94 Atl. 309. The New Jersey Act permits recovery, though the contract of employment was made in another state. West Jersey Trust Co. v. Philadelphia & R. Ry. Co., 88 N. J. Law, 102, 95 Atl. 753. § 8 workmen's compensation 42 and employed decedent outside the state to work in Pennsylvania, in which state he was killed in the course of his employment, the employment of decedent was outside the state of New York, and therefore compensation could not be awarded under the New York Act, the court saying : "In this case the decedent had not been employed by the appella^ in the state since 1912. His employment had not been continuous, but had been from time to time for cer- tain jobs which were being performed entirely without the state. The contract of employment did not contemplate any work by him within the state ; no such work was done. The statute in question is intended to regulate the relations between the employer and employe in hazardous employments within the state, and' to pro- tect the employe within the state from the ordinary risks of the employment, and to charge those risks upon the ultimate consumer. The mere fact that an employe is engaged by a resident of the state to go out of the state for service, and no service in the state is con- templated or done, cannot bring the employment within the Act. Ordinarily a statute has no extraterritorial effect. But where the regular service of the employe is being performed in the state, and as an incident to it he goes over the state line temporarily, we have held that such temporary absence from the state does not relieve the employer from liability under this statute. The relations between the decedent and the company with reference to the work at Ford City depended upon the laws of the state of Pennsylvania, and the protection there given to the employer and the employe. The mere fact that the contract was made in the state, if it was made in the state, is not material here, when we understand that the con- tract related solely to work to be performed outside of the state. It follows, therefore, that the employment of the decedent was out- side of the state of New York." *° This principle has been applied by the Commission.*^ A resident of New Jersey, injured by ac- 80 Gardener v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899. 81 Where, though the contract of employment was made in New York, the workman was a resident of, and the accident happened In, West Virginia, the ■43 ACTS IN GBNBRAIi § 8 ■cident in the course of his employment in New York, is entitled to compensation under the New York Act, although the contract of hiring was made in Pennsylvania.*'' Since the New Jersey Act provides that in case of dispute or failure to agree on a claim all questions shall be submitted to the court of common pleas of that state on petition, which petition shall he answered and the issues raised determined by that court, there- by providing a forum wherein disputes between employer and employe relative to compensation may be settled, a Supreme Court of New York will not assume jurisdiction to enforce a claim under the New Jersey Act,*' though defendant is a corporation which has moved its place of business to the state of New York and cannot be personally served in New Jersey.** An employe injured on a river over which two states have con- current jurisdiction may recover under the Compensation Act of either state.*° Where the federal government has acquired land hy purchase for the construction of docks, forts, arsenals, or other buildings, the Washington Act is inapplicable to works and oc- cupations carried on within the confines of such land.** ■Commission of New York had no jurisdiction to grant compensation. Moyd V. Power Specialty Co., The Bulletin, N. X., ~vol. 1, No. 6, p. 9. Although an accident happening in New York may come under the Act, even where the con- tract of employment was made in another state, for the reason that the New York Act takes away the action for damages for negligence for all injuries received in the state, where the contract is made and the accident happens outside the state, this reason does not apply, and the claim is not under the New York Act. Dissosway v. Jallade, The Bulletin, N. Y., vol. 1, No. 6, p. 13. 82 Griffiths v. American Bitumastic Enamels Co., The Bulletin, N. Y., vol. 1, No. 7, p. 8. 8 3 McCarthy v. McAllister Steamboat Co., 94 Misc. Eep. 692, 158 N. Y. Supp. 563. 84 Lehmann v. Ramo Films, 92 Misc. Eep. 418, 155 N. Y. Supp. 1032. 8 5 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 16. 88 Wk. Comp. Act Wash. § 17; Opinion Atty. Gen. Sept. 20, 1911. § 9 workmen's compensation 44 § 9. Admiralty jurisdiction According to the courts of Connecticut and New York, a proceed- ing to recover under a Workmen's Compensation Act is a personal action, and not one in rem, and therefore not one of which admif-alty courts have exclusive jurisdiction where the injuries occur on the high seas or navigable waters.*^ It has been held by a federal court that, while the Washington Act does not*' and cannot take from an injtfred workman his right to proceed in admiralty by abol- ishing his right to pursue a common-law remedy for injury,*" yet, where the workman takes the benefit of this Act, which is pro- vided in lieu of his common-law remedy, he cannot thereafter pur- ■ sue his remedy in admiralty."" The Washington Supreme Court has held that a Compensation Act cannot be permitted to encroach on the admiralty jurisdiction of the federal court, or make the own- ers of a vessel liable, where it is not claimed that they have been at fault, beyond the limits prescribed by the federal statutes."^ Ac- 8 7 Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. E. A. 1916A, 436. Citing Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 643, 648, 20 Sup. Ct. 824, 44 L. Ed. 921 ; Schoonmaker T. Gilmore, 102 TJ. S. 118, 26 L. Ed. 95 ; Leon v. Galceran, 11 Wall. 185, 20 li. Ed. 74 ; Tlie Belfast, 7 Wall. 624, 19 li. Ed. 266 ; The Hine v. Trevor, 4 Wall. 555, 567, 568, 18 L. Ed. 451 ; Manchester v. Mass., 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159. An acci- dent occurring on a navigable river was within the jurisdiction of the New York Act In re Walker, 215 N. Y. 529, 109 N. E. 604, Ann. Cas. 1916B, 87. The provision of the New York Act that compensation shall be the exclu- sive liability, and in place of all other liability, extends only to suits at com- mon law; and where the circumstances of the case bring it under the Act, and also under admiralty jurisdiction, the employe may choose which remedy he will pursue. Walker v. Clyde S. S. Co., 215 N. Y. 529, 109 N. E. 604, Ann. Cas. 1916B, 87. 8 8 The Washington Act does not withdraw from a workman who Is injured on a vessel his remedy to proceed against the vessel in admiralty for the wrong sustained. The Fred E. Sanders (D. C.) 208 Ted. 724. sold. 90 Id. 91 State V. Daggett, 87 Wash. 253, 151 Pac. 648, L. K. A. 1916A, 446. 45 ACTS IN GENERAL | 1Q|, ■cording to a federal decision, an action brought for compensation under the New Jersey Act, not being an action for tort or one based on negligence, was one of which the state courts had at least con- current jurisdiction with the federal courts sitting in admiralty, and the state court having first acquired jurisdiction, the cause was not removable as one of admiralty and maritime jurisdiction."^ When the action is brought in a state court and is maintainable therein, it must be determined according to state laws and not ac- cording to the laws of admiralty."' § 10. Interstate commerce In the absence of any decision on the question by the United States Supreme Court, and in view of the conflict between the de- cisions of other courts, the question of the extent to which, if any, the state Compensation Acts may apply to employes of interstate carriers by railroad, without conflicting with the federal Employers' Liability Act, cannot be answered with any show of authority, otherwise than by calling attention to and contrasting these con- flicting decisions. Attempts to formulate any general rule by which thefee decisions may be tested and satisfactorily reconciled, meet with failure. However, it may be stated on positive authority' that, where Congress has not entered the particular field and thereby excluded state action, a state law is within the state's ju- risdiction, though it indirectly affects interstate and foreign com- merce, and that it remains so until Congress enters the field."* 92 Berton v. Tietken, etc., L. Dry Dock Co. (D. C.) 219 Fed. 763. 3 Lindstrom v. Mutual S. S. Co. (Minn.) 156 N. W. 669. »4 Jensen v. Southern Pac. Co., 215 N. X. 514, 109 N. E. 600, I/. R. A. 1916A, 403, Ann. Cas. 1916B, 276; Sherlock v. Ailing, 93 U. S. 99, 23 L. Ed. 819; Morgan's Steamship Co. v. Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237 ; Keid v. Colorado, 187 TJ. S. 137, 23 Sup. Ot 92, 47 L. Ed. 108 ;_ Simpson v. Shepard, 230 TJ. S. 352, 38 Sup. Ot. 729, 57 L. Ed. 1511, 48 L. R. A. (N. S.) 1151, Ann. Gas. 1916A, 18 ; Brie R. R. Co. v. WilUams, 233 U. S. 685, 34 Sup. Ct 761, 58 L. Ed. 1155, 51 L. R. A. (N. S.) 1097. § 10 workmen's compensation 4& The jurisdiction of Congress over interstate commerce, and thus- over remedies against employers therein for injuries sustained by employes while engaged in such commerce, is paramount, and,, since Congress in the Employers' Liability Act has fixed the em- ployer's- liability in cases where the act is caused by his own negli- gence, that Act is the exclusive remedy in such cases at least, and the state Act does not apply." The Act of Congress does not apply, of course, where the parties are not in any wise engaged in inter- state commerce.'* 80 Grand Trunk Ey. Co. of Canada v. Knapp (C. C. A.) 233 Fed. 950. «8 Blauvelt v. Chicago & A. E. Co., Bulletin No. 1, 111., p. 181. Employes not engaged in interstate commeree. — An employ^ repairing a car used indiscriminately for intrastate and interstate commerce, in a car shop in New Tork, is not engaged in interstate commerce; his status being determined by the character of the work done at the time of the injury. Par- sons V. Delaware & Hudson Co., 167 App. Div. 536, 153 N. Y. Supp. 179. A railroad watchman employed to guard property and tools and materials used In building a new station and laying new tracks, which when finished were to be used in interstate commerce, was not engaged in interstate commerce, and was entitled to compensation. White v. New York Central E. E., 2 N. Y. St. Dep. Eep. 477. Where an employ^ at the time of his injury was engaged in uncoupling cars on a railroad which operated exclusively and entirely with- in the state, the fact that the railroad sometimes carried interstate baggage and passengers, though always within the state, did not make the employfi- a workman engaged in interstate commerce. Fairchild v. Peimsylvania E. E. Co., 170 App. Dlv. 135, 155 N. Y. Supp. 751. An employe, working in a rail- road car shop maintained and operated entirely within the state, was not engaged in interstate commerce, although the cars repaired, and the car on which he was working at the time of the accident, were used in both Intrastate and interstate commerce. Okrzsezs v. Lehigh Valley E. Co., 170- App. Div. 15, 155 N. Y. Supp. 919. IlUnois. — ^A private watchman employed by a railroad company, whose duty was to make the rounds of the yards, inspecting the freight house and various portions of yards, keep improper per- sons off the premises, and prevent stealing from cars, and who had power to arrest in cases of necessity, who was injured in the performance of his duty, was entitled to compensation under the Workmen's Compensation Act of Illinois. Bassett v. Chicago, E. I. & P. Ey. Co., Bulletin No. 1, 111., p. 120. The fact that along the line of a particular train of a railroad there was merchandise of an interstate character to be handled, and that just prior to the occurrence of the accident the crew and train had been handling inter- 4:7 ACTS IN GENERAL § 10' The New York Act has been held to apply, so far as it may without interfering with any act of Congress, to injuries received by an employe in interstate commerce. The highest court of the state said: "The statute does not purport directly to regulate or impose a burden upon commerce, but merely undertakes to regulate the relations between employers and employes in this state. Such regulation may, and no doubt does, indirectly affect commerce, but to the extent that it may affect interstate or foreign commerce it is plainly within the jurisdiction of the state, until Congress by entering the field excludes state action." *^ It was further held that state packages or cars, and that it was their custom to handle whatever merchandise was delivered to them, whether interstate or otherwise, does not stamp such train and its employes as engaged in interstate commerce. Blau- velt V. Chicago & A. K. Co., Bulletin No. 1, 111., p. 181. »7 Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L. E. A. 1916A, 403, Ann. Cas. 1916B, 276. "Literally construed, section 114 makes the stat- ute apply only to intrastate work, either done by Itself or in connection with, but clearly separable and distinguishable from, interstate or foreign com- merce. But, though the section is awkwardly phrased, it is manifest that a broader application was intended, else the clause 'for whom a rule of liabili- ty or method of compensation has been or may be established by the Congress of the United States' is meaningless. The Legislature evidently intended to regulate, as far as it had the power, all employments within the state of the kinds enumerated. The earlier sections are in terms of general appli- cation, and section 114, which Is headed 'Intrastate Commerce,' is one of limitation, not of definition. Its obvious purpose was to guard against a construction violative of the Constitution of the United States, and so it pro- vided that the act should apply to interstate or foreign commerce, 'for whom a rule of liability or method of compensation has been or may be established by the Congress of the United States,' only to the extent that intrastate work affected may or shall be clearly separable or distinguishable therefrom. In. other words, the Legislature said that it did not intend to enter any field from where it had been or should be excluded by the action of the Congress of the United States. But it is said that Congress may at any time regulate em- ployments in interstate or foreign commerce, and that the case is one to which a rule 'may be established,' etc. Again, the spirit, not the letter, must con- trol. If it had been Intended to confine the application of the act to intra- state work, the Legislature would doubtless have said so in a sentence. The words 'may be' should be construed in the sense of 'shall be.' " Id. The remedy given by the federal Employers' Liability Act is not exclusive for all § 10 workmen's compensation 48 since the present federal statute applies only to carriers by rail- road, not carriers by water, the New York Act applied where an employe was killed while unloading a steamship belonging to a railroad company, but not shown to have been operated in any way in connection with the company's railroad line.°^ This power of the state to legislate m regard to injuries occurring in interstate commerce by water, in view of the failure of Congress to legis- late thereon, has also been recognized in decisions construing the Connecticut, Minnesota, and Washington Acts."' The New Jersey courts lay down the same rule as do the New York courts, which hold that the federal Employers' Liability Act is not exclusive,^ and that the states, in the exercise of their police power, may make such laws and regulations for the protection of the laborers within the state as may seem best, unhampered by the federal statute, except so far as they attempt to prescribe a liability for negligence or the remedies therefor in interstate commerce. Workmen's Com- pensation Acts, such as those of New York and New Jersey, come injuries to the employSs of a railroad corporation engaged in interstate com- merce, but only in case there is either an admission or proof that the accident was occasioned by the negligence of the interstate carrier. Buell v. N. T. C. & H. K. K. K. Co., The Bulletin, N. T., vol. 1, No. 5, p. 12. 88 Id. 9 9 Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, K E. A. 1916A, 436. In Miller v. N. X., N. H. & H. R. R. Co., 1 Conn. Comp. Dec. 349, it was held that where the employer and employe were both under the Connecticut Act, though engaged in interstate commerce, recovery might be had under that Act, since the federal Employers' Liability Act did not provide compensation such as was given under that Act. Sess. Laws Wash. 1911, c. 74, § 18, extends to workmen employed in interstate commerce by water, in the absence of congressional legislation on the subject StoU v. Pacific Coast S. S. Co. (D. C.) 205 Fed. 169. That the Minnesota Act applies to interstate commerce by water does not invalidate it as an interference with interstate commerce. Congress has not legislated upon that subject as to interstate com- merce by water, and until it does so such legislation is within the province of the several states. Lindstrom v. Mutual S. S. Co. (Minn.) 156 N. W. 669. 1 Rounsaville v. Cent. R. Co., 87 N. J. Law, 371, 94 Atl. 392; West Jersey Trust Co. V. Philadelphia & R. Ry. Co., 88 N. J. Law, 102, 95 AU. 753. 49 ACTS IN GENERAL § 10 within this rule. They have no reference to the question of negli- gence of the employer and create no liability or remedy for negli- gence." For the federal Employers' Liability Act to oust the court of common pleas of jurisdiction in a proceeding under the New Jer- sey Act, it must affirmatively appear either in the pleadings or the ^ proof that a right of action is given by the federal statute. It must appear that the workman's death or injury resulted in whole or in part from negligence chargeable to an employer in an employment within the federal Act.' The Supreme Court of Errors of Connecticut held that a pro- vision of the Compensation Act of that state, excepting injuries arising in interstate or foreign commerce, did not apply where an employe was drowned in consequence of the foundering of a tug, without negligence, in the navigable waters of New Jersey. The court said: "Presumably section 40 and similar provisions in other Compensation Acts have reference to the federal Employers' Lia- bility Act. Where the injury arises from a cause not covered by the federal Act, this section does not apply. To come within the federal Act there must be interstate traffic, interstate employment, and negligence. Though the first two conditions be present in this proceeding, the latter is not." * The Minnesota Act, being gen- eral in its terms, applies to all cases within the territorial jurisdic- tion of the state save those expressly excepted. It excepts cases arising from interstate commerce by railroad, but not those aris- ing from interstate commerce by water." The Ohio Act, though 2 Windfleld v. New York Cent & H. R. R. Co., 168 App. Div. 351, 153 N. Y. Supp. 499; RounsaviUe v. Central R. Co., 87 N. J. Law, 371, 94 Atl. 392; Hammill v. Pennsylvania R. Co., 87 N. J. Law, 388, 94 Atl. 313; Grybowski V. Erie R. Co., 88 N. J. Law, 1, 95 Atl. 764. s Lynch v. Pennsylvania R. R. Co., 88 N. J. Law, 408, 96 Atl. 395. * Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. R. A. 1916A, 436. s Lindstrom v. Mutual S. S. Co. (Minn.) 156 N. W. 669. Registered vessels (tugs and scows) engaged in commerce on the Great Lakes, hailing from Du- luth, doing both intrastate and interstate work under the United States nav- HON.COMP.^-4 § 10 workmen's compensation 50 not applying to employers and their employes engaged exclusively in interstate commerce, applies to those engaged in both interstate and intrastate commerce to the extent that their mutual connec- tion with intrastate work is clearly separable and distinguishable from interstate and foreign commerce, but only on the election of the employer and emplmre to be governed by its provisions.* The position of those courts holding that the entire field of re- covery for injuries received by employes engaged in interstate com- igation laws, registered at the United States customs office, and operating partly in Canadian waters, whose employes live in Minnesota and other states, are within the provisions of the Minnesota Compensation Act so far as regards injuries received in the state of Minnesota, since there is no federal Compensation Act applying to workman on vessels. Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 15. Employ&s on a pleasure boat used exclusively for private purposes, and licensed on the Mississippi river between St. Paul and New Orleans, are within the provisions of the Minnesota Workmen's Compensation Act for all injuries which occur while the boat is on a jwrtion of the river within the boundaries of the state of Minnesota. Id. The employes of a carrier engaged In interstate commerce are excluded from the provisions of the Act, although the work of the particular workman injured may have been entirely within the state. (Gen. Laws 1913, c. 467, § 8; Gen. St. 1913, § 8202) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 19. Any and all employes of a railroad engaged in interstate commerce are excluded from the provisions of the Act, and the employes la a local shop are not an exception to this rule. (Gen. Laws 1913, c. 467, § 8 ; Gen. St. 1913, § 8202). Id. The criterion to follow, in construing this law, especially section 8, is: Is the employer engaged in interstate or foreign commerce? This ex- ception would apply to both the employer and employ©, no matter what may be the character of the work done by the employs. Id. p. 20. The Minnesota Workmen's Compensation Act does not apply to a man who works for a con- tractor doing grading work on an interstate railroad already in use, the work consisting of surfacing the old line, since the man would be engaged in inter- state commerce. Id. 6 Connole v. Norfolk & W. By. Co. (D. C.) 216 Fed. 823. 103 Ohio L. p. 90, § 51, with certain changes, is the same as section 6604 — ^18 of the Washing- ton statute (3 Eem. & Bal. Code, 1913). One change is the substitute of the words "and then only when" for the words "except that any such." The words in the Washington Act enlarge the class of persons to whom the act may apply, whereas the Ohio Act restricts such class. The one extends the application of the statute, and the other limits it Id. 51 ACTS IN GENBEAIi § 10 merce is covered by the federal Employers' Liability Actj and' that therefore there is no room for the application of a state Cpmpensa- tion Act to such injuries, is well stated in a decision of the Illindis Supreme Court holding the Illinois Act inapplicable in such cases.^ The same position has been taken by the Supreme Court of Cal- ifornia,' and in numerous instances the Industrial Accident Com-. 7 Staley v. IlUnois Central E. Co., 268 111. 356, 109 N. E. 342, L. E. A. 1916A, 450. 8 The OorDmission has no jurisdiction to award compensation where the workman at time of injury was engaged in work directly relating to inter- state commerce, since, in such case, the federal Employers' Liability Act would control. Smith v. Indus. Ace. Com. of Cal., 2 Cal. I. A. C. Dec. 439, 26 Cal. App. 560, 147 Pac. 601. WJiere a railroad watchman was accidentally injured from the discharge of his revolver while he was driving trespassers from the company's property after he had 'boarded and driven them from an inter- state train, he was engaged in an act relating to interstate commerce, and not within the California Act. Id. Where a truck builder and truck repairer employed in a railroad roundhouse was killed while repairing a switch engine used in both interstate and intrastate commerce, the California Commission had no jurisdiction, though the engine had been temporarily withdrawn from service at the time of the injury, but was returned three days after the acci- dent. Southern Pacific Co. v. Pillsbury, 2 Cal. I. A. C. Dec. 443, 170 Cal. 782, 151 Pac. 277. The California Commission has no jurisdiction of an applica- tion for compensation for injuries sustained by an employ^ of a railroad engaged in both interstate and intrastate commerce, where at the time of the injury he was engaged in interstate business ; the federal Employers' Lia- bility Act controlling such case. Id. I» Smith v. Indus. Ace. Com., supra, the court quoted from opinions by Marshall, 0. J., and Lurton, J., as follows: "If any one proposition could com- mand the universal assent of mankind, we might expect it would be this: That the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all ; its powers are delegated by all; it rep- resents all, and acts for all. Though any one state may be willing to control its operations, no state is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason. The people have, in ex- press terms, decjded it, by saying, 'This Constitution, and the laws of the United States, which shall 'be made in pursuance thereof, shall be the supreme law of the land,' and by requiring that the members of the state Legislature, and the officers of the executive and judicial departments of the States, shall § 10 workmen's compensation 52 mission of that state, after determining that the injury occurred in interstate commerce aflEected by the federal Employers' Liability Act,i has -tef used to award compensation.* Injuries to an employe, take the oath of fidelity to it. The governmeDt of the United States, then, though limited in its powers, is supreme ; and its laws, when made in pur- suance of the Constitution, fbrm the supreme law of the land, 'anything in the Constitution or laws of any state to the contrary notwithstanding' " — ciuoting Chief Justice Marshall, In McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579. "By this act Congress has undertaken to cover the subject of the liability of railroad companies to their employes, injured while engaged in interstate commerce. This exertion of a power which is granted in express terms must supersede all legislation over the same subject by the states. • ' * it • * * follows that in respect of state legislation prescribing the liability of such carriers for injuries to their employes while engaged in interstate com- merce this act is paramount and exclusive" — quoting Lurton, J., in Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176. The court also quoted language to the same effect from Mondou V. New York, New Haven & Hartford R. R. Co., 223 U. S. 1, 32 Sup. Gt. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, and Seaboard Air Line R. Co. v. Horton, 233 U. S. 501, 34 Sup. Ct. 638, 58 L. Ed. 1068, L. R. A. 1915G, 1, Ann. Cas. 1915B, 475. 9 Where a brakeman employed in interstate and intrastate commerce was attacked by tramps and killed while he was working on a through freight train, the California Act did not apply. Lutze v. Atchison, Topeka & Santa Fg Ry. Co., 2 Cal. I. A. C. Dec. 739. Johnson v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 738. California Act held inapplicable since the workman was injured while en- gaged in interstate commerce. — ^Where an employs, working in the repair shop of a railroad engaged in interstate and intrastate business, is injured while repairing a locomotive. Beamer v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 737. Where a car inspector, in the employment of a railroad engaged in both interstate and intrastate commerce, was injured while coupling the air hose of a freight train carrying some cars destined for points outside the state. Bridge v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 736. Where a mechanic, in the employment of a railroad engaged in interstate and intrastate commerce, is injured by a fall from a locomotive upon which he is working in a round- house of the railroad. Donaldson v. Atchison, Topeka & Santa F6 Ry. Co., 2 Cal. I. A. C. Dec. 699. Where a section hand is injured while working upon the tracks of a railroad engaged in interstate and intrastate business. Harris V. W^estem Pacific Ry. Co., 2 Cal. I. A. C. Dec. 697. Where it appeared that the injured man was a watchman in the employ of an interstate railway, and at the time of accident was weighing freight cars of an interstate character. 5S ACTS IN GENERAL § 10 the scope of whose employment concerns both intrastate and in- terstate commerce, are compensable under this Act, .however, Keast V. Santa F6. Ry. Co., 2 Cal. I. A. O. Dec. 694. Where it appeared that the applicant was engaged at the time of the accident in the repair of a bridge, which was a portion of the main line of an Interstate railway. Sandberg v. San Pedro, Los Angeles & Salt Lake R. R. Co., 2 Cal. I. A. C. Dec. 694. Where an employe of the Santa F6 Railway was injured while engaged in the repair of a bridge used by the Santa P6 Railway in its interstate business. Batten- field V. Atchison, Topeka & Santa Fg Ry. Co., 2 Cal. I. A. C. Dec. 688. Where an employe of the Southern Pacific Company. 2 Cal. I. A. C. Dec. 969. Where an employs of the Santa F6 Railway, while engaged in loading timbers in- tended for the repair of stockyards used by said railway to confine live stock shipped to and from points both interstate and intrastate, was injured by a falling timber. Hummer v. Hennings, 2 Cal. I. A. C. Dec. 859. Where an employe of the Southern Pacific Company was injured while engaged in repair work on a bridge, part of the main line of the railway used in the interstate business of the defendant. McCarthy v. Southern Pacific Co., 2 Cal. I. A. C- Dec. 780. Where an employe of the Southern Pacific Company was injured while engaged in switching cars of a train, some of the cars of which were used in interstate business of the defendant. McCarthy v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 752. Where it appeared that at the time of the acci- dent the employe was a section hand, and was being carried on a hand car from one point to another on the line used for interstate commerce of the rail- way. Moreno v. San Pedro, Los Angeles & Salt Lake R. R. Co., 2 Cal. I. A. C. Dec. 754. Wlhere it appeared that the injured employe was at the time of the accident doing work in the construction of a bridge on a branch of a railway used for interstate traffic. Walde v. San Pedro, Los Angeles & Salt Lake Ry. Co., 2 Cal. I. A. C. Dec. 751. Where an employe of the Southern Pacific Com- pany was injured while engaged in the repair of an engine used by the South- ern Padflc in its interstate business. Bishop v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 749. Where a workman was engaged in rearranging, transferring, and changing tracks used indiscriminately for interstate and intrastate com- merce. Cuebas v. Atchison, T. & S. F. Ry. Co., 3 Cal. I. A. C. Dec. 17. Where a brakeman on a wrecking train, sent to reraU an engine which was obstructing the tracks of an interstate railway, and at the time of derailment was hauling cars of interstate freight. James v. San Pedro, L. A. & S. L. R. R. Co., 3 Cal. I. A. C. Dec. 13. Where an employe of the Santa F6 Railway was injured while engaged as a brakeman In switching a railway car, such car being a foreign car loaded with freight destined to points outside this state. Grigsby V. Atchison, Topeka & Santa F6 Ry. Co., 2 Cal. I. A. C. Dec. 748. Where a section hand, employed by a railroad doing interstate business, is injured while working upon the repairing of railroad track. Karras v. Southern Pacific Co., 2 Cal. I. A. O. Dec. 748. Where an employe of the Southern Pacific § 10 workmen's compensation 54 where at the time of injury he was not engaged in interstate com- merce.^' ■ Where one in the employ of a railroad lying wholly with- in the state is injured, the burden of proving that he was injured while engaged in furthering interstate commerce rests on the rail- road company. Such burden is not sustained by proof, which is not clear, that certain small packages of freight, which alone are claimed to give an interstate character to the work, originated outside the state and were not broken or reshipped locally.^^ Railroad construction for an interstate carrier is under the state's jurisdiction, whether the work be performed by a railroad company's own employes or by contract. Such construction work Company is injured while loading steel rails upon one of its flat cars at its terminal, the rails to he used in repairing the main line of its track. Oampos V. Southern Pacific Co., 2 Cal. I. A. O. Dec. 747. WJiere an employs of the Southern Pacific Company is injured in repairing and maintaining a trestle and roadbed. Lambert v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 743. Where an employs of a railroad engaged in interstate and intrastate business is in- jured while repairing a flat car. Garcia v. Atchison, Topeka & Santa F6 Ky. Co., 2 Cal. I. A. C. Dec. 741. 10 Where an employe of a railway was injured while in the construction of a dining room of a railway engaged in intrastate and interstate commerce, such dining room being constructed within the state of California, the injury did not occur while he was engaged in interstate commerce, and the Compensa- tion Act of California applied. Harrington v. San Diego & Arizona Ry. Co., 2 Cal. I. A. C. Dec. 797. Where a baggageman, employed at a mailing station used in both interstate and intrastate commerce, was injured by accident while on his way out of the 'baggage room, which he had entered with the purpose either of preparing a local shipment or of ascertaining whether such a ship- ment was to be prepared, he was not engaged in interstate commerce at the time of the accident, and his injury was compensable. Luke v. A., T. & S. F. R. R. Co., 2 Cal. I. A. C. Dec. 1011. Where a freight handler, employed at a station within the state to load cars with freight destined to points within the state, was injured while loading a car with freight which had originated with- in the state, but after his injury the car was loaded with more freight, in- cluding four pieces which had originated at points outside the state, and the accident and injury were not due to any negligence on the part of the em- ployer, the injury was compensable. Wilmunder v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 1030. 11 Conners v. Sugar Pine Ry. Co., 2 Cal. I. A. C. Dec. 879. 55 ACTS IN GENE3RAL § 11 does not become interstate commerce until turned over to the ac- tual use of interstate trade.^^ Steamboats on Lake Washington are engaged in traffic on interstate waters, and therefore outside the jurisdiction conferred by the Washington Act upon the Indus- trial Accident Commission of that state.^' § 11. Administration The Washington Act requires the state to pay the entire cost of administration of the state insurance fund, leaving the whole amount paid into such fund by the employers to be devoted to the payment of awards for injuries.^* In the opinion of the commis- sion, the state can well afford to bear the cost of administering the insurance fund, "as its courts will be relieved of a large amount of work, and the burden now placed upon taxpayers by the trial 12 Wk. Comp. Act Wash. § 18; Rulings Wlasli. Indus. Ins. Com. 1915, p. 23. That the workman at the time of his injury was employed as a common laborer on the construction of a railroad tunnel, which, when completed, would Tse used to shorten the interstate line of the railroad, did not make him en- gaged in interstate commerce. Raymond v. Chicago, M. & St. P. Ry. Co. (C. C. A.) 233 Fed. 239. In Bravis v. Chicago, M. & St. P. Ry. Co., 217 Fed. 234, 133 C. C. A. 228, the court said:- "The mere fact that it was the purpose and Intention so to use it at some future time did not make it an instrumentality of interstate commerce. That purpose and Intention might be changed, and it might never be used in interstate commerce, or at all. The argument that the building of the cut-off was the mere correction or prevention of a defect «r insufficiency of the defendant's instrumentality for conducting intei'state •commerce is too remote and inconsequential to convince." In Pedersen v. Delaware, L. & W. R. R., 229 U. S. 146, 83 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, the court said: "The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged? * * * Of course, we are not here concerned with the con- struction of tracks, bridges, engines, or cars which have not as yet become Instrumentalities in such commerce, but only with the work of maintaining them in proper condition after they have become such Instrumentalities and during their use as such." 13 (Wk. Comp. Act Wash. § 4, class 20) Rulings Wash. Indus. Ins. Com. 1915, p. 12. 1* (Wk. Comp. Act Wash. § 29) Rulings Wash. Indus. Ins. Cora. 1915, p. 27. § 11 workmen's compensation 56 of negligence cases will be minimized. The tendency of this act should be to produce good will between employer and employe, and to lessen the cases of hardship among dependents of injured em- ployes. In taking into consideration the state's many vital inter- ests in the welfare of the workman and his family, the general tax- payer may well afford t© bear the expense of administration." ^^ The physician's report relative to the injury, as part of the work- man's claim, is a duty to the state; no payment is allowed there- for, though charge for professional services rendered to a work- man is his personal debt, unless the employer contracted to pay the same.^* Reports of the accident made to the insurance depart- ment must state the time, cause, and nature of the accident and in- juries, and the probable duration of the injury resulting there- from,^' and.also whether the accident arose out of or in the course of the injured person's employment.^* All necessary blanks are furnished free of cost.^° The state insurance fund of Nevada, not being part of the "state treasury," though paid to the state treasurer, is not subject to the constitutional restrictions on the payment of funds from the state treasury.^" The Minnesota Commissioner of Labor and any employe con- nected with that department are prohibited from disclosing wheth- iB (Wk. Comp. Act "Wash. § 29) Rulings Wash. Indus. Ins. Com. 1915, p. 27. 16 (Wk. Comp. Act Wash. § 12) Rulings Wash. Indus. Ins. Com. 1915, p. 20. 17 (Wik. Comp. Act Wash. § 14) Rulings Wash. Indus. Ins. Com. 1915, p. 21. 18 (Wk. Comp. Act Wash. § 14) Rulings Wash. Indus. Ins. Com. 1915, p. 21. They must answer all questions fully that appear on employer's report of acci- dent, form 21, and workman's report of accident, form 22, so far as they apply to the particular accident being reported and any other information pertinent to the injury. Questions which are seemingly of no importance are asked for statistical purposes and should be answered whenever possible. (Wk. Comp. Act Wash. § 14) Id. p. 21. 19 (Wk. Comp. Act Wash. § 12) Riulings Wash. Indus. Ins. Com. 1915, p. 21. 20 State V. McMiUan, 36 Nev, 383, 136 Pae. 108. 57 ACTS IN GENERAL § H er or not a certain accident has been reported to the labor depart- ment as required by the Act."*^ Where the Wisconsin Industrial Commission, successor to the Industrial Accident Board, had many duties to perform other than those imposed on them by the Workmen's Compensation Act, a taxpayer could not enjoin payment of their salaries on the ground that the Act was unconstitutional, even if such ground were well taken.^* 21 (Gen. Laws, 1913, c. 416, § 4; Gen. St. 1913, § 3895) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 16. 22 In re Filer & S. Co., 146 Wis. 629, 132 N. W. 584. :§ 12 workmen's compensation 58 ARTICLE III VALIDITY Section 12. Police power. 13. Validity as against particular objections. 14. Objections Kised under constitutional provisions. 15. New, York — Ives Case. 16. Kentucky. 17. Classification. 18. Abolition of defenses. 19. Right to question validity. § 12. Police power The authority for this legislation is that power of the state termed the police power; ^' a power by which the Legislature supervises matters relating to the common weal and enforces the obseifvance by each member of society of duties owed by him to others and to the community at large. All rights are possessed and enjoyed sub- ject to it. Under it the state may prescribe regulations for the pro- motion of health, peace, morals, education, and good order, and so 23 This legislation is a legitimate exercise of the police power. Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037; Memphis Cotton Oil Co. v. Tolbert (Tex. Civ. App.) 171 S. W. 309 ; Sayles v. Foley (R. I.) 96 Atl. 340. The Workmen's Compensation Act, under which it was sought to collect premiums, is a police regulation, and a valid exercise of the police power of the state. State V. City of Seattle, 73 Wash. 396, 132 Pac. 45. The Industrial Insurance Act (Laws 1911, c. 74) is within the state's police power. State v. Mountain Timber Co., 75 Wash. 581, 135 P may contract with each other to arbitrate summarily, effectively, and cheaply, and the award shall be not more than a stated sum, and you shall not con- tract for less payment — can, validly compel all this without enact- ing a Workmen's Compensation Act — then how can the saying that these things you shall lose and these things you shall do un- less you accept the Act be undue compulsion? One who is at lib- erty to do or not to do a thing can always say: 'I will not do what I can refuse to do, with or without reason, unless you do what I demand.' There can be no coercion in the sight of the law effectuated by doing or not doing what one has the absolute right to do or not to do, no matter what terms are attached to doing or refraining. One who has absolute right to do or not to do a thing can attach to his doing or not doing any condition; no matter how unreasonable or arbitrary. The remedy is refusal to accede to the unreasonable demand." ^° An employer's election to come under the Act is not coerced because of a provision that such election will be presumed if he fails to give certain notices.^' Since the right to trial by jury may be waived, an objection based on deprivation of such right cannot successfully be made by one who has voluntarily accepted the provisions of a Workmen's Com- pensation or Insurance Act.'"' The same is true of other constitu- 18 Id. i» Id. 20 In EvanhoflE v. State Industrial Accident Commission, 78 Or. 503, 154 Pac. 106, the court (opinion by McBride, J-.) says : "PlaintifE's argument pro- ceeds upon the theory that the Act establishing the Industrial Accident Com- mission attempts to establish a court for the trial of causes without a jury, which it does not, and to compel workmen and employers to adjust their grievances without their consent, which is contrary to the whole spirit and intent of the act. As before noted, the Act leaves the employer free to ac- cept the provisions of the Act or to reject them as he may see fit. If he gives notice that he rejects them, he is left to protect himself from actions for personal Injury by litigation in the courts. It Is true that the Act has swept away certain defenses heretofore available; but, as this could have 95 ELECTIVE AND COMPULSORY COMPENSATION § 21 tional objections to an Act,"'- such as that it takes away the right to contract/^ improperly delegates judicial power to arbitrators been done in any case, he has no legal reason to complain. If he sees fit not to avail himself of the provisions of the Act, he may still protect himself by giving notice that he rejects its provisions. It is not compulsory, and the arguments that apply with greater or less force to compulsory Acts are here inapplicable. The state says to the employer and employ^ alike: 'We pre- sent to you a plan of accident insurance which you may accept or reject at your oven pleasure. If you accept, you must be bound by its terms and limi- tations; if you reject it, the courts are open to you with every constitutional remedy intact. Take your choice betvireen our plan and such remedies as the statute gives you.' Discussing certain .features of the Iowa Compensa- tion Act, limiting the amount to be allowed for certain injuries, Mr. Justice McPherson, in the case of Hawkins v. Bleakley (D. C.) 220 Fed. 378, 381, says : 'The first twenty-two sections of this lengthy statute fix the liability of the employer and the rights of the employ^. A scale of compensation is fixed and made certain. Each party can come within the statute or remain outside of the statute. E^ch party has his election. Many of the states for many years have had statutes fixing the liability with precision in cases of death, and in no instance has any court held such statute invalid. And why a statute cannot fix with certainty the damages to be allowed in case of the loss of an arm, leg, eye, or other injury is not perceived.' " In Hunter v. Col- fax Consol. Coal Co. (Iowa) 154 N. W. 1037, the court says: "Passing ab- stractions and general discussion, and coming to the question -vtthether the Act is invalid because it denies the right to trial by jury in proceedings to administer the Act between those who have accepted it, we find It universally held that in such case it is not a valid objection that the jury trial is not provided for. Sexton v. Telegraph Co., 84 N. J. Law, 85, 86 Atl. 452; State V. Clausen (Wash.), supra; Jensen's Case, 215 N. Y. 514, 109 N. E. 603, 604, L. K. A. 1916A, 403, Ann. Cas. 1916B, 276 ; Deibeikis' Case (111.), supra ; Lum- ber Co. V. Commission, 154 Wis. 114, 142 N. W. 187, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997; In re State Journal Co., 161 Ky. 562, 170 S. W. 437, 1166, L. E. A. 1916A, 389, Ann. Cas. 1916B, 1273. The right to jury trial can be waived. Our own statute (section 3650) provides in terms that the right ex- ists only if it be not waived. It may be conceded the cases hold that the waiver of trial by jury and by due process of law must be by voluntary as- sent, but it does not follow that constitutional guaranties must be 'ex- pressly' waived by the party thereby affected. Proceeding upon this prem- ise, the authorities hold that, whenever two agree to have their difficulties adjusted by a method which excludes trial by jury, they thereby waive the right to such trial ; that the right to such trial is waived by electing to come 21 See note 21 on following page. 22 Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037. § 21 workmen's compensation 96 or other boards,^' and takes away the right to have liability deter- mined in the courts,^* creates a conclusive presumption,^^ limits within the act ; that such acts take away the cause of action on the one iiand and the ground of defense on the other, and merge both in a statutory indemnity, fixed and certain; that for these benefits the parties are required to give up 'the doubtful privilege of having a jury assess his damages, a con- siderable part of which, if Recovered at all, after long delay, must go to pay expenses and lawyer fees.' In the case of The Timber Co., 75 Wash. 581, 135 Pac. 645, 1166, it is held that the right to regulate the management of industries is so within the police power as that Workmen's Compensation Acts are valid, though thereby the injured employ^ is deprived of a jury trial." 2iMathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N. W. 71. In JefErey v. Blagg, 235 U. S. 571, 35 Sup. Ct. 169, 59 L. Ed. 364, dealing with the validity of the Ohio Compensation Act, which, among other things, ' was attacked for arbitrarily eliminating defenses like contributory negligence, assumed risk, and the negligence of fellow servants, from larger shops, while leaving them to smaller ones, the court said : "No employer is obliged to go into this plan. He may stay out of it altogether if he will." The Supreme Court of Ohi6 has upheld the Ohio Act on the ground that it is purely optional and voluntary, both as to employes and employer, in so lar as it deals with the requirement that if the parties concerned elect to accept the Act they shall make certain payments to effectuate insurance 2 3 Mellen v. Industrial Commissioners, 154 Wis. 114, 142 N. W. 189, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997 ; (Workmen's Compensation Act, §§ 25-35) Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037. It cannot be siiid that by this act judicial power is delegated to boards of ^.rbitrators, contrary to the Constitution. Parties to a contract may make valid and binding agreements to submit questions in dispute or any dis- agreement that may arise to a board of arbitrators composed of persons or tribunals other than the regularly orgaHized courts, and such agreements will be enforced. Deibeikls v. Link-Belt Co., 261 111. 454, 104 N. E. 211, Ann. Cas. 1915A, 241. 24 Employers who become subscribers under the Act voluntarily waive the right to have their liabilities determined in the courts. As" to employers who remain without the Act, negligence for which they are responsible must be established to render them liable. This is not the creation of an absolute liability against them, since they may defend the suit by disproving any negligence. The substantial defense in such action is therefore not taken away. The Act accordingly deprives neither class of employers of any fun- ■damental right. Middleton v. Texas Power & Light Co. (Tex.) 185 S. W. 556. 2 See note 25 on following page. 97 ELECTIVE AND COMPULSORY COMPENSATION § 21 the amount of recovery,''" and violates the constitutional provisions guaranteeing due process of law " and equal protection and pro- against the results of accidents in the employment. Substantially this is af- firmed in Re Opinion of Justices, 209 Mass. 607, 96 N. E. 309, as to a statute substantially like the Iowa Act held constltuilional in Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037. It is said in the Massachusetts case that, so long as it is elective, an Act requiring an employer to become a sub- scriber, and the employ^ to waive right to sue at common law, and accept compensation provided in the Act, violates no constitutional requirement. "It is a general principle that a person may, at any time, waive his right to bring an action upon a money demand unless there is a constitutional or statutory provision prohibiting it, or it is clearly against public policy to permit him to do so. * * * This view of the Act disposes of many of the constitutional questions raised by counsel. Xhe state proposes to employers and employes an accident and life insurance scheme, and offers it to them in lieu of litigation. It does not compel them to become participants in it or to contribute to it, but if they voluntarily choose to do so, they waive any other remedy, because the statute provides as a part of the scheme that they must do so ; and, as before observed, by permission of the statute a party may waive or limit the quantum of his compensation for any possible pro- spective injury. The noncompulsory feature of the act may be said to elimi- nate most of the objections urged upon constitutional grounds.'.' EvanhofE V. State Industrial Accident Commission, 78 Or. 503, 154 Pac. 106. The Act of 1913 (Laws 1913, p. 335) is no more compulsory than the Act of 1911 (Laws 1911, p. 314), which has been declared constitutional, because elective. Victor Chemical Works v. Industrial Board of Illinois, 274 111. 11, 113 N. E. 173. In the Kentucky Act of 1916 (Laws 1916, c. 33) the objectionable compul- sory features of the Act of 1914 (Laws 1914, c. 73), in so far as the employ^ 2 5 The conclusive presumption provided for in part '3, § 4, does not render it unconstitutional, since the employ^ is left free in the first instance to prevent the presumption by his own act if he so desires. Such legal pre- sumptions are not unconstitutional or uncommon. A familiar illustration is the conclusive presumption that a party entitled to a jury trial in a civil action has waived his right, unless he has taken some affirmative action and made demand before arrival of a certain point in the progress of the case. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. 26 The Act of 1916 is not violative of Constitution, § 54, forbidding limita- tion on the amount of recovery for injuries ; this objection being obviated by the elective nature of the Act. Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648. 27 See note 27 on following page. HON.COMP. — 7 § 21 workmen's compensation 98 hibiting class legislation.'' ° That an Act requires the employe to elect at the time of his employment and in advance of all injuries, is concerned, were eliminated, and under the Act of 1916 the employer can- not, without the employe's consent, bring him under the Act, nor does it op- erate, as t& the employ^, until he has voluntarily signified in writing his will- ingness to accept its provisians. Greene v. Caldwell, 170 Ky. 571, 186 S. W. 649. 27 In re Madden, 222 Mass. 487, 111 N. E. 379; Mellen Lumber Co. v. In- dustrial Com., 154 Wis. 114, 142 N. W. 187, L. B. A. 1916A, 374, Ann. Cas. 1915B, 997; Mathison v. Minneapolis St. Ry. Co., 126 Minn. 286, 148 N. W. 71 ; Western Indemnity Co. v. Phillsbury, 170 Cal. 686, 151 Pac. 398 ; State V. Creamer, 85 Ohio St. 349, 97 N. E. 602, 89 L. R. A. (N. S.) 694 ; Cunning- ham V. N. W. Imp. Co., 44 Mont. 180, 119 Pac. 554 ; Borgnis T. Falk Co., 147 Wis. 327, 133 N. W. 209, 37 L. R. A. (N. S.) 489 ; Hawkins v. Bleakley (D. C.) 220 Fed. 378; Mackin v. Detroit-Timkin A, Co., 187 Mich. 8, 153 N. W. 49. Wood V. City of Detroit (Mich.) 155 N. W. 592, L. R. A. 1916C, 388 ; Jen- sen V. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L. B. A. 1916A, 403, Ann. Cas. 1916B, 276. In the Jensen Case, the court cited as of controlling effect Noble State Bank v. Haskell, 219 U. S. 104, 31 Sup. a. 186, 55 I/. Ed. 112, 32 L. B. A. (N. g.) 1062, Ann. Cas. 1912A, 487, holding valid a state law whereby solvent banks are required to pay money into a fund for the direct benefit of others, the banks benefiting only indirectly from the supposed benefit to commerce and thd greater stability of banking, and distinguished Ives v. South Buf- falo Ry. Co., 201 N. X. 271, 294, 94 N. E. 431, 34 L. R. A. (N. S.) 162, Ann. Cas. 1912B, 156, which it held to be not controlling, because the state and not the federal Constitution was involved, and also because of the difEerences between the Act then before the court and the present Act. The court said : "The mutual benefits under law are direct. Granted that employers are com- pelled to insure, and that there is in that sense a taking. They insure themselves and their employes from loss, not others. The payment of the required premiums exempts them from further liability. The theoretical taking doubtless disappears in practical experience. In fact^ every indus- trial concern, except the very large ones who insure themselves, have for some time been forced by conditions, not by the law, to carry accident in- demnity insurance. A relatively small part of the sums thus paid actually reach injured workmen or their dependents. With the economic saving of the present scheme, insurance in the long run should certainly be as cheap as under the old wasteful system, and the families of all injured workmen, not a part only, will receive some compensation for the loss of earning power of the wage earner. Practical experience, as well as theory, should be con- 2 8 Young V. Duncan, 218 Mass. 346, 106 N. E. 1. 99 ELECTIVE AND COMPULSORY COMPENSATION § 22 whether he will come under its terms, does not render it uncon- stitutional.^' Nor does the possibility that the employe in a given instance may not know all his rights relative to electing, affect the constitutional aspects of the law.^" § 22. Contractual nature of elective compensation Where an election is made under an Act authorizing same, the Act usually becomes a part of the employment contract,'^ and binds employer and employe to settle, as provided by the Act, any dis- sidered in deciding whether a given plan constitutes a taking of property without due process of law in violation of the federal Constitution. A com- pulsory scheme of Insurance to secure Injured workmen in hazardous em- ployments and their dependents from becoming objects of charity certainly promotes the general welfare as, directly as does an insurance of bank de- positors from loss under the Oklahoma statute, which has been held valid by the Supreme Court of the United States." But in Herkey v. Agar Mfg. Co., 90 Misc. Kep. 457, 153 N. Y. Supp. 369, the court says that a Compensa- tion Act which was compulsory as to the employer would be violative of the due process of law provision of the federal Constitution. 2»The requirement that the election be made at the time of the contract for hire is reasonable. Difficulties of a serious nature might be presented if the right of election were allowed to be exercised after the happening of the accident. Id. sold. 31 Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245;, Rounsaville v. Central B. Co., 87 N. J. Law, 371, 94 Atl. 392; Deibeikis v. Link-Belt Co., 261 111. 454, 104 N. E. 211, Ann. Cas. 1915A, 241 ; McRoberts v. National Zinc Co., 93 Kan. 364, 144 Pac. 247; Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193. Liability under the Workmen's Compensation Act does not arise out of negligence, but out of contract created by acceptance of the Act. (Work- men's Compensation Act, § 2) Lynch v. Pennsylvania E. R. Co., 88 N. J. Law, 408, 96 Atl. 395 ; Anderson v. North Alaska Salmon Co., 2 Cal. I. A. C. Dec. 241. The relation of employer and employ^, under said act, being vol- untary and not compulsory, is contractual ; the statute becoming an integral part of the contract, and limiting the rights and liabilities of employer and employ^, binding upon the parties. Gooding v. Ott (W. Va.) 87 S. E. 863. Persons operating under the terms of the Compensation Act, by election or operation of law, make the terms and provisions of the Act a part of the con- tracts made with labor ; hence the rule excluding public corporations exercis- § 22 workmen's compensation 100 pute arising between them as to compensation for injury.** Mu- tuality being essential to any contract, an employe cannot, by electing to come under the Act, bring the employer under it." Likewise, where the employer alone has exercised a right of election g-iven to both, the employe is not bound by such contractual rela- tion, and accordingly is.»not limited in his recovery to the compen- sation provided by the Act. He cannot be said to be bound by a contract which has never been made. Where both have elected to ■come within the Act, then, in seeking redress under it, the action must be brought in accordance with its provisions ; but, when the employer has elected not to be bound by the Act, then the parties ^re remitted to their action at law and are governed by the prin- ciples of law applicable to such actions, except alone as to the matter of defenses. The employer cannot insist that the employe be bound by all the provisions of a law which the employer has ing sovereignty from liability on account of torts does not apply. Radigen v. Sanitary Dist. of CMcago, Bulletin No. 1, 111., p. 138. The Compensation Act of Illinois is a contract between the employer and all Ms employes and the state, represented by the Industrial Board, in which they agree to accept all the terms and provisions of the Act, where the employer and the employes .elect to be bound by the Act. Fitt v. Central Illinois Public Service Co., Bulletin No. 1, 111., p. 129. Acceptance of the Act, whether made expressly or impliedly, as permitted by the Act, makes its provisions part of the employment of contract. The significance of the contract relation is foundational in the consideration of cases under any Compensation Act contractual in character. (Laws 1913, c. 138) Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. K. A. 1916A, 436. In Kenny v. Union Ry. Co., X66 App. Div. 497, 152 N. Y. Supp. 117, it was said, however, that the Compensation Act is not to be read Into the contract of employment as forming part of it and as dependent for its enf orcemeht upon the validity of the contract of employment. 82 Deibeikis v. Link-Belt Co., 261 111. 454, 104 N. E. 211, Ann. Cas. 1915A, 241. 33 (Laws 1911, p. 315) Diets v. Big Muddy Coal & I. Co. (1914) 263 111. 480, 105 N. E. 289, 5 N. 0. C. A. 419 ; Price v. Clover Leaf Coal Min. Co. (1914) 188 111. App. 27. Salus v. Great Northern R. Co. (1914) 157 Ws. 546, 147 N. W. 1070. 101 ELECTIVE AND COMPULSORY COMP: elected not to be bound by.** A mutual agreeSs^tMjV^^jHployer and employe not to be bound by the compensatory provisions of an Act becomes effective immediately.* . ss § 23. Presumption, notice and effect of election For an election to be effective it must be made as prescribed by the statute; *° but a statement of an election need not be in any technical form, or be evidenced with the same formality as a deed or other instrument transferring property.*' Under some statutes an election may be presumed from failure to give notice to the contrary,** or from silence.*" Under Acts requiring that the notice 3i Crooks V. Tazewell Coal Co., 263 111. 343, 105 N. E. 132, Ann. Cas. 1915C, 304. 35 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 16. 36 The approval of the employer's notice of acceptance of the Act by the" Accident Board is essential to the validity of his election. (Pub. Acts, Extra. Sess., 1912, No. 10) Bernard v. Michigan United Traction Co. (Mich.) 154. N. W. 566. 31 (Workmen's Compensation Act Kan. 1911, § 44) Piatt v. Sv^ift & Co. (Mo. App.) 176 S. W. 434. To have the protection afforded under chapter 10, Acts of the Legislature of 1913 (Code 1913, c. 15P, §§ 1-55 [sees. 657-711^), known as the Workmen's Compensation Act, an employer must not only have paid the premiums pro- vided thereby, but the injured employe must have had actual notice that his employer had elected to pay into the "Workmen's Compensation Fund the pre- miums provided by said Act; but typewritten or printed notices thereof, when duly posted in conspicuous places about his place or places of business, as required 'by said Act, will, as provided thereby, constitute sufBcient notice to all his employes that he has made such election. Daniels v. Charles Boldt Co. (W. Va.) 88 S. E. 613. 38 Johnson v. Nelson, 128 Minn. 158, 150 N. W. 620 ; Dietz v. Big Muddy Coal & Iron Co., 263 111. 480, 105 N. E. 289; Op. Sp. Counsel to Iowa Indus. Com, (1915) pp. 3, 5. Both employer and employe are under the Act, where neither has elected' to the contrary. Shade v. Ash Grove Lime & Portland Cement Co. (1914) 92; Kan. 146, 139 Pac. 1193. It is an essential feature of the Act that every employer and employe comm- as EouBsavUle v. Central E. Co., 87 N. J. Law, 371, 94 Atl. 392. § 23 workmen's compensation 102 be given at the time of the contract of hire,*" the employe waives his right of action at common law where he fails to give the written notice at the time of his contract of hire, though he has no knowl- edge or notice that the employer is a subscriber.*^ Under the Ari- zona Act, the employe need not elect in advance of his injury.*^ The requirement that notice be given to prevent a presumption of an election is not ordinarily deemed objectionable,*^ though the ing within its terms is bound by it, unless he makes an election, not to accept it. No provision is anywhere in the Act for an acceptance. There is always an acceptance, unless there be an election not to accept. (Laws 1913, c. 46T ; Gen. St. 1913, §§ 8195-8230) Harris v. Hobart Iron Co., 127 Minn. 899, 149 N. W. 662. A workman injured before giving notice was under the Act, though he gave notice within thirty days after the Act went into effect. Id. That the employer was designated at times by witnesses and attorneys as Barnard & Cope, Barnard & Cope Company, and Barnard-Cope Company, instead of its true name of Barnard-Cope Manufacturing Company, was too technical and unmeritorious a defense to remove the presumption that the employer had accepted and was bound by the Act. (G. S. 1913, § 8205) Mahowald v. Thompson-Starrett Co. (Minn.) 158 N. W. 913. The Act of 1911 i^ effective as to all employers and employes within the prescribed employments until the required notice to the contrary is given. The elective feature is to be exercised to avoid being governed by the Act, and not to cause the Act to be applied in any given case. Dietz v. Big Muddy Coal & I. Co., 263 111. 480, 105 N. E. 289, 5 N. C. C. A. 419. Where an express company comes under the Act by operation of law, it is conclusively presum- ed to have filed notice of its election under paragraph (b), § 1. Zorcic v. Adams Express Co., Bulletin No. 1, 111., p. 55. *o If an employ^ desires to avoid the Act and preserve his common-law rights, he must give notice to that effect, in the absence of fraud, when he en- ters the employment, rather than when he is notified of insurance by the em- ployer, or he is held to have availed himself of the Act. Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. *i (St. 1911, c. 751, pt 1, § 5) Toung v. Duncan, 218 Mass. 346, 106 N. B. 1 ; Mackin v. Detroit Timkin Axle Co., 187 Mich. 8, 153 N. W. 49. *2 Behringer v. Inspiration Consol. Copper Co., 17 Ariz. 232, 149 Pac. 1065, Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 Pac. 765, 5 N. C. C. A. 742. 48 The requirement that the employfi give notice affects no existing property right, and is therefore not objectionable on that ground. It deals with no 103 ELECTIVE AND COMPULSOET COMPENSATION § 23 Supreme Court of Kentucky seems to take a different view, in an opinion wherein it held the original Kentucky Act invalid and said : "Some provision should be made in the Act whereby the em- ploye signifies his acceptance of the Act by some affirmative act. Silence should not be construed into acceptance." ** When the elective compensation provisions are not intended to apply to the employment of minors, the notice must be given by or to the guard- ian of the minor; a notice posted in the works or by means of the pay envelope does not suffice.*" A requirement of the Massachu- setts Act that every subscriber give notice to every person with whom he is about to enter into a contract of hire that he has pro- vided for payment to injured employes by the association, and that he file a copy of the notice with the Industrial Accident Board, is merely directory to the employer, and his failure to comply with same does not prevent the employe from being held to have waived his common-law right of action through failure to give notice at the time of the making of the employment contract.*" Where em- ployer and employe assent, whether expressly or by implication of the statute, to an Act, they assent to the whole scheme of the property right after it has come into being. It affects a situation which ante- dates any property right arising out of tort and simply establishes a status be- tween subscribers under the Act and their employfis in the absence of express action by the latter manifesting a desire to elect a different status. (St. 1911, c. 751, pt. 1, § 5) Young v. Duncan, 218 Mass. 346, 106 N. B. 1. "No complaint can be made that the employe is thereby compelled to elect without sufficient knowledge. Ignorance of law is commonly no excuse for conduct or failure to act. The employe is not rec[uired to act without inquiry as to the fact of insurance by the employer. He has only to ask for information. That is noth- ing more than is required in most of the affairs of life in order that one may act intelligently." Id. 4* State Journal Co. v. Workmen's Compensation Board, 162 Ky. 387, 172 S. W. 674, L. K. A. 1916A, 402, affirming 161 Ky. 562, 170 S. W. 1166, L. R. A. 1916A, 389, Ann. Gas. 1916B, 1273, on rehearing. 40 (P. L. 1911, p. 136, § 2) Troth v. Millville Bottle Works, 86 N. J. Law, 558, 91 Atl. 1031, 98 Atl. 435. *6 (St. 1911, c. 751, pt. 4, § 21, as amended by St. 1912, c. 571, § 16) Younjg v. Duncan, 218 Mass. 346, 106 N. E. 1, I 23 workmen's compensation 104 Act.'*' An acceptance filed by the employer five days before an Act took effect has been held valid, and to give the employer the benefit of the Act from the time it took effect.** Under the Wash- ington Act, when the injured employe has once exercised his op- tion, his decision is final and may not be withdrawn.*' An em- ployer who elects not to come under the compensatory part of the Minnesota Act is governed by the liability part, and cannot relieve himself of his liability by notifying his employes that he will not be liable for any damages or compensation whatever."" Under the Wisconsin Act, which permits railway companies to adopt compensation as to all their employes, not merely as to shop and office employes,'^ a notice filed by a railroad company, stating that the company accepted the provisions of the Act, and that the nature of the employment was office and shop work, was sufficient to include all employes."" Where an employe, whose contract of hiring had been made several months prior to the employer's elec- tion to come under this Act, has given no notice in writing to come under the Act, and thirty days have not elapsed after the employ- er's election and before the accident, the employe is not under the Act and cannot recover."' Nor can there be any recovery in case of a claim filed against an independent contractor as employer, who has not filed his election to come under this Act prior to the time of the accident."* *7 Scott V. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927. *8 (Pub. Laws, 1911-12, c. 831, art. 1, § 5, became operative in October, 1912) Coakley v. Mason Mfg. Co., 37 R. I. 46, 90 Atl. 1073. *8 (Wk. Comp. Act Wash. § 8) Rulings Wash. Indus. Ins. Com. 1915, p. 19. BO Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 17. Bi Minneapolis, St. P. & S. S. M. Ry. Co. v. Industrial Commission, 153 Wis. 552, 141 N. W. 1119, Ann. Cas. 1914:^, 655. B2 (Laws 1911, c. 50; St. 1911, §§ 2394^1 to 2394^31) Id. B3 (Wis. Wk. Comp. Act, §§ 2394—8 [1], [2]). Wambold v. Fox Ice Co., Rep. Wis. Indus. Com. 1914r-15, p. 36; Selsus v. Case Threshing Machine Co., Eep. Wis. Indus. Com. 1914-15, p. 22. B* Zobel V. Godlevskl, Rep. Wis. Indus. Com. 1914-15, p. 12. 105 ELECTIVE AND COMPULSORY COMPENSATION § 23 Where an employer files notice of an election not to come un- der the provisions of the Illinois Act, the employe has no right to elect either way, and his declaration, in an action for damages, need not allege either acceptance or rejection."' In such action, damages are to be assessed the same as in any common-law action for personal injury, except that any contributory negligence of which the workman may have been'^guilty may reduce the amount of the damages."' The elective nature of this Act requires that a reasonable time be given by it in which to exercise the election."' But where the employer had more than a month in which to learn of the Compensation Act and file notice of election, prior to the accident, it could not complain of want of sufficient time in which to make an election."* Where the employer did not elect to come under the Michigan Act until December 23d, the relations existing between the parties at time of the injury on October 7th preceding were not affected by the Act."* There was a like ruling in a case 'under the Wisconsin Act, which allows the workman thirty days in which to elect, where the employer had elected but the workman had not, and the thirty days had not expired, and the employment contract was made before the employer's election."" The act of the treasurer of a corporation in filing a notice accept- ing the provisions of the Rhode Island Act was ratified by the corporation where its directors acquiesced in it and failed to dis- affirm or repudiate it."^ A notice of acceptance posted in the em- 55 Favro v. Superior Coal Co., 188 111. App. 203. ee French v. Cloverleaf Coal Mining Co., 190 111. App. 400. BT Victor Chemical Works v. Industrial Board of Illinois, 274 111. 11, 113 N. E. 173. 68 Id. B8 Shevchenko v. Detroit United Ry. (Mich.) 155 N. W. 423. 60 Green v. Appleton Woolen Mills, 162 Wis. 145, 155 N. W. 958. «i De Pasqnale v. Mason Mfg. Co. (R. I.) 97 Atl. 816. i§ 23 wobkmen's compensation 106 ployer's place of business was sufficient, where it was a copy of the notice filed with the Commissioner of Industrial Statistics/" That a workman received two vouchers for indemnity under the Washington Act did not estop him from denying that he was with- in the terms of the Act, where he did not exact the vouchers or receive any money on them."' Where notice of an election to remain outside the provisions of an Act is required, and an employer has filed such notice, he will remain outside until the notice is withdrawn, without filing a new notice at the beginning of each year."* Likewise when one brings himself within an Act as an extrahazardous employer of labor, ei- ther by direct election or by operation of law, he remains under its provisions and is bound thereby until taken out according to the specific manner and methods provided in the Act.*' In a Connecticut case, where the employer, who did not regu- larly employ any one, and whose only employe at the time of the injury was the claimant, had not given notice of his acceptance of the Act, the claim was dismissed by the commissioner.*' In an- other case, where the employer gave the "written or printed no- tice from the employer or employe to the other * * * served by personal presentation or by registered letter" required by the Connecticut Act, by means of a clause in the contract of employ- ment acknowledging receipt of notice of the employer's nonelec- tion of the Act, signed by the employe at the time of his employ- ment, without any threat of dismissal for failure to sign, but with the understanding that he was required to sign it, it was held the ■employer was not under the Act. Even if such contract was pro- 62 Id. 83 Puget Sound Traction, Light & Power Co. v. Schlelf, 220 Fed. 48, 135 C. 0. A. 616. e^Bateman v. CartervUle & Big Muddy Coal Co., 188 111. App. 357; Syn- Icus V. Big Muddy Coal & Iron Co., 190 111. App. 602. 65 Flash V. Pattridge Metal Equipment Co., Bulletin No. 1, 111., p. 46. 8« Gertel v. H. W. Dorman & Co., 1 Conn. Comp. Dec. 616. 107 ELECTIVE AND COMPULSORY COMPENSATION § 24 -cured by duress or undue influence, it was only voidable, and was -affirmed by the employe's failure to repudiate or demand rescis- sion after discussing the effect of the contract with his coemployes, he understanding that it affected his right to compensation, though Tie did not read it.*'^ It was also held that where the defendant had filed a notice of refusal to accept the Act with the commissioners, and his two sons testified that they saw the notice served on the claimant, though he claimed never to have received notice, the €mployer was not under the Act; *' and that where an employer had filed notice of his refusal to accept the Act with the commissioner, but had not served such notice on the claimant workman, he could be held under the Act.*" Part B of this Act applies to all employers who have not rejected it as provided, regardless of whether they ■employ more than five persons.'" § 24. Pleading, and proof of election A certified copy of a required notice of an election to remain outside the provisions of an Act is competent evidence of if^ A legal presumption that both employer and employe are under the provisions of the Act can be rebutted only by showing that they have filed an election to the contrary.'^ Evidence is admissible, of course, to show that the employer has elected not to be bound.''' «7 O'Eourke v. Cudahy Packing Co., 1 Conn. Oomp. Dec. 8. 68 Smith V. Forscythe, 1 Conn. Comp. Dec. 190. 8 8 Mazura v. Kllngon, 1 Conn. Comp. Dec. 296. 70 Neumann v. Turner, 1 Conn. Comp. Dec. 130; Brewer v. Belcher, 1 Conn. Comp. Dec. 111. Tild. 72 Krisman v. Johnston City & Big Muddy Coal & Mining Co., 190 111. App. 612; Synkus v. Big Muddy Coal & Iron Co., 190 111. App. 602; Gorrell v. Battelle, 93 Kan. 370, 144 Pae. 244. The presumptive rule herein established merely affects a question of pre- 7s (Laws 1911, p. 314) Crooks v. Tazewell Coal Co., 263 111. 343, 105 N. E. 132, Ann. Cas. 19150, 304. § 24 workmen's COlkPENSATION lOS It is not essential, under the Kansas Act, that the authority of the officer of the employer corporation to make and file the state- ment of election be affirmatively shown, where it clearly appears that notices of the emplqyer's election to come under the Act were posted in all parts of its plant long prior to the injury/* By ac- cepting payments in accordance with an Act and making settlement under it, the employe admits that the employer has elected to come under the Act.'"' § 25. Abolition of defenses in common-law actions Under the common-law rule, an employe assumes all ordmary risks incident to his employment, and his employer is only liable when he is negligent and the employe not contributorily negligent, and the injury not caused by the negligence of a fellow servant.'* The Compensation Acts either modify or abrogate this rule. They ordinarily endeavor to induce acceptance of their compensatory pro- visions by abolishing the common-law defenses of contributory neg- sumption or burden of proof, which it is entirely within the control of the Leg- islature to regulate so long as the parties are left entirely free to make what- ever contract they choose, as does this Act. Sexton v. Newark District Tele- graph Co., 84 N. J. Law, 85, 86 Atl. 451. Where the complaint sets up a con- tract of hiring, made after the taking effect of the New Jersey Act, and does not aver that the contract contained any express statement in writing that the elective compensation provisions were not intended to apply or that any written notice to that'efiCect was given, it will be presumed that the parties accepted and were bound by such provisions. Gregutis v. Waclark Wire Works, 86 N. J. I^w, 610, 92 Atl. 354. However, where it appeared that at the time of the injury the Workmen's Compensation Act (Laws 1911, c. 218, § 8) was in force, and there was neither allegation nor proof that the defendant corporation had elected to come with- in its provisions, but there was some evidence that it had done so, the court properly assumed and instructed that such an election had not been made. Spottsville V. Western States Portland Cement Co., 94 Kan. 258, 146 Pac. 356. 74 (Workmen's Compensation Act Kan. § 44) Piatt v. Swift & Co. (Mo. App.) 176 S. W. 434. 7 6 (Workmen's Compensation Act Kan. § 44) Id. 11 (Wk. Comp. Act Wash. § 8) Rulings Wash. Indus. Com. 1915, p. 19. 109 ELECTIVE AND COMPULSORY COMPENSATION § 25 ligence, assumption of risk, and negligence of fellow servant, in common-law actions for damages,'' and by saving these defenses to the employer where the employe refuses to accept such provi- 77 Lydman v. De Haas, 185 Mich. 128, 151 N. W. 718. Consumers Lignite Co. V. Grant (Tex. Civ. App.) 181 S. "W. 202. Boody v. K. & C. Mfg. Co., 7T N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280, 5 N. C. O. A. 840 ; Crucible Steel Forge Co. v. Moir, 135 C. C. A. 49, 219 Fed. 151, 8 N. C. C. A. 1006 ; Cavanaugh v. Morton Salt Co., 152 Wis. 375, 140 N. W. 53. Where the employer has elected not to come under the provisions of the Compensation Act, it is not a defense to an action by the servant that he as- sumed the risk or that his contributory negligence, proximately caused the injury. Bell v. Toluca Coal Co., 272 111. 576, 112 N. E. 311 ; Synkus v. Big Muddy Coal & Iron Co., 190 111. App. 602 ; Price v. Clover Leaf Coal Mining Co., 188 111. App. 27. The Legislature intended to penalize every employer who neglected to pro- vide insurance by fixing his liability as under the common law, modified by Code Supp. 1913, § 2477m (c) 1, 2, 3, and 4. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 36. In the event the employer elects to reject the act, or fails to provide the insurance required under section 2477m41, Supplement to the Code, 1913, he wiU be liable to his injured employes the same as under the common law, as modified by statute, and he can no longer plead contributory negligence, fellow servant rule, or assumption of risk. Id. Where the employer was not a subscriber under this act, the only question before the jury was defendant's negligence; contributory negligence and as- sumption of risk not being available as defenses. (St. 1911, c. 751) Pope v. Heywood Bros. & Wakefield Co., 221 Mass. 143, 108 N. E. 1058. Where, in an employe's action under the common law, it appeared that the Workmen's Compensation Act was in force at the date of plaintifC's injuries, and that de- fendants were not subscribers under the terms of the statute, neither contrib- utory negligence nor assumption of risk was available as a defense. Dooley v. SulUvan, 218 Mass. 597, 106 N. B. 604. The Michigan Act provides that in any action to recover damages for per- sonal injury sustained by an employe in the course of his employment, or for death resulting from personal injuries so sustained, it shall not be a defense: (a) That the employ^ was negligent unless and except it shall appear that such negligence was willful; (b) that the injury was caused by the negli- gence of a fellow employ^ ; (c) that the employ^ had assuined the risks inher- ent in or incidental to or arising out of his employment, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances. It is then enacted that the above provisions shall not apply to actions to recover damages for the death of, or for personal injuries sustained by, employes of any employer who has elected, with the approval of the In- dustrial Accident Board thereinafter created, to pay compensation in the § 25 woekmbn's compensation llO" sions."* But where the employer is not under the Act, the em- ploye need not elect to be under it that the common-law defenses. manner and to the extent thereinafter provided. Adams v. Acme Wlilte- Lead & Color Wks., 182 Mich. 157, 148 N. W. 485, L. B. A. 1916A, 283. If the employer has elected not to become subject to part 2, he cannot inter- pose as a defense, in an action brought under part 1, that the employe was negligent, unless such negligence was willful; nor that he had assumed the' risk ; nor that the injury was caused by the negligence of a coemploy6. De- priving the employer of the three defenses named, in case he elects not to be- come subject to part 2 of the act, is the only substantial change made by part 1 in the previously existing law. If the employer declines to accept the provi- sions of part 2, he loses the benefit of these three defenses ; If he accepts the provisions of part 2, but the employe declines to accept such provisions, the- employer retains the benefit of such defenses. Mathison v. Minneapolis St.. Ry. Co;, 126 Minn. 286, 148 N. W. 71. Contributory negligence will not bar recovery, where the employer has not elected to take the benefit of the Workmen's Compensation Act (102 Ohio- Laws, p. 529, Act June 16, 1911, § 21—1) Penver-Laraine Realty Co. v. Wyo- ming Trout & P. Co., 219 Fed. 155, 135 C. 0. A. 53. Section 26 of the Work- men's Compensation Act of 1913, abolishing defenses, relates to civil actions maintained in the courts, and it has no application to proceedings before the Industrial Commission of Ohio brought under favor of section 27 of said Act. Biddinger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70; Skinner v. Stratton Fire Clay Co., Id. p. 103. Assumption of risk is no defense. Memphis Cotton Oil Co. v. Tolbert (Tex.. Civ. App.) 171 S. W. 309. The defenses abolished by the Washington Act, commonly referred to as. "contributory negligence," "assumption of risk," and "feUow servant rule,"^ are: (1) That the employe was not, when injured, in the exercise of due care, or was guilty of contributory negligence ; (2) that the injury received by the- employe was one of the ordinary risks incident to the contract of employ- ment; (3) that the injury was the result of the negligence of a fellow serv- ant. (Wk. Comp. Act Wash. § 8) Rulings Wash. Indus. Ins. Com. 1915, p^. 19. Under the Washington Act, the defaulting employer cannot avail him- 7 8 The policy of the law to preserve such defenses to an employer vho shall elect to come under the act, respecting an employe who does not, is a con- stitutional method of coercing both parties to accept the benefits and burdens of the new system in place of those of the old one. (St. 1911, § 2394 — 1) Kar- ny V. Northwestern Malleable Iron Co., 160 Wis. 316, 151 N. W. 786. The effect of this part B, § 4, is to save to the employer his common-law de- fenses where the employe has refused to accept part B. Bayon v. Beckley, Sa Conn. 154, 93 Atl. 139. Ill ELECTIVE AND COMPtJLSOEY COMPENSATION § 2& may be cut oflE.^" Whether these defenses are abolished is some- times made to depend on the number of workmen employed by one employer.*" Abolition of these defenses does not render an Act unconstitutional,'^ since, having been evolved by the courts, they self of the "common-law" defenses, whicli have been so effective in defeat- ing personal claims heretofore, where the fact of the injury of his employe is not contested. Id. The common-law defenses of contributory negligence, assumption of risk, and negligence of fellow servants are denied an employer who has not elect- ed to pay premiums. (Wt. Comp. Act, § 26 [Code 1913, c. 15P, § 26 (see. 682)]) Watts V. Ohio Valley Electric Ry. Co. (W. Va.) 88 S. B. 659. Abolition of the doctrine of assumption of risk does not prescribe acts on the part of an employer which, by the common law, were rightful and free from negli- gence. Its purpose is to forbid an application of the principle of waiver by which, at common law, the servant is made to assume the risk of known neg- ligence on the part of the master, by reason of his continuing in the service with knowledge thereof. De Francesco v. Piney Mining Co. (W. Va.) 86 S. E. 777. The defense of contributory negligence is expressly abolished where the neg- ligence was not willful. Besnys v. Herman Zohrlaut Leather Co., 157 Wis.. 203, 147 N. W. 37. 7 9 (Laws 1911, pp. 315, 316, §§ 1, 3) Dietz v. Big Muddy Coal & Iron Co., 263 III. 480, 105 N. E. 289. Where an employer rejects the Act, he loses his right to set up the common-law defenses, though the employe does not elect to come under the Act. Snykus v. Big Muddy Coal & Iron Co. (1914) 190 IlL App. 602 ; Favro v. Superior Coal Co. (1914) 188 111. App. 203. 8 The act induces its acceptance by depriving an employer of more than five,, who refuses to accept its terms, of the three common-law defenses, contribu- tory negligence, assumption of risk, and fellow servant. This deprivation is- "merely a declaration of the Legislature of the public policy of the state in that regard." Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245; Deibeikis V. L. Belt Co., 261 111. 454, 464, 104 N. B. 211, 215, Ann. Cas. 1915A, 241. Where- neither party accepts part B, or when the employe accepts and the employer refuses to accept it, the common-law defenses are not available to an employer who has more than five employ&s, but are available to those having less than that niimber. Bayon v. Beckley, 89 Conn. 154, 93 Atl. 139. The defense of assumed risk is not denied to a nonsubscribing employer who does not have in his service more than five employes, and is not available to employers who have in their employment more than five employes. Hodges. V. Swastika Oil Co. (Tex. Civ. App.) 185 S. W. 369. 81 See § 18, ante. § 25 workmen's compensation 112 represent no vested rights, and may be abolished by the Legisla- ture. Some Acts, instead of entirely abolishing the defense of contribu- tory negligence, establish the doctrine of comparative negligence.*^ An Act, such as that of Wisconsin, which abolishes the defense of assumption of risk, 4)Ut not contributory negligence, makes it important to distinguish between these two defenses.*' Within 82 An employer, not having elected to come within the Act, could not avail himself of the defenses of assumption of risk and contributory negligence, save in mitigation of damages. Spottsville v. Western States Portland Cement Co. (1915) 94 Kan. 258, 146 Pac. 356 (Acts 1911, c. 218, § 8). Contributory negligence may be considered in reduction of damages in common-law action. iPrench v. Clover Leaf Mining Co. (1914) 190 111. App. 400. Contributory neg- ligence would not defeat recovery, but would merely diminish the damages recoverable. Memphis Cotton OU Co. v. Tolbert (Tex. Civ. App.) 171 S. W. 309. 83 "So far as the decision below rests upon the theory that the defense of negligence of a fellow servant was available under section 1816, Statutes, it is wrong. The statute was superseded by the Workmen's Compensation Act. So, if appellant was injured by negligence of his associate, respondent is liable unless contributory negligence, strictly speaking, on his part — ^inadvertence, as distinguished from assumption of risk — ^proximately contributed to produce the injury." Salus v. Great Northern Ry. Co., 157 Wis. 546, 147 N. W. 1070. In any action founded upon negligence, brought by an employs or his personal representative against an employer to recover for personal injuries or death resulting therefrom, incurred by the employe in this state while engaged in the line of his duty, the defense of assumption of risk is by section 2394 — 1 abolished. By this statute in the same class of cases the so-called fellow servant defense was also abolished where there are four servants or more engaged in a common employment. By chapter 599, Laws of 1913, the defense of contributory negligence was in the same class of cases taken away, "when such want of ordinary care was not willful." One effect of these statutes is to make it more than formerly necessary to distinguish between assumption of risk and contributory negligence. Puza v. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223. From the viewpoint of their effect in defeating plaintiff's re- covery, assumption of risk and contributory negligence were formerly very much alike. They can no longer be considered from that viewpoint, because there is now no such common viewpoint with reference to cases arising after September 1, 1911, and before June 30, 1913, where there were less than four employes engaged in a common employment, and in such last-mentioned cases where there were more than four employes engaged in a common employment. 113 ELECTIVE AND COMPULSORY COMPENSATION § 25 such an Act, an intended and continued use of a known defective appliance or a known unsafe place by the employe in substantially the same way as the employer instructed or intended it should be used falls under the definition of assumption of risk and is not to be considered contributory negligence.'* Thus, an employe's use of a visibly defective stepladder pursuant to his employer's com- mands constitutes assumption of risk, rather than contributory neg- ligence ; but where he uses the ladder in a way which may not be required in the exercise of ordinary prudence to carry out his em- ployer's instructions, and the evidence leaves in doubt this ques- tion, and also the question whether such use of the ladder contribut- ed to the injury, such questions are for the jury.'" That a penalty imposed for violation of an Act is to be paid into the state treas- ury does not make the violation criminal within the case holding that, "when the violation of a statute designed to protect persons against bodily injuries is made a criminal offense, such violation should be classed with gross negligence," and the guilty person held liable for injuries to others, regardless of the contributory neg- ligence of the person injured.*" It does not, therefore, take away the defense of contributory negligence.*^ An accepting employer does not waive his statutory right to the common-law defenses of assumption of risk, negligence of a fellow but where there was willful want of ordinary care on the part of the injured employ^. Under such statutes the effect of assumption of risk and that of contributory negligence on the plaintiff's right of recovery are dissimilar. It would be rash to attempt to Indicate in a single decision all the points of difference between assumption of risk and contributory negligence, or to attempt to set limits to the meaning of the expression 'want of ordinary care not willful.'" Id. 8* Puza V. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223. 85 (St. 1913, § 2394—1 and Laws 1913, e. 599) Id. seBesnys v. Herman Zehrlaut Leather Co., 15T Wis. 203, 147 N. W. 37, citing: Pizzo v. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. R. A. (N. S.) 678, Ann. Cas. 1913C, 803; Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84. 87 Besnys t. Herman Zohrlaut Leather Co., supra. HON.COMP. — 8 § 25 woekmbn's compensation 114 servant, and contributory negligence, by objecting to the employe's having the benefit of the Wisconsin Act.*' The provision, of the Massachusetts Act that it shall not be a defense that the employe has assumed the risks of the injury has no application to a contractual assumption of risk; i. e., a risk assumed by the emplojie by virtue of his contract of employment, as distinguished from a voluntary assumption of risks outside those assumed under the contract of employment, as, for instance, the employer's failure to furnish safe tools and appliances. This arises from the the fact that the contractual assumption of risk is not a defense, and that with reference to such risks the employer owes no duty and cannot be guilty of negligence.'* A workman, whose injury was due wholly to his own negligence, cannot recover under the West Virginia Act against an employer who has not elected to pay premiums."" But a declaration in an action against an employer who has not elected to pay premiums is good, where its allegations show that the injury directly result- ed from the negligence of some employe or ofiicer other than plain- tiff, or resulted from the negligence of such other combined with his own."^ Elective compensation depends, not upon the negligence of the employer as is the case where there has been no election and it is sought to recover compensation by action at law,°^ but rests upon 8 8 Kamy v. Northwestern Malleable Iron Co. (1915) 160 Wis. 316,- 151 N. W. 786. 8 9 (St. 1911, c. 751, § 1) Ashton v. Boston & Me. R. Co., 222 Mass. 65, 109 N. E. 820, L. R. A. 1916B,' 1281. An experienced workman employed to repair defects in an electric wire system assumed the risks arising out of such de- fects. (St. 1911, c. 751, §1). Id. 80 (Wk. Comp. Act, § 26 [Code 1913, c. 15P, § 26 (sec. 682)]) Watts v. Ohio Valley Electric Ry. Co. (W. Va.) 88 S. E. 659. Slid. 02 See I 4, ante. Where the employer has not brought himself under the Act, he is not liable for accidents attributable to the negligence of no one. Salus T. Great Northern R. Co., 157 Wis. 546, 147 N. W. 1070. 115 ELECTIVE AND COMPULSOET COMPENSATION § 25 the simple fact of the relationship of employer and employe."" Un- der the Washington Act, employers who have not contributed to the state insurance fund are deprived of the common-law defenses, and it would seem that the only effective defense available in an action for damages for an alleged injury occurring to an employe in the course of his employment would be that no injury in fact had been sustained, or that the injury received was self-inflicted, or that the employer was himself free from fault. The amount of the recovery should be determined by the "comparative negligence" of all parties.®* The provision of the Iowa Act which establishes the presumption that the injury resulted from the negligence of an employer who has rejected the Act does not abolish the defense of contributory negligence, but merely places on the employer the burden of affirm- atively showing that he was without fault," ^ nor does it preclude the employer from proving want of negligence.'* The burden of proving that the workman was contributorily negligent, and that such negligence was willful, so as to relieve from liability his employer, who has not accepted the Michigan Act, rests on the employer."" 93 American Radiator Co; v. Eogge, 86 N. J. Law, 436, 92 Atl. 85, 94 Atl. 85. 9* (Wk. Comp. Act Wasli. § 8) Rulings Wash. Indus. Ins. Com. 1915, p. 19. 96 An employer who has rejected the Act has the burden of proving that the employs was willfully negligent with intent to cause his own injury, or that the injury was due to the employe's intoxication, and that the injury did not result from the employer's negligence. Hunter v. Colfax Consol. Coal Co. (Iowa) 157 N. W. 145. Where an employer elects to reject the provisions of the Act, there is a presumption raised that the employe's injury grew Out of and resulted directly and proximately from the negligence of the employer. (Code Supp. 1913, tit. 12, c. 8a) Op. Sp. Counsel to Iowa Indus. Com. (1915) -p. 3. 98 Hunter v. Colfax Consol. Coal Co. (Iowa) 154 N. W. 1037. 97 Freeman v. East Jordan & S. R. Co. (Mich.) 158 N. W. 204, § 26 workmen's compensation 116 CHAPTER III PERSONS AND FUNDS LIABLE FOR COMPENSATION Section • 26-31. Article I. — Employers, principals, and contractors. 32-40. Article II. — Insurers and funds. 41-48. Article III. — ^Third persons (indemnity and subrogation). ARTICLE I EMPLOYERS, PRINCIPALS, AND CONTRACTORS Section 26. Primary liability — Who liable as employers. 27. Which of two employers liable. 28. Municipal corporations. 29. Contemporaneous employment by different employers. 30. Principals and contractors; 31. Principal and agent. § 26. Primary liability — ^Who liable as employers The employer, being the person with whom the injured employe has contracted, is the person who is primarily liable, or who must provide the fund out of which compensation must be paid. He is not relieved from liability, even though he provides insurance in a private company under an Act authorizing only such insurance; the purpose of the insurance being to insure certain and prompt payment, and to reimburse him for any and all amounts which he has so paid. He remains primarily liable,^ and, if the insurance company becomes insolvent, the fact that he insured will not relieve him from liability to pay compensation.'' 1 (Acts 85th Gen. Assem. c. 147, Code Supp. 1913, §§ 2477m46-2477m48) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3. 2 Id. p. 35. 117 PERSONS AND FUNDS LIABLB § 26 The word "employer" is defined by many of the Acts. As used in the Illinois Act it does not include a farmer,' or an automobile owner who has not elected to accept the provisions of the Act.* As used in the Ohio Act in reference to private employment, it means every person, firm, and private corporation, including any public service corporation, that has in its service five or rriore work- men or operatives, regularly in the same business, or in or about the same establishment, under any contract of hire, express or im- plied, oral or written." As used in the Washington Act, it includes owners, contractors, subcontractors, agents, and municipalities," but not the United States, though it is in fact the employer.'' A 8 Where a person was engaged to help a farmer deliver a threshing machine to the shop for the purpose of having It repaired and on the way the machine stopped, and the employe crawled over the top of the engine, when it sud- denly started, throwing him to the ground, ran over and killed him, the em- ployer, being a farmer, was not liable, as he did not come within the Act. Poling V. Brown, Bulletin No. 1, 111., p. 21. One working for a farmer in the occupation of running a threshing machine that is operated by belt and pul- leys, or corn shelters operated in the same way, who is injured while in such employment, is not entitled to compensation, as not coming within Work- men's Compensation Act. Benton v. Wilson, Bulletin No. 1, 111., p. 54. * There is but one way a private automobile owner may come within the Workmen's Compensation Act of Illinois ; that is, by notifying the Industrial Board of his election to accept the provisions of the Act. Nelson v. Fitzgerald, Bulletin No. 1, lU., p. 95. Where an employe, primarily engaged as a private chauffeur by the president of a railway company, and paid out of his employ- er's private funds, while driving the automobile owned by the employer, met with an accident and was killed, the beneficiary was not entitled to compen- sation. Id. 5 (Wk. Comp. Act, 1913, § 13, par. 2) Clements v. Columbus Sawmill Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 161. A corporation owning and operating a sawmill not in operation on all of the working days of the year, but requiring when in operation five or more workmen to operate it, is an "employer." Clements v. Columbus Sawmill Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 161. A partnership is an "em- ployer." (Wk. Comp. Act, § 13, par. 2) In re Cooper, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 180. 8 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. 7 (Wk. Comp. Act Wash. § 3) Op. Wash. Atty. Gen. Sept. 20, 1911. § 26 workmen's compensation 118 provision making the state an "employer" has been held not to make an employer of the state board df agriculture ; * but the board of trustees of the University of Illinois has been held to Have such legal entity under the law as to be included within this term.° Six corporations, which, acting independently, employed a watchman, did not constitute a "voluntary association," within a provision that the definition of employer shall include every voluntary association having any person in service under any appointment or contract of hire." The liability of one as an employer under any Act depends in the first place, of course, upon the existence of the relation of em- ployer and employe, determined in accordance with the usual rules.^^ The employer's liability is not affected by the fact that the 8 Agler V. Mich. Agriculture Col., 181 Mich. 559, 148 N. W. 341, 5 N. C. G. A. 897. 8 North V. University of Illinois, Bulletin No. 1, 111., p. 63. 10 (Wk. Comp. Act, § 13) Western Metal Supply Co. v. Pillsbury. (Cal.) 156 P. 491. Whether or not the relation of master and servant exists in a given case, un^er oral contract, is often a question of fact, or of mixed law and fact, and is to be proved like any other question. Tuttle v. Embury-Martin Lumber Co. (Mich.) 158 N. W. 875. 11 A chauffeur employed by an automobile owner is not in the employment of the proprietor of a garage where tbe automobile is kept, where such proprietor incidentally gives him opportunity in Us leisure moments to aid in the sale of secondhand automobiles on commission, but he is under no duty to do so, nor under the control or direction of the proprietor. Lane v. Herrick, 3 Cal. I. A. C. Dec. 29. The subscriber, E., needing financial assistance, entered Into an agree- ment with one A. by the terms of which the latter made a cash deposit of $3,500 to assist the former to secure a certain contract, and also agreed to furnish another sum to enable E. to fulfill the contract. When the contract was completed, A. was to be reimbursed and given a share of the profits. All the employes were hired by .E. The employ© S. received a personal injury arising out of and in the course of his employment, and the insurer of B. denied liability. It was held that S. was an employe of E. Schuman v. Em- ployers' Liability Assur. Corp. Ltd., 2 Mass. Wk. Comp. Cases, 599 (Decision of Com. of Arb., affirmed by Indus. Ace. Bd.). A vessel was chartered under an oral agreement by which a second party 119 PERSONS AND FUNDS LIABLE § 26 employe worked but a short time before the injury,^' or was em- ployed and paid through an agent,^^ or that he has a contract with a third person, by virtue of which compensation will eventually fall gave directions as to the times and places at which the work was to be car- ried on, but the handling and management of the vessel was under the con- trol of the owner, and he was responsible for lost or destroyed goods. A cap- tain of the vessel in the general employ of the owning company as captain was its employs in this instance. • Norman v. Empire Lighterage & Wrecking Co., 2 N. T. St. Dep. Rep. 480. Where the architect in general supervision over the construction of a building recommended claimant as a superintendent to the owner of the building, the fact that the architect made some arrangement with the owner whereby he paid a part at least of the claimant's wages did not make him an employe of the architect, where his duties had nothing to do with the architect's work. Dissosway v. Jallade, The Bulletin, N, Y., vol. 1, No. 6, p. 13. Go-operative creamery. — Farmers' co-operative creamery companies are em- ployers, and must provide insurance or be relieved from so doing. (Code Sup. 1913, §§ 2477m41, 2477m49) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 13. Hospital. — The Iowa Act applies to and includes charitable institutions such as public hospitals. Op sp. Counsel to Iowa Indus. Com. (1915) p. 13. A nurse, accidentally injured while caring for a patient to whom she has been assigned by the hospital, can look to the hospital as her employer, though it was customary to make a special charge to the patient for the nurse, and only pay that amount to the nurse when it had been paid by the patient. William- son V. St. Catherine's Hospital, 2 Cal. 1 A. C. Dec. 430. Labor union, and inMvidvMl members. — Where a janitor belonging to the Central Labor Council, a union of workingmen, was accidentally injured while working for such, labor union, he was entitled to an award for disability com- pensation against it. Gerber v. Central Council of Stockton, 2 Cal. I. A. C. Dec. 580. Where a janitor of an unincorporated association is accidentally in- jured and the claim is made that where such association has no funds the in- dividual membership liability is such that an award made against it would avail nothing, the members of the association cannot avoid personal liability. If so, a wide door would be opened for avoiding responsibility where the pub- lic interest requires that responsibility exist. Id. 12 Although a workman had worked but two days before he was Injured, he was an employ^ within the Act. Lysons v. Knowles (Andrew) & Sons, Ltd. (1901) 3 W. C. C. I. 1, H. L. The fact that a workman who was killed by accident had only worked four days did not disentitle his dependents to compensation. Stuart 7. Nixon & Bruce (1901) 2 W. 0. C. 101, 104, C. A. (Act of 1897). 13 See § 31, post § 26 workmen's compensation 120 on such third person ; ^* nor does he cease to be an employer be- cause he temporarily lends or hires the workman's services to an- other, though such other person pays the wages,^° particularly where the workman remains under the directions of the former.^' But the sending of a workman to another by one who has not first employed him does not constitute a hiring/^ nor does work done for another than his employer by a workman solely on his own re- sponsibility.^* 11 Where an employe, on the pay roll of the defendant, was working on Its premises when injured, doing work which was part at least in its in- terest, and under its foreman, he was entitled to compensation from the de- fendant, although it had a contract with another company under the terms of which it was possible that the compensation might eventually fall upon that company. Had he so chosen, he might have held that company under the terms of its contract, but he could not be compelled to have recourse to them for compensation, since he had no knowledge of their relation to his work and was an employ^ of the defendant. Gallagher v. New Xork Central R. R. Co., The Bulletin, N. Y., Vol. I, No. 11, p. 21. 15 'Where the respondents hired a threshing machine to farmers, and em- ployed two men to take care of the machine and a third as road man, and this latter workman was injured while helping with the threshing, which he commonly did, and for which he was paid by the farmer, he was nevertheless in the employment of the respondents. Reed v. Smith, Wilkinson & Oo. (1910) 3 B. W. C. C. 223, O. A. Where a charter party required the registered own- er of the tug to provide and pay two men as crew, and one of them was drowned, he was in the employ of the owner, not of the charterer. Mackinnon v. Miller (1910) 2 B. W. 0. C. 64, Ct. of Sess. 18 An employer, after engaging a man to work at an oil well, permitted him to aid in the installation of machinery for another. WhUe such installation was delayed, the workman was killed from an explosion, he being at the time engaged in the work of installation, but under the general control and direc- tion of his employer. It was held that the employer remained such at the time of the accident and was liable. Walker v. Santa Clara Oil & Develop- ment Co., 2 Cal. I. A. C. Dec. 1. 17 Where a workman who hired out among the farmers, on applying to one, was sent on by him to another, who had asked the first to loan him a man for threshing, the services were not lent or hired by the first farmer. Bos- well V. GUbert (1910) 2 B. W. C. C. 251, C. C. IS Where a stage hand made a business of contracting with theatrical com- panies to haul their baggage, and was given early information of their move- 121 PERSONS AND FUNDS LIABLE § 2T A receiver, conducting a business of the employer corporation, is bound to pay the compensation for which the corporation became liable prior to his appointment; the obligation being contractual,, and the compensation being in legal effect indistinguishable from wages, and the payments mad© by the receiver being properly classed as operative or administrative expenses.^' A workman, hired by a partnership the management of which is later taken over by a creditor who, in consideration of paying off an attach- ment, is given a power of attorney and assumes the management and takes over the tangible assets for the purpose of securing him- self and rehabilitating the firm, the actual administration of the biisiness being still continued by the original partners, is employed by the partnership and not by the creditor.^" Failure to guard a saw in compliance with statutory safety reg- ulations will not take a corporation out from under the Illinois Act, unless it be shown that the failure was intentional on the part of some elective officer of the corporation.^^ § 27. Which of two employers liable In determining whether, in the doing of a particular act, a work- man is the servant of his original master or of the person to whom he has been furnished, the general test is whether the act is done in business of which the person is in control as a proprietor, so that he can at any time stop it or continue it, and determine the way in which it shall be done, not merely in reference to the result to be ments by the lessee, so that he might do this, his services were not lent, but he was an independent contractor. Huscroft v. Bennett (1914) 7 B. W. C. C. 41, C. A. i« (N. J. Emp. I/iab. Act, P. L. 1911, p. 134, § 2, par. 8) Wood v. Camden Iron Works (D. O.) 221 Fed. 1010. 20 Maffia V. Aquilino, 3 Oal. I. A. C. Dec. 15. 21 Bumes v. Swift & Co. (1914) 186 111. App. 460. § 27 woekmen's compensation 122 reached, but in reference to the method of reaching the result.''^ Thus it has commonly been held, in cases where a horse and driver have been let by a general, employer into the service of another, that the driver is subject to the control, and therefore is the agent, of his general employer as to the care and management of the horse and Tehicle.^^ ^That one pa^s a workman his wages, exercises super- vision over his work, selects the workmen, and has power to dis- miss him, though matters proper to consider, do not necessarily determine that he is the employer.^* 22 Pigeon V. Employers' Liability Assur. Corporation, 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737; Knowlton, C. J., in Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 393, 26 h. B. A. (N. S.) 442, 134 Am. St. Kep. 648. In Grischuck v. S. Borden & Co., 1 Conn. Comp. Dec. 633 (affirmed by supe- rior court on appeal), where the deceased workmS.n had been employed as a day laborer at odd jobs by the respondent for a number of years, and on the ■day of the injury was loaned by him to another firm for the purpose of making repairs in an elevator used by them in their business, the employer -was held liable to the dependent widow, and the firm to whom he was loaned was released' from liability. 2 3 Pigeon V. Employers' Liability Assur. Corporation (Mass.) supra, sup- ported by Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 26 L. R. A. (N. S.) 442, 134 Am. St. Kep. 648; Hussey v. Praney, 205 Mass. 413, 91 N. E. 391, 137 Am. St. Bep. 460; Corliss v. Keown, 207 Mass. 149, 93 N. E. 143; Wal- dock V. Winfield [1901] 2 K. B. 596; Hunt v. N. Y., N. H. & H. B. B., 212 Mass. 102, 107, 98 N. E. 787, 40 L. B. A. (N. S.) 778 ; Bongo v. B. Waddington & Sons, 87 N. J. Law, 395, 94 Atl. 408.- 24 Pollard V. Goole & Hull Steam Towing Co., Ltd., 3 B. W. C. C. 366, C. A. Where a lumber company reguested a transfer company to supply teams and drivers for $5.50 a day, and the transfer company called upon a contract teamster to supply a team and driver at $5 a day, and the contract teamster directed a driver, regularly employed by him at $2.50 a day, to take his team for work at the lumber company's yard, and there the driver hitched his team to a wagon of lumber supplied by the lumber company and hauled it ' away, the loading and designation of place being under the direction of the lumber company and the control oyer details and power to discharge residing in the contract teamster, the "employer" was the contract teamster, and he was primarily liable for compensation for injury sustained by the driver while ■doing such driving. McLeod v. Kirkpatrick, 3 Cal. I. A. C. Dec. 19. Wages. — ^Where a section boss requests his men to assist a rancher fo fight a fire from which the railroad was not in danger, and the rancher hires and 123 PERSONS AND FUNDS LIABLE § 27 Workmen engaged in mining coal are employes Of the mine owner, though the mining operations are carried on under a con- Days the men, the rancher, not the railroad, is the employer. Mazzini v. Pa- cific Coast Ry., 2 Cal. I. A. C. Dec. 962. Where a golf club authorizes a boy to -act as caddie for members playing on "its links, on condition that he be under the direction of the club's caddie master and that the power to reduce wages, reprimand, suspend, or discharge lies with the club; that the caddie report to the caddie master upon arriving at the links each day, and stay in the cad- die house until called for, the rate of his pay being fixed by the club, although paid by the individual player, such rate of pay not to be exceeded in any case, and the presence of caddies upon the links is secured by the club to make the links more valuable to members, the boy Is an employs of the club, and not of the member whom he may be serving when injured. Harris v. Claremont Country Club, 2 Cal. I. A. C. Dec. 1047. Where one who has agreed to furnish labor and material to repair a machine in consideration of a per cent, of the profits in addition to a payment to be made, calls in the service of an employe of the owner of the machine, to superintend and assist in the repair work, and such employfi is paid by the repairer as agreed, such ■employs is an employs of the repairer and not of the pwner of the machine. Tounger v. Gilro Machine Co., 2 Cal. I. A. C. Dec. 908. Where the appoint- ment and amount of pay of a workman hired by a board of guardians was subject to the approval of the Local Government Board, he was notwithstand- ing in the employ of the guardians. In lacovazzi v. Coppolo, 1 Conn. Comp. Dec. 476, where the workman at the time of his injury was working for the benefit of a firm of plumbers, to ■whom he had been assigned by the respondent under a contract between re- spondent and the plumbers, but was paid his wages by the respondent, he was in respondent's employ. In Brady v. Grove, 1 Conn. • Comp. Dec. 240, where the employs was engaged in creosoting a building built by one re- spondent, who was a building contractor, upon land owned by him, and was paid by him, though he worked under the immediate supervision of another respondent who acted as superintendent and foreman for the first, it was held the workman was the employs of the former, and the latter was dis- charged from liability. In Fiorio v. Ferrie, 1 Conn. Comp. Dec. 459, where respondent engaged a driver and his team, and paid him, and furnished man and team for a price per day to the city, which directed his work, but could not discharge him, the driver working sometimes for respondent after hours ■or on rainy days, when he was not needed by thp city, and being occasionally hired to others, he was an employe of respondent and not of the city. In Sinner v. Town of Colchester, 1 Conn. Comp. Dec. 286, where claimant was employed by a supervisor in employ of the town, and his services paid for to the supervisor by the town, compensation was awarded against bath the supervisor and the town, and the question of which of the two was properly -§ 27 workmen's compensation 124 tract with a third party, who selects and pays the workmen, where the mine owner has reserved control and supervision over the working of the mine.^° responsible was left for them to decide among themselves. In De Palma v~ Home Construction Co., 1 Conn. Comp. Dec. 358, where respondent company employed De Palma Bros, to build its houses, they in turn employing any one they wanted to work for them, keeping the time, but the wages being paid by respondent, and it being understood that respondent could dis- charge or transfer any one so employed, it was held that claimant, a broth- er of the De Palma Bros, and employed by them under this arrangement, was an employ^ of the respondent. Where on a rehearing It appeared that the claimant, a "shenango" or longshoreman who worked by the day for whoever would hire him, without having any definite contract for any length of time, but being paid each night and being free to work for whom he pleased the next day, had started work for the defendants, but later was sent to work for another company, because defendants had not sufficient men to do their work, and other men sent with him were paid by the latter company, that company was his employer, and the former award against defendants was rescinded. Sala v. Martorella & Giannesi, The • Bulletin, N. X., Vol. I, No. 6, p. 11. Finlay v. TuUamore Guardians (1914) 7 B. W. C. C. 973, O. A. Where a workman on a ship received his pay from a stevedore, who worked for the respondents and also other firms, and who testified that he handled the money merely for the convenience of the respondents, the workman was in respondent's employ. Pollard v. Goole & Hull Steam Towing Co., Ltd. (1910) 3 B. W. C. C. 366,' C. A. Supervision. — Where a man contracted with a shipowner to clean the boil- ers of a vessel, and paid the men he got to do it, the fact that they were to some extent supervised by the shipowner's foreman did not inakg them his employes. Spiers v. Elderslie Steamship Co., Ltd. (1910) 2 B. W. C. C. 205, Ct. of Sess. Where a ganger, employed by a firm of drug grinders to unload for them a barge of sulphur and to carry it in their bags into their ware- house, brought his own gang, and divided the money received among them, one of them who was injured was not in the employ of the drug firm. Bob- bey V. Crosbie (1915) 8 B. W. O. C. 236, C. A. Where the master of a trad- ing schooner was killed, it was the managing owner, and not all of the reg- istered owners, who was liable. Carswell v. Sharp et al. (1910) 3 B. W. C. C. 552, Ct. of Sess. Where a workman was engaged in plating in a ship- builders' yard as a member of a squad, in which he was placed by the head of the squad, but with the consent of the shipbuilders' foreman, this squad working the regulation hours of the yard, and being paid by the shipbuilders 26 Skinner v. Stratton Fire Clay Co., vol. I, No, 7, Bui, Ohio Indus. Com, p. 103. 125 PERSONS AND FUNDS LIABLE § 28 § 28. — — Municipal corporations The Acts usually include municipalities when they become em- ployers,"* regardless of the number of workmen employed by for overtime, having the shipbuilders' foreman as overseer, and obeying printed rules "to be observed by the workmen in the employment of" the shipbuilders, although they apportioned their work as they liked, and paid for their own unskilled labor when needed, the man working in this squad was in the employ of the shipbuilders. McCready v. Dunlop & Co. (1900) 2 F. 1027, Ct. of Sess. (Act of 1897). A., the owner of a coal mine, entered into a contract with B. to operate the mine, by the terms of which contract A. was to furnish all posts, timbers, and track material and implements, and B. was to mine the coal in a workmanlike manner, do necessary track laying and timbering, preserve the entry In good condition, do draining, etc., and furnish all labor necessary for the mining of the coal. The coal was to be placed in A.'s car as taken from the mine, and B. was to receive from A. a stated price per ton for all coal so taken from the mine, it being part of the agreement that A. was to take and pay for all the coal so mined. The min- ing was done subject to the supervision of a mine foreman employed by A. C. was employed as a miner in the mine so operated, and was killed while in the course of his employment. The commission held that O. was an em- ploy^ of A. McAllister v. National Flreprooflng Co., vol. 1, No. 7, Bui, Ohio Indus. Com. p. 107. In Soloskl v. Strickland, 1 Conn. Comp. Dec. 56 i, where the respondent engaged another man to cut wood on his lot at a rate per cord under certain specifications, and this third party hired claimant, mak- ing a profit on his work, having the power to discharge him and to direct 26 City of Butte v. Indus. Ace. Bd. (Mont.) 156 Pac. 130 (Code Supp. 1913, tit. 12, c. 8A, § 2477m[b]) Op. Sp. Counsel to Iowa Indus. Com. (1915) pp. 7, 8. A city is an "employer." (Wk. Comp. Act, § 13, par. 1) In re Frances B. Lyman, vol. I, No. 7, BuL Ohio Indus. Com. p. 182. The city of Superior was liable under the act for the death of a care- taker of a park from injuries received while he was mowing grass in the space between the sidewalk and the curb. (St. 1913, § 925 — 171a, and St. 1913, § 925—3) City of Superior v. Industrial Commission, 160 Wis. 541, 152 N. W. 151. Where the Act applies to employers "buHdlng or maintaining any struc- ture," a municipal corporation which operates and maintains its own water system is an employer within the Act. (Act 1911, p. 314, § 2 ; Jones & A. Anu. St. 1913, par. 5450) Brown v. City of Decatur, 188 111. App. 147.- A mu- nicipality, or quasi public municipality, such as the Sanitary District of Chicago, comes within the Workmen's Compensation Act. Badigen v. Sani- tary Dist. of Chicago, Bulletin No. 1, 111., p. 138. § 29 workmen's compensation 126' them,"' and supersede charter provisions relative to presentation of claims against a city.^* § 29. Contemporaneous employment l?y different em- ployers Employment by mor%than one employer at the same time does, not prevent recovery of compensation. Thus the fact that deceased was employed in the dual capacity of employe of the defendant and of the United States government did not make him any the less an employe of defendant ; the applicant having a right to elect which of the employers to proceed against."' Likewise the fact that a night watchman is contemporaneously employed by several owners of buildings does not prevent him from being the employe of each.^" In the absence of any joint agreement among them, such what trees should be cut, claimant was not an employ^ of the respondent, but of the contractor. Selection. — Men for measuring and weighing cargo, licensed by a port au- thority, were sent out in turn as called for by shipowners, and the charges per ton, which were collected by the headman, were divided, after taking out certain expenses of the port authority, between himself and the workmen. One of these meters, who was injured, was in the employ of the shipowner. Wilmerson v. Lynn & Hamburg Steamship Co. (1913) 6 B. W. C. C. 542, C. A. Dismissal. — ^Although the foreman of a squad of coal trimmers, working on coal which a firm of shipping agents were loading on a ship, had the power to dismiss the men, and was appointed by the harbor commissioners, one of the squad who was injured was in the employ of the firm, which prepared the plan by which the work was done, and which controlled and supervised the work. Gorman v. Gibson & Co. (1910) S. C. 317, 47 S. L. E. 894. 2' Countries, cities, townships, incorporated villages, and school districts are employers within the meaning of the Ohio Act, regardless of the num- ber of workmen employed by them. (Wk. Comp. Act, § 13) In re Horvat,. vol. I, No. 7, Bui. Ohio Indus. Com. p. 155. ' 28 (Wk. Comp. Act Ex. Sess. 1912, pt. 6, § 5) Purdy v. City of Sault Ste.. Marie (Mich.) 155 N. W. 597. 2' M. Johnston v. Mountain Commercial Co., 1 Cal. I. A. C. Dee. 100. 30 Mason V. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. A night watchman, who had contracts of hire with six independent con- 127 PERSONS AND FUNDS LIABLE § 30 owners do not constitute a "voluntary association," within a provi- sion of the California Act that the term "employer" may include voluntary associations.'^ That a policeman hired by a mining com- pany is also a deputy sheriff and receives fees from the county does not relieve the company from liability where he is stabbed and killed while making an arrest.^* § 30. Principals and contractors The principal is a person who undertakes to do work, either for himself or another, which forms part of his particular trade or business,'* and has engaged a contractor to do part or all of this cerns and acted as watchman for all of them, is an employ^ of any one, and may recover from the one on whose premises he is injured. Western Metal Supply Co. V. PUlsbury (Cal.) 156 Pac. 491. 31 (Wk. Comp., etc., Act, § 13) Western Metal Supply Co. v. Pillsbury (Cal.) 156 Pac. 491. 32 James v. Witherbee, Sherman & Co., 2 N. T. St. Dep. Bep. 483. 33 Where a man, hired to keep an airship on show on the grounds of the defendant show company, hired a lecturer, who was killed when the airship exploded, the defendants were principals. Waites v. The Franco-British Ex- hibition, Inc. (1910) 2 B. W. C. C. 199, C. A. Where a man purchased by contract with a municipal corporation, the bricks of an old building, with the stipulation that he clear all the bricks and rubbish off the place, and one of his workmen was killed while at work, the corporation was a principal. Mulrooney v. Todd & The Bradford Corporation (1910) 2 B. W. C. C. 191, C. A. Work not part of trade or husiness. — A surveyor, while supervising the re- pairing of a house he had taken under contract, was not a principal. Brine V. May Ellis, Grace & Co. (1913) 6 B. W. C. C. 134, C. A. Nor were the tradesmen liable as principles where a builder had by contract employed two tradesmen to remove a building and re-erect it on another location, where they intended to set Up a skating rink, and one of the builder's workmen was Injured (Skates v. Jones & Co. [1910] 3 B. W. C. C. 461, C. A.) ; or the farmer where a man who owned a threshing machine upon renting it to a farmer sent his son to operate, and the son was injured (Walsh v. Hayes [1910] 2 B. W. O. C. 202, C. A.) ; or the manufacturers, where the workman of a con- tractor was employed to do some tarring on the premises of chemical manu- facturers and was injured (Zugg v. J. & J. Cunningham, Ltd. [1909] 1 B. W. C. C. 257, Ct. of Sess) ; or other manufacturers who employed a deal porter by contract to pile timber on their premises, and who never did such work § 30 workmen's compensation 128 work. Under the English Act and Acts following it in this regard, the principal or contractor is liable only when the injury occurred on, in, or about the premises on which he has undertaken to do any work, or when such premises or work are otherwise under his con- trol or management. The burden of proof in this respect is on the workman.^* The term* "premises" includes a ship.*" The word "about" is employed in this connection in a geographical sense, and denotes close propinquity.** themselves, It not being customary for persons In their trade to do it, a work- man of the contractor being injured (Hockley v. West London Timber & Joinery Co. [1914] 7 B. W. C. C. 652, C. A.) ; or the firm, where the workman in a ganger employed by a firm of drug grinders to unload a barge of sul- phur and store it in their warehouse was injured, the arrangement being that the ganger procure his own gang, and divide among them the money he re- ceived from the firm (Bobbey v. Crosble [1915] 8 B. W. C. C. 236, O. A.) ; or shipowners, where they hired a contractor to scale the boilers of their ship, and one of his workmen was injured (Luckwill v. Auchen Steam Shipping Co., Ltd. [1913] 6 B. W. C. O. 51, O. A. ; Spiers v. Elderslie Steamship Co., Ltd. [1910] 2 B. W. C. C. 205, Ct. of Sess.) ; or owners of a barge, where they employ- ed the captain to overhaul it, and he in turn employed the mate to help, and the mate was injured (Hayes v. S. J. Thompson & Co. [1913] 6 B. W. C. C. 130, O. A.). 34 Where an Injured factory worker offered no evidence as to just where the accident happened, it was held that there was a burden of proof upon him to show that it occurred on, in or about the factory premises. McAdam V. Harvey (1903) 2 I. R. 511, C. A. (Act of 1897). 3 5 Where a man, hired under contractor by a firm of coal merchants and lightermen to take two lighters on a voyage, providing everything, including the crew, for the compensation of a lump sum, appointed another man to command one of the lighters, and the boatswain of that boat was injured on ship during the voyage, the firm were liable as principals. Dittmar v. Wilson, Sons & Co. (Dittmat v. Owners of the Ship V 393), (1910) 2 B. W. C. C. 178, C. A. 38 An accident resulting in the death of a workman, which occurred while he was uncoupling wagons on the mail line of track near the extremity of a siding, which was made a part of the mine by statutory provision, occurred about the mine. Monaghan v. United Collieries, Ltd. (1901) 3 F. 149, Ct. of Sess. (Act of 1897). Where a workman who was carrying goods from a fac- tory building to his lorry, which was about 32 feet distant on the other side 129 PERSONS AND FUNDS LIABLE § 30 An owner of land does not stand to a lessee in the position of principal to a contractor or subcontractor under him. In a Wiscon- of the street, was injured at his work, the injury occurred about the factory. McGovern v. Cooper & Co. (1902) 4 F. 249, Ct. of Sess. (Act of 1897). Not about the premises. — The injury did not occur about the premises, where a workman hired by a subcontractor to cart rubbish was killed in the road two miles from the site of his work. Andrews v. Andrews & Mears (1909) 1 B. W. 0. C. 264, C. A. An injury received by a workman who was unloading goods from a wagon a mile and a half from the factory, did not happen about the premises. Lowth v. Ibbotson (1899) 1 W. C. C. 46, C. A. (Act of 1897). Where a workman on a new building was killed on a public road from 110 to 160 yards away from the building, while carting water to the place, the accident did not occur about the premises. Fenn v. Miller (1900) 2 W. C. C. 55, C. A. (Act of 1897). An injury sustained by a workman while stacking rails 70O yards from the "engineering work" of his employers was not received about the premises of the "engineering work." Back v. Dick, Kerr & Co., Ltd. (1906) 8 W. C. C. 40, H. L. (Act of 1897). Where a workman was injured while doing some work he had been sent to do, on a ship at dock some 550 yards from the factory of his employers, he was not injured about the factory. Barclay, Curie & Co., Ltd., v. McKtmion (1901) 3 F. 436, Ct. of Sess. (Act of 1897). An injury to a workman, doing work he had been sent to do on a locomotive half a mile from his employer's factory, was not sustained about the factory. Ferguson v. Barclay, Sons & Co., Ltd. (1903) 5 F. 105, Ct. of Sess. (Act of 1897). The accident did not occur about the mine, where a miner transferring lumber from a railroad wagon in a colliery cart 400 yards away from the mouth of the pit was fatally injured. Coylton Coal Co. v. Davidson (1905) 7 F. 727, Ct. of Sess. (Act of 1897). An accident to the driver of a coal train running on a private railway owned by the colliery company, which happened three-quarters of a mile from the mouth of the pit, did not occur about the mine. TurnbuU v. Lambton Col- lieries, Ltd. (1900) 2 W. C. C. 84, C. A. Where a horse which a carter was driving bolted while on a public road 800 yards from the factory, the result- ing injury to the carter was not about the factory. Kent v. Porter (1901) 38 S. L. K. 482, Ct. of Sess. (Act of 1897). The death of a workman who was engaged in carting sand from the pit to an "engineering work," the accident happening 2% miles from the work, was rot due to an injury sustained about the engineering work. Pattison v. White & Co., Ltd. (1904) 6 W. C. C. 61, C. A. (Act of 1897). Where the driver of a load of lumber going from a fac- tory to a building in course of construction met with an accident on the public road two miles from the factory, causing his death, the accident did not occur about the factory. Whitton v. Bell & Sime, Ltd. (1899) 1 F. 942, Ct. of Sess. (Act of 1897). Where a carter's horse bolted just as he was pass- ing through the gate of a railroad statiori on his way to the stables, and HON.COMP. — ^9 § 30 workmen's compensation 130 sin case, the Commission said that it was not the intention of the Legislature to make an owner of land liable for compensation to employes of the tenant.*' In respect to the liability of one as principal, there is a striking distinction between the English Act and the California Act. The Compensation Act of i{,ngland provides that the principal shall be liable to pay to any workman employed in the execution *of work "any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him." The Compensation Act of California provides that the principal must pay "any compensation which the immediate employer is liable to pay." *° Under the former, the liability of the principal is to be tested by his own circumstances, while under the latter the test of liability is the liability of the immediate employer.^' the carter was injured, the injury did not occur about the railway. Bath- gate V. Caledonian Railway Co. (1902) 4 F. 313, Ct. of Sess. (Act of 1897). Where injury to a workman occurred while he was engaged in loading a cart in the street near the entrance to his employer's premises, he was about the premises. . Powell v. Brown [1899] 1 Q. B. 15T, C. A., 1 W. O. C. 44 (Act of 1897). Where one buying window frames, to be made up, orders from the millman a definite number at a definite price, and the work is all done on the millman's premises, the buyer is not a principal, or liable to a carpenter employed by the millman to fill the order. Hale t. Johnson, 2 Cal. I. A. C. Dec. 339. Where an exhibitor secures floor space In an exhibition building, and ar- ranges to have a booth erected and decorated by a contractor, and employ^ of the contractor is injured upon the premises upon which the work of erect- ing and decorating is being done, and where the work of decorating was to some extent directed by the exhibitor, such exhibitor is liable as a principal for injuries received by employes engaged upon such work. Brain v. Bis- felder, 2 Cal. I. A. 0. Dec. 30. 87 Puddy V. Fitch, Rep. Wis. Indus. Com. 1914r-15, p. 17. 88 Wallace v. Pratchner, 2 Cal. I. A. C. Dec. 661. 89 "In this respect a striking distinction exists between the wording of the California Compensation Act and the wording of the English statute and those of the other American states which are, in the main, founded upon the English law. The provision of the English law in this connection is as follows : 'Where any person (in this section referred to as principal), in the 131 PERSONS AND FUNDS LIABLE § 30 Thus, under the California Act, where, a contractor is liable for an injury to his employe, his principal is also liable, although the employment, while in the usual course of business of and not cas- ual as to the contractor, is both casual and not in the usual course of business of the principal.** course of or for the purposes of Ms trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employ- ed in the execution of the work any compensation under this Act, which he would have been liable to pay if that workman had been immediately em- ployed by him.' Under this provision it clearly appears that the liability of a principal Is to be tested by his own circumstances ; i. e., if the injured man were working for him directly, doing the same kind of work. Under thp Cali- fornia law, on the other hand, the provision is as follows: 'Sec. 30. (a) The principal, any general contractor and each Intermediate contractor who un- dertakes to do, or contracts with another to do, or to have done any work, shall be liable to pay any employ 6 injured while engaged in the execution of such work, or to his dependents in the event of his death, any compensation which the Immediate employer is liable to pay.' The test of liability is therefore the liability of the immediate employer, and the principal cannot claim any defenses not open to such immediate enjployer. In other words, if the Immediate employer is liable to pay compensation under the Act, then the principal is also liable to pay (if the immediate employer does not). The liability of the principal being strict and onerous, under the California law, the Act allows him unusual defenses not given to other parties. He can at any time within the period allowed by law recover back from the immediate employer any compensation which he has been obliged to pay because of the default of the latter. He can also require the contractor to carry compen- sation Insurance, and if the latter does so, the principal is relieved from all liability. His position is, therefore, no worse than that of owners of build- ings under our mechanics' lien laws, and, indeed, is much better by reason of his ability to require insurance from his contractors or subcontractors and also in his ability to insure his own liability at a reasonable rate." Id. 40 Neel V. White, 2 Oal. I. A. O. Dec. 933. A principal or general contrac- tor, upon whose premises an employ^ of a contractor has been Injured, has a position analogous to that of a surety, and must pay any compensation for which the immediate employer is liable. He cannot resist liability upon the ground that the employment of the injured man, as to him, was both casual and outside of his usual course of business, where the employment of such injured person is in the usual course of business of the immediate employer. (Wk. Comp. Act, § 30) Wallace v. Pratchner, 2 Oal. I. A. 0. Dec. 661. In this § 30 workmen's compensation 132 The provisions of this Act relative to the liability of contractors and principals have been construed by the California Industrial Accident Commission in several decisions. According to these de- cisions, a municipal corporation may be held liable as a principal.*^ And where an employe is injured while working for a subcontractor in the construction of».a bui|lding, the subcontractor is primarily liable as the immediate employer. The general contractor and owner of the premises as principal, is also liable if the subcontractor ■case the immediate employer, whose regular business was that of painting, employed a painter to assist him in painting the house of the principal. The Job was for but two days, and casual as to both the principal and the im- mediate employer. It was in the usual course of business of the immediate employer, and not of the principal. The commission held that, the immedi- ate employer being liable under the Compensation Act for injuries sustained by the employ^, the principal is also liable, though he would not have been liable if the workman had been employed directly by him. *i A municipal corporation is liable as principal under section 30 for com- pensation for injuries received by a contrac-tor's employ^ while doing street improvement work. Since the liability is not contractual, but statutory, de- ■cisions holding that the city is not liable on the contractor's default to pay for work, labor, and material, do not apply. Nor can the city be held liable on the theory ,that it is agent for the assessment district. Mihaica v. Mlag- enovich, 1 Cal. I. A. C. Dec. 174. The commission followed the Mihaica Case and held that a municipal corporation is liable as principal for compen- sation for injuries received by an inspector of engineering employed by the city to inspect work being done, pursuant to the improvement Act of 1911, under the usual form of assessments levied upon a district within the mu- nicipality Instead of being paid for out of the general funds of the city. Spears v. City of Santa Monica, 2 Cal. I. A. C. Dec. 1016. Where a bid to do work on a county bridge is accepted by the county, but work is started and an employs is accidentally injured before execution of the written con- tract and filing of the required bonds, and afterwards the county accepts the work and settles with the contractor's creditors, the county is liable as prin- cipal if the contractor is uninsured. Forbes v. County of Humboldt, 2 Cal. I. A. C. Dec. 887. Where the owners of land in a farmer's protection district were permitted to pay their assessments in cash or by furnishing their teams and workmen, and one owner supplied a farm laborer to work under a fore- man employed by the district, and while so engaged the laborer was injured, the district was the principal and the farm owner the immediate employer, and both were liable for compensation. Mann v. Looke, 2 Cal. I. A, C. Dec. 415. 133 PERSONS AND FUNDS LIABLE § 30 is unsecured. The award of compensation will be made jointly and severally against the subcontractor, general contractor and owner.*^ Where the owner of a lot contracts to sell it to another, and retains no interest except as security for the stipulated pur- chase price, and the purchaser commences to erect a building on the lot for'his own benefit and in his own name, a workman injured in working upon the building cannot recover compensation from the vendor.*' That one is lessor does not make him liable as principal for injuries to employes of his lessee.** Where a general contrac- tor agrees with his principal that the right to discharge workmen shall be reserved to the contractor and the architect and that the contractor shall be responsible for any injury occurring in connec- tion with the work, and where the business agent of a union pro- cures the workmen and agrees with the general contractor that they shall be paid a definite sum per thousand for lathing, but nei- ther the business agent nor the union receive any compensation; 42 Hattan v. Hattan, 1 Cal. I. A. C. Dec. 324. *3 Anderson v. Mlckelson, 1 Cal. I. A. O. Dec. 189. 44 A lessor of mining, oU, or other lands is not liable for compensation for injuries to employes of his lessee. One not the employer of the injured man can be held liable for compensation only under section 30, which provides that the principal, general contractor, or intermediate contractors who undertakes to do, or have done any work for them, are liable for injuries to employes of subcontractors. This section does not make a lessor liable for injuries to employes of his lessee. Cypher v. United Development Co., 1 Cal. I. A. C. Dec. 425. Where a corporation owning oil wells, after default in payment of a mortgage thereon, turns the property over to the mortgagee as a lessee, such lessee to apply the proceeds to his indebtedness, and a workman employed by such lessee is injured, the owning corporation is not liable for injuries sus- tained by such employes of the lessee. Farris v. Potomac Oil Co., 2 Cal. I. A. C. Dee. 487. Where an exhibitor secured floor space in an exhibition building, and an employe of his contractor was injured while working on a booth being erected upon such floor space, the owner of the building was not liable as a' principal. A lessor is not usually liable for Injuries to an employe of a lessee or his subcontractors, for the reason that the work upon which the employe is injured is not work which the lessor has undertaken to have done for him- self, but is being done for the lessee's sole benefit. Brain v. Eisfelder, 2 CaU I. A. C. Dec. 30. § 30 workmen's compensation 134 for such service, or retain any control of right to discharge the workmen, and neither the agent nor the union assume any liability or responsibility for the amount of work to be done, or the time within which it is to be done, or the price of the job, the only agreement made being to gratuitously furnish men, the general contractor is the empl(3|rer of the lathers and liable as such for compensable injuries. The union and its business agents are in no way liable as subcontractors.*" Where the one who hires the injured employe is merely a superintendent engaged by the owner and not an independent contractor, the liability to pay compensa- tion rests on the owner alone, and not on the superintendent.** Where the principal or general contractor has paid compensation to an injured employe for which a subcontractor is primarily lia- ble, he is entitled to recover the amount thereof from the subcon- tractor. Upon the payment of such compensation to the injured employe, the Commission will upon request make a 'supplementary award in favor of such principal or general contractor against the immediate employer.*' Under the express provisions of the Cal- ifornia Act, a principal or general contractor is entitled to an order staying execution of the award against him until such execution be returned unsatisfied against the subcontractor and immediate em- ployer. Where, however, it appears that such stay would be a mere formality by reason of the irresponsibility of the subcontrac- tor, a stay will not be ordered unless specially requested.** The Connecticut Act provides that when any principal em- ployer procures any work to be done, wholly or in part, for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business *o Tallman v. Hart Construction Co., 1 Cal. I. A. C. Dec. 568. 46 Batchelder v. Kreis, 1 Cal. I. A. C. Dec. 63. *7 Hattan v. Hattan, 1 Cal. I. A. C. Dec. 324. 48 (Wk. Comp. Ins. & Safety Act, § 30) Hattan v. Hattan, 1 Cal. I. A. C. Dec. 324. 135 PERSONS AND FUNDS LIABLE § 30 of such principal employer, and is performed in, on, or about prem- ises under his control, such principal employer is liable to pay all compensation under the Act to the same extent as if the work were done without the intervention of such contractor or subcontrac- tor.*° In a recent case it was hel4 by the commissioner, under this provision and a further provision of the Act that "no contract, express or implied, no rule, regulation or other device, shall in any manner relieve any employer, in whole or in part, of any obliga- tion created by this Act,, except as herein set forth," that where the claimant, a carpenter, was working for a subcontractor on premises owned and controlled by respondent, and doing work which was a part of respondent's business, and it further seemed very likely from the evidence that the contracts were mere sub- terfuges to escape liability, compensation should be awarded."" The Massachusetts Act provides th^t if a subscriber make a. con- tract oral or written, with an independent contractor to do the sub- scriber's work, or if such contractor enter into a contract with a subcontractor to do all or any part of the work comprised in the contract with the subscriber, "and the association would, if such work were executed by employes immediately employed by the subscriber, be liable to pay compensation under this act to those employes, the association shall pay to such employes any com- *» P. A. 1913, c. 138, § 5. In Camellier v. CardllU, 1 Conn. Comp. Dec. 215, where a principal contractor sublet the mason work on a building, and the sub- contractor before the work was finished left the country, and turned the con- tract over to his brother-in-law, who was to pay the laborers required to finish the work, and to make a small profit, it was held that the brother-in-law was transferred to the position of the subcontractor, and both he and the principal were held liable. In Murphy v. Blycher, 1 Conn. Comp. Dee. 443, the respond- ent contended that, because claimant was the employ 6 of a subcontractor who employed less than five men and who had not accepted the Act, claimant there- fore did not come under the Act. The commissioner held this interpretation erroneous, and, the subcontractor being irresponsible and having left for unknown parts, awarded compensation against the principal contractor. 00 (Wk. Comp. Act, pt. B., §§ 5, 33) Mezansky v. Sissa, 1 Conn. Comp. Dec. 430. § 30 workmen's compensation 136 pensation which would be payable to them under this act if the independent or subcontractors were subscribers." ^^ In a recent case applying this provision, it was held that the conveyance of picks, shovels, and wheelbarrows, and of constructed and fabricated parts of a building from the storehouse of a builder and contractor to the premises where-^hey are to be used; or are to be com- bined into a proposed structure, may be found to be a part of the trade or business of a contractor and is not necessarily an act mere- ly ancillary and incidental to- the business of that contractor."" Where the claimant's employer entered into an oral contract with a firm of building contractors to load and transport some materials through his servant, in his own way, such employer was an inde- pendent agent or contractor. °* A company of wreckers having full and unrestricted charge of the work, together with the men employed thereon, are independent contractors and liable as the employer for the payment of com- pensation to the widow of a deceased employe."* An independent contractor, who undertook a job of renovating and furnished the tools, scaffolding, ropes, etc., could not escape liability by turning the doing of the work over to another, either his partner or his su- perintendent."" § 31. Principal and agent An agent who hires an assistant in an emergency, though with- out express authority is not the immediate employer of the assist- ant. The immediate employer in such case is the principal whose Bi St. 1911, c. 751, pt. 3, § 17. 5 2 In re CJomerford, In re Contractors' Mut. I/lab. Ins. Co. (Mass.) 113 N. E. 460, supported by In re Sundine, 218 Mass. 1, 105 N. E. 433, h. R. A. 1916A, 318. 03 Id. B4 Opitz V. Chas. Hoertz & Son, Mich. Wk. Comp. Cases (1916) 311. 5 Kramer v. Schalke, The Bulletin, N. Y., vol. 1,, No. 8, p. 8. 137 PERSONS AND FUNDS LIABLE § 31 work is benefited, and the liability rests on him and his princi- pals."* Where such hiring is with the principal's knowledge and ^ acquiescence, the principal's conduct amounts to a ratification of the hiring.'^ Be (Wk. Comp. Act, § 30) Paul v. Nikkei, 1 Cal. I. A. C. Dec. 648. In Dolan v. Judson, 1 Conn. Comp. Dec. 362, where the claimant was em- ployed by an agent of the respondent with full power and authority to do so, and the wages were paid by the respondent through such agent, he was an employe of such respondent. Where a driver was employed to. solicit sales of beer and make delivery of same, and, in performance of his duties, he was permitted to employ helpers, and a helper in performance of his duty was injured, the brewery company was liable for the injury sustained by the helper, just as though it employed the helper, paid him, directed him, and controlled his every action as an in- dividual employs of the company. Schmidt v. William Pfeifer Berlin Weiss Beer Brewing Co., Bulletin No. 1, 111., p. 118. Where an expert was hired by the owner of a factory to supervise the in- stallation of machinery, and, besides having several of the owner's employes to assist him, employed claimant and another man also, both of whom were paid by the owner, claimant was an employe of the factory owner. McNally V. Diamond Mills Paper Co., The Bulletin, N. Y., vol. 1, No. 11, p. 12 (on rehearing). Where a town's agent, after refusing a contract, undertook the building of a bridge on the proposition that he furnish his own men and machinery and teams and be paid for his work and at a given rate per day per man for the balance of the crew, a member of the crew selected by him was an employe of the town. Peabody v. Town of Superior, Bui. Wis. Indus. Com. vol. 1, p. 99. 5 7 Paul V. Nikkei, 1 Cal. I. A 0. Dec. 648. § 32 workmen's compensation 138 ARTICLE II INSURERS AND FUNDS Section 32. Distinctive Insurance features of Compensation Acts. 33. Option of state insurance, private insurance, or self-Insurance. 34. Rights and Ilabilltl«s of insurance companies. 35. Substitution of parties, subrogation and reimbursement. 36. Premiums. 37. State insurance. 38. Excessive contributions and credits. 39. Public work. 40. Pension roll and reserve fund. § 32. Distinctive insurance features of Compensation Acts In respect to their, optional and compulsory insurance or secu- rity features, the Acts of the various states and territories may be divided into three groups, designated as those which compel em- ployers subject to their operation to carry insurance securing pay- ment of compensation, or to satisfactorily show that they are able to pay compensation without carrying insurance,"' those which compel insurance,"' and those which leave the matter of insurance optional as to all employers.'" Several of the Acts provide insur- ance in a fund administered by the state. In some states this is the only compensatory insurance permitted,*^ while in some em- B8 Colorado, Connecticut, Hawaii, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington, West Virginia, Wisconsin, and Wyoming. In New York this requirement applies only in respect to hazardous employment ; in Vermont it applies only to private employers, insurance being optional as to municipalities and other public employers. 5 Insurance is compulsory in Kentucky, Massachusetts, Nevada, Oregon, Texas, Washington, and Wyoming. 8 In respect to these matters, the Acts of Alaska, Arizona, California, Kan- sas, Louisiana, Minnesota, Nebraska, and New Jersey are optional. «i Insurance in a state fund is compulsory under the Acts of Kentucky, Nevada, Oregon, Washington, and Wyoming. 139 PERSONS AND FUNDS LIABLH § 33 ployers are permitted to insure in the state fund or carry their own risks under strict regulations,*'' and in others they are given the option to insure either in the state fund or in private compa- nies.*' Two of these Acts authorize insurance either in private companies or in a mutual association, state in nature,®* and eighteen permit insurance only in duly licensed private companies." ° A provision requiring insurance, or, in lieu thereof, a satisfactory showing of financial ability to pay compensation, applies to all em- ployers, including cities and counties.®" § 33. Option of state insurance, private insurance, or self-insur- ance The present New York Act was intended to provide a state sys- tem of insurance,"' of employes engaged in hazardous employment 62 Ohio and West .Virginia. «3 California, Colorado, Maryland, Michigan, Montana, New York, and Pennsylvania. 84 Massachusetts and Texas. 8B Alaska, Arizona, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Minnesota, Neibraska, New Hampshire, New Jersey, Okla- homa, Khode Island, Vermont, and Wisconsin. 68 Section 42 of the Iowa Act requires that all employers under that Act Insure their liability in some insurance company approved by the state depart- ment of insurance, and provides that, if they do not, they shall be liable as if they had rejected the Act (Code Supp. 1913, § 2477m41) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 13. But section 50 further provides that this insurance will not be required where the employer furnishes satisfactory proof to the insurance department and industrial commissioner that he is solvent and financially able to make the payments of compensation when necessity arises (Supp. to the Code, 1913, § 2477m49), or where he deposits satisfactory security with the department. Id. All employers must do one or the other, if they expect to avail themselves of the provisions of the Act (Code Supp. 1913, §§ 2477m41-2477m49) Id. p. 3. Cities must carry insurance, or be relieved therefrom by Industrial Commissioner and Commissioner of Insurance. (Code Supp. 1913, tit. 12, c. 8a, §'2477m41) Id. p. 7. 8T (Const, art 1, S 19) Winfield v. New York Cent. & H. R. R. Co., 168 App. Dlv. 351, 153 N. Y. Supp. 499. § 33 workmen's compensation 140 and to provide in connection therewith a system of indemnifica- tion of the state."^ It does not contemplate an accumulation of surplus profits to be derived from the assignment of causes of action for personal injuries."" To understand the real purpose of •this Act, the provisions for selfrinsurance and insurance carriers other than the state fund should be treated as makeshifts, adopted for the employer's convenience, and not be permitted to in any way infringe on the real spirit of the Acf' An employer who be- comes a self-insurer in effect takes the place of the state fund, and his liability ceases to be strictly that of an employer, and becomes that of an insurer. He has taken the place which the statute pri- marily intended that the state fund should take, and necessarily assumes corresponding liabilities.''^ Likewise the fact' that an em- 68 (Wk. Comp. Law, §§ 93-97) United States F. & G. Co. v. New York Rys. Co., 93 Misc. Rep. 118, 156 N. T. Supp. 615. 69 This is made evident by an examination of section 95, wliich provides that the premium rate shall be "the lowest possible rate consistent with the maintenance of a solvent state insurance fund and the creation of a reasonable surplus and reserve; and for such purpose [the Commission] may adopt a system of schedule rating in such a manner as to take a count of the peculiar hazard of each individual risk," and section 96, which permits the formation of employers' associations for accident prevention, and provides that "every such approved asso«lation may make recommendations to the Commission concerning the fixing of premiums for classes of hazards, and for individual risks within such group," and also section 97. United States F. & G. Co. v. New York Rys. Co., 93 Misc. Rep. 118, 156 N. Y. S. 615. This is not a law fixing liability for negligence, or fixing liability upon or creating a cause of action against the employer, but is in substance a provision that the state will make compensation to injured employfis in hazardous employments from what it has collected or secured from them. It is a state system of insurance. No liability other than the premiums is imposed on the employer except by way of penalty. (Wk. Comp. Law § 21) Winfleld v. New York Cent. R. R. Co., 168 App. Dlv. 351, 153 N. Y. Supp. 499. 70 Id. 71 Id. The risks and changes of business are such that the ordinary individual or firm cannot qualify -as a self -insurer. The large corporations whose continu- ous existence is assured, or who are able to deposit the securities required. 141 PERSONS AND FUNDS LIABLE § 34 ployer makes a sufficient showing of financial ability to pay the required compensation and deposits the required securities, there- by becoming its own "insurance carrier," does not relieve it from liability for compensation for which a stock corporation or mutual association would have been liable, had it been the insurer.''' Where an employer has insured in the New York state fund, the insurance premium rests on the basis that, when at work -for his employer, the employe is to be engaged in the hazardous em- ployment all the while, and the premium having been exacted on that basis, prima facie the loss should be met on that basis.' ^ This law should be strictly construed, so as to give to the employe and employer alike the protection intended, and to cast on the fund the burden equitably resting upon it. The state, having compelled the employer, under heavy penalties, to pay to it his money on the promise that it. will protect him from loss on account of injuries incurred in the employment, must be held strictly to its obliga- tion.'* § 34. Rights and liabilities of insurance companies Under a provision that no payment of insurance shall be made unless the same shall cover the entire liability of the employer, can qualify as self-insurers. In effect, tlierefore, the law requires that the ordinary individual and firm, and perhaps the great mass of employers, must insure in the state fund or otherwise. The law, therefore, should be con- strued on the theory that it contemplates insurance in the state fund and employers who insure in the state fund or otherwise, or who are self-insurers, should fairly be governed by the same rule. It is the right of the individual employe and of the employer that they should be treated the same as all other employes and employers within the act. McQueeney v. Sutphen & Hyer, 167 App. Div. 528, 153 N. Y. Supp. 554 ; Spratt v. Sweeney & Gray Co., 168 App. Div. 403, 153 N. Y. Supp. 505. 72 (Laws 1913, c. 816) Kenny v. Union By. Co., 166 App. Div. 497, 152 N. Y. Supp. 117. T3 McQueeney v. Sutphen & Hyer, 167 App. Div. 528, 153 N. Y. Supp. 554. Tild. § 34 workmen's compensation 142* and that every contract for the insurance of compensation or against liability therefor shall be deemed to be made subject ta the requirements of the Act and provisions inconsistent therewith shall be void, an insurance company is given no greater rights- than the employer. For example, a reasonable agreement made in good faith between tjje parties for the payment of a lump sum not inconsistent with the amount of the periodical payments pre- viously determined, will bind the insurance company equally with the employer, and the company cannot block a settlement by ob- jecting to payment in a lump sum merely because it was not con- sulted.'"' The provision of the Connecticut Act requiring that in- surance policies "shall cover the entire liability of the employer thereunder" does not mean the entire liability of the employer named in the policy, but his entire liability within the terms of the business described in the policy. Hence a policy describing the employer's business as operating a farm will not sustain an award thereunder to an employe engaged in painting a building several miles from the farm and not connected in any way with the farm- ing operations.''" While a policy should be liberally construed to- cover employes reasonably within its terms,^' a policy of insurance against liability under the California Act will not be extended ta cover any employes or departments of the employment not listed in the policy.'" But where a policy purports to insure against all lia- 7B BaUey v. U. S. Fidelity and Guaranty Co., 99 Neb. 109, 155 N. W. 237. 76 Wright V. Barnes, 1 Conn. Comp. Dec. 248 (superior court reversing com- missioner). It A company which had insured merchant tailors against liability under the Massachusetts Act was held liable to an Independent contractor's employe, who was injured while making clothing for such merchant tailors in their workshop, though no insurance was carried by the independent contractor. (St. 1911, c. 751, pt. 3, § 17) In re Sundine, 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318. 7 8 Where the policy of insurance covers injuries to "laundry help," but no^ mention is made of carpenters employed by the laundry for outside work,, carpenters are not included. English v. Cain, 2 Cal. I. A. O. Dec. 399. Where a policy issued to a water company provided that It would not cover tunnel 143 PERSONS AND FUNDS LIABLE § 34 bility arising under the Act, whether for injuries to employes or for injuries to employes of subcontractors, and where no limitation of liability is set out in the policy in large type as prescribed by the Act, such policy protects the employer against accidents to em- ployes of subcontractors, even though a statement be contained in the schedule of estimated pay roll to the effect that no work was being done by subcontract at the time the policy was taken out/* A breach of a warranty made in the policy may release the insurer from its obligations to pay the compensation awarded against the employer.*" An insurance company can succeed in escaping liability under a policy issued by it on the ground of cancellation only by proof that it followed the statutory method literally or at least, if this is not done, that the statutory notice was in fact received by the in- sured.'^ The fact that the insurance carrier is, subsequent to the suffer- ing of the injury, deprived of its right to further transact such in- surance business in the state, cannot be held to deprive the em- work and an employs was accidentally killed while working in a tunnel, the insurance company was not liable, notwithstanding a provision that the policy should cover accidents arising in connection with work not specifically sched- uled but more hazardous than that scheduled. Robinson v. Durfy, 2 Cal. I. A. C. Dee. 1060. T» (Wk. Comp. Act, § 35 [a]) Walker v. Santa Clara Oil & Development Co., 2 Cal. I. A. C. Dec. 1. 80 Where the policy provides that the statements set forth in the schedule are warranted by the employer to be true, and one of the statements is "that no person is or wUl be employed by the assured in violation of law as to age," and thereafter the employer Innocently or willfully employs, in violation of law as to age, a minor who is injured in the course of his employment, the insurance carrier is not liable. Stanton v. Masterson, 2 Cal. I. A. 0. Dec. 707. 81 Miner v. TurnbuU, The Bulletin, N. Y., vol. 1, No. 6, p. 21. Where the employer was under the Impression up to the day of the accident that he was protected by insurance, and the insurer knew that its notice of cancellation had not reached him, its claim that it had canceled the policy could not be sustained, and an award was made against both employer and insurer. Skoczylois v. Vinocour, The Bulletin, N. X., vol. 1, No. 6, p. 14. § 34 workmen's compensation 144 ployer of the right to make any service of notice upon it that is essential to full compliance with the terms of the statute.'^ Under the Michigan Act, the insurance carrier is directly liable to the injured workman or his dependents, and the Board has author- ity in making its award to determine and fix the liability of the § 35. Substitution of parties, ^subrogation and reimburse- ment The provision of the California Act that any "employer" who is insured at the time of an accident may, after serving notice upon the insurer and employe, and filing a copy of such notice with the Commission, be dismissed from the compensation proceedings, and the insurer substituted as defendant,'* includes principals as well as immediate employers. Consent by the insurer to such substi- tution is not necessary.'" The statute must however,- be complied with. An unsigned notice of substitution is ineffectual.*' Acceptance of compensation from the insurance carfier by the injured employe does not estop him from denying notice of sub- stitution.'^ The subrogation to the rights of the employer, which is provided for by this Act in favor of the insurer, acts automatically on the happening of the accident. The insurer may at once succeed to all the rights and duties of the employer, including the right to direct that the injured employe change physicians and submit to medical treatment furnished by the insurer." However, the in- surer can exercise no control over the medical treatment until it 82 Welser v. Industrial Accident Commission of State of California (Cal.) 157 Pac. 593. 8 8 Opitz V. Chas. Hoertz & Son, Mich. Wk. Comp. Cases (1916), 311. 84 Wk. Comp. Act Cal. § 34, (e), subd. 2. SB Turner v. Oil Pumping & Gasoline Co., 2 Cal. I. A. 0. Dec. 496. se Frandsen v. J. Llewellyn Co., 3 Cal. I. A. 0. Dec. 23. 87 Id. 88 Hotchkiss V. Boter, 2 Cal. I. A. C. Dec. 51. 145 PERSONS AND FUNDS LIABLE § 36 has either paid the compensation for which the employer was liable, or has assumed the employer's liability by giving notice of such assumption to the employe and the Commission.*' Where the insurance carrier of the principal or general contractor has paid compensation to an injured employe of the subcontractor be- lieving him to have been directly employed by the assured, and the carrier has not insured the principal or general contractor for injuries to employes of subcontractors, but only for injuries to their own employes, the insurance carrier is entitled to an award against the subcontractor for reimbursement equally as if it were liable under its policies for the compensation.'" § 36. Premiums The fact that the insurance carrier trusts the assured for pay- ment of the premiums, instead of collecting the amount thereof when the policy is delivered, cannot be permitted to jeopardize the rights of injured employes,"^ and hence failure of the employer to pay the premium on his policy does not relieve the insurer from liability, if the policy was in effect at the time of injury.'- Wheth- er the employer's failure to pay an insurance premium, and for- feiture of his insurance, will deprive an employe of his remedy against the insurer, depends on whether the employer's default was before or after the injury.'^ That he has evaded contribution to s» Wk. Comp., etc., Act, § 34 (f), (e) (1); MuUan v. Kogers, 2 Cal. I. A. C. Dec. 927. 80 Wk. Comp., etc., Act, § 30 (c) ; Hattan v. Hattan, 1 Cal. I. A, C. Dec. 324. 81 Graves v. Pacific Coast Casualty Co., 2 Cal. I. A. C. Dec. 22. »2 A policy becomes effective on tbe delivery on the date when, by its terms, it is to go into effect. Where a policy is Issued to go into effect upon certain date, and no deposit premium is exacted, and an accident occurs to an em- ploy6 of the assured after such date, the insurer is liable, regardless of non- payment of premium. Lakos v. Pacific Coast Casualty Co., 2 Cal. I. A. C. Dec. 21. »3 The employers of an injured workman having gone into bankruptcy, he claimed against their insurers. Although later the employers defaulted by HON.COMP. — 10 § 36 workmen's compensation 146 the state fund does not, however, bar his employes from receiving compensation from the fund.°* An agreement exacted or voluntarily obtained from an employe by the employer, obligating the employe to pay premiums on insur- ance against risks covered by a Compensation Act, is void as against public policy, ftotwithstanding a provision of the Act au- thorizing an agreement under which the employe pays premiums on insurance against risks not covered by the Act.°° But contribu- the nonpayment of a call, and ceased to be "entitled to any Indemnity in re- spect to any accident," tbe insurers were liable to the workman. DafC v. Mid- land Colliery Owners' Mutual Indemnity Co., Ltd. (1913) 6 B. W. C. C. 799, H. L. ; (1912) 5 B. W. C. O. 67, C. A. Where the employers of an injured workman had defaulted in their insurance and no longer had any claim upon the insurance company, the company was not liable to the workman upon a suit brought by him against them in consequence of his employer's bankruptcy. Northern Employers' Mutual Indemnity Co., Ltd., v. Kniveton (1902) 18 T. L. R. 504, Div. Ct., 4 W. C. C. 37 (Act of 1897). 9* The injured employes of a defaulting employer are to be compensated even when the employer fails or refuses to report. (Wk. Comp. Act Wash. § 8). Rulings Wash. Indus. Inc. Com. 1915, p. 19. Loaders and unloaders of tramp ships and other vessels are entitled to compensation from the funds of class 42 when they are injured, even though the owner or master has evaded con- tribution to the fund. (Wk. Comp. Act Wash. § 4, class 42) Id. p. 13. An in- jured employ^ of a defaulting employer may receive an award for injuries, even though excluded from the pay roll; demand on. the employer or listing the workman is not a condition to payment of compensation. (Wk. Comp. Act Wash. § 8). Opinion Atty. Gen. Feb. 1, 1912. 95 Section 31a of the Minnesota Act provides that "it shall be lawful for the employer and the workman to agree to carry the_risks covered by part 2 of this Act in conjunction with other and greater risks and providing other and greater benefits such as additional compensation, accident, sickness or old age insurance or benefits, and the fact that such plan involved a contribution by the workman shall not prevent its validity if the employer pays not less than the cost of the insurance of the risks otherwise covered by part 2 of this Act, and the workman gets the whole of the additional compensation or ben- efits." Gen. Laws 1913, c. 467, § 31a (Gen. St. 1913, § 8227). This provision simply authorizes the employer and workman to insure the workman for something which he could not recover under the Workmen's Compensation Act, and the premium for such extraordinary insurance could be deducted, with the consent of the workman, from his wages, but on any insurance against 147 PERSONS AND FUNDS LIABLE § 37 tions by employes to a hospital fund, or funds to provide resident physicians in remote camps, and to procure first aid and competent care in sickness and injury, a.pe not prohibited by a provision mak- ing it unlawful for the employer to deduct his premiums from the wages of the employes."" That the Compensation Act, under which insurance is taken out, is declared unconstitutional after expiration of the policy, will not prevent recovery of unpaid premiums.*^ § 37. State insurance Payment of a premium into the Ohio -state insurance fund has no retroactive effect, so as to relieve an employer from, a direct lia- bility accruing prior to such payment.*^ Under the Washington Act, an employer who defaults in the payment of any premium is in default in all of his operations.'^ The hazard of the business or enterprise determines the application of this Act, rather than the degree of hazard to which the individual any accident mentioiied in part 2 oif the Act the employer would have no right or authority to collect from the workman a sufficient amount to pay the pre- mium, and any agreement that might be forced from or voluntarily obtained from the workman to pay any premium on accidents covered by the Workmen's Compensation Act would be void as against public policy. Op. Atty. Gen, on Minn. Wk. Comp. Act, Bui. 9, p. 11. 98 (Wk. Comp. Act Wash. § 4) Kulings Wash. Indus. Ins. Com. 1915, p, 10. As to administration of Washington Act, see § 11, ante. 8 7 New Amsterdam Casualty Co. v. Olcott, 165 App. Div. 603, 150 N. T, Supp. 772. 88 In a case under the Ohio Act the Industrial Commission held that an em- ployer who was not a subscriber to the state insurance fund prior to January 1, 1914, and who failed to pay his premium into the fund until May 2, 1914, was in default from January 1, 1914, until the date of such payment, and that the payment had on retroactive effect, and that therefore the employer was liable to pay compensation direct to injured employSg and the dependents of those killed, on account of injuries or death occurring between January 1, 1914, and May 2, 1914. Biddinger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio -Indus. Com. p. 70. 89 (Wk. Oompi Act Wash. § 8) Rulings Wash. Indus. Ins. Com. 1915, p. 18. § 37 workmen's compensation 148 workman is subjected. Hazardous departments are the unit of contribution, even though embracing employes who are rarely in danger of injury.^ This Act divides employments into forty- seven different classes, and the amount of the premium each employ- er must pay is based uoon whatever class he is in.^ When the 1 (Wk. Comp. Act Wash. § 4) Op. Atty. Gen. Sept. 8, 1911. 2 Class 1 of "Construction Work" includes all underground work of what- ever character in connection with sewer construction, includes tunneling and shafting and work at the entrance thereof, and also such work in open trench- es exceeding six feet in depth, but does not include excavations. (Wk. Comp. Act Wash. § 4, class 1) Rulings Wash. Indus. Ins. Com. 1915, p. 10. The ab- sence of power driven machinery does not exempt occupations named in this class, nor does the small number of employSs engaged, nor the short time re- quired to accomplish the work. Id. p. 7. Class 9 is construed as continuously operating plants or factories instead of construction or contracting enterpris- es,- and exempts from automatic continuous monthly assessment. Id. p. 11. Class 13 does not include elevators and individual steam heating plants in office buildings, hotels, apartment houses, residences, retail and wholesale stores. Opinion Atty. Gen. Wash. Sept. 8, 1911. "Telegraph and telephone sys- tems" (class 15) includes line and repair work, but excludes telegraph and tele- phone operators. Rulings Wash. Indus. Ins. Com. 1915, p. 11. "Coal mines" (class 16) includes shaft sinking in connection with coal mines, and excludes only the ofQce force. Id. "Mines other than coal" (class 17) includes shaft sinking in connection with mines other than coal. Id. p. 12. "Quarries" (class 17) includes stone-cutting when such operations are conducted on ter- ritory contiguous to and subject to quarry operation hazard. Id. "Gas works" (class 19) excludes meter readers, complaint men, solicitors, storeroom employSs, and chauffeurs. Id. "Grain elevators" (class 21) includes flouring mills (2 per cent.) ; grain warehouses, chop and feed mills (2 per cent.) ; operation of wholesale warehouses operated independently or in connection with another business ; teaming operation of transfer companies ; operations in retail lumber yards with or without machinery ; and all operations of re- tail fuel yards ; but excludes threshing machine and hay baling outfits, with- out machinery. Id. "Laundries" (class 22) excludes hand laundries, but oth- erwise only the office force. Id. Class 34 includes beveling glass (2% per cent, rate), sheet metal aind tin shops, whether equipped with hand, foot or mechanical power. Id. Class 35 includes the manufacture of glass jars, in- sulators, etc. Id. "Working in food" (class 39) includes candy and cracker factories, but excludes the office force of all factories in the class. Id. p. 13. Class 41 includes linotype compositors, proofreaders, and foremen in the room with machinery or shafting, and excludes bookkeepers and office force and hand engravers not in a room with machinery. Id. "Stockyards and 149 PERSONS AND FUNDS LIABLB § 37 funds of any particular class are insufficient to pay an award the Commission will certify and the state auditor will issue warrants to be cashed by the individual employer.^ The legislative intent is that each of the forty-seven funds shall be automatic and self^ adjusting. The rate is fixed; time of payment varies with the need. The actual premium (percentage of pay roll) cannot, how- ever, be determined in advance.* Since student trainmen are entitled to compensation if injured during the period of their stu- dentship, the employer is required to make contribution on an amount equivalent to the average rate of pay for such work." A bonus system prevailing in connection with logging operations is regarded as additional compensation to employes and should be added to the pay roll.* After December 31st of each year, whether the contributor operated at full capacity, with reduced force, on part time, or not at all, a credit found to exist is available for further assessments, or cash refund where the business ceases.'' Whenever packing houses" (class 43) Includes teaming in connection with stockyards and packing houses, but excludes retail meat markets and delivery wagons. Id. Class 44 includes ice wagon drivers and helpers, but excludes refrigera- tors of retail meat markets. Id. "Theater stage employes" (class 45) includes moving picture operators. Id. The following occupations have been ruled outside the act: Operating and maintaining of elevators and individual steam heating plants in office buildings, hotels, apartment houses, residences, and retail stores, and farm baiids grubbing stumps, even with blasting powder, as an incident to the business of farming. (Wk. Comp. Act Wash. § 4) Id. p. 13. 8 (Wk. Comp. Act Wash. § 5) Id. p. 16. * Id. p. 9. The premium of any establishment given an average rate Is credited pro rata to the respective classes represented by the department pay- rolls. Id. p. 13. After the 31st day of December of any year the actual pay roll of each establishment is obtained, and all contributions made during the year are adjusted to aie many twelfths of such actual pay rolls as there have been monthly assessments paid into the fund during the year. (Wk. Comp. Act Wash. § 4) Id. p. 9. 5 (Wk. Comp. Act Wash. § 5) Id. p. 16. « (Wk. Comp. Act Wash. § 4) Id. p. 13. T Id. p. 9. § 37 workmen's compensation 150 a special assessment is ordered on any particular class under this Act, the basis is the average monthly pay roll determined by reports on file in the Commission's office.* A new establishment is required to " contribute an initial premium on an estimated three months' pay roll, but is omitted from the list specially assessed for such nionths, except on the difference between the estimated and actual pay rolls." Claims for contributions to the Washington state fund are not en- titled to any priority over a mortgage debt.^* The phrase "at the end of the year," within a provision of this Act that payment ac- counts shall be adjusted at the end of the year, necessarily contem- plates the allowance of a reasonable time after the end of the year for the examination of the pay rolls and proofs in order to make adjustment.^^ The power given to make demand for a payment ■due the accident fund from an employer necessarily contemplates the power to allow a reasonable time after notice of demand for compliance. ^^ Thirty days has been held not unreasonable.^* § 38. Excessive contributions and credits Excess contributions collected under the Washington Act on any estimated pay roll over the proper premium on the actual pay roll stand as a credit to the contributor at the, end of the year adjust- ment, and such contributor is entitled to exhaust such credit be- fore making further payments into the accident fund.^* Where an establishment contributes as an operating concern under one 8 Id. p. 9. aid. 10 Mississippi Valley Trust Co. v. Oregon-Washington -Timber Co. (D. O.) 213 Fed. 988. 11 Barrett v. Grays Harbor Commercial Co. (D. C.) 209 F^d. 95. 12 Id. 18 Id. 1* (Wk. Comp. Act Wash. § 4) Rulings Wash. Indus. Ins. Com. 1915, p. 9. 151 PERSONS AND FUNDS LIABLE § 39 class and afterwards performs construction work necessitating pay- ment into funds of another class, the operating plant being shut down meantime, transfer of credits on the books of the Commis- sion will be made.^" Contributions made to the insuran.ce fund un- der a misapprehension of the scope of the Act will be promptly refunded.^* The provision of this Act that "any class having sufficient funds credited to its account at the end of the first three months, or any month thereafter, to meet the requirements of the accident fund, that class shall not be called upon for such month," does not seem equitably to apply to owners and contractors in construction work, as continuous monthly contribution is required to place operators in such work on the same competitive plane.^' § 39. Public work Payments into accident fund for public work under the Washing- ton Act are to be made out of the treasury of the city, county, school, port, drainage, or taxing district; abstracts of contractors' pay rolls, as well as of the direct employes in hazard, are to be forwarded to the insurance department monthly. Contractors in such work are required to file their pay rolls monthly with the city, county or district.^^ Where public work of a city is done by contract, the city may collect from the contractor such sums as it is obligated to pay the accident fund on account thereof,^* or this sum may be retained from an amount due the contractor.^" In the case of such contracts, the state may wait until the contracts are completed before attempting to collect payments and may then cal- iB Id. p. 10. 16 (Wk. Comp. Act Wash. § 4) Id. p. 13. 17 Id. p. 9. 18 (Wk. Cqmp. Act Wash. § J.7) Id. p. 22. 19 State V. City of Seattle, 73 Wash. 396,. 132 Pac. 45. 2»Id. § 40 workmen's compensation 152 culate the percentages on the actual pay rolls during the period of the contractors' liability. Failure to collect the premiums in ad- vance of the actual work does not constitute a waiver of the right to collect same.^^ District auditors of the Insurance Commission, under the Washington Act, endeavor to audit pay rolls of city con- tractors quarterly in addition to making final audit when the Com- mission is notified of the completion of a public contract.'"' No distinction in the rate of assessments under this Act can be made between contractors, or others, in public or private work. The same premium and necessity of contribution apply, determined by the pay roll of employes, hazard, accident experience of the class, and the sound discretion of the insurance department.'^* § 40. Pension roll and reserve fund Under the Washington Act, the regular "pension roll" is certified to the state auditor for payment on the ISth of each month, and warrants are mailed on the ZOth."* The reserve to be set apart is the present value of the series of monthly payments to be made.^" The theory is that "the industries of to-day shall provide for the accidents of to-day." The reserve to guarantee the continuance of the pensions provided, "set apart for a beneficiary over thirty years of age, should be the proportionate part of $4,000, determined by the relation of the expectancy of the life of the beneficiary to the expectancy of one thirty years of age." "" To the reserve of a widow is added a reserve for children under 16, but not to exceed $4,000 set apart "for the case." ^' Where a class has insufficient 21 Id. 22 (Wk. Comp. Act Wash. § 17) Rulings Wash. Indus. Ins. Com. 1915, p. 23. 23 Id. p. 23. 24 (Wk. Comp. Act Wash. § 5) Rulings of Wash. Indus. Ins. Com. 1915, p. 14. 2 (Wk. Comp. Act Wash. § 5, Subd. [3]) Opinion Atty. Gen. Jan. 9, 1912. 26 (Wk. Comp. Act Wash. § 16) Id. arid. 153 PERSONS AND FUNDS LIABLE § 40 funds to permit the setting aside of the proper reserve, pension payment shall nevertheless be paid so long as any funds are avail- able in the class. In such a case monthly assessments shall be called until a reasonable fund is accumulated.*' as Rulings Waslu Indus. Ins. Com. 1915, p. 18. § 41 workmen's compensation 154 ARTICLE III THIRD PERSONS (INDEMNITY AND SUBROGATION) SectioE I 41. In general. ■' 42. CaWfornia — Exercise of option. 43. Massachusetts. 44. Minnesota. 45. New Jersey. 46. New York. 47. Washington. 48. Wisconsin. In general §41. Under Acts following the English Act in respect to injuries- which arise out of and in the course of employment, and create a le- gal liability ort the part of a third person to pay damages, for in- juries caused by his negligence or fault ^° without combining with any negligence of the employer or. fellow workmen of the injured 2 9 Where a workman hired by the owners of a warehouse was working at noon on the top story, and the men occupying the building closed ^t with- out allowing him sufficient time to get out, with the result that he fell down an insufficiently guarded hatchway, which was dark, there was a breach of their legal obligation to the workman as a licensee, and consequently they were liable to indemnify the owners. Dickson v. Scott, Ltd. (1914) 7 B. W. C. O. 1007, C. A. Where a colliery company delivered its coal at the side of the ship in its own trucks according to its contract, and a' gang of stevedores hired by the harbor authorities then loaded the coal from the trucks onto the ship, and one of the stevedores, being injured because a brake did not work properly, obtain- ed compensation from his firm, the colliery company was not liable to indem- nify the stevedore firm, since they owed no duty to the man who was injured. Kemp & Dougall v. Darngavil Coal Co., Ltd. (1909) S. C. 1314, Ct of Sess. Where a horse which was teinporarily standing in the yard of an employer kicked one of his workmen and killed him, but there was no evidence of negligence, the third parties who owned the horse were not liable. Bradley V. Wallaces, Ltd. (Thompson, McKay & Co., Ltd., third parties), (1913) 6 B. W. C. O. ,706, 0. A. 155 PERSONS AND FUNDS LIABLH § 41 employe," damages and compensation, though coeicteiisive, are strictly alternative and an employe's recovery of one bars him from recovering the other.'^ Though he may proceed concurrently against the person liable for compensation and the third person, he cannot recover both compensation and damages. If he recover compensation, the person paying the same is entitled to be in- demnified by the third person '^ in the sum paid out,*' including 80 There is no liability to indemnify if the Injury was due to the com- bined negligence of the employer and the third person. Cory & Son, Ltd., V. France, Penwlck & Co., Ltd., [1911] 1 K. B. 114, C. A. 81 The action of an injured workman against a third party for damages for pain and suffering was barred by a former recovery of compensation from his employer. Tong v. Great Northern Ey. Co. (1902) 4 W. C. C. 40, K. B. D. The action of a collier for damages against a railroad company, by whose negligence he had been injured, was barred where he knowingly accepted compensation from his employers. Woodcock v. London & North Western Ry. (1913) 6 B. W. C. C. 471, K. B. D. • Where an employs working on the streets is injured by a street car and thereafter settles with the street car company, releasing it from liability in consideration of a payment made, such release relieves the employer from all obligation to compensate the employe. Section 31 gives the employs his elec- tion either to claim compensation from the employer or to prosecute his claim for damages against the third party causing the injury. An election to accept either course bars the other remedy. Silva v. Kopperud, 2 Cal. I. A. 0. Dec. 631. As to election of remedies, see § 208, post. 82 The right of action of a workman's widow for the wrongful death of her husband, against the person causing such death, passes to the city, his employer, where such 'city has paid full compensation under the Act, and the city may do with such right as it chooses. Saudek v. Milwaukee Electric Ey. & Light Co. (Wis.) 157 N. W. 579. 33 If compensation is accepted, the association or insurer is subrogated to the rights of the injured employS. Tumqtuist v. Hannon, 219 Mass. 560, 107 N. E. 443 ; Barry v. Bay State St. Ey. Co., 222 Mass. 366, 110 N. E. 1031. Where the injury to a workman is caused by the act of a third party, mak- ing him legally liable, and the employe recovers under the compensation act against the employer, the employer is then subrogated to the employe's rights, so that he may recover from the third party the amount he has paid the em- ploye on account of the injury, but he cannot recover more than he has paid. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 32. § 41 workmen's compensation 156 doctor bills,^* costs of arbitration,'' and the like. The third person in such case may be a fellow workman.'* Where a workman re- ceives money payments from the third person, he has recovered damages from him, barring his right to recover compensation, though there has been no acknowledgment of liability,'^ or suit brought,'' and even though he has attempted to reserve his claim against his employer,'" and given receipts purporting to be "without prejudice." f Where an employe, without making claim 8* An employer, against whom there has heen a recovery for an injury caus- ed by the act of a third party, can recover from that party the amount the em- ployer has paid out for doctor Mils for the employ 6. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 33. SB Great Northern Ey. Co. v. Whitehead (1902) 4 W. C. C. 39, K. B. D. Where the driver of one of plaintiff's trucks was killed when, through the negligent management of defendant's driver, their truck collided with his, and the plaintiffs, after paying the driver's widow full compensation (£300), sued for this amount plus arbitration costs, they were entitled to recover the amount sought. Daily News, Ltd., v. McNamara & Co., Ltd. (1914) 7 B. W. C. C. 11, K. B. I>. 88 Two workmen, who by a breach of statutory rules caused the injury of a fellow workman, were not held subject to a fine, but were held liable to indemnify the employers. Lees v. Dunkerley Bros. (1911) 4 B. W. C. C. 115, H. L. ; Gibson v. Dunkerley Bros. (Lees & Sykes, third parties), (1910) 3 B. W. C. C. 345, C. A. 3 7 Page V. Burtwell, [1908] 2 K. B. 758, C. A. 8 8 The injury to a workman being due to the negligence of third persons, he was paid damages by them without being required to bring suit; his later proceeding which he brought was barred, and it was held that he had already "proceeded" against them. Mulligan v. Dick (John) & Son (1904) 6 F. 126, Ct. of Sess. (Act of 1897). 30 Where a workman received damages from the third party, although he did not resort to law, there being no admission of liability, and although he reserved "all claims against other parties," he was nevertheless barred from claiming compensation from his employers. Murray v. North British Ry. Co. (1904) 6 F. 540, Ct. of Sess. (Act of 1897). 4" The claim of an injured workman against his employers was held to be barred by his recovery of damages from a third party, notwithstanding the fact that his receipts to the third party were "without prejudice." Mulligan V. Dick & Son (1904) 6 F. 126, Ct of Sess. (Act of 1897). 157 PERSONS AND FUNDS LIABLE § 41 or instituting proceedings, reports the injury and receives full compensation, he has "recovered" compensation.*^ It has been held, however, that where all but the. first of the receipts given by an injured workman to his employer for weekly payments were marked "without prejudice," and he later declined the pay- ments and sued the third party for negligence, his option under the Act had not been exercised ; *'' also where the weekly payments of compensation paid an injured workman by his employers were accepted on the agreement that they would be paid back if he suc- ceeded against a third party, the workman had not recovered compensation.*' In a suit by an injured workman against third persons for negligence, after he had repaid money he received in weekly payments from his employer, saying that he did not under- stand the effect of the receipts he gave, which expressed that they were given for money received as compensation under the Act, it was a question for the jury whether he had recovered compen- sation.** That the dependent to whom the employer has paid com- pensation could not have recovered damages from the third person will not disentitle the employer to recover indemnity.*' Nor does it take away the right to indemnity that the compensation was settled by agreement of which the third party had no notice.*" *i Mahomed v. Maunsell (1907) 124 L. T. Jo. 153, 1 B. W. C. C. 269. *2 Oliver v. Nautilus Steam Shipping Co., Ltd., [1903] 2 K. B. 639, C. A., 5 W. C. C. 65 (Act of 1897). 43 Wright V. Linsay (1912) 5 B. W. C. 0. 531, Ct. of Sess. *4 Huckle V. London County Council (1911) 4 B. W. C. C. 113, C. A.; (1910) 3 B. W. 0. C. 536, Div. Ct *o Where employers, whose workman was killed by the negligence of serv- ants of a third party, paid compensation to his sole dependent, an illegitimate child, who could not have successfully sued the third party, they were entitled, on suit, to indemnity from the third party. Smith's Dock Co., Ltd., V. Redhead & Sons, Ltd. (1912) 5 B. W. C. O. 449. *e Thompson & Sons v. North Eastern Marine Engineering Co., Ltd. (1903) 5 W. C. O. 71 (Act of 1897). § 42 workmen's compensation 158 § 42. California — Exercise of option Where an injured employe knowingly, voluntarily, and while in possession of his faculties accepts from an employer full medical treatment for more than one month, including hospital treatment for two weeks, this coiwtitutes "the making of a claim for com- pensation" within the meaning of a provision of the California Act that the making of a lawful claim against the employer shall operate as an assignment to him of the employe's claim for dam- ages. The acceptance of emergency treatment for a short period of time is not, however, sufficient to constitute an election. *'^ Where an employe without having made a lawful claim for com- pensation settles with and releases a third person whose negli- gence caused the injury, he thereby extinguishes the third person's liability and destroys the employer's right of subrogation.** But after the employe makes a lawful claim for compensation . against his employer, the employer alone can settle with and release the thifd person, and any attempted settlement and release by the employe is void.** Where the employe has elected to take com- pensation from his employer, and while receiving same, but be- fore filing his application with the Commission, accepts money from the third person in full settlement of his claim for damages for negligence of such person, such payment does not take away the employe's right to compensation. °" *7 (Wk. Comp. Act, § 31) Silva v. Kopperud, 2 Oal. I. A. C. Dee. 631. *8 Lantis V. City of Sacramento, 2 Cal. I. A. O. Dec. 680. *9 Silva V. Kopperud, 2 Cal. I. A. C. Dec. 631. The Commission cannot credit an employer with payment received by injured employes on a settle- ment with the third person causing the injury, if the employe made a prior claim for compensation against the employer prior to the settlement. The payment, having been wrongfully made by the third person, cannot be perr mitted to impair the employer's right to proceed agajnst him and recover dam- ages. Id. ' sold. 159 PERSONS AND FUNDS LIABLE § 43 § 43. Massachusetts The Massachusetts Act does not import into its terms the equita- ble principle of subrogation; it merely provides that, where the insurer has given prompt relief to the dependents or the employe as required by the Act, it may enforce for its own benefits the rights against tortious third persons causing his injury, which would otherwise have been available to the employe or his repre- sentative.^^ This Act puts upon the insurer the burden of under- taking what in many instances might be litigation uncertain by rea- son of disputed facts or novel law, but gives the insurer all the ad- vantages of the right of action which in substance is assigned to it. Hence it is an immaterial circumstance how much the insurer may have paid or be liable to pay under the Act.^^ The rules of law applicable to executed contracts and to the doctrine of eq- uitable estoppel have not been abrogated, and an insurer, having acted in good faith and fully complied with the Act, should not be deprived of its rights."* Under this Act, the remedies, damages, and compensation cannot be pursued concurrently, and the choice post- poned until judgment has been recovered, and then, upon tender to the insurer of the amount of compensation received, the em- ploye collect the judgment."* The compensation provided by the death statute is in substance a penalty, and hence the Legislature had power to provide that Bi (Wk. Coinp. Act. pt. 3, § 15) Tumquist v. Harmon, 219 Mass. 560, 107 N. E. 443. said. 68 Barry v. Bay State St Ey. Co., 222 Mass. 366, 110 N. B. 1031. 64 (St. 1911, pt 3, § 15) Barry v. Bay State St By. Co., supra; Grace v. Adams, 100 Mass. 505, 507, 97 Am. Dec. 117, 1 Am. Rep. 131; Fonseca v. Cunard Steamship Co., 153 Mass. 553, 555, 27 N. B. 665, 12 L. R. A. 340, 25 Am. St Rep. 660; O'Regan v. Cunnard Steamship Co., 160 Mass. 356, 361, 35 N. B. 1070, 39 Am. St. Rep. 484 ; Atlas Shoe Co. v. Bloom, 209 Mass. 563, 95 N. E. 952; Colonial Development Co. v. Bragdon, 219 Mass. 170, 106 N. B. 633. § 43 workmen's compensation 160 one who has afforded prompt relief to the dependents of the de- ceased shall receive same."" Where, in an action against a railroad for injuries to a third person's employe, the defense was that plaintiff, by taking advan- tage of the Compensation Act, had estopped himself from recov- ering, he could not successfully set up his ignorance of such Act to bar enforcement of its provisions."* But where defendant in such case set up an agreement between plaintiff and liis employer, and alleged that same was filed and approved by the Industrial Acci- dent Board, plaintiff was entitled to show invalidity of the agree- ment and want of jurisdiction in the board because his signature was procured by fraud,"^ though it is intended by the Act to give agreements of settlement which have been duly filed and approved by the Board- the same effect as a decision of the Board."* § 44. Minnesota A section of the Minnesota Act which has been vigorously, but unsuccessfully, assailed is section 33, which provides for cases in which the employe is entitled to compensation for injuries which occurred under circumstances also creating a liability against a third party. In case such third party is also subject to the com- pensatory provisions of the Act (part 2), the employe may either recover from his employer the relief prescribed by the Act, or may bring an action against such third party, but cannot proceed against both. If he proceed against the third party, his recovery is lim- ited to the relief prescribed by the Act. If he takes compensation from his employer under the Act, the employer becomes subrogated to his right of action against the third party, and may recover the BO (St. 1911, c. 751, pt. 3, § 15) Tumqulst v. Hannon, 219 Mass. 560, 107 N. E. 443. 68 Barry v. Bay State St Ey. Co., 222 Mass. 366, 110 N. E. 1031. BT Id. B8 (St. 1911, c. 751, pt. 3, i 4, as amended by St, 1912, c. 571, § 9) Id. 161 PERSONS AND FUNDS LIABLH § 45 aggregate amount payable to the employe with costs, disburse- ments, and reasonable attorney fees. In case such third party is not subject to the compensatory provisions of the Act, the employe may sue him, without waiving any rights against the employer, and the damages recoverable are not limited to the relief prescribed by the Act; but, if the employe recovers from such third party, the employer is entitled to deduct, from the compensation payable by him under the act, whatever amount is actually received by the employe from the third party. In other words, if a sum equal to or exceeding the compensation payable under the Act, is actually collected from the third party, the employer is relieved from lia- bility; but, if the sum actually collected be less than the amount payable under the act, he must make good the deficiency. If, in- stead of prosecuting an action against such third party, the em- ploye collects compensation from his employer, the employer be- comes subrogated to the employe's rights against the third party, and may sue him for the damages sustained by the employe; but, after reimbursing himself 'for the compensation payable to the em- ploye, and for the costs, attorneys' fees, and expenses of collecting the damages, he must pay over to the employe any surplus re- maining of the amount collected."" The fact that the third per- son is an officer or agent of a corporation which is subject to the statute does not render the statute applicable unless the officer was acting in the course of his authority for the corporation, and to such an extent as to render the corporation liable for his act.*" § 45. New Jersey The right to compensation under the New Jersey Act of 1911 and the right to recover damages for tort are of so different a 59 Mathison v. MinneapoUs St. Ey. Co., 126 Minn. 286, 148 N. W. 71. Sec- tion 33 of the Workmen's Compensation Statute (Laws 1913, c. 467; Gen. St. 1913, § 8229), in respect to injuries to an employe, resulting from the act of a third person not his employer, has reference to cases where such third person e»Id. HON.COMP. — ^11 § 45 woekmbn's compensation 162 character that the employer has no right by way of subrogation to the workman's claim against the tort-feasor. By the amend- ment of 1913 the employer is only released when the employe re- covers of the tort-feasor a sum equal to or greater than the total payments for which the employer is liable, and the employer is only entitled to recover of the tort-feasor a sum equal to the amount of the compensation payments which he has paid to the injured employe or his dependents.'^ It does not militate against an ac- tion under this Act that the representative of decedent has a right of action against a third person.'" Where an employe was injured prior to the Act of 1913, through the negligence of one not his erhployer, under such circumstances as to entitle him to compensation from his employer under the Act of 1913, the employer could not recover from the third person for the compensation paid to the employe under the statute ; the statutory compensation being part of the compensation of the employe for services rendered." § 46. New York Where an employe is injured by the act of a third person in the course of his employment, he is entitled to claim compensation under the New York Act. The Legislature deemed it proper, however, that he be not allowed to recover compensation and at the same time recover damages. Accordingly provision has been made for the eifiployer's subrogation to the employe's rights. Un- der this provision, where the -employe claims compensation his cause of action against the third person is assigned to the state if is also subject to the compensation statute ; it has application where the third person is not subject to the Act. Hade v. Simmons (Minn.) 157 N. W. 506. 61 (P. L. 1913, p. 303) Newark Paving Co. v. Klotz, 85 N. J. Law, 432, 91 Atl. 91. 62 Bryant v. FisseU, 84 N. J. Law, 72, 86 AU. 458. 68 (P. L. 1913, p. 311, § 23^ P. L. 1911, p. 520) Interstate Telephone & Tele- graph Co. V. Public Service Electric Co., 86 N. J. Law, 26, 90 AtL 1062. 163 PERSONS AND FUNDS LIABLH § 46 the compensation is payable from the state insurance fund, and otherwise to the person liable for payment of the compensation. In other words, the party who has to pay or secure the statutory com- pensation can then recover the damages for which the third per- son is liable.** Such provision does not, however, prevent an em- ploye from suing the third person for damages, but recognizes his right to do so if he chooses. If he elects to do so, he can claim compensation under the statute only for the deficiency, if any, be- tween the amount collected from the third person and the com- pensation.®^ In this respect the New York Act differs from the Acts of many states, which merely give the employe an election whether to sue or to claim damages."" "Subrogation," within this Act, does not mean substitution, but means rather indemnification, and therefore limits the amount recoverable by the state or insur- er to the amount paid on the claim."^ It has been said to be a sig- 84 (Workmen's Compensation Act, § 29) Lester v. Otis Elevator Co., 169 App. Div. 613, 155 N. Y. Supp. 524, affirming 90 Misc. Kep. 649, 153 N. T. Supp. 1058. The receipt of compensation by an injured workman is an elec- tion subrogating the employer or insurer to the workman's remedies against an independent wrongdoer. Miller v. New York Rys. Co., 171 App. Div. 316, 157 N. Y. Supp. 200. 6s Id. The rights of the servant under this statute, and of the servant as an individual under the common law or the statutes, are alike remedies which are open to him. Matter of Jensen, 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Gas. 1916B, 276 ; MiUer v. New York Rys. Co., 171 App. Div. 316, 157 N. Y. Supp. 200. 6 6 Lester v. Otis Elevator Co., 169 App. Div. 613, 155 N. Y. Supp. 524, af- firming 90 Misc. Rep. 649, 153 N. Y. Supp. 1058. 8 7 CWk. Comp. Law, § 29) United States F. & G. Co., v. New York Rys. Co., 93 Misc. Rep. 118, 156 N. Y. Supp. 615. The clause, read in conjunction with the title of the section, does not necessarily import a right on the part of the insurer, under his assignment, to recover all the damages which the workman might recover if he elected to pursue his remedy against the third party tort- feasor, but only such recovery as is consistent with the purpose clearly defined In the title; i. e., the purpose of "subrogation." Lester v. Otis Elevator Co., 90 Misc. Rep. 649, 153 N. Y. Supp. 1058. Subrogation is defined in the Stand- ard Dictionary as follows: "The succession or substitution of one person or thing by or for another; In law, the putting of a person (as a surety) who § 47 workmen's compensation 164 nificant feature supportingf this construction of the statute that, notwithstanding the previous enactment of statutes in California, Connecticut, New Jersey, Massachusetts, and other states contain- ing provision for part payment to the injured employe, or for the re- tention in the state insurance fund of any surplus amount collected by the insurer in exces» of indemnification, no such provision is found in this Act.'* The reason for the statutory declaration as to election is founded upon the common-law rule that there should not be a double satisfaction for the same injury.'* Compensation received by an injured workman under the Act is not insurance such as will preclude a third person who has contributed to the in- jury from setting up the employe's election through receipt of the compensation and consequential subrogation of the employer or insurer to his right of action." § 47. Washington Under the Washington Act the Commission must await the ter- mination of suit before making any payment to a workman who is injured by a third person and elects to bring suit in lieu of ac- cepting compensation.''^ Workmen injured by third persons must has paid the debt of another In the place of the creditor to whom he has paid it, so that he may use for his own indemnification all the rights and remedies that the creditor possessed against the debtor." "The insurer, upon paying to the assured the amount of a loss, • * * insured is doubtless subrogated in a corresponding amount to the assured's right of action against any other person responsible for the loss." St Louis, etc., R. Co. V. Commercial Union Ins. Co., 139 tJ. S. 223, 235, 11 Sup. Ct. 554, 557, 35 L. Ed. 154. 68 Id. 89 Walsh V. N. Y. C. & H. E. R. R. Co., 204 N. T. 58, 62, 63, 97 N. E. 408, 37 L. R. A. (N. S.) 1137; Gambling v. Haight, 59 N. Y, 354; Miller v. New York Rys. Co., 171 App. Div. 316, 157 N. Y. Supp. 200. 70 Miller v. New York Rys. Co., supra. ii (Wk. Comp. Act Wash, § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. 165 PERSONS AND FUNDS LIABLH § 48 assign their right of action to the state as a condition of receiving compensation from the accident fund.^* § 48. Wisconsin The right of action which the employer has under the Wisconsin Act against a third person whose wrongful act caused, the injury is an incorporeal thing, resting in action — ^remediable by an ordinary judicial remedy, as distinguished from a thing in possession. It will survive,'' and may be assigned by the employer so as to give the assignee a right to sue thereon in his own name.''* Thps it will be seen that an ordinary claim for damages for a tortious in- jury to the person, notwithstanding it was otherwise at common law, is a property right which may pass by assignment or op- eration of law, with the incidental right to a judicial remedy, by and in the name of the real party in interest, to enforce it. That is the thing which, under the Act, in the circumstances there men- tioned, is waived or becomes possessed by the employer, according to the facts.'* The legislators seem to have contemplated that, equitably, a wrongdoer is the one primarily liable ; that the statu- tory right of the injured man shall work for the wrongdoer's pro- tection, but if insisted upon, the other right shall pass to the em- ployer as an equivalent. The idea was not that the employer should become possessed of the common-law right .for mere purposes of indemnity. That seems plain, because of the transition not waiting upon actual payment of the statutory claim, or the enforcement of such common-law claim being limited to the measure of the em- ployer's payment to discharge the statutory liability. In the cir- cumstances mentioned in the statute, the rights of all persons be- come fixed upon the event of the employe, by action in legal form, 72 Id. 73 McGarvey v. Independent Oil & Grease Co., 156 Wis. 580, 146 N. W. 895. T4ld. " (Gen. St. 1913, S 2394—25) Id. § 48 workmen's compensation 166 making a choice between the two ways open to him. That against the employer being chosen, that against the wrongdoer immediate- ly passes, by operation of law, to such employer. The status, ac- cording to the statute, is as follows : The sole source ^of compen- sation for the employe is the employer, but without prejudice to the liability of the wrb%doer, he remaining answerable just the same, but to the then real party in interest, the employer.''" In cases under this Act it has been held that the fact that a fireman, injured on a city street and not on his employer's premises, receives full pay during his disability, does not assign to the city his right of action against a third person who caused theinjury; '''' also that where an employe, ignorant of his rights, goes to see, the assistant city attorney, and is advised that he has been injured while per- forming service outside his duties, the attorney not intending to mislead him, and then decides to accept a sum offered him by the third party whose horses injured him, he has not exercised such election to waive compensation and accept damages as will bar his action against the city, his employer.''* 76 Id. 77 Homburg v. Morris (Wis.) 157 N. W. 556. 78 Manis v. City of Milwaukee, Bui. Wis. Indus. Com. 1912-13, p. 29. 167 PERSONS ENTITLED TO COMPENSATION § 49 CHAPTER IV PERSONS ENTITLED TO COMPENSATION Section 4&-e9. Article I.— Employes. 70-84. Article II. — Dependents. ARTICLE I EMPLOTfeS Section 49. Persons entitled to compensation as employes. 50. New York. 51. Contract of service. 52. State employes. 53. Municipal employes. 54. California. 55. Federal employes. 56. Previous health of employS. 57. Minor employes. 58. Employes excepted. 59. Farm laborers. 60. Domestic and household servants. 61. Clerks. 62. Casual employes. 63. Connecticut. 64. California. 65. Iowa and Minnesota. 66. Independent contractor. 67. Federal Act. 68. Employe of independent contractor. 69. Officers. § 49. Persons entitled to compensation as employes The test by which to determine whether one person is another's employe, within the rule making the employer liable for injuries re- sulting from the negligence of his employe, is whether the alleged § 49 workmen's compensation 168 employer possesses the power to control the other person in respect to the transaction out of which the injury arose.* The court cannot 1 State ex rel. Virginia & Rainy .Lake Co. v. District Court, 128 Minn. 43, 150 N. W. 211; Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 20; Kasovitch 7. Wattis Co., 2 Cal. I. A. C. Dec. (Bulletins 1915) 319. The test by which to determine whether a person is acting as another's em- ploye is to ascertain whether at the time of injury he was subject to such person's orders and control, and was liable to be discharged for disobedience of orders or misconduct. Mason v. Western Metal Supply Co., 1 Cal. I. A. 0. Dec. 284; United States Board & Paper Company v. Lander, 47 Ind. App. 315, 93 N. B. 232. The term "employe" indicates persons hired to work for wages as the employer may direct, and does not embrace the case of the employment of a person carrying on a distinct trade or calling to perform services inde- pendent of the control of the employer. Rep. Nev. Indus. Com. 1913-14, p. 26. Where a photographer furnishes material to, and develops and prints pictures taken and sold by, a second person, but has no control over said second person, and cannot direct that person's movements, his time, his subjects, or his meth- ods of work, and where the proceeds of the sales made are divided between them, and this is the only return on the investment received by either of them, they do not stand in the relation of employer and employe, as defined by section 14 of the Act, and, although the second person be killed while actually taking pictures, no compensation is due to his dependents. Shaw v. Foley, 1 Cal. I. A. C. Dec. 629. That a superintendent of construction, having peculiar skill and knowledge as an inventor, is allowed great liberty of action as to purchase of materials and manner of construction, did not show such lack of power of direction and control as prevented him from being an employs. Turner v. Oil Pumping & Gasoline Co., 2 Cal. I. A. C. Dec. (Bulletins 1915) 496. In Gertel v. H. W. Dorman & Co., 1 Conn. Comp. Dec. 616, where it ap- peared that the claimant was employed by a man doing work on the premises of the respondents, standing to them In the relation of either tenant or licensee, and that they had nothing to do with the work, except that they permitted It to be done on the premises, claimant was not an employe of respondent. In FIneblum v. Singer Sewing Machine Co., 1 Conn. Comp. Dec. 126, it was held that where an agent of the company employed others to assist him in making sales, deliveries, and collections, invested some of his own capital in the busi- ness, and was under no direction or supervision of his principals, he was not an employe. In Reed v. Booth & Piatt Co., 1 Coim. Comp. Dec. 121, It was held that a traveling salesman, selling goods for the defendant, receiving half profits for his work, paying his own expenses, and being forbidden to solicit regular customers of the company, was an employe within the meaning of the Act. But in Stagg v. Benjamin, 1 Conn. Comp. Dec. 405, where the claimant was employed by the respondent to do carpenter work about her properties. 169 PERSONS ENTITLED TO COMPENSATION § 49 determine, as a question of law, that the rule of respondeat superior does not apply, unless the evidence shows conclusively that the al- leged employer possessed no such power of control." Since the and was paid by the day, and the respondent furnished the materials and paid a helper engaged by the claimant, claimant was held to have been an employe of respondent. Where a lather was engaged to work to put on laths, at the price of 25 cents a bunch, and worked alone at first, and then obtained other men from the union to aid him in the work, paying them the same rate of wages, all the work being done under the direction of the foreman, he was a mechanic and entitled to compensation. Jones v. Commonwealth of Mass., 2 Mass. Wk. Comp. Cases, 721 (Decision of Com. of Arb.). The applicant owned a team and wagon, and was engaged in hauling dirt for appellant, receiving for the work of himself, team, and wagon $6 per day. While so engaged he received injuries to two fingers, by which he was totally disabled for 2% months, and which resulted further in causing a permanent stifCness, by reason of which the applicant has only partial use of such fingers. An arbitration committee awarded the applicant compensation for 43 weeks at 50 per cent, of his average weekly wage. Appellant contended that Ridler was not their employs within the meaning of the Act, and that the award of compensation was excessive. The Board held that the fact that the applicant worked under orders of defendant's foreman, and was required to conform in detaU to the regulations and system of work of defendant, was sufficient to make him an employ^ of defendant within the meaning of the compensation law. Ridler v. Little Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 27. Defendant company hired wagons, horses, and drivers from a third party, and paid him a certain amount per day for each outfit. He in turn paid claimant, the driver, a day wage. The claimant, who was under the direction and control of defendant at all times during working hours, was an employs- of defendant. Nolan v. Cranford Co., 4 N. X. St. Dep. Bep. 337 (affirmed in 155 N.Y. Supp. 1128). Not an employ^. — ^A coal company, which owned mineral lands and operated coal mines located thereon, having temporarily suspended the operation of its mines, leased a portion of its lands to two of its former employSs, who opened up a small mine thereon and paid the company a stated sum per ton as royalty for the coal removed therefrom. In conducting their operations they employed, paid, and discharged their laborers, and were not under the supervision of the lessor. They sold their coal in the open market. They employed one of the lessor's employes, and he was fatally injured in the course of his employment. The Commission held that he was not an employe of the lessor at the time of injury. In re Ida Bell Monroe, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 186. 2 State ex rel. Virginia & Kainy Lake Co. v. District Court, supra. •§ 49 workmen's compensation 170 Workmen's Compensation Acts are remedial in nature, and must, as a general rule, be given a liberal construction, to accomplish the purpose intended, provisions defining when the relation of employer and employe exists bring within the Acts all cases in which, under the above rule, such relation is found to exist." The question to be determined is, "What was the alleged employe doing, and what was his part in or the relation to the actual work?" rather than whether his contractual relation with the employer was such as to absolve the latter from common-law duties or of care tor the safety of employes.* In the ordinary acceptance of the term, one who is engaged to render services in a particular transaction is not an em- ploye; the term "employe" embracing continuity of service, and excluding those employed for a single and special transaction." It does not usually include physicians, pastors," professional nurs- es,' or public lecturers on a Chautauqua circuit.^ It may, however, include those not engaged in manual labor, such as school-teach- 3 Id. i In re Rheinwald, 168 App. Div. 425, 153 N. T. Supp. 598. B Rep. Nev. Indus. Com. (1913-14) p. 26. "The term 'employ^' has a limited and restricted meaning, and cannot be applied to Include one in the temporary service of a corporation, particularly when the service is of a highly scientific nature. The fact that a corporation temporarily engages the professional services of a mining engineer to make an examination of its property, and perhaps act in an advisory capacity, does not make the person so engaged or retained either a workman or employe within the meaning of the Act." Id. A mining engineer, or "an expert making trips imderground from time to time for the purpose of making inspection of the workings," cannot be said to be "employed in the same general employment and in the usual and ordinary transaction of the business," or to be a workman or employe within the mean- ing of the Act. Id. 6 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 15. 7 A professional nurse, performing her duties with a skill which Is the result of training in that profession, is not a servant, but rather one who renders a personal service to an employer in pursuit of an independent calling. (Code Supp. 1913, § 2477ml6) Id. p. 14. » (Code Supp. 1913, § 2477m41) Id. p. 16. 171 PBKSONS ENTITLED TO COMPENSATION § 49 -ers.' The fact that a workman furnishes tools and materials, or undertakes to do a specified "job" or produce a given result, will not prevent his being an employe.^" A deaconess, living and work- ing in a hospital and receiving an annuity to cover her clothing and personal expenses, is not an employe of the hospital; neither are nurses in training working under the same arrangement.^^ Nor is one an employe of a religious home for the aged, wherein he re- sides, where he has deeded all his property to the home and is in "turn guaranteed food and shelter for the remainder of his life, though he does quite a little work around the home for which he is paid no stipulated amount, or any at all, except at the option of the persons managing the home.^'' Under the English Act one is not ordinarily deemed an employe who is to be compensated by a share of the profits ; ^' but under some of the state Acts, neither 9 In Skinner v. Connecticut School for Imbeciles, 1 Conn. Comp. Dec. 106, It was held that it is not necessary that an employfi be doing manual labor in order for the Compensation Act to apply. The duties of a school-teacher re- quire just as much expenditure of energy of mind and body as other employ- ments. 10 In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. 11 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 13, p. 32. 12 Id. p. 33. IS The remuneration was by the share, and compensation was not recover- able where the engineer of a steam fishing vessel was guaranteed a minimum weekly wage, but was paid by a share tn the profits (Admiral Fishing Co., Ltd., V. Robinson [1910] 3 B. W. O. C. 247, C. A.) ; where members of the crews of fishing vessels received, besides wages, board, and lodging, a poundage on the net profits of the trip (CosteUo v. Kelsall Bros. & Beeching, Ltd., Canwell V. Kelsall Bros. & Beeching, Ltd., and Tindall v. Great Northern Steam Fish- ing Co. [1913] 6 B. W. C. 0. 480, H. L., and 5 B. W. C. C. 667, C. A.) ; where a cook on a fishing vessel, who received, besides the wages named in his con- tract, liver money, trip money, and stocker money (Burman v. Zodiac Steam Fishing Co. [1914] 7 B. W. C. C. 767, C. A.) ; where a deck hand, who received "stocker" money In addition to his wages, was transferred to another steam trawler on the same pay as before, and the second vessel was lost with all on board two days out, before there was any "stocker" to divide (Stephenson v. Eossall Steam Fishing Co. [1915] 8 B. W. C. C. 209, C. A.) ; where the mate of a trawler was paid by a certain part of the price which the catch brought. § 49 workmen's compensation 172" the fact that the wages are fixed in part by the profits,^* nor that they are not definitely fixed in amount,^" nor that they are payable- on a commission basis, in whole or in part, determines the relation of employer and employe.^" Nor, as a general rule, will it pre- clude one from being an employe that he is to be paid by the job,^^ or on a piece basis,*' that he is employed merely by the day,^*' after certain current expenses had feeen deducted (Aberdeen Steam Trawling- 6 Fishing Co., Ltd., v. Gill [1909] 1 B. W. C. O. 274) ; and where a share hand on a trawler was injured while working at storing flsh in a cutter, which was to take the fish to the market, although he was free to refuse the work, but was paid $1 for it, which sum was divided among the crew on the trawler- (Whelan v. Great Northern Steam Fishing Co., Ltd, [1910] 2 B. W. O. C. 235). Where workmen on fishing vessels received, in addition to their wages, stocker money, trip money, etc., but also received additional wages, 'because the share money was so little as to not be worth considering, they were not paid by share, but w^e workmen. Williams v. Steam Trawler Duncan (Own- ers of), and McCord v. Steam Trawler City of Liverpool (Owners of), (1914) 7 B. W. C. C. 767, C. A. 1* Employers are no doubt entitled to compensation, even though their wagea are fixed in part by the profits of the concern for which they work. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3. IB Where a manager of the defendant's business had been offered an Interest in the business, but refused, and, though he had no agreement as to the amount of his wages, drew large sums from time to time with the full knowledge and permission of his employer, accounts being kept of the amounts drawn, and- this amount was listed under his schedule of income for taxation as salary and wages, he was an employe, even though he was not included in the pay roll upon which the Insurance premium was paid. Howard v. George Howardf Inc., The Bulletin, N. y., vol. 1, No. 11, p. 14. 18 Id. p. 20. Where an employe was hired at a fixed salary for fixed hours per day^ during which time his employer had full direction and control over his work^ but was allowed a commission on all new business which he was able to get for his employer, not neglecting any assigned duties to search for such new IT In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. 18 Piece workers, who are not independent contractors, with a chance ta gain or lose upon the employment of others, are employes to the same extent as if they were working for wages. Malott v. Healey, 2 Cal. I. A. O. Dec. 103. 19 Gove v. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702. 173 PERSONS ENTITLED TO COMPENSATION § 49 •or is a student workman,^" or that he is an ofRcer or director of the corporation employing him.^^ It is essential, however, that some wages be in fact paid or payable."* The fact that one is a director ■of a bank gives him no right to compensation as an employe thereof."* •business, the arrangement on a commission basis did not create a dual relation- ship, and he was an employfi, regardless of which work he was doing at the time of the injury. Cameron v. Pillsbury (Cal.) 159 Pac. 149. 20 Rulings Wash. Ins. Com. 1915, p. 16. 21 Craycroft v. Cray ircft-Herrold Brick Co., 2 Cal. I. A. C. Dec. 654. An officer of a corporation, even though he be the principal stockholder, is not debarred from compensation by that reason alone. Kennedy v. Kennedy Mfg. Co., The Bulletin, N. T., vol. 1, No. 5, p. 12. An officer and director of a company is nevertheless an employe of the company, where he receives regular wages and performs the ordinary duties of an employe of the business. Bowne V. S. W. Bowne Co., The BuUetin, N. Y., vol. 1, No. 12, p. 17. A mechanic, operating a machine for making moldings at a day wage, was an employe, even though he was president and stockholder of the employing coippany. ■Cantor v. Ru'bin Musicant Co., 3 N. Y. St. Dep. Rep. 392. In Welton v. Waterbury Rolling Mill, 1 Conn. Comp. Dec. 78, it was held, where the claimant had a contract as supervisor of defendant's casting depart- ment and spent half his time traveling in the interests of the company, that he was a director and treasurer of the company, though receiving no salary for the latter duties, did not preclude him from being an employe. 22 In Loveland v. Parish of St. Thomas Chutch, 1 Conn. Comp. Dec. 14, it was held that a choir boy, paid 25 cents a month for singing, but more in the nature of a reward for punctuality and regularity than wages, was not an employe. In Lynch v. Abel, 1 Conn. Comp. Dec. 520, where the respondent lived upon a farm owned by his father, in return providing a home for his father, who occasionally did small things around the house, but received no pay and was under no obligation to work, the father was not an employe of the respondent. In Varine- v. Sargeant, 1 Conn. Comp. Dec. 194, where, after finishing one job, the workman was sent to a shanty to wait till the weather became so certain other work could be started, whether or not he paid any board being disputed, it was held that it had not been shown that he had entered the employment. 23 In Burnham v. Thames National Bank, 1 Conn. Comp. Dec. 339, it was held that the director of a bank is not an employe of the bank, though he be paid for attendance at meetings, such pay bearing no ^relation to the amount or value of the work done, and being no inducement to undertaking such § 49 workmen's compensation 174;- ^The California Commission has held that where the corporate stock is all in the hands of the directors, two directors, father and. son, as president and secretary, being authorized to exercise full- control of the business, the son, on being injured while acting in. the course of his employment as secretary, can recover compensa- tion against such close ^rporation ; ''* also that the fact that one was general manager on a salary conclusively showed the fact of his employment, though he was also president of the corporation.""- A mere secret intention to terminate an employment does not ter- minate it, in the absence of notice or an abandonment of the under- taking by the employe's failure to perform the work assigned him.''*" Convicts from the different state penal institutions are not engaged- in any contract of employment within the meaning of the Washing- ton Act.^^ A seaman under contract with a ship is outside the- scope of that Act."* The provisions of the Connecticut Act do not extend to include- a prisoner working in a chair factory in a jail, under no contract and receiving no pay; the county receiving a lump sum from the chair factory for the work done."' § 50. New York Many of the statutes define "employe." By the New York Act,, "employe" is defined as "a person who is engaged in a hazardous- employment in the servicfe of an employer, carrying on or conduct- ing the same upon the premises or at the plant, or in the course of duties ; the duties of the directors are regulated as much by law as by the- bank, and they have no power individually, except as a member of the board.. 24 Id. 2B Rosenberg v. Western Mercantile Co., 2 Cal. I. A. 0. Dec. 673. 2 6 Goering v. Brooklyn Mining Co., 2 Cal. I. A. 0. Dec. 141. 2T (Wk. Comp. Act W!ash. § 17) Opinions Atty. Gen. Sept. 17, 1913. 2 8 (Wk. Comp. Act Wash. § 4, class 20) Kulings Wash. Indus. Ins. Com. 1915, p. 12. 2 Ryan v. Metropolitan Chair Co., 1 Conn. Comp. Dec. 37. 175 PERSONS ENTITLED TO COMPENSATION § 50 his employment away from the plant of his employer." '"• It has been said that, in determining who is an "employe" within the- meaning of that Act, only decisions under it or similar Acts based on the same identical principles can be recognized as controlling,, influential, or even interesting.'^ The applicability of the statutory enumeration or definitions of employments deemed entitled to pro- tection is not to be determined narrowly, but rather in a reasona- ble and common-sense manner, so as to render the Act valid and operative.'^ If an employe is hired for work exclusively and pre- dominantly within one or more of the enumerated occupations, his right to compensation for injury in the course of his employment cannot be fairly made to depend on whether he was at the moment of injury engaged in an act clearly constituting the direct doing of work within the Act.'^ Thus a painter's right to compensation for injuries sustained in his daily trade does not depend on a showing that he was at the moment applying a brush, mixing paints, or mounting a scaffold.'* If an employe's duties are exclusively or predominantly within an enumerated employment or employments,, or he is injured in doing work fairly within the scope of the ordi- nary fulfillment of such duties, his injury is compensable, though the particular act he was doing at the time of injury would not ordinarily be described as, the doing of work enumerated in the statute.'' To construe the statute otherwise would defeat its pur- 30 CWtorkmen's Compensation Law, § 3) Newman v. Newman, 169 App. Div.. 745, 155 N. Y. Supp. 665; Matter of Post v. Burger & Gohlke, 216 N. Y. 544, 111 N. B. 351, Ann. Cas. 1916B, 158; In re State Workmen's Compensation Comm'n, Dale V. Saunders Bros., 218 N. Y. 59, 112 N. E. 571, affirming 171 App. Div.- 528, 157 N. Y. Supp. 1062. 31 In re Eheinwald, 168 App. Div. 425, 153 N. Y. Supp. 596. 32 Gleisner v. Gross & Herbener, 170 App. Div. 37, 155 N. Y. Supp. 946. said. 8* Id. 35 Id. One does not cease to be an employ^ because at certain instants of time he- is not actually engaged in work. Scott v. Payne Bros., Inc., 85 N. J. Law, 446,. 89 Atl. 927. § 51 workmen's compensation 176 pose, and make its operation and benefits depend on harsh, arbi- trary, and unworkable distinctions, which would inevitably defeat its practical workings.'" Where, however, an employe's ordinary ' duties and customary scope of activity do not come exclusively or predominantly within the enumerated employments, and he only casually and incidentally does work falling within that category, his right to remuneration depends upon whether he sustained in- jury while actually and momentarily doing work named in the stat- ute. Where it appears that the employe was not so engaged when he met with injury, he is not entitled to compensation, even though he at times did work embraced within the Act.°^ That the work- man procured his employment -by means of a false written state- ment, in violation of a penal statute, did not prevent him from be- ing an "employe," or the one employing him from being his em- ployer.'* The question whether the relation of employer and em- ploye existed is one of law, where the facts are conceded.*' ^ 51. Contract of service To constitute one an employe, it is essential that there be a con- tract of service,*" an implied consideration of which is usually pro- vision for compensation for injury to him arising in the course of 88 Gleisner v. Gross & Herbener, supra. s? Matter of McQueeney v. Sutphen & Meyer, 167 App. piv. 528, 153 N. T. Supp. 554; Matter of Kohler v. Frohmann, 167 App. Dlv. 533, 153 N. T. Supp. 559 ; Smith v. Price, 168 App. Dlv. 421, 153 N. Y. Supp. 221 ; Matter of Parsons v. Delaware & Hudson Co., 167 App. Dlv. 536, 153 N. Y. Supp. 179; ■Gleisner v. Gross & Herbener, supra. 38 (Laws 1913, c. 816, Consol. Laws, c. 67, §§ 3, 4) Kenny v. Union Ey. Co., 166 App. Div. 497, 152 N. X. Supp. 117. 89 Id. *oHillestad v. Indus. Ins. Com., SO Wash. 426, 141 Pac. 913, Ann. Cas. 1916B, 789, 6 N. C. 0. A. 763; Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 18. Where a county gives a contract for the construction of roads to a private party, the county Is not liable to the employes of the contractor for Injuries 177 PERSONS ENTITLED TO COMPENSATION § 51 his employment and not through his intentional or willful miscon- duct,*^ and that the services be not merely voluntary.*" The requi- site "contract of service" is not a contract "for" services. The for- mer relationship constitutes one an employe, and brings him within sustaiued, unless there is a contract of hire between the county and the workmen. Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 23. A boy, injured while sawing up lumber to be used for the University Ex- tension department and paid for by It, was not an employ^ of that depart- ment, where it was not a party to the hiring of the boy and had nothing to do with it. Schmitz v. City of Appleton, Bui. Wis. Indus. Com. 1912-13, p. 31. Existence of contract. — ^Where a quarryman received beer or supper from a neighboring farmer in return for helping in the evening with the hay- making, there was no contract of service, or at least no legal contract. Kemp V Lewis (1914) 7 B. W. O. C. 422, C. A. But where a casual' laborer, hired by a farmer, to help with threshing, was injured while helping the .driver of the machine, who had been hired with the machine, in accordance with custom, to remove the machine from the farm, he was injured in the farmer's employ. Newson v. Burstall (1915) 8 B. W. C. C. 21, C. A. Con- necticut. Where a small boy was in the habit of daily assisting a grocer's employ^ to deliver packages, going with the wagon and taking the packages into the house, while the driver remained in the wagon, and receiving his reward in the way of candy and fruit from the store, there was no contract of employment, and he was not an employ^ within the Act. Taylor v. New York Supply Co., 1 Conn. Comp. Dec. 182. *i Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. * 2 That the contractee, a carpenter by trade, was injured while voluntarily aiding the contractor, did not make him an employ^ of the contractor. Ar- tenstein v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases 699 (Decision of Com. of Arb.). Whether services merely voluntary. — Where a carpenter voluntarily works on a church building, which is being constructed, in the mere hope that he may be later hired if seen on the job, and he is permitted so to work by a mem- ber of the church, he was not in the employ of the owners or builders of the church, in the absence of any ratification by them. Steiman v. Sfard, 2 Cal. I. A. C. Dec. 1018. But where the members of a partnership enter into a contract with a person, by which the latter is to install certain machinery at his own expense, and one of the partners living at the place of business aids in unloading a wagon containing machinery, billed to the contractor, and is Injured 6y an accident while so doing, such evidence is insufficient to show that the partner was at the time of the accident an employ^ of the contractor. Anderson v. Perew, 2 Cal. I. A. C. Dec. (Bulletins 1915) 736. HON.COMP. — 12 § 51 workmen's compensation 178 the Act, while the latter relationship makes one an independent con- tractor — that is, a self-serving employe — and excludes him from the Act.** The contract of service need not be express, but may be implied,** as where a substitute is engaged by an employe in accordance with a well-established custom,*" or it may arise from the ratification of an uaauthorized employment of a workman by a subordinate.** It is immaterial whether the employment was un- der a contract concededly valid as to both parties, or under a con- 43 Op. Sp. Counsel to Iowa Indus. Com. (1913) p. 18. *i Where the applicant had on several occasions been employed by the hour by defendant, and on the day of the accident was asked by the driver of one of the defendant's auto trucks to assist him, the driver telephoning to defendant's ofllce for permission to employ the applicant, and the appli- cant standing by and understanding that the employment was authorized, there was at least an implied employment by defendant. Gallagher v. Fed- eral Transfer Co., 1 Cal. I. A. C. Dec. 39. Where a building manager em- ploys A. to reshingle a building by the day, with permission to hire B. to help him, and A. finds that he cannot get B. to do the work, and employs C. without the consent of the employer, C. is in the employ of the manager. Petersen v. Pellasco, 2 Cal. I. A. C. Dec. (Bulletins 1915) 199. Where the claimant, employed by the owner of the premises on which the defendant was having its work done as a general handyman, had been dis- charged by the owner, but continued to work for the defendant at the re- quest of one of its employes, for whom he had done work with the permis- sion of the owner while in his employ, and was injured five days after his former employment had ceased, he was an employ^ of the defendant. Ga- lelll V. Magnesite Products Co., The Bulletin, N. T., vol. 1, No. 6. p. 12. 46 Where it Is an established custom for a waiter to get a substitute occa- sionally,, providing he is acceptable to the steward, and a substitute is in- jured while at work, without the employer's knowledge or there being any express contract of employment, the substitute is impliedly an employ^ of such employer. Clark v. Morrison & Burns, 2 Cal. I. A. C. Dec. 90. 46 Where a railroad company had two roundhouse men on duty at night, and, one of them quitting, the other hired claimant, telling him the next morning that he could not work any longer unless hired by a certain secre- tary, and the company paid him the regular wages for his work and $25 in compromise adjustment for an injury received during the night, such acts constituted a ratification of the employment without authority, and made the workman an employ^ of the company. McCutcheon v. Marinette, Tomahawk & Western K. E. Co., Rep. Wis. Indus. Com. 1914^15, p. 13. 179 PERSONS ENTITLED TO COMPENSATION § 51 tract voidable at the election of the employer, or whether the lia- bility of the employer for wages was fixed or determinable, under quantum meruit.*^ A contract of service does not arise from the existence of the relation of landlord and tenant,*' carrier and pas- senger,*' bailor and bailee,^" from the rendition of professional serv- ices,°^ from a partnership relation,^^ from the performance of man- 4T Kenny v. Union Ry. Co., 166 App. Div. 497, 152 N. Y. Supp. 117. 48 Where a steel tester making £2 a week obtained an agreement with his employers which allowed him to live in a cottage near by without pay- ing rent, in return for which he saw to the cleaning of the oflBces (his daugh- ters doing the work), and was killed by gas which escaped from the oflSces into his bedroom, there was no contract of service. Wray v. Taylor Bros. & Co., Ltd. (1913) 6 B. W. 0. C. 529, C. A. *9 Where one seeking employment visited defc^ndant's office and was di- rected by the person in charge thereof to go to defendant's camp, and where he did so, riding on defendant's logging train, and was injured before leav- ing the vicinity of the train, without having done any work or repeived any pay from the defendant, the relation between the parties was that of passen- ger and carrier, and not employer and employ^. Susznik v. Alger Logging Co., 76 Or. 189, 147 Pac. 922. BO The fact that the driver of a taxicab was allowed to keep 75 per cent, of his receipts, minus the price of the petrol he used, and that he was very little or not at all under the control of the owners, although he wore a uni- form they furnished, and although they used the words "servant" and "dis- missal" in their posted notices, was held sufficient evidence that he was not a workman, but a bailee. Smith v. General Motor Cab Co., Ltd. (1911) A. C. 188. The fact that the driver of a taxicab was allowed to retain 25 per cent, of his day's receipts, minus the value of the petrol he had used, was no evidence of a contract of service, the relation probably being one of bail- ment. Doggett V. Waterloo Taxicab Co., Ltd. (1910) 3 B. W. C. C. 371, C. A. Bi There was no contract of service where a laundry girl taught music to a neighbor's children, for which she received pay (Simmons v. Heath Laun- dry Co. [1910] 3 B. W. C. C. 200) ; where for compensation a lecturer was explaining the different parts of an airship (Waites v. Franco-British Exhibi- tion, Inc. [1910] 2 B. W. C. C. 199) ; or where a board of guardians em- ployed a doctor (Murphy v. Enniscorthy Board of Guardians [1910] 2 B. W. C. C. 291, C. A.) ; but a man playing professional football for his club was under a contract of service (Walker v. Crystal Palace Football Club, Ltd. [1910] 3 B. W. C. C. 51, C. A.). Where the employer direci;s and controls the B2 See note 52 op. following page. § 51 workmen's compensation 180 ual labor without subjection to the alleged employer's control,"* or where one sails on a ship on the sharing system without being sub- ject to the owner's control,"* or where a workman's son is engaged route of a vaudeville performer, time of performance, and manner of put- ting on the act, the performer is under contract of service. Her vocation is not to be classed with sue* professional services as are rendered by law- yers and physicians. Howard v. Republic Theater, 2 Cal. I. A. 0. Dec. (Bulletins 1915) 514. 62 A member of a partnership, who performs services for the partnership, for which he receives money designated as "wages," is not an employ^ of the partnership. In re O. E. Cooper, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 180. Where the owner of several teams agrees with applicant that he may take a team and find work for it with himself as driver, the team to be fed by the owner, and the earnings and losses to be divided equally, the parties are copartners, not employer and employ^. Sayers v. Girard, 1 Cal. I. A. C. Dec. 352. In Ferranti v. Kennedy, 1 Conn. Comp. Dec. 196, where a mason and his helper, working together, agreed to do a certain piece of work for $75, and between themselves agreed that each should draw union wages according to his trade, and that the remainder should be divided equally, they were held to be partners, and there was no contract of employment. A partner, although he worked as a foreman and received a compensation for his work, was- not a workman within the Act of 1897. Ellis v. Ellis & Co. (1905) 7 W. C. C. 97 C. A. (Act of 1897). Where a trustee, who was clos- ing up a business, hired one of the former partners to work with him for half an hour each day, and promised to give him a part of any sum which might be left of the business, but exercised no control of him, there was no contract of service. Pears v.. Gibbons (Nelson, third party), (1913) 6 B. W. C. C. 722, 0. A. But where a man, who had been employed by another work- man in charge of a boat which made a business of carrying cargo from fish- ing vessels to the ports, and who like the other received as pay a third of the gross earnings, and who was not liable for losses, but was compelled to obey the orders of the owners, was drowned, it was held that he was a work- man. Jamieson v. Clark (1910) 2 B. W. C. C. 228, Ct. of Sess. Nor does the owning of shares in the vessel keep the master of the ship from being a work- man, a shareholder not being a partner. CarsweU v. Sharpe et al. (1910) 3 B. W. C. C. 552, Ct. of Sess. Bs See § 66, post. B4 There was no contract of service with the owner, where the master em- ployed and paid the crew, and carried any cargoes that he pleased, receiving as his compensation two-thirds of the gross earnings (Boon v. Quance [No. 1], [1910] 3 B. W. C. C. 106, C. A.) ; where a vessel's captain was paid half the 181 PERSONS ENTITLED TO COMPENSATION § 51 by the workman to help him in his own°° or his employer's busi- ness."* Whether a contract of service arises from the performance of work given out of' charity depends on the circumstances of the particular case."' I gross receipts after port charges had been paid, and had charge of the hir- ing and paying of the crew, and was free to trade with any ports he chose (Hughes V. Postlethwaite [191i] 4 B. W. C. C. 105, O. A.) ; where, In a case involving the drowning of the master of a ship, it appeared that the ship's captain paid all disbursements and expenses, receiving for it two-thirds of the gross receipts (Jones v. Ship Alice and Eliza [Owners of], [1910] 3 B. W. C. C. 495, C. A.) ; or where a mate of a ship, which was sailed on the sharing system, was engaged by the captain and promised as pay a part of the freight (Hoare v. Barge Cecil Rhodes [Owners of], [1912] 5 B. W. C. C. 49, C. A.). But there was such contract of service with the owner, where a man, who was employed as captain of a vessel to use it "on the best paying trade for the benefit of all concerned," employed and paid the crew of the ship, re- ceiving for the purpose and 'his own compensation two-thirds of the gross receipts (KeUy v. S. S. Miss" Evans [Owners of], [1913] 6 B. W. 0. C. 916, C. A.) ; where the owner fixed the route, freight, and destination, although the captain, the person injured, received a share of the profits as remuneration, and out of it paid the wages of the mate and a part of those of another hand (Smith V. Horlock [1913] 6 B. W. C. 0. 638, C. A.) ; and where the mate of a ship was drowned at sea, and it was alleged that the vessel sailed on the sharing system, but the only facts proven were that defendants owned the ship on which the man was mate (Victoria [Owners of Ship] v. Barlow [1912] 5 B. W. C. C. 570, C. A.). B 5 A son, who worked for his father and lived with him, although paying for board and lodging, and who was injured on a journey he was making for his father's business, was not a workman^ McDougall v. McDougall (1911) 4 B. W. C. 0. 373, Ct. of Sess. 56 A timber merchant, who had contracted with a workman to fell some timber he had bought and agreed to carry away, was not liable as a prin- cipal for an injury to the workman's son, engaged by the workman to help in the work, since the son was not a "workman." Marks v. Carne (1910) 2 B. W. 0. O. 186, G. A. SI A man working for the Central (Unemployed) Body of London under the Unemployed Workmen Act of 1905 is under a contract of service, and upon injury by accident is entitled to recover. Porton v. Central (Unemployed) Body for London (1910) 2 B. W. C. C. 296, C. A. A workman has been held to be under a contract of service while doing work which he obtained through a distress committee serving under the Unemployed Workmen Act of 1905, § 51 woekmen's compensation 182 Where it does not appear that the employe's misstatement of his name and age induced the employer to enter into the employment contract, such misrepresentation does not constitute fraud such as will relieve the employer from liability."* § 52. State empjoyes Neither the regents of the University nor the state board of agri- culture come within the Michigan Workmen's Compensation Act by reason of the provision that the state shall be subject to the Act ; and hence an employe of the Agricultural College is not an employe of the state, where the College has not voluntarily come within the Act.^* Regular employes of the state working upon state highways come within the Washington Act.*" Where a mem- ber of the California National Guard is injured by an accident aris- ing out of his employment and caused by the falling of his horse, on which he was riding while on duty, he is entitled to compensa- tion for the resulting disability.'^ A school-teacher employed to supervise gymnasium classes in a state imbecile school of Connecti- cut is an employe of the state, and the Compensation Act applies to injuries received in her employment.®^ Gilroy v. Mackie et al. (Leith Distress Committee), (1910) 2 B. "W. C. O. 269, Ct. of Sess. Where a blind man injured while working in an industrial in- stitute for blind people, which institution was partly supported by charity, and which paid him 5s. a month over his board and lodging, he was under a contract of service. Macgillivray v. Northern Counties Institute for the Blind (1911) 4 B. W. C. C. 429, Ct. of Sess. Where a man worked in a labor yard maintained by a charitable institu- tion, so that unemployed workmen could earn their board and lodging, and sometimes trifling sums besides, there was no evidence of a contract of service. Burns v. Manchester & Salford Wesleyan Mission (1909) 99 Ii. T. 581, 0. A. OS Havey v. Erie K. Co., 87 N. J. Law, 444, 95 Atl. 124. 5 9 (Pub. Acts 1912 [Ex. Sess.] No. 10, pt. 1, § 5) Agler v. Michigan Agricul- tural College, 181 Mich. 559, 148 N. W. 341. 60 (Wk. Comp. Act, Wash. § 17) Opinion Atty. Gen. Sept. 17, 1913. «i Peterson v. State of California, 2 Cal. I. A. 0. Dec. (Bulletins 1915) 48. 62 Skinner v. Connecticut School for Imbeciles, 1 Conn. Comp. Dec. 106. 183 PERSONS ENTITLED TO COMPENSATION § 53 § 53. Municipal employ6s . Jurors, since they are not under any contract of hire, express or implied, with the county, and are not subject to its control or su- pervision, are not employes of the county.'* Clerical employes in the office of the city clerk are not employes of the city in conduct- ing a light and water plant a:s contemplated by the Kansas Act.** Employes under civil service appointment are not under the Wash- ington Act.*" A horseman and trained member of a fire company, who was classified as in the "official service" and not in the "labor service," has been held not to belong to the class of city employes entitled to compensation under the Massachusetts Act as "laborers, workmen and mechanics." °° But a fireman or policeman is an em- ploye of the city in Minnesota, where he was in the service of the city and not appointed for a regular term of office."^ County engi- neers and laborers employed by the county are employes under the Iowa Act.** A civil engineer, appointed by a Minnesota district court to supervise the construction of a judicial ditch, is an employe of the counties interested in the construction of the ditch.*' The source from which the money for carrying on work on the roads 6 3 (Laws 1913, c. 46T, § 34, subd. 1 [Gen. St. 1913, § 8230]) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 27. 84 (Wk. Comp. Act, § 6, Laws 1911, c. 218) Udey v. City of Winfleld, 97 Kan. 279, 155 Pac. 43. 65 (Wk. Comp. Act, Wash. § 17) Rulings Wash. Indus. Ins. Com. 1915, p. 23. e« Devney v. City of Boston, 223 Mass. 270, 111 N. E. 788. A laborer ordinarily Is a person without particular training, who Is em- ployed at manual labor under a contract terminable at will, while workmen and mechanics broadly embrace those who are skilled users of tools. Oliver V. Macon Hardware Co., 98 Ga. 249, 25 S. E. 403, 58 Am. St. Rep. 300; Ellis V. U. S., 206 V. S. 246, 27 Sup. Ct. 600, 51 L. Ed. 1047, 11 Ann. Gas. 589, Breakwater Co. v. V. S., 183 Fed. 112, 114, 105 C. C. A. 404. 67 state ex rel. City of Duluth v. District Court (Minn.) 158 N. W. 790, 791. 6 8 (Code Supp. 1913, tit. 12, c. 8a, § 2477ml6[b]) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 7. 69 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 13, p. 31. § 54 woekmen's compensation 184 of the state is derived has no bearing on the question of liability, and although the funds consist in part of money appropriated by the county board and part of funds appropriated by the state, the employe being hired by the county, the county is solely liable.'"' A prisoner of the county serving sentenceon a work farm, his wife being paid a small amoaint by the county, is not an employe of the county/^ § 54. California Employes of municipal corporations, entitled to compensation under the California Act, include a street inspector under control of the city and, paid indirectly out of a paving assessment, but di- rectly by the contractor,'^ a street commissioner, a manager of wa- terworks,^' a substitute fireman appointed by a municipal officer, where his services are accepted and paid for by the city,'* or his appointment is according to an established custom, though he be not under the civil service rules,' ° a deputy marshal, who has acted as such and been paid therefor by the city, though his appointment has never been ratified or approved as required by law," and a deputy appointed by a town marshal and under control of the town authorities, though he is not on the town pay roll." Where a city 70 Id. 71 Id. p. 32. 72 Barron v. City of Venice, 2 Cal. I. A. C. Dec. 25. 7s Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 8. 7* The appointment by a municipal officer of a substitute fireman, the ac- ceptance of the fireman's services, and payment of his wages by the munici- pality make him an "employ^," though he be not under the civil service rules. Campbell v. City of Los Angeles, 2 Cal. I. A. O. Dec. 300. 76 Where It is customary for a battalion fire chief to appoint a substitute fireman in place of a fireman on leave of absence, a substitute so appointed and injured v^as entitled to disability compensation, though the civil service rules neither permitted nor prohibited such employment. Id. 76 Olsen V. Rogers Development Co., 2 Cal. I. A. C. Dec; 586. 77 Eastman v. State Compensation Insurance Fund, 2 Cal. I. A. C. Dec. 390. 185 PERSONS ENTITLED TO COMPENSATION § 55 marshal places his son in charge of a pump, which it is the mar- shal's duty to care for, and the son is injured, compensation sought against the city must be denied, if it does not appear that the mar- shal had express authority to employ his son.''' The director of an irrigation district is an employe within the meaning of this ActJ' Where a city charter provides for creating and maintaining a re- lief, health, life insurance, or pension fund for municipal employes, and such system covers the subject of compensation for accidental injury or death in line of duty, such charter provisions, not the Compensation Act, govern the city's liability to employes or their dependents covered by it; the Compensation Act being excluded from operation by virtue of section 6 of article 11 of the Constitu- tion.«» § 55. Federal employes An "artisan," within the original federal Act, continued in force as to injuries prior to the Act of 1916, is one who practices an indus- trial art, a trained workman, a superior mechanic.'^ The term "laborer," though not so easily susceptible of accurate definition, was evidently used by Congress to designate men who do work requiring little skill, as distinguished from artisan.*" These terms 78 Noonan v. City of Ferris, 2 Cal. I. A. 0. Dec. 89. 7 9 Kiernan v. Turlock Irrigation District, 2 Cal. I. A. C. Dec. 259. 80 Crehan v. City of Los Angeles, 1 Cal. I. A. C. Dec. 252. 81 In re Grant, Op. Sol. Dept. of L. 94. 82 The ordinary and popular understanding of the word "laborer" accords with the definition given by the Standard Dictionary, whereby a laborer is described as "one who performs physical or manual labor requiring little skill or training other than regular domestic servants, one who gains a living by manual toil," and the definitipn given by the dictionary accords with the view taken by probably a decided majority of the courts. 24 Cyc. 810 et seq. According to general understanding, the occupation of a laborer is distin- guished from other occupations by the fact (1) that his work is essentially physical and toilsome ; (2) that it makes a demand primarily upon his physi- cal or mechanical powers and not upon his intellectual faculties except in a § 55 workmen's compensation 186 have been determined to include a storekeeper in the Canal Zone/* an inspector whose duties involved no manual labor,'* a messen- minor degree; (3) that it requires on his part relatively little skill, except of a manual or mechanical sort, and I'elatively little training, except such as comes from examples and experience; (4) that it calls for the exercise of little or no independent judgment or discretion ; and (5) that it is performed by rule of thumb or under the immediate direction of a superior. In re Grant, Op. Sol. Dept. of L. 94. In its ordinary and usual acceptation, the word carries with it the idea of actual physical and manual exertion or toil. Farinholt y. Luckhard, 90 Va. 936, 21 S. E. 817, 44 Am. St. Rep. 953. A laborer is one who labors with his phy.sical powers in the service of and under the direction of another for fixed wages. Blanchard v. Railroad Co., 87 Me. 241, 32 Atl. 890. A laborer is one whose work depends upon mere physical power to perform ordinary manual labor, and not one engaged In services consisting mainly of work requiring mental skill or business capacity, and involving the exercise of the intellectual faculties. Klln^ v. Russell, 113 Ga. 1085, 39 S. E. 477. Primarily a clerk in a mercantile establishment Is not a laborer', even though the proper discharge of his duties may include the performance of some amount of man- ual labor. If the contract of employment contemplated that a clerk's serv- ices were to consist mainly of work requiring mental skill or business ca- pacity, and involving the exercise of his intellectual faculties rather than work the doing of which properly would depend upon the mere physical power to perform ordinary labor, he would not be a laborer. If, on the other hand, the work which the contract required the clerk to do was, in the main, to be the performance of such labor as that last above indicated, he would be a laborer. Oliver v. Macon Hardware Co., 98 Ga. 249, 25 S. B. 403, 58 Am. St. Rep. 300. • "Laborer" should be construed according to its common acceptation, and to mean men who do work which requires little skill, as dis- tinguished from an artisan. Guise v. Oliver, 51 Ark. 356, 11 S. W. 515. When we speak of laboring or working classes, we do not intend to include therein persons like civil engineers, the value of whose services rests rather in their scientific than in their physical ability. In one sense the engineer is a laborer; but so is a lawyer, a doctor, and a banker, yet no statlsiician has ever been known to include these among the laboring classes. Railroad Co. V. Berry, 31 Tex. Civ. App. 408, 72 S. W. 1049. The word "laborers" re- fers to those whose services are manual or menial, those who are responsible for no independent action, but who do a day's work or stated job under the direction of a superior. Wlldner v. Ferguson, 42 Minn. 112, 43 N. W. 794, 83 In re Innlss, Op. Sol. Dept. of L. 81. 8* In re Shetler, Op. Sol. Dept. of L. 108; In re Creamer, Op. Sol. Dept. of L. 109. 187 PERSONS ENTITLED TO COMPENSATION § 55 ger in the government printing office carried on the clerical roU,'^ and the master of a dredge, where the work performed was in the nature of that of a "handy man," *« but not a ship's drafts- man,^' the matron of an Indian school,^* a transit man,'° a sur- veyor,^" a clerk engaged in office work,"^ an instrument man in a surveying party, where his work was manual and physical, rather than clerical or professional,"^ an assistant veterinarian, engaged in treating sick animals, giving medicine, and dressing wounds,"' a laboratory, assistant engaged in making tests of materials in a chemical laboratory,"* a dockmaster, having the care of a dock and the supervision of the dock force,"° a "laboratory assistant" at the Picatinny Arsenal,"" or a cement tester and chemist in the reclama- tion service, whose work was semiprofessional in nature."' The class of workmen designated by the term "laborer" has been de- termined to include a policeman or watchman,"^ a time inspector,"" 6 L. E. A. 338, 18 Am. St. Rep. 495. In the language of the business world, says Mr. Chief Justice Peters, a laborer is one who labors with his physical powers, in the service and under the direction of another, for fixed wages; this is the common meaning of the word, and hence its meaning in the stat- ute. Blanchard v. Eailroad Co., 87 Me. 241, 32 Atl. 890. 8 5 In re EUett, Op. Sol. Dept. of L. 112. 88 In re Waters, Op. Sol. Dept. of L. 110. 8 T In re Eipley, Op. Sol. Dept. of 1j. 110. 8 8 In re Humphreys, Op. Sol. Dept. of L. 111. 89 In re Grant, Op. Sol. Dept. of L. 94. 90 In re Sheppard, Op. Sol. Dept. of L. 98. 91 In re Alcee, Op. Sol. Dept. of L. 61. 92 In re Sanders, Op. Sol. Dept. of L. 114. 93 In re Brown, Op. Sol. Dept. of L. 102. 9* In re Ransom, Op. Sol. Dept. of L. 103. 95 In re Trahey, Op. Sol. Dept. of L. 105. 86 In re Miller, Op. Sol. Dept. of L. 108. 97 In re Fenz, Op. Sol. Dept. of L. 116. 9 8 In re Golden, Op. Sol. Dept. of L. 68. 99 In re Sittert, Op. Sol. Dept. of L. 90. § 55 workmen's compensation 188 a rigger and diver,^ an employe designated a messenger, but en- gaged in work of the laboring class," a sailor working on a dredge and assisting in dredge work,' an employe appointed as a special laborer messenger engaged on laborer or messenger work, except when detailed to clerical work,* a packer employed in a navy yard storeroom, to handle, a1-range, and list stock,'' a "survey man" re- quired to render assistance to surveyors," a working foreman of laborers,' though an acting inspector,' an employe designated an inspector, engaged in marking and passing cross-ties, piling, and lumber, and without any duty of supervision or superintendence," but not a foreman or superintendent, who directs the work of oth- ers and whose work is mental and administrative or executive,^" a draftsman whose duties resemble those of a clerk or artist,^^ or a concrete inspector engaged in inspecting and directing the work of others.^" In respect to a sanitary inspector in the Canal Zone, it has been authoritatively said that, if he was employed principally on account of his expert or professional knowledge of disease germs and the like, he should be regarded as belonging to the professional class, and the fact that his duties required him to visit different parts of the canal cut would not bring him within the scope of the Act, but that if he was employed on labor which was essentially 1 In re Lagerholm, Op. Sol. Dept. of L. 104. 2 In re MuUins, Op. Sol. Dept. of L. 58. 3 In re Zacias, Op. Sol. Dept. of L. 62. 4 In re Adler, Op. Sol. Dept. of L. 63. 6 In re Crandall, Op. Sol. Dept. of L. 77. 6 In re Hott, Op. Sol. Dept. of L. 89. 7 In re Kline, Op. Sol. Dept. of L. 92. 8 In re Keating, Op. Sol. Dept. of L. 91. = In re Baker, Op. Sol. Dept. of L. 100. 10 In re Little, Op. Sol. Dept. of L. 78. 11 In re Keeves, Op. Sol. Dept. of L. 73. 12 In re Cunningham, Op. Sol. Dept. of L. 81. 189 PERSONS ENTITLED TO COMPENSATION § 57 physical, or at least manual, even though requiring skill in its per- formance, and if his duties required no more special knowledge or training than an ordinarily intelligent person might readily ac- quire after entering upon the discharge of the duties of the position, he should be regarded as of the laboring class, to which the Act ap- plies.^* § 56. Previous health of employe Compensation legislation does not confine its protection to . healthy employes. The previous condition of health is of no conse- quence in determining the amount of relief to be afforded. It has no more to do with it than the employe's lack of ordinary care or the employer's freedom from simple negligence, though it is a cir- cumstance to be considered in ascertaining whether the injury re- sulted from the work or from disease.^* § 57. Minor employes The fact that the injured employe, in view of his youth, is em- ployed unlawfully, does not bar the recovery of compensation in lowa^^ and California;^* but a different rule prevails in Minne- sota,^^ in view of a provision making the Act applicable to minors IS In re Pickett, Op. Sol. Dept. of L. 80. 1* (Wk. Oomp. Act, pt. 5, § 2) In re Madden, 222 Mass. 487, 111 N. E. 379 ; Crowley v. City of Lowell, 223 Mass. 288, 111 N. E. 786. See §§ 98, 125, post. IS Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 22. 18 Where, an employer, either willfully or in good faith, employs a minor under fifteen years of age in violation of a law which requires that a permit be secured from the superintendent of schools prior to such employment, the minor on being injured in the course of his employment, is entitled to compensation notwithstanding the illegality of the employment. The em- ployer cannot avoid the requirements of the Workmen's Compensation Act by urging that he had no lawful authority to employ the minor. Stanton v. Masterson, 2 Cal. I. A. C. Dec. 707. 17 Op. Atty. Gen. on Minn. WK. Comp. Act, Bui. 9, p. 22. § 57 workmen's compensation 190 "who are legally permitted to work under the laws of this State," ^* and also in Wisconsin.^* However, in the latter state, where the minor is legally permitted to work, but cannot legally work in the hazardous employment at which he was injured, he is within the Compensation Act.^" Contrary to the rule applicable to common- law actions, compensatifci cannot be recovered under the Washing- ton Act for the death of a child under 14 and employed in a mill in violation of statute, though there is no causative connection be- tween the violation of the law and the death of the boy.^^ The New Jersey Act does not apply in case of injury to a child under 14 years of age who is unlawfully employed in a factory."'' An apprentice who is qualifying bimself to operate an elevator is an "employe" within the Minnesota Act.''* § 58. Employes excepted Many of the Acts provide in substance that "employe" shall in- clude every person in the service of another under any contract of hire, express or implied, oral or written, except one whose employ- ment is casual or is not in the "usual course of the trade, business, profession or occupation" of his employer, or not for the purposes of his employer's trade or business."* These, as well as other ex- 18 (Wk. Comp. Act, § 34 [Gen. St. 1913, § 8230]) Pettee v. Noyes (Minn.) 157 N. W. 995. IB The Gompensation Act does not govern where a minor is employed in violation of law. StetK v. F. Mayer Boot & Shoe Co. (Wis.) 156 N. W. 971. 20 St. 1913, § 2394—7 (2)— 8; Foth v. Macomber & Wbyte Rope Co., 161 Wis. 549, 154 N.' W. 369; Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. E. A. 1916A, 1, Ann. Cas. 1915B, 847. 21 HlUestad v. Indus. Ins. Com. (1914) 80 Wash. 426, 141 Pac. 913, .^n. Cas. 1916B, 789. 22 Hetzel V. Wasson Piston Ring Co. (N. J.) 98 Atl. 306. 2 3 Pettee v. Noyes (Minn.) 157 N. W. 995. 2* The employment was for the purposes of the business within the Eng- lish Act in case of the casual employment of a laborer hired to repair the roof of a building in which a grocery and drapery shop were run, although 191 PERSONS HNTITLHD TO COMPENSATION § 58 ceptions contained in the various Acts, should be construed reason- ably to effectuate the legislative intent.^" and should be held inap- plicable where the employe is engaged in the business for which he was hired and has no reason to think there is any change in the business, and where there is no change of employer.^^ In the ab- sence of a clearly expressed legislative intent to that effect, an Act will not be construed to exempt from its operation nonresident employes of alien employers who, while working within the state, may receive personal injuries arising out of and in the course of em- ployment.^^ the upper part was used as living quarters by the assistants (Johnston v. Monasterevan General Stors Co. [1909] 2 Ir. R. 108, C. A.) ; where a retired doctor, farming for profit, hired a man in casual employment to trim some trees which seemed liable to injure a wall of the haggard, and he was injured while doing the work (Cotter v. Johnson [1912] 5 B. W. 0. C. 568, 0. A.) ; where a laborer asked a farmer to cut an intervening hedge which shaded the laborer's garden, and was told by the farmer he would pay him to do it himself, the farmer saying he would use part of what was cut off for hop holes (Tombs v. Bomford [1912] 5 B. W. C. 0. .338, C. A.) ; but not where a widow managed property, part her own and part in which she owned a share, making no charge to her relatives for looking after their shares, and em- ployed a workman to whitewash some of the cottages (Bargewell v. Danies [1908] 98 Ij. T. R. 257, C. A.) ; where a shopkeeper employed a casual laborer to repair some buildings occupied by his tenants, and entirely disconnected with the shop (Kelly v. Buchanain [1913] 47 Ir. L. T. 228, C. A.) ; or where a workman was hired to clean the windowg of a physician's residence, includ- ing the window of his consulting room (Rennie v. Reid [1909] 1 B. W. O. 0. 324; Ct. of Sess.). 25 Panama-Pacific International Exposition Co. v. Hopper, 1 Oal. I. A. 0. Dec. 429. 26 (St.j:911, c. 751, pt. 5, § 2) In re Howard, 218 Mass. 404, 105 N. E. 636. Where an employ^ was engaged in trimming trees for his employer, an elec- tric company, under directions of the company's agent, which work he had been hired to do, the work was not "casual" or outside the "usual course of the trade, business, profession or occupation," though the company may have no interest in' trimming the particular tree on which the employ^ was work- ing at the time of the injury. Id. 27 The Massachusetts Act does not disclose such legislative intent. In re American Mut. Liability Ins. Co., 215 Mass. 480, 102 N; E. 693, Ann. Cas. 1914D, 372. § 59 woekmen's compensation 192 § 59. Farm laborers A provision excepting "farm laborers" from the operation of an Act,^' places outside the Act one employed to do the ordinary work done by one hired by a farmer to aid in the common incidents of agricultural employment/" but does not except employes working 28 The Act was not intended to confer its advantages on farm laborers or impose Its 'burden on farmers. In re Keaney, 217 Mass. 5, 104 N. B. 438. The Compensation Act does not apply to farmers. (Code Supp. 1913, tit. 12, c. 8a) Op. Sp. Counsel to Iowa Indus. Com. (1915) pp. 9, 5. 29 (St. 1911, e. 751, pt. 1, § 2) In re Keaney, 217 Mass. 5, 104 N. E. 438. A farmer, operating his own threshing machine and using it exclusively for his own private use, is engaged in an agricultural pursuit, and therefore ex- cluded. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 11. Where a farm hand is ordered to haul a load of lumber from a point in a city to a railroad depot for shipment to another farm, and is injured while so doing, he is a farm laborer, and engaged as such when injured, and his employer is exempt from liability, even though the goods carried are not for use or connected with the farm upon which he is employed. RatclifE v. De Witt Co., 1 Cal. I. A. C. Dec. 639. Where one is employed on a farm to milk the cows and take care of the poultry, he is engaged in farm labor, and not within the protection of the Act. i^olf v. Scripps, 1 Cal. I. A. C. Dec. 509. Where a general farm hand, employed to cut wood and do general work as required about a country resort and vineyard, lost the sight of an eye from a flying wedge which he had been driving into a stump which he was cut- ting up for firewood to be used in such resort and vineyard, he was engaged in farm labor at the time of injury. Boschetti v. Lecas, 3 Cal. I. A. O. Dec. 39. Carpentry. — ^Where a carpenter is engaged by a farmer for the sole pur- pose of building a barn, and is injured while working upon said barn upon the farm, he is not at the time of his accident engaged in farm labor, and is therefore under the protection of the Act. Craig v. Hartson, 2 Cal. I. A. C. Dec. 235. Where a carpenter by trade works at both carpentry and farm labor, but is hired out as and engaged as a carpenter when injured, -and was hired for the job of building a cottage, he is a carpenter, and not a farm laborer. Blaine v. McKinsey, 1 Cal. I. A. C. Dec. 641. Bay Baling. — ^A workman engaged in the operation of a hay baling ma- chine on the ground where the hay is produced, although the employer is not a farmer or an agriculturist, but one who goes about the country baling hay with his machine by the ton for farmers, is engaged in farm and agricultural labor, and his accidental injuries are not compensable. Neimeyer v. Volger, 2 Cal. I. A. C. Dec. -305. Where a contractor engages in baling hay with dif- ferent farmers upon their ranches, and his employ^ is injured while on the 193 PBKSONS ENTITLED TO COMPENSATION § 59 for one engaged in a commercial or other non-agricultural enter- prise,'" though he be a farmer.'^ A provision excepting employes engaged in horticulture excludes an employe working as nurseryman and gardener in setting out trees and plants and embellishing a townsite.*'' The right to com- pensation is determined by the character of the labor actually being done when the accident occurs, or the major portion of the tasks to be performed,'' rather than by the fact that the. employe occa- farm baling hay for his employer and for the farmer, such injured employ^ is engaged in farm labor at the time of the accident, and is not within the protection of the Act. Vincent v. Louis, 2 Cal. I. A. C. Dec. 130. Where an employer owns a hay press, which he moves from farm to farm, baling hay on contract for the owners of said farms, and his employ^ is Injured while working on the hay press on a farm of a person for whom hay is being baled on contract, such employ^ is engaged in farm labor at the time of his Injury, and his employer is not liable under the Act. Morris Vi Spears, 1 Cal. I. A. O. Dec. 317. 30 Operators of threshing machines upon a commercial basis are within the act when they thresh other people's grain for hire. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 11. Where a woodchopper is injured at the end of a year's continuous employ- ment cutting wood on a 40-acre tract of timber land, one acre of which is under cultivation as a garden, and all the cut wood Is shipped away by the employer for sale, the returns therefrom being the only income of the tract, the employ^ is not engaged in farm labor, even though the employer is clear- ing the land to make a farm of it. Pappas v. Warren, 2 Cal. I. A. C. Dec. 874. 81 Where a farmer owning a sugar mill goes about the community grinding cane for hire, he is engaged in a commercial enterprise, and is not engaged in an agricultural pursuit. (Code Supp. 1913, § 2477m [a]) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 12. When a farmer engages in ordinary teaming, such as hauling water for a mine, he has stepped outside the exempted classes of "farm, dairy, agricul- tural, viticultural or horticultural labor, stock or poultry raising, or house- hold domestic service," and his employ^ automatically comes within the protection of the Act. Jenkins v. Pieratt, 1 Cal. I. A. C. Dec. 114. 82 Ruprecht v, Dominguez Land Corporation, 3 Cal. I. A. C. Dec. 5. 88 Where a person is employed to work about a city residence, a principal portion of his duties being to take care of and exercise blooded horses (not involving stock raising), but a minor portion of his duties consists In gar- dening and performing incidental tasks in connection with the upkeep of the HON.COMP. — 13 § 59 workmen's compensation 194 sionally does farm labor.** The purpose for which the work was being done determines its character. Plowing is commonly farm labor, as is also the clearing of brush and shrubs to prepare land for cultivation. '° But if done to make the land ready for railroad premises, such employs is* not engaged in farm labor, particularly where at the time of the accident he is engaged in exercising horses, and not in gar- dening. Cleveland v. Hastings, 2 Cal. I. A. C. Dec. 15. 3 4 The fact that an employ^, whose regular trade was that of a carpenter, and who was employed on a farm to do carpentry, sometimes did farm la- bor, when there was no carpenter work to be done, does not suffice to class him as a farm laborer. Feehan v. Tevis, 2 Cal. I. A. C. Dec. 434. 8 Mann v. Locke, 2 Cal. I. A. C. Dec. 415. Clearing land. — Where a farmer, clearing his land of brush and timber to make the land available for agricultural purposes, engages a teamster to haul the wood and brush to town for sale, the employ^ is engaged in farm labor while doing such woi-k, and is not 'within the Act. Hanson v. Scott, 2 Cal. I. A. C. Dec. 730. Where a person is employed to cut and burn brush and trees in clearing land, the land to be set out to fruit trees when cleared, he is engaged in farm labor. Whitney v. Peterson, 1 Cal. I. A. C. Dec. 306. Where an employ^ was injured in the operation of a portable sawing ma- chine while cutting cordwood into stove length on a farm, the wood having been cleared from the land incidental to the operation of the farm', to be dis- posed of by sale and partly for farm use, he was engaged in farm labor. Miller v. Algar, 2 Cal. I. A. C. Dec. 584. Employes engaged in forestry are, ordinarily, not within the classes excluded by section 14 of the Act; but in cases where the essential purpose is the clearing of land for agriculture, and not lumbering or other branches of forestry, and the wood-sawing is only a matter of disposing of the by-product of the clearing of land for the purpose of making a farm, it is proper to regard the labor of cutting such wood as farm labor. Id. Where land was presently being operated as a dairy farm, and it was necessary to remove old stumps from a considerable area to change the use of the land from grazing to fruit raising, the laborers em- ployed for such purpose were farm laborers, excluded from the compensation provisions (sections 12 to 35, inclusive) under the definition of "employ^" con- tained in section 14. Martin v. Russian River Fruit & Land Co., 1 Cal. I. A. C. Dec. 18. In determining the classification of employes, as defined in section 14, it is proper to take into consideration modern progress and con- temporary methods in industrial pursuits. The use of high explosives and power agencies has become, in a large measure, incident to agricultural in- dustry, the use of blasting powder was held to be an agricultural use, and the laborers employed in the use thereof to be engaged in farm labor. Id. 195 PERSONS ENTITLED TO COMPENSATION § 59 construction, or for the construction of expensive reservoirs, dams, or canals for irrigation purposes, the workmen so engaged are not engaged in farm labor.^^ In Iowa, farmers can make the Act a part of their contract with their hired help, and then insure their liability under such contract.'' Likewise the Michigan Act does not exclude farmers from accepting the provisions of the law, but exempts them from its operation merely in the sense that they suf- fer no harm by not coming under it.'* In the words of Chief Justice Rugg, of the Supreme Judicial Court of Massachusetts, the Massachusetts Act "is a practical measure designed for use among a practical people. A farmer may adopt it if he desires. Any contract of insurance made by him under its terms is enforceable. On the other hand, if he does not desire to make it available to all his employes, he may procure in- surance for a limited portion of them. If there are those, separa- ble from others by classification and definition, whose labor is more exposed or dangerous, or whom he may desire to protect for any other reason, there is nothing in the Act to prevent him from doing so. The purposes of the Act are such that, if feasible, it ought to be extended to include cases within its scope interpreted in the 86 Where an employ^ of a farmer was clearing a levee In a farmer's pro- tection district, under the superintendence of the protection district foreman, for the purpose of preparing the ground to be raised two feet by scrapers, thus enabling the farm owners to safeguard their lands against overflow, and a willow branch struck the employe in the eye, the employ^ was not en- gaged in farm labor. Mann v. Locke, 2 Cal. I. A. C. Dec. 415. The impound- ing and distributing to farmers of water for irrigating purposes is not farm, dairy, agricultural, viticultural, or horticultural labor, and an employ^ of a corporation engaged in such an occupation is subject to the Compensation Act. Matney v. Azusa Irrigating Co., 2 Cal. I. A. C. Dec. 898. Where a carpenter was employed on a farm to do carpentry and other work, and met with an accident while actually doing carpenter work, at carpenter's wages, in the construction of a dam for an artificial lake, such work was not farm labor, and the employer was liable for compensation. Feehan v. Tevis, 2 Cal. I. A. C. Dec. 434. 3 7 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 9. 38 Shafer v. Parke, Davis & Co., Mich. Wk. Comp. Cases (1916) 7. § 60 Woekmen's compensation 196 light of its purpose, and to encourage its adoption by those who for reasons of legislative policy were excepted from its express operation. If construed to compel farmers to insure for all their laborers if they undertake to insure for any of them, the inevitable tendency would be to discourage resort to the Act in any respect." '' That a farmer engaged*in selling produce procured insurance for "drivers and helpers" did not render him liable under this Act for injuries to a farm laborer.*" § 60. Domestic and household servants The term "domestic servant," within Acts excluding domestic and household servants, means one who lives and works in the house, and does not exclude a servant whose employment is out of doors.*^ Whether a chauffeur is excluded from the provisions of the Act depends upon the circumstances surrounding each par- ticular case, and where he looks after the car and drives it, and boards and sleeps on the premises, he is excluded as being a domes- tic servant. A household servant is one who dwells under the same roof with the family under circumstances making him a member thereof.*^ The status of a household servant is determined rather by his relation to the family than by his relation to the service.*' For example, a workman hired to tend the furnace, mow the lawn, and do odd jobs about the house and premises, who has a room in the house in which to sleep, and who eats at the family table, is 3 » In re Keaney, 21T Mass, 5, 104 N. E. 438. *old. *i Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 16. Whether a chauffeur is excluded from the provision of the Act depends upon the circumstances surrounding each particular case, and where he looks after the car and drives it, and boards and sleeps on the premises, he is ex- cluded as being a domestic servant. Op. Atty. Gen. on Minn. Wk. Oomp. Act, Bui. 9, p. 20. 4 2 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 16. 43 Id. 197 PERSONS ENTITLED TO COMPENSATION § 60 a household servant.*'' On the other hand, a chauffeur hired by the month to run the employer's private automobile, but not living under such conditions as to constitute him a member of the family, is not a household servant.*" Likewise one who is employed to perform incidental services around the premises and residence of his employer, and not required to do anything inside the house, and who does not live on the premises, is not engaged in "house- hold domestic service," within the meaning of the California Act. While it is doubtful whether the test of living in the employer's: house is the sole test of household service, it is essential that he be engageid in rendering service in the house, such as cleaning, cook- ing, or washing.*' Where a porter in a saloon was sent upstairs by the proprietor to wash the windows in the apartment above, where such employer resided with his family, the porter receiving extra pay when he did such upstairs work, and while so engaged fell to the sidewalk and was injured, at the time of his injury he was engaged in household domestic service.*' Employes entitled to compensation under the California Act do not include any "em- ploye engaged in farm, dairy,*^ agricultural, viticultural, or horti- 44 (Code Supp. 1913, § 2477m [a]) Id. *s (Code Supp. 1913, § 2477m [a] and section 2477ml6[b]) Id. 46 Cleveland v. Hastings, 2 Cal. 1. A. C. Dec. 15, 47 Castellottl v. McDonnell, 1 Cal. I. A. C. Dec. 351. 48 Where a rough carpenter and cement worker Is called out of town by the owner of a dairy to put a roof on a reservoir used for storing water for the watering of the stock, and Is put to work repairing a leak in the con- crete reservoir, the breaking of a ladder causing him to fall and fracture his wrist, he is not an "employ^" as defined by section 14 of the Compensation Act, being engaged in dairy labor, an excepted occupation. Beed v. Winn, 2 Cal. I. A. C. Dee. 687. Employes not engaged im, farm or dairy laior: An employ^ engaged in de- livering milk for an employer who buys milk at wholesale and retails it to the consumers. Woodruff v. Peterson, 1 Cal. I. A. 0. Dec. 516. A carpenter employed by persons operating a dairy ranch to go upon the ranch and build a bam, residing on the ranch while at work. Oowles v. Alexander & Kel- logg, 2 Cal. I. A. C. Dec. 615. § 61 workmen's compensation 198 cultural labor,*" in stock •"* or poultry raising, or in household do- mestic service." °^ § 61. Clerks Within the provision of the Iowa Act that the term "workman" means those engaged ifl^clerical work only, but clerical work shall *9 Where a rough garden laborer, whose duties are moving and trans- planting trees and constructing boxes and framework, strains himself while moving soil with a wheelbarrow to fill in ground for a lawn, he is engaged in horticultural labor. Georgandas v. Panama-Pacific International Exposi- tion, 2 Cal. I. A. 0. Dec. 520. Where a laborer is in the employ of a nursery, whose duties are in the handling of trees and plants in transplanting and in loading them on a truck for the market, is Injured while being conveyed with fellow workmen on the automobile truck, -he is injured while engaged in horti- cultural labor. Butti v. MacRorie-McLaren Co., 2 Cal. I. A. C. Dec. 535. Where a gardener was employed by an exposition company to take care of the lawns, trees, and shrubbery on their grounds, and was injured by a scratch upon the eyeball while working as such gardener, he was engaged in horticultural labor. Panama-Pacific International Exposition Co. v. Hooper, 1 Cal. I. A. C. Dec. 429. Where a gardener was employed to prune, trim, and spray fruit trees growing upon the residence premises of the defendant, who was a city employ^, he was engaged in horticultural labor. Bagley v. James, 2 Cal. I. A. C. Dec. 842. 50 Where it distinctly appeared from the application itself, corroborated by the answer, that the employ^ was kiUed whUe riding a horse, gathering cattle for his employer, who was engaged in the business of raising cattle, the Commission has no jurisdiction; employes engaged in stock-raising being excluded by the Compensation Act from accident disability benefits. Topping V. Ellis, 2 Cal. I. A. C. Dec. 382. Where a cook is in charge of a kitchen for the feeding of the hands on a large cattle ranch of 4,500 acres of grazing land, a small extent of which was in grain and alfalfa, he was engaged in stock-raising, and therefore the accident was not compensable. Acrey v. City of Holtville, 2 Cal. I. A. C. Dec. 587. Where an employer, engaged in the business of hog raising on a farm in the outskirts of Los Angeles, in or- der to obtain the vegetable refuse matter of the city market, had to enter into a contract to remove, for a consideration, all garbage from the market, and in the hauling of such garbage, of which but one-third was suitable for hog feed, the teamstier sustained an injury, such employ^ residing on the farm and having no other duty than to do such hauling, such injury was not com- pensable ; such employ^ being engaged in stock-raising, an excepted employ- ment. Dana v. De Turk, 2 Cal. I. A. C. Dec. 954. 61 Wk. Comp. Act (Cal.) § 14. 199 PERSONS ENTITLED TO COMPENSATION . § 62 not include one standing in a representative capacity to the employ- er, a partner and a managing corporate officer, being persons stand- ing in a representative capacity, are not entitled to compensation. Partners are ernployers rather than employes."* § 62. Casual employes That a workman's employment is casual or intermittent does not deprive him of the status of "employe," in the absence of an ex- press statutory provision to that effect." But many of the Acts ex- clude from their protection casual employes, excepting, in some states, certain municipal and other public employes,'* and it be- comes material to determine what is a casual employe. Time hjis confirmed the wisdom of the conclusion, early arrived at by the English authorities, that no hard and fast definition of the term "casual" is advisable."" The word, as commonly used, means some- 62 (Code Supp. 1913) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 3. B3 In re Kheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. If deemed desirable to withhold compensation from casual of occasional employes, as is done by the Compensation Acts of some states, that is a matter for the Iiegislature, not for the court or Commission. Id. 04 The proviso of the Michigan Act, excluding those "whose employment is but casual," does not apply to employes of the state or of municipal corpo- rations within the state. (Wk. Comp. Act, pt. 1, § 7, subd. 2) Agler v. Mich. Agricultural College, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 25. Under the Ohio Act casual employes of a county, city, township, unincor- porated village, or school district are entitled to compensation where they are injured in the course of their employment. In re Barbara Michaels, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 156. Other casual employes, though en- gaged in the usual course of trade, business, profession, or occupation of the employer, are excluded from the protection of this Act. (Wk. Comp. Act, § 14, par. 2) Clements v. Columbus Saw Mill Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 161. The defense of casual employment is not available to a municipality, but only to private employers. Browu v. City of Mauston, Bui. Wis. Indus. Com. vol. 1, p. 97. 5 5 Thompson v. Twiss (1916) 90 Conn. 444, 97 Atl. 328. § 62 workmen's compensation 200 thing which comes without regularity and is occasional and inci- dental. Its meaning may be more clearly understood by referring to its antonyms, which are "regular," "systematic," "periodic," and "certain." "* An employment is "of a casual nature" — the words of the English Act — ^when it is not stable, regular, periodic, or certain in nature.''^ The difference between those state Acts, which use the modifying word "casual," and the English Act, which uses the words "of a casual nature," must be regarded as designed."' The effect is to narrow the scope of such state Acts, as compared with the English Act. In those states, the contract of service is the thing to be analyzed to determine whether the employment is casual, while in England the nature of the service rendered is the decisive test."* Ordinarily an employment is casual when for a 6 8 In re Gaynor, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363. BT The employment was of a casual nature where a jobbing gardener was hired by the day to trim trees, then to level the lawn, and then to trim more trees, being paid by the day— (Knight v. Bucknill [1913] 6 B. W. C. C. 160, C. A.) where a carpenter was hired by a householder to cut down some trees on the grounds of a house upon which he had been working as a carpenter ; (McCarthy v. Norcott [1910] 2 B. W. C. C. 279, C. A.) where a man was hired by a householder lor several years to clean windows at irregular periods, whenever they needed cleaning ; (Hill v. Begg [1909] 1 B. W. C. 0. 320, C. A.) where, without making arrangements in advance, a workman cleaned the windows of his employer's residence once each month for four years, and was then killed; (Ritchings v. Bryant [1918] 6 B. W. C. G. 183, C. A.) where a window cleaner was in the habit of calling at a doctor's residence, without invitation, about once a month, to clean his windows ; (Rennie v. Reid [1909] 1 B. W. O. 0. 324, Ct. of Sess.) ; but not where a charwoman went to the same employer regularly on certain fixed da!ys, although without special orders; (Dewhurst v. Mather [1909] 1 E. W. C. C. 328, C. A.) nor where an old serv- ant worked f(5r several years in the woods when trimming season arrived, for as long as the work lasted each year, this being regular seasonal em- ployment (Smith V. Buxton [1915] 8 B. W. C. C. 196, C. A.). OS In re Gayner, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363. (Since the rendition of this decision the Massachusetts Act has been amended by striking out the words "or casual.") B 9 Thompson v. TWiss, 90 Conn. 444, 97 Atl. 328; In re Gayner, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363 ; Knight V, Bucknill, 6 B. W. C. C. 160. 201 PERSONS ENTITLED TO COMPENSATION § 62 single day,*' or by the hour,'^ but not where one is employed to do a particular part of a service recurring somewhat regularly, with the fair expectation of the continuance for a reasonable time."'' 80 (St. 1911, c. 751, pt. 5, § 2, as amended by St. 1914, c. 708, § 13) In re King, 220 Mass. 290, 107 N. E. 959. A teamster's employment was but casual, where he was occasionally employed by another, as he wanted him, at a certain sum a day for himself and team. (St. 1911, c. 751, as amended by St. 1912, c. 571) In re Cheever, 219 Mass. 244. 106 N. E. 861. SI "A man was hired to shingle the home of his employer. After he had finished the shingling of this house it was the intention of the employer to have this man do some repairing around other houses that he owned. The man was hired by the hour, at the rate of 20 cents an hour. The Attorney General advised that the employment was a casual employment and the em- ployer would not be liable under the Compensation Act." Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 20. Volunteer firemen, paid 31 an hour for the first hour of service for every call, and 50 cents an hour for succeeding hours, are casual employes, and are not included in the act. Id. 62 Sabella v. Brazileiro, 86 N. J. Law, 505, 91 Atl. 1032; 87 N. J. Law, 710, 94 Atl. 1103. A man was employed by the road overseer of the county council to draw stones from the quarry. His wages were fixed by contract. The evidence showed that he was to get work now and again when there would be work to do, there being no objection to his working for some one else when he was not wanted by the overseer. The court held that he was a workman within the meaning of the Workmen's Compensation Act. O'Donnell v. Clare County Council (1913) 6 B. W. C. C. 457, C. A. ; Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 20. Where one was employed tor an indefinite period at $5 per day to work on a contract for the erection of a structural steel building, this was not a casual employment. (P. L. 1911, p. 134) Scott v. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927. Where petitioner testified that the employer told him to "come Monday morning, I Will give you some work to shave the skins," that the price was to be so much a dozen, and, if petitioner did better work, 16 cents, the jury could properly find that the intention was to give petitioner piece work in the defendant's regular business. Such employment was hot "casual." (P. L. 1911, p. 134) SchaefCer v. De Grottola, 85 N. J. Law, 444, 89 ■ Atl. 921. Where, in the work of superintending and helping in the unloading of glass to be used on a building, there was an element of certainty in the re- currence of the work at times which, though they could not be fixed definitely, were sure to occur and recur in the construction of the building, the work was not casual employment. (Wk. Comp. Act, pt. 1, § 7) Dyer v. James Black Masonry & Contracting Co., Mich. Wk. Comp. Cases (1916) 52, 158 N. W. 959. Filling a silo and digging potatoes is as much a part of the business of i§ 62 woekmen's compensation 202 Thus, one employed as a workman on a sawmill on such days as it operated during a period' of four months was not a casual em- ploye.** It does not render an employment casual that it is not for any specified length of time,** or that the injury occurs shortly after the employe begins work.** The words "or casual" have been stricken from the Massa- chusetts Act, so that all employes engaged in the usual course of the trade, business, occupation, or profession of their employer, «xcept masters of and seamen on vessels engaged in interstate and foreign commerce, will receive compensation.** farming as any other work about the farm, and the fact that It did not re- •quire a long period of time to complete the task, or that it needed to be done only once during the yt-ar, did not make it casual employment. Vojacek v. Schlaefer, Kep. Wis. Indus. Com. 1914^15, p. 8. 83 Clements v. Columbus Sawmill Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 161. 04 The evidence showed that the employ^, a brewery worker and member ■of the union, was engaged, the employment offered being that of helper in sinking and digging a well, and the employment in which he actually was engaged at the time of the injury being that of a helper in the carrying of pipes from the boiler room of the brewery. No time was fixed as the period •of his employment, but the evidence showed that it would be at least two months, and possibly more. After working seven days the employ^ received a scratch from a pipe which he was carrying, dying two weeks later from ■septic pneumonia. It was held that the employment was not casual. Coyle v. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 704 (decision of ■Com. of Arb., afiSrmed by Indus. Ace. Ed,). 6 5 An employ^ was employed to operate a buflHng machine. He was paid l>y the hour and was not employed for any specified length of time. He was injured within three hours after he entered upon his employment, by being ■struck on the left side near the region of his heart by a "buffer's chuck," which disabled him so that he had to suspend work for the day, and was unable to again resume work prior to his death, which occurred sixteen days after the injury. The Commission held that the employment was not casual. In re Bridget McAuUffe, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 144. »8 See Introduction to 2 Mass. Wk. Comp. Cases. The insurer claimed that the employ^ was not entitled to compensation, (because he received his injury while "trimming" a tree on church property, ■alleging that this work was "casual" and not in the usual course of the busi- ^03 PERSONS ENTITLED TO COMPENSATION § 63 Where the employer desires to raise the question as to whether the employe is a casual employe, and not within the Act, he should submit evidence on that question.'^ § 63. Connecticut "Casual employment," within the Connecticut Act, means occa- ssional or incidental employment; an employment which comes without regularity."* It is in this sense that the word is used, rath- er than in the sense of an employment arising through accident or •chance, which the Supreme Court of New Jersey has held to be the true meaning of "casual" as employed in the Act of that state."' If the employment be upon an employer's business for a definite time, as for a week or a month, it is not a casual employment. Nor is an employment casual if it is for a part of the workman's time at regularly recurring periods of time.'"' A workman employed in •developing land, work in which he would be engaged for several weeks if he satisfied the employer, and which was one of the ness of the subscriber. The evidence showed that the workman was engaged by a representative of the subscriber and directed to perform such work as the foreman required. The foreman, who also was the tree warden of the town of Stoughton, ordered the employ^ to "trim" the tree upon which the injury occurred. It was held that the employ^ was entitled to compensation. Howard v. Mass. Employ^' Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 1 (decision ■of Com. of Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 218 Mass. 404, 105 N. E. 636). 8 7 Victor Chemical Works v. Industrial Board of Illinois, 274 111. 11, 113 N. E. 173. 88 Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328. 88 Id., supported by Sabella v. Braziliero, 86 N. J. Law, 505, 91 Atl. 1032. In CofCey v. Borden's Condensed Milk Co., 1 Conn. Comp. Dec. 167, it was held that the employment of filling defendant's icehouse with ice from a pond on the premises, such work being done every year and requiring considerable time for its accomplishment, the employ^ being expected to work until the Icehouse was filled, was not casual employment. In a casual employe's action the common-law defenses are available. •Thompson v. Twiss (1916) 90 Conn. 444, 97 Atl. 328. ro Thompson v. Twiss, supra. § 64 workmen's compensation 204 businesses, though not the principal business of the employer, was not engaged in an employment of a casual nature.'"- A dual em- ployment does not make one a casual employe.'* § 64. California To relieve the employer from liability under the California Act,, the employment must be "both casual and not in the usual course of the trade, business, profession or occupation of the employer." '* 71 Id. T2ln Penfleia v. Town of . Glastonbury, 1 Conn. Comp. Dec. 637, a janitor employed by the city to take care of a school building, and also by a church for similar duties, was held not to have been a casual employe. 73 (Wk. Comp. Act, § 14) Paul v. Nikkei, 1 Cal. I. A. C. Dec. 648; Shouler r. Greenberg, 1 Cal. I. A. 0. Dee. 146. Compensable injiiHes. — Where a carpenter is employed by persons operating: a dairy ranch to go upon the ranch and build a bam, residing on the ranch while at work, such work is not casual or outside the usual course of the busi- ness of his employers. Cowles v. Alexander & Kellogg, 2 Cal. I. A, C. Dec. 615. Where a carpenter regularly employed by a laundry corporation in working about the laundry is directed by the president of the corporation to do an odd job on the building belonging to a stockholder, and to have his brother assist him, and it appears that the corporation was in the habit of having this car- penter make such repairs on the private property of individual stockholders, without charge to them, and to pay such carpenter his regular earnings during such service, and that it was the Intention and understanding so to do in this instance, the corporation was liable in case of fatal injuries to the brother during such employment. Such employment, though casual as to the deceased, was in the ugual course of the employer's business. English v. Cain, 2 Cal. I. A. C. Dec. 399. The employment of a person to clean out the cellar of a restaurant, taking out abandoned boxes and goods and pumping out water which had seeped in, the work consuming three days, was in the usual course of the business of the restaurant, although casual, and the person employed was not excluded from compensation. McDermott v. Fanning, 3 Cal. I. A. C. Dec. 14. While it was not a part of the laundry business to make repairs to the private property of its members, yet where it had long been the custom of the laundry to make such repairs, such custom brought the making of such repairs within the usual course of the business, actually undertaken by the laundry company as the employer of deceased. Id. Where a decorator hired a carpen- ter less than once a year, but has some woodwork to be done frequently in the course of his employment In putting up scaffolding upon which to fasten 205 PERSONS ENTITLED TO COMPENSATION § 64 It is the course of the business, not the nature of the employment, which is required to be usual. It follows that the fact that the ■decorations, such work being done usually by himself or his own employes, and where he engaged an outside carpenter to erect a booth at a carnival, to be decorated, the employment of such carpenter Is in the usual course of the business of the decorator, the erecting of scaffolding upon which to hang deco- rations being in the usual course of his business, whether it be done by his own employes or Infrequently by regular carpenters. Brain v. Eisfelder, 2 Oal. I. A. C. Dec. 30. Though a man employed for an emergency job, loading ice upon refrigerator cars, the work to last a few hours, is a casual employe, he is within the protection of the Act, where the work is the regular business of his employer. Faul v. Nikkei, 1 Cal. I. A. O. Dec. 648. Where a person who had done occasional errands before for compensation was permitted by the owner to try the automobile delivery wagon, and was given a parcel to deliver, nothing being said about payment therefor, such employment; though casual, was in the usual course of the business of the employer, and compensation should be awarded, for an Injury sustained by the overturning of the automo- bile while on such errand. Smith v. Hayashl Floral Store, 2 Cal. I. A. C. Dec. 526. Where a carpenter was employed to repair and rearrange equipment of a creamery, the employment was in the usual course of employer's business. Hoover v. Engvick, 2 Cal. I. A. C. Dec. 875. Employments not in usual course of the employer's business. — ^Neither the owner of a building, nor the manager, to whom the care of the premises has been intrusted in the owner's absence, has as a usual course of his business the repair of buUdings, so that an injury to a workman engaged In making such repair would be received in the usual course of the employer's business. Peterson v. Pellasco, 2 Cal. I. A. C. Dec. 199. Employments both casual and not in usual course. — A house painter em- ployed at a rate per day at work which could be reasonably finished in two weeks, being casual employe not employed in the usual course of the trade, business, profession, or occupation of his employer, where it did not appear that the employer was regularly engaged in any business which called for the employment of house painters, and the contract was for no definite period and obligated the painter to furnish the materials. Blood v. Industrial Ace. Com'n of State of California (Cal. App.) 157 Pac. 1140 (annulling award). Where a machinist was hired by a farmer to repair a tractor used in plowing, and, being offered employment at driving the tractor after he had repaired it, refused, and was injured before he had finished the repair work. (Wk. Comp., etc.. Act, § 14) Maryland Casualty Co. v. Pillsbury (Cal. Sup.) 158 Pac. 1031 (annulling award). Where a carpenter was injured while constructing a smaU bam or chicken house on land being set out to lemon and avocado trees, the business of employer being horticultural, and the job being finished within four days. Brockman r. Sheridan, 2 Oal. I. A, 0. Dec, 1061. Where a porter § 64 workmen's compensation 206; cause requiring the employment is unusual and extraordinary does not prevent the employment from being in the usual course of the- employer's business/* Where the length of employment is less than one week, the employment is casual/" though, contrary to^ agreement, more than a week is taken to do the work,'* but not where it is more than o»e week,'' though a more skillful employe in a saloon was sent upstairs by the proprietor to wasli the windows in the apartment above, where such employer resided with his family, the porter- receiving extra pay when he did such upstairs work, and while so engaged fell to the sidewalk and was Injured. Castellotti, v. McDonnell, 1 Cal. I. A.. C. Dec. 351. Where defendant, a retired merchant and not engaged in the- business of repairing roofs, engages the applicant to inspect defendant's roof, find the leaks, and repair them, and applicant is injured by accident while so- doing. Trenholm v. Hough, 1 Cal. I. A. C. Dec. 260. Where a carpenter was; employed by a farmer to assist him in erecting a small building, and the em- ployment lasted and was expected to last not longer than one week. Aikeiit V. Anderson, 2 Cal. I. A. 0. Dec. 323. Where a rooming house keeper em- ployed a plasterer for a period of less than one week to lath and plaster- certain rooms in his house. Augustine v. Cotter, 2 Cal. I. A. C. Dec. 49. 74 To combat a fire and prevent impending devastation on a grass range,, pasturage on which was essential to the success of the owner's ranching busi- ness, a crew of men was employed by the owner. The Commission held that such employment was in the usual course of the owner's business, the work, being necessary to preserve the business, though the cause requiring the em- ployment was unusual and extraordinary. Mazzini v. Pacific Coast By., 2 Cal.. I. A. C. Dec. 962. 75 (Wk. Comp. Act, § 14) Augustine v. Cotter, 2 Cal. I. A. C. Dec. 49 ; Braia V. Eisfelder, 2 Cal. I. A. C. Dec. 30 ; Trenholm v. Hough, 1 Cal. I. A. C. Dec. 260. Employment for a single task, lasting not more than fifteen or twenty minutes, is casual. Ginther v. Knickerbocker Co., 1 Cal. I. A. C. Dec. 458.. Where the regular carpenter was in the usual course of his employment, but the service on the particular job would require only a day, the employment of his brother merely to assist on the one job was casual employment. English. V. Cain, 2 Cal. I. A. O. Dec. 399. 76 Where one hires a workman to build a frame garage, under agreement that the workman will procure a helper and the work will not last more than six days, and where the work actually lasted eight days through failure tO' procure help, the employment is casual. Roadhouse v. Wells, 2 Cal. I. A. C^ Dec. 251. 77 Feehan v. Tevis, 2 Cal. I. A. Dec. 434; Hoover v. Engvick, 2 Cal. I.. A. C. Dec. 875. Cowles v. Alexander & Kellogg, 2 Cal. I. A. C. Dec. 615; Ra^ 207 PERSONS ENTITLED TO COMPENSATION § 65 could have completed the work in kss than a week." Employ- ments otherwise casual may cease to be casual by mere lapse of time.'" The test of the course of business of a corporation is not the work which the corporation says it is doing, but the work which it actually does as a usual, customary, or repeated matter. Where it undertakes the work of repairing its stockholders' buildings re- peatedly, it is doing that work, regardless of whether it be consistent with its name.'" Ordinary janitor work is in the usual course of business of any employer who conducts his business in any build- ing which needs to be cleaned or with machinery which needs oc- casionally to be shifted.*^ § 65. Iowa and Minnesota The Iowa Act, resembling that of California, is peculiar, in that it defines "casual employment" to refer to a person whose employ- ment is purely casual and not for the purpose of the employer's trade or business. The statutes of most of the states use the word "or" in place of the word "and." No employers are excluded from venscroft r. Packard, 3 Cal. I. A. C. Dee. 24. Where a machinist is employed to go out to the ranch of his employer with his tools and put the caterpillar traction engine in repair for operation during the season, and is so engaged for a period of ten days, such employment is not casual. Snow v. Harris, 2 Cal. I. A. O. Dec. 393. 78 Where at the time of entering upon a job it appears that the work will probably last more than one week, and the work does so last, the employment is not casual, even though a more skilled employ^ would have completed it within the week. Peterson v. Pellasco, 2 Cal. I. A. C. Dec. 199. 79 Blaine v. McKlnsey, 1 Cal. I. A. C. Dec. 641. The employment of a car- penter hired by the job to build a cottage was not casual, where he had work- ed longer than one week. Id. Casual labor ceases to be casual if it lasts more than one week. Crosby v. Strong, 2 Cal. I. A. C. Dec. 408. 80 English v. Cain, 2 Cal. I. A. C. Dec. 399. 81 Where the manager of a creamery, needing help in putting away heavy machinery, calls in a passer-by to help him for fifteen or twenty minutes at a small remuneration, and the passer-by is injured while so doing, he is en- titled to compensation. Ginther v. Knickerbocker Co., 1 Cal. I. A. C. Dec. 458. § 66 workmen's compensation 208 the provisions of the Iowa Act unless the employment is not only purely casual, but also not for the purpose of the employer's trade or business.*" A laborer picked up on the street to repair the porch of a doctor's residence is not within this Act, where the re- pair work is unimportant and requires but a few hours' labor.'^ The employment of a man t8 collect cream from farmers and bring it to the creamery, though being for one day only, and hence casual, was in the regular course of the employer's business, and therefore within the scope of the Minnesota Act.'* § 66. Independent contractor The' Compensation I^aw does not apply where the injured person is an independent contractor, and the relation of employer and employe does not exist.'" It is not possible to lay down a hard and fast general rule or state definite facts by which the status of men working and contracting together can be definitely defined in all cases as employe or independent contractor.'* Each case must de- pend on its own facts. Ordinarily, no one feature of the relation is determinative, but all must be considered together." A contractor is ordinarily one who carries on an independent employment and is responsible for the results of his work, one whose contract re- lates to a given piece of work for a given- price. These character- istics; however, though very suggestive, are not necessarily con- trolling." Generally speaking, an "independent contractor" is one 82 Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 6. 83 Id. 8* Op. Atty. Gen. on Minn. Wk, Comp. Act, Bui. 13, p. 31. 8 5 In re Sarab Johns et al., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 172; Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 7. The law of independent contractor was in no wise changed by the enactment of the Workmen's Compensation Act of 1913. Biddinger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70. 88 McCoy V. Klrkpatrick, 1 Cal. I. A. C. Dec. 599. ST Id. ; Wowinski v. Vito, 1 Conn. Comp. Dec. 629. 8 8 Thompson v. Twiss, 90 Conn. 444, 97 Atl. 32& 209 PERSONS ENTITLED TO COMPENSATION § 66 who exercises an independent employment and contracts to do a piece of work according to his own method, without being subject to the control of the employer, save as to the results of his work.*' 89 An independent contractor is one who undertakes to produce a given re- sult, but so that in the actual execution of the work he is not under the order or control of the person for whom the work is done, and is entitled to use his own discretion in things not mentioned in the plans and specifications. Rep. Nev. Indus. Com. 1913-14, p. 25. The test of the relationship of employer and employe is the right to control. It is not the fact of actual interference with the control, but the right to in- terfere, that makes the difference between an independent contractor and a servant or agent. Tuttle v. Embury-Martin Lumber Co. (Mich.) 158 N. W. 875. The services required all the applicant's time, and he was not at liberty to do teaming for any other employer. The respondent, through its superin- tendent and foremen, directed the loading and place of hauling and unloading, and in one Instance directed the discharge of a teamster employed by the applicant, and the instruction was complied with. Otherwise, the applicant employed the teamster, and paid him himself, and took care of the teams, and furnished his own barn and outfit for the teaming. He and his teamster re- ported for work at 7 o'clock in the morning, and used the team the full day, and sometimes worked overtime. He had no definite term of service ; no def- inite agreement as to any particular amount of hauling to be done. He was subject to discharge at any time. Whatever the contract of service might have been is left very largely to inference. Upon these facts, the question as to whether the applicant was an employs for hire, or a contractor, was a ques- tion of law, and it was decided that he was an employ^, and entitled to com- pensation. Mantz V. Falk Co., Kep. Wis. Indus. Com. 1914-15, p. 15. While members of an orchestra would usually be employes, their contract may make them independent contractors. (Code Supp. 1913, § 2477ml6 [b]) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 18. Where it appeared that B. and A. were copartners In the teaming business, and A. rented a team, with B. as driver, to C, and C. supposed that B. was an employs of A. sent with the team, and C. made all of the financial arrangements with A., and paid A. for the use of both team and driver, A. later dividing the earnings with B., the Commission held that B. was not an employs of C, but an Independent contractor, either singly or jointly with A. and that C. was not liable for com- pensation for injuries received by B. while so working for C. Sayers v. Gir- ard, 1 Cal. I. A. C. Dec. 352. In Penfield v. Town of Glastonbury, 1 Conn. Comp. Dec. 637, where a jani- tor was employed by three establishments, including a church, concurrently, and also dug and tended graves in the cemetery for small sums, he was an HON.COMP. — 14 § 66 workmen's compensation 210 One test, sometimes said to be decisive, is as to who has the right to direct what shall be done, and when and how it shall be done, employe in regard to the janitor work, and a contractor in respect to tlie dig- ging and care of graves. Persons held to be contractors and not worlomen: A physician,- since he is free from the control or oirection of the person employing him. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 15. OMo. One who contracts with an- other to tear down and remove a stack, the contract providing that he shall furnish his own tools and appliances, hire his own help, and deliver the ma- terials at a specified place for a stipulated sum of money; the person for whom the work was done retaining no power of supervision over the manner of doing the work. In re Sarah Johns, vol. 1, No. 7, Bui. Ohio Indus. Com,, p. 172. California. One engaged to cut ties at a certain price per tie on land of defendant, where he was at liberty to employ and did employ labor on his own account, without the consent of the owner of the land, and without such own- er having any control over the men so employed, or of the hours of labor of the applicant himself. Rose v. Pickrell, 1 Cal. I. A. O. Dec. 85. A plasterer theretofore doing journeyman work, who makes an oral contract to do a plas- tering job for a lump sum, and is given free hand to employ assistants, and takes risks of profit and loss, and is not to be controlled or supervised. Bak- er v. Armstrong, 2 Cal. I. A. C. Dec. 1057. An applicant engaged to cut and saw wood for thp defendant, and having the power to employ other men to help him, the defendant having no control over the applicant or those employ- ed by him, as to who should be employed, or their hours of labor, but only as to the length of the wood sawed, and the applicant also having simUar ar- rangements with other parties to saw wood for them on the same terms. GU- more v. Sexton, 1 Cal. I. A. C. Dec. 257. A teamster paid per load for one definite service, producing one agreed result, having full control of his team, his time, his methods of work, as to whether or not he hire all help, and of all details, except as to what is to be hauled, teaming as such, being his reg- ular business, independent and distinctive from the regular business of his principals, he supplying and controlling the entire means of producing the re- sult for which he is to be paid. (Comp. Act, §§ 13, 14) McCoy v. Kirkpatrick, 1 Cal. I. A. C. Dec. 599. The husband of applicant, where he had purchased a laundry route from the former owner and with a motor wagon of his own was carrying on the business of collecting laundry for the defendant, and be- ing paid 30 per cent, of the receipts by the laundry, and it appeared' that he was under no direction or control of the laundry as to hours of work and field for soliciting, and could even sell his route to another driver, or transfer the business to another laundry, and that he bore the losses due to bad ac- counts. Monroe v. Yosemite Laundry Co., 2 Cal. I. A. C. Dec. 718. A member of a copartnership working under a subcontractor. Kasovitch v. Wattis Co., 2 Cal. I. A. C. Dec. 319. Connecticut. One who agreed to blast and break up 211 PERSONS ENTITLED TO COMPENSATION § 66 who has the right to the general control.'" When the doing of specific work is intrusted to one who exercises an independent em- stone to be used by the respondents for building purposes, receiving wages per day, but using bis own tools and providing tbe dynamite and assistants used, and being under no direction or duty to receive directions from tbe re- spondent. Wowinski v. Vito, 1 Conn. Comp. Dec. 629. A carpenter who agreed to build a barn for the respondent, being paid by the hour, but hiring other men, and making some profit on their wages, as well as on some materials furnished by him, and doing the work from general plans, without any su- pervision as to methods. Crittenden v. Bobbins, 1 Conn. Comp. Dec. 523. One who agreed to cut wood on the defendant's land, at a fixed rate per cord, using his own discretion as to the work; the defendants having no authority or supervision as to hours, methods, tools, or persons employed. Snow v. Winkler, 1 Conn. Comp. Dec. 76. A workman who agreed to cut and pile wood on the defendant's land for, a fixed rate per cord, cutting as much as he pleased and when he pleased, and working part of the time for other people. Benoit t. Bushnell, 1 Conn. Comp. Dec. 172 (superior court reversing the com- missioner). A painter who agreed to paint the house of the respondent, fur- nishing the ladders and an assistant part of the time, making a small profit on the wages of such assistant, the respondent paying for the materials, and| for the work by the day or hour,, but having no power of direction or super- vision beyond requiring a finished job within a reasonable time. Wright V. Barnes, 1 Conn. Comp. Dec. 248. One who had agreed with the respondent to build a silo for i$20, respondent to furnish the foundation, the materials, and a helper, but having no directive rights over the work. Boyington v. Stoddard, 1 Conn. Comp. Dec. 103. l^eio York. One whose business was mov- »» A workman was employed to do certain work in the development of land, the employer furnishing the explosives and most of the tools used. The workman kept a team of horses and worked sometimes with his team. For five or six years prior to the injury he had done odd jobs for the same employer, at tunes as often as two or three times a week. He had the privi- lege of engaging help, and in fact employed men to assist him, and at the end of the week gave the employer the pay roll and received wages for these men, which he turned over to them. He was paid for his own work by the day at irregular times, receiving pay for his team when it was used, but no profit on the wages of men employed by him. It did not appear that he was responsible for the manner in which the work was done, or that the employer did not retain control over the extra men hired, as well as over the workman. Either party was at liberty to withdraw from the arrange- ment without loss from breach of contract. Hie court held that the relation was that of employer and employe, and not that of independent contractor. Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328. § 66 workmen's compensation 212 ployment, and selects his own help, and has the immediate con- trol of them, and the right to control the method of conducting the ing and handling heavy machinery, being engaged for that purpose by the de- fendants, and who employed helpers, and not only made a profit on their wages as charged against thf defendant, but also carried insurance on them, and furnished certain appliances for the use of which he charged the defendant. McNally v. Diamond Mills Paper Co., The Bulletin, N. X., vol. 1, No. 7, p. 8. WisGonsin. One who was under contract vrtth a lumber company to cut, log, haul, and deliver all the saw logs and pulp wood on certain lands, and was paid according to the amount of timber cut, and hired his own help to do the work. Zobel v. Godlevski, Rep. Wis. Indus. Com. 1914^-15, p. 12. England. A man paid 5s. a day by a county council to haul stone, and permit- ted to work whenever and in any manner he liked. Ryan v. Tipperary Coun- ty Council (1912) 5 B. W. C. C. 578, C. A. A foreman bricklayer who accepted a contract to do a piece of work, having the material furnished him, but him- self obtaining the labor and tools, and was paid in a lump sum. Simmons v. Faulds (1910) 3 W. O. C. 169, C. A. (Act of 1897). Two laborers, who agreed to remove surface earth, hired help, and were paid by the cubic yard, and who were supplied with plant and tools by the quarry master, with whom they made the arrangements. Hayden v. Dick (1903) 5 F. 150, Ct. of Sess. The head of a; gang of workmen engaged in felling trees. Curtis v. Plumb- tre (1913) 6 B. W. C. O. 87, C. A. A journeyman slater, who had undertaken as an Independent contractor, hiring his own laborer, to do a job of slating for some builders, and did not progress as rapidly as they wished, whereupon they hired another slater and two more laborers to "push the work." Barnes V. Evans & Co. (1914) 7 B. W. O. C. 24, C. A. A man who agreed to drag some logs with Ms horse, being paid a certain sum per day, and was not obliged to do the work himself, but might have sent a servant. Chisholm v. Walker & Co. (1910) 2 B. W. C. C. 261, Ct. of Sess. A man who had contracted with the harbor commissioners that he would furnish a yawl and four men to work at a pilot station, and was drowned while taking a pilot out to his ship in the harbor, he being under no obligation to do the work personally. Walsh V. Waterford Harbor Commissioners (1914) 7 B. W. C. C. 960, C. A. A rabbit trapper, who was paid so much a .couple and was his own master in respect to his work, although the employer paid him by the couple and supplied him with a cottage for his use. McConnel v. Galbraith (1914) 7 B. W. C. C. 968, C. A. A mason who agreed with a contractor to build cottages for him with- in a certain time, being paid by the day and using material furnished by the contractor, who also provided a surveyor to pass upon the work as to whether it was satisfactory, the mason not being compelled to work all the time, but working part of his time for other persons. Byrne v. Baltinglass Rural District Council & Kelly (1912) 5 B. W. C. C. 566, C. A. A letter fixer, who was hired quite often intermittently, and was paid by the piece, and who 213 PERSONS ENTITLED TO COMPENSATION § 66 work, the contractor is an independent contractor.'^ It does not make one an independent contractor that he is to be paid for his worked for others when not employed by defendants. Bumham & Co. v. Tay- lor (1910) 3 B. W. O. C. 569, Ct. of Sess. Persons held to Be workmen and not independent contractors: A person engaged by creamery at $10 per day to collect cream and deliver butter, said sum to be computed upon the basis of $75 per month wages and a further al- lowance to be made for the rental of ah automobile and team and the wages of a boy to assist in the work, and it appearing that the creamery exercised full direction and control and supervision over him as to the mode of doing his work, that he gave his time exclusively to the employment and was sub- ject to discharge at any time. Golden v. Delta Creamery Co., 2 Cal. I. A. C. Dec. 744. A carpenter working for a lump sum for his labor, the amount thereof being based upon the estimated number of days required at a given wage, and he not supplying the materials or paying his assistants, and being subject to the direction of the owner. Holmes v. Japan Beautiful Nippon Kyosin Kaisha, Inc., 2 Cal. I. A. C. Dec. 894. A cook put in charge of a board- ing house by a manufacturing company on a monthly salary, and to have in addition all profits in boarding the employes, but the work done under the direction, control and management of the company. Michael v. Western Salt Co., 2 Cal. I. A. C. Dec. 501. A shingle bolt maker, engaged on the timber land of the defendant in the cutting of shingle bolts and paid at the rate of $1.75 a cord for all work done, the pay day being at the same time as that of the men working on a wage basis, notwithstanding the fact that he had no regu- lar hours, was master of his own time, and was subject to no supervision other than that the shingle bolts conform to standard. • Travis v. Hobbs, Wall & Co., 2 Cal. I. A. C. -Dee. 506. A vaudeville actress employed at a sal- ary on a vaudeville circuit, though she furnished her own costumes and skates. Howard v. Republic Theater, 2 Cal. I. A. C. Dec. 514. A carpenter frequently employed at a daUy wage by the shop owner, where he is put to* work to fill an order for window frames, on the basis of 25 cents per frame, and is injured while so doing. Hale v. Johnson, 2 Cal. I. A. C. Dec. 339. One who is engag- ed by a merchant to collect biUs, and spends about two hours a day in so doing, no fixed compensation being agreed upon, and who is paid by being given such sum from time to time as both parties agree upon, and wlio while so engaged is not, with one unimportant exception, employed by others to collect bills at the same time. Shoulder v. Greenberg, 1 Cal. I. A. C. Dec. 146. A superintendent of construction of an oil pumping apparatus, of which he was the inventor, who receives the sum of $3.50 per day from the oil com- pany for each day of work, which the oil company designates as an "advance," but does not claim was loaned or to be repaid, and the books show a balance 91 Thompson v. Twiss, 90 Conn. 444, 97 Atl. 328. § 66 workmen's compensation 214 services on a commission basis,''' by piecework/' or by any par- ticular mode of payment.'* of $301 of unpaid advances at the death of the superintendent, a portion of which is thereafter paid to the widow. Turner v. Oil Pumping & Gasoline Co., 2 Cal. I. A. 0. Dec. 496. A salesman, who with his own motorcycle was engaged by defendant ftp solicit business in a certain district assigned to him, to be paid a commission on contracts and sales for his services, and at all times to be subject to the defendant's orders as to collections to be made and business to be sought, the sole work of such salesman being for said de- fendant. Lewis V. Garratt-Callahan Co., 2 Cal. I. A. C. Dec. 952. Michi- gan. A driver employed for no definite time to haul logs for a lumber com- pany and subject to the company's ri^t to discharge him at any time, the work being done under the control of the company, both as to time and place. Tut- tle V. Embury-Martin Dumber Co. (Mich.) 158 N. W. 875. Wisconsin. A rail- road laborer, who was paid according to the amount of work done, but whose tools were furnished by the employer, and who had no capital, no special skill, and nothing to contract for except the sale of his labor. Erickson v. Peppard & Burrill, Eep. Wis. Indus. Com. 1914-15, p. 27. England. A quar- ryman whose tools were supplied him, and who was paid by the amount of material he worked, although he had power to hire and discharge men under- him. Evans v. Penwyllt Dinas Silica Brick Co. (1902) 4 W. 0. C. 101. A quarryman who was paid by the ton for the stone he quarried, and, although he had a partner and six workmen under him, was himself under the quarry manager, who told him what kind of stone to get, where to put the refuse, and who could have discharged him for disobedience. Jones v. Penwyllt Dinas Silica Brick Co. (1913) 6 B. W. C. C. 491, C. A. A worker in a quarry, paid for exactly the number of days he worked, at a rate per day, although he was allowed to use his own judgment as to where to work and could choose his own helpers. Paterson v. Lockhart (1905) 7 F. 954, Ct. of Sess. A man em- ployed to break steel and cinders at a rate per ton, employing his own assist- ants. Vamplew v. Parkgate Iron & Steel Co., Ltd. (1903) 5 W. C. C. 114, C. A. (Act of 1897). A plumber, hired to fix some pipes and supplied with materials by the owner, who superintended the work and paid him for the work by the hour. McNally v. Fitzgerald (1914) 7 B. W. C. C. 24, C. A. A man hired by the contractor for the supply of road metal to break stones, the contractor paying him a piece rate, directing the locations of his work, and having authority to discharge him. Boyd v. Doharty (1910) 2 B. W. C. O. 257, Ct. of Sess. A worker who hauled stones for the pay of 5s. a day and was allowed to work for other people when not badly needed by his first employer. O'Donnell v. Clare County Council (1913) 6 B. W. C. C. 457, C. A. A man hired to cart milk at a certain reward per gallon, who furnished his own horse and wagon. Clarke v. Bailieborough Co-operative Agricultural & " See note 92 on page 217. ™ See note 93 on page 218. " See note 94 on page 219. 215 PERSONS ENTITLED TO COMPENSATION § 66 One who has an independent business, and generally serves only as a contractor, may abandon that character for a time and become Dairy Society, Ltd. (1913) 47 Ir. L. T. R. 113, C. A. A decorator hired to paper the walls, who came and went when he pleased, and made out and receipted his bill when through. Lewis v. Stranbridge (1912) 6 B. W. C. C. 568, C. A. A man hired to haul stone from a quarry, and paid a certain fixed sum per load. Howells v. Thomas (1905) 120 L. T. Jo. 79, C. A. Where one of the members of a partnership in the glazing business was em- ployed by the principal contractor on the building to superintend the unload- ing of the glass, which was not included in the partner's contract but was outside that contract, the partner, injured while assisting with the unload- ing, was an employ^ of the principal contractor, and not an independent contractor with respect to the work at which he was injured. Dyer v. James Black Masonry & Contracting Co. (Mich.) 158 N. W. 959. One who is employed by a manufacturing company to do the painting of its products, the manufacturing company furnishing a place to do the work by the piece or job, the person employed being left free to employ, direct, and discharge his helpers, the manufacturing company retaining no control over the mode or manner of doing the work, except that the person employed to do the painting and his helpers are required to observe shop regulations ap- plying to all employSs of the manufacturing company, is not ,an independent contractor, but an employs. It follows that, being an employfi of the manufac- turing company, he acted as their agent in employing his helpers, and they, too, are employes of the manufacturing company. In re Chester McDonough, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 152. A helper of B., being employed to take charge of a certain department of the work, injured on one of A.'s machines while in the course of employment in working on outside work, is to be regarded as A.'s employ^, and A., having elected under the provisions of ' the Compensation Act to pay compensation direct to his injured employgs, is required to compensate such injured employ^; the principle of independent contractor not applying. Robinson v. Newark Reflector Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 167. Where A., the owner of a factory, employed B. to take charge of a part of the work done in the factory, paying B. partly by the piece and partly by the hour for the time devoted by him to the work, and where B., on account of A. not having sufficient work to keep him busy all the time, was permitted to take in outside work, A. furnishing the place, the tools, and machinery with which to do such outside work, B. employing his own help for the work he did for A., as well as for the outside work, the •relation of Independent contractor does not obtain as between A. and B., either as to work done for A. or as to the outside work. Id. Where the Issue arose, and the testimony was in direct conflict, as to wheth- er a carpenter was employed by the defendant, or took the job at a contract price, and the evidence showed that the carpenter had, prior to his injury and § 66 woekmbn's compensation 216 an employe, even without doing work of a different nature from that to which he is accustomed. He may be a contractor as to part death, been paid a sum in excess of the amount claimed by the defendant to be the contract price, although the job was only half finished, that such sum paid was exactly equal to the amount due for the labor furnished at the esti- mated wage, that the speciflc^^tions of the work were very indefinite, that de- fendant gave instructions as to the work during its performance inconsistent with what would be the case if the carpenter were an independent contractor, and that the alleged contract was merely for the labor and not for mate- rials, such sum was at the most an estimate of the probable cost, and the carpenter was an employe, and not an independent contractor. Connolly v. Connolly, 2 Cal. I. A. C. Dec. 790. Passing up lumber to a carpenter and oth- erwise aiding him in the work is not usual for a contracting builder, where a contract has been let for a lump sum. Doing such work Indicates that the carpenter is an employfi within the meaning of the Compensation Act. Crosby V. Strong, 2 Cal. I. A. C. Dec. 408. A night watchman was employed by the defendant at a salary of $30 per month to watch its premises, and was at the same time employed by others to act as night watchman for their estab- fishments at different salaries. Each night he made his rounds, covering the premises of all the persons so employing him. The fact of his employment Jjy the others was known to and approved by the defendant, but the defend- Tut did not know how many others were so employing him, or who all of ,^hem were. The contract of hire with defendant was personal in nature, without any right in the employs to employ a substitute when he wished to take a vacation, and he was giyen spectflc instructions what to do and when to do it, and required to show by his night watchman's clock that he had made good for the month before his monthly salary was paid, and if- found delinquent could have been reprimanded, disciplined, or discharged. The Com- mission held that the relation between the night watchman and the employer is that of employer and employe, and not of independent contractor. Mason V. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. A teamster, owning his own team and wagon, contracted to do hauling for an employer, and agreed to provide a team and driver for $6 per day, and later appeared for work him- self, driving the team. He was required to work eight hours per day, and was under the immediate control and supervision of the employer as to the mode of doing the work, and the employer retained the power and right to discharge him and rule his team ofC the work if the services rendered were not satisfactory. No contract was made for a specified amount of hauling, or specified quantity of work to be done, or specified length of time during which the services should be rendered. The Commission held that the agree- ment amounted to a contract of hire, and was not an independent contract for the furnishing of services, though it further appeared that one week aft- er the beginning of the employment the teamster was requested to and did 217 PERSONS ENTITLED TO COMPENSATION § 66 of his service and a servant as to part."" Thus, one who is injured while operating a launch to bring supplies to a dredge for his em- furnish another team belonging to himself, with a driver hired and paid for by himself, to work for the employer at $6 per day for the use of the team and driver ; the view of the Commission being that, while it is true that the injured employs may have been an independent contractor as to the second team provided by him for defendants' work, he is at the same time an em- ploye under the terms of the first contract made between himself and his employer. Stevans v. Tittle, 2 Cal. I. A. C. Dec. 146. 02 Where a soliciting agent, provided with a horse and wagon by a dealer in furnishing goods, took goods for distribution and sale withih territory as- signed to him and was paid for his services on a commission basis, it appear- ing that he and other such agents returned all unsold goods and were cred- ited with the same list price which they had been charged up with when they took the goods out, and that each sale, after being verified by a collector of the firm, was taken over, and any possible loss assumed by the firm, and all sales were made in the name of the firm, such agent was an employ^, and not an independent contractor. Rosenberg v. Western Mercantile Co., 2 Cal. I. A. C. Dec. 673. Payment by commission is equivalent to payment of wages, provided there is a contract of hire. There is no distinction between the relations existing between applicant and defendant under their contract and that ordinarily existing between a commercial traveler, who is paid a commission on his sales in Ueu of wages, and his employer. In both instanc- es the salesmen are expected to devote their whole time to the service of the employer. Book agents or canvassers, on the other hand, are not as a rule called upon to give their whole time to the service, but may devote as much or as little to it as they please. It follows that where the applicant entered contracted to "devote his whole time and energy to selling the lots" of de- fendant, and not to sell for any other individual, firm, or corporation, and did so devote his time for two years preceding the accident arising during such service, the basis of his pay being entirely commissions, which were certain percentages of the payments made by the purchasers, out of which the agent must i>ay his own traveling and living expenses, an injury sustained by the overturning of the automobile of applicant, while he was proceeding as directed by the defendant to a new field of operations, was compensable, the applicant being an employe and not an independent contractor. Skid- more V. Brown, 2 Cal. I. A. C. Dec. 556. Where a canvasser was given by a written contract exclusive selling territory and commissions for the sale of heaters for Installation, and was expected to and did give the whole of his time to the business, and was under considerable control as to reporting progress and sales, and the heaters were installed by the selling firm, and, 85 In re Powley, 169 App. Div. 170, 154 N. T. Supp. 426. § 66 workmen's compensation ■ 218 pioyer was an employe and not an independent contractor, though he was an independent contractor for dredging operations.*" But unlike another canvasser under contract with the firm, he was not required to guarantee the purchase price of heaters sold, he was an employe, and not an independent contractor. Horgan v. Kinney, 2 Cal. I. A, O. Dec. 1006. Where a bowling alley ha^ the pins set up in its various alleys by boys, working irregularly as they may happen to be present and needed, and re- ceiving as pay 25 per cent, of the sum collected from the games which they respectively serve, the boys, while setting pins, are employes, and not con- tractors. Weaver v. Eyster & Stone, 1 Cal. I. A. O. Dec. 563. »8 The fact that one is a piece worker does not necessarily determine his status. Travis v. Hobbs, Wall & Co., 2 Cal. I. A. O. Dec. 506. Where a farm hand, though called on occasionally to do various jobs, for which he is paid, is occupied mainly with cutting wood on the farm, and is paid there- jfor by the cord, this mode of payment being agreed upon because the owner ■cannot be present to supervise, and the farm hand works steadily ten hours a day, and also performs other volunteer services and lives on the farm, the fact that he is paid by piece work will not make him an independent con- tractor. Fisher v. Dunshee, 2 Cal. I. A. C. Dec. 849. Where a lather, under contract of hire to lath a house at a certain price per thousand, subject, however, to the direction and control of the subcontractor, and liable to dis- charge at any time by him, he was an employ.6, and not an independent con- tractor. Stonaker v. Jones & Delaney, 2 Cal. I. A. C. Dec. 834. A wood- worker was engaged to cut out pieces of wood and put them together into lamps for 35 cents per lamp, and in order to expedite work was allowed to hire two helpers at a weekly rate of pay fixed by the defendant, but paid out of the 35 cents, money therefor being advanced by defendant. All ma- chines and material were furnished by defendant. The woodworker chose his own hours, but was forbidden using machines outside working hours. He did not account for money received for payment of helpers. The Com- mission held that he was an employ^, and not an independent contractor. Shaffer v. Southern California Hardwood Mfg. Co., 2 Cal. I. A. O. Dec. 891. Where a woodcutter is engaged by the agent of a subcontractor to feU trees and cut cordwood on the premises of the principal, to be paid by the cord, to furnish his own tools, and within reasonable limits to be master of his own hours and time, and is paid by check from the subcontractor, and sus- tains an injury resulting in his death, the woodcutter is an employfi of the subcontractor, not an independent contractor. Lachuga v. Kataoka, 2 Cal. I. A. C. Dec. 766. The fact that applicant was paid for his work at the rate of 18 cents for every tie cut by him was not by itself conclusive that he was an independent contractor; such mode of payment being entirely consistent BO In re Powley, 169 App. Div. ITO, 154 N. X. Supp. 426. 219 PERSONS ENTITLED TO COMPENSATION § 66 where the owner of a dredge, after leasing same to an independent •contractor, was running it, he was not an employe of such contrac- tor within the Workmen's Compensation haw." A physician employed on salary by another physician, who is under contract to supply medical services to incapacitated employes of a manufacturing concern, is an employe of the latter and not an independent contractor, although allowed to follow private prac- tice when his services are not required on contract cases.'* Where a painter, who is killed, while working without helpers, "by falling from a scaffold, has previously done work for the em- ployer and been paid a lump sum for doing painting on the em- ployer's plant, under a contract specifying the kind of work and the with his being an employe on a piece work basis, as well as with his being an independent contractor. Rose v. Pickrell, 1 Cal. I. A. O. Dec. 85. An employe who claimed that he was paid ^3 per day, while his employer claim- •ed that he had contracted to dig a sewer at 10 cents per foot, was held to be an employe, and not an independent contractor. Farley v. Koch, 2 Cal. I. A. C. Dec. 986. »* Where an aviator contracted with a moving picture concern to assist in -the making of films with his aeroplane at $5 per day and $75 for the first filght, and $50 each subsequent flight, he was an employe, and not an inde- pendent contractor. Stites v. Universal Film Mfg. Co., 2 Cal. I. A. C. Dec. "670. Where an automobile mechanic was engaged to overhaul and repair an automobile on the premises of the employer, and to be paid 40 cents an hour ' for all time put in, though he supplied at retail prices parts which he had purchased at dealers' prices, he was an employe, and not an independent con- tractor. Detwiler v. Kettering, 2 Cal. I. A. C. Dec. 810. A chair man in -an exposition relied for his earnings on casual patrons, and was furnished his equipment by the chair concessionaire, and required to conform to regu- lations as to the time of taking out and returning chairs and as to the order in which patrons should employ chair men. He was not allowed to sublet his chair, and was required to charge only a definite price and ^o pay in ad- vance daily a specific rental for his chair, with permission to retain all earnings without an accounting, this method of remuneration being adopted as the most practical for the concessioilaire. The Commission held that he was an employe, and not an independent contractor. Leon v. Exposition •Wheel Chair Co., 2 Cal. I. A. C. Dec. 845. 8 T In re Powley, 169 App. Div. 170, 154 N. Y. Supp. 426. •» Getzlafl V. Enloe, 3 Cal. I. A. C. Dec. 18. § 67 workmen's compensation 220 material to be used, he is an employe, rather than an independ- ent contractor,^' though his contract is in writing, and he agreed to do the work satisfactorily, and to do it over if it did not endure a specified length of time.^ § 67. Federal AcJ In order that one may come within the federal Act, he must be a "person employed by the United States," and not a mere con- tractor. A plate printer in the Bureau of Engraving and Printing paid by the piece," a contract tie maker, paid by the piece, who boards himself and hires and pays his own help,^ and the owner of a power boat chartered to the government and operated by the owner in its service, are contractors, and not employes of the United' States.* A workman employed by a government contractor is not employed by the government." On the other hand, one em- ployed and carried on the pay rolls of the reclamation service is employed by the government when performing work being done by a contractor for the government, if directed to do so by his su- perior." It has been determined that a workman employed in the Forest Service, designated with others to perform certain work which the government was performing under agreement with coun- ty supervisors, the latter bearing the expense, was employed by the United States and entitled to compensation for mjuries sus- tained while so employed.'' 99 (Wk. Comp. Law as amended in 1914 [Laws 1914, c. 41] § 2, group 42} In re Eheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598, lid. 2 In re Clark, Op. Sol. Dept. of L. 49. 3 In re Contractors or Jobbers at Neopit Indian Sawmill, April 8, 1915. Op. Sol. I>ept. of li. p. 58. * In re Hanson, Op. Sol. Dept. of L. 51. 6 In re Lipscomb, Op. Sol. Dept. of L. 50. B In re Crawford, Op. Sol. Dept. of L. 56. T In re Kenny, Op. Sol. Dept. of L. 57. 221 PERSONS ENTITLED TO COMPENSATION § 69 § 68. Employe of independent contractor Under the New Jersey Act, the employer is liaHe, for injury to an employe of an independent contractor from defects in ways, works, machinery, or plant, only when he furnishes same, and not when they are furnished by the independent contractor, over whose negligent conduct in not remedying defects the employer has no control.* The employe of an independent contractor, who is a subscriber, under the Massachusetts Act, has the same rights against the owner's insurer, as though it had directly insured the employer.' Where a teamster was sent by his employers to get a load of concrete sills from an inclosure belonging to certain building contractors, at their request, and on arriving was assisted by a son of one of the contractors, who selected the sills to be taken, and was injured by the falling of one of the sills while it was being carried to the wagon, he was not an employe of the contractors, nor was he engaged in the usual course of their business as con- tractors.^* Where the inventor of a plant for pumping oil was em- ployed by a company selling the machine to superintend and con- trol the installation of a plant upon the premises of the subscriber, his employers being independent contractors with respect to the subscriber, the subscriber's insurer could not be held liable for the death by accident of the inventor while so employed; he being in no sense an employe of the subscriber.^^ § 69. Officers Since public officers are not entitled to compensation as em- ployes, it becomes important to distinguish between officers and 8 Kennedy v. David Kaufman & Sons Co. (N. J. Sup.) 91 Atl. 99. As to who are Independent contractors, see^i 66, ante. » Wk. Oomp. Act, pt. 3, § 17. 10 In re Comerford, In re Contractors' Mut. Liiab. Ins. Co. (Mass.) 113 N. E. 460. 11 Western Indemnity Co. v. State Indus. Ace. Com. (Cal.) 158 Pac. 1033 (annulling award of commission). § 69 workmen's compensation 222 employes." As said by Judge Cooley: "The officer is distin- guished from the employe in the greater importance, dignity, and. independence of his position ; in being required to take an official oath, and perhaps to give an official bond ; in the liability to be call- ed to account as a public offender for misfeasance or nonfeasance m office ; and usually, though not necessarily, in the tenure of his position." " Except where the statute otherwise provides, as is done by the Ohio Act,^* a policeman is not an "employe" of the city, but is an "officer" holding an office of public trust.^" But a village night marshal, performing the duties of a policeman at night, was 12 (Code Supp. 1913, tit. 12, c. 8a, § 2477ml6 [b]) Op. Sp. Counsel to Iowa. Indus. Com. (1915) pp. 3„7. 13 Blynn v. City of Pontiac, 185 Mich. 35, 151 N. W. 681 ; Mr. Justice Cooley in Throop v. Tangdon, 40 Mich. 673. A deputy surveyor, appointed by the- surveyor general, received a personal injury while surveying lumber for the subscriber and claimed compensation as an "employs." The evidence showed that he was a public official; that he could not survey lumber under the law "for any person by whom he is employed"; that his duties were fixed by statute ; that he was under the control and direction of the surveyor general i and that his salary was fixed by law and was in the form of fees covering the service rendered. The Commission held that he was not an "employs." Emerson v. Mass. Employes' Ins. Ass'n, 2 Mass. Wk. Cbmp. Cases, 181 (deci- sion of Com. of Arb.). 1* A lieutenant of police of a city not maintaining a policemen's pensioa fund is an "employfi" within the meaning of paragraph 1 of section 14 of the Ohio Act. In re Frances B. Lyman, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 182. IB Blynn v. City of Pontiac, 185 Mich. 35, 151 N. W. 681. Policemen in the city of Minneapolis are officers of the city, and hence are excluded from the provisions of the act. Gen. Laws 1913, c. 467, § 34, subd. 1 [Gen. St. 1913^ § 8230]) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 26. The Court of Criminal Appeals of Texas has decided that "a policeman of a city is a public officer holding his office as a trust from the state, and not as a matter of contract between himself and the city, the word applying equally to every member of the police force," and that "a policeman is a public officer of the state expressly charged by the statutes with enforcing a large body of the criminal law." Ex parte Preston, 72 Tex. Cr. R. 77, 161 S. W. 115. See, also» McQuillin on Municipal Corporations, II, 940, and V, 5049 ; 28 Cyc. 497. 223 PERSONS ENTITLED TO COMPENSATION § 69 an employe subject to the Wisconsin Act." Firemen " and dep- uty sheriffs on a fee basis are officers rather than employes." 18 (Wk. Comp. Law, St. 1915, §§ 2394—3 to 2394—7) Village of Kiel v. In- dustrial Commission of Wisconsin (Wis.) 158 N. W. 68. IT Firemen of the city of Minneapolis, appointed annually and required to take an oath of oflSce, are officers of the city, and hence excluded from the provision of the act. (Gen. Laws 1913, c. 467, § 34, subd. 1 [Gen. St. 1913, § 8230]) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 24. Where part of the duty of a police constable was to act as fireman, and he was injured while so doing, he was not a workman. Sudell v. Blackburn Corporation (1910) 3 B. W. C. C. 227, O. A. 18 Where a deputy sheriff, injured while making an arrest, was appointed for his own convenience, received no compensation from the sheriff of the county, and was to receive no compensation other than fixed fees for serving of legal process, he was not an employg as defined by the Compensation Act, and his injury is not compensable. Yancey v. County of Los Angeles, 2 Oal. I. A. C. Dec. 601. § 70 woekmen's compensation 224 ARTICLE II DEPENDENTS Section 70. Who are dependents and what constitutes dependency. 71. Partial depend^cy. 72. Total dependency. 73. Alien dependents. 74. What children may be dependents. 75. Illegal and divorced wives — Marriage. 76. Nonsupport and, desertion. . 77. Dependents iinder federal Act. 78. Claim of dependent. 79. Payment to representatives — Survival of claim. 80. Determination of question of dependency. 81. Presumption of dependency — Husband and wife. 82. Parent and child. 83. California. 84. Proof of dependency. § 70. Who are dependents and what constitutes dependency Compensation Acts are founded on the theory of compensation, not only to the injured workman, but to his dependents in case of his death. ^* While ordinarily no exact standard for the determina- tion of dependency is prescribed by statute, and it is difificult, if not impossible, to formulate such a standard,^" it may be said in gen- eral terms that a "dependent" is one who looks to another for sup- port, one dependent on another for the ordinary necessities of life, for a person of his class and position,"^ and that, to be entitled to compensation as a dependent, one need not deprive himself of the 18 In re Nelson, 217 Mass. 467, 105 N. E. 357. A provision in the Constitution authorizing the Le^slature to enact laws providing "compensation to employes," in view of the trend of like legislation, must be construed to authorize laws not only giving compensation to the em- ployes themselves, but also to those dependent upon them for support. West- ern Metal Supply Co. v. Pillsbury (Cal.) 156 Pac. 491. 2 Miller v. Riverside Storage Co. (Mich.) 155 N. W. 462. 21 Jackson v. Erie R. Co., 86 N. J. Law, 550, 91 Atl. 1035; Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. Supp. 883; Dazy v. Apponaug Co., 225 PERSONS ENTITLED TO COMPENSATION § 70 ordinary necessities of life to which he has been accustomed, but he cannot demand compensation merely to add to his savings or in- vestments."^ It follows that dependency does not depend on whether the alleged dependents could support themselves without decedent's earnings,"* or so reduce their expenses that they would be supported independent of his earnings,"* but on whether they were in fact supported in whole or in part by such earnings,"" un- 36 R. I. 81, 89 Atl. 160; Simmons v. White Bros., 80 L. T. 344, 1 W. C. C. 89 ; MaiQ Colliery Co., Ltd., v. Davies, 2 W. 0. C. 108. 22 Dazy V. Apponaug Co., 36 R. I. 81, 89 Atl. 160. 23 Miller v. Riverside Storage & Cartage Co. (Mich.) 155 N. W. 462. In Howells v. Vivian & Sons, 85 L. T. 529, 4 W. C. O. 106, it was said: "The test of dependency is not vsrhether the famUy could support life without the contributions of the deceased, but whether they depended upon them as part of that income or means of living." The court held that, where the sup- port of a deceased son cost the family 14s. a week, and he added 25s. a week to the fapiily income, his father earning 33s. 9d. a week, the question of whether or not the family could support itself without his earnings is not a proper criterion of their dependency. 2* A dependent under the Act is not necessarily one to whom the contribu- tions of the injured or deceased workman are necessary to his or her support of life; the test is whether the contributions were relied upon by the depend- ent for his or her means of living, judging this by the class and position in life of the dependent. Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245 ; Howells v. Vivian & Sons, 85 Lt. 529, 4 W. C. C. 106 ; French v. Underwood (1903) 5 W. C. 0. 119 (Act of 1897). 2 5 Buchanan v. White Lumber Co., 2 Cal. I. A. C. Dec. 796; Pryce v. Pen- rickber Nav. ColUery Co., [1902] 1 K. B. 221. The mother and sister of a deceased employe who were residents of Italy and unable to work, were found to be wholly dependent upon him, though they occasionally received small remittances from another sister, who was a member of the family, earning six or seven cents a day, and from an aunt, there being evidence that such remittances were wholly gratuitous, and that the pittance earned by the sister was hardly sufficient for her own support. Petrozino v. American Mut. Liability Co. (Caliendo's Case), 219 Mass. 498, 107 N. E. 370. A workman's daughter was not dependent upon him for support where, for several years, she had resided with and been cared for by another; nor where the workman's wifq had been supported by the state in an insane asylum for more than nine years, without any contribution to her support HON.COMP. — 15 § 70 workmen's compensation 226 der circumstances indicating an intent on the part of deceased to furnish such support.^' Occasional gifts, not being contributions' being made by deceased, was she dependent upon him for support. Roberts V. Whaley (1916, Mich.) 158 N. W. 209. Where deceased and Ms brother made their homes at their sister's house, though away from Monday- untU Saturday, but spending their entire spare time at her house from Saturday imtil Monday, and each paying her $5 a week, which payments were materially greater than what was received from her, the sister was found to be a dependent. Hammill v. Pennsylvania R. Co., 87 N. J. Law, 388, 94 Atl. 313. That the workman's father worked and earned $26.40 a week, and that the mother and sisters also worked, did not alter the fact that decedent's earnings went to the general support of the, family, and that the amount contributed by him amounted to more than his board, lodging, and other expenses, and that the family were dependents, in that they derived substantial benefit from the fact that he lived with them and voluntarily gave all his wages into the common fund. Oonners v. Public Service Electric Co. (1916, N. J.) 97 Atl. 792. Evidence that an adult work- man turned over his wages to his father, and that his sister received substan- tial benefit therefrom, authorized an award of compensation to her, whether she was an adult or a minor. Id. Decedent's mother was actually dependent upon him where decedent, who was 18 years old, his stepfather, and seven other children constituted the family, and it appeared that the husband earned $11 a week and decedent $6, of which he contributed $5 to the support of the family, and that the family had no other property or Income. Krauss V. Fritz & Son, Inc., 87 N. J. Law, 321, 93 Atl. 578. Proof that, prior to and up to the time of his death, decedent gave his earnings to his father, and that the father had np other income or means of support, justifies a finding that the father was an actual dependent of decedent. (P. L. 1911, p. 139, § 2, par. 12) Eeardon v. Philadelphia & R. By. Co., 85 N. J. Law, 90, 88 Atl. 970. Where the deceased workman's sister was an unemployed schoolgirl, largely supported by his earnings, she was a "dependent." (Consol. Laws, c. 67) Walz.v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703. In Kane v. New Haven Union Co., 1 Conn. Comp. Dec. 492, it was held that where a minor son contributed all of his earnings, $11 per week, to a family fund, receiving therefrom his clothes and personal expenses, his father was a dependent. < Where the mother of a deceased employe, living with her husband and 26 Dependency in fact within section 19 (b) of the California Act refers to the receipt of support under circumstances indicating an intent of deceased to furnish support to the dependent. Prichard v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 341. The Intent of a son to contribute to his parents' sup- port must be clearly shown to establish dependency. Da Luz v. Rideout, 2 Cal. I. A. C. Dec. 359. 227 PERSONS ENTITLED TO COMPENSATION § 70 for support, do not prove dependency ; " nor does a moral obliga- tion of support to be effectuated in the future constitute depend- sons, received regular contributions toward the support of herself and fami- ly, and it appears that the husband and sons were all employed in gainful occupations under the same employer, the Commission held that, while it did not appear that the contributions were necessary to her support, it did appear that they were made, and this made her a dependent. Buchanan v. White Lumber Co., supra. But where the father of a deceased employe, claiming dependency because of his being a paralytic, is found to be receiv- ing a total disability allowance from the Foresters lodge, and to have receiv- ed no contributions from the deceased son for a year past, he is not depend- ent. Murphy v. Standard OU Co., 2 Oal. I. A. C. Dec. 304. Where it appear- ed that, after contributing for several years to his mother's support, an em- ploye had for several years prior to his death discontinued such contribu- tions and made payments on a small ranch, to which he intended bringing her to live with him on completion of the purchase and the building of a 27 Da Iiuz V. Rideout, supra. Evidence of occasional gifts by the workman to his brother does not es- tablish dependency of such brother. HoUeron v. Hill, 2 Cal. I. A. C. Dec. 289. Evidence of contributions made to a mother in the nature of occasional gifts, and not as contributions to her support, does not establish dependency. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311. Where a mother received occasional sums sent to her by her son, only at irregular intervals and on request, such sums were merely occasional gifts, not regular contribu- tions for support, and the mother was not a dependent of the son. Turley V. Bible Institute Building Co., 1 Cal. I. A. C. Dec. 472. Where deceased has not for three years before his death contributed regularly to the support of his parents, but has at irregular intervals sent money to them as remembranc- es, the parents are not dependent on him. Cal. State Board of Prison Di- rectors V. Dickerson, 1 Cal. I. A. C. Dec. 262. In Blackall v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 183, where the father of the deceased testified that she had never had steady em- ployment, and it appeared that she was barely self-supporting, if that, small sums given at various times to her grandmother, who at other times helped her to buy clothes, do not make the grandmother dependent upon her. In Blanton v. Wheeler & Howes Co., 1 Conn. Comp. Dec. 415, where it appeared that the claimant daughter of the deceased workman was married and liv- ing apart from hiin, was earning a little herself, and apparently as well sit- uated as her father, though she received small irregular gifts of money from him, which she used for living expenses, the commissioner decided as a ques- tion of fact that she was not a dependent within the meaning of the Act. § 70 workmen's compensation 228 ency in fact.^' The existence or nonexistence of a legal obligation to support, though persuasive and a factor to be considered in de- house, her dependency on him was not shown. Prichard v. American Beet Sugar Co., 2 Cal. I. A. O. Dec. 341. Where the deceased workman lived at home with his widowed mother and a sister who did the housework, his only brother living in another city and earning suflScient to support himself, and turned over all of his wages to his mother, she was the only dependent. Maire v. Wm. Landauer & Co., Kep. Wis. Indus. Com. 1914-15, p. 20. Where a deceased employfi was survived, besides a wife and child, by his mother and two sisters, aged 23 and 9 years, but had never contributed any- thing toward the support of any of the three latter, they were not depend- ent upon him to any extent. In re Laura Shaffer, vol. 1, No. 7, BuL Ohio Indus. Com. p. 7. A sister of full age was neither wholly nor partially de- pendent on an unmarried brother with whom she did not reside, though he occasionally gave her small sums of money, where she had been regularly employed for some years at from $9 to $10 a week. In re Bertha K. Cavett, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 150. An employs was killed in the course of his employment leaving surviving him a widow and a son 35 years of age, mentally and physically deficient, but who, for a number of years prior to and at the time of the death of the workman, was employed at a weekly wage of $7.50. The Commission held that the son was not wholly or partially dependent upon deceased. In re Frances Williams, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 31. Where the earnings of a workman and his two sons combined to support the whole family, and all three were killed in the same accident, the widow was a dependent of all three. Hodgson v. Owners of West Stanley Colliery (1910) 3 B. W. 0. C. 260, H. L., and 2 B. W. C. C. 275, C. A. Where a father who received 10s. a week from his son and was earning 26s. a week by his own efforts, he was not dependent. Arrol & Co., Ltd., v. Kelly (1905) 7 F. 906, Ct. of Sess. (Act of 1897). 2 8 Prichard v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 341. Where a son of the deceased employs is nineteen years old, and in his di- vorced mother's custody, with no provision for his support by his father, and no contributions to such support in fact made by the father, the son is not a dependent. Dolbeer & Carson Lumber Co. v. Watson, 1 Cal. I. A. C. Dec. 654. In Pinel v. Eapid Ry. System, 184 Mich. 169, 150 N. W. 897 (Comp. Laws 1897, § 4487 et seq.), it was held that where the mother of a workman was living apart from him at the time of his death and was not dependent upon him, and he, though under a moral obligation, was under no legal obligation to support her, she was not a "dependent." The court said: "The claimant did not belong to the class conclusively presumed by the compensation law to be a dependent. On the date of the accident it is conceded claimant was 229 PERSONS ENTITLED TO COMPENSATION § 70 termining dependency,^" is not conclusive unless made so by stat- ute. Purely voluntary contributions may establish dependency.'" Thus, voluntary contribution to the support of a workman's minor child fixes dependency as a matter of fact, though the child has been awarded to its mother by a divorce decree which makes no provi- sion for support by the father, and entitled the child to an award not dependent by reason of any support furnished her by the deceased. On the date of the accident she was not dependent on the deceased by force of any order of court based upon section 4487 et seq. A son is always under moral obligation to assist his indigent mother, but he is under no legal ob- ligation to do so until proceedings under the statute have resulted in an or- der compelling him to do so. No such order was in force at the time of the accident ; therefore * * * he was under no legal obligation at that time to support his mother." This case is supported by Kees v. Penrikher Nav. Co., 8T L. T. 661, 5 W. C. O. 117 ; Schwanz v. Wujek, 163 Mich. 492, 128 N. W. 731. In Merriman v. ScovlU Mfg. Co., 1 Conn. Comp. Dec. 596, where the deceas- ed son had agreed with his father that he was to be allowed to keep and use his own wages, and was to board at home without any present payments, but was to pay $3 per week for such board after he had obtained an educa- tion and was able to reimburse his father, it was held that the father could not be held to be a dependent upon the strength of such expected payments. 29 A ten year old child of a workman by his first wife, who, though she had not lived with her father and stepmother for five years previous to his death, had not been adopted by the people with whom she was living, and expected to return to live with her father at any time, weis a dependent. (Gen. Laws 1913, c. 467, § 14 [Gen. St. 1913, § 8208]) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 31. Where all five sons of a widow were liable for her support, but one really provided her support, and he was killed, she was totally dependent upon him. Eintoul V. Dalmeny OU Co., Ltd. (1909) 1 B. W. C. C. 340, Ct. of Sess. Where a workman gave the wife and two children he had deserted only trifling amounts for two years, and then when a decree of aliment was rendered against him, disappeared entirely, and was not heard of until he died a year and a half later, the children were held to be dependent. Young v. Nlddrle & Benhar Coal Co., Ltd. (1913) 6 B. W. C. C. 774, H. L., and (1912) 5 B. W. C. C. 552, Ct. of Sess. 30 Death benefits under the Act are not limited to those for whose support the deceased workman was legally chargeable. "Dependents" Include those supported by the workman's voluntary contributions. Walz v. Holbrock, Cabot & EoUins Corp., 170 App. Dlv. 6, 155 N. T. Supp. 703. § 70 wokkmen's compensation 230 of death benefits based on the amount of such contributions ; '^ but voluntary contributions of money, support, or service by a brother to a sister, or by a sister to a brother, are not necessarily evidence of the dependency of either, or of the extent of the dependency.'^ Minority of a deceased workman does not prevent his parents from being dependent on hiqj." The husband of the mother of an il- legitimate son, when not the putative father, is not a dependent of the son, so as to be entitled to compensation for his death.'* , Compensation cannot be awarded to alleged dependents not be- longing to the classes of relatives enumerated by statute."" The enumeration of certain persons after the heading "dependents" should not be held to place them in the relationship of actual de- pendents; such enumeration merely indicating that they must prove themselves dependents in fact, as distinguished from theoret- ical dependents. '° A statute authorizing compensation to actual dependents will be liberally construed to allow compensation to the dependent parent of a deceased workman, though he has left no surviving wife or child) and no specific amount of compensation, is fixed for such a case."^ SI Morse v. Royal Indemnity Co., 1 Oal. I. A. 0. Dec. 53. 32 Miller v. Riverside Storage & Cartage Co. (Mich.) 155 N. W. 462. 83 (Oonsol. Laws, c. 67, § 16, subd. 4) Friscia v. Drake Bros. Co., 167 App. Div. 496, 153 N. Y. Supp. 392. 8* McLean v. Moss Bay Iron & Steel Co., Ltd. (1910) 2 B. W. C. C. 282, C. A. 36 Hammill v. Pennsylvania R. Co., 87 N. J. Law, 388, 94 Atl. 313. A sister-in-law, with whom the deceased employs resided and for whom he made contributions, is not dependent upon him, she not being included in the classes of relatives enumerated. Western Indemnity Co. v. O'Brien, 2 Cal. I. A. C. Dec. 368. 36 Miller v. Public Service By. Co., 84 N. J. Law, 174, 85 Atl. 1030. 37 Compensation may be awarded under P. L. 1911, p. 139, § 2, par. 12, subd. 1, to a mother who is "actually dependent" on a deceased son, although the son leaves no widow ; the object of this section being to award compensa- tion to actual dependents. The right to com^pensation of actual dependents was fixed by the earlier words of the statute, and it is immaterial that no specific amount is fixed by way of compensation to the mother, where dece- dent leaves no widow. A basis for compensation la the case of the mother 231 PERSONS ENTITLED TO COMPENSATION § 70 An Act providing that, in case the employe dies of his injury, compensation shall be awarded to those persons who were in fact his next of kin or members of his family at the time of the injury, and who in fact were dependent upon him for support at that time, does not authorize an award oi compensation to be made, for ex- ample, to persons who would have been his next of kin if his sole next of kin had been dead, and who were not in -fact dependent upon him, but might have been dependent upon him, had it been that the next of kin who was dependent upon him had died. The widow of a subcontractor's employe, killed in the course of his em- ployment, is entitled to compensation under the Massachusetts. Act." alone is found In the schedule in the fact that 25 per cent, of the wages is to be awarded where there is a widow alone, and 50 per cent, where there is a widow and father or mother. While the courts cannot read into the stat- ute words which are not there, they may, on legal principles, read into the basis of compensation words essential to the main intent, as indicated by the words "actual dependents." Blanz v. Erie R. Co., 84 N. J. Law, 35, 85 Atl. 1030. This case cites Byston v. Studd, cited in Bacon's Abridgment, "Stat- utes," 1, 6, holding that a statute giving a remedy against executors might be extended by equitable construction to administrators, because they are with- in the equity of the statute, which case was followed and applied in Hoguet V. Wallace, 28 N. J. Law, 523, and recently was applied in State v. Alderman, 81 N. J. Law, 549, 79 Atl. 283, holding that a statute forbidding objections to an Indictment for defects apparent on its face, unless taken before the jury was sworn, applied to a case where the defendant plead nolo contendere, in which, therefore, no jury could be sworn. The parents are entitled to compensation for death of the employs,' if de- pendent upon him, though he left no surviving wife or child. (Consol. Laws, c. 67, § 16, subd. 4) Priscia v. Drake Bros. Co., 167 App. Div. 496, 153 N. Y. Supp. 392; In re Murphy (Mass.) 113 N. E. 283. Where the mother with whom the employ^ lived and to whose support he contributed was his only next of kin, the rest of the family being her sons and daughters, she was the only dependent entitled to compensation for the death of the employe. Id. Where the workman left surviving him a dependent mother, and brothers and sisters not dependent, the mother was entitled to the entire compensa- tion. (Wk. Comp. Act 1912, § 4 ; Jones & A. Ann. St. 1913, par. 5452) Matecny v. Vierling Steel Works, 187 111. App. 448. 38 (St. 1911, c. 751, pt. 2, §§ 6, 7, and pt. 3, § 17) In re King, 220 Mass. 290, 107 N. E. 959. § 70 workmen's compensation 232 It is not the policy of the Kansas Act to continue compensation to a dependent minor after he reaches the age of 18 years, unless he be physically and mentally incapable of earning wages, or to award compensation to an adult married son, who is the head of a family living separate from the family of his mother, who from her wages as an employ^ has made small contributions toward his support, where he is physically and mentally capable of earning, and is actually earning, fair wages.'' The British Act recognizes "the members of the workman's fam- ily as were wholly or in part dependent," and the British cases il- lustrate this feature of the statute, recognizing the family as such, while the New Jersey Act does not recognize the family as a unit, but individuals or groups of individuals, when actually dependent in fact. To come within the latter Act, the individuals named therein must be actually dependent upon the deceased, rather than upon a common family fund.*" In a Connecticut case, where the deceased minor employe had been obtained by the claimant from a home for destitute children, under an agreement which provided that the home might demand his surrender at any time, and had never legally adopted the deceased, he was held by the Commis- sioner not to have been such a member of claimant's family as to entitle claimant to an award as a dependent on account of contribu- tions of wages made by the deceased.*^ § 71. Partial dependency The' phrase "actual dependents" means dependents in fact whether wholly or partially dependent. Hence it was no defense, in proceedings under an Act using this term, that petitioner and his family were not entirely dependent on deceased.*^ Partial depend- so (Wk. Camp. Act, § 4) Taylor v. Sulzberger & Sons Co., 98 Kan. 169, 157 Pae. 435. *o Havey v. Erie R. Co., 88 N. J. Law, 684, 96 Atl. 995. *i Weaver v. Assawaga Co., 1 Conn. Comp. Dec. 331. «2 See note 42 on following page. 233 PERSONS ENTITLED TO COMPENSATION § 71 ency, giving a right to compensation,** may exist, though the con- tributions be at irregular intervals and of irregular amounts, and though the dependent have other means of support,** and be not *2 Muzik V. Erie R. Co., 85 N. J. Law, 129, 89 Atl. 248, Ann. Oas. 1916A, 140, affirmed in 86 N. J. Law, 695, 92 Atl. 1087 ; Jackson v. Erie B. Co., 86 N. J. Law, 550, 91 Atl. 1035. The phrases "actual dependent" and "who are dependent upon the deceas- ed," as used in the New Jersey Act, mean relatives In some degree mention- ed in the Act, who were dependents in fact and being wholly or to a substan- tial degree supported by the deceased at the time of his death. (P. L. 1913, p. 305, par. 12) Hammill v. Pennsylvania B. Co., 87 N. J. Law, 388, 94 Atl. 313 ; Havey v. Erie B. Co., 87 N. J. Law, 444, 95 Atl. 124. The words "ac- tual dependents" mean dependents in fact. The contrast in the statute is be- tween those who are actually dependent and those who are not dependent. (P. L. 1911, p. 139, § 2, par. 12) Miller v. Public Service By. Co., 84 N. J. Law, 174, 85 AU. 1030. In Belcher v. Campo, 1 Conn. Comp. Dec. 612, where though the deceased workman's father owned considerable real estate and chattels incidental to the running of his farm, both he and the mother were unable to do any work, the farm being rim by the deceased son, and groceries and feed for the stock being bought by him, and the father testified that he depended upon the son for these necessary supplies, which were bought from the wages earned by the deceased in respondent's employ, both mother and father were held to be partial dependents. In a case In which a father sought compensation on account of the death of a son who had contributed to his father a certain average sum weekly, it was said that the question was whether the father "made a loss by the death of his son, in consequence of there no longer being a source of assistance to him from his son's earnings in the work at which he was killed, and on which source, from his own inability to earn wages himself, he was wholly or partially dependent." Arrol & Co., Ltd., v. Kelly, 7 F. 906, 42 S. C. L. 695. *3 It is not necessary that the dependency be total in order to entitle the dependent to the benefit of the statute. Walz v. Holbrook, 170 App. Div. 6, 155 N. Y. Supp. 703 ; Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 N. 1. Supp. 883. Partial dependency is sufficient to entitle a claimant to com- pensation. Bhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 N. Y. Supp. 903. That the workman's sister was only partially dependent upon him did not prevent her from recovering compensation for his death. Walz y. Holbrook, Cabot & Bollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703. *4 (Wk. Comp. Act, § 43) Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. Where a workman, who left surviving him two sisters, under eighteen years of age, a married sister, and a mother, had given his mother one-half of his § 71 workmen's compensation 234 , reduced to absolute want.*" But it exists only to the extent that the deceased workman contributed to the support of the dependent. fiamings for more than ten years, whicli earnings slie used for support of herself and minor children, she was partially dependent on him, though she also received some support from her husband. Kennerson v. Thames Tow- boat Co., 89 Conn. 367, 94 Atl. 372, L. R. A. 1916A, 436. In Jakubowski v. Brooks, 1 Conn. Comp. Dec. 281 (affirmed by superior court on appeal), where the deceased, a sister of the claimant, made irregular contributions to the ■claimant whenever any emergency or particular, need arose, though she lived with her sister's family and paid no board, contributing in all over $200, claimant was held to be a partial dependent, even though her husband, when working, was able to support her, and it did not appear that she would have suffered want if the contributions had not been made. In Kennedy v. Amer- ican Brass Co., 1 Conn. Comp. Dec. 406, where it appeared that deceased practically furnished the house rent for his sister, gave her sums of money, and purchased coal for her, though her husband was earning $15 per week, it was held that she actually relied upon these contributions as a means of maintaining the family standard of living, and was a partial dependent. In McNamara v. Ives, 1 Conn. Comp. Dec. 41, it was held, where the deceased •employe lived with his sister and contributed about $50 a year, besides pay- ing his board, and also did work around the home, that she was a dependent, •entitled to the minimum of $5 per week for 312 weeks. Where a minor em- ploy© contributed approximately $12 to $14 per month to a family consisting of his father, mother, and sister, they were partially dependent upon him, and entitled to the minimum benefit of $5 per week for 312 weeks, and $100 burial expenses. Anderson v. American Straw Board Co., 1 Conn. Comp. Dec. 11 (affirmed by superior court on appeal). The plaintiff's son, 18 years old, living with her and and her husband, turned over to her his wages, paying nothing for his board, room, or laundry, but obtaining from her money for his expenditures. Although she was sup- ported by her husband, she has required certain medical and surgical atten- tion, the expenses of which were paid in part by the deceased, and his wages were always available by her for such attention, all of which extra expense ■could be met only by using a portion of his earnings. The court held that rshe was partly dependent upon the son, and could recover under the Work- men's Compensation Act on account of his death. Smith v. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533. Where the deceased workman was a minor 16 years old, living at the home ■of the claimant, his half-brother, of whose family he was a member, the house- Tiold affairs being managed by the claimant's wife, to whom her husband and 'decedent gave their entire weekly wages, from which the family, consisting 45 Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 N. Y. Supp. 903. ■235 PERSONS ENTITLED TO COMPENSATION § 71 Payments made for other purposes than for support, such as pay- ments to the dependent to be invested for the joint benefit of both, ■constitute no part of such dependency.*' Although a wife in Italy ■of decedent, the husband and tvife, and their two minor children, were sup- ported, claimant was partially dependent upon decedent's wages for support. (St. 1911, c. 751, pt. 2, § 6) In re Kelley's Case, 222 Mass. 53S, 111 N. E. 395 ; Dodge V. Boston & Providence R. R., 154 Mass. 299, 28 N. B. 243, 13 L. B. A. 318; Murphy's Case, 218 Mass. 278, 105 N. B. 635. Where an employe con- tributed $2 per week to the support of a child, who had left his home with his wife when she left him, the child was a partial dependent. Bentley v. Mass. Employes Ins. Assn. (1914) 2 Mass. Wk. Comp. Cases, 42 (decision of Com. of Arb., aflarmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 217 Mass. 79, 104 N. E. 432). Where it appeared that the widow resided in China, and had at all times resided there, and had not been living with her husband for 11 years, but had been partially dependent on him, and in receipt of contributions toward her support, she was entitled to a death benefit of three times the average annual contribution. Ching Shee v. Madera Sugar Pine Co., 2 Cal. I. A. C. Dec. 1014. Where a father provides a home, food, and clothing for his daughter, who is regularly employed and earning $35 a month, and devoted her earnings entirely to such personal expenditures as she pleased, she was a partial de- pendent to extent of 50 per cent. Smith v. Christopher's Market, 2 Cal. I. A. C. Dec. 536. Where a Pole working in Scotland was killed after he had worked for eight months, in that time having sent $1 to his wife, who was supported by her own work and help from her parents, the wife was partially dependent. Baird & Co., Ltd., v. Podolska (1906) 8 P. 438, Ct. of Sess. Where a boy's earnings of 8s. per week were put in the common family fund, and his sup- port was estimated to cost only 5s. per week, there was evidence that his parents were partly dependent upon him. Main Colliery Co., Ltd., v. Davies (1900) A. C. 358, H. L., and 2 W. C. C. 108. 46 Mahoney v. Yosemite Valley R. R. Co., 2 Cal. I. A. C. Dec. 150. Where a son, contributing one-half of his earnings to his family, consisting of a sister, mother, and father, is killed, the dependency of the sister Is partial. Irwin V. Globe Indemnity Co. of N. T., 1 Cal. I. A. C. Dec. 547. The employe contributed all of his earnings to his mother, who was par- tially dependent upon him for support. Five other children contributed to the family fund. The father earned an average weekly wage of $14.50. It was held that the mother was entitled to a weekly compensation equal to one-hahE of decedent's weekly contribution. Devaney v. American Mutual Liability Insur. Co., 2 Mass. Wk. Comp. Cases, 233 (decision of Com. of Arb.). The employe had been separated from his wife for a period of 18 months prior to the occurrence of the injury which caused his death, and had not during § 72 woekmbn's compensation 236 has for seven years been supported by contributions from her hus- band in this country, she will be presumed to be only partially de- pendent upon him at the time of his death, one and a half years after the seven-year period, if during the one and a half years he has made no remittance and she is living with three adult children, at least two of whom are^jresumably able to support her,*' § 72, Total dependency Compensation is awarded on the basis of total dependency, where the dependents subsist entirely on the earnings of the workman,** that period contributed to her support. He lived with his mother and con- tributed $5 weekly to her. She was partially dependent on him ; another son assisting to support her. It was held that the mother was partially depend- ent. Stone V. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 715 (decision of Com. of Arb.). Where a father, mother, and grown son constitute a family, both father and son are wage-earners, and both contribute to the family fund, the son being considered as one of the family, and not as a boarder, the mother may be partially dependent upon her son for support. In re Emma Hoffman, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 41. An unmarried employs maintained a home for himself, his mother, who was 63 years of age, and an unmarried sister, 24 years of age. The entire living expenses of the family were met by the earnings of the employs and a pension of $12 per month paid to the mother by the United States government. The Commission held that the mother and sister were both partially dependent upon him for support. Ress v. Youngs- town Sheet & Tube Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p.-194. But where a son who was of full age made his home with his father and mother, and turned over a large.portion of his earnings to his father, who made no charge against him for board, clothing, and lodging, and the father owned real estate which was listed for taxation at $12,440, and the mother owned real estate listed for taxation at $4,730, the tax value in each instance being not more than 60 per cent, of the actual value of the real estate, the same being incumbered to the extent of $6,000, the father being 66 years of age and not a wage-earner, and the mother being 59 years of age and not a wage-earner, the Commission held that neither the father nor the mother were either wholly or partially dependent on the grown son. In re Joseph Hora, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 173. 47 Claudio V. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7. 48 wttiere an invalid for 25 years had lived with and was supported by her sister, "everything * • • received in the way of food, lodging, clothing. 2S7 PERSONS ENTITLED TO COMPENSATION § 72 even though, but for services performed for hira, they would be able to support themselves.** Persons are not precluded from be- medicines, payment of doctor's bills, and contributions of cash coining from her sister," she was wholly dependent on her sister for support. Buckley v. American Mutual Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 186 (decision of Com. of Arb., afiia-med by Indus. Ace. Bd., also by Sup. Jud. Ct, 218 Mass. 354, 105 N. B. 979, Ann. Cas. 1916B, 474). The workman contributed aU of his earnings to his mother, who was custodian for the benefit of his invalid father, mother, and two minor brothers. An unprofitable store had been started, in connection with the tenement in which the family lived, about six weeks before the workman's death. It was held that the father, mother, and two minor brothers were wholly dependent for support. De Pasquale v. Em- ployers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 497 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). The widow and minor children of a -deceased workman, with whom he lived, and whom he supported at the time of his death, and who had at the time no property or income of their own, were wholly dependent on him. In re EUda Baird, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 28. A coal min& 19 years of age lived with his invalid father and stepmother, and with five half brothers and sisters, from 2 to 13 years old. The stepmother was not a wage-earner and the whole family subsisted on his earnings. The Commis- sion held that the entire family was wholly dependent on him. In re Lewis Spencer, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 179. Where the deceased employe was unmarried, and lived with his mother, and supported her, she was wholly dependent upon him. In re Bridget McAuUfCe, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 144. A workman's widow, with whom he lived prior to his decease, who had no separate estate and no income of her own, but sub- sisted entirely upon the earnings of her husband, was wholly dependent. In re Anna Bang, voL 1, No. 7, Bui. Ohio Indus. Com. p. 37. Where a daugh- ter 16 years of age lived separate from her father, her mother being dead, *9 A strong, healthy woman, earning, prior to her mother's death, $9 a week in a factory, relinquished her position and remained at home to take care of her father without any agreement as to remuneration. At the time of the hearing she was able to earn good wages as a housekeeper and consid- ered herself whoUy dependent upon her father for support. It was held that she was wholly dependent on her father. Herrick v. Employers' Liability Assurance Co., Ltd., 2 Mass. Wk. Comp. Cases, 122 (decision of Com. of Arb., affirmed 217 Mass. Ill, 104 N. B. 432, 4 N. C. C. A. 564). Where a girl able to earn wages, and having previously done so, was keep- ing house for her father, receiving therefor her board, lodging, and clothes, but no money compensation, she was dependent upon her father. Moyes v. Dixon, Ltd. (1905) 7 F. 386, Ct. of Sess. (Act of 1897). § 72 workmen's compensation 238 ing totally dependent by the fact that temporary gratuitoas serv- ices have been rendered for or occasional money sent to them by persons other than the workman,'* that they hold small savings ac- counts,''- that they have been supported in part by the workman's and her father paid her board and furnished her money to buy necessary clothing, she was wholly dependent upon her father for support. In re Maude M. Hughes, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 148. Where the employe was survived by a widow and son 35 years old, the widow was held to be whoUy dependent. In re Frances Williams, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 31. Where it is shown that all the support of two minor children came from their father, and that remittances therefor from him were regular, and were relied upon, such evidence establishes the fact of total dependency. HoUeron V. Hill, 2 Cal. I. A. C. Dec. 289. Wlhere a father, who was tenant of and owned the furniture of the house in which he lived, gave his weekly earnings of 18s. a week to his daughter, with which, added to the income from a lodger whom the daughter took care of, she managed the house, the daughter was wholly dependent upon her fa- ther. Marsh v. Boden (1905) 7 W. C. C. 110, C. A. (Act of 1897). 6 (Gen. St. 1918, § 8208) State ex rel. Splady v. District Court, 128 Minn. 338, 151 N. W. 123. Where a deceased workman's mother, according to an arrangement made, was to live with him and be supported by him, a conclusion of the Commis- sioner that she was totally dependent upon him was authorized, though she was temporarily living with another son. Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. B. A. 1916A, 436. That the deceased employe's aunt odcasionally sent various sums to his mother, which remittances were mere gratuities, and that one of his sisters, a member -of the family, earned six or seven cents a day, no part of which was paid to the mother and another sister, the alleged dependents, did not preclude them from being wholly dependent on his earnings. Petrozino v. American Mutual LiabiUty Co., 219 Mass. 498, 107 N. E. 370. 6 1 Where a daughter, for three years before her father's death, has had no income, except money allowed her by her father and the compensation for two weeks, which Is so small that it may be disregarded, and Is too ill to work, the fact that she had $100 saved from the money given her by her father will not prevent a finding that she was wholly dependent on her father at the time of his decease. ' (St. 1911, e. 751) In re Carter, 221 Mass. 105, 108 N. E. 911. Where a mother is living with her son, and without resources except a few hundred dollars kept for an emergency, a portion of which she advances for household expenses in a financial exigency expecting to have the amoimt 239 PEESONS ENTITLED TO COMPENSATION § 73 income other than his wages," or that money furnished for their support by the workman was not paid directly to them." § 73. Alien dependents As a rule, the fact that a dependent is an alien living in a foreign country does- not, of itself, bar compensation/* But "dependents," as used in the Washington Act, does not apply to any nonresident dependents, other than a father or mother."" The right of an alien nonresident next of kin to damages is limited by the New Jersey repaid later, she is wholly dependent on the son for support. Bennett v. San Buenaventura Wharf Co., 1 Cal. I. A. C. Dec. 200. ' 52 A widowed mother, without means, who is supported by her son, partly by the wages of his employment and partly by the yield of his land, is wholly dependent upon her son for support, within the meaning of the Minnesota Compensation Act (Gen. St. 1913, § 8208, subd. 2) State ex rel. Crookston Lumber Co. v. District Court, 131 Minn. 27, 154 N. W. 509. 03 That the deceased workman's sister did not receive support directly from deceased, but indirectly through money contributed by him to the support of the family, did not preclude her from recovering compensation for his death. Walz V. Holbrook, Cabot & RoUins Corp;, 170 App. Div. 6, 155 N. Y. Supp. 703. B4 Compensation was allowed the mother and sister of a deceased workman, who were residents of Italy. Petrozino v. American Mut. Liability Co. (CaUendo's Case), 219 Mass. 498, 107 N. B. 370. The wife and infant son of a deceased workman, residing In Austria- Hungary, were entitled to receive compensation under the Ohio Act for his .death. Vujic v. Youngstown Sheet & Tube Co. (D. C.) 220 Fed. 390. If otherwise entitled, the fact that the widow of an alien workman lived in a foreign country at the time of both accident and death does not bar com- pensation. Krzus V. Crow's Nest Pass Coal Co., Ltd. (1913) 6 B. W. C. C. 271. Aliens are included within the meaning and scope of the Compensation Act, and, if actually dependent upon one receiving his death by reason of an acci- dental injury arising out of and in the course of the employment, they are entitled to compensation for same. Bishop v. United States Crushed Stone Co., Bulletin No. 1, 111., p. 201. An alien nonresident, beneficiary of a person who met death because of an injury that arose out of and from the course of his employment, under the Workmen's Compensation Act, is entitled to com- pensation the same as if she were an actual citizen and resided in the state of Illinois. Bishop v. Iroquois Iron Co., Bulletin No. 1, 111., p. 108. B5 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. § 73 workmen's compensation 240 Act of 1911 to the compensation which it provides, and as it ex- pressly states that compensation under the schedule established by the Act shall not apply to nonresident alien dependents, the right of nonresident next of kin under the Death Act is taken away, and therefore there is no statutory remedy to such persons."' The title of the Illinots Act of 1913 is sufficient to cover a provi- sion aiithorizing payment of compensation to nonresident alien de- pendents.°' Under the Connecticut Act, as amended, compensation is award- ed to alien dependents in one-half the amounts specified for other dependents, unless such alien dependents are residents of the Unit- ed States, or its dependencies, or Canada, such alienage to be de- termined as of the date of the injury.^* This amendment does not conflict with the treaty with Italy."' It has been held that it is 58 Gregutis v. Waclark Wire Works (N. J.) 91 Atl. 98. 67 Victor Ohemical Works v. Industrial Board of Illinois (111.) 113 N. B. 173. 58 Wk. Oomp. Act. pt. B, § 10, as amended by Pub. Acts 1915, c. 288, § 6. In Alvarez v. Eisenmann, 1 Conn. Comp. Dec. 357, the totally dependent widow being a resident of Italy, she was awarded one-half the regular compensation due a resident dependent. In Pansoda v. Bridgeport Hydraulic Co., 1 Conn. Comp. Dec. 118, a workman's totally dependent mother residing in Spain was awarded one-half the minimum compensation for death payable to a total dependent. In Biero v. New Haven Hotel Co., 1 Conn. Comp. Dec. 52, where the deceased workman's father was a resident dependent, but his mother was an alien nonresident dependent, they were awarded $2.50 and $1.25 per week, respectively ; the mother's compensation being reduced one-half be- cause she was not a resident of this country. In lannace v. Jobson-Gifford Co., 1 Conn. Comp. Dec. 118, where a workman's widow was a nonresident alien dependent at the time of the injury, but later came to this country to live, she was awarded one-half regular compensation until she came to this country, and full benefit thereafter. 5 8 In Fabbian v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 305, it was held by Commissioner Beers that the provision of the Connecticut Act that compensation to nonresident alien dependents shall be one-half the amount payable if they were residents of this country, is not invalid as conflicting with existing treaties between Italy and the United States. In "Viotti v. De Bisschop, 1 Conn. Comp. Dec. 195, a dependent widow residing in Italy was 241 PERSONS ENTITLED TO COMPENSATION § 74 not declaratory of the prior law, and that for an injury occurring before the passage of the amendment the matter of alienage need not be determined as of the time of the injury, but a nonresident alien dependent may have his compensation payments increased to full amount upon taking up residence in this country after the injury."* § 74. What children may be dependents Children entitled to compensation as dependents include step- children,^^ illegitimate children,"'' especially where they lived with the workman and were actually cared for and supported by hirfi prior to his death, and had a right to expect a continuation of that support,"' children adopted by the workman,"* though not children awarded one-half the amount of death benefit payable to dependents residing in the United States; the commissioner holding it was not for him to decide whether this provision conflicted with any treaty rights between Italy and the United States. , 80 Ostrowski v. Stanley Iron Works, 1 Conn. Comp. Dec. 554. 81 Dependent stepchildren, who have been supported by the deceased work- man, are included vyithin the word "children" in this act. (P. L. 1911, p. 134) Newark Paving Co. v. Iflotz, 85 N. J. Law, 432, 91 Atl. 91. The word "child," as used in the Washington Act, includes a stepchild. (Wk. Comp. Act Wash. & 3) Rulings Wbsh. Indus. Ins. Com. 1915, p. 6. 62 Where a workman evaded the payment of an aliment decree rendered against him in favor of the mother of his illegitimate child, the only money obtained from him being £2 garnlsheed from his employers, and was then killed by accident, the child was held to be partially dependent upon him. Bowhill Coal Co., Ltd., v. Nelsh (1910) 2 B. W. C. C. 253, Ct. of Sess. 83 Roberts v. Whaley (Mich.) 158 N. W. 209. Where a woman was living with the workman in an illicit relationship, the minor children of the pair, living with the father and dependent upon him for support, were "dependents." Sexton v. Massachusetts Bonding & Insurance Co., 1 Cal. I. A. C. Dec. 48. Where the deceased workman leaves an illegitimate child, who was partially dependent upon him and received a certain portion of his earnings, that same portion of the death benefits will 81 See note 64 on following page. HON.COMP.— 16 § 74 workmen's compensation 242 adopted by his widow after his death/' and also include post- humous children, legitimate or illegitimate.'* A child adopted by a third person is not entitled to compensation by reason of the death of the natural parent.*' A daughter over eighteen years of age is not a dependent, under the Washington act.®' But in Min- nesota a daughter of tWrty, not physically or mentally incapaci- be awarded to the child. Mitchell v. FaircMld-Gilmore-Wilton Co., 1 Cal. I. A. C. Dec. 71. At the time of his death a workman who was killed in the course of his employment was living with and supporting a woman as his common-law wife and a child which had been bom to them. It was held that the child was wholly dependent upon the workman for support at the time of his death. In re Mary A. Gloyd, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 79. 84 " 'Dependents' means such members of the workman's family as were wholly or in part dependent upon the workman at the time of the accident. And 'members of a family' for the purpose of this Act means only widow or husband, as the case may be, and children ; or if no widow, husband or chil- dren, then parents and grandparents ; or if no parents or grandparents, then grandchildren; or if no grandchildren, then brothers and sisters. In the meaning of this section parents include stepparents, children include step- children, and grandchildren include stepgrandchildren, and brothers and sis- ters include stepbrothers and stepsisters, and children and parents include that relation by legal adoption." (Laws 1911, c. 218, § 9) Smith v. National Sash & Door CO., 96 Kan. 816, 153 Pac. 533. 65 State ex rel. Varchmin v. District Court of Ramsey County (Minn.) 158 N. W. 250. 66 A child which was born after its father had been killed by accident is entitled to compensation as his dependent. Williams v. Ocean Coal Co., Ltd. (1908) 9 W. C. C. 44, C. A. (Act of 1897). Where a workman acknowledged the paternity of an illegitimate child, and made plans to marry its mother, but was killed by accident before he had done so, and some months before the birth of the child, the child was a dependent of his. Schofleld v. Orrell Colliery Co., Ltd. (1910) 2 B. W. C. C. 294, H. L., and 301, C. A. 67 (Wk. Comp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 16. The illegitimate child, whose mother was a farm servant, who promised a small sum semiyearly for its support to persons who adopted it without con- ditions, was not a dependent. Eriggs v. Mitchell (1911) 4 B. W. C. C. 400, Ct. of Sess. 68 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. 243 ^ PERSONS ENTITLED TO COMPENSATION § 75 tated, and yet actually deriving her support from her father, is en- titled to the benefits of the Compensation Act as a partial depend- ent.«» § 75. Illegal and divorced wives — marriage Compensation as a dependent may usually be recovered by the innocent victim of a bigamous marriage,'" and by a common-law wife, if the common-law marriage was legal, '^ but not by a woman 6 9 (Laws 1913, c. 467, § 14 [Gen. St. 1913, § 8208], as amended by Laws 1915, c. 209, § 5). State ex rel. Maryland Casualty Co. v. District Court (Minn.) 158 N. "W. 798. 7 Where a woman is living with her reputed husband at the time of his death as, and believing herself to be, his lawful wife, in consequence of the performance of the usual marriage ceremony prescribed by California law, being ignorant of the performance of a prior ceremony uniting her supposed husband with another, and she has been supported by him up to his death, she is a member of his family, wholly dependent upon him. Kossi v. Stand- ard Oil Co., 2 Cal. I. A. C. Dec. 307. Where a Welshman left his wife in 1896 and came to America, and in 1900 contracted a bigamous marriage with a woman, with whom he lived and whom he supported until his death, she having no knowledge of his former marriage, she was dependent upon him for support. In re Elizabeth A. Jones, vol. 1, No. 7, Bui. Ohio Indus. Com. 187. 71 A common-law wife is entitled to compensation. In re Mary A. Gloyd, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 79. Where applicant claimed as widow of deceased, and it appeared that no marriage ceremony was performed or marriage license issued, but that de- ceased and applicant had agreed to live together as husband and wife in Ohio some years before, and had from that time on so lived together, and had represented themselves to others at all times as husband and wife, and that common-law marriages so entered into were valid in Ohio at the time this relation was there entered into, the Commission held that applicant was entitled to a death benefit as widow of deceased. Hill v. Fuller & Co., 1 Cal. I. A. C. Dec. 155. Where the only evidence that a claimant residing in Italy was a wife of the workman was the statement of a parish priest that the parties had "con- tracted matrimony," but the claim itself alleged the claimant as a common- law wife, whereas a civil marriage is necessary in Italy, it was held claimant was not the legal wife of the workman, and hence" not entitled to compen- sation. Angelucci v. H. S. Kerbaugh, Inc., The Bulletin, N. X., vol. 1, No. 12, p. 16. § 75 workmen's compensation 244 living in an illicit relationship with the workman/" nor by a wife divorced from the deceased workman, and for whose support he was obligated to pay a certain sum monthly, but who had received no such payments up to the time of his death." It has been held in Massachusetts that an alleged marriage which was not legally solemnized did not entire the woman to recover compensation as the dependent of her supposed husband, though she honestly be- lieved that she was contracting a leg^l marriage."* But where a Wisconsin city was situated part in one county and part in an- other, and the workman and his widow, without any intention to ■circumvent the law requiring the procurement of a license in the ■county of their residence; obtained the license in the other county Ihan that in which they lived, it was held that the marriage was valid, and that the widow was entitled to compensation."" The "^2 Sexton V. Mass. Bonding & Ins. Co., 1 Cal. I. A. C. Dec. 48. Where a woman cohabits with a man for a long period of years, and is the mother of a family of children by him, but is not his wife, but the wife of a man who has previously deserted her, she is not a "member of the family" of the man she is living with, although she is in fact supported by ■and dependent upon him, and actually living with him as the mother of his children and member of his household. (Wk. Comp, Act, § 19 [c]) Pollock V. Wagner Leather Co., 3 Cal. I. A. C. Dec. 37. A woman living with the workman as though she were his wife and de- pendent on him for support, but not legally married to him, her marriage to him being illegal because he has a wife of whpse existence she does not know, Is not entitled to compensation under subsection 4 of sectiod 239'4 — ^10, Stats., providing that "no person shall be considered a dependent unless a member of the family of the deceased employe, or one who bears to him the relation of husband or widow, or lineal descendant,' or ancestor, or brother or sister." Armstrong v. Indus. Com. of Wis., 161 Wis. 530, 154 N. W. 844. 7s Mitchell v. Crichton, 2 Cal. I. A. C. Dec. 1005. '* One claiming to be the widow of the employe entered into a ceremony of marriage with him In good faith. It appeared, however, that the alleged marriage was not legal, and that the person who performed same was not authorized to solemnize marriages. It was held that claimant was not a de- pendent. Gron V. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 736 (decision of Com. of Arb.). 70 Reed v. Rothe, Rep. Wis. Indus. Com. 1914^-15, p. 33. 245 PERSONS ENTITLED TO COMPENSATION § 76 widow of a Japanese workman, married by proxy, is not considered a dependent under the Washington act.''" § 76. Nonsupport and desertion As a general rule, it does not prevent the members of a work- man's family from being dependent on him for support that at the time of his death he was unable or refused to support them,^' or had deserted them,'* especially where there was a reasonable ejc- 76 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. 7 7 Where a fisherman commonly sent money home to his father, but was so poorly paid during two shorter voyages that he was unable to send any hpme, and was drowned on the second voyage, the father was partially dependent. Robertson v. Hall Bros. Steamship Co. (1910) 3 B. W. O. C. 368, O. A. Where a workman who was drowned had previously often sent money home to help' support his parents and sisters, but had not sent any money home on this- particular voyage, the family were partially dependent upon him. Turner v^ MiUer & Richards (1910) 3 B. W. C. O. 305, C. A. A widow, who lived apart, from her husband and received not over $5 a year from him, being supported- by the help of relatives, the small wages of a child, and occasional work she-' could do, was totally dependent. Cunningham v. McGregor (1901) 3 F. 775 j. Ct. of Sess. Where a husband who left his wife to find work obtained em- ployment after two months, but was killed after working a week and before he had given his wife any money, the wife and a posthumous child were entitled to compensation as partly dependent. Queen v. Clarke (1900) 2 Ir. R. 135, O. A. (Act of 1897). Where a workman's wife had been in an insane asylum for four months previous to his death by accident, and he was legally responsible for her maintenance there, although he did not pay, she was a dependent. Kelly v. Hopkins (1908) 2 Ir. R. 84, C. A. In Jakubowski v. Brooks, 1 Conn. Comp. 0ec. 281 (afiirmed by superior court on appeal), it was held that the fact that no contributions were made for a period of three months before the injury, though made at irregular in- tervals during the three years previous, did not terminate the dependency. Parents not dependents. — Where a workman's father was in the workhouse at the time of the workman's death by accident, the father was not a depend- ent. Rees V. Penrikyber Navigation Colliery Co., Ltd. (1903) 5 W. 0. O. 117, C. A. (Act of 1897). A woman who, at the time her son died, was being, kept in an inebriate reformafbry, and who had been in prison for the previous- four years, aU but ten months, during which time the deceased son supported' her, was not a dependent. Addie & Sons' Collieries, Ltd., y. Trainer (1905> 7 F. 115, Ct. of Sess. (Act of 1897). 7 8 Where a deceased employs, survived by a widow and minor child 20 months old, had deserted them some months prior to his death by accident^ § 76 woekmen's compensation 246 pectation that he would return ; ^° but there appear to be excep- tions to this rule, as where a deserted wife has long been separated from her husband, the deceased workman, and has supported her- self or secured support otherwise than from him, and had no rea- sonable expectation that he would soon return and support her.'" without any fault on the part of his wife, and had since that time contributed nothing to their support, they were both nevertheless wholly dependent upon him for support. In re Laura Shaffer, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 7. A widow was dependent on her husband's support, even though he had de- serted her three years before, and had since given her no money or support of any kind, where she was provided for by her mother and friendly charity during the three years. Sneddon v. Addle & Sons' Collieries, Ltd. (1904) 6 F. 992 (Act of 1897). 7 8 Where a workman, after deserting his wife, no longer supported her, but at the time of his death by accident she was daily expecting return, there was evidence that she was dependent. Coulthard v. Consett Iron Co. (1906) 8 W. O. C. 87, C. A. (Act of 1897). Wbere a workman left his wife to look for work, and was not heard from for two years, although she expected his return, this was not sufBcient evidence to rebut the legal presumption of de- pendency. Stanland v. Northeastern Steel Co., Ltd. [1907] 2 K. B. 425, C. A. (Act of 1897). Where, upon being left by Jier husband, who went in search of employment, a widow supported herself by working as a domestic, and, although receiving no support from him, she met him at times, and he was killed by accident two years later, a posthumous child being born after his death, the legal presumption of dependency was not sufficiently rebutted. Williams v. Ocean Coal Co., Ltd. (1908) 9 W. C. C. 44, O. A. (Act of 1897). Failure of a husband in California to remit contributions during his im- prisonment for one year and during the succeeding six months is not incon- sistent with a total dependency in fact of his nonresident wife, where he had previously remitted to her sums suflBcient for her support and there is no affirmative evidence of his intent during the period of nonremittance to sever family relations. Claudio v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7. 80 "Actual dependents" mean dependents in fact, and do not include a wife whom the deceased employs had deserted at the time of his death, and who for more than six years had supported herself without his assistance or even knowledge of his whereabouts. (P. L. 1911, p. 139, § 2, par. 12) Batista v. West Jersey & S. B. Co. (N. J.) 88 Atl. 954, following Miller v. Public Service R. Co., 84 N. J. Law, 174, 85 Atl. 1030. Wihere a deserted wife was not living with her husband at the time of his 247 PERSONS ENTITLED TO COMPENSATION § 76 Where the wife has deserted her husband and supported herself, neither she nor, ordinarily, children whom she has taken with her and supported, can recover as dependents.*^ This is particularly death, her dependency upon him was a question of fact, and where the evi- dence showed that for some time prior to his death the husband had made no contribution to her support, dependency was not established. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311. Where a collier deserted his wife seven years before his death by accident, and in that time had sent her only 9s. 6d., she, living in the workhouse, was not dependent upon him. Devlin v. Pelaw Main Collieries (1912) 5 B. W. C. C. 349, C. A. Where a workman's wife had lived apart from him for twenty- two years, and he had not supported her during that time, she was not de- pendent upon him. New Monckton Collieries, Ltd., v. Keeling (1911) 4 B. W. C. C. 332, H. L., and 4 B. W. C. C. 49, C. A. Where a wife, whose husband had deserted her and did not support her, lived with another man, and bore him children, and then on the death of her husband, seven years later, sought compensation for herself and her two legitimate children, they were none of them dependents. Lee v. S. S. Bessie (Owners of), (1912) 5 B. W. C. C. 55, C. A. 81 Where a widow of a deceased employ 6, who had separated from him prior to his death, and who was living apart from him at the time he. was killed by an Industrial accident, was earning her living without receiving any aid from him, she cannot claim compensation under dependency in fact, since she was not in fact supported by him at the time of his death. (Cal. Wk. Comp., etc.. Act, § 19 [b]) Delgado v. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436. Dependency is not established as a matter of fact, where the evidence shows that the wife had deserted the husband, and for four months Immediately preceding his death had not received from him any contributions for her support. Holleron v. Hill, 2 Cal. I. A. C. Dec. 289. In Filllger v. Allen, 1 Conn. .Comp. Dec. 35, it was held that a workman's widow, who had not lived with him for eleven months prior to the injury because he drank, and during that time only received $10 from him for sup- port, living with a son, who supported her, was not dependent upon the workman. Where a wife left her husband, and took their child with her, making her own livelihood for twelve years, she and the child, upon the death of the father, cannot claim compensation as dependents. Lindsay v. McGlashen & Son, Ltd. (1909) 1 B. W. C. C. 85, Ct. of Sess. The wife of a workman who of her own wishes lived separate from him, and supported herself was not his dependent. Polled v. Great Northern Ry. Co. (No.' 2), (1912) 5 B. W. C. C. 620, C. A. § 77 workmen's compensation 248 true where she has secured a divorce.*'' On the other hand, where a wife residing out of the state with her child, and apart from her husband, was frequently visited by her husband, who sent regular and generous contributions for their support, she is entitled to a death benefit.'^ Where a workman takes into his family a minor child not related to hirftself or wife, and thereafter, without the child ever having been adopted, deserts his family and for several months prior to his death does not contribute to their support, the child is not a dependent of the workman.** § 77. Dependents tmder federal Act The federal Act of 1908, continued in force as to injuries prior to the Act of 1916, provides that, if the injured artisan or laborer die within the year, "leaving a widow, or a child or children under sixteen years of age, or a dependent parent," they shall be entitled to compensation. The word "parent" in the Act may be applied to include both parents,*" but not to include a stepfather or step- mother,** or a foster parent, where there has been no legal adop- tion.*^ A foster parent by a legal adoption may, however, be a de- 82 Where a workman had been divorced by the mother of his two children, Bhe obtaining the sole care and custody of the children, and he Had contri'buted nothing to their support since that time, but had moved to another state in order to avoid responsibility, the children could not recover compensation as dependents. Reed v. Rothe, Rep. Wis. Indus. Com. 1914-15, p. 33. 83 Majeau v. Sierra Nevada Wood & Lumber Co., 2 Cal. I. A. O. Dec. 425. 84 Delgado v. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436 ; Mahoney V. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025. 85 (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 784. 86 In re McMurray, Op. Sol. Dept. of L. 571. 87 In re Perkins, Op. Sol. Dept. of L. 579. A death claim was filed by two alleged widows and by a foster mother. The facts showed that neither was the legal widow, and as the foster moth- er had never legally adopted decedent she was held not a dependent parent. In re Garcia, Op. Sol. Dept. of D. 611. An adopted mother must sustain the legal relation to the employe of a parent before a payment can be made to her 249 PERSONS ENTITLED TO COMPENSATION § 77 pendent parent within the Act.'* The question of dependeiice i? one of fact, and the fact of dependence sufficiently appears if par- tial dependence is shown. Contributions by the deceased tend to establish a condition of dependence, but this is not the only crite- rion. The natural and equitable claim for support which the par- ents have upon their children makes it proper to consider the actual needs of parents ; and in ascertaining such needs it is necessary to look to their age, circumstances, position in life, and earning ca- pacity.'® A parent is not dependent who did not in fact depend in some measure for the means of living upon the deceased; but, if the parent is in actual need, the fact of dependence is sufficiently shown if it further appears that the deceased attempted to supply such need even to a slight extent, or that, but for the death, the parent was reasonably assured that such need would be supplied in some substantial measure.®" The word "child" or "children," as used in the Act, is not restricted to a child or children born in as a "dependent parent" within the meaning of the federal Act. In re Huff (Dec. Comp. of Treas.) Op. Sol. Dept of L. 568. 8 8 In re Huff, Op. Sol. Dept. of L. 567. 8 9 In re Eock, Op. Sol. Dept. of L. 573. 90 In re Branch, Op. Sol. Dept. of Ei. 576. The deceased employ^ had, previous to going to work for the Reclama- tion Service, assisted his parents in the operation of a small farm. On the day he began work he was killed. Considering the age, circumstances, and condition of the parents, they were held entitled as dependent parents. In re Encinas, Op. Sol. Dept. of L. 601. Where decedent was 20 years of age, and until a few days previous to his death in the government employ he had worked on the farm of his parents, to whom he had promised to contribute from his government wages, but met his death before receiving any, the par- ents were dependent. In re Harris, Op. Sol. Dept. of I/. 598. Where dece- dent, a single man, contributed large sums to his parents, who had five younger children to raise, these facts, considering the financial condition of the parents, constituted dependency. In re Scott, Op. Sol. Dept. of L. 595. Decedent left a widow and widowed mother. The widow filed claim, but died before it was approved. The mother joined in the widow's claim, stating that she was not dependent on her son. Subsequent to the widow's death the mother filed a claim, setting forth her financial condition, that she was 61 years of age, and depended upon her efforts for support It was held that. :§ 77 workmen's compensation 250 wedlock, but includes illegitimate oflfspring,"^ and also a child which has been legally adopted according to the law of the domi- cile."^ A woman living as the illegitimate wife of an employe in the Canal Zone does not, on his death, become his widow within the meaning of the Act.'* A woman divorced from an employe and decreed the custody of his children is not entitled to compensa- tion for his death, though compensation be payable to her as guard- ian for the children.** The marriage of a widow during the com- pensation year does not bar her from the benefits of the Act.®^ Where an injured workman dies before having made application for or received compensation, the spirit and purpose of the Act warrants payment of compensation from date of injury to date of death, as well as for the remainder of the year, to his widow or family.'' although the son had not contributed, yet her financial and physical con- dition rendered her a dependent parent. In re Munn, Op. Sol. Dept. of L. 597. Decedent was 21 years old. The parents claimed that he had contributed a certain amount, which was in excess of his earnings during a certain pe- riod. Considering all the circumstances of the case, including age and finan- cial condition of the parents, it was held that they were not dependent to any extent upon the son; the mere fact of contributions not being sufficient of itself to establish that condition. In re Kees, Op. Sol. Dept. of L. 599. A son was in the habit of sending his mother in Ireland small sums of money about May and Christmas of each year. The mother was a pensioner of the British government and had three other sons. The deceased son left a widow. It was concluded that the mother was not a dependent parent In re DufCy, Op. Sol. Dept. of L. 594. 91 In re Harding, Op. Sol. Dept. of L. 553. 92 In re Estorga, Apr. 3, 1915, Op. Sol. Dept. of L. p. 566. 93 In re Howell, Op. Sol. Dept. of L. 549. The Act does not grant com- pensation to a woman who for several years lived in Barbados and as the "reputed wife" of an employ^ who was killed in the Canal Zone, and to whom she had borne three illegitimate children. In re Agard, Op. Sol. Dept of L. 550. 9* Op. Sol. Dept of L. 551. 9 5 (Dec. Comp. of Treas.) Op. Sol. Dept of L. 783. 96 In re Sullivan, Op. Sol. Dept. of L. 609. Where an injured employ^ dies several days or weeks after the injury, compensation is payable from that '251 PERSONS ENTITLED TO COMPENSATION § 78 § 78. Claim of dependent A dependent's claim for compensation does not arise from the workman's injury, but is a new and distinct right of action created by his death/^ and not, therefore, barred by an award to or settle- ment with the workman.®* It does not affect the right to recover on such claim that financial benefits have accrued to the depend- ent from the workman's death,"' or that the workman's contribu- date to and including the date of death, and for the balance of the year to his widow, children, or dependent parents, as the case may be. In re Mc- Carrell, Op. Sol. Dept of L. 607. 97 (Workmen's Compensation Act, Gen. St. 1913, § 8208, as amended by Laws 1915, c. 209, § 5) Nesland v. Eddy, 131 Minn. 62, 154 N. W. 661. This case finds support in Anderson v. Fielding, 92 Minn. 42, 99 N. W. 357, 104 Am. St Rep. 665; Michigan Central K. Co. v. Vreeland, 227 U. S. 59, 33 Sup, Ct. 192, 57 L. Ed. 417, Ann. Cas. 19140, 176; American R. Co. v. Didrick- sen, 227 U. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456. 9 s Milwaukee Coke & Gas Co. v. Industrial Commission, 160 Wis. 247, 151 N. W. 245. Payment of compensation to a minor employfi does not bar the independent right of the parent to recover for the loss to herself from the injury to her .son. Payment of such compensation is in no sense a payment of wages, though based on wages. King v. Viscoloid Co., 219 Mass. 420, 106 N. E. 988. Where a workman returned to work after the accident, but later died from its effects, the right of his dependents to recover is independent and separate, and is not affected by an implied agreement which might be assumed to have ended compensation when he returned to work. Williams v. Vauxhall Col- Uery Co., Ltd. (1908) 9 W. C. C. 120, C. A. (Act of 1897). The right of the de- pendents of a workman who had accepted money and given his employers a receipt in full satisfaction of all his claims under the Employers' Liability Act or at common law (which receipt was a mere device, covering com- pensation under the Compensation Act), was not affected or barred by this settlement, as their right was independent. Howell v. Bradford & Co. (1911) 4 B. W. C. C. 203, C. A, On claim for compensation by the dependents of a deceased workman, the fact that he had received payments under a regis- tered agreement, which had been canceled on review, did not bar their inde- pendent right. Jobson v. Cory & Sons, Ltd. (1911) 4 B. W. C. C. 284, O. A. As to effect of release to bar claim, see § 189, post 8 9 It is immaterial whether the claimant inherited anything from the work- man's estate. State ex rel. Crookston Lumber Co. v. District Court, 131 Minn. 27, 154 N. W. 509. The widow of a deceased workman was wholly dependent, notwithstand- § 79 woekmen's compensation 252 tions shall not have approximated the amount of the awar4, though it be the minimum provided by the statute.^ A dependent is en- titled to compensation for the full period allowed by the Connecti- cut Act, though, if he submitted to an operation, he might not thereafter be a dependent.'' Apportionment of compensation be- tween dependents is considered in a subsequent section.^ § 79. Payment to representatives — Survival of claim Compensation due minor dependents is payable to their guard- ian or trustee, or to their surviving parent where by operation of law he is entitled to receive the payment on their behalf.* In some states, where a widow and child are both entitled to compensation, the whole amount may be awarded to the widow without appor- tionment, unless an apportionment is specially applied for." And where the deceased workman leaves minor children and a surviv- ing dependent parent of such children, no guardian ad litem or trus- ing the fact that she profited $100 by his death. Pryce v. Penridyber Naviga- tion Colliery Co. (1902) 4 W. C. C. 115, O. A. See § 181, post. 1 Appeal of Hotel Bond Co., 89 Conn. 143, 93 Atl. 245. 2 Id. 8 See § 192, post * Compensation awarded to the infant children of a deceased workman may be paid to his widow, where by appointment or operation of law she Is their general guardian. (Wk. Comp. Act, §§ 16, 20) Woodcock v. Walker, 170 App. Div. 4, 155 N. T. Supp, 702. Where the dependent is a minor, the benefits to which he is entitled will be ordered paid to a trustee for him. Mitchell v. Fairchild-Gilmore- Wilton Co., 1 Cal. I. A. C. Dec. 71. Where a deceased employe was survived by a wife and child of twenty months, both dependent, since the minor child is under the disability of in- fancy and in the custody of her mother, that part of the compensation appor- tioned her will be made payable to the mother for the use of the child. (Page & A. Gen. Code, § 1465—68) In re Laura Shaffer, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 7. 5 Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399. As to apportionment, see § 192, post. '253 PERSONS ENTITLED TO COMPENSATION § 79 tee will be appointed, if the surviving parent is a proper person and entitled to share in the award in her own right; but the entire death benefit will be made payable to her for the support of herself and family, without giving the minor children any legal share therein, thus avoiding the necessity of appointing a trustee or guardian and the giving of a bond.° However, where lump sums are awarded in amounts sufficient to reasonably justify the invest- ment, a guardian should usually be appointed/ The mother of il- legitimate children is a proper person to be appointed their guard- ian.* When incapacity lasts more than 15 days, and the employe dies from causes other than those producing the original injury and be- fore a formal claim is filed, the legal representatives, who under the federal Act are entitled to file a claim and receive payment cov- ering period of incapacity, are the administrator, the executor, or the heirs or next of kin.* Where, on account of death of an em- ploye, compensation has been allowed under this Act to the widow and child, and the widow dies within the compensation period, and the care of the child devolves upon the child's maternal grand- mother, the remainder of the year's compensation may be paid to such maternal grandmother for the use and benefit of the child.^" e La Salle v. Whiting-Mead Commercial Co., 1 Cal. I. A. C. Dec. 346. Where the deceased employ§ leaves a widow and minor children, the award is not to be divided among them, but is to be made payable to the widow alone, to be used by her for the support of herself and children in such man- ner as she sees fit; hence it Is not necessary that a guardian ad litem be employed for the minor children, where the widow, their mother, is the ap- plicant Kennedy v. Guardian Casualty & Guaranty Co., 1 Cal. I. A. C. Dec. 152. Money allotted to infant children may be paid to the wife, without the ap- pointment of a general guardian and the attendant expenses. Woodcock v. Walker, 170 App. Div. 4, 155 N. Y. Supp. 702. 7 (Wk. Comp. Act Wash. § 6) Kulings Wash. Indus. Ins. Com. 1915, p. 18. 8 Sexton V. Massachusetts Bonding & Insurance Co., 1 Cal. I. A. 0. Dec. 48. » In re Karumbellas, Op. Sol. Dept. of L. 614. 10 In re Jefferson, Oct. 1, 1910, Op. Sol. Dept. of L. p. 564. § 79 workmen's compensation 254- Compensation due dependents residing in a foreign country will not usually be paid to a consul of that country until he shows au- thority to receive ^nd transmit same.^^ It is not enough merely- that he has been appointed administrator of the deceased em- ploye.^'' But under the Ohio Act a foreign consul is entitled to re- ceive the compensation payments due citizens and residents of his. country without a specific power of attorney, unless the persons entitled to payment have selected, through power of attorney, some- other representative.^* A dependent's right to compensation will survive, and if not sat- isfied before death of the dependent will pass to his or her per- sonal representative, unless otherwise provided by statute.^* 11 A foreign consul will be paid compensation due dependents residing in a foreign country only when he files with the Commission a power of attorney from the person entitled to receive the money authorizing him to receive and transmit same. (Comp. Act, § 41) In re Katharina Schatz, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 60. In Salvatore v. Andreani & Gelormino, 1 Conn. Comp. Dec. 169, it was held that the official position of the Italian consul does not entitle him to receive the award of a dependent widow residing in Italy, but that it may be made to him where he has an authorization from her to receive her compensation. 12 That the Greek consul at New York was appointed administrator of a deceased employ^ did not make him the legal representative of beneficiaries.. In re Lemanes, Op. Sol. Dept. of L. 613. 18 Vujic V. Youngstown Sheet & Tube Co. (D. C.) 220 Fed. 390. 1* An award of compensation from the Ohio state insurance fund to a wholly dependent person vests in the dependent when the award is made, so that, in case of the death of such dependent, his or her personal representa- tive is entitled to the balance, if any, remaining unpaid. (Workmen's Com- pensation Act, § 85; 103 Ohio Laws, p. 72) State v. Industrial Commission, 92 Ohio St. 434, 111 N. E. 299. Compensation which had accrued to the employe's widow between death of the employs and her death became part of her estate, and claim therefor could not be made by their children as beneficiaries. In re Towle, Op. Sol. Dept. of li. 565. Where the widow of a deceased workman claimed compensation, but died before the case was tried, her right survived to her legal personal represent- ative. Darlington v. Roscoe & Sons (1908) 9 W. C. C. 1, C. A. (Act of 1897). Where the mother of a deceased workman, who was his only dependent, died 255 PEESONS ENTITLED TO COMPENSATION § 79' Thus, where a widow who was entitled to a death benefit un- der the Cahfornia Act because of the death of her husband, died before an award was made, leaving a dependent son of herself and. such employe, the son was entitled to the whole death benefit un- der a provision that the Commission "may order payment to a de- pendent subsequent in right, or otherwise entitled, upon good cause being shown therefor." ^° But the liabiHty of an employer paying- compensation to the mother of a deceased workman ceases upon her death, as to payments then unaccrued, and her estate is not en- titled to receive the remaining payments, which would have been due, had she lived.^® Therefore, where, after the death of the mother, her administrator files a claim for the payment to the es- tate of the award, the estate is entitled to only such portion of the award as would have been payable to her to the time of her death.^'^ Where in a Massachusetts case it appeared that the employe, a widower, left two minor children wholly dependent upon his earn- ings for support, and one of them died shortly after the decease of his father, the Supreme Judicial Court affirmed a decision that the sum due those wholly dependent should be paid the administrator for the benefit of the surviving child. ^* Under the Connecticut Act, compensation for disability forms; no part of the estate of a deceased workman, but ceases at his death, except that for medical and burial expense, which is payable to his- before she had claimed compensation, her claim survived to her legal per- sonal representative. United Collieries, Ltd., v. Hendry (1910) 2 B. W. C C. 308, H. L., and (1909) 1 B. W. C. O. 289, Ct. of Sess. 15 (Wk. Comp. Act Cal. § 19 [2]) Hughes v. Degen Belting Co., 2 Cal. I. A^ 0. Dec. 595. 18 Matecny v. Vierllng Steel Works, 187 111. App. 448 ; In re Murphy (Mass.)' 113 N. E. 283. " Ledford v. Caspar Lumber Co., 2 Cal. I. A. C. Dec. 691. 18 Janes v. Mdelity & Casualty Co. of New York, 2 Mass. Wk. Rep. of Comp. Cases, 217 (decision of Com. of Arb., afBrmed by Indus. Ace. Bd., also, by Sup. Jud. Ct, 217 Mass. 192, 104 N. E. 556). § 80 workmen's compensation 256 administrator. Under the New Jersey Act decedent's administra- tor may sue for the benefit of the dependents.^* § 80. Determination of question of dependency Actual dependency is a question of fact,^" to be determined, in the absence of any apfJlicable and conclusive statutory presump- 19 Corcoran v. Farrel Foundry & Machine Co., 1 Conn. Comp. Dec. 42. (Wk. Comp. Act, § 2, par. 19) Conners v. Public Service Electric Co. (N. J.) S7 Atl. 792. 2 Miller v. Public Service Ey. Co., 84 N. J. Law, 174, 85 Atl. 1030, affirmed in (Wk. Comp. Act, § 43) Appeal of Hotel Bond Co., 89 Conn. 143, 93 Ati. 245 ; Main Colliery Co., Ltd., v. Davies, 16 T. R. 460 ; Houliban v. Connect- icut Elver E. E., 164 Mass. 555, 42 N. E. 108 ; American Legion of Honor v. . Perry, 140 Mass. 580, 5 N. E. 634 ; . Miller v. Eiverside Storage Co. (Mich.) 155 N. W. 462 ; State ex rel. Globe Indemnity Co. v. District Court (Minn.) 156 N. W. 120; Muzik v. Erie E. Co., 85 N. J. Law, 131, 89 Atl. 248, 86 N. J. Law, 695, 92 Atl. 1087; Havey v. Erie R. Co., 88 N. J. Law, 684, 96 Atl. 995; Walz v. Holbrook, Cabot & EoUins Corp., 170 App. Div. 6, 155 N. Y. Supp. 703 ; In re Branch, Op. Sol. Dept. of L. 576; In re Eock, Op. Sol. Dept. of L. 573. Where the evidence showed that deceased contributed to the support of his mother, and that she, while not immediately dependent for sustenance on such contributions, was, because of advancing years, condition of mind, and lack of regular employment and of property, liable to become a dependent, the question whether she was partially dependent on deceased was for the jury. Appeal of Hotel Bond Co., supra. Whether the daughter of a deceased workman was dependent upon him for her support is a question of fact. In re Herrick, 217 Mass. Ill, 104 N. E. 432. Where it appeared that the inability of the workman to obtain and to per- form sufficiently remunerative permanent work was the cause of his failure to provide a home for his wife and child, that their living apart was charge- able to his mental and physical deficiencies and characteristics and not to his willful negligence, and that he paid doctors' bills and grocery bills, bought clothes for the child, and gave $200 or $300 to his wife, the Industrial Ac- cident Board should have determined as a fact whether his wife was depend- ent upon him at the time of his death. St. 1911, c. 751, pt. 5, § 2 (c), as amend- ed by St. 1914, c. 708, § 3 ; In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. It was a question of fact whether the mother and sister of a deceased employe, to whose support he had contributed, were wholly de- pendent upon him. (St. 1911, c. 751, pt. 2, § 6) Hartley v. Boston & N. St. 257 PERSONS ENTITLED TO COMPENSATION § 80 tion,^^ from the circumstances of the particular case," usually those circumstances existing at the date of the injury,^^ rather than at the date of death, as specified by some Acts."* The Minnesota Ry., 198 Mass. 163, 83 N. E. 1093; Potts v. Nlddrie & Benhar Coal Co., [1913] A. C. 531, 538; Petrozino v. American Mut. Liability Co. (Caliendo's Case), 219 Mass. 498, 107 N. E. 370. Whether the father and mother and minor brothers and sisters, living to- gether in the same household and subsisting in part on the earnings con- tributed by the deceased to his father, the head of the household, and ap- plied by the father to the support of himself and his family, were actual de- pendents on the deceased, was a question of fact for the trial judge. Havey V. Erie R. Co., 87 N. J. Law, 444, 95 Atl. 124. Where decedent's sister was of age, her actual dependency was a pure question of fact. Conners v. Public Service Electric Co. (N. J.) 97 Atl. 792. Where, after deserting his children and paying nothing to help support them, a father three years later, upon obtaining a good position, agreed to give them a monthly sum, but was Injured and died before he had paid any- thing, the question of dependency must be decided as a question of fact, and the finding made by the sheriff-substitute that they were not dependent "in fact and in law" cannot stand. Dobbies v. Egypt & Levant Steamship Co., Ltd. (1913) 2 B. W. C. C. 348, Ct. of Sess. 21 See §§ 81, 82, post. 22 Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025 ; Garcia v. Indus. Ace. Com. of Cal., 2 Cal. I. A. C. Dec. 630, 171 Cal. 57, 151 Pac. 741 ; Stevenson v. Illinois Watch Case Co., 186 111. App. 418. 23 Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025. In Massachusetts, whether an employe's wife and chUd, who were living apart from him at the time of his death, were dependent on him for support, must be determined on the evidence of the fact as it existed "at the time of the injury." (St. 1911, c. 751, pt. 2, § 7) In re Bentley, 217 Mass. 79, 104 N. E. 432. Whether a person within the class which may be partially dependent, but not within the class conclusively presumed to be wholly dependent, is a de- pendent, is a question of fact to be determined as of the date of the injury. Miller v. Riverside Storage & Cartage Co. (Mich.) 155 N. W. 462. Dependency is a question of fact, determinable according to the facts ex- isting in each particular case at the time of the fatal Injury, except in the instances specified In paragraph 4 of section 35 of the Compensation Act. In re Maude M. Hughes, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 148. 24 The New York Act makes dependency at the time of death a condition for making an award to the dependent. (Wk. Comp. Act, § 16, subd. 4) Tirre V. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. Supp. 883. HON.COMP. — 17 § 81 workmen's compensation 258 Supreme Court has held that the right to compensation is controlled by the law in force at the time of death, rather than at the time of accident."' v § 81. Presumption of dependency — Husband and wife The widow of a workman killed in his employment is usually en- titled to compensation, regardless of the question of dependency. The mere fact of widowhood dispenses with proof of dependency.** As used in a statutory provision that a wife shall be conclusively presumed to be dependent for support on a husband "with whom she lives" or "with whom she was living at the time of his death," the words quoted mean living together as husband and wife in the ordinary acceptation of these words. "^ The conclusive presumption 2 5 state ex rel. Carlson v. Dist. Ct, 131 Minn. 96, 154 N. W. 661. Where the death of the deceased occurred on April 30, 1914, the right to compensation was governed by Laws 1913, c. 467 (Gen. St. 1913, §^ 8195-8230), and not by the amendment of 1915 (Laws 1915, c. 209). State ex rel. Globe Indemnity Co. v. District Court (Minn.) 156 N. W. 120. 2 8 Moell V. Wilson, The Bulletin, N. Y., vol. 1, No. 10, p. 15. 27 The phrase "with whom she lives" means living together as husband and wife in the ordinary acceptation and significance of these words in com- mon understanding. They mean maintaining a home and living together in the same household, or actually cohabiting under conditions which would be regarded as constitutiag a family relation; There may be temporary absences and incidental interruptions arising out of changes in the house or town of residence, or out of travel for business or pleasure. But there must be a home and a life In it. The matrimonial abode may be a roof of their own, a hired tenement, a boarding house, a rented room, or even a room in the house of a relative or friend, however humble or temporary it may be. But it is the situation arising from the absence of a common home, a place of marital association and mutual comfort, broken up or put in peril of hardship or ex- tinction by the husband's death, which Is protected by the conclusive pre- sumption of dependency established beyond the peradventure of dispute by the statute. Under such circumstances the widow is given the benefit of an Irrefutable assumption that she was supported by the husband. It well may be that this was a legislative concession to the recogniized benefit to society arising from the living together of husband and wife, and that like conces- sion should not be made to the anomalous situation of a marital relation 259 PBESONS ENTITLED TO COMPENSATION § 81 will not be prevented from arising by a separation for a long term of years, where during the time the husband evidenced an intent to renew family relations by contributing regularly and substantially to the support of the dependents.^* That husband and wife are not accompanied by a living together, leaving the fact of dependency in such cases to he proved as it is in other cases. There may be many instances where there is a total dependency, though a temporary separation. There may be a physical dissociation and a breaking up of the home, with a definite purpose to resume the normal conditions of married life. The Act provides for these cases by requiring dependency to be determined in accordance with the truth. But words which signify living together do not describe such a situation. These words exclude a condition where there is neither a home nor an actual dwelling together, and where the suspension of this relation is something more than a mere temporary incident of a changing family habitation. In re Nelson, 217 Mass. 467, 105 N. E. 357, disapproving North- western Iron Co. V. Industrial Commission, 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877, so far as inconsistent with this de- cision. Where it is not shown that the wife was living apart from her husband for justifiable cause, the question of her dependency on him should be de- termined under St. 1914, c. 708, § 7, and it should not be conclusively pre- sumed that she was wholly dependent upon him under section 3, cl. "a." In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. Liv- ing together means normal marital cohabitation. In re Fierro's Case, 223 Mass. 378, 111 N. B. 957. A wife is conclusively presumed to be dependent upon a husband with whom she was living at the time of his death. (Wk. Comp. Act Cal. § 19 [a] [1]) Irwin V. Globe Indemnity Co. of N. Y., 1 CaU I. A. C. Dec. 547 ; White V. Scioto Land Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 114. This is true, even though they had been estranged for about four months prior to the date of the fatal injury, where a reconciliation had taken place shortly be- fore the injury, and they were living together for a period of eight days be- fore he died. Peloquin v. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 718 (decision of Com. of Arb.). 28 Tomasi v. Mazzotti & Butinl, 2 Cal. I. A. C. Dec. 936. Where a work- man, coming to this country seven years before the accident, left in Italy his wife and children, to whom he sent regular contributions for their support, averaging over $180 annually during the last three years, the wife was liv- ing with him at the time of his death within the meaning of section 19 (a) (1) of the Act, and therefore conclusively presumed to be totally dependent. Id. Where up to the time of his death a workman had been supporting his § 81 workmen's compensation 260 physically dwelling apart will not prevent this conclusive pre- sumption from arising, where it is intended that their separation shall be merely temporary.^^ But this presumption does not arise / wife, Vho during the four years of his absence from her had remained in the foreign country of thei% birth, she was "living with" him at the time of his death, within section 19. Ohulata v. Kansome-Crummey Constr. Co., 2 Cal. I. A. C. Dec. 1026. There was a similar holding in Lopez v. Fremont Cons. Mining Co., 3 Cal. I. A. 0. Dec. 31. Where a widow residing in Italy was wholly supported by and wholly de- pendent, upon her husband, although for three years she had been separated from him by reason of his residence in California, and it clearly appeared that he intended to reunite with her, which intention was about to be car- ried out at the time of his death, she was "living with" him at the time of death, and because of that fact, and also because of her actual support, she was entitled to a death benefit as a total dependent. Petrucci v. Red Kiver Lumber Co., 3 Cal. I. A. C. Dec. 40. But a wife, resident abroad and for nine years separated from her husband, will not be conclusively presumed to be "living with" him, within section 19 (a) (1) of the California Act, in the ab- sence of sufficient evidence of regular and substantial contributions by him tending to show an intent to renew family relations. Claudlo v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7. In Salvatore v. Andreani & Gelormino, 1 Conn. Comp. Dec. 169, where the deceased workman had been in America six years, and had continually dur- ing that time sent sums of money to his wife in Italy, and expected later to rejoin her in Italy, they were "living together" within the contemplation of the Connecticut Act, and she was held to be presumptively dependent upon him. 2» A wife is living with her husband at the time of his death, within the meaning of paragraph 4 of section 35 of the Compensation Act, where there has been no legal or actual separation in the nature of an estrangement, al- though, they are not physically dwelling together, and no facts appear sug- gesting the inference that either husband or wife had abandoned the other, and had formed the intention of permanently living separate and apart. In re Militza Bonsanar, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 87. Where the deceased and his wife have been living together as husband and wife, but for two months prior to the accident the wife had been visiting with a sister in Wyoming until the deceased could prepare a home for her in San Diego, where she had planned to join him the week following the ac- cident, it was held that such facts warrant the finding that deceased and his wife were living together as man and wife at the time of the accident and death, within the meaning of the Workmen's Compensation, Insurance, and Safety Act, State Compensation Insurance Fund of the State of Cal. 261 PERSONS ENTITLED TO COMPENSATION § 81 where the alleged wife is not a legal wife.'" Nor does it ordiijarily arise where they are living apart,'^ particularly where the wife is V. Breslow, 1 Oal. I. A. C. Dec. 194. But evidence that an Italian resident of California in 1912 sent $140 to his wife, who had remained in Italy, and, after remitting $40 to her the following February, was then imprisoned un- til the next January, and on resuming work was accidentally killed during the next June, having made no further remittance, with no evidence other- wise of his intent to renew family relations, was insuflBcient to establish that they were "living together." Claudio v. California Street Cable Ky. Co., 3 Cal. I. A. C. Dec. 7. The husband and wife are to be considered as living together, even though one or the other may be absent from the home for a considerable length of time and separated by great distance; thejr are living together when they are not living apart, when there is neither legal nor actual separation of the bonds of matrimony. Nevadjic v. Northwestern Iron Co., Bui. Wis. Indus. Com. vol. 1, p. 93; Id. 1912-13, p. 21, affirmed in 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877. 30 The presumption of dependency does not arise where the woman living with the workman at the time of his death as his wife is in fact not his le- gal wife because of the existence of a prior undissolved marriage. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307. Where the mother of an legiti- mate child is actually living with the father of the child as his wife, and ac- tually wholly dependent upon him, and it is provided that such child is con- clusively presumed dependent only in cases of "there being no surviving parent, member of the family of such employ^," such mother, living in illicit relations with the employ^, is not a member of his family, and therefore not considered a dependent, within the meaning of subsections (a), (3), and (c) of section 19 of the Act. Bustamente v. Gate City Ice & Precooling Co., 2 Cal. I. A. C. Dec. 918. 31 HoUeron v. Hill, 2 Cal. I. A. C. Dec. 289. Where at the time of the death of an injured employ^ his wife is not living with him, and for a long time prior had received no contributions to her support from him, the dependency of the wife is not established. Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. 307. Total dependency of a wife upon her husband at the time of his death is not established where, because of his prior desertion of her, she is not living with him at that time. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311. Where a husband has been residing away from his wife for twelve years in a foreign country, she was not living with him, within the meaning of subdivision (a), 1, of section 19 of the Workmen's Compensation Act, and the extent of her dependency is a matter to be proven by evidence. Reis V. Standard Portland Cement Co., 2 Cal. I. A. C. Dec. 869. Where the husband and wife are living separate and apart, and he is killed by Indus- § 81 workmen's compensation 262 not being supported by the husband,'^ or where their living, apart is voluntary "^ and without justifiable cause on the part of the wife. Under the express provisions of the Massachusetts Act, a wife living apart from her husband for justifiable cause is entitled trial accident, there can be no presumption of entire dependency of the wife, and the facts must establish the dependency, if any. Bristol v. Gartland, 1 Cal. I. A. O. Dec. 632. 82 Where a husband and wife had lived apart for several years, and she had worked for her own support, to which he contributed a part, they were not living together, so as to entitle her to compensation under the conclusive presumption that a wife living with her husband is dependent upon him, though they had occasionally spent a few days together. (St. 1911, c. 751, as amended by St. 1914, c. 708, § 3) In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 19160, 1145. • A widow of a deceased employ^, who had separated from him prior to his death, and who was living apart from him and earning her living without receiving any aid from him, is not entitled to a death benefit. She cannot claim the benefit of the conclusive presumption of dependency imder sec- tion 19 (a) 1 of the "Workmen's Compensation, Insurance, and Safety Act, because she was not living with him at the time of his death. Delgado v. California Portland Cement Co., 1 Cal. I. A. C. Dec. 436. A wife who is living apart from her husband, following a vocation in an- other state, which was her means of livelihood prior to her marriage, cannot be said to be wholly dependent upon him for her support, within the mean- ing of the Workmen's Compensation Law, and on his death entitled to maxi- mum compensation from his employer. Finn v. Detroit, Mt. Clemens & Ma- rine City Ky., Mich. Wk. Comp. Cases (1916) 222. An employ^ was killed, leaving a widow whom he married in South Wales in 1877. He was a native of Wales, and left his wife in 1896, and came to America, In 1900 contracting a bigamous marriage with a woman with whom he lived and whom he supported until the day of his death, she having no knowledge of his former marriage and believing herself to be his lawful wife. He had contributed nothing toward the support of his first wife since before the time of his bigamous marriage. The Commission held that his lawful wife was not dependent upon him for support at the time of his death. In re Elizabeth A. Jones, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 187. 83 Where the workman and his wife were voluntarily living apart at the time of his death, each earning a living, the conclusive presiunption of total dependency of a wife upon a husband "with whom she lives" at the time of his death does not arifee. (St. 1911, c. 751, pt. 2, § 7, cl. "a") In re Nelson, 217 Mass. 467, 105 N. B. 357. 263 PERSONS ENTITLED TO COMPENSATION § 81 to compensation.'* The "justifiable cause" need not be such cause as will entitle her to a divorce ; it may be ill-treatment or miscon- duct of a lesser degree.^" But a wife cannot be said to be living apart from her husband for justifiable cause where there has been no failure of marital duty on his parf Thus, where a husband "and wife separate by mutual consent, and such separation is jus- tifiable because he is not earning enough to support his family, but it appears that, though at the time of his death his earnings had so increased that he was amply able to support his family, she still continued to live away from him by mutual agreement, she was not entitled to compensation as a dependent. Her living apart at the time of his death was not for justifiable cause.'^ The wife and child of a deceased workman, who were both living apart from him at the time of his death, are not conclusively presumed to have been wholly dependent on him for support, but that question is to be determined by the evidence of the fact as it existed at the time of the injury.** The provision of the California Act "that the following shall be conclusively presumed to be wholly dependent for support upon 34 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. E. A. 1916C, 1145. St. 1911, c. 751, pt. 2, § 7, cl. "a," was amended by St 1914, c. 708, § 7, cl. "a," by a provision that, if at the time of the husband's death the Indus- trial Board shall find that the wife was living apart for justifiable cause or because he had deserted her, she is conclusively presumed to be wholly de- pendent on her husband. In re Gallagher, 219 Mass. 140, 106 N. B. 558; In re Fierro's Case, 223 Mass. 378, 111 N. E. 957. 3 5 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. This decision finds support in Lyster v. Lyster, 111 Mass. 327; Watts v. Watts, 160 Mass. 464, 468, 36 N. E. 479, 23 L. R. A. 187, 39 Am. St. Rep. 509 ; Rev. Laws, c. 153, § 33. 36 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145; Mayhew v. Thayer, 8 Gray (Mass.) 172; Sturbridge v. Franklin, 160 Mass. 149, 35 N. E. 669 ; Watts v. Watts, 160 Mass. 464, 36 N. E. 479, 23 L. R. A. 187, 39 Am. St. Rep. 509. 87 In re Newman's Case, 222 Mass. 563, 111 N. E. 359, L. R. A. 1916C, 1145. 38 In re Bentley, 217 Mass. 79, 104 N. E. 432, 4 N. 0. 0. A. 559. § 81 workmen's compensation 264 deceased employe: 1. A wife upon a husband with whom she was living at the time of his death. 2. A husband upon a wife upon whose earnings he is partially or wholly dependent at the time of her death" — does not prevent a husband and wife from being de- pendent partially or wholly upon the earnings of a child. The con- clusive presumption refeyed to operates only where the deceased employe is the husband or wife, and not where the employe is the son or daughter of the dependents. In the latter case dependency is determined in accordance with the fact, as the fact may be at the time of the death.'" Under the Iowa Act it is immaterial that the surviving wife was a wage-earner and helping to support herself at the time of the injury.*" She is entitled to compensation if she was married to the deceased at the time of the injury and had not deserted him without fault on his part.*^ Under the Washington Act a wife and children, defined to be de- pendents, are conclusively presumed to be dependent.*^ In con- struing and applying this Act, a divorced man who is paying ali- mony is considered single.** In a case under the Wisconsin Act it was held that, where there has been no actual separation between husband and wife in the na- ture of an estrangement, they may be said to be "living together," though they are not actually dwelling together,** and that the fact 39 (Wk. Comp. Act, § 19, subds. [a], [b]) Cannon v. Original Mining & Mill- ing Co., 1 Cal. I. A. O. Dec. 278. *o Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 30. *i (Code Supp. 1913, § 2477ml6 [c] [1]) Id. *2 (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 6. *8 (Wk. Comp. Act Wash. § 5) Opinion Atty. Gen. May 16, 1912. ** Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 360, Ann. Cas. 1915B, 877. The relation of husband and wife, having once existed, is presumed to con- tinue. Id. ; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587. 265 PERSONS ENTITLED TO COMPENSATION § 81 that husband and wife had been separated for more than three years, she remaining in their native country while he was here, did not create a presumption that they were not living together, where the evidence showed that the marital relations continued without a break.* ° The court in an opinion by Judge Kerwin said: "Proof of total dependency is dispensed with under the statute, where the husband and wife are 'living together' at the time of the death of the injured employe. It seems, therefore, quite obvious that the Legislature intended by the use of the words to include all cases where there is no legal or actual severance of the marital rela- tion, though there may be physical separation of the parties by time and distance. The 'living together' contemplated by the stat- ute, we think, was intended to cover cases where no break in the marriage relation existed, and therefore physical dwelling together is not necessary, in order to bring the parties within the words 'liv- ing together.' There must be a legal separation, or an actual sep- aration in the nature of an estrangement, else there is a 'living to- gether' within the meaning of the statute. This seems to be the reasonable and practical construction of the law, and the one which we think the Legislature intended. If the law should receive the construction that there must be physical dwelling together in order to satisfy the statute, it is plain that the purpose of the law would be in many cases defeated, because in many cases the spouse may be absent from home for long intervals, although there be no break in the marriage relation, no estrangement, and no intent to sepa- rate or sever the existing relations or obligations created by the marriage contract. * * * There seems to be no solid reason why an absence of a month, or a year, or less, should require a different construction of the words 'living together' than an absence of three years and three months, or more. The question does not turn on time or distance, but upon the nature and character of the 4B Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wirt. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877. § 81 workmen's compensation 266 absence and the intention of the parties respecting it. Intent is an important element in determining the nature of absence." ** Where the evidence in an action under the New Jersey Act shows that a deceased workman, when at work, contributed a substantial part of his earnings toward the support of his wife and daughter, and that he and his wife were not living in a state of legal sepa- ration, the presumption of dependency was not rebutted, though it further appeared that he did not work steadily, was inclined to dissipate, did not live at home all the time, ai^d that his wife's po- sition was not very satisfactory.*^ The question of intent is an important factor in determining whether the parties were living together. This is ordinarily a question of fact.*' However, what constitutes "living together," where the facts are undisputed and no conflicting inferences can be drawn from the evidence, is a question of law for the court.*" § 82. Parent and child Where there is a direct legal obligation to support, as in the case of a father to his minor children, coupled with the reasonable prob- 46 Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, li. E. A. 1916A, 366, Aim. Cas. 1915B, 877, supported by Ex parte Gilmore, 3 Bng. Com. B. 967; Williams v. Williams, 122 Wis. 27, 99 N. W. 431 ; Thompson v. Thompson, 53 Wis. 153, 10 N. W. 166 ; Miller v. Sov- ereign C. W. of W., 140 Wis. 505, 122 N. W. 1126, 28 L. R. A. (N. S.) 178, 138 Am. St. Rep. 1095. *^ Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399. *8 Northwestern Iron Co. v. Industrial Commission of Wis., 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877, supported by Hoff V. Hackett, 148 Wis. 32, 134 N. W. 132. Whether the parties were living together was a question of fact to be tried and determined by the Commission. Northwestern Iron Co. v. Industrial Commission of Wis., supra ; Travelers' Ins. Co. v. Hallauer, 131 Wis. 371, 111 N. W. 527. Where the deceased employe was a foreigner, and his wife was yet in a foreign country, and he occasionally sent her money, the question whether they were living together was one of fact. (St. 1911, § 2394 — 10, subsec. 3) Northwestern Iron Co. v. Industrial Commission of Wis., supra. *o Northwestern Iron Co. v. Industrial Commission of Wis., supra. "267 PERSONS ENTITLED TO COMPENSATION § 82 ability of such obligation being fulfilled, dependency is established, «ven though no support was in fact being furnished at the time of the workman's death.'" The law does not limit dependency of minor children living apart from their parents to cases where actual support was being furnished or contributions made, as such a rule would in many instances exclude children from the benefits of a law that was clearly intended for their protection." The Massachusetts Act should be interpreted broadly in harmony with its niain aim of providing support for those dependent upon a deceased employe. Under a provision thereof that "a child or children under the age of eighteen years (or over that age but physically or mentally incapacitated from earning) shall be con- clusively presumed to be wholly dependent upon the parent with whom he is or they are living at the time of the death of such par- ent, there being no surviving dependent parent,'' the child of an employe by a former wife, who is presumed to be dependent, is conclusively presumed to be wholly dependent, because there is, as to it, no surviving dependent parent. Children of the deceased, who are children of the widow, are not conclusively presumed to be dependent, because as to them there is a surviving parent.'^ This conclusive statutory presumption is clearly conditioned on the nonexistence of a surviving dependent parent. ^^ The word "par- ent" means the lawful father or mother by blood, and not a step- father or stepmother, or any one standing in loco parentis. Under the Ohio Act there is no presumption that the father or mother of an unmarried grown son, residing with them, is in any BO Malzac V. Brule Timber Co., Mich. Wk. Comp. Cases (1916) 330. Slid. 5 2 Coakley v. Coakley, 216 Mass. 71, 102 N. B. 930, Ann. Cas. 1915A, 867, 4 N. C. C. A. 508. B8 In re Employers' Liability Assur. Corporation, 215 Mass. 497, 102 N. E. 697. "The provisions of 6 Edw. VII, c. 58, § 13, as to the dependents enti- tled to payments, are wholly different from those of our own Act, and deci- sions of the English courts have no bearing on the case at bar," Id. § 83 workmen's compensation 268' degree dependent upon him for support,"* nor is there any presump- tion that a child over sixteen years of age is dependent upon its father for support. "^ Whether a woman whose husband is living is dependent in any degree for support on her grown son is a-ques- tion of fact."* § 83. California Under the California Act there is no conclusive presumption that nonresident parents are dependent on the deceased workman,, whether they are thus dependent being a question of fact/^ The only legal obligation from which dependency may be found to exist as a conclusive presumption of law is that of a parent at the time of his death for the maintenance of a minor child, there being no dependent parent surviving.'** Nonresident children under eighteen years of age receiving support from their father in Cal- ifornia, being within this rule of presumption, are conclusively 54 In re Joseph Hora, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 173. BB In re Maude M. Hughes, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 148. Although a son may be living with his father at the time of the latter's death, if the son be over 16 years of age, there is no presumption that he was de- pendent upon the father for support. White v. Scioto Land Co., vol. I, No. 1, Bui. Ohio Indus. Com. p. 114. 5 6 In re Emma Hoffman, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 41. B7 (Wk. Comp. Act [St. 1913, p. 289], § 19a) Garcia v. Indus. Accident Com. of Cal., 171 Cal. 57, 151 Pac. 741. 6s Prichard v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 341. Wlhere a divorce decree gave the custody of a minor child to the mother, and obligated the father to pay $30 a month alimony for support of the mother and the child, the child was conclusively presumed to be wholly dependent for sup- port upon the father, though up to the time of his accidental death in his. employment the father made no payments of alimony. Mitchell v.Crlchton, 2 Cal. I. A. C. Dec. 1005. Where a deceased employ^ leaves a minor child, the issue of himself and a woman living with him as his wife, but to whom he was not married, and the child is living with him at the time of his death and being legally entitled to maintenance by him, such child is conclusively presumed to be wholly dependent on him, Bustamente v. Gate City Ice &. Precooling Co., 2 Cal. I. A. 0. Dec. 918. 269 PERSONS ENTITLED TO COMPENSATION § 84 presumed to be dependent, if the law of California makes enforce- able against such father claims for maintenance furnished the chil- dren in the other state." But where an employe takes into his family a minor child not being related to himself or wife, and no adoption proceedings are had, and the employe deserts his family, and for several months before his death makes no payments for their support, and is killed by industrial accident without resuming such payments, the child is not a dependent. Such child cannot •claim any conclusive presumption given by the Act, as the deceased was not a parent legally liable for its support, nor can it claim under the section relating to dependency in fact, as there was no depend- ency in fact at the time of the death.^" Where a minor daughter has been awarded to the mother by a divorce decree, without any ■order being made for the child's support, the father is not respon- sible for such support, and hence there is no presumption of the dependency of the child on the father.*^ § 84. Proof of dependency In the absence of the operation of any statutory presumption, the burden of showing the facts necessary to warrant payment of compensation rests upon the dependents as much as it does on the plaintiff in any proceeding at law. The dependents must do more than show a state of facts equally consistent with no right to com- pensation as with such right. They can no more prevail, if factors B» HoUeron v. Hill, 2 Cal. I. A. C. I>ec. 289. Where a parent residing in California is legally bound for the support of his minor child by the law of the foreign state where it resides, such law is enforceable in California, the •child is conclusively presumed to be totally dependent upon him for support. Rossi V. Standard Oil Co., 2 Cal. I. A. C. Dec. 307. Minor children, living in Oklahoma, for whose support their father, living in California, is legally lia- ble, are conclusively presumed wholly dependent on him. Avery v. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311. 80 Wk. Comp. Act, § 19, subds. (a), (b) ; Delgado v. California Portland CJement Co., 1 Cal. I. A. 0. Dec. 436. «i Morse v. Royal Indemnity Co., 1 Cal. I. A. C. Dec. 53. § 84 workmen's compensation 27&' necessary to support the claim are left to surmise, conjecture, guess,, or speculation, than can a plaintiff in an ordinary action of tort, or contract. A sure foundation must be laid by a preponderance of the evidence in support of the claim before the dependents can succeed. The elements that need to be proven are quite different from those of the ordinary action at law or suit in equity ; but, so- far as these elements are essential, they must be proved by the same degree of probative evidence. Of course this does not mean, as was said by Lord Loreburn, "that he must demonstrate his case. It only means if there is no evidence in his favor upon which a reasonable man can act, he will fail." " On the question of proof 82 (St. 1911, c. 751) In re Sponatski, 220 Mass. 526, 108 N. E. 466, U R. A. 1916A, 333; quotation from Marshall v. Owners of Steamship Wild Bose,. [1910] A. C. 486. The burden of proving dependency rests on one claiming compensation as a dependent, In re Fierro's Case, 223 Mass. 378, 111 N. E. 957. The burden was on the widow of a deceased employ^, where she sought compensation, to show that the employe's service was such as to entitle her to compensation, and that he was not merely a casual employs. This burden did not shift. (St. 1911, c. 751, pt. 5, § 2, as amended by St. 1914, c. 708, § 13) In re King, 220 Mass. 290, 107 N. E. 959. Claims for compensation by alleged children of a deceased workman will be disallowed, in the absence of substantial proof of paternity. Angelucci . V. H. S. Kerbaugh, Inc., The Bulletin, N. Y., vol. 1, No. 12, p. 16. Sufflcienoy of proof. — ^Testimony of a wife, who had been separated from her husband, who was killed by accident, that she had received regular monthly contributipns for her support, which testimony was contradictory and entirely unsupported, and conflicted with testimony of his sister-in-law to the effect that for the past eight or nine months he had been out of work" and unable to pay for his board, was insufficient to prove dependency. Lewis V. Heafey, 2 Cal. I. A. O. Dec. 492. Burden of proof of death. — The burden of proof is upon the applicant to establish by competent testimony the fact of the death of the employ^ as a condition precedent to receiving the death benefit. Circumstantial evidence is sufficient where, as In this case, it is impossible to establish the fact of death by production of the body. Shea v. Western Grain & Sugar Products Co., 2 Cal. I. A. O. Dec. 550. Proof of marriage. — ^The fact that a man and woman lived together for ten months is not evidence that they were married. Fife Coal Co., Ltd., v. Wallace (1910) 2 B. W. C. C. 264, Ct. of Sess. But in Pappiani v. White Oak 271 PEES0N8 ENTITLED TO COMPENSATION § 84r to establish the fact of dependency, it has been held that, where a son who had been giving his father substantial money contribu- tions was killed by accident, the fact that the father supported or helped to support a crippled brother was not conclusive evidence of his nondependence, and he was in fact partially dependent,"^ but that the mere fact that a father receives money from a son and expends it is not alone sufficient to establish dependency.'* Evi- dence that deceased gave his wages to his father, and that such wages were devoted to the support of the family, was sufficient to support a finding that the members of the family were actual dependents.' ° Where claimants for compensation under the Wash- ington Act reside abroad, a sworn statement of dependency must be made before a magistrate, whose authority to take depositioa is to be attested by an American consul." In dealing with death benefit claims of nonresident dependents, the California Commis- sion requires at least some of the testimony as to contributions for support to be corroborated by documentary evidence of remit- tances. '^ Where the parents, residing in Turkey, applied for a. death benefit, basing their claim on their own uncorroborated and indefinite testimony and on hearsay evidence, there being no direct evidence of any specific amount of money sent at any particular time for their support, a death benefitvwas denied." But it does not Crushed Stone Co., 1 Conn. Comp. Dec. 619, where all direct evidence of claim- ant's marriage to deceased had been destroyed, but there was abundant testimony that she had lived with the deceased as his wife for a number of years, and appeared in papers concerned with the adoption of children as his- wife, the Commissioner held that she was shown to have been the wife of the deceased. «3 Legget & Sons v. Burke (1902) 4 F. 693, Ct. of Sess. (Act of 1897). «* Main Colliery Co. v. Da vies, 2 W. C. C. 108. 8B Havey v. Erie R. Co., 87 N. J. Law, 444, 95 Atl. 124. 86 (Wk. Comp. Act Wash. § 3) Rulings Wlash. Indus. Ins. Com. 1915, p. 6. 87 Claudio v. California Street Cable Ry. Co., 3 Cal. I. A. C. Dec. 7. 88 Andrew v. Alaska Packers' Ass'n, 2 Cal. I. A. C. Dec. 770. § 84 workmen's compensation 272 necessarily preclude recovery that the dependents can furnisl^ no exact account of the workman's contributions to their support. °° For example, want of evidence of the exact amount of the work- man's contributions to the support of his parent will not prevent recovery of compensation, where it conclusively appears that the parent's entire support *was received from the workman.''" In a Wisconsin case, where it appeared that the father and mother had become more or less incapacitated through age and disease, and that without the aid of their children they would not have been able to have managed the farm and provided for their own sup- port in their customary manner of living, the Commission con- cluded that the deceased son contributed a portion of his earnings to his parents.''^ 89 Bradford v. Union Hollywood Water Co., 2 Cal. I. A. C. Dec. 7&2. ro Dennehy v. Minn & Tracy, 1 Cal. I. A. C. Dec. 302. 71 PUska V. Hatton Lumber Co., Bui. Wis. Indus. Com. vol. 1, p. 95. 273 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB CHAPTER V CIRCUMSTANCES UNDER WHICH COMPENSATION BECOMES DUE Section 85-100. Article I. — Injury and accident. 85-91. Division I. — ^Accident. 92-96. Division II. — Personal injury. 97-98. Division III. — Diseases. 99-100. Division IV.— Proof. 101-126. Article II. — Arising out of and in course of employment. 101-104. Division I. — In general. 105-114. Division II. — ^Arising in the course of employment. 115-125. Division III. — Arising out Of employment. 126. Division IV.— Proof. 127-137. Article III.— Cause and result. 138-139. Article IV. — Occupational diseases. ARTICLE I INJURY AND ACCIDENT Division I. — ^Accident Section 85. Necessity, definition, and characteristics. 86. Unexpected untoward event — Extraneous or not. 87. Intentional act of another. 88. Industrial accidents. 89. Voluntary act in emergency. 90. Fortuitous event. 91. Question of law and fact. Division II. — Pebsonai Injitbt 92. Definition. 93. Federal Act. 94. Physical violence or not. 95. Nervous shock. 96. Hernia. Division III. — Diseases 97. Diseases compensable as injuries. 98. Previously existing diseases. Division IV. — ^Pboob 99. Proof of accident. 100. Proof of injury. HON.COMP. — ^18 § 85 woekmen's compensation 274 Division I. — Accident § 85. Necessity, definition, and characteristics A comparison of the various American Compensation Acts dis- closes that some do not make "accident" a condition to the right to recover compensation,^ while others, following the English Act,^ 1 The federal Act, and those of West Virginia, Washington, Kentucky, Louisiana, Iowa, Ohio, Massachusetts, Texas, and Connecticut, omit the word "accidental" in modifying "injury." Yume v. Knickerbocker Portland Cement Co., 3 N. Y. St. Dep. Rep. 353. Under the Massachusetts Workmen's Compensation Act it is not required that the injury be also an accident, differing in this respect from the Eng- lish Act and being more liberal to the employ^. The element of accident was not intended to be imported into the Massachusetts Act. In re Hurle, 217 Mass. 223, 104 N. E. 336, D. R. A. 1916A, 279, Ann. Cas. 19150, 919. The name "Industrial Accident Board," which is the administrative body created by part 3, is a mere title, and cannot fairly be treated as restrictive of its duties. Id. "The standard established by the Massachusetts Workmen's Compensation Act as the ground for compensation is simply the receiving of 'personal Injury arising out of and in the course of the employment. This standard is materially different from that of the English Act and of the Acts of some of the states of this nation. That standard is 'personal injury by accident,' both in the Act of 1897 and 1906. See 60 & 61 Vict. 1897, c. 37, § 1 (1) ; 6 Edw. VII, 1906, c. 58, § 1 (1). The difference between the phrase- ology of our Act and the English Act in this respect cannot be regarded as immaterial or casual. The English Act in its present form was passed several years before ours. It was known to the Legislature which enacted the Massachusetts statute and was foUpwed as to its general frame and in many important particulars. Gould's Case, 215 Mass. 480, 486, 102 N. E. 693, Ann. Cas. 1914D, 372 ; McNicol's Case, 215 Mass. 497, 499, 102 N. E. 697, L. R. A. 1916A, 306. This difference must be treated as the result of de- liberate design by the General Court, after intelligent comprehension of the 2 The English Act of 1897 was entitled : "An act to amend the law with respect to compensation to workmen for accidental injuries suffered in the course of their employment." The body of the act provided that: "If in any employment, to which this act applies, personal injury by accident arising out of and In the course of employment is caused to any workman, his employer shall be liable." "It is not enough to say that the injury was caused by the employment, but there must be the further element of accident." Cozens-Hardy, M. R., in Broderlck v. London County Council (1909) 1 B. W. O. C. 219, C. A. 275 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 85 prescribe not only that there shall be a personal injury, but that the injury shall be by accident.* The word "accident" refers to limitation expressed by ttie words of the English. Act. The freer and more comprehensive words in the Massachusetts Act must be given their natural construction, with whatever added force may come from the intentional con- trast in phraseology with the English Act. The 'personal injury by acci- dent,' which by the English Act is made the prerequisite for the award of financial relief, is narrower in its scope than 'personal injury.' " In re Mad- den, 222 Mass. 487, 111 N. E. 379. It is intended that all injuries shall be compensated for unless willfully incurred ; disease only being excluded. (Wk. Comp. Act, § 3) Stertz v. In- dustrial Insurance Commission of Washington (Wash.) 158 Pac. 256. The use of the word "accident" in the administrative portions of the Act is for brevity only, and it does not .operate to detract from or vary the meaning of the words "fortuitous event." Id. In Blackall v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 183, it was held that it is not necessary under the Connecticut Act that the injury arise by accident. The words "by accident," found in the English Act, are omitted from this statute. Within the language of the federal Act, an employ^ may be injured with- out having suffered a definite accident. In re Clark, Op. Sol. Dept. of L. 188. 3 As "accident" is the controlling word in the Michigan Act, Massachusetts decisions relative to the element of accident have little, if any, bearing on the Michigan Act. In Adams v. Acme White Lead & Color' Wks., 182 Mich. 157, 148 N. W. 485, L. R. A. 1916A, 283, the court, in an opinion by Judge Stone, says: "Our attention has been called to the Massachusetts Act, which differs in many respects from our Act. The whole scope of the Act seems to. be to provide for compensation for personal injuries received in the course of employment. In many instances where the word 'accident' occurs in our statute the word 'injury' is used in the Massachusetts statute. It is true that the Massachusetts board is termed an 'Industrial Accident Board,' but, aside from the use of the word 'accident' in that title, we are unable to find the word in the body of the act, except in two instances in sec- tion 18 of part 3, which provides for the keeping of a record and making a report by the employer in case of accident. This may be said not to be very controlling; but, in our judgment, it has to do with the inquiry as to the scope of the Act. We are unable to follow those cases as authority under our statute." Followed In Eobbins v. Original Gas Engine Co. (Mich.) 157 N. W. 437. Even though an injury arises out of and In the course of the employment, there can be no recovery, unless it is an "accident," within the purview of the Act. Walther v. American Paper Co. (N. J. Sup.) 98 Atl. 264. The benefits of the California Act are limited to cases of Injury arising from accident. McDonald v. Dunn, 2 Cal. I. A. C. Dec. 71. § 85 wokkmen's compensation 276 the cause of the injury,* and is here used in its ordinary and popu- lar sense as denoting an unlocked for mishap or an untoward event which is not ejtpected or designed^ by the workman himself," a * In re Hart, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 18 ; (Kev. St 1913, § 3693 [b]) Johansen v. Union Stockyards Co., 99 Neb. 328, 156 N. W. 511. » Adams v. Acme White *Lead & Color Wks., 182 Mich. 157, 148 N. W. 485, L. K. A. 1916A, 283 : Walker v. Lilleshall Coal Co., [1900] 1 Q. B. 488 ; Rob- bins V. Original Gas Engine Co. (Mich.) 157 N. W. 437; Moore v. Lehigh Val- ley R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620; Bryant v. FisseU, 84 N. J. Law, 72, 86 Atl. 458; Clayton & Co. v. Hughes [1910] A. C. 242, 26 T. L. R. 359 ; Fenton v. Thorley & Co. (1903) 5 W. C. C. 6. The words "accident" and "accidental" In the Compensation Acts are used in their popular and ordinary sense, and mean happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected. Robbins t. Original Gas Engine Co., supra. "Accident" means an unexpected or unforeseen event, happening suddenly and violently, with or without human fault, and producing at the time ob- jective symptoms of an injury. (Wk. Comp. Act [Laws 1913, c. 198] § 52 [b]) Johansen v. Union Stockyards Co., 99 Neb. 328, 156 N. W. 511. In Mutual Ace. Ass'n v. Barry, 131 U. S. 100, 121, 9 Sup. Ct. 755, 762 (33 L. Ed. 60), the term "accidental," as used in an accidental insurance policy, is defined as used "in its ordinary popular sense, as meaning 'happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected' ; that if a result is such as follows from, ordinary means, voluntarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means ; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual, occurs which produces tie injury, then the Injury has resulted through accidental means." , The popular and ordinary definition of the word "accident," and not the 8 Trim Joint District School v. KeUy (1914) 7 B. W. C. C. 274, H. L., and (1913) 6 B. W. C. C. 921, C. A. "An occurrence, I think, is unexpected, if it is not expected by thfe man who suffers by it, even though every man of com- mon sense who knew the circumstances would think it certain to happen." Lord Macnaghten, in Clover, Clayton & Co. v. Hughes (1910) 3 B. W. C. C. 275, H. L. For 70 years in England the word "accident" has been publicly and descriptively used as inclusive of occurrences intentionally caused by others. Trim Joint District School v. Kelly, supra. When the act, as far as the injured employ^ is concerned, is an unforeseen, unlooked-for mishap, unprovoked and uninvited, the resultant injury is occa- sioned by an "accident." Walther v. American Paper Co. (N. J. Sup.) 98 Atl. 264. 277 CIECUMSTANOES UNDER WHICH COMPENSATION DUB § 85 physiological injury as the result of the work he is engaged in/ an unusual effect of a known cause,^ a casualty.* It implies that there stricter definition used in construing accident insurance policies, is to be used in compensation cases, and an employ^ who, while assisting in the loading of lumber on a truck, either slipped or in some manner wrenched his back and fell down, sustained a a accident within the meaning of the Act. South- western Surety Ins. Co. v. Pillsbury (Cal. Sup.) 158 Pac. 762. An injury is accidental if it is "unforeseen," "without design," "happening without the concurrence of the injured party," "unintended or unexpected" by the employ^, or "a risk of his occupation." Johnston v. Mountain Com- mercial Co., 1 Cal. I. A. C. Dec. 100. Accidental means are those which produce effects which are not their natural and probable consequence. An effect which is a natural and probabla consequence of an act or course of action is not an accident, but one which is not a natural and probable con- sequence of an act or course of action is produced by accidental means and is an accident. Eep. Nev. Indus. Com. 1913-14, p. 25. An accident arises from something unforeseen, unexpected, or-unusual, and is not the natural result of ordinary means, voluntarily employed, in a not unusual or unexpected way. In re Clark, Op. Sol. Dept of L. 188. An ef- fect which does not ordinarily follow the use of familiar means, and which cannot reasonably be anticipated, is an accident. Id. To constitute an in- jury within the federal Act, it will sufBce if an element of accident clearly appears, or if the injury is of a type which, in the interpretation of statutes of similar scope and purpose, has been accepted as properly included in the class comprehensively known as accidental injuries. In re Irving, Op. Sol. Dept. of L. 249. "The word 'accident' has, when used in this statute, long ceased to have T Stewart v. Wilsons and Clyde Coal Co., Ltd. (1902) 5 F. at page 122. The death of an employ^ of a mill run by water power, who was drowned in attempting to clean racks which protected the intake flume, was an accident, within the Act. Boody v. K. & C. Mfg. Co., 77 N. H. 208, 90 Atl. 859, L. E. A. 1916A, 10, Ann. Cas. 1914D, 1280. A log roller, who had his toe frozen on an exceptionally cold day while rolling logs in the woods, suffered an accidental injury (Linck v. Millard, 4 N. X. St. Dep. Rep. 385), as also did an employ^ who froze his fingers while harvesting ice when the temperature was 30 degrees below zero (Cole v. CaUahan & Sperry, 4 N. Y. St. Dep. Eep. 348). 8 Ismay, Imrie & Co. v. Williamson (1909) 1 B. W. C. C. at page 235. "Accidental" means happening by chance or unexpectedly taking place, not according to the usual course of events. Naud t. King Sewing Mach.. Co., 95 Misc. Kep. 676, 159 N. T. Supp. 910. 9 See note 9 on following page. § 85 workmen's compensation 278 was an external act or occurrence which caused the injury or death. It contemplates an event not within one's foresight and expecta- tion resulting in a mishap causing, injury to the employe. Such an occurrence may be due to purely accidental causes, or may be due to oversight and negligence.^" It may be due to carelessness, not the meaning the man in the street would attribute to it." Sir Samuel Walk- er, L. C, in Sheerin v. Clayton & Co., Ltd., [1910] 2 Ir. R. 110. In Hensey v. White, [1900] 1 Q. B. 481, the language of an earlier case was approved where it was said : "I think the idea of something fortuitous and unexpected is in- volved in both words, 'peril' or 'accident.' " "The word 'accident' is to be taken in its popular ordinary sense. It denotes of includes any unexpected personal injury resulting to the workman in the course of his employment from any unlooked-for mishap or occurrence." Lord Shand, in Fenton v. Thorley & Co., Ltd. (1903) 5 W. C. C. 1, H. L. (Act of 1897). » In Bystrom Bros. v. Jacobson, 162 Wis. 180, 155 N. W. 919, Judge Mar- shall says: "Xhe term 'accident' as used in the Workmen's Compensation Act * * * is susceptible of being given such scope that one would hardly venture to define its boundaries. Courts have indulged in very general statements in regard to it, but have not worked out any very definite guide." An "accident" is a casualty— something out of the usual course of events, and which happens suddenly and unexpectedly, and without any design on the part of the person injured. Richards v. Travelers' Ins. Co., 89 Cal. 17(), 26 Pac. 762, 23 Am. St. Rep. 455 ; Price v. Occidental Life Ins. Co., 169 Cal. 800, 147 Pac. 1175 ; Southwestern Surety Ins. Co. v. Pillsbury (Cal. Sup.) 158 Pac. 762. An "accident" is an unforeseen event, occurring without the vnll or design of the person whose mere act causes it ; an unexpected, unusual, or undesign- ed occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty. Adams v. Acme White Lead & Color Wks., 182 Mich. 157, 148 N. W. 485, L. R. A. 1916A, 283 ; Black's Law Dictionary. 10 Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273. The broad meaning attributable to the word "accident," and which is called for by the spirit of the Workmen's Compensation Act, was adopted by this case. The court said: "The term 'accidental,' as used in compensation laws, denotes something unusual, unexpected, and undesigned. The nature of it implies that it was an external act or occurrence which caused the personal injury." The contracting of typhoid fever by an employe by his drinking impure water furnished by the employer was held to satis- fy all requirements of that definition. The term "accident," when used in Workmen's Compensation Acts, should be taken in a broad sense as including a violent straining of the muscles, 279 CIRCUMSTANCES UNDEK WHICH COMPENSATION DUB § 85 willful, to fatigue, or to miscalculation of the effects of voluntary action.^^ It is something capable of being assigned to a particular time and place and of which notice can be given.^^ This has been •resulting ta a rupture or other bodily hurt to an employe from physical over- exertion in performing his work. Bystrom Bros. v. Jacobson, 162 Wis. 180, 155 N. W. 919. "The words 'by accident' are • • * introduced parenthetically as it were to qualify the word 'injury,' confining it to a certain class of injuries, and excluding other classes, as, for instance, injuries by disease or injuries self-inflicted by design." Fenton v. J. Thorley & Co., Ltd. [1903] A. C. 443. 11 "An examination of cases arising principally upon accident insurance policies, some of which are collected in a note to Lehman v. Great Western Accident Ass'n, 42 L. E. A. (N. S.) 562, discloses that in the opinions which seem to be best considered the distinction is observed between the means by which an injury is produced and the result of the producing cause or causes. It is not suflicient that there be an unusual and unanticipated result ; the means must be accidental — ^involuntary and unintended. There must, too, be some proximate connection between accidental means and the injurious result. It is doubtful, however, if, in applying the Michigan statute, its general pur- pose being considered, the court should exactly follow the rules suggested and applied in the cases referred to. The statute seems to contemplate that an accidental injury may result by mere mischance; that accidental inju- ries may be due to carelessness, not willful, to fatigue, and to miscalculation of the efEects of voluntary action." Bobbins v. Original Gas Engine Go. (Mich.) 157 N. W. 437. 12 " 'Accident' is something of which notice can and must be given." Cos- ens-Hardy, L. J., in Steel v. Cammell, Laird & Co., Ltd. [1905] 2 K. B. p. 238. "The accident must be something which is capable of being assigned to a particular date, and which is in the popular and ordinary sense an accident." Collins, M. R., in Marshall v. Bast Holywell Coal Co., Gorley v. Backworth Collieries (1905) 7 W. C. C. 19 (Act of 1897). "A workman cannot recover compensation under the Act unless he can satisfy the court that there is a particular time, place, and circumstance in which the injury by accident happened. Unless he can do that, he must fail." Cozens-Hardy, M. R., in Martin v. Manchester Corporation (1912) 5 B. W. C. C. 259, C. A. "It seeins to me that all these interpretations of the word point to some particular event or occurrence which may happen at an ascertainable time, and which is to be distinguished from the necessary and ordinary effect upon a man's constitution of the work in which he is engaged day by day. So defined, the word 'accident" seems to me to exclude the anticipated and necessary conse- quence of continuous labor." Lord Kinnear, in Coe v. Fife Coal Co., Ltd. (1910) 2 B. W. 0. C. 8, Ct. of Sess. § 85 workmen's compensation 280 held, however, not to mean capable of being assigned to some par- ticular moment or hour of time.^' It follows that there is no "in- jury by accident" within a Workmen's Compensation Act, when no specific time or occasion can be fixed upon as the time an al- leged accident occurred.^* A pre-existing weakness or disease will not prevent the injury fpom being the result of an accident if the accident is the immediate cause of the injury.^" An "accidental injury" is clearly distinguished from an injury in the nature of a vocational disease sustained in the course of an em- ployment where from the inherent nature of the work disease is likely to be contracted.^* IS "It would be unreasonable to assume that the court means that the disease or Incapacity must necessarily be assigned to some particular moment or hour of time. Its language with respect to time and place is to be con- strued reasonably. If, in a period of say twelve hours, or possibly one day, there can be established certain fortuitous and unexpected causes peculiar to the employment which have produced the disease or incapacity, then the case may be compensable." linnane v. iEtna Brewing Co., 1 Conn. Comp. Dec. 677 (appeal pending in superior court). i*Liondale Bleach, Dye & Paint Works v. Riker, 85 N. J. Law, 426, 89 Atl. 929. Where lead poisoning contracted by a workman could not be traced to any definite time, but was the cumulative effect of inhalation of the enamel powder, extending over a considerable period of time, it was not an accidental injury within the meaning of the Act. Derkinderen v. Rundle Mfg. Co., Rep. Wis. Indus. Com. 1914r-15, p. 16. IB A rupture due to an unusual strain in lifting a heavy weight was an accidental injury, though the rupture would not have occurred but for a pre-existing physical weakness. Bobbins v. Original Gas Co. (Mich.) 157 N. W. 437. Where a hack driver was injured from being thrown from his seat while he was helpless from dizziness, due to disease, his fall was an "accident" (Wk. Comp. 4ct, Pub. Laws 1911-12, c. 831, art. 1, § 1) CarroU v. What Cheer Stables Co. (R. I.) 96 Atl. 208: i« Naud V. King Sewing Mach. Co., 95 Misc. Rep. 676, 159 N. T. Supp. 910. As to occupational diseases, see § 138 et seq., post. Medical evidence showing that the applicant's falling of the womb was directly caused by straining and heavy lifting done in the course of her employment, no disease being present, though the Injury was made possible 281 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 86 § 86. Unexpected untoward event — Extraneous or not The unexpected untoward event may arise out of efforts being- put forth by the workman himself, as where he strains his back in lifting/'' or is incapacitated by sunstroke while working in an ex- posed position ; ^' it may arise from something wholly extraneous to the workman, as where, while at work on a building, he is struck by an iron bar which another workman causes to fall from an upper story ; ^* or it may arise partly from his efforts and partly from something extraneous thereto."" No doubt, the ordinary accident is associated with something external, the bursting of a boiler, or an explosion in a mine, for example. But it may be really from the man's own miscalculation, such as tripping and falling. Or it may be due both to internal and external conditions, as if a seaman by laceration at the time of the birth of a child 30 years before, showed that the injury was caused by an accident Loustalet v. Metropolitan Laundry Co., 1 Cal. I. A. C. Dec. 318. 17 A workman, who in putting a derailed coal hutch back upon the rails strains his back in so doing, is injured by accident. Stewart v. Wilsons and Clyde Coal Co., Ltd. (1902) 5 F. 120, Ct. of Sess. 18 Where a seaman was incapacitated by sunstroke while painting the sides of his ship, it was a personal injury by accident. Morgan v. S. S. Zenaida (Owners of), (1910) 2 B. W. C. C. 19, C. A. Except in those eases where the sunstroke was due to an exposure peculiar- ly severe because of the nature and location of the employment, a sunstroke received under ordinary and not unnatural conditions should be treated as an illness due to the weakened condition of the etnployfi rather than as a personal Injury. Op. Sp. Counsel to Iowa Indus. Com. 1915, p. 26. 18 Bryant v. Flssell, 84 N. J. Law, 72, 86 Atl. 458. 20 Where a lineman in the employ of a railroad company took shelter from a violent rainstorm under a car standing on a switch, and on the car being moved was struck by a projection thereof and fell, so that his legs were sev- ered by the wheels, the injury was accidental. (Wk. Comp. Law, § 10) Moore V. Lehigh Valley R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620. It was a personal injury by accident where a dock laborer, who was unloading bran containing grit, got some In his eye, and, rubbing it, caused an abrasion, ne- cessitating the removal of the eye. Adams v, Thompson (1912) 5 B. W. C. C. 19, C. A. § 86 workmen's compensation 282 were to faint in the rigging and tumble into the sea. It may also he something going wrong within the human frame itself,^^ such as the straining of a muscle, or the breaking of a blood vessel. If that occurred when he was lifting a weight, it would be properly described as an accident. So rupturing an aneurism when tighten- ing a nut with a spannef may be regarded as an accident.^" But where a fellow employe, at the request of an employe troubled with pimples, opens a pimple in an unsanitary manner, causing blood poisoning, the injury does not result from an accident.^^ It has been held that death resulting from a ruptured, artery was not ac- cidental when the rupture ocpurred while the insured was reach- 21 Where an employs worked continuously for 21 hours, except IV2 hours off for meals, during which time he had to- climb 216 steps three different times, besides being on his feet most of the time, and was found dead in his •chair in a saloon a half hour after quitting, death being due to angina pec- toris, he suffered an accident. McMurray v. J. J. Little & Ives Co., 3 N. T. St. Dep. Rep. 395. 22 Clover, Clayton & Co., Ltd., v. Hughes (1910) 3 B. W. O. O. 280. The employs was working on a construction car when the trolley wire broke, causing the boom at the end of the trolley pole to strike him. This blow, together with a shock of electricity from the wire, incapacitated him for work and brought on a condition of acute nephritis and loss of vision. The employs was held to be entitled to compensation. Cooper v. Mass. Em- ployes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 573 (decision of Com. of Arb.). Where, although the strain was received while in the performance of ap- plicant's ordinary work, it was the result of an extraordinary exertion, it should be classed as an accident within the meaning of the Act. Scott v. What Cheer Coal Co., Mich. Wk. Comp. Cases (1916) 1. But hernia occur- ring without any strain and iVithout the elements that are necessary to con- stitute an accident would not come within the meaning of the law. Id. Eupture, caused by a strain while at work, is an "accident." Poccardi v.' PubUc Service Commission, 75 W. Va. 542, 84 S. E. 242, L. R. A. 1916A, 299. But where a workman was found to be suffering from hernia, without any- thing out of the ordinary having happened, the disease being caused by con- tinued strain, and having developed gradually and vnthout any sudden strain or overexertion, there was no "accident." Lichtenberger v. Strack, Rep. Wis. Indus. Com. 1914-15, p. 13 ; Reseberg v. Hamilton Mfg. Co., Rep. Wis. Indus. Com. 1914r-15, p. 14. 33 Rebello v.' Marin County Milk Producers, 1 Cal. I. A. C. Dec. 87. 283 CIECUMSTANCBS TJNDEB WHICH COMPENSATION DUE § 87 ing from a chair to close a window, did not slip or fall or lose his Balance, and nothing unforeseen occurred except the bursting of the artery.^* § 87. Intentional act of another The circumstance that the injury was the result of a willful or criminal assault by another does not exclude the possibility of in- jury by accident. An injury caused by the attack of a third per- son may be accidental so far as the injured person is concerned. ^° 2 4Feder v. Iowa State Trav. Men's Ass'n, 107 Iowa, 538, 78 N. W. 252, 43 L. K. A. 693, 70 Am. St. Rep. 212. 25 Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398; West- em Metal Supply Co. v. Pillsbury (Cal. Sup.) 156 Pac. 491. Injury by assault, wbere such assault arises out of the employment, is an Injury by accident. Rudder v. Ocean Shore Railroad Co., 1 Gal. I. A. C. Dec. 209. While a premeditated simple assault does not fall within either the commonly accepted or the legal definition of accident, it is the clear intent of the law that all public peace officers, as public employes, are entitled to the benefits of the Act, and an injury by assault suffered incidental to the employment of such officer, in the course of his employment, and arising out of his employment, is accidental. Emmert v. Trustees of the Preston School of Industry, 1 Cal. I. A. C. Dec. 17. Where a newspaper reporter was ordered by his employer to get a first copy of the newspaper off the press to see if the makeup was correct, and was forcibly resisted by the pressman, the reporter repeatedly and properly attempting to do as he was instructed, and then, when about to report the matter to his superior, and as a consequence of his proper efforts, was unexpectedly and without other provocation as- saulted, such assault was an accident. Brown v. Berkeley Daily Gazette, 2 Cal. I. A. C. Dec. 844. Where a workman was injured In a fight with two Italians, who disliked him because he had taken their place when they were discharged some time before, he suffered an accident. Hartnett t. Steen, 2 N. Y. St. Dep. Rep. 492 (affirmed 169 App. Div. 905, 153 N. Y. Supp. 1119, and 216 N. Y. 101, 110 N. E. 170). An assistant foreman, assaulted by two workmen whom he had just reprimanded for not doing their work properly, sustained an accident. Yume V. Knickerbocker Portland Cement Co., 3 N. Y. St. Dep. Rep. 353 (affirmed in 169 App. Div. 905, 153 N. Y. Supp. 1151). It was a personal injury by accident where an unpopular master of an in- dustrial school was assaulted in pursuance of a conspiracy among the boys (Trim Joint District School v. KeUy [1914] 7 B. W. 0. C. 274, H. L., and § 88 workmen's compensation 284 An injury due to the playful act of a coemploye may constitute an. accident."' The death or injury of an employe in defending his em- ployer's place of business from robbery is accidental."' But where a brewing company agrees to furnish its employes good beer to drink, and an employe is injured from dririking beer poisoned by his fellow workmen, the Contract does not make the employer lia- ble for compensation. Even though he intentionally furnished bad beer, this fact would render him liable only in an action at law, and would not establish an industrial accident."* § 88. Industrial accidents As a general rule, the employer is not liable for purely industrial accidents where the workman has not brought himself within the Act."" The usual purpose of these Acts is to compensate for in- juries resulting from industrial accidents only, and not for occupa- [1913] 6 B. W. C. C. 921, G. A.) ; where a cashier, who was carrying wages by train to a colliery, was shot and robbed (Nlsbet v. Rayne and Bum [1910] 3 B. W. C. O. 507, O. A.) ; where boys dropped a stone from a bridge upon an engine, fatally injuring the driver (Challis v. London & Southwestern Rail- way Co. [1905] 7 W. 0. O. 23, C. A.); and where a gamekeeper on duty was attacked by poachers and Injured (Anderson y. Balfour [1910] 3 B. W. C. O. 588, 0. A.); but not where an errand boy was assaulted by his employer, a man who had been in an asylum and was subject to fits of melancholia (Blake V. Head [1912] 5 B. W. C. O. 303, C. A.). 28 Injury to an eye was due to accident where the employ© while in the toil'et felt something strike her arm, and looked through a crack to see where the article had come from, whereupon a girl in the adjoining toilet thrust some scissors through the crack into her eye. De Fillipis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761. 27 Johnston v. Mountain Commercial Co., 1 Cal. I. A. C. Dec. 100. That a night watchman was killed through the willful act of a third person did not prevent his death from being accidental. Western Metal Supply Co. v. PUls- bury (Cal. Sup.) 156 Pac. 491. An assault on a night watchman by a coemployS, for the purpose of robbery, was an accident. Walther v. American Paper Co. (N. J. Sup.) 98 Atl. 264. 28 Koch V. Oakland Brewing & Malting Co., 1 Cal. I. A. C. Dec. 373. 2 Salus V. Great Northern Ry. Co., 157 Wis. 546, 147 N. W. 1070. 285. CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 89 tional diseases.*" The determination of what constitute industrial accidents consequently becomes important. Loss of vision by- wood alcohol poisoning is an industrial accident, rather than an oc- cupational disease, particularly where the effect of the wood alcohol was not a cumulative and gradual destruction of the optic nerve, but a sudden attack precipitated by an extraordinary use of the liquid just before the eye trouble appeared.^^ Where an employe, after working two weeks in snapping and stripping string beans in a cannery, notices a blister on her thumb, which within two or three days becomes infected and very painful, subsequently requir- ing the amputation of the thumb, the injury is due to accident, and not to occupational disease. It is not indispensable that the ap- plicant be able to swear what bean pod it was that finally, by the friction of its rough surface against the thumb, made a hole in the skin, but sufficient that a hole was made, that infection entered, and that disability was caused thereby.'^ Where an employe fell be- tween an engine and tender in consequence of the slippery condi- tion of the apron on which he was standing, the fall, being the re- sult of a hazard incident to his employment, was held to be a com- pensable industrial accident." § 89. Voluntary act in emergency Injury sustained by a workman in voluntarily doing an act in emergency, with knowledge of the risk incurred, may constitute in- jury by accident. Thus when a workman who was employed on the quay side voluntarily went down into the hold of a ship to res- cue a fellow workman who had been overcome by noxious gas was himself suffocated, it was a personal injury by accident.^* 80 Federal Rubber Mfg. Co. v. Havolic (Wis.) 156 N. W. 143. 81 De Witt V. Jacoby Bros., 1 Cal. I. A. O. Dec. 170. 3 2 Petttt V. MendenhaU, 2 Cal. I. A. C. Dec. 212. 33 (St. 1913, §§ 2394r-l to 2394^95) Milwaukee Coke & Gas Co. v. Indus- trial Commission, 160 Wis. 247, 151 N. W. 245. 34 London & Edinburgh Shipping Co. v. Brown (1905) 7 F. 488, Ot. of Sess. (Act of 1897). § 90 workmen's compensation 286' § 90. Fortuitous event The Supreme Court of Washington held that hernia due to an attempt to remove a heavily loaded truck was a "fortuitous event" within a provision of the Compensation Act of that state stipulat- ing that the words "injury" or "injured" as used therein "refer only to an injury resulting from some fortuitous event as distin- guished from the contraction of disease," and said in an opinion by Judge Morris : "It is the contention of the Commission that these circumstances do not disclose that the injury resulted from a 'fortuitous event,' and that no accident occurred which produced the injury, contending that, inasmuch as respondent did not slip' or fall, nothing struck him, and nothing happened out of the ordi- nary which produced the rupture or hernia, it cannot be said that the hernia resulted from some fortuitous event. 'Fortuitous' is de- fined as 'occurring by chance as opposed to design ; coming or tak- ing place without any cause ; accidental ; casual ;' and a fortuitous cause is said to be 'a contingent or accidental cause' *° The sus- taining of an injury while using extreme muscular effort in push- ing a heavily loaded truck is as much within the meaning of a fortuitous event as though the injury were the result of a fall or the breaking of the truck. To hold with the Commission that, if a machine breaks, any resulting injury to a workman is within the Act, but, if the man breaks, any resulting injury is not within the Act, is too refined to coiqe within the policy of the Act as an- nounced by the Legislature in its adoption and the language of the court in its interpretatisn. The machine and the man are within the same class as producing causes, and any injury resulting from the sudden giving way of the one, while used as a part of any in- dustry within the Act, is as much within the contemplation of the Act as the other." °* In a case arising out of the British Act, it 3 5 Quotation from Standard Dictionary. 38 Zappala v. Industrial Inc. Commission, 82 Wash. 314, 144 Pac. 54, L. R. A. 1916A, 295. 287 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 90 was held that an internal injury caused to a person in a normal state of health was a fortuitous and unforeseen event, where he sud- denly tore several fibers of the muscles of his back while lifting a heavy beam.^' It was likewise held in another case that a work- man in his master's field, who, finding that the grain had been trod- den down by bullocks, stooped to raise it and sprained his left leg, was within the remedies of this Act. The language of the British Act is "personal injury by accident arising out of and in the course of employment." The English cases make no distinction between an accident and a fortuitous event as used in some acts; for it is said in the case last mentioned, in answering the contention there made that an injury, to be within the British Act, must be caused by some fortuitous and external event, that: "The word 'accident' is a popular word of very wide meaning. Originally a grammari- an's word, it has been used from Dr. Johnson's time until to-day to mean 'that which happens unforeseen, casualty, chance.' For four years this man had successfully used these muscles to lift this weight; owing, perhaps to carelessness, perhaps to a slip, perhaps to some other cause, except disease, he snaps the fibers of the muscles that had always successfully done the work, and if any or- dinary person had been asked what had happened to him, he would have said that the man had had an 'accident,' and I think the word would have been rightly used. To me it is the same as if he had been using a rope strong enough for the purpose, and by overstrain or sudden jerk the rope had snapped and the beam had fallen upon him. That would be an accident. In one case the work is done by a rope; in the other, by a set of muscles. In each case the machin- ery is normally fit for the work, but the unexpected happens, the rope or muscle snaps and there is an accident. To my thinking, there is in the word 'accident' always an element of injury. * * * As to the word 'fortuitous,' I do not think I need trouble much about it. If the injury were caused by disease, it is clear that the 87 Boardman v. Whitworth, 3 W. C. O. 33. § 91 workmen's compensation 288 applicant could not recover, but I find as a fact that the man was not in any way diseased.. Indeed, it was not seriously contended that he was. 'Fortuitous' means 'accidental,' 'casual,' 'happening by chance;' and I have already said that, in my opinion, this in- jury was caused by an accidental and fortuitous event. * * * In determining whethe^the injury has been caused by an accident or not, one must discriminate between that which must occur and that which need not necessarily occur in the course of the employ- ment. If the thing must happen, it is not an accident, but if it need not happen, then there is the fortuitous element, and there is an accident." °* Another English case arose out of these circum- stances : The workman, while turning a wheel attached to a press, "suddenly felt something which he describes as a tear in his in- side, and upon examination it was found that he was ruptured. There was no evidence of any slip, wrench, or sudden jerk." It was held below, following Hensey v. White, 2 W. C. C. 1, that there could be no recovery because of "an entire lack, of the for- tuitous element." This contention was overruled, and it was said that the word' "accident," as used in the British Act, was used in its popular ordinary sense as denoting an unlooked for mishap of an untoward event which is not expected or designed.^' § 91. Question of law and fact Whether an injury is an "accident" is a mixed question of law and fact.*" When applied to ascertained facts it is a question of law." 3 8 Purse V. Hay ward, 85 L. T. 502. 89 Fenton v. Thorley & Co., 5 W. C. C. 1. *o Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Roper v. Greenwood (1900) 83 L. T. 471. 41 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Fenton v. Thornley & Co. (1903) A. C. 443, 19 L. T. B. 684. 289 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 92 Division II. — Psrsonai, Injury § 92. Definition The words "personal injury" have been given in many connec- tions a comprehensive definition.*^ They had a well-defined mean- ing in the law prior to the passage of the Compensation Acts, and, under the rule that words of common and approved meaning should be given such meaning in the construction of a statute, they re- tain this meaning in the Compensation Acts.*' They include, as *2 In re Hurle, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919. 43 In re Madden, 222 Mass. 487, 111 N. E. 379. In this case the court, in discussing a construction of these words as used in the Massachusetts Act, said: "It is argued that grave economic consequences of far-reaching efCect may follow from the Act as thus construed. It is said that persons not in good health may be altogether excluded from employment, to their severe hardship, while the cost of conducting commercial and industrial enterprises may become prohibitively large, all to the detriment of the general welfare and of the financial resources of the commonwealth. ■ These considerations are of great public moment. But these factors relate to legislative questions, and the arguments founded on them are distinctly legislative arguments. They may be entitled to attention and deliberation at the hands of the legis- lative department of government. In the present forum they cannot have decisive significance, even if it were plain that the enumerated consequences were inevitable. The function of the judicial department of the government is simply to determine whether an act is within the power vested by the Con- stitution in the Legislature, and then to enforce it according to its true mean- ing in cases as they arise. While the consequences to which a particular construction or application of a statute would lead have an important bear- ing in determining what may have been the intent of the liCgislature in using words of doubtful Import (Greene v. Greene, 2 Gray [Mass.] 361, 364, 61 Am. Dec. 454), they cannot control a plain rule of positive law established by clear language in a legislative mandate. The words 'personal injury' had meaning in the law prior to the passage of the Workmen's Compensation Act sufficiently definite and well defined clearly to include the bind of per- sonal harm here disclosed, so that it hardly can be assumed under all the circumstances that the Legislature used them in a different or unusually con- stricted sense. There are no conditions which warrant a judicial interpreta- tion of the words 'personal injury' in the Act as meaning the same as 'per- sonal Injury by accident,' or as excluding from the scope of 'personal injuries' HON.COMP. — 19 § 92 workmen's Compensation 290 used therein, whatever lesion or change in any part of the system produces harm or pain or a lessened faculty of the natural use of any bodily activity or capability.** Heat prostration sustained in the course of employment is an "injury," within the meaning of the Compensation Acts.*° As used in the Nevada Act, the words "injury" or "injured" refer to an event or mishap not expected or designed.*' The acceleration or aggravation of a pre-existing ailment may be a personal injury.*^ § 93. Federal Act The word "injury" is used comprehensively in the federal Act to embrace all the cases of incapacity to continue the work of the those instances where a diseased physical condition may have invited, or rendered the employfi unusually susceptible to, 'personal injury.' It may be that the Legislature intended a more narrow field than actually was de- scribed by the words used. But, if that be so, the remedy must be sought from the Legislature. There are no means by which the court can ascertain the purpose and efCect of a statute, except from the words used when given their common and approved meaning." Bergeron, Pet'r, 220 Mass. 472, 475, 107 N. E. 1007. *4 Compensation was properly allowed for permanent Incapacity of both legs from paralysis, due to an injury to the spinal cord, though, in a technical sense, there was no direct injury to the legs. The word "injury," as it should be construed In this connection, includes whatever lesion or change in any part of the system produces harm' or pain or a lessened faculty of the natural use of any bodily activity or capability. (St. 1911, c. 751, pt. 2, § 11, amended by St. 1913, c. 696) In re Burns, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787. Where an employe, after carrying a heavy bag of coal and while reach- ing for another, falls to the ground in a dying condition la consequence of the muscles of his heart being overtaxed by his exertion, his death is caused by an "injury" within the meaning of the Workmen's Compensation Act. In re Fisher, 220 Mass. 581, 108 N. E. 361. An unusual exertion or strain, resulting in incapacity for work, is an *B Eess V. Youngstown Sheet & Tube Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 194. *« Rep. Nev. Indus. Com. 1913-14, p. 25. 4T Hartz V. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020. See § 98, post. 291 CIRCUMSTANCES UNDER WHICH COMPENSATION DUH § 93 employment, including all cases where as a result of the employe's occupation he becomes unable to carry on his work.*' Where a ■bodily affliction is not the result of a gradual process or slow ac- cumulation of trifling hurts or of a constant repetition of known or injurious effects, but, though caused without definite accident, de- velops rapidly and is recurrable to a fixed time, and is neither a necessary result nor a result reasonably to be feared, it is an injury within the federal Act, regardless of the fact that it is the natural result of surrounding conditions.** But a disability referable to no definite accident or occurrence, though arising in the course of employment, involving chiefly a gradual weakening, wearing out, or breaking down of the employe, is not an injury within the Act.^* An employe obeying orders of his superior and submitting to vac- cination, and disabled thereby, is injured within the Act,^^ as is a plate printer following his usual occupation and sustaining a sprain of the wrist and a rupture of the synovial sac.°^ Frozen feet con- stitute an injury."* An injury caused by a strain due to the condi- injury within the meaning of the Compensation Act. Hackford v. Veeder & Brown, The BuUetin, N. Y., vol. 1, No. 8, p. 10. *8 In re Clark, 27 Op. Atty. Gen., Op. Sol. Dept. of L. (1915) 200. *» In re Irving, Op. Sol. Dept. of L. 249. Where claimant was engaged in scaling the inner plating of a caisson, and particles of the red lead being scaled became imbedded in sore spots on the face or were inhaled into the system, causing Incapacity, it was held to be an injury. In re Thayer, Op. Sol. Dept. of L. 266. 50 In re Hewitt, Op. Sol. Dept. of L. 248. The statute, if not restricted to injuries of an accidental nature, is at least confined to injuries which are referable to some particular event capa- ble of being fixed in point of time. In re Clark, Op. Sol. Dept. of L. 188. In re Flora, Op. Sol. Dept. of L. 226. 51 An employ'6, vaccinated by direction of his superior officer upon recom- mendation of local health authorities and the public health service, is injurec^ within the act if incapacity follows. In re Haley, Op. Sol. Dept. of L. 255. 5 2 In re Clark, Op. Sol. Dept. of L. 188. 53 In re Luttrell, Op. Sol. Dept. of L. 219. § 94 workmen's compensation . 292 tion under which the work must be performed is within the Act,"* but the breaking of an artificial leg is not."* § 94. Physical violence or not At common law the incurring of a disease or harm to health is such a personal wrong as to warrant a recovery if the other ele- ments of liability for tort are present."" In recent years the ma- jority of actions grounded upon some physical violence has tended to emphasize the aspect of injury which depends upon visual con- tact or direct lesion. But that is by no means the .exclusive sig- nification of the word either in common speech or in legal use."^ The words "personal injury by accident," used in many of the Acts, are not limited to injuries caused by violence, but include disease incurred by accident."* "Personal injury" within the Massachu- setts Act is not limited to injuries caused by external violence, physical force, or as the result of "accident" in the seiise in which that word is to be given a much broader and more liberal meaning, and includes any bodily injury."' It includes any injury or disease which arises out of and in the course of the employment, which 5* An Injury caused by a strain from rushing work under a time-record efficiency system, whereby a strong, healthy man was kept under a high, nerve-racking tension during every minute of an eight-hour workday, is an injury within the act. In re Manning, Op. Sol. Dept. of L. 279. An injury caused by continuous strain, due to the nature of the work, and which de- velops gradually, has been held to 'be an injury covered by the act. In re Sargent, Op. Sol. Dept. of L. 275 (overruling Crellin Case). B 5 In re Rodriguez, Op. Sol. Dept. of L. 227. 58 In re Hurle, 217 Mass. 223, 104 N. E. 336, L. R. A. 1916 A, 279, Ann. Cas. 19150, 919. 57 Id. 5 8 Johnson v. London Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. B. 735. 5 8 (St. 1911, c. 751, as amended by St. 1912, e. 571) Johnson v. London Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. E. 735. 293 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 95 causes incapacity for work, and thereby impairs the ability of the employe for earning wages."" § 95. Nervous shock "Personal injury by accident" includes a nervous shock." The nervous condition of an injured workman is personal injury by ac- cident where he regains his muscular condition, but honestly be- lieves himself unable to work,"'' as is also a nervous shock, pro- 60 Id. 61 Yates V. South Klrby, Featherstone and Hemswortli Collieries, Ltd. (1910) 3 B. W. C5. C. 418, O. A. "It can be said that nervous shock due ta accident is as much personal Injury due to accident as a broken leg." Far- well, Ii. J., in Xates v. South Klrby, Featherstone and Hemsworth Collieries, Ltd. (1910) 3 B. W. C. C. 418, C. A. A motorman, whose car collided with another, and who became insane as a result of the shock, suffered an accidental injury. McMahon v. Interbor- ough Rapid Transit Co., 5 N. Y. St. Dep. Rep. 374. 82 Eaves v. Blaenclydach Colliery Co., Ltd. (1910) 2 B. W. 0. C. 329, A. C. That the workman, but for want of suflBcient will power, could have thrown off the condition of hysterical blindness and neurosis caused by the injury, did not deprive him of his right to compensation. In re Hunhewell, 220 Mass. 351, 107 N. E. 934. Compensation may be awarded for traumatic neurosis. Finley v. San Francisco Stevedoring Co., 2 Cal. I. A. C. Dec. 174. Where a workman re- ceives a blow on the head, causing no apparent serious injury, but inducing him to sincerely believe that he is Incurably Injured, which belief inca- pacitates him for work, he is entitled to compensation until his mental bal- ance is regained. RoUnik v. Lankershim, 1 Oal. I. A. C. Dec. 45. Where there is serious Injury to the spinal column of a workman caused by a fall, which results in a long period of total disability, followed by a period of partial disability, during which the workman is in a nervous or hysterical condition known as traumatic neurosis, he is entitled to disability Indemnity for the loss of earnings during the latter period. Manfredi v. Union Sugar Co., 2 Cal. I. A. C. Dec. 920. Where an employs, who is injured by acci-i dent, and who after the healing of his injuries complains of pain and suffer- ing, loses weight,' and gradually becomes an invalid, without any physical cause therefor, and his condition is pronounced by medical experts to be traumatic neurosis, a mental or hysterical condition, which is real and not simulated, though without a physical basis, he Is entitled to compensation. Such condition has long been recognized as a natural consequence of nervous shock accompanying bodily Injury (Hakala v. Jacobsen-bade Co., 1 Cal. I. § 96 workmen's compensation 294 ducing neurasthenia and incapacity, received by a workman while assisting an injured fellow workman."^ The possibility of witness- ing some shocking injury to a fellow workman and receiving a nervous shock therefro:^ is a risk of any employment. Such nerv- ous shock arises out of and is incidental to the employment, and is compensable if it definitely causes the injury. Thus, where an em- ploye is present at the scene of the death by accident of several of his fellow employes while working on the employer's premises, and attempts to aid in their rescue, and becomes insane in consequence of the shock incident to the excitement, peril, and sense of duty to aid in the rescue, such is disajsility caused by accident. There is no distinction between such mental breakdown and a physical break- down in so far as they affect the right to compensation. It is only essential in such case that the breakdown, whether mental or physi- cal, be proximately caused by accident occurring in the course of the employment.^* It has been held by the Michigan Industrial Accident Board, however, that where death or disability results from fright, unaccompanied by any immediate physical injury, no compensation can be had.'° § 96. Hernia A hernia or rupture due to the employe's exertions in the per- formance of his work is compensable"* where it is caused directly, A. O. Dec. 328), and is to be distinguished from malingering (Kelly v. Pacific Electric Ry. Co., 1 Cal. I. A. Dec. 150). "It seems to be entirely a fallacy to say that a man's right to compensation ceases when the muscular mischief is ended, but the nervous or hysterical effects stUl remain." Cozens-Hardy, M. R., in Eaves v. Blaenclydach Colliery Co., Ltd. (1910) 2 B. W. 0. C. 329, C. A. 63 Yates V. South Kirby, Featherstone and Hemsworth Collieries, Ltd., 3 B. W. C. C. 418, C. A. 6* Reich V. City of Imperial, 1 Cal. I. A. C. Dec. 337. 8B Visser v. Mich. Cabinet Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 24. 8 8 Zappala v. Industrial Ins. Commission, 82 Wash. 314, 144 Pac. 54, L. R. A. 1916A, 295. A workman, who ruptured himself while trying to turn a wheel without. 295 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 96 and not merely aggravated, by the accident," . notwithstanding a prior structural weakness in the region where the injury occurred.'' But where an existing hernia is well formed and of long standing, the descent of the bowel into the hernial sac is an incident of such great likelihood to occur at any time from any cause, or from no cause, as not to be a proper charge against the employer or indus- try.»* In Coley's monograph on Hernia in Keen's Surgery, vol. 4, p. 27, it is said : "Kaufman of Zurich has made a careful study of this question based upon medical jurisprudence. These are his conclusions: A hernia, in order to be entitled to any indemnity, must appear suddenly, must be accompanied by pain, and must im- mediately follow an accident. There must be proof that hernia did not exist prior to the accident." '" Relative to hernia the Nevada Industrial Commission made the following statements and adopted the following rules, which will prove of general interest: "Hernia has been well said to be the stumbling block in the amicable adjustment of personal injury cases. Physicians agree that hernia, or rupture, due to an accident — real traumatic hernia — is rarely met with, and that most of the so-called ruptures at- any wrench or jerk, suffered a personal Injury by accident. Fenton v. Thor- ley & Co., Ltd. (1903) 5 W. C. C. 1, H. L. 87 Puljevich V. Lime Rock Sugar Co., 1 Cal. I. A. O. Dec. 165. 88 Bell V. Hayes-Ionia Co. (Mich.) 158 N. W. 179. Where hernia was caused by the strain from lifting a gasoline engine, the workman was entitled to compensation, though the hernia would not have resulted but for a pre-existing physical weakness. Bobbins v. Original Gas Engine Co. (Mich.) 157 N. W. 437. 69Kavas v. Northern Electric R. R. Co., 2 Oal. I. A. O. Dec. 196; United States Fidelity & Guaranty Co. v. Bawling, 1 Cal. I. A. O. Dec. 64. A claim based on incapacity caused by hernia following an injury may be allowed, though medical examination shows prior existence of hernia. In re Miro, Op. Sol. Dept. of L. 728. 70 Massa v. Crowe, 1 Conn. Comp. Dec. 86. In Dufrene v. Risdon Tool & Machine Co., 1 Conn. Comp. Dec. 411, compensation was awarded for a hernia due to overexertion in lifting ; claimant feeling a sudden severe pain in the groin at the time. § 96 workmen's compensation 296 tributed to accidents or "strains" during employment are not the result of employment, but coincident with employment. Courts and Commissions, however, disagree — failing to recognize that this subject is purely scientific and belongs more to the province of medicine irather than law. "Very briefly, the follawing is the accepted teaching of medical science regarding hernia the world over, and which has been for fifteen or twenty years. This teaching is corroborated from a surgical standpoint by all noted surgeons: In a perfectly normal man, one in whom the canal is closed, as nature intended it should be during childhood, it is impossible to produce a hernia by traumatism or accident alone, unless the accident be so great as to puncture or rend the abdominal or belly, wall itself. This is a real rupture. This real and true condition is very rare. The com- mon or so-called rupture, which is really all we meet with, is a diseased condition present, which exists from birth, and which predisposes this man to a rupture, showing, so that he can see it most any time. This 'sac' in which the rupture shows up must be present to start with, or may be months or years in forming. It cannot be formed at once. If the man is honest and happens to be at his regular labor, of course he attributes the showing up of his so-called rupture to whatever force is applied to the abdomen. It is not an accident. The fact is it is simply the final step in the evolution of the disease called hernia. "A hernia cannot, therefore, be considered a permanent partial disability due to an injury. However, it is a permanent,' partial disability. It cannot be so 'considered even in an honest man who really notices the swelling for the first time while at work. Neither can it be so considered by a dishonest man, who had his hernia for a long time and states that he noticed it after a strain, etc. The fact remains the same; i. e., that it is a diseased condition, a permanent partial disability a long time in coming. "In adopting a ruling on hernia, this Commission has been guid- ed by the advice of its chief medical adviser. It has leaned towards 297 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 96 the medico-legal side of the controversy rather than the purely le- gal point of view. Without wishing to either express or imply disrespect for court decisions, we cannot accept their opinion as the final word on a purely medical question. To do so would leave this question perplexing and unsettled. Where there is a direct question stated with all the facts presented, it would seem as if a physician were as competent to express a sane opinion on a purely medical question. "Medical science teaches and has taught for the past twenty years that which is now accepted as a medical and scientific fact, corrob- orated as such by the foremost surgeons and anatomists of the world ; that is, that hernia (or so-called rupture) is a disease ordi- narily developing gradually, and which is very rarely the result of an accident. "With the object of treating the subject of hernia justly to both employer and employe, and in accordance with medical and scien- tific teachings and facts, the Commission rule as follows: "Rule I. Real traumatic hernia is an injury to the abdominal (belly) wall of sufficient severity to puncture or tear asunder said wall and permit the exposure or protruding of the abdominal viscera in some part thereof. Such an injury will be compensated as a temporary, total disability, and as a partial pennanent disability, depending upon the lessening by the injury of individual's earning capacity. "Rule II. All other hernias, whenever occurring or discovered and whatsoever the cause, except as under rule I, are considered to be diseases causing incapacitating conditions, or permanent par- tial disability; but the permanent, pjirtial disability and the causes of such are considered to be as shown by medical facts, to have either existed from birth, to have been years in formation, or both, and are not compensatory except as provided under rule III. "Rule III. All cases coming under rule II in which it can be prov- en: First, that the immediate cause, which calls 'attention to the presence of the hernia, was a sudden effort or severe strain or blow § 96 wobkmbn's compensation 298 received while in the course of employment; second, that the de- scent of the hernia occurred immediately following the cause; third, that the cause was accompanied, or immediately followed, by severe pain in the hernial region; fourth, that the above facts were of such severity that the same were noticed by the claimant and communicated imn^i^diatel'y to one or more persons — ^are con- sidered to be aggravations of previous ailments or diseases, and will be compensated as such for time loss only and to a limited extent only, depending upon the nature of the proof submitted and the result of the local medical examination. "Rule IV. Rules I, II, and III, respectively, are adopted as gen- eral, tentative rules covering hernia cases, and are subject to re- vision, change, amplification, or alteration with, or without, notice. The Commission will not be bound by precedent. It holds that every case differs in some material feature from almost any other, and that each case depends for its decision upon the particular facts." " Division III. — DisBasbs § 97. Diseases compensable as injuries There are many diseases readily distinguishable from occupation- al diseases,'" which may be, and frequently are, contracted by ac- cident, and are compensable as personal injuries by accident.''' The fact that an injury may be classed as a disease does not prevent 71 Kep. Nev. Indus. Com. 1913-14, p. 16. 72 Adams v. Acme White Lead & Color Wks., 182 Mich. 157, 148 N. W. 485, li. R. A. 1916A, 283.' 73 Helleman Brewing Co. v. Industrial Commission, 161 Wis. 46, 152 N. W. 446 ; Voelz v. Industrial Com'n, 161 Wis. 240, 152 N. W. 830. Diseases caus- ed by accident to employfe, while "performing services growing out of and incidental to the employment," are injuries within the contemplation of the Workmen's Comp^satlon Act. Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. R. A. 1916A, 273. A disease, not contracted, but caused by physical means, under eircum- t299 CIRCUMSTANCES UNDBK WHICH COMPENSATION DUE § 97 it from being an accidental injury. Sunstroke, though classed as a •disease, is not such a disease as may be contracted in the same sense as ordinary diseases may be, but is an injury of an accidental -stances invalving an element of accident, is an Injury within the federal Act. In re Murray, Op. Sol. Dept. of L. 239. Disability resulting from a disease directly due to a physical injury of an accidental nature, or lighted up thereby, is an injury. In re EUmore, Op. Sol. Dept. of I* 245. A dis- ease, not contracted, but caused by physical means, under circumstances in- volving an element of accident, is an injury. In re Withy, Op. Sol. Dept. of L. 273. Incapacity caused by the inhalation of fine dust Into the lungs in the course of employment is held to be an injury. In re Edmonds, Op. Sol. Dept. of L. 259. Loss of vision by wood alcohol poisoning is not an occupational disease. De Witt V. Jacoby Bros., 1 Cal. I. A. C. Dec. 170. The evidence showed that the workman was not suffering from the results of carbon monoxide poison- ing, where it showed that there was no suffocation while at work sufficient ■to cause loss of consciousness, and failed to show exposure to a low per- centage of carbon monoxide for a long period of time theretofore. Burgess V. Star, 2 Cal. I. A. C. 269. Where an employe was working on a punch press as a machinist, and while so working, felt a numbness in hand and arm, subsequently losing the power of his arm, which became totally disabled as a result of the jolting and jarring of the machine, that Injury comes within the Workmen's Com- pensation Act. Reid v. Thomas Elevator Co., Bulletin No. 1, 111., p. 144. Petitioner was not injured by an accident where, after ten days' service in defendant's bleachery, he was affected with a rash which was pronounced to be a condition of eczema that might have been caused by acids, the trial judge having found that the petitioner's condition was caused by contact with the dampened goods. Liondale Bleach, Dye & Paint Works v. Hiker, -85 N. J. I/aw, 426, 89 Atl. 929. Diseases constituting injuries: An abscess developing after an accident. Oripps V. -Sltna Life Ins. Co., 2 Mass. Wk. Comp. Cases, 68 (decision of Com. of Arb., aflSrmed by Indus. Ace. Bd., also by Sup. Jud. Ct. Mass., 216 Mass. 586, Ann. Cas. 1915B, 828, 104 N. E. 565). Apoplexy, superinduced by over- •exertion. In re Ellen Fair, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 83 ; Aitken V. Finlayson, Bousfield & Co., Ltd. (1914) 7 B. W. C. C. 918, Ct. of Sess. lAn apoplectic shock has been held not an Injury, when there was no ac- cident. Ledoux V. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 493 (decision of Com. of Arb.).] Blood, poison, which develops from a personal injury. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 26. Acute 'bronchitis and lead poisoning contracted as a result of the inhalation of gas fumes from an oxyacetylene-burning machine. In re Arata, Op. Sol. Dept of L. 264. Cardiac hypertrophy developed from the inhalation of the § 97 wobkmen's compensation 300 nature.'^* In a New York case it appeared that the deceased work- man inadvertently came in physical contact with poison ivy, and fumes of ether In the course of employment In a "mixing house" at the Naval Proving Ground at Indianhead, Md. In re Clark, Op. Sol. of L. 270. Erysipelas resulting from frost-bite, which caused a lesion of the skin and tissues. Larke v. John Hancc»;k Mut. Life Ins. Co., 90 Conn. 303, 97 Atl. 320. Hysterical neurosis which comes as a result of an injury, the one Injured being entitled to compensation during the continuance of the disability aris- ing from that cause. Linsner v. Consumers' Ice & Fuel Co., Mich. Wk. Comp. Cases (1916), 61. Infection of the hand and a secondary infection of the leg, resulting from an abrasion of the skin and the accidental introduction of a foreign substance. In re Green, Op. Sol. Dept. of L. 237. A gonorrhoeal in- fection partially destroying the sight of a workman's eye. Cline v. Stude- baker Corporation (Mich.) 155 N. W. 519, L. R. A. 1916C, 1139. Kidney trou- ble due to a sudden chill contracted by working for a fortnight In water up to the knees. Sheerin v. Clyton & Co., Ltd. (1910) 2 I. B. 105, O. A. Paralysis which resulted from the rupture of a small blood vessel in conse- quence of the unusual heat and overexertion by the employ§. La Veck v. Park, Davis & Co. (Mich.) 157 N. W. 72. Pleurisy and tuberculosis resulting where an employ^, in order to save being hurt when the crane which he was op- erating broke, jumi)ed into a river. (Workmen's Compensation Law, § 3, subd. 7) Rist v. Larkin & Sangster, 171 App. Div. 71, 156 N. Y. Supp. 875. Pneumonia contracted by a, miner by returning to his working place three minutes after he had fired a shot, and while it was still full of smoke. Kel- ly V. Auchenlea Colliery Co., Ltd. (1911) 4 B. W. C. C. 417, Ct. of Sess. Pneu- monia resulting from a chill contracted where a defect in the pump in a wet pit allowed water to accumulate and compelled the miners to leave their work, and while they were waiting some twenty minutes for the cage icy cold water arose to their knees. Alloa Coal Co., Ltd., v. Drylie (1913) 6 B. W. O. C. 398, Ct. of Sess. Pneumonia due to a chill contracted by a miner who had to wait for an hour and a half for the cage at the foot of a shaft in a draught of cold air, because of a breakdown in another shaft. . Brown V. Watson, Ltd. (1914) 7 B. W. C. C. 259, H. L., and (1913) 6 B. W. C. C. 416, Ct. of Sess. Sciatica contracted by a boatman In consequence of jumping, to escape drowning, from a ketch he had been piloting into his own small boat, which was nearly fiUed with water by the sudden weight. Barbeary v. Chugg (1915) 8 B. W. C. C. 37, C. A. Septicwmia contracted by an injured workman and causing his death. (Workmen's Compensation Act, § 3, subd. 7) Rist v. Larkin & Sangster, 171 App. Div. 71, 156 N. Y. Supp. 875. Tetanus resulting where a collier's foot was injured by a fall of coal. Stapleton v. Dinnington Main Coal Co., Ltd. (1912) 5 B. W. C. C. 602, C. A. An ulcer which develops from a bruise. Hoffman v. Korn, 2 Cal. I. A. C. Dec. 166. T 4 In re Walsh, Op. Sol. Dept. of L. 231. 301 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 97 that the poison to his system caused thereby resulted in sickness which reduced his power of resistance and made him susceptible to bronchitis. The attending physician treated him for ivy poison- ing, and then found that he had developed more or less infection, the blebs breaking open, and in that way became infected, and developed into oedema of the lungs, and he died quite suddenly. It appeared, as found by the Commission, that the ivy and septic poisoning was the remote cause of his death, and that his poisoned condition predisposed him to the acute congestion of the lungs of which he died. It was held that the injury could not be called an occupational disease, and that therefore compensation could be awarded.''" A disease is ordinarily contracted by accident where a workman becomes afflicted with typhoid fever from drinking wa- ter furnished him by his employer,'® or becomes chilled from standing in cold water while at work in a coal pit, and contracts pneumonia as a result,'' or where the bacillus of anthrax alights Ts Plass V. New England Ry. Co., 169 App. Div. 826, 155 N. Y. Supp. 854. ra "The fact that deceased became afflicted with typhoid fever while in de- fendant's service would not in the sense of the statute constitute a charge that he sustained an accidental injury ; but the allegations go further, and state that this typhoid affliction is attributable to the undesigned and un- expected occurrence of the presence of bacteria in the drinking water fur- nished him by the defendant as an incident to his employment. These facts and circumstances clearly charge that Vennen's sickness was the result of an unintended and unexpected mishap incident to his employment. These allegations fulfill the requirements of the ■ statute that the drinking of the polluted water by the deceased was an accidental occurrence, while he was •performing services growing out of and incidental to his employment.' " Vennen v. New Dells Lumber Co., 161 Wis. 3T0, 154 N. W. 640, L. R. A. 1916A, 273. But in a ease under the federal Act (In re Potter, Op. Sol. Dept. of L. 272) it was decided otherwise. The employe in this case developed typhoid fever, which turned into pneumonia and empyema. It was claimed that the ty- phoid was caused by drinking water which had been contaminated and which was furnished by the government. It was decided that the cause of inca- pacity was not of an accidental nature, and therefore not an Injury within the meaning of the act. 7f Drylie, a workman in a coal pit, through accident was exposed to icy cold water up to his knees and became chilled, which made him sick, result- § 98 workmen's compensation 302* on a wool sorter's eye and he dies from the disease.^* The phrase "personal injuries" may include the case of a workman suffering a. total loss of sight in both eyes from an acute attack of optic neuritis, caused by coal tar gases escaping from furnaces about which he worked/' and a case where the inhalation of damp smoke and drenching with water rdfeulted in lobar pneumonia.'" But injuries sustained from a fall due to a faint or an epileptic seizure do not. entitle a workman to compensation unless there is some peculiar hazard connected with the place of the fall.*'- § 98. Previously existing diseases It is fundamental principle that the employer takes the employe subject to his physical condition when he enters his employment. Compensation losses ai'e not made solely for the protection of ing in pneumonia, of which he died. Upon the evidence adduced the court found that the pneumonia was caused by the chill, and that death resulted from "injury by accident." Alloa Coal Co. v. Drylie, 1 Scot. L. T. 167, 4 N. C. C. A. 899. IS Brintons, Ltd., v. Turvey (1904) 6 W. C. 0. 1, C. A., and (1905) 7 W. C. O. 1, H. L. In Higgins v. Campbell, 1, K. B. 328, affirmed A. O. 230, a workman em- ployed in a wool-combing factory, in which there was wtfol which had been taken from sheep infected with anthrax, contracted that disease by contact with the anthrax bacillus which was present in, the wool. In that case com- pensation was allowed, and it was held that the workman was injured by ac- cident arising out of and in the course of his employment, within the mean- ing of the English Act of 1897. The court treated the disease as caused by an accident, by one particular germ striking the eyeball. It was considered that the accidental alighting of the bacillus from the infected wool on the eyeball caused the injury. It was treated as if a spark from an anvil hit the eye. This may be seen from the statement of Lord Macnaghten: "It was an accident that the thing struck the man on a delicate and tender spot in the corner of his eye." " (Wk. Comp. Act 1911, pt. 2, § 1) In re Hurle, 217 Mass. 223, 104 N. E. 336, L. K. A. 1916A, 2T9, Ann. Cas. 1915G, 919. eo In re McPhee, 222 Mass. 1, 109 N. E. 633. 81 Kowalski V. Trostel & Sons, Rep. Wis. Indus. Com. p. 17. 303 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 98 employes in normal physical condition, but for those also who are subnormal,*^ except in exaggerated cases where, in consequence of constitutional diseases or disorders, such as tuberculosis or 82 Fischer v. Union Ice Co., 2 Cal. I. A. C. Dec. 72. The Compensation Act does not make any exception for cases of injury to men whose health is im- paired or below the normal standard. Neither does it except from its bene- fits the man who carried in his body a latent disease which in case of injury may retard or prevent recovery. It applies to every man who suffers dis- ability from accidental injury, and does not exclude the weak or less fortu- nate physically. Hills v. Oval Wood Dish Co., Mich. Wk. Comp. Cases (1916), 11. The above-stated principle was applied in each of the following cases: Where the workman had an abnormally high blood pressure, rendering him liable to hemorrhage in the eyes at any time when engaging in violent work or exercise, and a hemorrhage did occur while he was doing work in the course of his employment, he was entitled to compensation. Gurney v. Iios Angeles Soap Co., 1 Cal. I^ A. C. Dec. 163. That the fractures of the work- man's legs were due to a disease of the bones would not, unless the bones were made brittle by some virulent disease of long standing, overcome the rule that the employer is responsible for results of injury, though such re- sults be more serious than would be the case with a normal person. Block V. Mutual Biscuit Co., 2 Cal. I. A. C. Dec. 274. A slight prior inflammation, causing redness of the eyelids and making the eyes vulnerable to heat and smoke, did not deprive a fireman of disability indemnity for blindness, where the heat and smoke seriously aggravated the previous condition, so as to make incurable what might have been easily cured. McGrath v. City of San Jose, 2 Cal. I. A. C. Dec. 349. Where, following an accidental wrench to the back, an employ§ developed osteo-arthrltis, of which no symptoms had theretofore appeared, although investigations showed that a chronic disease of the spine had begun, but disability had been precipitated only by the ac- cident, and there were no indications of chronic infectious disease to which the osteo-arthritis might be attributable, the employer was liable for com- pensation. Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991. Where there was involved no tearing of the ligaments or fascia of the workman's feet, but rather a disability which developed as a result of his being in bed for many weeks, and later extraordinary use of his right foot while on crutches, his pre-existing flat-foot condition did not constitute a defense against a claim for disability resulting from the injury to such flat feet. Freeh v. San Joaquin Light & Power Corp., 2 Cal. I. A. C. Dec. 948. It is no defense that the injuries would not have been as great, except for the effect of prior injury received before entering the employment of the defendant. Bedlni v. Northwestern Pacific R. E. Co., 1 Cal. I. A. C. Dec. 312, § 98 iVOEKMEN's COMPENSATION 804 syphilis, an injured workman suffers for a period far beyond what would be the case if he were in ordinary health,*' in which cases compensation will be awarded only for the longest period of dis- ability for which a normal person sustaining the same accidental injury would reasonably be disabled.** It follows that neither a congenital weakness *' nor a pre-existing disease will render non- compensable an injury received under conditions which would oth- erwise make it compensable.*' But this does not, of course, dis- ss Walters v. Brune, 2 Gal. I. A. C. Dec. 249. 84 Van Dalsem v. Di Fiore, 1 Gal. I. A. G. Dec. 229. Where the employs sustains a slight injury which normally would not re- sult in disability lasting more than a few weeks, and because of a previously existing disease the injury results in a continuing disability, such continuing disability is not compensable beyond the normal period of disability result- ing from the injury. Johnson v. Lowe, 2 Gal. I. A. O. Dec. 568. Where an employg, who had long been suffering from a slow tubercular process in progress in the lungs, falls off In front of a handcar and is crushed and bruised under it, he is entitled to compensation for the disability proximate- ly caused by the accident, but not for the continuing disability due to de- pressed vitality, change of habits and surroundings, and poor hygiene incident to failing resources, these not being caused by the accident, but only remote- ly attributable to it. Masich v. Northwestern Padflc B. R. Go., 2 Gal. I. A. O. Dec 545. 85 A claim is not barred by evidence of congenital weakness which may have contributed to cause an injury to result in incapacity. In re Mulver- hill. Op. Sol. Dept. of L. 672. 86 In re Madden, 222 Mass. 487, 111 N. E. 379; Forrest t. Roper Furni- ture Co., 187 111. App. 504. Decedent, a man over middle age, working in defendant's woodworking Shop, at the time of seizure just preceding his death, was furrowing certain posts, pushing them forward against the knives of the furrowing machine by pressing his abdomen forcibly against the end of the post. When he had finished part of them, he sat down, evidently in great pain, and died three days later from internal hemorrhage, which defendant claimed was produced by rupture resulting from cancer. The court held that, though decedent was suffering from internal cancer, such facts warranted a finding that the un- usual pressure of the posts on parts weakened by disease was the proximate cause of his death, and hence it was caused by an accident arising out of and in the course of his employment Voorhees v. Smith Schoonmaker Go., 86 N. J. Law, 500, 92 Atl. 280, which cites the case of Jones v. Public Service 305 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 98 Ky. Co., 86 N. J. Law, 646, 92 Atl. 397, holding that, where a passenger suf- fering from chronic Bright's disease and a valvular disease of the heart, dropped while walking on the street about 20 hours after derailment of the car on ' which he was riding, the question whether the accident was the cause of his death was for the jury. Though there is a diseased condition before the injury, and it would not have caused death but for this antecedent condition, still if septicsemia en- sues naturally, actually, and apparently unavoidably from the injuries, the case is compensable. Mazzarisi v. Ward, 170 App. Div. 868, 156 N. Y. Supp. 964. Where an employfi has previously been suffering from tuberculosis of the lungs, which condition had become quiescent, and on the happening of the accident, causing a fractured rib, such tubercular condition Is lighted up, compensation is payable for increased disability due to the recurrence of the tuberculosis. Birk v. Matson Navigation Co., 2 Cal. I. A. C. Dec. 177. Where a carpenter at work in a cramped position on his knees strained his knee upon arising, which strain results in prolonged disability, and on be- ing operated upon it was discovered that he was afCected with 0brolipoma or fatty tumor under the loieecap, not caused by the accident, but previously In existence, though no impairment of the knee had been suffered prior there- to, the disability was compensable. Globe Indemnity Co. v. Terry, 2 Cal. I. A. C. Dec. 682. In Schmidt v. O. K. Baking Co., 1 Conn. Oomp. Dec. 683, on rehearing, it was held that the previous health of the employe is not a factor, provided that it be shown that the incapacity or death of the employs was due to some injury that would be otherwise subject to compensation. In Flotat V. Union Hardware Co., 1 Conn. Comp. Dec. 5, it was held that injuries re- ceived two years prior to the passage of the Act, which aggravated the effect of a later compensable Injury by accident, were not to be considered. Where a foundry helper received a slight burn from the spattering of hot iron, and later received a second bum in the same place, and also was suf- fering from a varicose condition, which was aggravated by such bums, ne- cessitating an operation, he was entitled to compensation. , Mustaikas v. Cas- ualty Co. of America, 2 Mass. Wk. Comp. Cases, 547 (decision of Com. of Arb.). While the employe, a boy of 16, was operating a milling machine, a piece of emery flew into his right eye. A fellow employs removed the particle of emery a day or two thereafter, using the end of a bone or ivory handle of a tooth brush for the purpose. The eye was badly inflamed at the time of the removal of the emery, and it was shown that the injury itself, together with the physical effects of removing the emery so aggravated and accel- erated a sluggish, Inflammatory disease of a chronic nature as to cause to- tal incapacity for work. The classification of the disordered condition of the eye before the injury could not be determined with certainty. TOie Commit- tee of Arbitration and Board held that the employs was entitled to compen- HON.CoMP.— 20 § 98 workmen's compensation 306 sation. Fleming v. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 411 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). Decisions under federal Act. — ^A physical injury, which aggravates a pre- vious ailment, so as to disable an employe, vchere disability would not have been caused, but for such previous ailment, is an injury within the Act. In re Jarvis, Op. Sol. Dept. of L. 219. An accidental injury, received in the course of employment, but arising in consequence of a disease, is an injury within the Act ; the accident being regarded as the proximate, and the disease as the remote, cause. In re Clements, Op. Sol. Dept. of L. 228. An injury by a fall, which lights up or aggravates a previous ailment, causing incapacity, was held to be an injury within the Act. In re Springer, Op. Sol. Dept. of L. 267. A physical injury, brass poisoning, which aggravates a previous ail- ment, here tuberculosis, so as to disable an employe, when disability would not have been caused, but for such previous ailment, is an injury within the Act. In re Devine, Op. Sol. Dept. of L. 277. Claimant suffered an injury which aggravated an existing acute nephritis, causing incapacity ; the injury itself not being sufficient to produce incapacity. Claim held to have been established. In re Hickman, Dec. 1, 1913, Op. Sol. Dept. of L. p. 751. An Injury in the nature of a strain, which lights up, excites, or aggravates a pre-existing ailment, thereby producing incapacity when the existing ail- ment had not previously caused incapacity, was held to be the result of the injury. In re Halloran, Op. Sol. Dept. of L. 756. Injuries held accidental and compensable under English Act, notwithstand- ing previously existing disease: Where a workman who had an aneurism of the aorta, which was so far advanced that it was apt to burst at any time, was ruptured while tightening a nut with a spanner without any extraordinary strain. Clover, Clayton & Co. v. Hughes (1910) 3 B. W. C. C. 275, H. L. Where a ship's fireman, with diseased arteries, had an apoplectic fit in the stokehold. Broforst v. S. S. Blomfield (Owners of), (1913) 6 B. W. O. C. 613. Where a cerebral hemorrhage was sustained, through overexertion at work, by a workman whose arteries were in a bad condition. Mclnnes v. Dunsmuir and Jackson (1909) 1 B. W. O. O. 226, Ct. of Sess. Where a workman who had a weak heart, after pushing an empty truck, fell and died soon afterward. Doughton V. Hickman, Ltd. (1913) 6 B. W. C. C. IT, C. A. Where a workman, whose heart was so weak that any slight exertion might cause death, was descending the side of a ship by means of a rope ladder, and, the ladder twist- ing, he fell into the water; his deati not being caused by drowning, but by heart failure. Trodden v. McLennard & Sons, Ltd. (1911) 4 B. W. C. C. 190, C. A. Where a man of low vital condition, who was employed as a trimmer on board a liner, suffered a heat stroke when he was drawing ashes from a ship's furnaces. Ismay, Imrie & Co. v. Williamson (1909) 1 B. W. C. 0. 230, H. L. Where a debilitated workman, who had injured his knee, took a long time to get home on a cold day, and contracted pneumonia as a result. Ystradowen Colliery Co., Ltd., v. Griffiths (1910) 2 B. W. C. C. 357, C. A. Where the hand of a workman having gouty diathesis was jarred by a mishit 307 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 98 pense with the necessity that the injury shall have been actually caused by an accident or occurrence in the course of employment.'^ of a fellow workman with a hammer, and gout was brought on by the jar. Lloyd V. Sugg & Co., Ltd. (1900) 2 W. C. O. 5, C. A. Where a scullion, with an abnormally sensitive skin, sustained uiflammation of the hands from wash- ing crockery in hot water and soda. Dotzauer v. Strand Palace Hotel, Ltd. (1910) 3 B. W. O. C. 387. Where an osteo-arthritic condition existed prior to the accident, and the disability was thereby prolonged beyond a reasonable time for recovery from the injury, compensation could not be allowed for disability which could be attributed solely to the previous condition of osteo- arthritis. Mullan V. Rogers, 2 Cal. I. A. C. Dec. 927. 87 An employe, overtaken while at work by a disability due to some unas- certained internal disorder, not shown to have been caused by any accident or occurrence in the course of employment, is not injured within the act. In re Trammell, Op. Sol. Dept. of L. 244. An employ^ had been away from his place of employment on an errand, and had returned, when suddenly, while watching his subordinate repair a warp, he fell to the floor unconscious. The employfi had not been perforin- Ing any act in the course of his employment; he had not made any undue exertion; he had not' received any hurt or harm or injury; he had started to assist his loom fixer when he dropped to the floor, without warning of any kind/ and died 20 minutes later. The medical examiner, and the physician who was called to attend him, diagnosed the case as heart failure. It was held that he died from natural .causes and that his widow was not entitled to compenstion. Llghtbrown v. American Mutual Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 243 (decision of Com. of Arb.). Where continued disability followed the blowing of cement dust into the eyes of a workman previously suffering from trachoma, award could be made for a continued disability arising out of the disease of trachoma, which is highly infectious and ordinarily contracted without the intervention of any accident whatever, and is therefore not compensable. Beaushamp v. Chans- lor-Canfield Midway Oil Co., 2 Cal. I. A. C. Dec. 510. Where a girl doing fairly heavy work, as a packer of dried fruit, suddenly suflCers pain and is unable to continue at her work, and an X-ray shows a condition of cervical ribs existing from birth, which of itself ordinarily results in disability before the age of 30, and explains the nature of the disability suffered, there beiug no evidence of an accident causing the disability to come sooner than usual, compensation cannot be awarded. Nesselroad v. Castle Bros., 2 Cal. I. A. C. Dec. 529. Where it appeared that the applicant had suffered from glaucoma of his eye several years before, and that ttds was a disease which was apt to recur at any time without warning, and without the victim's being able to specify § 98 workmen's compensation 308 Nor does a disease which under any rational work is likely to pro- gress so as to finally disable the employe become a "personal inju- ry" merely because it reaches the point of disability while the work any deflmte cause, and the evidence of an accident by getting glue or caus- tic soda in the eye was peculiarly indefinite, the disability was held due to disease, and not to an accident. Damerow v. Paine Lumber Co., Rep. Wis. Indus. Com. 1914r-15, p. 34. It has been held not to be personal injury by accident where a farm labor- er was feeding corn into a machine by shoving a basket Into a heap of corn on the floor, lifting It four or five feet, and tilting it into the hopper of the machine, and died of heart failure while so working (Kerr v. Kitchies [1913] 6 B. W. C. 0. 419, Ct. of Sess.) ; where a workman, who had an advanced case of heart disease of long standing, felt a sudden pain when he was lifting a hutch onto the rails, and was compelled to quit work (Speace v. Baird & Co., Ltd. [1912] 5 B. W. C. C. 542) ; where an omnibus driver, who had heart dis- ease, was sitting on his omnibus at the station, and fell to the ground and died, the judge finding from the confiicting evidence that death was caused by heart disease and not by the fall (Thackway v. Connelly & Sons [1910] 3 B. W. C. C. 37, C. A.) ; where a workman's heart was in a bad condition, and he collapsed at work and died the same day from angina pectoris (Haw- kins V. PoweU's TUlery Steam Coal Co., Ltd. [1911] 4 B. W. C. C. 178, C. A.) ; where a workman, who had progressive heart disease, died while he was rushing to the railway depot with a package for his employer (O'Hara v. Hayes [1910] 3 B. W. C. C. 586, C. A.) ; where an old rupture became strangu- lated while a farm steward was driving a sow across the rough moorland, and death took place later after an operation (Walker v. Murrays [1911] 4 B. W. C. C. 409) ; where a workman, who wore a truss and was employed at heavy work as a stoker, shortly after returning from his dinner hour in good health, was found to be in great pain and died soon afterwards from strangu- lated hernia (Scales v. West Norfolk Farmers' Manure & Chemical Co., Ltd. [1918] 6 B. W. C. C. 188, C. A.); where an old hernia became strangulated while a collier was at work, but there was no evidence of strain (Perry v. Ocean Coal Co., Ltd. [1912] 5 B. W. C. C. 421) ; where a collier, who was in an advanced stage of Brlght's disease, told a fellow workman he had hurt himself, and went home, shortly afterwards dying of uraemia caused by Bright's disease (Ashley v. Lilleshall Co., Ltd. [1912] 5 B. W. C. C. 85, C. A.) ; where a collier, whose arteries were so diseased as to render apoplexy prob- able at any time, died in working hours while engaged in the heavy work of building a pack, but thei;e was no evidence that death supervened during exertion (Barnabas v. Bersham Colliery Co. [1911] 4 B. W. C. C. 119, H. L., and 8 B. W. C. C. 216, C. A.) ; and where a workman with heart disease quit work, saying that he had strained his heart when he was turning a 309 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 98 is being done.** Since it is only when there is a direct causal con- nection between the exertion of the employment and the injury that an award of compensation can be made, the material question to be determined is whether the diseased condition was the cause, or whether the employment was the proximate contributing cause. In the former case no award can be made ; in the latter it ought to be made.*' Thus, where pre-existing heart disease of an em- ploye is accelerated to the point of disablement by the exertion and strain of the employment, not due to the character of the disease acting alone or progressing as it would in any rational work, there may be found to have been a personal injury.'" Where it is im- possible to determine how much of the disability is due to accident and how much to the pre-existing condition, the whole disability is compensable.'^ heavy valve, but there was no other evidence of accident, and the Judge, al- though disbelieving his evidence, awarded In his favor, there was not suf- ficient proof of accident (Beaumont v. Underground Electric Railways Co. of London, Ltd. [1912] 5 B. W. C. C. 247, C. A.). 88 In re Madden, 222 Mass. 487, 111 N. E. 379. sold. »o (St. 1911, c. 751) Id. ; La Veck v. Parke, Davis & Co. (Mich.) 157 N. W. 72; In re Brightman, 220 Mass. 17, 107 N. E. 527, L. R. A. 1916A, 321; Weimert v. Boston Elev. Ry., 216 Mass. 598, 104 N. E. 360 ; Clover, Clayton & Co., Ltd., V. Hughes [1910] A. C. 242. "Where an employe, having an impaired heart, suffered further Injury through muscular exertion required of her by her work, she was entitled to compensation. In re Madden, 222 Mass. 487, 111 N. E. 379. 91 Where a man past 60 years of age, weighing over 200 pounds, who for a considerable tune had been in so vulnerable a condition that a comparatively slight Injury would be followed by a relatively long period of disability, was actively disabled by the falling upon him of a heavily loaded wheelbarrow, which caused him to twist and sprain his ankle, this being followed by con- tinuing disability, consisting of arterio-sclerosls, leg ulcers, varicose veins, eczema of the legs, and flat foot, leaving it Impossible to determine clearly how much of such disability was proximately due to the accident and how much of it was due to the pre-existing condition, all of such disability is com- pensable, since the employer takes the employs as he finds him. Rouda & Splvock V. Heenan, 3 Cal. I. A. C. Dec. 36. § 99 workmen's compensation 310 Division IV. — ProoP § 99. Proof of accident Under Acts making the occurrence of an accident a condition to the right to recover compensation and in cases where accident is relied on, proof of injury by accident is essential to the validity of an award. °^ While proof which is as consistent with the theory of 02 Bnglebretson v. Industrial Accident Commission, 170 Gal, 793, 151 Pac. 421. In Butler v. Sheffield Farms, The Bulletin, N. Y., vol. 1, No. 4, p. 11, compensation was denied where there was not sufficient evidence that claim- ant's fall was due to an accident. The burden of proving that death was caused by accident rests on the party seeking' compensation. Reimers v. Proctor Pub. Co., 85 N. J. Law, 441, 89 Atl. 931. The burden of proof is upon an applicant for death benefits to establish the fact of accident. Holden v. Maryland Casualty Co., 1 Cal. I. A. C. Dec. 14 ; Lucien v. Judson Mfg. Co., 1 Cal. I. A. C. Dec. 59; Wallace v. Regents of University of California, 1 Cal. I. A. C. Dec. 97. The burden of proof is on the employe to show that the accident is the proximate cause of the disability, and where it appears clearly that the employe's condition prior to the accident was such that an operation for hydrocele would be bene- jQcial and was contemplated by him, the fact that he had a fall from a lad- der making such operation immediately necessary is not sufficient to place the burden of responsibility on the industry for the disability. Baine v. Libby, McNeil & Libby, 2 Cal. I. A. C. Dec. 433. Where the only testimony as to the occurrence of an accident is to the effect that the. employe felt a pain in his finger and supposed a small sliver of steel from a tack had penetrated into it, but no foreign object could be found then, or thereafter when the finger became infected, such evidence is insufficient to establish the cause of the injury as penetration by such sliver of steel. The presence of such sliver is based upon assumption only. The burden of proof is upon the applicant, and is not fulfilled by this testimony. Seiberlich v. Buckingham & Hecht, 1 Cal. I. A. C. Dec. 372. Sufflciency of proof of accident. — Where a gamekeeper handled an animal on August 5th which later died of anthrax, and on August 11th he himself :fell ill of the same disease and died, it was held not proven that there was an accident. Sherwood v. Johnson (1912) 5 B. W. C. C. 686, C. A. In Lor- enzo V. Bigelow-Hartford Carpet Co., 1 Conn. Comp. Dec. 216, it was held on confiicting evidence that the claimant had established by the preponderance 311 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 99 no accident as with the theory of accident is'insufficient,°° proof of accident need not negative every other possibility,** nor need it of the evidence an accident in his employment, consisting of the falling of an Iron roller on his foot, causing a small bruise, resulting in tuberculosis of the bones. In Dube v. Clayton Bros., Inc., 1 Conn. Comp. Dec. 441, where the workman claimed to have sustained a rupture by falling against the cor- ner of a tank, but the examining physician found no evidence of such an in- jury, and the other witness for the claimant testified he had been offered pay to testify that he saw claimant fall, though he did not, it was held the claim- ant's burden of proof was not discharged. In Palama v. Chase Metal Works, 1 Conn. Comp. Dec. 444, where a workman was found dead sitting on the floor in an apparently natural position, and It was shown that the electric current in an uninsulated wire from which claimant contended decedent was electro- cuted had been shut off several hours before he met death, it was held the burden of proof was not discharged. In Beckster v. Pattlson, 1 Conn. Comp. Dec. 61, where the claimant could show no specific time of injury,, and could show nothing in his employment to which his blood poisoning was due, it was held that his claim was not established. The employer's report of the accident, made out by a representative of the insurance carrier, saying that the workman slipped and struck his side on the corner of a scrap box, was suf- ficient proof of an accident. Griffin v. A. Roberson & Sons, The Bulletin, N. Y., vol. 1, No. 10, p. 18. 93 McCoy V. Michigan Screw Co., 180 Mich. 454, 147 N. W. 572, L. R. A. 1916A, 323; Hills v. Blairj 182 Mich. 20, 148 N. W. 243. It has been held that the occurrence of an accident was not proved where a collier, who was obliged to work on his knees, died from blood poisoning re- sulting from an abscess in his knee, but there was no evidence as to how the abscess was really caused (Howe v. FernhlU Colliers, Ltd. [1912] 5 B. W. C. C. 629, C. A.) ; where a ship's stoker, while in the tropics, went from the stokehold into a coal bunker, and was found there suffering from heat apo- plexy, which might or might not have been caused by exertion in his work (Olson V. S. S. Dorset [Owners of], [1913] 6 B. W. C. C. 658, C. A.) ; where a workman at work cried out that he had hurt his back (although no one saw what happened), and was taken to his home, in which he died a week later from intestinal obstruction (Farmer v. Stafford, Allen & Sons, Ltd. [1911] 4 B. W. C. C. 223, C. A.); where a ship's fireman slipped and complained of his knee, and was the next day found to be suffering from an old rupture 94 Although the burden of proof is on the applicant, it is not necessary for him, in proving the cause of death, to negative every other possibility of death by accidental means. W. R. Rideout Co. v. Pillsbury (Oal. Sup.) 159 Pac. 435. § 99 workmen's compensation 312 be direct and positive. It may rest on circumstances.'" Thus, where a person is found dead, the law imparts to the circumstances (Olarkson v. Charente Steamship Co., Ltd. [1913] 6 B. W. C. O. 540, C. A.); and where a workman, who had been climbing a steep path, was covered with mud, as if he had had a fall, complained of pain, and went home to bed, and died later, after vomitingffrom an old hernia, which was not down when he went home, but came down after the vomiting (Marshall v. Sheppard [1913] 6 B. W. C. C. 571, C. A.). 8 5 Heileman Brewing Co. v. Shaw, 161 Wis. 443, 154 N. W. 631. An employer, in order to dry out an empty beer tank, burned in it 10 pounds of charcoal. Ten hours afterwards an employs went into the tank to clean it, and in a few minutes was found unconscious, and shortly there- after died. The autopsy disclosed all the signs of carbon monoxide poison- ing and no other injuries. The evidence showing that carbon monoxide would be produced and remain in said tank under such circumstances, it was held that the employ^ was killed by accidental poisoning. Markt v. Na- tional Brewing Co., 2 Cal. I. A. C. Dec. 881. Where an employe, whose duties as a night watchman of the warehouse and wharves of the employer, requir- ed the keeping up of steam in boilers, the making of regular rounds about the plant, and other duties, was found missing in the morning on -the arrival of the other employes, no steam in the boilers, his lantern still burning, the electric lights not turned off, a card indicating 12 o'clock as the last hour on which the watchman made his rounds, the gates open, suspicious footprints about, two suspicious characters known to have been about, a pool of blood on the wharf, and a trail of blood to the edge, the torn cap of the watchman in the blood, a complete disappearance of the body of the watchman, no evidence whatever of any reason but the death of the employ^ to account for his disappearance, this evidence was held sufficient to warrant a find- ing that the employe was killed on the night in question. Shea v. Western Grain & Sugar Products Co., 2 Cal. I. A. C. Dec. 550. Where the employ^, a watchman, was found at the foot of a stairway in his employer's plant, with a lantern near him which he had carried on his rounds, this fact, together with the employer's report of accident that the in- juries were supposed to have been caused by a fall from the stairway, was sufficient proof of an accident. Fogarty v. National Biscuit Co., The Bulletin, N. Y., vol. 1, No. 6, p. 9. ■ Circumstances held sufficient proof of accident: Where deceased was found lying under a train of cars with a hole about six inches in diameter in his abdomen. De Fazio v. Goldschmidt Detinning Co. (N. J. Sup.) 88 Atl. 705. Where a workman employed in building a bridge over a river near its outlet was last seen alive at his home some miles from his work, and his dead body was later found in the bay, there beiijg no evidence as to how he met death. Steers v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007. West Virginia. Where a 313 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 99' the prima facie significance that death was caused by accident rather than by suicide. This presumption persists in its legal force until overcome by evidence.** The existence of an accident can- not, however, be inferred without some substantial basis for the in- ference,*' nor can it be established by evidence which is merely workman in previous good health discovered, two days after an unusually heavy lift in the course of his work, that he was ruptured, and died from a surgical operation to relieve it; the operating surgeon saying that the rupture was caused by a lift. Poccardi v. Public Service Commission, 75 W. Va. 542, 84 S. B. 242, Li. R. A. 1916A, 299. Wisconsin. Where a workman in a brewery, part of whose duty was to clean up after the day's work and to turn on steam > in certain machines, was found injured and unconscious on the floor of the basement of the building, and afterward died. Helleman Brewing Co. v. Shaw, 161 Wlis. 443, 154 N. W. 631. California. Where a deck hand on a steamboat, so loaded as to make it convenient to go forward by walking along the narrow side rail, after ibeing seen to go forward, was next seen in the water, drowning, there being no evidence of any reason for suicide. Olsen v. Hale, 2 Cal. I. A. C. Dec. 607. England. Where a healthy workman, working in the hold of a ship, came up the ladder in great pain, and was sent home, where it was found that he had marks on his ribs, and later developed pneu- monia and died. Lovelady v. Berrie (1910) 2 B. W. C. C. 62, C, A. Where a workman, apparently in good health, was found injured after moving some very heavy glazed sinks, and after a fortnight returned to work, but still complained of a pain in his back, and some months after died in a hospital from a fracture of one of the lumbar vertebrse. Hewette v. Stanley Bros. (1913) 6 B. W. C. C. 501, C. A. Where a sailor, who went on deck at night to get fresh air, was found next morning in the water, dead. Marshall v. Own- ers of Ship Wild Rose (1910) 3 B. W. C. C. 514, H. L., and 2 B. W. O. 0. 76, O. A. 96 Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998. Where it is not clear concerning a condition or an existing state of facts that may be material, and relates to the manner in which an injury occurred, the presumption is that it was accidental. Hanson v. Commercial Sash Door Co., Bulletin No. 1, 111., p. 30. ST It is not sufficient to think this or that is probable. There must be prac- tical probabUity. Howe v. Femhill Collieries, Ltd. (1912) 5 B. W. C. C. 629, C. A. It is necessary that proof of an accident be reasonably clear, and where a baker found to have a hernia attributed it to a strain occurring while he was lifting a truck load, at which time he claimed to have felt a pain, but he said § 99 workmen's compensation 314 hearsay," or, as a general rule, by uncorroborated statements of the injured workman.'" For corroborative testimony to be suffi- cient, it must be direct and substantial,^ but it may consist of state- nothing about it to his fellow workmen and continued to work for over a month thereafter, It was nqj proven that the hernia resulted from the strain alleged. Vogler v. M. Carpenter Baking Co., Rep. Wis. Indus. Com. 1914r-15, p. 35. Where there was nothing extraordinary in the employe's work at the time of the strain alleged to have caused a hernia, nothing unforeseen or fortuitous happened to him at that time, and the pain was not serious, but only suflBk;ient to call his attention to his condition, an accid€ntal injury was not established. Toennes v. Milwaukee Eflectric Ry. & Light Co., Rep. W5s. Indus. Com. 1914-15, p. 26. Where the strain alleged as the cause of a hernia was of a slight and insignificant character, and resulted in only slight pain, not causing a cessation in work, and came while the workman was engaged in doing an ordinary task not at all strenuous, the accident — that is, an Incident of sufiiclent moment to develop the hernia — was not established. Drolshagen V. Milwaukee Pattern & Mfg. Co., Rep. Wis. Indus. Com. 1914-15, p. 25. Where a delivery boy, after several falls from his bicycle, is operated upon for hydrocele, the existence of which was observed by the physician at the time of the first accident, the physician testifying that it was then admitted as having existed before that, the proof of accident origin was insufficient. Young v. Paris, 2 Cal. I. A. C. Dec. 518. 98 In this proceeding to review an award of compensation it is held that the award must be annulled, for the lack of proof that the injury was acci- dental, since the only testimony in proof of the accident was hearsay. Em- ployers' Assur. Corp., Ltd., v. Cal. Indus. Ace. Com., 2 Cal. I. A. C. Dec. 453, 170 Cal. 800, 151 Pac. 423 ; Englebretson v. Indus. Ace. Com., 2 Cal. I. A. C. Dec. 449. 99 In the proceeding to review an award allowing compensation to a wife for the death of her husband, there was no proof that the injury resulting In death was accidental, where the only proof was the hearsay statements and explanations of the deceased. Employers' Assur. Corp., Ltd., v. Cal. Indus. Ace. Com., 2 Cal. I. A. C. Dec. 452, 170 Cal. 800, 151 Pac. 423. Where the workman's own description of the accident differed materially In his notice of accident, his claim, and his testimony, he made no claim until after leaving the defendant's employ, his evidence was unsupported, and the motormen on his car denied any knowledge of the happening of any accident, it was held there was not sufficient proof of accident. Graf v. Brooklyn Rapid Transit Co., The Bulletin, N. T., vol. 1, No. 6, p. 9. 1 Where the workman had told various persons that he did not know Tvhether the injury to his finger had been caused by a passing wheelbarrow SIB CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 99 ments made by him to his fellow workman near the time of the ■occurrence," especially when they are in accord with the reports ■of a medical expert.' In a case wherein the evidence as to the hap- pening of the alleged accident and as to the nature of what happen- ■ed at the time was equally divided, and conflicting in both fact and -credibility, it was held that expert and unprejudiced medical ad- -vice corroborating the probability of applicant's testimony author- ized a decision in favor of the applicant.* That the workman, as frequently happens, is mistaken or confused as to the date of in- jury, does not invalidate his claim.° A prima facie case may, of <;ourse, be rebutted by proof that the injury was not accidental." or handling a hammer, and his claim of injury by a wheelbarrow, although corroborated by two fellow employes, is doubtful because of the location of the Injury this evidence is insufficient to prove an industrial accident. Nicoletti V. Penn. Mining Co., 2 Cal. I. A. C. Dec. 347. ' Wlien an employ§ claims to have fallen and bruised himself, returning to ■work the next day, Infection thereafter setting in and causing disability, the uncontradicted testimony of two fellow workmen that he told them of his fall at the end of the day of the accident is sufficient corroboration of Ms story to prove the accident. Bridgewood v. Union Iron Works Co., 2 Cal. I. A. C. Dec. 599. 3 Where an employe claims an injury, and the only corroborative evidence that it was the result of an accident was his statement at the hospital two days after the alleged accident, which was in accord with his testimony at the bearing, and a medical expert reports that in his judgment the trouble was the result of an injury, and not of a gonorrhceal infection, there was sufficient corroboration of his testimony that an accident took place. Pattberg v. Young & Swain Baking Co., 2 Cal. I. A. C. Dec. 883. 1 Whitsell v. Montgomery, 1 Cal. I. A. C. Dec. 572. 6 Ponce V. Engstrum Co., 2 Cal. I. A. C. Dec. 370. 6 "If personal injury is caused to a workman, and it arises out of and in the course of an employment to which the Act applies, it appears to me that prima facie the Act entitles him to compensation, but that this inference may ■be displaced by proof that the injury is attributable to his own serious and willful misconduct, or to some other cause which shows that the injury was not accidental." Lord Lindley, in Fenton v. Thorley & Co., Ltd. (1903) 5 W. C. O. 9. The statutory presumption that, in the absence of substantial evidence to the contrary, the claim comes within the Compensation Act, is overcome § 99 workmen's compensation 31ff The mere fact that an employe may have a predisposition of \ hernia, and even a slight or latent hernia, is no proof that a serious hernia brought on while in the course of and occurring during his employment is not an "accident." ^ § 100. Proof of injury The burden of proof is on the applicant to establish the fact of injury, but, where the injury is such that objective ^mptoms are absent, dependence must be placed on the history of the case given by the applicant, if he appears to be dependable.' Where his story of how the injury was sustained is reasonable in itself, and cor- roborated by the testimony of the attending surgeon that his ill- ness resulted from an injury, and there is no evidence tending tO' disprove an injury received in the course of the employment, suffi- cient evidence is presented to establish the fact of injury.® A claim may be approved where only circumstantial evidence of the. injury can be adduced,^" and circumstances may be sufficient to corrobo- by the testimony of the employe's helper and two bystanders that they were present at the time and place the accident was alleged to have occurred and did not see any accident whatsoever, and the testimony of an examining physician that he found no bruises, dlscolorations, or abrasions on the work- man's body (Laws 1914, c. 41, § 21). Carroll' v. Knickerbocker Ice Co., 218 N. T. 435, 113 N. E. 507, reversing 169 App. Div. 450, 155 N. X. Supp. 1. 7 Hasenstab v. Chicago House Wrecking Co., Bulletin No. 1, lU., p. 62. The question as to whether or not an injured employs had a predisposition to hernia, or a weakness toward hernia, is not material, when an accident occurs which brings forth a protrusion of the intestines and causes disability; it being an accident within the meaning and scope of the Workmen's Com- pensation Act. Fobes v. Killeen, Bulletin No. 1, lU., p. 68. 8 Murphy v. Casualty Co. of America, 1 Cal. I. A. G. Dec. 54. » Jenkins v. Pieratt, 1 Cal. I. A. C. Dec. 114. But where claimant's testimony that he had sustained a hernia by a sudden strain while lifting, had felt sudden and severe pain, and that he had had no former hernia, was flatly contradicted by several witnesses, compensation was denied. Silverman v. Zibulsky Bros., The Bulletin, N. X., vol. 1, No. 6, p. 13. 10 In re Simpson, Feb. 15, 1909. Op. Sol. Dept. of U p. 675. Where the manner In which a workman was compelled by his employment 317 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 100 rate a claimant's unsupported statement as to injury in the absence of proof to the contrary ; ^^ but, as was said in the next preceding section relative to proof of accident, evidence which is as consistent with the theory that death or incapacity was due to natural causes as that it was. due to injury is insufficient to establish the fact of injury.^^ Where injury and accident are proven, and the employer to handle heavy bales of waste was peculiarly calculated to produce severe abdominal strain, and while at work he was suddenly seized with pain in the abdomen, felt weak, and changed to lighter work, and was later found to have a hernia, It was held there had been an accidental injury. Ratzberg v. Deltox Grass Rug Co., Rep. Wis. Indus. Com. 1914-15, p. 34. In Maloney v. Waterbury Farrel Foundry & Machine Co., 1 Conn. Comp. Dec. 220, where the deceased workman felt a sudden pain while lifting a heavy crank shaft, and after working for part of the week with continual pain, was found to have an inguinal hernia, it was held he had sustained a compensable injury. 11 In re Davis, Op. Sol. Dept. of L. 740. Claimant contended that she struck and injured her arm while at work in the Bureau of Engraving and Printing ; she made no immediate report, as it did not cause incapacity at the time. Review of circumstances showed them to be compatible with the truth of statement, and claim was held to be established. In re Johnson, Op. Sol. Dept. of L. 748. The claimant was not given an opportunity to file a claim immedi- ately following the injury, and owing to misunderstanding it was some time before he was permitted to file same. The local officials in the field of the Forest Service contended that claimant was not injured as alleged, and cited - the fact that he had worked in a coal mine subsequent to his alleged injury. Upon consideration of all evidence submitted, it was concluded that claimant had been injured as alleged by him, and the medical evidence further es- tablished the fact of an injury from the nature of which incapacity could be presumed. In re lissy. Op. Sol. Dept. of L. 752. 12 Where a person engaged in cleaning fish had his hand punctured by a fish fin, and disability followed from infection setting in, but two fellow work- men, instead of admitting that the injured workman had told them of the injury on that day, as claimed, stated that the applicant had received a punc- ture several days previously, and before his employment, at which time they had put peroxide on the hand, and the injured workman admitted a previous fish pimcture, the fact of injury by accident while under employment was established. Chamberlain v. Southern Fish Co., 2 Cal. I. A. C. Dec. 424. The employe, a granite cutter, fell in the cutting shed of the subscriber and died four days later from cerebral hemorrhage. The evidence given by fellow employes, who were presumably eyewitnesses of the occurrence, was wholly § 100 workmen's compensation 31S contends that the injury is not a new one, but is the result of a former accident, the burden is on him to prove this contention.^' Delay in reporting an injury and presenting a claim therefor under the federal Act does not establish nonexistence of the injury. Evidence that an employe was strong and healthy until he com- plained of a hurt receiv«d while doing heavy lifting, and that he died suddenly a few days thereafter for no other assignable cause, is sufficient to show that he had sustained some internal injury, though there were no external manifestations thereof.^* But evidence of a slight blow on the jaw is not evidence that tuberculosis of the cervical glands causing incapacity is an injury.^" at variance with the weight of the medical testimony. An impartial physician was appointed to perform an autopsy, and his report and evidence showed that the said employe did not in fact receive a personal Injury. It was held that the dependent widow was not entitled to compensation. Birnie v. Con- tractors' Mutual Liability Insur. Co., 2 Mass., Wk. Comp. Cases, 619 (decision of Com. of Arb.). 13 Where a workman, who had wrenched his knee three years before and had several times since felt pain, felt a similar pain on rising from a kneeling position, and found that the cartilage of the knee was ruptured, it was a personal Injury by accident; the onus being on the employers to show that there was no new injury. Borland v. Watson, Gow & Co., Ltd. (1912) 5 B. W. C. C. 514, Ct. of Sess. " In re Powers, Op. Sol. Dept. of L. 214, 10 In re Hicks, Op. Sol. Dept. of L. 217. 319 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB ARTICLE II ARISING OUT OF AND IN COURSE OF EMPLOYMENT Division I. — In Genebal Section 101. "In course of" and "out of"— Necessity and distinction. 102. Employments. 103. Hazardous employments. 104. Federal Act. Division II. — Aeising in the Coukse of Employment 105. In general. 106. Term of employment. 107. Going to work. 108. Returning from work. 109. Premises of employer. 110. Means of conveyance. 111. Leisure periods — ^Attendance on personal comforts and necessities. 112. Negligence and recklessness. 113. Disobedience. 114. Deviation from original employment. Division III. — ^Abisino Out of Employment 115. Risks due to employment. 116. Risks peculiar to employment. 117. Risks of commonalty. 118. Risks externa] to the employment, but special exposure to risk due to employment. 119. Injury from forces of nature. 120. Injury caused by coemploy6 or others. 121. Injury from horseplay or practical joking. 122. Area of duty — Absence — Entry and exit. 123. Incurring of additional risks. 124. Intoxication. 125. Susceptibility to risk. Division IV. — Peoof 126. Burden, requisites, and suflaciency of proof. § 101 workmen's compensation 320 Division I. — In Generai, § 101. "In course of" and "out of"— Necessity and distinction According to the usual language of the Acts, to warrant recovery of compensation for th% injury or death of a workman; the injury must be one "arising out of and in the course" of his employment.^" This phrase is used in the same sense in the Acts of England and of many of the states, and, though its literary cbnstruction is well settled, its application to particular cases has given rise to differ- ences of opinion not easily harmonized.^'' AttemptSj of the courts 16 (Laws 1913, c. 198) Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, Ann. Eep. Keb. St. Dept.. of L. p. 94 ; Lanigan v. Lan- Igan, 222 Mass. 198, JLIO N. E. 285; Hills v. Blair, 182 Mich. 20, 148 N. W. 243. Compensable injuries under the Wisconsin Act are such as are incidental to and arise out of the employment. Hoenig v. Indus. Com., 159 Wis. 646, 150 N. W. 996, L. R. A. 1916A, 339. "The language of the Act provides for compensation for Injuries accidentally received while in the course of em- ployment. The English Act provides for compensation for injuries accidental- ly received growing out of the employment We have had occasion to con- strue this difference in language between the English Act and our Act here- tofore, and we have held that the meaning of the two Acts is the same, and this construction has been upheld by the Supreme Court The legislative committee in its report says that 'compensation shall ■ be paid when the injury grows out of the employment. It makes no difference who was to blame. It is suflacient that the industry caused the injury.' This language of the legislative committee, construing the section referred to can only mean one thing, and that is compensation is to be paid for industrial acci- dents — accidents that grow out of the industry. Arnold v. Holeproof Hosiery Co., Rep. Wis. Indus. Com. 1914r-15, p. 32. n Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368. The words "out of and in the course of the employment" admit of an in- exhaustible variety of application according to the nature of the employment and the character of the facts proved." Lord Loreburn, L. 0., in Kitchen- ham V. S. S. Johannesburg (Owners of), (1911) 4 B. W. O. C at p. 312. "There cannot be imagined a more difiacult part of this difficult Act to deter- mine than that which relates to injuries by accident arising out of and in the course of a man's employment." Lord Loreburn, L. C, in Warner v. Couchman (1912) 5 B. W. C. C. at p. 179. Considering that the members of the Wainwright Commission which draft- 321 CIHCUMSTANCES UNDER WHICH COMPENSATION DUE § 101 to formulate general rules relative to the distinction between the terms "out of" and "in the course of" have not been entirely suc- cessful. All agree, however, that the terms are not intended to be synonymous. An injury may be received in the course of the em- ployment, and still have no causal connection with it, so that it can be said to arise out of the employment.^* But it is difficult, if not impossible, to conceive of an injury arising out of and not also in the course of the employment.^' The importance of distinguish- ing between these terms arises from the fact that each represents an element essential to, but not authorizing, recovery of compensa- tion without the presence of the element represented, by the other. In other words, even though the injury occurred "in the course of" the employment, if it did not arise "out of the employment," there can be no recovery ; and even though it arose "out of the employ- ment," if it did not arise "in the course of the employment," there ed the New York Act were familiar with the English Act, and that the words "arising out of and in the course of the employment" were taken from that Act, the decisions of the English courts in construing this phrase should be given due consideration in New Xork. De Filippis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761 ; Newman v. Newman, 169 App. Dlv. 745, 155 N. y. Supp. 665. IS State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176, 151 N. W. 912; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; In re Employers' Liability Assur. Corp., 215 Mass. 497, 102 N. E. 697, L. K. A. 1916A, 306 ; Barnes v. Nunnery Colliery Co., Ltd. (1912) App. C. 44 (Eng.) ; Plumb V. Cobden Flour Mills Co., Ltd. (1914) App. C. 62 (Eng.). 19 "Many accidents occur in the course of, but not out of, the employment; but I am unable to think of any that could arise out of, and not also In the course of, the employment." Farwell, L. J., in Leach ,v. Oakley, Street & Co. (1911) 4 B. W. C. C. at p. 98. "I think it is impossible to have an acci- dent arising out of, which Is not also in the course of, the employment ; but the converse of this is quite possible, as, for instance, if a workman were shot by a lunatic, or struck by lightning, while at the moment engaged in his work. In a great many cases, however, the two phases do not admit of separate consideration, and the present Is one of those cases. If this acci- dent took place in the course of the workman's employment, it also indubi- tably arose out of that employment; if not, not." Lord President, in Mc- Lauchlan v. Anderson (1911) 4 B. W. C. C. at p.^ HON.COMP. — 21 § 101 workmen's compensation 322 can be no recovery.^" Yet in the words of an English jurist: "If you find that the accident arose in the course of the employment, 20 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; In re Employers' Lia- biUty Assur. Corp., 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. It Is essential to a right to recover compensation that the accident not only be received in the course of, but shall arise out of, the employment. Bayer v. Bayer (Mich.) 158 N. W. 109. The words "arising out of and in the course of his employment," In the Workmen's Compensation Act (P. L. 1911, p. 134), are conjunctive, and re- covery can only be had under that act when the given injury arose, not only "in the course of," but also "out of," the employment. HuUey v. Moos- brugger, 88 N. J. Law, 161, 95' Atl. 1007, L. R. A. 1916C, 1203. The use of the conjunction "and" indicates that the accidental injury must arise both out of and in the course of the employment. An accidental injury sustained during the course of the employment, but not arising out of the employment, as well as such injury arising out of the employment, but not sustained during the course of the employment, does not fall within the provi- sions of the compensation law. Moore v. Lehigh Valley B. Co., 169 App. Div. 177, 154 N. Y. Supp. 620. The words "arising out of and in the course of employment" are conjunctive, and relief can be had under the Act only when the accident arose both "out of" and "in the course of" employment. In re Heitz, 218 N. Y. 148, 112 N. E. 750, affirming (Sup.) 155 N. Y. Supp. 1112. It is not enough to say the accident would not have happened if the serv- ant had not been engaged in the work at the time, or had not been in that place. It must appear that it resulted from something he was doing in the course of his work or from some peculiar danger to which the work exposed him. Amys v. Barton, 5 B. W. C. C. 117 ; Archibald v. Ott (W. Va.) 87 S. B. 791. In Fitzgerald v. W. G. aarke & Son, L. R. 1908, 2 King's Bench, 796, it was held: "An employer is not liable under the Workmen's Compensation Act, 1906, to pay compensation for injury caused to a workman while en- gaged at his work by the tortious act of a fellow workman which had no re- lation to the employment. The words 'out of and in the course of the em- ployment,' in section 1, subsec. I. of the Act, are used conjunctively, and are not to be used as meaning out of ; that is to say, in the course of. The words 'out of point to the origin or cause of the accident ; the words 'in the course of to the time, place, and circumstances under which the accident takes place." Walther v. American Paper Co. (N. J.) 98 Atl. 264, quoting Buck- ley, L. J., in Fitzgerald v. Clark & Sons. Instances of injuries deemed not to have arisen out of the employment, although sustained in the course thereof, are found in the reported cases. An injury intentionally inflicted upon one workman by an(}ther, by a blow from a piece of iron thrown in B23 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 101 you may have gone a certain way towards finding that it arose out of the employment, but you have not gone the whole way." "^ The words "out of" point to the origin and cause of the accident or in- jury; the words "in the course of" to the time, place, and circum- stances under which the accident or injury takes place. The former words are descriptive of the character or quality of the accident. The latter words relate to the circumstances under which an acci- dent of that character or quality takes place. The character or quality of the accident as conveyed by the words "out of" involves the idea that the accident is in some sense due to the employment. It must result from a risk reasonably incident to the employment."^ anger, or by an assault and battery, Is of that kind. Such, also, is the character of an injury resulting from an assault upon a workman by a stranger, and of one sustained in the course of recreation or diversion at the place of work. In some of these cases an agency wholly independent of the work, foreign to it and unanticipated, intervenes, or there is a turning aside from the employment, for the time being, to engage in a transaction on the workman's own account and for his own purposes. It is quite easy to perceive that violence of a fellow workman or a stranger arises, not out of the work, but out of the vicious or irritable disposition of the assailant, and that play or diversion on the premises is a step outside of the employment, and a thing done for the employ^ himself, and not for the employer. In none of these instances is the occasion of the injury an incident of the work. Archibald v. Ott, supra. Judge Case, of the superior court, said, in aflirming Dorrance v. New Eng- land Pin Co., 1 Conn. Comp. Dec. 24: "The words 'arising out of are re- strictive of the construction of the later words 'in the course of.' A personal injury suffered by a workman while pursuing his duties gives him in itself no claim for compensation under the Act ; some essential relation and con- nection between the employment and the injury must appea^." The mere fact of injury, though sustained in the course of the ernploy- ment. Is Insufficient, unless injury has resulted from accident arising out of the employment. McDonald v. Dunn, 2 Cal. I. A. C. Dec. 71. The words "arising out of and in the course of employment" are conjunctive, knd not disjunctive. They mean distinct things ; hence compensation is restricted to such injuries as both arise out of and are in the course of employment. Rep. Nev. Indus. Com. 1913-14, p. 25. 21 McLaren v. Caledonian Railway Co., [1911] S. C. 1077. 22 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Buckley, L. J., in Fitz- gerald V. Clarke & Son, [1908] 2 K. B. 796, 77 h. J. K. B. 1018. Where the § 101 workmen's compensation 324 accident Is the result of a risk reasonably incident to the employment, It is an accident arising out of the employment. HuUey v. Moosbrugger, 87 N. J. Law, 103, 93 Atl. 79; Zabriskie v. Erie R. Co., 85 N. J. Law, 157, 88 Atl. 824, affirmed on appeal, 86 N. J. Law, 266, 92 Atl. 385, L. R. A. 1916A, 315; Terleckl v. Strauss, 85 N. J. Law, 454, 89 Atl. 1023, affirmed on appeal. An accident arises "out of" the emp,loyment when It is something the risk of which might have been contemplated by a reasonable person, when entering the employment, as incideiftal to it. Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458. This case finds support In Armitage v. Lancashire & Yorkshire Ry. Co., [1902] 2 K. B. 178 ; Collins v. Collins (1907) 2 I. R. 104, Murphy v. Berwick (1909) 43 Ir. L T. R. 126, and Blake v. Head (1912) 106 L. T. R. 822, in each of which recovery was denied because the act of the third party was not a risk reasonably to be contemplated by the employ^ in undertaking the employment. The accidents arising out of the employment of the person injured are those in which it is possible to trace the injury to the nature of the employe's work or to the risks to which the employer's business ex; poses the employ^. Fitzgerald v. Clarke & Son, [1908] 2 K. B. 796 ; 77 L. J. K. B. ^018; Coronado Beach Co. v. Pillsbury (Cal. 1916) 158 Pac. 212. The two phrases, "in the course of employment" and "resulting from em- ployment," are not synonymous. The former relates to the time, place, and circumstances of the injury, and the latter to the origin. McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306 ; Archibald v. Ott (W. Va.) 87 S. E. 791. An injury is received "in the course of" employment when it comes while the workman is doing the duty which he is employed to perform. It arises "out of" the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection be- tween the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have fol- lowed as a natural incident of the work and to have been contemplated by a reasonable person, familiar with the whole situation, as a result of the exposure occasioned by the nature of the employment, then it arises "out Of" the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally ex- posed apart from the employment. The causative danger must be' peculiar to the work, and not common to the neighborhood. It must be incidental to the character of the business, and not independent of the relation of master and servant It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the em- ployment, and to have flowed from that source as a rational consequence. In re Employers' Liability Assur. Corporation, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306 ; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. It is well settled that, to justify an award, the accident must have arisen "out of," as well as "in the course of," the employment, and the two are 325 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 101 An employe doing what he was employed to do, and doing it in the way he was expected to do it, when the accident happened, is in- jured by accident arising out of and in the cotirse of the employ- ment.^' It is not essential, however, that the injury shall have been anticipated,^* and it is immaterial whether the precise physical separate questions, to be determined by different tests, for cases often arise where both requirements are not satisfied. An employ^ may suffer an acci- dent while engaged at his work, or ^n the course of his employment, which In no sense is attributable to the nature of, or risks involved in, such employ- ment, and therefore cannot be said to arise out of it. An accident 'arising out of an employment almost necessarily occurs in the course of it, but the converse does not follow. Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A, 310. The words "out of" are descriptive of the character or quality of the accident. The words "in the course of" re- late to the circumstances under which an accident of that character or quality takes place. The character or quality of the accident, as conveyed by the words "out of," involves the idea that the accident is in some sense due to the employment. Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, L. R. A. 1916A, 22, Ann. Cas. 1916A, 386. The language of the Michigan Compensation Act is adopted from the English and Scotch Acts on the same subject, and, in harmony with their interpretation, has been con- strued as meaning that the words "out of" refer to the origin or cause of the accident, and the words "in the course of" to the time, place, and cir- cumstances under which it occurred. Hills v. Blair, 182 Mich. 20, 148 N. W. 243; Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A, 310. 2 3 Boody V. K. & C. Mfg. Co., 77 N. H. 208, 90 Atl. 860, L. R. A. 1916 A, 10, Ann. Cas. 1914D, 1280; De Fazio v. Goldsmith Detinning Co. (N. J. Sup.) 88 Atl. 705 ; Zabriskie v. Erie R. Co., 85 N. J. Law, 157, 88 Atl. 824. An injury arises out of and in the course of employment where at the time and place of its occurrence the workman is doing what he might reasonably then do. Scott v. Payne Bros., 85 N. J. Law, 446, 89 Atl. 927. An injury arises "In the course of employment" if it occurs while the employ^ is doing what one so employed may reasonably do within the time during which he is employed, and at a place where he may reasonably be during that time. Biddinger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70. (Gen. St. 1913, § 8203.) 2< State ex rel. People's Coal & Ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344 ; Federal Rubber Co. v. Havollc, 162 Wis. 341, 156 N. W. 143 ; Commissioner Lyon in Putnam v. Murray, The Bulletin, N. T., vol. 1, No. 4, p. 9, § 101 workmen's compensation 326 harm was the natural and probable or the abnormal and inconceiv- able consequence of the employment.^' It seems to be agreed that the words "arising out of and in the course of his employment" do not make the employer an insurer against all the risks of the business, but include only those injuries arising from the risks of the business which are suffered while the employe is acting within the scope of -his employment."'* The fact that under the Washington Act the employer, being re- quired to make reports of accidents, is directed to state whether the accident "arose out of or in the course of the injured person's employment," is not determinative that compensation shall be lim- ited to injuries received under such circumstances, in view of other more liberal terms of the Act.''' It is essential in order to entitle a workman to compensation under section 5 of this Act that he be in the course of employment only in case the injury occurs away from the employer's plant."* § 102, Employments The accident causing the injury must arise out of work or busi- ness being done for the master either by direct or implied author- ity."" The employe carries with him, during the working period, whether it be day or night, all the privileges conferred by the Com- pensation Acts.'" The word "employment" will not be given a 2* (St. 1911, c. 751, pt. 2, § 1) In re Sponatskl, 220 Mass. 526, 108 N. E. 466, L. K. A. 1916A, 333 ; In re Employers' Liab. Assur. Corp., 215 Mass. 497, 102 N. E. 697, h. R. A. 1916A, 806. 28 Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368. 27 Stertz V. Industrial Insurance Commission of Washington (Wash.) 158 Pac. 256. 28 Id. 2» State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176, 151 N. W. 912. 80 Benson v. Lancashire & Yorkshire Railway Co. (1904) 6 W. C. C. 20, C. A. (Acts of 1897). 327 CIRCUMSTANCES UNDSiR WHICH COMPENSATION DDE § 102 narrow or restricted construction.*^ It is not confined to actual work. It extends to all things which the contract of employment expressly or impliedly entitles the workman to do. Thus he is en- titled to pass to and from the premises and to take his meals on the premises. But he is not entitled, and therefore he is not, em- ployed, to do things which are unreasonable or expressly forbid- den.'^ Although an office is an "employment," it does not follow that every employment by the public is an office. A man may be employed by the government under a contract, express or implied, to do an act, or perform a service, without becoming an officer. But if the duty be a continuing service defined by rules prescribed by the government, and not by contract, and an individual appointed by government enters on the continuing duties appertaining to his station, without any contract defining them, it is very difficult to distinguish such a charge or employment from an office." Some of the Acts are limited in their operation to those employ- ers having five or more employes,'* excluding members of the em- ployer's family' ° and casual employes from the count.'" Any per- 31 Winters v. Mellen Lumber Co., Bui. Wis. Indus. Com., vol. 1, p. 89. 32 Brice v. Lloyd, Ltd., [1909] 2 K. B. 809. 3 3 Chief Justice Marshall in U. S. v. Maurice, 2 Brock. 96, 102, 103, Fed. Cas. No. 15,747 ; Blynn v. City of Pontiac, 185 Mich. 35, 151 N. ,W. 681. 34 The statutes of some states limit the law to those employers having five or more employes, but the Iowa Act does not contain such a provision, and therefore applies to employers having one or more employes. Op. Sp. Coun- sel to Iowa Indus. Com. (1915) p. 6. The original Connecticut Act applied to all employers, regardless of the number of employes. Bayou v. Beckley, 89 Conn. 154, 93 Atl. 139, 8 N. C. C. A. 588. 3 5 The Connecticut Act as amended excludes members of the family from the definition of employes, and in Young v. Holcomb, 1 Conu. Comp. Dec. 482, it was held that, there not being five persons outside the fdmily em- ployed by the respondent, and he having not accepted the Act under § 2 of part B, he was not under the terms of the Act. so Clements v. Columbus Sawmill Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 161. § 103 workmen's compensation 328 son engaged in manual or mechanical labor in any shop, mill, fac- tory, or other place, by whatever name known, in which shop, mill, factory, or place power-driven machinery is used and five or more persons are employed, is engaged in an employment within the New Hampshire Act, and entitled to its benefits if he is injured by accident arising out of and in the course of the employment.*' An employer may be said to employ "four or more employes in a com- mon employment" within a provision of the Wisconsin Act that every employer of four or more employes in a common employment shall be deemed to have elected to accept the compensatory provi- sions of an Act, where he usually employs such number or does so most of the time so that such employment becomes the rule, and not the exception. The operation of such a provision as to the em- ployer is limited to the usual rather than the unusual condition of a business, trade, or occupation. Thus a farmer who does not reg- ularly employ four or more men to run his farm was not an "em- ployer" within the Act merely because he temporarily employed four or more men in threshing time and occasionally in tobacco work.'* § 103. Hazardous employments Many of the Acts predicate the right to recover compensation on the employment having been hazardous or extrahazardous.^' 37 Boody V. K. & C. Mfg. Co., 77 N. H. 208, 90 Atl. 860, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280. 3 8 (Wk. Oomp. Act, St. 1915, § 2394—5, subsec. 2) KeUy v. Haylock (Wis.) 157 N. W. 1094. 3 9 The manifest intent of the law is not to cover and compensate for ac- cidents generally, but to cover accidents occurring in those employments or occupations which are specifically classed as, or which may be found by the commission to be, extrahazardous. Guerrieri v. Industrial Insurance Com- mission, 84 Wash. 266, 146 Pac. 608. Under the proviSons of the Washing- ton Act abolishing the jurisdiction of the courts over personal injury claims, only those in the relation of employer and employ^ in "extrahazardous" oc- cupations are affected. (Workmen's Compensation Act Wash. § 1) KuUngs Wash. Indus. Ins. Com. 1915, p. 3. 329 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 103 This limitation is not essential, however, to the validity of a Com- pensation Act.*" Statutory specifications of those employments which shall be deemed hazardous have not entirely prevented con- troversy in respect thereto,*^ though it is apparently not disputed that the language of such specifications sRould not be extended by unnecessary implication*^ to employments not enumerated.*' In the construction and application of these provisions, it has been held that the term "hazardous employment" does not include the 40 The legislative power to impose the liability upon an employer who is without fault does not, in the view of the courts which have dealt with the subject, rest upon the consideration that the particular employer is con- ducting an industry in which injury is more likely to result than in some other. Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398. *i In Smith v. Price, 168 App. Dlv. 421, 153 N. T. Supp. 221, the court said : "Group 41, when read with subdivision 1 of section 3 of the Act, was evident- ly intended to apply to persons operating trucks, or the other vehicles or ap- pliances mentioned In the Act, for profit, when operated otherwise than upon tracks. The provision is plain when we read group 1, which includes the operation of all kinds of cars upon railways and inclined railways. The provisions of group 1 fairly cover all vehicles operated for profit upon tracks, and it is a fair inference that group 41 was intended to cover all other ve- hicles operated for profit. The clause 'otherwise than on tracks' was inserted in group 41 to distinguish that group clearly from group 1. The words 'on streets, highways or elsewhere' are evidently surplusage. While the expres- sion is perhaps unfortunate, it was evidently intended to make certain that the group covered all cars and trucks except those operated upon tracks, covered by group 1." 42 The rule of ejusdem generis would prevent any general language to be extended beyond the special language used. People ex rel. Kinney v. White, 64 App. Div. 390, 392, 72 N. X. Supp. 91 ; Lantry v. Mede, 127 App. Div. 557, 560, 111 N. T. Supp. 833. 43 The express mention of the matters embraced in the several groups necessarily excludes those not mentioned. Aultman & Taylor Co. v. Syme, 163 N. T. 54, 57, 57 N. E. 168, 79 Am. St. Rep. 565. While the New York Act is remedial, and should be given a liberal construction, the courts will not give the language of the Act a strained or unusual construction in order to bring within the Act an employment not declared by it to be hazardous. To- massi v. Christensen, 171 App. Div. 284, 156 N. T. Supp. 905 ; De La Gardelle V. Hampton Co., 167 App. Div. 617, 153 N. Y. Supp. 162, § 103 workmen's compensation 330 work of a janitor,** or of a person rendering services chiefly of a domestic and nonhazardous character,*' the business of running threshing machines,*' the business of dry goods and clothing,*^ or the work of one engaged in harvesting ice, such employments not ■being enumerated,** but includes a street car company,*' the case ■of an employe standing on a scaffold while painting a sign of a building,'" an employe of a brewery,'^ a teamster hauling sand,'" ** The work of a janitor is not within the enumerated hazardous em- ployment, though he be injured while working on a flagpole on top of a building. Gleisner v. Gross & Hebener, 170 App. Div. 37, 155 N. Y. Supp. 946. Workmen's Compensation Act, § 2, provides that the Act shall apply to all inherently hazardous employments, including workshops where machinery is used. Section 3 defines a workshop as a place where power-driven machinery and manual labor is used. Where a janitor in an office building was injured in scrubbing down the walls and floors of an elevator shaft beneath the cage, his rights were not governed by the Act. Eemsnider v. Union Savings & Trust Co., 89 Wash. 87, 154 Pac. 135. *5 See next section. 16 Benton v. Wilson, Bulletin No. 1, 111., p. 54. *7 Christianson v. Barber, Bulletin No. 1, 111., p. 71. *s (Wk. Comp. Act, Consol. Laws, c. 67, § 2, subd. 33) Aylesworth v. Phoenix ■Cheese Co., 170 App. Div. 34, 155 N. X. Supp. 916. Note. — Harvesting of ice was made a hazardous employment by the amend- ment of 1916 (Laws 1916, c. 622), which added this occupation to group 25. *9 A street car company, engaged in the carrying of passengers, is an ex- trahazardous employer of labor within the meaning of clause 3, par. B, of section 3; it is a business of carriage by land or water, and loading or unloading in connection therewith. Chicago Savings Bank & Trust Co. v. •Chicago Rys. Co., Bulletin No. 1, 111., p. 104. BO An employ^ standing on a scafCold, from which he fell and was killed, -while he was painting a sign on the side of a building, was engaged in a "hazardous employment." (Laws N. Y. 1914, § 3) In re Rheinwald, 168 App. Div. 425, 153 N. Y. Supp. 598. 01 (Wk. Comp. Law, § 2, group 27) In re Heitz, 218 N. Y. 148, 112 N. E. 750, affirming (Sup.) 155 N. Y. Supp. 1112. 62 (Wk. Comp. Act, § 2, groups 19, 41) Dale v. Saunders Bros., 171 App. Div. .528, 157 N. Y. Supp. 1062. 331 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 103 a department store employe,"* the business of maintaining, repair- ing, and upkeep of the wires of a telephone company,"* and the work of an express company's stable employe on whom a horse falls."" The driver of a horse-drawn vehicle is covered by the pro- visions of the Maryland Act and is engaged in an extrahazardous •employment."' An employer who comes under the provisions of the Illinois Act •either by election or operation of law brings with him all his em- ployes in any wise connected with his business, and not part only." The business of owning and operating ta loft building is not a hazardous employment under the New York Act;"' nor is the business of owning and operating apartment houses."' In New York it has been held that a wholesale grocery employe engaged in storing goods in a warehouse maintained by his employer merely for the storing of its own goods was not engaged in the "employ- ment" of "warehousing," '" that an employe injured whil^ en route B3 A department store comes withiii the Act by reason of paragraph (b) -of section 3. Stevens v. Hillman's Department Store, Bulletin No. 1, 111., p. 17. 54 (Wk. Comp. Act, § 3, par. "b") Anderson v. Ashmore Mut. Tel. Co., Bul- letin No. 1, 111.; p. 132. 05 Costello V. Taylor, 217 N. Y. 179, 111 N. B. 755, affirming 169 APP- Dlv. 905, 153 N. T. Supp. 1111. 68 (Wk. Comp. Act, § 32) American Ice Co. v. Fitzhugh, 128 Md. 382, 97 Ml. 999. 57 Gylfe V. Suburban Ice Co., Bulletin No. 1, 111., p. 167. An employe doing simply barn work for an express company that comes ^nder the Act, who is injured, is entitled to compensation, as the Act brings In all of the employes or none. Zorcic r. Adams Express Co., Bulletin No. 1, 111., p. 55. 58 Chappelle v. 412 Broadway Co. (N. Y.) 112 N. E. 569, reversing (Sup.) 155 N. Y. Supp. 858. 68 Sheridan v. P. J. Grool Construction Co. (N. Y.) 112 N. B. 568, reversing (Sup.) 155 N. Y. Supp. 859. 80 The claimant was not engaged in the "employment" of "warehousing" at the time he sustained his injuries, where his employer was not carrying § 103 workmen's compensation 332 to collect bills for produce and incidentally to sell produce, if op- portunity arose, was doing nothing in connection with the storing or warehousing of his employer's goods,°^ and tliat a carpenter en- gaged in repairing a building in which his employer manufactured macaroni was not engaged in the hazardous employment of struc- tural carpentry or repair of buildings ; the reason assigned in both cases being a statutory provision that "employment includes em- ployment only in a trade, business, or occupation carried on by the employer for pecuniary gain." *^ An employe injured while work- ing for the state upon a, state highway cannot recover against the state as his employer, since the maintenance of the highways is not on the business of warehousing for pecuniary gain. (Wk. Oomp. Law, § 3, subd. 5) Mihm v. Hussey, 169 App. Div. 742, 155 N. Y. Supp. 860. (The 1916 amendment [Laws 1916, c. 622] changed this group to "storage of all kinds and storage for hire." Hence the distinction drawn in this case is no longer applicable.) An employs of a wholesale, grocery company, which maintained a storage warehouse, was not engaged In warehousing while placing barrels of vine- gar therein. Id. 61 Canton v. Bender, The Bulletin, N. T., vol. 1, No. 8, p. 12. 6 2 If the employer in the hazardous employment uses his regular employSs in doing something which may not be a hazardous employment in itself, but the work is a part of his general employment, and incident to It, the employ^ may be said to have received the injury while engaged in a hazardous em- ployment. But, where a, man engages a carpenter by the hour to do some work upon his premises in the way of improvements, he is not engaged in the hazardous employment of structural carpentry or repair of buildings, as con- templated by group 42 of the law. Lehmann v. Ramo Films, Inc. (Sup.) 155 N. Y. Supp. 1032. A deceased carpenter, who was employed casually to re- pair the building of one engaged in the macaroni and saloon business, his employment being not under contract, was not in the employ of a company en- gaged in a hazardous business. (Consoi: Laws, e. 67) Id. An employer is not liable for the death of one while engaged in repairing for him a build- ing in which he manufactured macaroni. (Workmen's Compensation Act, § 3, subd. 5) Id. A carpenter, killed while repairing a macaroni factory, was not an employe of company engaged in a hazardous employment, although the making of macaroni is designated by the statute as dangerous. Bargey V. Massaro Macaroni Co., 218 N. T. 410, 113 N. E. 407, affirming 170 App. Div. 103, 155 N. Y. Supp. 1076. 333 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 103 a "trade, business, or occupation carried on for pecuniary gain." *' i^arining is not a hazardous occupation, nor, where the farmer en- gages a painter to paint his buildings, is the painting an occupa- tion carried on for pecuniary gain."* The business of selling glass- ware is not a hazardous employment under the New York Act.°° The test of lability is the actual work or occupation in which the employe is engaged, rather than the business of the employer.'" In other words, it is the fact of being engaged in the hazardous em- ployment which gives a right to compensation, not the fact that the employer is "carrying on or conducting the same," and that the em- ploye is injured while performing some incidental duty in connec- tion with such employment. Thus a motorman injured from being struck by an automobile on the street after he has quit work for the day, and while on his way to have his watch tested, is not in- jured while engaged in a hazardous employment, though it is a con- , dition of his employment that his watch be tested."^ And where an employe's principal duty is to sell women's clothing, he is not engaged in a "hazardous occupation" merely because he inciden- 88 (Wk. Comp. Act, § 3, subds. 3 and 5) Allen v. State (Sup.) 160 N. Y. Supp. 85. 84 McComsey v. Simmons, The Bulletin, N. Y., vol. 1, No. 6, p. 13. 65 Wilson V. C. Dorfltnger & Sons, 218 N. Y. 84, 112 N. B. 567, reversing ITO App. Div. 119, 155 N. Y. Supp. 857. 88 Lyon V. Windsor (Sup.) 159 N. Y. Supp. 162. Where the business in v^hich claimant was employed as watchman was a hazardous business, which was sometimes in operation during his hours of labor, and he was called upon at times to perform other duties than those of watchman, and was injured whUe he was concededly about his regular du- ties, he was under the Act. Fogarty v. National Biscuit Co., The Bulletin, N. Y., vol. 1, No. 6, p. 9. But where the employer's business (conducting a grocery) was not in the enumerated list of hazardous employments, and, though the employ^ as part of his duties was required to drive a horse in delivering, which would have brought him within the list, he was not fulfilling that part of his duties at the time he was injured, compensation was denied. Bartz V. Friedlander, The Bulletin, N. Y., vol. 1, No. 11, p. 11. 6T De Voe v. New York State E. Co., 169 App. Dlv. 472, 155 N. Y, Supp. 12. § 103 workmen's compensation 334 tally in the course of his duty goes to the factory to obtain gar- ments."* L/ikewise, where a traveling salesman is injured while riding in a public bus in his regular occupation, and it appears that his perils are not increased nor his safety diminished by the char- acter of his employer's business, he is not engaged in a hazardous, business, although his ^ployer's business is hazardous." Under a provision designating the construction and repair of railways a.s. hazardous employment, and providing compensation for injuries to- workmen engaged therein, a dependent cannot recover for the death of his son employed as a process server, claim adjuster, and investi- gator, since his duties were in no way hazardous, or connected with the dangerous appliances of the work.'" But, where an employe- is injured while performing an act which is fairly incidental to the prosecution of a hazardous business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employment is claimed.''^ For example, the fact that an employe of a drug man- es (Wk. Comp. Act I 2, group 38) Lyon v. Windsor (Sup.) 159 N. Y. Supp. 162. 6 8 (Wk. Comp. Act, § 2, group 320 Handle v. A. Stelnhardt & Bro., Inc. (Sue.) 160 N. Y. Supp. 2. Sickles v. Ballston Refrigerating Storage Co., 171 App. Div. 108, 156 N. T. Supp. 864, is a similar case. 70 In re Brown (Sup.) 159 N. X. Supp. 1047. 71 In re Larsen, 218 N. Y. 252, 112 N. B. 725, affirming 169 App. Div. 838. 155 N. Y. Supp. 759. Where an employ^ at the time of his injury was unloading lumber to be- used in the mill in connection with some new madiinery for mixing grain, he was engaged in the hazardous employment of milling, though not actually milling grain at the time of his injury. Bowne v. S. W. Bowne Co., The Bulle- tin, N. Y., vol. 1, No. 12, p. 17. That at the time of the injury applicant was engaged in moving freight with a hand truck did not prevent him from being- engaged in common labor in and about dock work. Wiken v. Superior Steve- dores Co., Bui. Wis. Indus. Com. vol. 1, p. 88. But an employs, hired to take charge of theater property, see to its stor- age, bringing to and removing from the stage, and from time to time to. 335 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 103 ufacturer was injured while building a shelf for use in the business, and not while engaged in the immediate process of manufacturing drugs and chemicals, did not preclude recovery of compensation where the shelf was necessary to the prosecution of the business.'^ Under the express provisions" of the New York Act it must be presumed, in the absence of some substantial evidence to the con- trary, that the business conducted by the employer was within the provisions of the statute defining hazardous employments/* If the employe is engaged in employment declared hazardous, but at times may work in a nonhazardous employment, and the employ- er fails to show all the facts, it is not unreasonable to presume that the injury is within the act/* It will throw further light on the make articles of furniture as they were needed, who fell through a trapdoor while removing some furniture from the stage, was not entitled to compensa- tion as a structural carpenter or a manufacturer of furniture, that not being the principal business of his employer, the manager of the theater, and he not being engaged in* such business at the time of his injury. Adler v. Thomas Hefsky Theater Co., Inc., The Bulletin, N. Y., vol. 1, No. 11, p. 13. A wholesale druggist must be presumed to be engaged in the hazardous busi- ness of "manufacture of drugs and chemicals." Larsen v. Paine Drug Co., 169 App. Div. 838, 155 N. X. Supp. 759. 72 (Wk. Comp. Act, § 2, group 28) In re Larsen, supra. 73 (Wk. Comp. Act, § 21) In re Larsen, supra. 74 (Wk. Comp. Act, § 21) McQueeney v. Sutphen & Hyer, 167 App. Div. 528, 153 N. Y. Supp. 554. Where deceased, at the time of his injury, was putting meat into an electric chopper and forcing it in with his fingers, and it did not appear what kind of meat he was grinding, or for what purpose it was being ground, and the employer's report gave no further details of the mat- ter, though he knew or had the means of knowing the particular purpose for which the chopper was being used at the time of the accident, the presump- tion was that the Injury did not occur outside the hazardous employment. The employer's failure to disclose matters apparently within the knowledge of him alone raised a presumption that the full particulars would not be to his advantage. (Wk. Comp. Act, § 21) Kohler v. Frohmann, 167 App. Div. .533, 153 N. T. Supp. 559. It has been said that, where one employed in a factory by persons whose business was "polishing plate and window glass, jobbers and manufacturers of mirrors and beveled plates," was injured while raising a large light of plate glass from the cutting table, the presumption was that the injury came within the statute, though it did not appear that § 103 woekmen's compensation 336 meaning of the terms used in these Acts in enumerating hazardous employments, particularly the terms used in the New York Act, to note that an assistant hotel chef injured from the accidental slipping of a knife while he is distributing meat to cooks is not en- gaged in the "preparation" of meat products ; ^° that the cutting up and beveling of glass, oj making of looking-glasses from it, may be considered a "manufacture of glass products";'* that the expres- sion "operation" includes the loading and unloading of a truck, hitching and unhitching of the horses, feeding and caring for the horses, these acts being part of the employment of operating a truck,'^ and also one engaged in loading a wagon with sand; '* that the glass was being made into looking glasses or beveled glass plates, or even was to be cut into small-sized plates, and for all that appeared he may have been packing glass which had been sold to a customer in the same condition in which it was in when received at the factory. McQueeney v. Sutphen & Hyer, 167 App. Div. 528, 153 N. Y. Supp. 554. ■^5 Wk. Comp. Act, § 2, groups 30, 33, provide that the manufacture or prep- aration of meats or meat products and the canning or preparation of food- stuffs shall be deemed hazardous employments. A butcher or assistant hotel chef, whose duty it was to distribute meat to the cooks as ordered, and whose knife accidentally slipped while he was holding a leg of mutton on the butch- er block, in consequence of which an artery was severed, resulting in hemor- rhage and death, was not within such Act, since the word "preparation" does not mean ordinary preparation of meat and foodstufEs for cooking purposes, but means a preparation by some mechanical means, or a preparation which either changes the form or the nature so as to render the material suitable for use. De La Gardella v. Hampton Co., 169 App. Div. 905, 153 N. Y. Supp. 1112. 7 8 (Wk. Comp. Act N. Y. § 2, group 20) McQueeney v. Sutphen & Hyer, 167 App. Div. 528, 153 N. X. Supp. 554. T! Smith V. Price, 168 App. Div. 421, 153 N. Y. Supp. 221. The operation of a grocery truck on a highway is a hazardous employment, not only as to the driver of the truck, but as to his helper, where both men are necessary either to load or unload the goods or to protect them in transit. (Wk. Comp. 7 8 The loading of a wagon with sand may constitute the "operation" of a vehicle drawn by horses; the operation referred to not being confined merely to moving vehicles. (Wk. Comp. Act, § 2, group 41) Dale v. Saunders Bros., 171 App. Div. 528, 157 N. T. Supp. 1062, aflirmed in 218 N. Y. 59, 112 N. B. 571, 337 CIECTJMSTANOBS UNDER WHICH COMPENSATION DUB § 103 the act of a janitor in removing ashes from a boiler is as much a part of its operation as the splitting of wood with which to fire it; "" that where employes of a club were frequently required to cut trees as part of their duties, and one of them was injured by having a tree fall on him, he was subject to the same hazard as men usu- ally are while "lumbering" or "logging";'" that the duties of a teamster properly include the loading of his wagon, and are not limited to the driving of the team, and hence one hired out by his master to haul sand for another was still engaged in teaming for his original employer rather than in the operation of a sand pit where he was loading sand into the wagon and a sand bank fell on him;'^ and that a wholesale druggist will be presuined to be engaged in the "manufacture of drugs and chemicals," *^ and a Act, § 2, group 41) Hendricks v. Seeman Bros., 170 App. Div. 133, 155 N. Y. Supp. 638. "It is contended that the helper on such a truck is not one who operates the truck. If the word "operation" is to be restricted to the actual process of driving the truck — that is, steering it and manipulating the brakes and levers — then, of course, the deceased was not engaged in the operation of this truck. But no such narrow construction should be placed upon the expression "operation of trucks." In order to operate this truck, used in the wholesale grocery business, the proprietors of the concern found it necessary to employ two men. There were other duties required of these men beyond the mere matter of driving the truck. Presimaably goods were to be load- ed and unloaded and delivered; and in driving through the streets of the city it was thought necessary by the employers, very likely, to have one per- son guard and look after the load, to prevent articles being lost or stolen, while the other person was driving the truck. All these various labors made up the duties of the men and constituted the operation of the truck. There- fore it must be held that the deceased was engaged in the operation of'the vehicle." Id. 7 8 Kiernan v. Schermerhorn, The Bulletin, vol. 1, No. 8, p. 12. 80 (Wk. Comp. Act, § 2, group 14) Uhl v. The Hartwood Club, The Bulle- tin, N. Y., vol. 1, No. 11, p. 11. 81 (Wk. Comp. Act § 2, group 19) Oostello v. Tayler, 217 N. Y. 179, 111 N. B. 755 ; In re State Workmen's Compensation Comm'n, Dale v. Saunders Bros., 218 N. Y. 59, 112 N. E. 571, affirming 171 App. Div. 528, 157 N. Y. Supp. 1062. 82 An employer, shown to be a wholesale druggist, will be presumed to be employed In the manufacture of drugs and chemicals; a drug being any HoN.CoMP.— 22 § 103 workmen's compensation 338 general utility man in his employ will be presumed to have par- ticipated in the hazardous work of handling drugs. '^ A butcher's assistant injured while going on foot to deliver some meat was not engaged in the hazardous employment either of driving a horse, as }ie usually did, or in the manufacture or preparation of meat, and, not b^ing engaged in a hazardous employment at the time of the accident, could not recover.'* One employed by a gas company in a building as a range handler or helper and required to assist in moving stoves and ranges in the building, and to and from the company's wagon, on which he occasionally rode to buildings occu- pied by defendant's customers, was not engaged in "longshore work," within a provision defining longshore work as including the loading or unloading of cargoes or parts of cargoes or moving or handling the same on any dock, platform, or place, or in any ware- house or other place or storage, where at the time of his injury he was assisting in removing a stove from a wagon into an elevator, and had stepped on the tailboard for that purpose, when the tail- board gave way, causing him to fall.'° In order for an elevator ac- cident to be compensable, it must appear that the elevator was used in one of the employments classified by the Act as hazardous.'* substance used for medicine. (Wk. Comp. Act, § 21) Larsen v. Paine Drag Co., 169 App. Div. 838, 155 N. Y. Supp. 759. 83 One employed by a wholesale druggist as a general utility man will be presumed to have participated at times in the hazardous work of hauling drugs, ttough he was not so engaged at the time of Ms death. A general utility man, engaged in an establishment where drugs and chemicals are manufactured, must be presumed to participate more or less in the work of the establishment. The deceased was engaged at the Instant of the accident In building a shelf, but in order to do this it may have been necessary to handle the drugs and chemicals in the building; that is, move them so as to have room to build the shelf, and after it was built place them upon the shelf. Larsen v. Paine Drug Co., 169 App. Div. 838, 155 N. X. Supp. 759. 8* Newman v. Newman, 218 N. Y. 325, 113 N. E. 332, affirming 169 App. Div. 745, 155 N. Y. Supp. 665. 85 (Wk. Comp. Act, § 2, group 10) Gutheil v. Consol. Gas Co. of New York, 94 Misc. Bep. 690, 158 N. Y. Supp. 622. 80 Wilson V. C. Dorflinger & Sons, 218 N. Y. 84, 112 N. E. 567. 339 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 103 An' elevator which runs up and down is not a "vehicle," within a classification embracing the operation of vehicles otherwise than on tracks.*^ The University of Illinois, by reason of the fact that it operated a freight elevator in its building, and, in the conduct of its business enterprise, stored, used, or permitted the use of mol- ten metal and explosives, became a hazardous employer of labor.'* "Maintenance of a structure," within the Illinois Act, includes main- tenance of water mains in connection with a waterworks plant.*" Whether a particular occupation is extrahazardous is not always so clear as to preclude controversy. A carpenter employed by a farmer for no particular time, but to continue work on a grain crib until it is fully completed, is not engaged in the occupation of "building" or in what can be considered an extrahazardous busi- ness where he is injured by a metal splinter flying from his ham- mer.'* A ragpicker working for a contractor engaged merely in combing refuse for articles of value, and not in the manufacture of drugs or fertilizers, is not in the employment of a "manufacturer of drugs and chemicals, * * * medicines, * * * fertilizers, including garbage disposal plant," '^ nor, where he is engaged at the time of his injury in picking rags on a dump at the foot of a street from whence refuse is carried to sea in scows, is he engaged in "longshore work" declared by the New York Act to be an extra- hazardous occupation.*'' The operation of a passenger and freight elevator in a mercantile house is not an extrahazardous or inher- 87 (Wk. Comp. Act, § 2, group 41) Wilson v. C. Dorfllnger & Sons, 218 N. T. 84, 112 N. E. 567, reversing 170 App. Div. 119, 155 N. Y. Supp. 857. 8 8 North V. University ol Illinois, Bulletin No. 1, 111., p. 63, 8 9 Brovyn v. Decatur (1914) 188 111. App. 147. »o (Wk. Comp. Act, §§ 1, 3b) Uphoff v. Industrial Board of 111., 271 111. 312, 111 N. E. 128. »i (Wk. Comp. Act, § 2, group 28) Tomassi v. Christensen, 171 App. Div. 284, 156 N. r. Supp. 905. 02 (Wk. Comp. Act, § 2, group 10) Id. § 103 workmen's compensation 340 ently dangerous occupation such as is covered by this Act."' An employe engaged at the time of his death in driving piles on the beach and aiding in driving sheeting is engaged in an extrahazard- ous occupation."* Where a Washington employer conducts any department of his business as an extrahazardous business, his workmen are entitled to the protection of the Washington Act. It does not matter whether such extrahazardous business is the principal business or the incidental business of the employer.'" Thus one assisting in the installation of an electric meter under the direction of his su- perior was engaged in an extrahazardous employment, though his usual occupation was that of truck driver and storekeeper's help- er.°° Though this Act authorizes compensation only to persons in hazardous and extrahazardous employments, it is not essential that the injury shall have arisen out of the work.°^ One who was engaged in managing business buildings, and as a department there- of employed a maintenance force, was liable for payment of pre- miums to the Washington Industrial Insurance Commission; lia- bility therefor not being determined by the character of the par- ticular business engaged in, but attaching to any department of the business which may be extrahazardous.'^ Extrahazardous oc- cupations unlisted in this Act will be included in existing classes whenever possible." "Construction work" on tunnels includes 9 3 (Wk. Comp. Act, §§ 2, 4, class 5) Guerrieri v. Industrial Insurance Com- mission, 84 Wash. 266, 146 Pac. 608. 94 (Wli. Comp. Act, § 2, group 11) Mazzarisi et al. v. Ward & TuUy et al., 170 App. Dlv. 868, 156 N. X. Supp. 964. 95 Wendt V. Industrial Ins. Com., 80 Wash. Ill, 141 Pac. 311, 5 N. C. C. A. 790. 96 Eeplogle V. Seattle School Dist, 84 Wash. 581, 147 Pac. 196. 97 gtertz V. Industrial Insurance Commission of Washington (Wash.) 158 Pac. 256. 9 8 State V. Business Property Security Co., 87 Wash. 627, 152 Pac. 334. 9 9 (Wk. Comp. Act Wash. § 2) Rulings Wash. Indus. Ins. Com. 1915, p. 4. 341 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 104 work done in constructing a railroad tunnel, though railroad con- struction work is given a separate classification.^ The enumeration of extrahazardous work includes civil engineers in connection with logging, concrete manufacture, quarrying, and mining ; ^ also city, county, and state civil engineers engaged in field work.' A car- penter was engaged in an extrahazardous business where he was killed in a repair shop while turning on electric power to operate a grindstone and sharpen his chisel.* Such enumeration excludes the business of wholesale and retail handling of inflammable oils." The occupation of cooks and flunkies is considered nonhazardous.' The construction of a manhole from the surface of a street to under- ground pipes near a railroad track has been held not extrahazard- ous work,^ as has also the work of one employed as a helper to the driver of an automobile truck.* § 104. Federal Act The persons entitled to compensation under the federal Act of 1908 are artisans and laborers injured in the course of their em- ployment by the United States in any of its manufacturing estab- lishments,° arsenals,^" or navy yards,^^ or in the construction of 1 State V. Chicago, M. & P. S. E. Co., 80 Wash. 435, 141 Pac. 897. 2 (Wk. Comp. Act Wash. § 2) Rulings Wash. Indus. Ins. Com. 1915, p. 4. 8 Id. * Wendt V. ludus. Ins. Com., 80 Wash. Ill, 141 Pac. 311, 5 N. C. 0. A. 790. (Wk. Comp. Act Wash. § 2) Rulings Wash. Indus. Ins. Com. 1915, p. 4. Bid. 7 (Sess. Laws Wash. 1911, p. 345) Puget Sound Traction, Light & Power Co. V. Schleif, 220 Fed. 48, 135 O. C. A. 616. 8 Collins V. Terminal Transfer Co. (Wash.) 157 Pac. 1092. » The following have been held to be manufacturing establishments: The Government Printing Office, where chiefly skilled and unskilled laborers are employed, and where printing, binding, and bookmaking is done (In re Blaine, Dec. 1, 1908, Op. Sol. Dept. of L. p. 117; [Dec. Comp. of Treas.] Op. Sol. 10 See note 10 on following page. n See note 11 on page 343. § 104 workmen's compensation 342 Dept. of L. 779) ; the carpenter shop in the quartermaster's shop at the United States Military Academy, West Point, N. Y. (In re McCreery, Op. Sol. Dept. of L. 134) ; a lighthouse depot at which a material portion of the work con- sists in the manufacture and repair of materials, appliances, and vessels (In re Wygant, Op. Sol. Dept. of L. 118) ; the Bureau of Engraving and Printing, where ink, paper, and other materials are fashioned by workmen into bank notes, treasury certificates^^etc, and sometimes bound into book form (In re Clark, Op. Sol. Dept. of D. 120) ; a sawmill at Ft. Meade, at which lumber is sawed and dressed and shingles are made (In re Herron, Op. Sol. Dept of Lt 124) ; a blacksmith shop, at which bolts, drills, and other articles and tools used in irrigation work are made and repaired (In re Fenton, Op. Sol. Dept. of L. 127) ; an electric light and power plant of an executive depart- ment, at which ice is also made (In re Pyrah, Op. Sol. Dept. of L. 129) ; the mail bag repair shop of the. Post Office Department, at which a variety of mail equipment is made (In re claim Kennedy, Op. Sol. Dept. of L. 131); the mechanical plant of the Smithsonian Institution, at which steam power and electric light are generated, and cases, cages, and museum furniture are made (In re Strong, Op. Sol. Dept. of L. 132) ; a carpenter and machine shop connected with an Indian industrial school at which mission furniture is made (In re Clarke, Op. Sol. Dept. of D. 133) ; and an army quartermaster's depot, at which clothing and tents are made, is a manufacturing establishment (In re Nicholas, Op. Sol. Dept. of L. 125). The following have been held not manufacturing establishments: The lo- cal office of the Weather Bureau at Detroit, though a printing press is there operated (In re McAllister, Op. Sol. Dept. of L. 121) ; a lighthouse tender, a vessel attached to a lighthouse depot and used in transporting workmen and supplies, and in the placement and upkeep of aids to navigation (In re Lam- bert, Op. Sol. Dept. of L. 122) ; the Naval Observatory (In re Lamkin, Op. Sol. Dept. of L. 128); a laboratory used only for making tests of materials (In re Meissner, Op. Sol. Dept. of K 131) ; and an aqueduct and filtration plant, the function of which is to collect, purify, and deliver city water (In re Schlosser, Op. Sol. Dept. of L. 133). It has been further held that hauling and trucking oats from car to dock by laborer in Army Quartermaster's Department is not work in or in connec- tion with a manufacturing establishment (In re Gray, Op. Sol. Dept. of D. 118) ; that the driving of piles by an employs of the Bureau of Fisheries at work about a Iffbster pound is not work done in a manufacturing establish- ment (In re Feltis, Op. Sol. Dept. of L. 123) ; and that a storekeeper-gauger of the Internal Revenue Service is not employed in a manufacturing establish- ment (In re Roberts, Op. Sol. Dept. of L. 127). 10 Neither the Naval Observatory (In re Lamkin, Op. Sol. Dept. of L., 128), nor the Military Academy at West Point, is an arsenal (In re Mackay, Op. Sol. Dept. of L. 136). Carpenter work on an icehouse for Ft. Robinson, a mile distant, is not work in an arsenal. In re Olson, Op. Sol. Dept. of L. 136. 343 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 104 river and harbor or fortification work,^^ or in hazardous employ- ment of construction work in" the reclamation of arid land or the 11 The Naval Academy at Annapolis Is a navy yard (In re Brown, Op. Sol. Dept. of L. 137), as is also the naval experiment station at Annapolis (In re BuUard, Op. Sol. Dept. of L. 140) ; but a naval observatory is not (In re Lamkln, Op. Sol. Dept. of L. 128). An employe at a naval station, also designated a coaling depot, is employed in a navy yard (In re Burke, Op. Sol. Dept. of L. 139), as is also a gardener at a naval training station (In re Pangburn, Op. Sol. Dept. of L. 138) ; but a laundress at a naval home — an asylum for disabled navy officers, seamen, and marines — ^is not employed in a navy yard (In re Carey, Op. Sol. Dept. of L. 139). 12 An artisan repairing cables in the underground electric system at Ft. Adams is engaged in the construction of fortification work, which refers to work authorized by the fortification appropriation acts. In re Buzby, Op. Sol. Dept of L. c. 141. A machinist working on gun carriages at a seacoast forti- fication, though under the Ordnance Department rather than the .Engineer Department, is engaged in the construction of fortification work. In re Moore, Op. Sol. Dept. of L. 143. Claimant was employed as carpenter in the Quartermaster Department of the War Department at Ft. Clark, Tex., when his eyes were injured by the reflection of the sun from the white rocks and white sand. It was held that the place of employment properly came under the designation of "construction of * ' * fortification work." (This opin- ion alters the former holding on this subject in the cases of James Ryan and W. B. Burgess.) In' re Kearney, Op. Sol. Dept. of L. 147. A laborer on the United States dredge Dalecarlia, while engaged in reclamation work in Anacostia river, funds for which were appropriated 'by Congress, the District of Columbia reimbursing the general government for one-half the expenses of such work, was employed in the construction of river and harbor work within the meaning of the Act. In re Bristow, Op. Sol. Dept. of L. 150. Work or duties performed in an establishment not expressly included in the act, though similar to those performed in an establishment which is expressly included, does not of itself bring the former place within its provisions. Engi- neer of steamer attached to Key West Barracks, Fla., not entitled to compen- sation as being engaged in construction of river and harbor or fortification work. In re Jerman, Op. Sol. Dept. of D. 152. The Washington (D. C.) Aqueduct, Great Falls, Md., though under control and supervision of the Office of the Chief of Engineers, Wlar Department, is not comprehended within the term "in the construction of river and harbor or fortification work." In re Rollins, Op. Sol. Dept. of L. 153. A laborer employed at Ft. Huachuca, Ariz., in a rock-crushing plant used to crush rock for the preparation of con- crete required In new construction work at that post, is engaged In the con- § 104 workmen's compensation 344 management and control of the same/* or in hazardous employ- ment under the Isthmian Canal Commission.^* As a matter of course, government employes not within the terms of the Act, either specifically or by necessary implication, are not entitled to compen- sation.^ ° Persons rendering services chiefly of a domestic and non- « struction of fortification work. In re Montes, Op. Sol. Dept. of L. 153. Car- penter work on an icehouse for Ft. Robinson, a mile distant, is not done in the construction of fortification work; the "construction" of such work does not include the erection of an ice plant. In re Olson, Op. Sol. Dept. of L. 141. 13 A machine attendant at the ice plant of the Roosevelt Dam is engaged in hazardous employment (In re Biggs, Op. Sol. Dept. of L. 155), as is also a ditch rider, required to ride at night and discover and attend to breaks in a canal (In re Redburn, Op. Sol. Dept. of L. 154), and one employed in a branch of the forestry service under the Indian OflSce of the Interior Department (In re Ives, March 10, 1915, Op. Sol. Dept. of D. p. 175), But a clerk em- ployed at a soda fountain in a store under the Reclamation Service is not engaged in hazardous employment (In re Arnold, Op. Sol. Dept. of L. 158), nor is a cook's helper, working in cooking quarters (In re Jones, Op. Sol. Dept. of L. 155). Work authorized by Act March 1, 1907, to construct a reservoir for storing water for irrigating lands on an Indian reservation is construction work In the reclamation of arid lands (In re Arnold, Op. Sol. Dept. of L. 156), as is also work in a quarry to obtain rock for damming the Colorado river to pro- tect a valley and supply water for irrigation (In re Skill, Op. Sol. Dept. of L. 157). 14 The following were engaged in hazardous employment: A policeman employed in the Isthmian Canal Zone (In re Golden, Op. Sol. Dept. of L. 159) ; a laborer with a gang at work clearing ground, using a machete in cutting trees (In re Pedez, Dec. 17, 1910, Op. Sol. Dept. of L. 171); a time inspector required to attend men occupied in actual construction work of Isthmian Canal (In re Van Sittert, Op. Sol. Dept. of L. 169 ) ; a water boy serving water to men employed in actual construction work of Isthmian Canal (In re Garsia, Op. Sol. Dept. of Ii. 166) ; a hospital orderly in attendance upon persons violently insane (In re Small, Oct. 13, 1909, Op. Sol. Dept. of L. 164) ; a plumber and tinner working on roofs and stacks (In re Thennard, Op. Sol. Dept. of Ii. 167) ; and an ambulance teamster in the Canal Zone (In re Thompson, Op. Sol. Dept. of L. 165). IB In re Fernandez, Op. Sol. Dept. of L. 187. A skilled laborer employed in the oflOice of the Supervising Architect of the Treasury Department is not covered by the Act, as that branch of the service 345 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 104 hazardous character are not entitled to compensation.^* An em- ploye of a manufacturing establishment is entitled to compensation, was not included, either specifically or by implication. In re Briscoe, Op. Sol. Dept. of L. 776. Persons not entitled to compensation: A carpenter working on improvements to the water supply system at West Point. In re Mackay, Op. Sol. Dept. of L. 176. A rural mail carrier. In re Morgan, Op. Sol. Dept. of L. 177. A line- man employed by the Signal Corps of the Army. In re Lawrence, Op. Sol. Dept. of L. 178. An elevator conductor in a local federal building. In re Cassidy, Op. Sol. Dept. of L. 180. An electrician's helper employed in an executive department at Washington. In re Fowler, Op. Sol. Dept. of L. 180. A stevedore employed in the army transport service. In re Hogan, Op. Sol. Dept. of L. 180. A laborer in a local custom house. In re Washington, Op. Sol. Dept. of L. 181. A painter employed by an Indian agent at an Indian school. In re Cadwalader, Feb. 15, 1909, Op. Sol. Dept. of L. 182. A laborer employed in painting at an army barracks. In re Posey, Op. Sol. Dept. of L. 183. A launch operator in the Quartermaster's Department of the War Department. In re Eaton, Op. Sol. Dept. of L. 183. A deck hand on a vessel attached to Governor's Island, N. Y. In re Cowan, Op. Sol. Dept. of L. 184. A laborer employed at a national park. In re Johnson, Op. Sol. Dept. of L. 185. A laborer employed in the construction of a power plant in the congres- sional buildings. In re Smith, Op. Sol. Dept. of L. 186. A powder man em- ployed by the Government Road Commission of Alaska. In re McCormick, Op. Sol. Dept. of L. 186. A quartermaster on a lighthouse tender (law since amended, Dec. 11, 1909, No. 2206). In re Veseth, Op. Sol. Dept. of L. 185. A seaman on a vessel of the Naval Auxiliary Service. In re Evenson, April 30, 1912, Op. Sol. Dept. of L. 187. A laborer employed by the United States in the work of raising the Maine. In re Fernandez, Op. Sol. Dept. of L. 187. 18 In re Beisinger, Op. Sol. Dept. of L. 161. Persons not engaged in hazardous employment: A janitor rendering serv- ices chiefly of a domestic character. In re Jarvis, Op. Sol. Dept. of L. 174. A cook in a hotel kitchen. In re Keisinger, Op. Sol. Dept. of Li. 161. A laborer employed in a mess hall under the Quartermaster's Department, Canal Zone. In re Traviso, Op. Sol. Dept. of L. 161. A scytheman in a grass-cutting gang. In re Migeles, Op. Sol. Dept. of L. 162. A scavenger occupied in collecting garbage and hauling it away in carts. In re GiU, Op. Sol. Dept. of L. 170. A hospital laborer performing the manual service usual about a hospital. In re Eenwick, Op. Sol. Dept. of L. 172. A cemetery laborer, wheeling stone in a barrow. In re Carney, Op. Sol. Dept. of L. 173. A laborer on a delivery wagon. In re Palacios, Op. Sol. Dept. of L. 162. A telephone operator. In re Btienne, Op. Sol. Dept. of L. 163. A water boy delivering water to grass- § 105 workmen's compensation 346 though at work elsewhere at the time of injury,^'^ and not engaged in manufacturing operations.^* A navy yard employe, though in- jured while at work on a naval hospital outside the yard, is em- ployed in a navy yard.^* Division II. — ^Arising in ths Course op Empi,oymEnt § 105. In general It is essential to the right to compensation that the injury shall have been received in the course of the workman's employment; that it shall have been received while he was doing some act rea- sonably incidental to his work.^° An accident or injury is so re- ceived where it occurs while he is doing what a man in like employ- ment may reasonably do within a time during which, he is so em- ployed, and at a place where he may reasonably be during that time.^^ "Course of employment" includes acts in which the em- cutting gangs at work about various commission properties. In re Price, Op. Sol. Dept. of L. 163. A storeroom clerk. In re Innlss, Op. Sol. Dept. of L. 160. 17 In re Melling, Op. Sol. Dept. of L. 129. 18 In re Nicolas, Op. Sol. Dept. of L. 125. i» In re Blount, Op. Sol. Dept. of L. 137. 20 Edgley v. Firth, 1 Cal. I. A. C. Dec. 651 ; Gallup v. City of Pomona, 1 Cal. I. A. C. Dec. 242 ; Moor v. Maricliester Liners, Ltd. (1910) 3 B. W. O. C. 629. Under the provisions of section 21 of article 20 of the Constitution, it is only injuries incurred by an employ^ "in the course of the employment, that the Legislature may commit to a state Industrial Accident Board the power to redress. McCay v. Bruce, 2 Cal. I. A. 0. Dec. 975. 21 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458. An injury occurs in the course of the employment, when it occurs within the period of employment at a place where the employ^ may reasonably be, and while he is fulfilling the duties of his employment, or engaged in doing something incidental to it. Larke v. John Hancock Mut. Life Ins. Co., 90 Conn. 303, 97 Atl. 320. "In the course of" points to the place and circumstances under which the ■347 CIRCUMSTANCES UNDER WHICH COMPENSATION DUH § 105 Accident takes place and the time when it occurred. Fitzgerald v. Manchester Liners, Ltd., [1910] A. O. 498, 500; McNicol's Case, 215 Mass. 497, 102 N. E. •697, L. R. A. 1916A, 306; Bryant v. Flssell, 84 N. J. Law, 72, 86 Atl. 458, 460; Larke v. John Hancock Mut. Life Ins. Co., 90 Conn. 303, 97 Atl. 320. A park caretaker was acting within the scope of his employment, where he was mowing grass on the street outside the park area, according to custom And under directions of the park commissioners, and it appeared that the work was within the scope of the work authorized by a city ordinance. Superior v. Indus. Com., 160 Wis. 541, 152 N. W. 151, 8 N. C. C. A. 960. Accidents and injuries held to have heen in the course of employment: Where an employs who had gained permission to ride in his employer's eleva- tor was thrown against the opposite wall of a hall in getting off, which acci- dent caused a strangulated hernia. Herrick v. Employers' Liability Assurance Co., Ltd., 2 Mass. Wk. Comp. Cases, 122 (decision of Com. of Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 217 Mass. Ill, 104 N. B. 432). Where the employe, a chocolate packer, was obliged by her employer to work in a packing room where the temperature ranged from 60° to 65° Fahr. and facial paralysis, developing gradually, resulted from the employment conditions. Dalton V. Employers' Liability Assur. Corp. Ltd., 2 Mass. Wk. Comp. Cases, 231 (decision of Com. of Arb.). Where the employe received a fatal injury while cranking a coal delivery wagon, the strain of his effort in turning the <;rank causing a small blood vessel to break in the pial membrane of the brain. Parrell v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 423 (decision of Com. of Arb.). Michigan. Where a section foreman was run over by a train. Papinaw v. Grand Trunk Ry. Co. (Mich.) 155 N. W. 545. Minnesota. Where a teamster employed to deliver furniture was driving along the street with a load of furniture, and was killed by a heavy load of steel beams which broke the hoisting apparatus on a building under construc- tion and feU upon him. Mahowald v. Thompson-Starrett Co. (Minn.) 158 N. W. 913. "New Yorh. Where an employe worked continuously, for 21 hours, except 1% hours off for meals, during which time he had to climb 216 steps three different times, besides being on his feet most of the time, and was found dead in his chair in a saloon a half hour after quitting, death being due to angina pectoris. McMurray v. J. J. Little & Ives Co., 3 N. Y. St. Dep. Rep. 395. 'New Jersey. Where a workman with two others was pulling a -hand «haln connected with a block operating a mechanism which caused a lifting chain to pass through the block and lift a steel girder, and the lifting chala became clogged, and, being forced through, split the block, and the workman was struck and injured. Scott v. Payne Bros. Inc., 85 N. J. Law, 446, 89 Atl. ©27. Galiforrda. Where a bowling alley has the pins set up in its alleys by boys, who work irregularly as they may happen to be present and needed, and who receive as pay 25 per cent, of the sum collected from the games which they respectively serve, and such boys are injured while setting pins. Weaver V. Eyster & Stone, 1 Cal. I. A. O. Dec. 563. Where a night watchman, while making his rounds through the premises, fell through an opening in the floor § 105 workmen's compensation 348 to the floor below, and was killed. Carter v. Hume-Bennett Lumber Co., 2 Cal. I. A. C. JDec. 42. Where an employ^ was directed to polish brass rails in the engine room of a vessel, and went inside the railing the better to perform his task, although going inside the rail was attended by some danger, and was injured by falling Into the machinery. Riose v. North Pacific Steamship Co., 2 Cal. I. A. C. Dec. 57. Where a physician, hired to give medical treatment to incapacitated employes of a manufacturing concern, was injured while re- turning from a visit to an ailing person who he had been led to believe was an employe of such concern, but who, in fact, had not yet been put upon the pay roll, though assigned to a job. GetzlafC v. Bnloe, 3 Cal. I. A. C. Dec. 18. Where a janitor, without specific instructions, puts up shelves for his greater convenience, and in preparing the shelving uses a band saw and sustains injuries, consisting in the loss of a thumb and finger; such service being one which any employs might reasonably perform, even in the absence of specific instructions, and the performance of it being incidental to his duties. Mead- dows V. Smith Bros., 2 Cal. I. A. C. Dec. 344. Where a "spieler," whose duties were to attract and persuade the crowd to attend his employers' amusement show, was bitten and poisoned by a "Gila monster" he was exhibiting. Mer- ritt V. Clark & Snow, Inc., 2 Cal. I. A. C. Dec. 983. Where the employe engaged by a corporation to inspect the work of a general contractor In the construction of a tunnel, upon the Ughts going out, went into the trans- former house to ascertain what the trouble was. It appearing that, although he had no knowledge of electricity, his duties required him to report any unusual condition he might find, and was accidentally killed by unprotected wires. Duden v. City and County of San Francisco, 2 Cal. I. A. C. Dec. 1067. lUmoi^. Where an employe, engaged as a wagon washer, had cranked auto- mobiles at the instance of the machinist, and a number of times in the pres- ence of the foreman, without objection, and was injured while so cranking the machine. Cromowy v. Sulzberger & Sons Co., Bulletin No. 1, 111., p. 37. Where a miner working in the mines Inhales poisonous gases which cause his death. Giacobbia v. Kerno-Domewald Coal Co., Bulletin No. 1, 111., p. 196. Where an employe, whose duty and custom it was to do whatever was found necessary to be done in a shop, was injured in the performance of his work. Whaley v. Hudson, Bulletin No. 1, 111., p. 186. Connecticut. Where the claim- ant's husband, an insurance collector and agent, was run down and killed by an automobile when about to board a car for the purpose of keeping an appointment and making a collection, after having just left another house where he collected. McKay v. Metropolitan life Insurance Co., 1 Conn. Oomp. Dec. 380. Where a watchman aggravated the pain in a frozen toe by stubbing it, and, becoming unconscious, fell on the stone floor, sustaining bruises of the back which developed into an abscess, causing disability. Dorrance v. New England Pin Co., 1 Conn. Comp. Dec. 24 (aflirmed by superior court on appeal). Where a church sexton, part of whose admitted duties was to preserve order on the church premises, was injured by stumbling over a wheelbarrow while going to stop a fight between two boys on the grounds. Loveland v. Parish 349 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 105 ployer has acquiesced, though they are not done in a strict perform- ance of the employe's duties.^^ An employe is not, like a part of a of St. Thomas Church, 1 Conn. Comp. Dec. 14. Where an Iron ^bar fell on the workman's foot while he was taking an Inventory for his employer on a holi- day. Reese v. Tale & Towne Mfg. Co., 1 Conn. Comp. Dec. 154. Ohio. Where a father and his son were employed by a land company, the father's duty being to care for a small bam and the horses stabled therein, to feed and clean them and hitch them up for the farm foreman, milk the cows, mow the lawns, and do other work as he was directed to do by the officers or foreman of the land company, and the son's duty being to take care of a large barn, in which were stabled about 36 horses and a Jersey bull, it being the son's duty to feed and care for the stock, clean the stable, and do anything he was directed to do by the officers of the land company or its foreman, and in the performance of their respective duties the father and son occasionally as- sisted each other with the knowledge and acquiescence of the land company and its officers, and the father was found unconscious and fatally injured in the bam of which the son had supervision, his ribs being broken and breast crushed. White v. Scioto Land Co., vol. 1, No. 7, Bui. Ohio Indus. Com. Federal. Where the employe, with others, was furnished living quarters on a boat by the government, and fellow employes who had been on shore were returning for the night, and decedent started to get them in a small boat, and was drowned. In re House, Jan. 1914, Op. Sol. Dept. of L. 325. England. Where a ship's watchman was found drowned in the dock, the ambit of his employment covering both the ship and the quay. Richardson v. Ship Avon- more (Owners of), (1912) 5 B. W. C. C. 34, C. A. Accidents not in course of employment: Where the members of a partner- ship entered into a contract with a person to install certain machinery at his own expense and one of the partners living at the place of business aiding in imloading a wagon containing machinery, billed to the contractor, and was accidentally injured while so doing. Anderson v. Perew, 2 Cal. I. A. C. Dec. 736. Where an employe, after receiving a slight injury, to which bandages soaked in turpentine were applied, accidentally set fire to the bandages while lighting his pipe. Isaacson v. White Lumber Co., 2 Cal. I. A. 0. Dee. 819. Where the claimant had a blister form on his index finger while about his employment, and subsequently, while mending a pair of shoes at home, the awl which he was using slipped and penetrated the finger, and blood poisoning resulted. Palmeri v. Grelst Mfg. Co., 1 Conn. Comp. Dec. 669. Where the medical evidence, though conflicting, tended strongly to show that indigestion and gastritis, from which the claimant was suffering, were probably never due to muscular strain, as claimed by the workman and his physician. Graves V. Connecticut Mills Co., 1 Conn. Comp. Dec. 657. 2 2 Where an employe of a "scenic railway" in an amusement park goes up on a framework to look for a hat lost by a passenger, it being the proprie- § 105 workmen's compensation S^Of machine operated by him, fixed to precisely the mechanical move- ments he must perform in order to discharge his industrial function.. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside of the course of his employment.^' When an injury arising from a. risk of the business is*suffered while the employe, though not strictly in the line of his obligatory duty, is still doing something incidental to the performance of his work, in going to or from the work' or in the necessary intervals of a discontinuous employment,, he will ordinarily be entitled to compensation.^* Other necessary tor's custom to allow such practices for the accommodation of patrons and so that his employes may secure rewards, and while so doing the employe- is accidentally struck by a car and killed, the accident happened in the course of his employment. Lane v. Joyland Co., Inc., 2 Cal. I. A. C. Dec. 872. Where a stableman required to act as watchman and protect his employer's property against intruders, it being situated where trouble might occur, al- though the employer had neither authorized nor forbidden him to carry or use a pistol for that purpose, was accidentally shot while cleaning a pistol which he had procured for his own protection in the performance of his duties, the accident arose in the course of the employment. Benson v. Hutch- inson C, 2 Cal. I. A. C. Dec. 901. 23 Bode V. Shreve & Co., 1 Cal. I. A. C. Dec. 6. Where a workman's hand was crushed when he attempted, while engaged, in operating a triphammer, to remove a tin can placed on the lower die by a bystander, his injury arose in the course of his employment, though the bystander placed the can on the die for fun, In which the injured workman took no part. (Workmen's Compensation Act, § 1) Knopp v. American Car & Foundry Co., 186 111. App. 605. 2* Mann v. Glastonbiiry Knitting Co., 90 Conn. 116, 96 Atl. 368; (St. 1911, § 2394 — 10) International Harvester Co. v. Industrial Commission, 157 Wis. 167, 147 N. W. 53, Ann. Cas. 19ieB, 830. Where a workman employed on a subway almost continually for eight months was told by his foreman, on appearing ready for work on a certain morning, that he need not work that day, the foreman thinking him to be intoxicated and in a condition unfit for work, and where he tripped and fell while leaving the subway, he was a regular employ^, in the performance of his duties, and entitled to compensation. Kiernan v. Priestedt Underpinning Co., 171 App. Div. 539, 157 N. X. Supp. 900. Physician injured. — Where a physician, under contract to attend the in- capacitated employes of a manufacturing concern, is Injured while return- 351 CIECDMSTANOES UNDER WHICH COMPENSATION DTJH § 10& conditions being present, an injury is compensable when received by the employe while guarding or protecting the employer's prop- erty," enforcing his authority as foreman,^" taking care of horses ing from a visit to such an employ^ the injury is sustained in the course of the employment, although he intended to and djd avail himself of the same trip as a convenient occasion to treat a private patient, since the trip de- rived its character from its main purpose of treating a contract patient. GetzlafC v. Enloe, 3 Cal. I. A. C. Dec. 18. ^li Accidents were in the course of the employment: Where a mill super- intendent, in pursuance of his general duties of ordering trespassers ofC the premises and in executing special instructions to the same efCect, was shot and killed by a trespasser. In re Reithel, 222 Mass. 163, 109 N. B. 951, L. R. A. 1916A, 304. Where a night watchman was injured during working hours, at a place where he was accustomed to go in performing his duties, from being shot by oflScers who mistook him for a robber. In re Harbroe, 223 Mass. 139, 111 N. E. 709. Where a night watchman is murdered by burglars whom he has surprised on the premises of his employer. Mason V. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. Where a city marshal was murdered by persons whom he is seeking to arrest as suspicious char- acters. Colson V. City of Burbank, 2 Cal. I. A. C. Dec. 127. Where a bartender is shot dead upon his refusal to throw up his hands at the order of two hold- up men attempting to rob a saloon at midnight, and while the bartender wa& trying to reach the adjoining room to get a revolver. Henning v. Henning, 2 Cal. I. A. C. Dec. 733. Where a night watchman, while in the discharge of his duties, was shot by a burglar and died. In re Margaret Evans, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 55. 28 An injury received by a railroad section foreman in an altercation with one of a gang of men over which he had supervision, which grew out of his. justifiable efforts to maintain his authority as foreman and to protect the property of his employer intrusted to his care, is an injury in the course of employment within the meaning of the Boynton Act. Western Indemnity Co. V. Pillsbury,.2 Cal. I. A. C. Dec. 454, 170 Cal. 686, 151 Pac. 398. Where a foreman is threatened with assault by a turbulent and unruly workman, it is not a defense to his application for compensation for injury sustained by such assault that he did not apply to the police power of the state prior to the attack to establish his authority and protect him. The maintenance of discipline by every foreman of a gang is an issue of personality. The fore- man who cannot maintain order and discipline among his men and secure obedience to his directions soon ceases to be a foreman. He Is therefore not taken out of the course of his employment by standing his ground, instead § 105 woekmbn's compensation 352 used in his work,^^ or doing his employer's work at home.'* It does not preclude an injury from having been received in the course of the employment that the employe was injured by fellow work- of going to a police officer for protection and reinforcement. Rudder v. Ocean Shore Railroad Co* 1 Cal. I. A. O. Dec. 209. Where an assistant foreman was assaulted by two workmen whom he had just reprimanded for not doing their work properly, the accident arose in the course of his employment. Yume \. Knickarbocker Portland Cement Co., 3 N. Y. St. Dep. Rep. 353 (affirmed in 169 App. Div. 905, 153 N. Y. Supp. 1151). A foreman whose duty in part was to enforce discipline, Injured while going to stop a fight between two of his men, was injured in the course of employment. In re Warton, Op. Sol. Dept. of L. 315. 27 Where a driver in the employ of a brewery was injured from being struck by a coemploy6 while he was unharnessing and caring for his horses, he was Injured in the course of his employment. In re Heitz, 218 N. Y. 148, 112 N. E. 750, affirming 155 N. Y. Supp. 1112. Where a teamster was injured while putting his horse in its stall after having unhitched it from the truck, he was injured In the course of his employment. Smith v. Price, 168 App. 421, 153 N. Y. Supp. 221. Where one engaged as teamster, whose special duty was to care for his team, feed same, and make deliveries to customers of tha employer, after his day's work took his team to the stable, and while unharnessing and feeding the team, passed behind the team of a fellow employ^ and was kicked by one of the horses, the injury arose in the course of his employment, and he was entitled to compensation. Gylfe v. Suburban Ice Co., Bulletin No. 1, 111., p. 167. An employe's duty was to drive a light delivery wagon and wheA not so employed to work in the shop of the employer. It was also a part of his duty to take care of the horses which he drove and to take the horse and wagon to his home in the suburbs on Saturday afternoon, in order to give the horse Sunday pasture and to drive him back to the city on Monday morning. He was injured on a Monday morning, while caring for the horse, preparatory to driving to the city. The Commission held that the injury was received in the course of employment (In re James Chase, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 53), as it was, also, where a driver's helper, a part of whose duty was to care for horses used in the business, was injured while taking care of such horses (In re Eva I. Craig, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 38). 2 8 Where claimant worked by the day for a merchant tailor, doing the work in his own home, and being injured there, he was injured "in the course of his employment away from the plant of his employer," and entitled to compensation. (Wk. Comp. Act, § 2, group 38; section 3, subd. 4) Fiocca v. Dillon, The Bulletin, N. Y., vol. 1, No. 6, p. 13. 353 CIECUMSTANCES UNDER WHICH COMPENSATION DUB § 106 man/' or bitten by a dog,^° or was attempting to escape from a dan- ger of which he has been warned.'^ § 106. Term of employment The term of employment is not necessarily identical with the time during which services are being performed for the employer. But where, by the terms of the employment, an employe is to be- ready at any hour of the day or night to perform certain duties, it does not follow that every accidental injury which he may receive during the course of the twenty-four hours is compensable. To have all the requisites for compensation present, it is essential that 2 9 Where an employg, known to be ticklisli, is carrying a bucket up a stair- way, and a passing fellow employe playfully gives him a poke in the ribs with a newspaper, causing him to turn around and accidentally slip and fall down the steps, such accident happened in the course of employment. Flint v. Coronado Beach Co., 2 Cal. I. A. 0. Dec. 395. The injury was received in the course of the employment: Where the dece- dent, while at work on one of the lower floors of a building in the course of erection, was killed by the falling of a piece of plank from one of the upper stories, presumably caused by one of the workmen of the principal contractor, who was working on the same building. Biddinger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70. Where an employ§, while engaged in per- forming work he was employed to perform, was assaulted and killed by a fellow employe. In re Margaret M. Clark, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 125. Where a stenographer was feloniously shot and killed by a fellow employe while she was taking shorthand notes dictated by her employer. In re Anna Schwenlein, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 136. Where a foreman, while in the discharge of his regular duties, was shot by an em- ploye whom he had discharged. In re Chas. F. Roll, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 63. An employe whose arm was broken, without negligence or misconduct on his part, by being struck by an angry foreman, was injured in the course' of his employment. In re Flemmings, Op. Sol. Dept. of L. 225. 3 Where a workman was bitten by a dog while he was engaged in the work he was employed to perform, he was injured in the "course of employ- ment" (In re Wm. Miller, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 46), as also was a workman bitten by a mad dog while attending to his duties (In re Bailey, Op. Sol. Dept. of L. 297). 81 Bode v. Shreve & Co., 1 Cal. I. A. 0. Dec. 6. HoN.OoMP.— 23 § 106 workmen's compensation 354 he be, in fact, discharging some duty in the course of his employ- ment.'^ The term of employment includes time spent in traveling on the employer's business," and a reasonable latitude of acts not in furtherance of the business, but done during working time.** A 32 Gallup V. City of Pomdma, 1 Cal. I. A. 0. Dec. 242. S3 Where the frost4)ite which produced a lesion causing erysipelas and death was received by the employe while he was performing his duties of soliciting insurance and collecting premiums, such duties requiring him to make long rides without regard to weather conditions, the injury arose in the course of his employment. Larke v. John Hancock Mut. Life Ins. Co., 90 Conn. 303, 97 Atl. 320. While a salesman is actually engaged in traveling In his employer's business and in the line of duty, the risks incident to the various modes of convey- ance he may take are incidental to the employment, without regard to the hour of the day when the risks are incurred. Travelers' Insurance Co. v. Spaulding & Bros., 1 Cal. I. A. C. Dec. 575. Where a moving picture actress was sent out from the studio with the other members of the company to pro- duce a scene a half mile away, and was injured while returning to the studio on horseback to put on her street clothes, such injury was received in the course of her employment. Jansen v. Balboa Amusement Producing Co., 1 Cal. I. A. C. Dec. 477. Where it was the duty of an employ© of a water company to inspect the distributing system of the company, and remedy de- fects found by or reported to him, immediately or when needed, in his own judgment, regardless of the hours of service, and he had received a report of trouble in the company's pipe lines and had started to search for the defect, but was injured by an automobile accident, while on the way, the injury was received in the course of his employment. Phillips v. Chanslor-Canfleld Mid- way Oil Co., 1 Cal. I. A. C. Dec. 580. Where a civil engineer, sent from San Francisco to Eureka to survey a quarry and bring his notes back to the home office for inspection and consultation, was drowned on the wrecking of the steamship Hanalei, whUe he was returning to San Francisco, the accident arose in the course of Ms employment and is compensable. Hutchinson v. Pacific Engineering & Construction Co., 2 Cal. I. A. C. Dec. 600. 3 4 Where a peach cutter in a cannery stepped momentarily from her place of work to talk to a fellow employe, and while doing so was injured by un- guarded machinery, the accident occurred while the employe was in the course of her employment. The industrial orbit of the work toeing done must include such reasonable latitude as is consistent with common practice, common sense, and the work to be done. London & Lancashire Guarantee & Accident Co. v. Romberger, 2 Cal. I. A. C. Dec. 38. Where a man, hired at a fixed salary to make the regular collections of rentals and premiums due to an established 355 CIECDMSTANCES UNDER WHICH COMPENSATION DUB § 106 workman is injured in the course of employment where she has finished one kind of work upstairs and is going downstairs to be- gin work for which she is paid in a different way, and is injured on the stairs while in transit.'^ Where it is the duty of an employe to go from one job to another '° or to places away from the employ- er's office and then to return thereto to make a report, he is, at all such times, acting in the course of his employment.'^ The same is true of a delivery boy injured from being thrown from a bicycle furnished by his employer after he has called at his home and taken lunch, and while he is on his way to make a delivery. '* "Course real estate and insurance agent, had his working hours fixed from 8 a. m. to 6 p. m., but did not require all of the time for making collections, and, though the employer controlled his whole working day, he allowed him to solicit new business in the time not required for the regular collecting, and paid him for such soliciting a percentage of the profit therefrom, while soliciting new busi- ness he was an employ^ and acting In the course of his employment, and was entitled to the benefits of the act when injured. Trobitz v. Cameron, 1 Cal. I. A. C. Dec. 550. The employe was engaged by a government official on one day to proceed to a certain point on the following day, carrying with him for a distance of eight miles certain tools and equipment of the government which were neces- sary for the work to be done. Before reaching the destination the employ^ was injured by one of the tools he was carrying. He was injured in the course of his employment, which began when he started on the journey with the tools. In re Connor, Op. Sol. Dept. of L. 330. 3 5 Wheeler v. Contoocook Mills Corp., 77 N. H. 551, 94 Atl. 265. 36 Where a workman was hired to go around trimming trees, and had on his person.at the time of the injury a list of places to go, one after the other, and was run down by an automobile while going from one joh to another, the accident arose in the course of his employment. Kunze v. petroit Shade Tree Co. (Mich.) 158 N. W, 851. A workman, taking a trip on a barge furnished by his employer, in order that he might be ready to assist in unloading the cargo when it arrived at the destination, was injured in the course of his employment where he fell off the barge and was drowned, even though he had no duties to perform during the voyage. W. B. Rideout Co. v. Pillsbury (Cal.) 159 Pac. 435. 37 Turgeon v. Fox Co., 1 Cal. I. A. O. Dee. 68. 38 (Wk. Comp. Act, pt. 2, § 1) Beaudry v. Watkins (Mich.) 158 N. W. 16. § 106 workmen's compbxsation 356 of employment" may include a case where an employe returns for his pay '* or tools,*" or is working overtime, or endeavoring to save his master's property,*^ but not where an employe, after being sus- pended or discharged, goes to the place of the accident, in violation of orders,*^ or in his own interests, and not the interests of his employer,*^ or return? to the place of employment after discharge 88 Employes going to get their wages, or returning from getting tbem, liave been held to have been injured in the course of their employment in cases where a collier, who was knocked down and injured by an engine on his employer's premises when he went for his wages, at 12:30 p. m. which was the proper time, he haying quit work at 5 a. m. (Lowry v. SheflBeld Coal Co., Ltd. [1909] 1 B. W. C. C. 1, O. A.) ; where a mill worker, whose con- tract of service ended on Wednesday, went to the mill on Friday to get her pay, as was the custom in the trade, and met with an accident while leaving (Riley v. Holland & Sons, Ltd. [1911] 4 B. W. O. O. 155, C. A.) ; and where a workman who was required by his employers to go to a certain place in or- der to get his wages, and paid for the time spent in going and returning, got on a wrong tram car on his way back, and was struck while getting off by a passing car (Nelson v. Belfast Corporation [1909] 1 B. W. O. C. 158, C. A.). *» A miner, who was injured while going down the mine, with permission, to fetch his tools, several days after his employment had ceased, was in- jured in the course of his employment. MoUoy v. South Wales Anthracite Colliery Co. (1911) 4 B. W. C. C. 65, C. A. 41 Munn V. Industrial Board, 274 111. 70, 113 N. E. 110. The fact that at the time of the accident the workman's service for the day, according to the terms of his employment, had ended, did not require a reversal of a finding that the accident was received in the course of his employment. Id. 42 A collier, who had been suspended, and Instead of going to the pit bot- tom remained, contrary to orders, in a "pass-by,"' and two hours later met with an accident there, was not injured in the course of his employment. Smith V. South Normanton Colliery Co., Ltd. (1903) 5 W. O. C. 14, O. A. (Act of 1897). 43 Where a collier was dissatisfied with his pay note on Saturday, and, after resolving not to resume work until the note was altered, returned on Monday to see the undermanager, who refused to yield, and was knocked down by a , wagon and killed when he was about to leave the premises, he was not within the course of his employment, having gone to the mine in his own interests, and not in those of his employer. Phillips v. Williams, 4 B. W. C. O. 143. 357 CIRCUMSTANCES DNDEE WHICH COMPENSATION DUE § 106 seeking reinstatement.** Nor does it ordinarily include the time after hiring and before beginning work.*^ The captain of a lighter may fairly be said to be engaged in its "operation" continuously within the New York Act from the beginning to the end of the round trip, including the loading and unloading of the craft, so long as he works upon it.** The federal Act does not follow a man after he has voluntarily severed the relation of employer and employe so as to give him the benefits of the Act in case he should afterwards become incapacitat- ed,*' except in certain special cases where his claim is based on an injury received while in the service, it appearing that he knew noth- ing of the Compensation Act and quit because he was unable to continue work.** An employe who after an injury resumes work pursuant to orders, being assigned to lighter duties, and is again ** Where an employ 6 residing In Eureka was discharged by his employer, and thereafter came by boat to San Francisco to plead for reinstatement, his coming not being at the request of the employer, and was drowned in the wreck of the ship upon which he had taken passage, his death did not occur In the course of his employment, and his widow is not entitled to a death benefit therefor. Merritt v. North Pacific Steamship Co., 2 Oal. I. A. C. Dec. 237. The employ^, a longshoreman, had finished his work for the subscriber at 7 o'clock on the night before the fatal injury occurred, and, after making an unsuccessful application for work the next day, was killed by ,a passing train while crossing the railroad tracks. It was held not to be an injury in the course of the employment, and the widow was not entitled to compensation. Ganley v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 159 (decision of Com. of Arb.). 45 An employ^, Injured between the time of entering into a contract of em- ployment and actually beginning the work for which he was employed, the injury being in no wise occasioned by the work to be performed, is not in- jured in the course of his employment. In re John Tucker, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 86. 48 Edwardson v. Jarvis Lighterage Co., 168 Ajjp. Div. 368, 153 N. Y. Supp. 391. 47 In re Howley, Nov. 11, 1909, Op. Sol. Dept. of L. 686. 48 In re Watson, Op. Sol. Dept. of L. 730, 733. § 107 workmen's compensation 358 injured, the injury resulting in immediate incapacity, established a new claim.*" § 107. Going to work While there is a difference between the beginning of employment and the beginning of ^ork,°" or going to work on the employer's time,"^ an accident to a workman on the way to work is not ordi- narily in the course of employments^ Exceptions have been noted 49 In re Fletcher, Op. Sol. Dept. of L. 744. BO Holmes v. Great Northern Eailway Co. (1900) 2 W. C. O. 19, O. A. 61 Where the evidence shows that the employ^ was allowed to ride to and from work on the time of his employer, he is entitled to compensation for an accident occurring while riding to work. Hiserman v. Garside, 1 Cal. I. A. C. Dec. 516. 52 Hills V. Blair, 182 Mich. 20, 148 N. W. 243. Accidents not arising in course of employment: Where a baggage solici- tor, whose only duty was to solicit on incoming trains, and whose employ- ment each morning began when he arrived at the station and boarded the train, fractured an arm by falling on the sidewalk while hurrying to the depot to catch an outgoing train. Lawton v. Los Angeles Transfer Co., 2 Oal. I. A. C Dec. 1063. Where a boy, employed in a general retail store and ac- customed to buy vegetables each morning for his employer at a market on the direct route from his home to the store, was accidentally injured by a street car, while on his way to work and before reaching the market. Ten- nant v. Ives, 2 Cal. I. A. C. Dee. 862. Where a woodsman, having gone to town from the lumber mill and logging camp, was to return to work again at 6 a. m., and while returning from the mill to the camp at midnight, along the track of a railway on the premises which was operated by the employer, slipped and fell on a trestle and fractured his leg, it appearing that, al- though this was not an unusual way for men to get to the camp, it was not a necessary way, as the company ran a regular train In the early morning to convey workmen to the camp. Hutchinson v. Elk Kiver Mill & Lumber Co., 2 Cal. I. A. C. Dec. 816. Where a building superintendent requested permis- sion to go with the contractor in the employer's automobile to the work 20 miles away, because his own automobile was out of repair, and took an em- ployi5 with him, and the automobile turned over and killed the employ^. Up- ton V. Stahlhuth, 2 Cal. I. A. C. 539. Where a workman was injured while stepping off a car on his way to work, about 200 feet from where his work was, and before time for him to begin work. McWilliams v. Haskins, 1 Conn. Comp. Dec. 324. Where a workman was injured on a highway on his 359 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 107 to this rule in cases where the accident occurred while the employe was on the employer's premises,^' or after reporting for duty."* A reasonable margin is to be allowed him to get on to the prem- ises and to get to the place where he is to do his work, and if dur- way to work. In re Gilkey, Op. Sol. Dept. of L. 288. Where a workman who was hired to renovate the interior of a church found the door locked, and in climbing over some railings to get into the churchyard, and thence into the church through a window, injured his foot, with fatal consequences. Sheriff v. Wilson (1901) 3 F. 661, Ct. of Sess. (Act of 1897). Where an en- gine driver, before time for him to begin work at the engine shed, went for bis own purposes in an opposite direction along the line to a signal box, and was run over and killed after leaving it. Benson v. Lancashire & York- shire Railway Co. (1904) 6 W. C. C. 20, C. A. (Act of 1897). Where a work- man, who by arrangement between his employers and a railway company, for whom they had contracted to work, was permitted to cross the line to reach his work on a siding, was run over on a foggy morning and killed. Holness V. Mackay and Davis (1899) 1 W. C. C. 13, C. A. Where a miner slipped on some steps about a mile away from his work, in a short cut from one point In the public road to another, which had been provided by the employers for the workmen's convenience, and there being evidence to show that they knew the steps were not safe. Walters v. Staveley Coal and Iron Co., Ltd. (1911) 4 B. W. C. C. 303, H. L. Where a workman who was directed to report for work on board a ship in dock at 7 a. m., from which time his wages would start, was given a return railway ticket to the nearest station, and on his return next morning missed the gangway because of fog, and fell between the ship and the dock wall. Nolan v. Parter & Sons (1910) 2 B. W. C. C. 106. Where a workman, who had been engaged to load a van, was promised em- ployment in unloading it if he were on the spot when the van arrived, and met with an accident while cycling to the place. Perry v. Anglo-American Decorating Co. (1910) 3 B. W. C. C. 310. 53 See § 109, post. 5 4 Where a workman was injured from falling on the sidewalk while walk- ing to his place of work after reporting to his foreman and receiving his in- structions for the day, he was injured in the course of his employment. Milwaukee v. Althoff, 156 Wis. 68, 145 N. W. 238, L. R. A. 1916A, 327. Where a motorman of a street car company is required to report at the car barn five minutes before taking his car out, and has to walk several blocks from the barn to the place where he is to take his car, and is injured by a street accident whUe walking to his car, there being no evidence to show that he was going out of the way upon any business of his own, such employ^ is injured while in the course of his employment. Ketron v. United Railroads of San Francisco, 1 Cal. I. A. 0. Dec. 528. § 107 workmen's compensation 360 ing that time he is doing something which is for the benefit of the employer as well as himself, such as getting necessary refreshment, he is engaged in his employment. As said by Collins, M. R. : "It is clear that you cannot look at the moment when he begins his work as the moment when he gets into the employment." °° The 5 5 Sharp V. Johnson & C*, Ltd. (1905) 7 W. C. 0., at page 30, C. A., Where the engineer of a fishing boat went to work in the dark of early morning, crossing from the wharf over two other larger vessels to where he had left his boat moored alongside another vessel because of stormy weather the preceding night, and on his arrival found his boat had been changed in the night to its usual berth alongside a pier near by, the captain calling out in the dark for him to "come over here," the falling of the engineer into the water and drowning while proceeding to return over the other two vessels was an accident in the course of his employment. Slattery v. Ocean Acci- dent & Guarantee Co., 2 Cal. I. A. G. Dec. 522. A night foreman was required to report at his place of employment for duty at 5 o'clock p. m. The premises consisted of several acres of land, the factory building in which the foreman was employed being located near the center- of the tract. A cinder roadway, leading from a public street through the grounds on which the factory building was located to the factory build- ing itself, was entirely upon the premises' of the employer, and was used for both vehicles and pedestrians in traveling from the public street to the fac- tory building. While going to work, about 30 minutes before time to report for duty, and traveling along the cinder roadway toward the factory, the foreman was run down and killed by an automobile truck owned and oper- ated by the American Express Corapany. The Gommission held that the in- jury occurred while the foreman was in the course of his employment. In re Mary McCarthy, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 190. Workmen arrived by train at 6:10 a. m., 20 minutes before time to begin work, and the employers knew that they arrived early and provided facilities for them to obtain refreshment before beginning work, and required them to deposit tickets within 3 minutes after 6 :30 a. m., but allowed them to do so before, and one of them was injured by accident while on^the employer's premises at such time; the injury was in the course of the employment. Sharp V. Johnson & Co., Ltd. (1905) 7 W. C. O. 28, G. A. (Act of 1897). It was likewise where a lighterman was told to pump the water out of a barge, and, arriving before the tide had receded far enough for him to work, was injured while getting into a small boat to sit down and wait. May v. Ison (1914) 7 B. W. C. G. 148, C. A. Where a herder who had to visit stock on two farms, distant from each other was setting out after tea on a bicycle from his home, on one farm, and a dog on his own property upset him, caus- ing his death, the accident, though not out of, was in the course of, the em- ployment. Greene v. Shaw (1912) 6 B. W. C. C. 573, O. A. 361 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 107 preparation necessary for beginning work after the employer's premises* are reached is a part of the employment." No break in the employment is caused because the workman is running to punch the time clock/' unless he has previously abandoned his work to seek his own pleasure.^* A person returning to his place of work from lunch enters upon the course of his employment only when he reaches the place where his first duties are to be performed."® 08 Terlecki v. Strauss, 85 N. J. Law, 454, 89 Atl. 1023. Where the employ^, who fell from the fifth story of a building under con- struction on which he had been working, was on the premises on the morning after a rain in the expectation of beginning work later in the day, and had gone to the fifth story to make ready for work, the accident arose in the course of his employment. CampaneUa v. Frank Stola Constr. & Bldg. Co., The Bulletin, N. Y., vol. 1, No. 12, p. 17. A roadmaster of a railroad request- ed an interpreter to get ten men, such as he had secured before, and bring them to a certain siding for the purpose of going to work, at the same time giving him a pass for himself and ten men, from the place where they were to be secured to the place of work. After arriving at the place of work, one ot the men, while removing his baggage, was struck by a train and killed. The evidence was held by the Board to be sufficient to justify the conclu- sion that the deceased was in the employ of the railroad company, and that the injury arose in the course of the employment. Patterson v. Bloomington, D. & C. K. Co., Bulletin No. 1, 111., p. 101. 5 7 (Pub. Acts Mich. [Ex. Sess.] 1912, No. 10). In Eayner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, L. E. A. 1916A, 22, Ann. Cas. 1916A, 386, the court said: "We are well satisfied that the atjcident was an industrial accident within the meaning of the Compensation Act, and arose 'out of and in the course of his employment.' * * * At the time of the accident Rayner was in the performance of a duty imposed upon him by his em- ployer. When the noon whistle blew, it was obligatory upon him, before leaving the place of his employment, to punch the time clock. The per- formance of this duty, if not the proximate cause, was a concurring cause, of his injury." 58 An employ^, running with others to ring the time clock at the noon hour, after having been playing ball, was not Injured in the course of his employment. In re Kramer, Op. Sol. Dept. of L. 322. 6 9 Where an employ^, returning from lunch to the place where he is em- ployed, or to some other place to get necessary papers to use at the ^lace where he is employed, is struck by an automobile while crossing the street, he is not actirig in the course ot his employment at the time of such acci- § 108 workmen's compensation 362 Where the work of a collector and superintendent of drivers, who starts at 7 o'clock in the morning with instructing drivers, and later makes collections at the residences of customers without returning to the employer's premises, commences at the employer's offices at 7 o'clock in the morning, but is later to be performed outside of the employer's premises, the protection of the Compensation Act follows him until he reaches his home at night, but does not cover him while on his way to the employer's premises in the morning, in the absence of tasks to be performed by him before reaching such premises.'" Where an employe called out on emergency gets wet and exhausted from wading through wet snowdrifts on his way to his place of employment, and is compelled to bpgin and continue work without any chance of removing his clothes, contracting pneu- monia thereby, it does not bar recovery that his clothes got wet while he was on his way to work, instead of after work began."^ § 108. Returning from work Although a man is not, as a rule, doing the work for which he was employed when he has left- off work and is returning home,°^ dent (Gallup v. City of Pomona, 1 Cal. I. A. C. Dec. 242) ; nor is an employ^ who is ordered to come back after supper for overtime work, the time con- sumed in eating supper to be included in his pay for overtime, and is killed accidentally by a train on railroad tracks outside the premises when re- turning (Leite v. Paraffine Paint Co., 2 Cal. I. A. G. Dec. 1022). so Zbinden v. Union Oil Co. of California, 2 Cal. I. A. C. Dec. 616. 61 Linnane v. JEtna Brewing Co., 1 Conn. Comp. Dec. 677 (appeal pending in superior court). 6 2 Hills V. Blair, 182 Mich. 20, 148 N. W. 243; Poulton v. Kelsall (1912) 5 B. W. C. G. 318, C. A. Where an employ(5 was killed in a railroad yard forming no part of the employer's plant, while he was returning home, and the contract of em- ployment did not provide for transportation, compensation was not recovera- ble. (St. 1911, c. 751, pt. 2, § 1) Leveroni v. Travelers' Ins. Co. (Fumicello's Case), 219 Mass. 488, 107 N. E. 349. Where a newspaper reporter, whose duties required the gathering of news in the town in which he lived and in the town two miles away where the 363 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 108 there is a margin both of time and of place allowed to the work- man after his day's work is over before it can be said that anything that happens to him is no longer a happening arising in the course of his employment."' The employment covers not only the time during which the workman is engaged in his ordinary labor, but paper was published, was injured while returning at the close of his day's work to his home on the usual and best bicycle route, on a bicycle furnished by his employer, his leg being crushed by a passing automobile, he was not performing a service as reporter at the time of injury and therefore not entitled to compensation. State Compensation Insurance Fund v. Lemon, 2 Cal. I. A. C. Dec. 507. In Atkins v. Scranton, 1 Conn. Comp. Dec. 34, it was held that where a workman after his day's work cutting ice put up his tools, and started home by a short cut across the pond instead of by the public highway, and while crossing the pond slipped and fell, that his injury did not arise in the course of the employment. An employs, injured while on his way from his place of employment to a railroad station, where he expected to take a car for home, is not entitled to compensation on account of the injury. In re Herbert W. Anderson, 'vol. 1, No. 7, Bui. Ohio Indus. Com. p. 90. A policeman who was required to be on duty during certain hours of each day, and who was subject to call at any time, day or night, was run down and killed by a train while walking along the right of way of a railroad company. At the time he was killed he had been on duty the number of hours specified by the rules of the department and had left police headquarters to go home. The reason for his presence on the right of way of the railroad company was not satisfactorily explained by the evidence. The Commission held that the conclusion that he was killed while in the course of his employment was not justified. In re Frances E. Lyman, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 182. 6 3 Hills V. Blair, 182 Mich. 20, 148 N. W. 243; Graham v. Barr (1913) 6 B. W. C. C. 412. "It is a fallacy to assume that the 'employment' ceases necessarily when actual work ceases. It includes going from the place of work." Riley v. Hol- land & Sons, Ltd. (1911) 4 B. W. C. O. 155, C. A. Where a driver for a creamery is accustomed dally to take a wagon load of butter in the afternoon from the creamery to his home in another town, de- livering a portion of the butter on his way and storing the rest at his house overnight, to be delivered the following day, and is killed by the overturning of his automobile after he has made his last delivery for the afternoon and is on his way home to store the butter overnight, such accident occurs in the course of his employment and while he is performing a service growing out of his employment Golden v. Delta Creamery Co., 2 Cal. I. A. 0. Dec. 744. § 108 workmen's compensation 364 also a later time during which he is passing from the surroundings of his employment into surroundings unrelated thereto.^* In the 6* Hills V. Pere Marquette R. E., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 32. Applicant's decedent, an employfi of respondent, was struck 'and killed by one of respondent's trains while on his way home to dinner. There were two ways of leaving the freight yard, one by way of a public highway, known as Mill street, and the other through respondent's yard. The highway was not in good condition for travel, so it was the custom of the men, which was tacitly acquiesced in by respondent, to leave by way of the yard, and decedent, leaving by that way, was killed. Respondent contends that, inasmuch as de- cedent had quit work for the forenoon, the relation of master and servant did not exist at the time of the occurrence of the accident, and further that de- cedent should have left by way of Mill street. The Commission held that an employs is still his master's servant while leaving his place of employment, or doing such acts as are incident to or connected with such leaving. Id. An employe was injured while attempting to leave his employer's premises, through a gate provided for the entrance and exit of employfis, which was temporarily closed on account of an excavation immediately outside the gate. Another means of exit had been provided for the use of employfis when leav- ing the employer's premises. The injury consisted of a broken wrist, occa- sioned by the employe falling into the excavation Immediately outside the gate through which he attempted to pass. It was held that the injury was sus- tained in the course of his employment. In re M. H. Sutter, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 147. An employe, after completing his day's work, and while still on his employer's premises, was injured while going from the locality where he was working to the office of the paymaster to obtain his pay, the traversing of that portion of the premises on which the injury occurred not being forbidden by the rules or direction of the employer, and injury not purposely self-inflicted. The injury was sustained in the "course of employ- ment" and the injured employe is entitled to compensation. In re R. V. Phil- lips, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 49. An employe who, after sus- pending work for the day and while preparing to leave his employer's prem- ises, negligently walked over a pile of spindles to the place where his coat and hat were hanging to get them, and was injured by one of the spindles turning and spraining his ankle, was Injured in the course of his employ- ment, and is entitled to compensation. In re Earl W. Schroeb, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 132. The accident occurred in the course of employment: Where a laborer on a river barge, on which he ate and slept, was, after the close of his day's work, proceeding from the shore to the evening meal on the boat, and fell off the boat and was drowned. Valente v. Fay, 2 Cal. I. A. C. Dec. 514. Where the applicant employe caught her right hand in the swinging door of the main entrance to the building, the fourth floor of which was occupied by the busl- 365 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 108 I case of one working at a machine the benefit of the statute is not limited to the time he is actually employed thereat. He must have time to reach his machine and get away from his employer's prem- ises. The preparation necessary for leaving the employer's' prem- ises when the work is over is a part of the employment. A work- man is none the less in the course of employment because he is> changing his working clothes for his street clothes."" If the em- ploye is still engaged in the performance of his duties, he is in the course of his employment, though he is returning home.®' How- ness of her employer, while she was leaving the building after the close of her day's work. Chaboya v. Becker, 2 Gal. I. A. O. Dec. 958. Where an acci- dent happened whUe fire fighters, after extinguishing the fire, were prepar- ing to leave the premises, without undue lingering or loafing. Mazzlni v. Pa- cific Coast Ey., 2 Cal. I. A. 0. Dec. 962. The Injuries were received in the course of the employment where a workman was injured by a fall while in act of leaving his shop at the close of the day's work (In re Fahey, Op. Sol. Dept of Ii. 283) ; where a watchman returning from work was Injured after alighting from a labor train, while walking on the adjoining track, which was the only way of reaching the high- way leading to his home (In re Forde, Op. Sol. Dept. of Li. 309) ; and where a workman employed in an arsenal was injured while "ringing out" at a time clock at the close of the day's work (In re Rugan, Op. Sol. Dept. of L. 285). 85 Terlecki v. Strauss, 85 N. J. Law, 454, 89 Atl. 1023. Where a factory employs quit work at her machine shortly before noon, and was, in accord- ance vrith custom, combing particles of wool out of her hair preparatory to going home, at a point away from her machine, when her hair was caught in other machinery and she was injured, the accident arose out of and in the course of her employment. Id. This case cites Gare v. Vorton Hill Colliery Co. [1909] 2 K. B. 539, holding that, where a collier was injured while leav- ing his work and crossing Unes of rail controlled by his employers, the acci- dent arose out of and in the course of the employment, though he had three ways to go home, the way used being the shortest and one commonly used by workmen with the knowledge and consent of the employers. An employs suspended work about a minute before time to quit for lunch and proceeded to a locker on the premises of his employer. A fellow em- ploys, who was in the locker room, rolled up a pair of overalls, and in a spir- it of fun threw them at hun, striking him in the face and injuring his eye. The injury was sustained while in the course of employment. In re Thomas Mack, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 120. 66 Where an employs of an irrigation company, whose duties are to super- vise the distribution of water, is Injured while returning to his home after § 108 workmen's compensation 366- ever, where a laundry driver is accustomed, after putting up his team for the night, to gather or leave laundry while riding home on his bicycle, but was not in fact so doing on the evening when he was struck by an automobile, the accident cannot be said to have been received while acting in the course of his employment.'^ And where claimant was accttstomed to mail letters at the post office on her direct route home after her day's work, such duty not altering- her course from the plant of her employer to her home, an injury received after posting the letters and continuing toward home does not arise in the course of her employment.*' It is a question of fact up to what point of time the employment can be said to con- tinue after the workman has ceased working. As already said, while he is leaving the place where he is employed, his employment would still continue. But, though his employment may continue for an interval after he has actually ceased working, yet there must come a time when he can no longer be said to be engaged in his em- ployment in such a way that an accident happening to him can be said to have arisen out of and in the course of his employment. his early momlng rounds, incidentally for his breakfast, but partly to receive telephoned orders, complaints, and the like, he is injured in 'the course of his employment. Matney v. Azusa Irrigating Co., 2 Cal. I. A. O. Dec. 898. Where it was the duty of an employe of a gas company to read meters, shut off the gas when patrons of the company moved, collect accounts, and deliver orders, his employment not ending at any particular hour or place, but being continuous, he was at all times, except when at home, under the protection of the Compensation Act, and Is entitled to compensation for disability for ac- cidental injury by collision of his motorcycle with an automobile, in a public street, while on his way home, although not actually engaged in the perform- ance of a service of his employment at the specific time and place of the ac- cident. (Harris Welnstock, Commissioner, dissented on the ground that the employe was not, at the time of the accident, performing service growing out of and incidental to his employment, and was not acting within the course of his employment as such employe, as provided in section 12(a) (2) of the Work- men's Compensation, Insurance, and Safety Act.) Ferguerson v. Royal Indem- nity Co., 1 Cal. I. A. C. Dec. 11. 87 Ogilvie V. Bgan, 1 Cal. I. A. C. Dec. 79. 6 8 Pogue V. Nassau Light & Power Co., 1 N. T. St. Dep. Rep. 429. 367 CIRCUMSTANCES TJNDBE WHICH COMPENSATION DUE § lOS There must be a line beyond which the h'abihty of the employer cannot continue, and the question where that line is to be drawn in each case is a question of fact."* Where an engine driver when go- ing off duty has to report himself at the station which can only be reached by walking for some distance down the line, and while so doing is killed by a down train which to his knowledge has been signaled, after passing by a few yards the first available egress from the line, a footpath leading to a gate not always unlocked, he is killed in the course of his employment.''" In an English case the court held that, although there might be cases where the employment of a workman ceased so soon as he left his work, yet a commercial traveler was on a different footing, his business being to travel, and that from the time he left his home on his employers' business, and whilst engaged therein and until he returned to his home he was serving in their employment.''^ In a Massachusetts case the employe, a traveling salesman, was a pas- senger on a Boston elevated car on the day of the injury, and in- tended to meet a customer at a certain point. He abandoned this intention, however, and decided to go home. After passing the point where he at first intended to leave the car and meet the cus- tomer, and before he arrived home, he was injured. Suit was first brought against the Boston Elevated Railway Company and a de- cision filed against the claimant. While the case was pending, on 6» Smitli V. South Normantown Colliery Co., Ltd. (1903) 5 W. C. C. 14, C. A. (Act of 1897). Where an engineer, after leaving his engine and turning in his time slip, went on down the tracks for several hundred feet, and across a public high- way, and was then struck by a train and killed, the accident did not occur in the course of his employment. Ames v. New York Central R. K. Co., The Bulletin, N. Y., vol. 1, No. 12, p. 17. TO Todd V. Caledonian Railway Co. (1899) 1 F. 1047, Ct of Sess. (Act of 1897). Ti Dickinson v. Barmak, Ltd. (1908) L. T. Jo. 403, C. A. A commercial traveler, out canvassing, who, intending to return home, missed his way tO' the raUway station in the dark, fell into a canal, and drowned, sustained art accident in the course of his employment. Id. § 109 workmen's compensation 368 exceptions, the employe claimed compensation under the statute. His expenses, from the time of leaving home until he returned thereto, were paid by his employer. The Commission held that he was not entitled to compensation.''' § 109. Premises of efliployer In applying the rule that the employment is not limited by the exact time when the workman reaches; the scene of his labor and begins it nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment, one of the tests is whether the workman is still on the premises of his employer. This, while often a helpful con- sideration, is by no means conclusive. A workman might be on the premises of another than his employer, or in a public place, and yet be so close to the scene of his labors, within its zone, environ- ments, and hazards, as to be in effect at the place and under the pro- tection of the act, while, on the other hand, as in case of a railway stretching endless miles across the country, he might be on the premises of his employer, and yet be far removed from where his contract of labor called him. The protection of the law does not extend, except by special contract, beyond the locality, or vicinity, of the place of labor.''* There are many cases where an accident 72 Muir V. Ocean Ace. & Guarantee Corp., Ltd., 2 Mass. Wk. Comp. Cases, 172 (decision of Com. of Arb.). 7 3 Hills V. Blair, 182 Mich. 20, 148 N. W. 243; Hoskins v. Lancaster, 3 B. W. C. 0. 476. In Caton v. Summerlee & M. I. & S. Co., 39 , Scotch L. R. 762, it was held that the injury did not arise out of and in the course of the employment of a laborer who, at the conclusion of his day's work, was knocked down and killed by a passing engine 230 yards from where he had been working, while walking home along a private railway track belonging to his employer, which many of the men employed at the same place were in the habit of using in going to and from their work. The court there said: "The deceased at the time of the accident had ceased his work, had left the place where he did it, and was on his way home. He had at the time no duty to fulfill to his mas- ter, and the master had no duty to fulfill towards him. The relation of mas- 369 CIECDMSTANCES UNDER WHICH COMPENSATION DUE § 109 may arise while a man is on the master's premises, but not engaged in active work, and whether he is there going about the premises in pursuance of the necessities of life, such as eating, drinking, res- piration, and other things that need not be mentioned, and is not doing anything that is either wrong or against his contract or out- side his employment, in such a case, no doubt, the accident must be treated as one arising out of his employment. It has been so held in cases in both Scotland and England. But, on the other hand, if a man is doing something unlawful, or if his accident is due to something that is being transacted between him and other people with which the master has nothing to do, such facts might ter and servant had ended for the day, he having fulfilled his work and left the place where his work was being done." An employe, injured while on his employer's premises, may be entitled to compensation, though he was not actually engaged in the performance of the work he was employed to do. In re Katharina Schatz, Vol. I, No. 7, Bui. Ohio Indus. Com. p. 60. In Barnard v. H. Garber & Co., 1 Conn. Comp. Dec. 572, where an aged workman fell on the steps of his employer's establishment when entering to begin work in the morning, on account of their slippery condition, it was held the Injury arose in the course of the employment In Penfield v. Town of Glastonbury, 1 Conn. Comp. Dec. 637, where a janitor was injured by slip- ping on the ice while passing from the coal shed to the schoolhouse, which his duties required him to heat, while on the premises for the purpose of re- building a fire, the injury was held to have arisen in the course of his em- ployment. An employs of a railroad company, who entered his employer's premises at a station 2% miles from where his gang was working, and who was kill- ed while on his way down the tracks to, join them, was not killed in the course of his employment. DowUng v. New Tork Central & H. R. E. R. Co., The BuUetin, N. T., vol. 1, No. 10, p. 17. » Where a miner, at the end of his day's work, changed his clothes, and, still carrying a miner's lamp, started towards the bottom of the shaft with the intention of ascending to the top of the mine, and about 200 feet from the room where he had been at work and about one-half mile from the bottom of the shaft one of his eyes was put out by coming in contact with a piece of slate hanging from the roof, it was held his duties had not ended until he left the mine, and that the accident arose in the course of his employment. Sedlock V. Carr Coal Mining & Mfg. Co. 98 Kan. 680, 159 Pac. 9. HoN.CoMP. — ^24 § 109 workmen's compensation 370 raise an exception.''* It must not be assumed that the protection of the Compensation Acts extends to workmen on any part of the employers' land, whatever the distance away from the workman's actual work; each case must depend upon its own facts as to the reasonable interval of time and space during which the employ- ment lasts.'° If a ma*i goes from his working place to another 7 4Mackinnon v. Miller (1910) 2 B. W. C. O. 70. The employe on her way to luncheon was injured while going down a flight of stairs leading from the third floor to the second floor of the building in which she worked, there being no other way by which she could reach the street, except down the stairway on which she was injured. It was held that, since it was a necessary incident of her eniployment to use the flight of stairs upon which the injury occurred, the injury arose in the course of her employment. Sundine v. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Oomp. Cases, 833 (decision o± Indus. Ace. Bd., affirmed by Sup. Jud. Ct^ 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318). 7 5 Graham v. Barr and Thornton (1913) 6 B. W. C. C. 412, Ct. of Sess. ; Hos- kins V. Lancaster (1910) 3 B. W. C. C. 476, C. A. An employe comes under the protection of the Workmen's Compensation, Insurance and Safety Act when he enters the premises of his employer, arid leaves such protection when he leaves such premises. This is true, even though the accident occur outside of working hours, since the employe must necessarily arrive shortly before the time of commencing work, and depart shortly after the hour for quitting. Oldham v. Southwestern Surety Insur- ance Co., 1 Cal. A. O. Dec. 258. While, as a general rule, an employe acci- dentally injured when on the way to and from the place of employment cannot claim compensation, on entering or leaving by the usual route and means pro- vided by the employer, is entitled . to compensation for accidental injury, except when he has loitered on the premises, or has not left the premises by the usual means and route. Gardiner v. State of California Printing Office, 1 Cal. I. A. C. Dec. 21. An employe comes under the protection of the Com- pensation Act at the time that he reaches his employer's premises in the moVning, and remains thereunder until he leaves them at the close of his day's work, but his risks in going and coming are the risks of the commonalty, and not of his employment. In this case an Injury sustained by the applicant by a collision with a street car while he was going to work in the morning and before reaching his employer's premises is held not to be compensable. Zbinden v. Union Oil Co. of California, 2 Cal. I. A. C. Dee. 616. Where a teamster, who reported for duty each morning at the stables of the defendants on the exposition grounds, was accidentally injured one morning after he had entered through the exposition gate and into the grounds, but before 371 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 109 place in the works, he must get back to his work, and if in going back he meets with an accident, that is an accident arising in- the reporting for duty at the stables, the employe was not at the time of the ac- cident In the course of his employment. Mclnerney v. Palmer & McBryde, 2 Cal. I. A. C. Dec. 655. Where an employe is given home work to be performed at her residence, and on returning to her place of employment on the following day with a bundle of work stumbles upon a public sidewalk not upon the premises of the employer, sustaining serious injury and disability, such ac- cident does not arise in the course of her employment. Malott v. Healey, 2 Cal. I. A. C. Dec. 103. An employe, who lost his life in a burning buUding in which he was employ- ed, was killed "in the course of his employment," and his dependents are en- titled to compensation. In re Harriet Horn, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 35. An employe killed while operating a derrick on the premises of his employer, which was a part of the duties under his contract of employ- ment, was kUled "in the course of his employment." In re Anna King, vol. 1, No. Y," Bui. Ohio Indus. Com. p. 37. Federal Act. — ^The following have been held to have been injured in the course of their employment: A fireman employed in the Canal Zone, injur- ed while performing service outside territory imder control of the United States. In re Nellis, Op. Sol. Dept. of L. 286. A workman in the Canal Zone, injured while following a customary path on his way to work, on the premis- es of his employer or in the immediate vicinity thereof. In re Chambers, Op. Sol. Dept. of Ii. 291. An employe walking along railroad track of Reclama- tion Service when going to his work, who was struck by a train of that service and killed. In re Gonzales, Op. Sol. Dept. of L. 833. A workman who fell and was injured while going through the main gate of a navy yard. In re Guerin, Op. Sol. Dept. of L. 324. A workman who was on his way home after working hours, and was injured while still on the government premises. In re Bernard, Dec. 12, 1913, Op. Sol. Dept. of L. 323. But an employe who was a cook in the river and harbor work, and who was drowned while go- ing to work, crossing the river in a launch of a private party, was not in the course of employment. In re Ware, Op. Sol. Dept. of L. 335. It was held that the injury was received in the course of the employment where a miner was on his way to the doorway of a horizontal passage which led into the mine, and slipped and broke his leg on rails on the premises lead- ing thereto (Mackenzie v. Coltness Iron Co., Ltd. [1904] 6 F. 8, Ct. of Sess. [Act of 1897]), and where a collier was injured when passing through an iron gate on the employer's premises seeking to reach a lamp room 150 yards away, where he was to start work (Hosklns v. Lancaster [1910] 3 B. W. C. 0. 476, C. A.). But the holdings were to the contrary where a workmaii while on his way to work was crossing some vacant land owned by his employers, and slipped on some lee a quarter of a mile from the place of his work (Gil- § 109 workmen's compensation 372 course of his employment, just as in the case of an accident hap- , pening after he has entered the works in the morning and while he is proceeding to his own place in the works. ''' If the employe re- mains after hours for some legitimate purpose connected with the ■employment, he may still be within the course of his employment,^^ mour V. Dorman, Long & Co., Ltd. [1911] 4 B. W. C. O. 279, O. A.); where a miner was knocked down by an engine and killed at a place 400 yards from the mouth of the shaft and 280 yards from the ofBce of the colliery, while going home along a track along a branch railway which belonged to the col- liery (Graham v. Barr and Thornton [1913] 6 B. W. C. O. 412, Ct. of Sess.) ; where a collier was killed after his day's work, while going home along a pri- Tate railway belonging to his employers and used for conveying things to and from the colliery (McNicol v. Summerlee & Mossend Iron & Steel Co., I/td. ![1902] 4 F. 989) ; and where a workman fell while returning home along a public footpath over his employer's land, because of the rough' nature of the path (Williams v. Smith [1913] 6 B. W. O. C. 102, C. A.). When a riveter, who was working on a ship in dock, came on deck expecting to go ashore for breakfast, he found that the vessel was being moved, and, the gangway hav- ing been taken away, a rope between the ship and the Quay was the only pos- sible way of reaching shore. The rope gave way when he slipped down, and he was injured. It was held that his action was reasonable, and that the ac- • cident arose out of the employment. Keyser v. Burdiek & Co. (1911) 4 B. W. 8 W. O. C. 3 ; Moore v. Manchester Lines, Limited, 3 B. W. C. C. 527 ; Mc- Loughlin v. Anderson, 4 B. W. C. C. 376; Emily Sundine Case, 218 Mass. 1,. 105 N. E. 433, L. R. A. 1916A, 318 ; Bryant v. Pissell, 84 N. J. Law, 72, 86 Atl. 458 ; Northwestern Insurance Co. v. Industrial Commission, 160 Wis. 633, 152 N. W. 416. SI Hartz v. Hartford Faience Co. (1916) 90 Conn. 539, 97 Atl. 1020. That a shipping clerk temporarily departed from his usual work to lift a barrel 397 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 114 of law which in such case would put an employe outside his usual course of employment, and so deprive him of his right to com- pensation for an injury suffered, would punish energy and loyalty and helpfulness and promote sloth and inactivity in employes. It would certainly prove detrimental to industry, and such a spirit of disregard of the master's interest, if carried into all of the work, would in time cripple the industry. Besides, the rule would be impractical. O.ne trade must occasionally overlap another, if the work is to go on expeditiously and productively.^^ On the other hand, when the injury, though arising out of a risk of the busi- ness, is received while the employe has turned aside from his em- ployment for his own purposes, and is not acting within the scope of his employment, no compensation can be given.*' As said by Cozens-Hardy, M. R. : "There is a distinction, and really a very did not prevent him from being in the course of his employment, where iu lifting the barrel he was acting for his master, not for himself. Id. In Grand- field V. Bradley Smith Co., 1 Conn. Comp. Dec. 479, where a girl, requiring an empty box for her work, which should have been supplied her by a boy hired for that purpose, went to get one from another boy, who supplied an- other table, and was resisted by him in a spirit of fun, and injured, it was held the Injury arose in course of her employment. Where an employs was injured from attempting to form an unexploded dynamite shell into a key, believing the shell to have been exploded, and he needed such a key to perform his duties, the injury was due to accident in the course of his employment, though he had no particular authority to make the key. State ex rel. Duluth Brewing & Malting Co. v. Dist. Ct. (1915) 129 Minn. 176, 151 N. W. 912. In attempting to turn on an electric current to put in motion a grindstone to sharpen a chisel, a carpenter was acting within the scope of his employ- ment, though he had nothing to do with the maintenance or operation of -the power-driven machinery of the shop. Wendt v. Industrial Ins. Com., 80 Wash. Ill, 141 Pac. 311, 5 N. C. C. A. 790. 82 Greer v. Lindsay Thompson, Ltd., 5 B. W. C. C. 586, 46 Ir. L. T. 89; Miner v. Franklin Co. Tel. Co., 83 Vt. 311, 75 Atl. 653, 26 L. R. A. (N. S.) 1195 ; Scott V. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927 ; Hartz v. Hartford Faience Co., 90 Conn. 539, 97 Atl. 1020. 33 Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368; Bryce v. § 114 workmen's compbxsation 398 simple one, between a man who is employed to do a particular thing, and to do it in a particular way, who may obtain compensa- tion, although in the course of doing that work he nevertheless em- barks on a dangerous mode contrary to the regulations, and a man being employed at A — ^A being limited to the sphere of his opera- tions — who goes into B and meets with an accident. In the lat- ter case the employer is not liable; the man has done something which he was not authorized or employed to do. This is a case in which he was doing that which was altogether outside his employ- ment." " Edward Lloyd Co., 2 B. W. C. O. 26; Keene v. St. Clements Press, Limited, 7 B. W. C. C. 542; Spooner v. Detroit Saturday Night, 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17. Where a mill foreman was injured from his hand coming in contact with a revolving fan when he attempted to place in a pipe a coffee or tea bottle to heat same, it appearing that the place where he attempted to heat the bottle was not the customary place, and was not the place which, for the purpose of heating bottles, had been assented to by the employer, he was not injured in the course of his employment. (Laws 1913, c. 138) Mann v. Glastonbury Knitting Co., supra. In Stevenson v. Union Metallic Cartridge Co., 1 Conn. Comp. Dec. 621, where the claimant caught her hand in a belt in trying to save herself from falling, while on her way to pass a petition relative to work- ing hours in the factory to another employe, the injury did not arise in the course of her employment. But in Spillane v. State of Connecticut, 1 Conn. Comp. Dec. 505, where an employe of the state was struck by an automobile while at- tending the transportation of state property along the highway, accompanied by another team carrying his household goods, which, however, did not re- quire any change in his duties or actions, compensation was awarded. Where the workman had practically left his employment to go on a spree and was thereafter injured, while in an intoxicated condition, the injury did not arise in the course of his employment Minnaugh v. Brooklyn Union Gas Co., The Bulletin, N. T., vol. 1, No. 8, p. 10. The employe received a fatal personal injury, following a quarrel with a fellow employe, which was precipitated by the deceased without cause. The employe struck another eeiploye, the latter clinching with him, and the de- ceased fell back against the machine, and never„ regained consciousness. It was held that the injury did not arise in the course of the employment. Mal- . loy V. Fidelity & Casualty Co. of N. X., 2 Mass. Wk. Comp. Cases, 401 (deci- sion of Com. of Arb.). 84 McCabe v. North & Sons, ttd. (1913) 6 B. W. C. C. 504, C. A. A labor- er, who was hired to clean the ceiling of an arch, after mounting a scaffold 399 CIRCUMSTANOES UNDER WHICH COMPENSATION DUE § 114 If the accident is due to the man arrogating to himself duties which he was not called on to perform, and which he has no right to perform, then he was acting outside the sphere of his employ- ment, and the injury by accident does not arise in the course of his employment,'^ regardless of whether his acts are in the interest of himself,*' or a fellow workman,'^ or a third person,'* or in the in- outside the arch with Ms pail and brush, then fell from it, sustaining fatal injuries, was injured in the course of his employment, although the reason of his going upon the scafCold was unexplained. Roberts v. Trollop & Sons and Colls (1914) 7 B. W. C. C. 679, C. A. so Smith V. Fife Coal Co., Ltd. (1914) 7 B. W. 0. C. 253, H. L., and (1913) 6 B. W. C. C. 435, Ct. of Sess. Where a chauffeur, waiting in a garage for his master's machine to be re- paired, all control and responsibility for the work being out of his hands, nevertheless voluntarily attempts to crank the engine, serving no interest of his employer in so doing, and, attaining no useful purpose, has his arm broken in the attempt, his act is gratuitous and unnecessary, and is not a service growing out of, incidental to, or done within the course of his employment as such. De Long v. Krebs, 1 Cal. I. A. C. Dec. 592. An employe, operating a truck, stopped work and pursued a rat, which ran down an elevator shaft, and while looking down the shaft was injured by the descending elevator. The injury was not sustained In the course of employ- ment. In re Martin Procknau, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 66. Nor was an injury sustained by an employ^ while boxing with a fellow em- ploy6. In re John Zelavzmi, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 87. The employs, living on the premises, while en route from a store thereon to his quarters and while ofiC duty, stepped aside from the usual path of trav- el to watch the operations of an electric wood saw. While standing there a piece of wood was thrown from the saw, striking and killing him. The injury was held not to have been received in the course of employment In re Gilson, Op. Sol. Dept. of L. 326. A shop boy, employed to work a punching machine, injured, by voluntarily starting a rolling machine while the former machine was idle, was not injured in the course of employment. In re Morales, Op. Sol. Dept. of L. 295. se Where an employfi whose duties as solicitor required his constant use of a motorcycle, which was supplied by his employer, knowing his employer's purpose to buy another motorcycle, but without any authority whatever from his employer, went to a dealer to try out a motorcycle, and was injured while on one which he had selected, the injury did not occur while he was perform- 3 7 See note 37 on page 402. ss See note 38 on page 402. § 114 workmen's compensation 400 ing a service in the course of his employment. Phillips v. Padflc Gas & Electric Co., 2 Cal. I. A. C. Dec. 789. The employe, whose occupation was that of turning down laces in boxes, received an injury while operating a box-lacing machine, for purposes of her own, during the noon hour. She was not entitled to compensation, because the accident did not arise in the course of her employment. St. John v. Trav- elers' Insur. Co,, 2 Mass. W^. Comp. Oases, 376 (decision of Com. of Arb.). A railroad conductor on an excursion train, run, with permission, by the employes for their own pleasure, was not injured in the course of employ- ment. In re Fitzpatrick, Op. Sol. Etept. of L. 306. Where a messenger boy at a goods station crossed the lines at night and was killed, the accident was not in the course of his employment, and the judge did not believe the one witness who said he had been given permission to go by the foreman. McGrath v. London & Northwestern Hallway Co. (19131 6 B. W. C. C. 251, O. A. Workmen trying to earn additional compensation were not in the course of their employment, where a collier, seeking to increase the quantity of coal to his credit by moving at intervals from his working place and cutting coal at places where cutting was especially forbidden, was killed by a fall of coal in such a place (Weighill v. South Heaton Coal Co., Ltd. [1911] 4 B. W. C. C. 141, C. A.) ; where a quarry worker, employed to dig flints and paid by the quantity dug, went into a trench 11 feet deep, into which he had been for- bidden to go, in order to shelter himself from the rain and get more flints, and was killed by a fall of earth (Parker v. Hambrook [1912] 5 B. W. C. C. 608, C. A.) ; and where a carter's duty was to unload bags from his own lorry, and he was injured whUe unloading a fellow workman's lorry, so that his fellow employes might help stow the bags for the consignee, who paid them for their work (Sinclair, Ltd., v. Carlton [1914] 7 B. W. C. C. 937, Ct. of Sess.). The accident was not in the course of the employment where a carpenter foreman, working on his brother's house, got into an altercation with some men, and his brother, taking charge of the controversy, was succeeding, and he then began to take part in the fight, and was struck by a piece of iron thrown at him (Clark v. Clark [Mich.] 155 N. W. 507) ; where a miner had been expressly forbidden to go into a place from which the timbers had been withdrawn, and was killed by a fall of coal after going In there to get coal (Tomlinson v. Garratt's, Ltd. [1913] 6 B. W. C. C. 489, C. A.) ; where a sea- man, not allowed to sleep on board his ship and warned not to return after dark, in returning fell from a vertical ladder giving access to the quay, and died from the accident (Griggs v. Owners of S. S. Gamecock [1913] 6 B. W. C. C. 15, O. A.) ; where a laborer, hired to pick up coal from a roadway of a mine, was killed trying to remove a piece of coal projecting from the side or roof of the mine (Edwards v. International Coal Co. [1903] 5 W. C. C. 21 [Act of 1897]) ; where a collier, being dissatisfied with his pay note on Saturday, decided not to go back to work until it was changed, and after seeing the undermanager, who refused to grant his demand, on Monday, was knocked 401 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 114 down by a wagon and killed when he was leaving the premises (Phillips v.' Williams, [1911] 4 B. W. C. 0. 143, O. A.) ; where a house surgeon volunteered to allow an X-ray experiment on his arm, and was injured by it (Curtis V. Talbot and Kidderminster Infirmary Committee [1912] 5 B. W. C. C. 41, G. A.) ; and where a collier, after being suspended, met with an accident two hours later in a "pass-by," where he had remained, contrary to orders, in- stead of going to the pit bottom (Smith v. South Normanton Colliery Co., Ltd. [1903] 5 W. C. C. 14, C. A. [Act of 1897]). A fish porter, working at a railway station for a fish stevedore, who walked along the line to reach a shunter's bothy, as fish porters frequently did, so that he might know how many fish boxes were arriving, was seeking useless information, and doing something he was not employed to do, in a place where he had no right to be ; conse- quently he was not injured in the course of his employment. Hendry v. Caledonian Ry. Co. (1907) S. C. 732, Ct. of Sess. Employes seeking their own pleasure, and held to have been killed or injur- ed while not in the course of their employment: A ticket collector, who was killed while boarding an out-going train for the purpose of speaking to a pas- senger. Smith v. Lancashire and Yorkshire Railway Co. (1899) 1 W. 0. C. 1, C. A. (Act of 1897). An engine driver, who was run over and fatally in- jured on his way back from borrowing a book, unconnected with his employ- ment, from the fireman of another engine across the track. Reed v. Great Western Co. (1910) 2 B. W. C. C. 109, H. L. A carter, who, after, delivering a load of sand, started home by a longer route in order to stop at a public house for a single glass of beer, and while going down the slope from the inn his horse ran away and he was killed. Bveritt v. EastafC & Co. (1913) 6 B. W. C. C. 184, C. A. A commercial traveler, who went in a dog cart with a friend to a place not connected with his business, got drunk, and was in- jured. Renfrew v. McGraw, Ltd. (1914) 7 B. W. C. C. 898. A canvasser, for whose work a bicycle was not necessary, and whose employers would have forbidden its use, had they known of it, who was killed by a fall from the bicycle just after calling at his home ior a bicycle lamp, which was not used in his business work. Butt v. Provident Clothing Supply Co., Ltd. (1913) 6 B. W. C. O. 18, C. A. Where, during an Interval of rest, some boys employed in a steel works had been repeatedly warned to let wagons alone, and the wagons moved, fatally injuring one of them, the accident was not in the course of his employment. Powell v. Lanarkshire Steel Co. (1904) 6 F. 1039, Ct. of Sess. Injury at play was not in the course of employment, where a boy in charge of the handle of a machine, although forbidden to touch a pinion wheel, took ofe its cover and played with it, and was injured. (Purniss v. Gartside & Co., Ltd. [1910] 3 B. W. C. C. 411, C. A., and where a boy, cleaning a machine at rest, began larking with another lad, and accidentally started the machinery, injuring himself (Cole v. Evans, Son, Lescher & Webb, Ltd. (1911) 4 B. W. C. C. 138, C. A. HoN.CoMP.— 26 § 114 workmen's compensation 402 S7 Where a workman, who was employed to operate an engine and dynamo In the basement of a building, went to an upper floor, where he volunteered as a special favor to other workmen to take them in the elevator to a floor above, and was killed in so doing, his death did not result from injuries aris- ing in the course of his employment. Spooner v. Detroit, Saturday Night Co., 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17. An employe, who left the premises of his employer for the purpose of post- ing a letter for a fellow employ^, and while crossing a railroad on the way was injured by a moving train, was not injured whUe in the course of his em- ployment. In re Otho Deavers, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 62. A workman, injured in going to assistance -of a fellow workman, attacked by a third, was not Injured In the course of employment (In re Armistead, Op. Sol. Dept of L. 305) ; nor was a laborer or fire patrolman in the Forest Service, who attempted to clean a pistol belonging to a feUow employs while in living quarters furnished by the government (In re Brown, Op. Sol. Dept. of L. 328). The Injury was not in the course of employment where a man, whose duties were concerned with the operation of an engine and dynamo on the bottom floor, was loitering on one of the upper floors, and voluntarily offered to take son],e fellow workman in the elevator to the floor above, and was killed in the attempt (Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17) ; where a road mender broke up the fire in a steam roller, so that the englneman need not come to work so early, and injured his leg when he stepped ofC the roller (McAUan v. Perthshire County Council [1906] 8 F. 783, Ct. of Sess. [Act of 1897]) ; and where a stoker was paid the wages of another man by mistake, and, on going to the other man's engine to pay him the money, attempted to board the other man's engine whUe it was in motion, feU, and was injured (Williams v. Wigan Coal & Iron Co., Ltd. [1910] 3 B. W. C. C. 65, C. A.). 3 8 Where the driver had taken the employer's automobile to a garage as directed, and without any necessity or advantage, or being requested to do so, undertook to crank the machine merely to render a friendly service to the mechanician, to whose charge the machine had been committed for the pur- pose of making the necessary repairs, such as burning out the cylinders and grinding the valves, the accident did not occur in the course of the employ- ment. De Long v. Krebs, 2 Cal. I. A. C. Dec. 376. Where a garage employe, having a holiday on the day of the automobile races at the exposition, with- out objection by his employer and for his own pleasure, took out the service car he was accustomed to drive and went to the races to assist a racer, De Palma, who had been keeping his racing car at the garage, sustaining a fatal injury while returning to the garage to get some of the supplies for De Palma, the accident did not occur while performing service In the course of his em- ployment. Held V. Lee, 2 Cal. I. A. C. Dec. 728. An employe, after delivering a package of hardware for his employer and while returning to his place of employment, stopped to assist a horse, which 4:03 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 114: terest of his employer,'' or of the state.*" But such arrogation of duty must be the cause of the accident in order to take it out of had been overcome by heat, and, while doing so, it fell upon him and broke his leg. The injury was held not to have been sustained in the course of em- ployment. In re Henry Verkamp, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 123. An employg, on the premises during the noon hour, stopped to pick up a baseball from the street to return it to players in the field, when he was struck by an automobile. He was not injured in the course of employment. In re Schlechter, Op. Sol. Dept. of L. 331. 3 9 BischofC V. American Car & Foundry Co. (Mich.) 157 N. W. 34. These acts may be cleaning machinery, as where a boy who was hired to mold balls of clay and hand them to a woman working at a machine near him, and who was expressly forbidden to touch the machinery, attempted to clean the machine while the woman was absent, and was injured (Lowe v.. Pearson [1899] 1 W. C. C. 5, O. A. [Act of 1897]) ; where a boy was hired to- piece ends of broken yarn, and tried to clean machinery in motion, which was^ not his duty, and which he had been forbidden to do (Naylor v. Musgrave- Spinning Co., Ltd. [1911] 4 B. W. C. O. 286, C. A.) ; where a liftman had been forbidden to oil or clean his lift, and was killed while so doing (Dougal v. Westbrook [1918] 6 B. W. C. C. 705, C. A.) ; where a time to clean machinery in a factory was set, and the wheels were stopped during the time for that purpose, and a workman tried to clean a mangle at another time, while it was in motion, against strict prohibitions (McDiarmid v. Ogilvy Bros. [1913] 6 B. W. C. C. 878, Ct. of Sess.); and where a hospital porter was injured while trying to dust the top of a lift, in which he was being taken up to the top floor to do some cleaning, and although he had never been told to dust the lift, he had greased it, but always under the supervision of the head porter (Whiteman v. Clifden et al. [1913] 6 B. W. C. C. 49, C. A.). They may be starting an engine, as where in a steam bakery, where it was- necessary that an engine be started to mix the dough, a baker, who had fre- quently started it, although it was not his duty and he had been told not to- do so, was fatally injured when he attempted to start it (Marriott v. Breet & Beney, Ltd. [1912] 5 B. W. O. C. 145, C. A.), and where a girl's only duty was to pick dirt out of coal passing along a band driven by an engine, and she, against the warning of other girls, although they frequently did this, started the engine while the engine man was temporarily absent, and was. injured (Losh v. Evans & Co., Ltd. [1912] 5 B. W. C. C. 17, O. A.) ; or seeking instruc- io Where a lumber company's employ^ was injured while assisting a Are warden as required by statute, his injury did not arise in the course of his employment, though he was paid his regular wages by his employer, who was reimbursed by the state and county. Kennelly v. Stearns Salt & Lumber Co. (Mich.) 157 N. W. 378. § 114 workmen's compensation 404 the course of the employment.*^ That it is not essential for the workman to be doing- the particular work which he was employed to perform*^ is illustrated in many English decisions. When a tions, e. g., where a contractor's carter, whose duty it was to stay with his horse and cart, was sent to ^railway station to fetch mortar, but finding that a foreman's permission was necessary before he could remove it, he left his horse and cart and went down the line to seek a foreman, and was killed (Mor- ris V. Rowbotham [1915] 8 B. W. C. O. 157, C. A.); or other miscellaneous acts, such as where a cleaner in a factory, who was not allowed to use the machinery, needed a handle for his scraper and was injured while trying to make one on a circular saw (MulhoUand v. Hazelton & Co. [1902] 36 Ir. L. T. 217, C. A.) ; where a boy was injured seriously when he tried to help a fellow workman remove a piece of soap, which had jammed a soap com- pressing machine, he having no right whatever to touch the machine (Davies V. Crown Perfumery Co. [1913] 6 B. W. C. C. 649, C. A.); where a work- woman injured her hand on a machine 20 yards away from the particular one on which she was engaged, and different from hers, and died of blood poison- ing (Cronin v. Silver [1911] 4 B. W. C. C. 221, C. A.) ; where an attendant in a power house had been expressly forbidden to dust the switchboard, and it was not his duty to do so, but he did and was injured (Jenkinson v. Harrison^ Ainslie & Co., Ltd. [1911] 4 B. W. O. O. 194, C. A.) ; where a mine worker, instead of sending wood by the accustomed way, tried to use haulage machin- ery, which he had been forbidden to use and did not understand, and the breaking of a chain resulted in his death (Burns v. Summerlee Iron Co., Ltd. [1913] 6 B. W. C. C. 320, 0. A.) ; where a miner was hired to prepare shots for blasting, and firing them was a duty he was neither engaged nor entitled to do, and he attempted to fire a shot during the absence of the shot-firer (Kerr v. Baird & Co., Ltd. [1911] 4 B. W. O. 0. 397, Ct. of Sess.) ; and where a boy, who had been instructed to inform the foreman when anything went wrong, tried to correct matters himself and was injured (McCabe v. Noth & Sons, Ltd. [1913] 6 B. W. O. C. 504, C. A.). *i A miner was permitted by the shot-firer, contrary to regulations, to connect the detonator to the cable, and the shot-firer by mistake fired the shot before the miner had reached a place of safety. The severe injury which he received was in the course of his employment, since the act of the shot-firer was the cause of the accident. Smith v. Fife Coal Co., Ltd. (1914) 7 B. W. C. C. 253, H. L., and (1913) 6 B. W. C. C. 435, Ct. of Sess. *2 The Act does not say, "when doing the work he was employed to per- form," and it is a fair inference that, if it had been intended to limit the right to compensation to accidents occurring while the workman was doing the work which he was employed to do, different language would have been 405 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 114 piece of tin got jammed in her machine, a factory girl reported the fact to the engineer, and was told to see to it herself. A fellow worker started the machine while she was fixing it, and it was held the injury was in the course of employment.*^ There was a like holding where a "barrowman" unloading a ship exchanged jobs with a "tipper" who was working for a different employer, and the employer knew that such an exchange of work took place and did not forbid it,** where a boy was told by a fellow workman that a foreman whom it was his duty to obey had said he was to oil a certain machine, and he was injured while so doing,*" and where the captain of a steam trawler crossed a space in which he knew German mines had been scattered, and changed his course to warn warships several miles away of the presence of the mines, and his boat struck a mine, resulting in serious injury to the chief engi- neer.*' No break in the employment is caused by the furnishing of as- sistance to a fellow workman in an emergency or to rescue him from danger,*^ by a deviation from the original employment used from that wMch occurs in the Act. Menzles v. McQuibban (1900) 2 F. 732, Ct. of Sess. (Act of 1897). *3 Geary v. Ginzler & Co., Ltd. (1913) 6 B. W. C. C. 72, C. A, 44 Henneberry v. Doyle (1912) 5 B. W. C. C. 580, O. A. 46 Brown v. Scott (1899) 1 W. C. C. 11, C. A. (Act of 1897). 4 6 Risdale v. Owners of S. S. Kilmarnock (1915) 8 B. W. C. C. 7 O. A. 47 Instances of accidents in an emergency : Where the deceased workman left his own work of boiling syrup to help a fellow workman, who was having trouble with an elevator commonly used by all the employes, and was fatally Injured by the fall of the elevator upon the releasing of the cable, which had been caught. Martucci v. Hills Bros. Co., 171 App. Div. 370, 156 N. Y. Supp. 833. Where a weighing clerk was fatally injured while helping some work- men to carry a heavy frame to the weighing machine, although it was not part of his duty to do so. Goslan v. Gillies & Co., [1907] S. C. 68, Ct. of Sess. Where a laborer who had no duty connected with machinery was fatally injured w^iile trying to help a machineman replace a driving belt which had come off. Menzies v. McQuibban, [1900] 2 F. 732, Ct. of Sess. (Act of 1897). Acts of rescue have been held within the course of the employment where § 114 workmen's compensation 406 through mistake,** or through an attempt to protect the employ- er's interests in an unexpected contingency,*' or to save himself a workman fell into a hole In the floor which could not be seen for escaping steam, while he was running to answer a call for help from a coemploy6 who had fallen into the hole (Dragovich v. Iroquois Iron Co., 269 '111. 478, 109 N. E. 999) ; where an employ^ of a contracting company was fatally in- jured while attempting to rescue from a cave-in a fellow laborer working only a few feet away on the same general undertaking, although for a difCerent employer (Waters V. William J. Taylor Co., 218 N. Y. 248, 112 N. E. 727, af- firming 170 App. Div. 942, 154 N. Y. Supp. 1149) ; where a workman sustained a nervous shock, which produced neurasthenia and incapacity, while assist- ing to remove an injured fellow workman (Yates v. South Kirby, Feather- stone and Hemworth Collieries, Ltd. [1910] 3 B. W. C. C. 418, O. A.) ; where a workman, hired to work on a quay, went into the hold of a ship to rescue a fellow workman overcome by noxious gases, and was himself suffocated .(London & Edinburgh Shipping Co. v. Brown, [1905] 7 F. 488, Ct. of Sess. lAct of 1897]) ; and where an ambulance man in a factory had an apoplectic ■seizure and died while he was excitedly hurrying to summon medical aid for a workman who was doing work for his (the ambulance man's) employer and on their premises, although not in their service (Aitken v. Finlayson, Bous- £eld & Co., Ltd. [1914] 7 B. W. C. C. 918, Ct. of Sess.). *8 The accident was in the course of the employment where a miner, de- scending into the pit by the cage, got out at a higher level than he intended, and while going on foot in the wrong direction was scalded to death by ex- haust steam from a pumping engine (Sneddon v. Greenfield Coal and Brick Co. [1911] 3 B. W. C. C. 557, Ct. of Sess.) ; where a workman was required to go to a certain place to draw his wages, and was paid for the time taken to go and come, and on his return journey mounted a wrong tram car, and was struck by a passing car when getting off (Nelson v. Belfast Corporation [1909] 1 B. W. C. C. 158, C. A.) ; and where a boy employed to grease truck wheels, thinking that the points were against an approaching train of trucks, was injured while trying to open them (Harrison v. Whitaker Bros., Ltd. 11900] 2 W.-C. C. 12, C. A. [Act of 1897]). 49 The existence of a real emergency operates to extend the scope of an agent's authority, giving him power to employ assistance where assistance is needed, and the acts done in consequence of such emergency are done with the bona fide Intention of protecting and guarding the Interests of the employ- er. Paul V. Nikkei, 1 Cal. I. A. C. Dee. 648. Such accidents occurred where a workman hired as a member of a Are brigade to help protect his employer's property was wet to the skin with water, and inhaled smoke, while fighting a fire within 40 feet of his employ- er's premises, and died of lobar pneumonia (In re McPhee, 222 Mass. 1, 109 407 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 114 or his personal effects from danger."* An injury is not placed out- side the course of the employmeivt by the fact that it results from N. E. 633) ; where one whose duty it was to protect the load on a grocery- truck, on which he was riding, from mischievous boys, was killed when he jumped off the truck to drive away boys whom he had ordered from the rear of the vehicle, even though he may have been impetuous and imprudent (Hen- dricks V. Seeman Bros., 170 App. Div. 133, 155 N. T. Supp. 638) ; where a car- ter was kUled while trying to stop his horse, which had bolted (Devine v. Caledonian Ry. Co. [1899] 1 F. 1105 [Act of 1897J) ; where a miner, whose work was totally unconnected with horses, was killed while he was attempt- ing to stop his employer's horse in a runaway (Eees v. Thomas [1899] 1 W. C. C. 9, G. A.) ; where a workman, left in charge of cages of lions, was killed while trying to drive back one which had escaped, there being no evidence to show how (Hapelman v. Poole [1910] 2 B. W. C. O. 48) ; and where a drawer in a mine wheeled a loaded hutch to a lye, which he found already loaded full, and proceeded to "let down" the loaded hutches in order to make room for his and get out an empty one, following a general practice in so doing and avoiding considerable delay (Baird & Co., Ltd., v. Eobson [1914] 7 B. W. C. C. 925, Ct. of Sess.). It was held likewise, in a case where a foreman in charge of a squad of miners, after preparing a charge for blasting, told a fireman, seemingly for a joke, that there was no shot ready for him. Later, not being able to find the fireman, the foreman tried to take out the wires and thus make the detonator harmless, and was killed while so doing, and it was held that the accident was in the course (and out) of the employment. Queen V. Baird & Co., Ltd. (1904) 6 F. 271, Ct. of Sess. Where a clerk of the accounting department of the defendant railway, trav- eling on one of its trains in the course of his employment, upon the stopping of the train after it ran over and injured a man, alighted to be available in case his services were needed, and it appears that, although not requested to do so, nor strictly within his duties, he actually did render assistance, and where in some manner such employe, while attempting to get aboard too late, slipped under the wheels and was killed, he was killed while performing service in the course of employment, and the act of alighting was within his implied duties. Bowdish v. Northwestern Pacific K. R. Co., 2 Cal. I. A. C. Dec. 777. 60 Where a cook on a lighter overexerted himself while removing his ef- fects from the sinking ship, and died soon after of heart disease hastened by such overexertion, the accident was one arising in the course of his em- ployment, since any act which would have been reasonable for any one to do, when leaving a sinking ship which was his temporary home, was within the scope of his employment. In re Brightman, 220 Mass. 17, 107 N. B. 527, L. B. A. 1916A, 321. Where an employ^, In order to save being hurt when the crane which he § 115 workmen's compensation 408 the act of an employe of an independent contractor.'* That one employed to trim trees through .which ran the wires of his em- ployer, an electric company, was at the time of his injury trimming a tree through which the wires did not run, did not put him out- side the "usual course of the trade, business, profession, or occu- pation" of the company ,%where he was acting: under the orders of the company's superintendent."^ Division III. — ^Arising Out of Employment § 115. Risks due to employment The use of the words "arising out of," or words of similar im- port, makes it a condition precedent to the right to recover com- pensation that the occurrence shall have resulted from a risk rea- sonably incident to the employment; °^ that there be a causal con- nection between the conditions under which the employe worked and the resulting injury."* While the occurrence need not have was operating broke, jumped into a river, and pleurisy and tuberculosis re- sulted from the wetting received, the accident occurred in the course of his employment. Eist v. Larkin & gangster, 171 App. Div. 71, 156 N. Y. Supp. 875. 61 Where a bar of metal fell from the upper story of a building under con- struction, and killed a carpenter, it was in the course of Ms employment, even though a workman of an Independent contractor was responsible for its fall. Bryant v. Fissel, 84 N. J. Law, 72, 86 Atl. 458. B2 In re Howard, 218 Mass. 404, 105 N. E. 636. ssCoronado Beach Co. v. Pillsbury (Cal.) 158 Pac. 212; Fitzgerald v. Clarke & Son, [1908] 2 K. B. 796, 77 L. J. K. B. 1018. 54 McNicol's Case, 215 Mass. 497, 102 N. B. 697, L. R. A. 1916A, 306; Coro- nado Beach Co. v. Pillsbury (Cal.) 158 Pac. 212. The nature and conditions of the employment must be such that the in- jury was one likely to happen to one in that employment. There must be a causal connection between the employment and the injury. (Laws 1911, c. 751, as amended by Laws 1912, c. 571) McNicol's Case, supra. *09 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 115 been foreseen or anticipated," it must appear after the event to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." This statutory B5 State ex rel. People's Coal & ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, L. K. A. 1916A, 344. BsMcNlcol's Case, 215 Mass. 497, 499, 102 N. B. 697, L. R. A. 1916A, 306; Coronado Beach Co. v. PlUsbury (Cal.) 158 Pac. 212; Federal Rubber Mfg. Co. V. Havolic (Wis.) 156 N. W. 143. "To satisfy the words of the Act, the occurrence must be one in which there is personal injury by something arising in a manner unexpected and unforeseen from a risk reasonably incidental to the employment. Nothing can come "out of the employment" which has not, in some reasonable sense, its origin, its source, its causa causans, in the employment. That the injury must be one resulting in some reasonable sense from a risk incidental to the employment has, I think, been decided over and over again." Cozens-Hardy, in Mitchinson v. Day Bros. (1913) 6 B. W. C. C. 191, C. A. Where an employ^ worked continuously for 21 hours, except 1% hours off for meals, during which time he had to climb 216 steps three different times besides being on his feet most of the time, and was found dead in his chair in a saloon a half hour after quitting, death being due to angina pectoris, the accident arose out of his employment and the overexertion it necessitated. McMurray v. J. J. Little & Ives Co., 3 N. Y. St. Dep. Rep. 395. Where a night watchman on his last round fell to the floor from an apo- plectic shock, vnthout any accident occurring, the injury was not one arising out of the employment. Ledoux v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 493 (decision of Com. of Arb.). Nor could it be held to have so arisen where the evidence showed that the condition of valvular heart trouble from which the employ^ suffered was not caused by an accumu- lation of strains in carrying and lifting materials, as claimed (Nolan v. New England Casualty Co., 2 Mass. Wk. Comp. Cases, 417 [decision of Com. of Arb.]) ; or where a bartender knocked down a customer under provocation of verbal abuse, using excessive force, and in so doing broke a bone in his own hand (Bisotti v. Behlow Estate Co., 2 Cal. I. A. C. Dec. 986) ; or where a fore- man in the employ of defendant owned a horse which he kept with him while at work, occasionally using it in the company's business, but was not required to furnish or use a horse, and the horse was fed and shod- at the company's expense, and where, the foreman forgetting to bring it across a certain creek to the camp during working hours, an employ^ of the company volun- teered in the evening to bring it over, and was accidentally drowned while carrying out this errand (Wood v. Chlco. Construction Co., 1 Cal. I. A. C. Dec. 89). (Commissioner Pillsbury dissented, on the ground that the owner- ship of the horse was immaterial, so long as it was being used in the com- § 115 workmen's compensation 410 requirement should not be narrowly construed, however. An em- ploye must reasonably be allowed some latitude for the exercise of his own judgment as to when and how he can best serve the interests of his employer.'' Where these requisite conditions ex- ist, and the injury results from a special risk incident to the em- ployment, and there is ai» causal connection between the conditions under which the work is required to be performed, the injury "aris- es out of" the employment,^* even when the connection is somewhat pany's business ; that the errand was desired by the foreman, and the em- ploy6 not In a position to question him as to whether it was within the line of his duties or not; and that it is also immaterial whether deceased volun- teered to perform the errand or was instructed to do so, as in either ease he was complying with an expressed wish of his foreman.) Where an employ^ received a slight injury, to which bandages soaked in turpentine were ap- plied, and some days later accidentally set fire to the bandages while lighting his pipe, the burns received in the second accident are not caused by an acci- dent arising out of his employment. Isaacson v. White Lumber Co., 2 Cal. I. A. C. Dec. 819. B7 In Stevenson v. Union Metallic Cartridge Co., 1 Conn. Comp. Dec. 621, where the claimant caught her hand in a belt in trying to save herself from falling, while on her way to pass a petition relative to working hours in the factory to another employ^, the injury did not arise out of her employment. (Wk. Comp., etc., Act, § 12 [a] [2]) De Long v. Krebs, 1 Cal. L A. C. Dec. 592. 6 8 In re Harbroe, 223 Mass. 139, 111 N. E. 709. An accident resulting from a risk reasonably incident to the employment should be considered as "arising out of the employment." Pierce v. Boyer- Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, Ann. Kep. Neb. St. Dept. of L. 1915, Bulletin 32, p. 94 ; Walther v. American Paper Co. (N. J. Sup.) 98 Atl. 264. Where a miner working in the mines inhaled poisonous gases which caused his death, the injury causing death arose out of the employment. Ciiacobbia V. Kerno-Domewald Coal Co., Bulletin No. 1, 111., p. 196. The risk of assault is a risk peculiar to the occupation of a bartender, and one to which he is especially exposed ; where he is assaulted by a drunken patron too intoxicated to know what he is doing, the accident arises out of the employment. State ex rel. Anseth v. District Court (Minn.) 158 N. W. 713. A person employed as a traveling salesman, whose duty it is to solicit orders from grocery stores, who slips and falls while walking from one store to another in the course of his employment, is entitled to compensation for disability sustained thereby. The reason for the slipping and falling is im- 411 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 115 material, as long as the presence of some sufficient cause is inferable, and if the accident occurs in the course of the employment. Block v. Mutual Bis- cuit Co., 2 Cal. I. A. C. Dec. 274. The risk of injury, from a defective or dan- gerous condition of a building or its contents, is one normally incident to working in that building, for the risk is peculiar to the building, and there- fore to the employment therein. Where a floor above is caused to collapse by overloading it with storage, by a third party, and the collapse causes in- jury to an employs in a restaurant below, although the proprietor and em- ployer of the restaurant has no control of the cause, and bears no blame, nevertheless, the accident is incidental to and arises out of the employment. Douglas V. Kimbol, 1 Cal. I. A. C. Dee. 543. Where it was the duty of an em- ploye of a gas company to read meters, shut off the gas when patrons of the company moved, collect accounts, and deliver orders, and his employment did not end at any particular hour or place, his employment was continuous, and he was at all times, except when at home, under the protection of the com- pensation provisions of the law, and an ^accidental injury sustained by a col- lision of his motorcycle with an automobile, in a public street, while on his way home, arises out of his employment. Ferguerson v. Royal Indemnity Co., 1 Cal. I. A. C. Dec. 11. Accidents and injuries held to have arisen out of the employment: Where one engaged as teamster, whose special duty was to care for his team, feed the same, and make deliveries to customers of the employer, after his day's work, took his team to the stable, and while unharnessing and feeding the team, passed behind the team of a fellow employe and was kicked by one of the hors- es. Gylfe V. Suburban Ice Co., Bulletin No. 1, 111., p. 167. Massachusetts. Where a workman burst a blood vessel in the pial membrane of the brain in the strain of cranking a coal delivery truck, and fell down unconscious, dying later from a recurrence of the hemorrhage. Farrell v. Casualty Co. of Amer- ica, 2 Mass. Wk. Comp. Cases, 423 (decision of Com. of Arb.). Where the workman's death was due to burns received from the ignition of his clothing by a lantern which he was using while about his work, and which was some- times used by the employes in performing their duties. Parker v. American Mutual Liability insur. Co., 2 Mass. Wk. Comp. Cases, 392 (decision of Com. of Arb.). Where the employ^ was injured in his back and right side in con- sequence of being thrown to the street when the truck which he was driving in his master's business was struck by an elevated car, and he died several months later. Cripps v. JEtna Life Ins. Co., 2 Mass. Wk. Comp. Cases, 68 (de- cision of Com. of Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828). New Hampshire. Where an employe in a miU run by water power was drowned while attempting to clean racks which protected the intake flume, such cleaning being part of his duty. Boody V. K. of C. Mfg. Co., 77 N. H. 208, 90 Atl. 860, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280. New York. Where a workman sometimes used his motor- cycle while on his employer's business, and often worked on it to repair It during business hours, and while he was so working his flngers were severed in § 115 workmen's compensation 412 the chain guard of the machine. Kingsley v. Donovan, 169 App. Dlv. 828, 155 N. Y. Supp. 801. Where a railroad employfi was severely burned when his clothes caught fire from ignited waste while he was wiping the tank ol a passenger engine. Sieplenska v. New York Central R. R., 4 N. Y. St. Dep. Rep. 395. Where a watchman on construction work who fell from. a board into the cellar while making his rounds. Sorge v. Aldebaran Co., 3 N. Y. St. Dep. Rep. 390. In Cook v. N. Y. C. & H. R., The Bulletin, N. Y., vol. 1, No. 8, p. 9, which was so clcSle that it probably would not have been re- versed on appeal no matter which way decided, it was held that the gener- al presumption in favor of the claimant raised by § 21 made the injury com- pensable. Iowa. Where a workman was required to clean clothing with gasoline, and attempted to light his pipe while his hands were still wet with the gasoline, severely burning his hand. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 28. Michigan. Where a carpenter, working on the roof of a building under construction on a very cold day, was called down for a hot coffee lunch, and descending by a rope, instead of a ladder, was killed by losing hold of the rope. Clem v. Chalmers Motor Car Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 40. California. Where a workman was run down by a vehicle, while he was repairing or putting dovm pavements. Lera v. Fair- child-Gllmore-Wllton Co., 1 Cal. I. A. C. Dec. 44. Where an employe of a water company was hired to inspect the distributing system of the company, and remedy defects as found or reported to him, immediately or as needed in his judgment, regardless of the hours of service, and the evidence showed that after receiving a report of trouble in the company's pipe lines he had started to search for the defect, but was injured by an automobile accident while en route. Phillips v. Chanslor-Canfleld Midway Oil Co., 1 Cal. I. A. C. Dec. 580. Where a stableman, who by his duties was required to act as watchman and protect against intruders his employer's property, situated where trouble might occur, although the employer had neither authorized nor forbidden him to carry or use a pistol for that purpose, was accidentally shot while cleaning a pistol which he had procured for his own protection in the performance of his duties. Benson v. Hutchinson Co., 2 Cal. I. A. C. Dec. 901. Where an employe went out upon a porch, attached to the kitchen where he was employed as a cook, to smoke a pipe, and in returning to the kitchen, to continue his work, fell down the basement stairs and suffered a fracture of the wrist. Espy v. Grossman, 2 Cal. I. A. 0. Dec. 328. Where a school-teacher, after dismissing her school for the day, remained upon the school premises to finish her work, and while at work went to the telephone for a moment to send a message upon private business, and was injured by tripping over the telephone cord and falling. Rleff v. City of Sacramento, 2 Cal. I. A. C. Dec. 223. Where a chauffeur had his arm broken while cranking his employer's automobile, even though the car had been taken into the garage for repairs. De Long v. Krebs, 1 Cal. I. A. C. Dec. 592. Where a "spieler," whose duties were to attract and persuade the crowd to attend his 413 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 115 employers' amusement show, was bitten and polsoued by a reptile he was ex- hibiting. Merritt v. Clark & Snow, Inc., 2 Cal. I. A. C. Dec. 983. Where a dis- location of the semilunar cartilage of the knee was caused by quickly rising from a stooping position, required by the nature of the employment. Giam- polini-Lombardi Co. v. Employers' Liability Assur. Co., 2 Cal. I. A. C. Dec. 1010. Where a night watchman, while making his rounds through the prem- ises of his employer, was killed by falling through an opening in the floor to the floor below. Carter v. Hume-Bennett Lumber Co., 2 Cal. I. A. C. Dec. 42. Where one employed to fight fire, just after extinguishing a fire and while preparing to leave the premises, was injured from stepping into a hole in the dark. Mazzini v. Pacific Coast Ry., 2 Cal. I. A. C. Dec. 962. Ccnir necticut. Where a workman, who had been frequently rebuked for infriug- ing a rule against smoking, was found dead in a sitting posture in a place where he had no occasion to be, with an unllghted cigarette in his hand ; it being held that, if death were due to injury (which was doubtful), such injury did not arise out of his employment. Palama v. Chase lletal Works, 1 Conn. Comp. Dec. 444. In Kane. v. New Haven Union Co., 1 Conn. Comp. Dec. 492, where it was shown that decedent, a young man careless in habits, had been working in an etching room where dust and acid fumes were especially irri- tating to the lungs, but which was as properly ventilated and lighted as possi- ble, and had died of tuberculosis, it was held the burden of proof to show that the injury arose out of the employment was not discharged. In Shay v. Christian Feigenspan, Corp., 1 Conn. Comp. Dec. 232, where it appeared that decedent's broncho pneumonia might have been caused by exposure due to the employment, but there was insufiicient evidence connecting it with the em- ployment to make such finding any more than a surmise, it was held the plain- tiff's burden was not discharged. In Miller v. Libby & Blinn, 1 Conn. Comp. Dec. 377, where the evidence showed that while it was possible that the claimant's erysipelas was due to his employment, it was equally probable that it was due to other causes wholly unconnected with the employment, it was held the claimant had not established his claim by a preponderance of evidence. In Wilson v. Cheney Bros., 1 Conn. Comp. Dec. 66, where the claim- ant sought to prove the atrophy of his optic nerve was due to being struck below the eye by a shuttle which flew from the loom where he was working by showing that he had passed the test at Ellis Island, by records of an op- tician showing a normal condition of his eyes six months before the injury, and by the opinion of an expert, and the employer showed statements of the claimant previous to the injury that he had a cataract coming over the eye, and that it was "no good," that he was practically blind in that eye immedi- ately after the injury (whereas atrophy develops gradually), and the opinion of another expert conflicting with the first, it was held that the claimant had not established his case by a preponderance of evidence, as was neces- sary to entitle him to an award. In Morse v. Waterbury Clock Co., 1 Conn. Comp. Dec. 138, it was held that where a workman complained to a fellow § 115 workmen's compensation 414 workman of pain in Ms side, which was later fovmd to be due to a slight sep- aration of two ribs, which might have been caused by a strain in lifting, but said workman was much intoxicated the night before, and his condition seem- ed more likely to have been caused by a blow of some kind, he being unable to set any time when a strain occurred, his burden of proof to establish an injury arising out of his employment was not discharged. Where the medical evidence, though conflicting, tended strongly to show that indigestion and gas- tritis from which the claimant was suffering, were probably never due to muscular strain as claimed by the workman and his physician. Graves v. Connecticut Mills Co., 1 Conn. Comp. Dec. 657. Where the claimant had a blister form on his index finger while about his employment, and subsequent- ly, while mending a pair of shoes at home, the awl which he was using slip- ped and penetrated the finger, and blood poisoning resulted thereafter, it was held that the poisoning resulted apparently from the injury by the awl, and that it did not arise out of his employment. Palmeri v. Greist Mfg. Co., 1 Conn. Comp. Dec. 669. In Konzelski v. Griflin-Neuberger Tobacco Co., 1 Conn. Comp. Dec. 50, where it appeared that the workman's injuries, received while picking up stones in a field, were due to the explosion of a dynamite cap, which might have been there from blasting done a year before, though this was extremely doubtful, or might have been dropped by fellow workman who had been playing with caps during the day, the evidence as to how he obtained the cap or how it came there being very indefinite, it was held that the injury was not shown to have arisen out of the employment. England. Where an insurance agent fell downstairs while on his rounds, he being on the stair simply and solely for the purpose of his business. Refuge Assur- ance Co., Ltd., V. Millar (1912) 5 B. W. C. C. 522, Ct. of Sess. Diseases constituting injuries arising out of employment: Where a lead grinder was incapacitated for work by the gradual absorption of lead into his system. (St. 1911, c. 751, as amended by St. 1912, c. 571) Johnson v. Lon- don Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. E. 735. Where an employe was required as part of his duties to open a hole and look at a fire in a furnace at 15,000° F., in order to see if the fire was properly sup- plied with coal, and became blind from optic neuritis caused by noxious gases which escaped through the hole. Hurle v. American Mutual Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 79 (decision of Com. of Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 217 Mass. 223, 104 N. B. 336, L. R. A. 1916A, 279, Ann. Cas. 1915C, 919). Where the room in which the employe, a choco- late packer, worked was necessarily kept at a temperature of 60° to 65° F^ and facial paralysis developed gradually because of these working conditions. Dalton V. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 231 (decision of Com. of Arb.). New York. Where septicsemia was con- tracted by an injured workman and caused his death. (Workmen's Compen- sation Act, § 3, subd. 7) Rist v. Larkln & gangster, 171 App. Div. 71, 156 N. Y. Supp. 875. Connecticut. Where a watchman aggravated the pain in a 415 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 115 remote, and when the direct and immediate agency of injury is for- eign."® An accident so arises where it is either a usual or normal risk incident to the kind of work being done, or is of extraordinary character, but the nature of the employment peculiarly and spe- cially exposes the employe to such risk.*" It is due to the employ- ment not only when the risk incurred is directly involved in the employment itself,*^ but when involved in the general scope of frozen toe by stubbing it, and, becoming unconscious, fell on the stone floor, sustaining bruises of the back which developed into an abscess, causing dis- ability. Dorrance v. New England Pin Co., 1 Conn. Comp. Dec. 24 (affirmed by superior court on appeal). 9 Archibald v. Ott (W. Va.) 87 S. E. 791. 60 Bush V. Ickleheimer Bros. Co., 1 Cal. I. A. C. Dec. 522. While it cannot reasonably be said that the risk of being shot by trespass- ing lawbreakers is incidental to or has its origin in a night watchman's or- dinary employment, undoubtedly there are particular incidents where the occupation of a night watchman exposes him to risks substantially beyond the ordinary ones, and where the employment involves and obligates the employ^ to face such perils. In re Harbroe, 223 Mass. 139, 111 N. E. 709. 81 The injury or accident arose jOut of the employment where a workman, with two others, was pulling a hand chain connected with a blocu operating a mechanism which caused a lifting chain to pass through the block and lift a steel girder, and thfe Uftlng chain became clogged, and, being forced through, split the rock, striking and injuring the workman (Scott v. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927) ; where a workman of an ice com- pany was employed to see that none cut holes in the ice for fishing, but was not given any instructions as to methods, and was drowned, while he was near the center of the pond, when the ice broke (Jillson v. Ross [R. I.] 94 Atl. 717) ; where a girl, whose duty was to stand at the top of a threshing machine, near the opening through which the machine was fed, and who crossed to the other side of the opening and sat down on some sheaves, in the shelter of which she ate some refreshments provided by her employer, her hand being caught in the machine when she arose (OarindufC v. Gilmore [1914] 7 B. W. C. C. 981, C. A.) ; where a sailor was injured by a faU down a half-open hatchway on board a ship, while he was washing his clothes in a dark alleyway (Cokolon v. Owners of Ship Kentra [1912] 5 B. W. O. C. 658, C. A.); where a ship's carpenter was wearing oily trousers, and they were ignited from shavings into which a match had been thrown by a shore la- borer (Manson v. Forth & Clyde Steamship Co., Ltd. [1913] 6 B. W. C. C. 830, Ct. of Sess.) ; and where an engine driver, standing partly on the engine and partly on the platform, was tightening a nut, and shortly after was seen lying § 115 woekmbn's compensation 416 the employment,"' or in an act performed by the employe in the general line of his duty to his employer, as where he attempts to save the life of or rescue a coemploye who is placed in danger while engaged in his employment."^ Death due to being overcome by on the permanent way between the engine and the platform in such a con- dition that he died five minutes later, since the accident could not be dis- connected from the employment (Fennah v. Midland Great Western Ry. [1911] 4 B. W. C. 0. 440, C. A.). The injury did not arise out of the employment, however, where a work- man kept a can of condensed milk for his lunch hidden in a dangerous place in a printing machine, so that his fellow workmen would not get it, and injured his hand in putting it back. Keen v. St. Clement's Press, Ltd. (1914) 7 B. W. C. C. 542, O. A. 62 Where the deceased employ^ was a cook on a lighter, where his employ- ment required him to live, and overexerted himself while removing his effects from the sinking craft, and died soon thereafter of heart disease accelerated by such overexertion, his death was from an "injury arising out of his em- ployment" ; that which would have baen reasonable for any one to do on leav- ing a sinking vessel which was his temporary home, was within the scope of Ms employment. In re Brightman, 220 Mass. 17, 107 N. B. 527, L. R. A. 1916A, 321. Where an employfi, engaged as a wagon washer, had cranked automobiles at the instance of the machinist, and a number of times in the presence of the foreman without objection, and was injured while so cranking the machine, his injury arose out of the employment. Cromowy v. Sulzberger & Sons Co., Bulletin No. 1, 111., p. 37. 63 Where a workman fell into a hole in the floor, which could not be seen for escaping steam, while he was running to answer a call for help from a coemploy§ who had fallen into the hole, the accident was arising out of his employment, the court (opinion by Carter, J.,)' saying: "It is clear that it is the duty of an employer to save the lives of his employes, if possible, when they are in danger while in his employment, when occasion presents itself, to. do what he can to save the lives of his fellow employes when all are at the time working in the line of their employment. Any other rule of law would be not only inhuman, but unreasonable and uneconomical, and would, in the end, result in financial loss to employers on account of Injuries to their em- ployes. From every point of view it was the duty of the deceased, as a fellow employe, in the line of his duty to his employer, to attempt to save the life of his fellow employe under the circumstances here shown. That he failed in his attempt does not in the slightest degree change the legal situation." Drag- ovich V. Iroquois Iron Co., 269 111. 478, 109 N. E. 999. The reasoning of the following cases tends to support this conclusion: Bees v. Thomas, 4 W. 417 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 116 excessive heat to which the workman is exposed by the conditions under which he works is compensable.** In regard to using in a judicial opinion the word "incidental" in- stead of "arising out of," the words of the statute, Earl Loreburn said: "I do not repent of having myself, as have other judges, in trying to convey my thoughts, spoken of 'risks incidental' to an employment, but that does not mean merely risks which ordinarily occur in it. For the future, however, in order to prevent misappre- hension, I shall confine myself to the actual words of the text. The words are 'arising out of.' " *" Under Acts which, deviating from the usual language, provide for liability only where at the time of the accident the employe is performing service growing out of and "incidental to his employment," the effect seems to be the same as though the usual words were used.** § 116. Risks peculiar to employment While it is not ordinarily essential, in order that an accident or injury may be one arising out of the employment, that it be peculiar C. C. 9 ; Matthews v. Bedworth, 1 W. C. C. 124 ; London & Edinburgh Ship- ping Co. V. Brown, 42 Scottish L. R. 357. 8* In Wajteniak v. Pratt & Cady Co., Inc., 1 Conn. Comp. Dee. 545, where the workman died of heat stroke, and it was shown that his duties as a fur- nace tender subjected him to very great heat, it was held that the heat stroke causing death was due to his employment, and that the injury arose out of that employment. In McGarva v. Hills, 1 Conn. Comp. Dec. 533 (affirm- ed by superior court on appeal), it was held that plaintiff's death from heat exhaustion was due to working under conditions of great heat and want of air. «5 Trim Joint District School v. Kelly (1914) 7 B. W. C. C. 274, H. I* 68 Federal Eubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143. Where an employ^ died of typhoid fever contracted from impure drinking water .furnished by his employer, the injury sustained was incidental to his employ- ment. Vennen v. New Dells Lumber Co., 161 Wis. 370, 154 N. W. 640, L. E. A. 1916A, 273. The risk to a cigar store clerk of Injuries in a quarrel between him and a stranger, not a customer, was not incidental to nor a part of his employment. TreadweU v. Marks, 3 Cal. I. A. O. Dec. 3. HoN.CoMP.— 27 § 116 workmen's compensation 418 to the particular employment in which the workman was engaged at the time of the injury/' it must arise out of a risk in some way peculiar to the business in which he was engaged,"' and not conie from a hazard to which he would have been equally exposed apart from the employment."" The causative danger must be peculiar to the work, and not common to the neighborhood. It must be inci- dental to the character of the business, and not independent of the relation of master and servant.'"' For example, an injury from a 67 To arise out of the eiiiployment an accident need not ordinarily be one peculiar to the particular employment in which the injured employe was en- gaged at the time of the injury. State ex rel. People's Coal & Ice Co. v. Dis- trict Court, 129 Minn. 502, 153 N. W. 119, L. E. A. 1916A, 344. 88 Cherry, L. J., in Green v. Shaw (1912) 5 B. W. C. O. 573, C. A. 6» "An injury which cannot fairly be traced to the employment as a contrib- uting proximate cause, and which comes from a hazard to which the worliman would have been equally exposed apart from the employment," does not arise out of the employment. McNicol's Case, 215 Mass. 497, at page 499, 102 N. E. at page 697, L. K. A. 1916A, 306, distinguished in Re McPhee, 222 Mass. 1, 109 N. E. 633. 7 (St. Wis. 1915, § 2394—3, subd. 2) Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341, 156 N. W. 143. It is essential that there be some special risk incident to the particular em- ployment, a risk which imposes a greater danger upon the employs than upon an ordinary member of the public. Sheldon v. Needham (1914) 7 B. W. C. 0. 471, C. A. Fletcher Moulton, L. J., says in Peel v. Lawrence & Sons, Ltd. (1912) 5 B. W. G. C. 274, C. A.: "There was no risk whatever, other than that to which every other human being is exposed. True, it was done for the purposes of his work. Suppose in an employment part of the terms was that a man should be given lunch, and that he bolted his food and so burst a blood vessel ; there is no doubt that he took his refreshment for the purpose of en- abling him to do his work, but there was no risk whatever connected with that work. That is not an accident arising out of his employment." Where an employ^, who drove a butcher's delivery wagon and occasionally assisted in the shop, was killed from stumbling over a bucket while he was making a delivery on foot, the injury did not result from a risk incident to his employment, since by making this delivery he was exposed to no greater danger than that to which any other person would have been exposed while walking In the same place. (Workmen's Compensation Act, §§ 3, 2, groups 30, 41). Newman v. Newman, 155 N. Y. S. 665. In the case of Sheldon v. Needham, 7 B. W. C. C. 471, the English Court 419 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 116 fall while at work, caused by faintness or illness, and not brought on by the labor conditions, does not arise out of the employment.''^ of Appeal held that under the English Workmen's Compensation Act, from which the words of the New York statute, "arising out of and in the course of his employment," were taken, a charwoman in regular employment, who was sent by her employer to post a letter at a post box about 100 yards from the house, and who slipped on a banana skin in the street and fell, breaking her leg, was not entitled to the benefit of the Act, for the reason that the ac- cident, being due to a risk no greater than is run by all members of the pub- lic, did not arise out of the employment. In all cases in which the workman has recovered, there has been evidence that the occupation in which he was engaged exposed him to risks over and above those run by other people. The object of the statute was to secure compensation to workmen who are engaged in occupations which exposed the employes to danger from which other occu- pations are free. But It was as against accidents incidental to the special employment that the benefit of the statute was given. Falconer v. London & Glasgow Engineering & Iron Shipbuilding Co., Ltd. (1901) 3 F. 564, Ct. of Sess. (Act of 1897). "If the risk was such that by reason of the work in which he was engaged, in the place where he was engaged, and in the man- ner in which he was compelled to perform that work, he was more readily exposed to it than the public generally, then it was abnormal and incidental to his employment." Brown v. City of Decatur, 188 111. App. 147. Where a workman was struck and killed by a train while he was crossing the tracks along a water main upon which he was working, on his way to a hand car where he wished to sit while putting on his boots, preparatory to work, he was injured by an accident arising out of his employment and incidental to it. Id. An accident arising out of his employment while doing that which he Is directed to do does not entitle a workman to recover compensation, un- less you can say that he was exposed to a greater risk than a member of the general public. Slade v. Taylor (1915) 8 B. W. C. C. 65, C. A. From the lack of such risk, the accident did not arise out of the employment where a workman's boot shrank and became too tight, injuring his toe (White V. Sheepwash [1910] 3 B. W. C. C. 382, O. A.) ; where a workman took off his boots and socks, so that he could get around better on the wet floor, and strained his finger in taking them off (Peel v. Lawrence & Sons, Ltd. [1912] 5 B. W. C. C. 274, C. A.) ; where a maid who was sewing before an open window saw a cockchafer, attracted by the electric light, coming in, and, ui throw- '1 Erickson v. Empire Laundry Co., 1 Cal. I. A. C. Dee. 612. Where the employg, while sweeping dirt and pebbles from the paving, suf- fered a sudden attack of cardiac syncope, and fell to the pavement, fracturing his skull, with fatal result, the accident did not arise out of his employment. Collins V. Brooklyn Union Gas Co., 171 App. Div. 881, 156 N. Y. Supp. 959. § 116 workmen's compensation 420 Nor does an injury so arise where an employe suffers a hemorrhage from natural causes while engaged in his employer's business.'''' Bites by poisonous insects, reptiles, or animals are industrial ac- cidents only in those instances where the injury arises out of and happens in the course of the employment and the employe is subjected to a special danger of so being bitten by reason of the nature of his employment. In a California case wherein it appeared that an employe working in a cannery was bitten by a spider while eating lunch upon the premises, and it was not shown that the cannery was to any greater degree infested with spiders than other buildings in the same community, the Commission held the evi- dence insufficient to show that the employment especially exposed the applicant to the danger of such injury.^* If the spider had been concealed in the fruit being handled at the cannery, and had bitten him while sorting or handling the fruit, and it could have been ing up her hand to drive it away, struck herself in the eye (Craske v. Wigan [1910] 2 B. W. C. O. 35, C. A.) ; where a workman was stung by a wasp while driving the engine of a threshing machine, and death resulted (Amys v. Bar- ton [1912] 5 B. W. O. C. 117, O. A.) ; and where a workhouse master, who had tubercular trouble, was sitting at the top of some stairs smoking while on duty, and was seized with a fit of coughing, causing him to fall down stairs News No. 39 (December 27, 1918), as follows: 'It must also appear that the injury arose out of the employment and was a risk reasonably incident to such employment, as distinguished from risks to which the general public Is exposed. To illustrate: * * * On the other hand, it may be fairly said that one of the most common risks to which the general public Is exposed is that of slipping and falling upon ice. This risk Is encountered by people gen- erally, irrespective of employment. * * * ' The board also referred to the fact that claimant was upon his own premises as of some force, but appar- § 117 workmen's compensation 422 from walking on or along railroad tracks/'' when incurred in going , to or from work/* and not on the employer's premises/' But the ently denied an award upon the ground quoted, which is well supported by former decisions. In the late case of Sheldon v. Needham (1914) 7 B. W. C. C. 471, C. A., a servant sent to mall a letter slipped in the street, upon a banana peel or some other slippery object, breaking her leg. Citing as con- trolling several cases involving the same principle, the court held that, al- though claimant was in the performance of the exact thing ordered done, there could be no award, because the accident was not due to any special or extra risk connected with and incidental to her employment, but was of such a nature as to be equally liable to happen under like circumstances to any one in any employment, and whether employed or not. This unfortunate ac- cident resulted from a risk common to all, and which arose out of no special exposure to dangers of the road from travel and traffic upon it; it was not a hazard peculiarly incidental to or connected with deceased's employment, and there is not shown to have a causal relation with it, or to have arisen out of it." Slipping and falling on ice is one of the mo^t common risks to which the public is exposed, and is encountered by people generally, irrespective of T! Where an employ<5 of a railroad company, doing clerical work in its roundhouse, was injured after he had left his place of employment for his home and had passed out of the gate of the roundhouse yard and had crossed a public street, and was walking along his employer's railroad tracks running diagonally through the next block, these tracks being a short cut to the street car line, his risk after reaching the public street was that of the trav- eling public in general. Hodgkinson v. Southern Pacific Co., 2 Cal. I. A. C. Dec. 1039. 7 8 Where on the night preceding a holiday the employer, who was going away on a business trip, requested his department store manager to meet him at the store at 10 o'clock the next morning, and the employe, while hur- rying to get there in time, had his wrist fractured at his home while cranking his automobile, which he believed would take him more quickly to the store than the street cars, the case was not an exception to the general rule that in going to and from his place of employment the employe's risks are those of the commonalty. Graham v. Daly Bros., 2 Cal. I. A. O. Dec. 794. 7 9 Where an employ 6 is given home work, and on returning to her place of employment on the following day with a bundle of work stumbles and falls upon a public sidewalk, not upon the premises of the employer, sus- taining serious injury and disability, she is not entitled to compensation. Where employes are going to and returning from their places of employment, and are not injured upon the employer's premises, their risks are those of the commonalty, and do not grow out of the employment. Malott v. Healey, 2 Cal. I. A. C. Dec, 103. 423 CIRCUMSTANCES UNDBE WHICH COMPENSATION DUB § HT general rule that, while an employe is on his way to or from his place df employment, his risks are of the commonalty, and not of their employment, and such an accident does not arise out of the employment. Worden v. Commonwealth Power Co., Mich. Wk. Comp. Cases (1916), 14. A street railway motorman, injured by an automobile while on his way to have his watch tested, which was required by the employer, but whose time while so doing was not paid for, suffered a general risk not due to his em- ployment, and the accident did not arise out of it. De Voe v. New York State Rys., 218 N. Y. 318, 113 N. E. 256, affirming 169 App. Div. 472, 155 N. T. Supp. 12. Where the employe went with his employer in the morning to another part of the city to get merchandise for the day's sale, and on the way back stopped at a restaurant for breakfast, as was his usual custom, and slipped and fell on the icy sidewalk in front of the restaurant, the risk was one of the commonalty, and the accident did not arise out of the em- ployment. Bartz V. Friedlander, The Bulletin, N. Y., vol. 1, No. 11, p. 11. The accident did not arise out of the employment where a laundry driver, after putting up his team for the night, was riding home on his bicycle and injured by being run into by an automobile (Ogilvie v. Egan, 1 Cal. I. A. C. Dec. 79) ; where a boy, employed in a general retail store and accustomed on going to work each morning to buy vegetables for his employer at a market located on the direct route from his home to the store, was accidentally in- jured by a collision with a street car, whUe on his way to work and before reaching the market (Hummer v. Hennings, 2 Cal. I. A. C. Dec. 859) ; where a deputy marshal, immediately preceding the close of his working hours, drove his motorcycle on his usual route homeward to see his wife, and incidental to his purpose intended to inspect an electric light in disrepair on his route, his regular duties requiring such inspection for the purpose of making re- port, but before reaching such light was seriously injured in a collision with a horse vehicle (Eastman v. State Compensation Insurance Fund, 2 Cal. I. A. C. Dec. 390) ; where a farm laborer, starting out on a bicycle to go to his work, was upset by his own dog and fatally injured (Greene v. Shaw [1912] 5 B. W. C. C. 573, C. A.) ; where a builder's laborer, hurrying across the street during the breakfast hour for a supply of whitening for his master, was knocked down and Injured by an electric tram car (Symmonds v. King [1915] 8 B. W. C. C. 189, C. A.) ; or where a branch manager, who was re- turning on a bicycle from a necessary visit to another branch shop after closing time, having ridden his bicycle at the suggestion of the manager of the other branch, slipped sideways and was injured (Slade v. Taylor [1915] 8 B. W. C. O. 65, C. A.) ; where a newspaper reporter, whose duties required the gathering of news in the town in which he lived and ui the town two miles away where the newspaper was published, was injured while returning at the close of a day's work to his home on the usual and best bicycle route, on a bicycle furnished by the employer, his leg being crushed by a passing § 117 workmen's compensation 424 the particular employment in which he is engaged, is not a rule of universal application; it applies more to those cases where the employer maintains a plant or place of employment than where the placeof employment is changeable.*" It is inaccurate to state that under the "risk of commonalty doctrine" the employer is re- lieved of responsibility if the employe's risk is no greater than the risk of other persons in the community so employed. A clerk cut- ting his finger while sharpening a pencil in the course of his em- ployment is entitled to compensation if the injury proves serious, notwithstanding the fact that his danger is no greater than that of any person carrying a pocketknjfe, whether employed or not. This doctrine must therefore be confined to cases where the risk is not naturally incident to the employment.*^ A clearer view of the application of this doctrine may be obtained by noticing further concrete cases wherein it has been illustrated. Where a traveling salesman, while conversing in x social way in a hotel at which he was stopping on a business trip, fell, fracturing his leg, and his fall was not attributable to any defect or peculiarity of construction, of the hotel or to the fact that he was a guest there- of, the risk was a risk of the commonalty, and not one inherent in or incidental to his employment.*^ Where a traveling salesman was asphyxiated by escaping gas in the hotel while asleep, his death was due to an ordinary hazard of living, and did not arise out of his employment.** But where the engineer of a fishing boat went to work in the dark of early morning, crossing from the wharf over two other larger vessels to where he had left his boat, moored automobile, his risks were those of the commonalty, the same as any other bicycle rider proceeding along that road, and hence the accident did not arise out of his employment. State Compensation Insurance Fund v. Lemon, 2 Cal. I. A. C. Dec. 507. 80 Slattery v. Ocean Accident & Guarantee Co., 2 Oal. I. A. 0. Dec. 522. 81 Ketron v. United Railroads of San Francisco, 1 Cal. I. A. C. Dec 528. 82 Gaskill V. Voorhies Co., 2 Cal. I. A. C. Dec. 1020. 88 Eeed V. Booth & Piatt Co., 1 Conn. Comp. Dec. 121. 425 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 118 alongside another vessel because of stormy weather the preceding night, and found that the boat had been changed in the night to its usual berth alongside a pier nearby, the captain calling out in the dark for him to "come over here," the falling of the engineer into the water while proceeding to return over the two other vessels, as necessity required, was an accident growing out of and inci- dental to his employment.'* When he left the public wharf to go to the point where he believed the ship to be, or to return from that point to the ship, his risks were no longer those of the common- alty, but were special risks of his occupation.'" § 118. Risks external to the employment, but special exposure to risk due to the employment An injury is due to the employment where, though the risk incur- red is external to the employment, a special degree of exposure to the risk is caused by the employment.'* There have been frequent 8* Slattery v. Ocean Accident & Guarantee Co., 2 Cal. I. A. O. Dec. 522. SB Id. 88 As a general rule induries whicli are suffered from so-called "acts of God," such as sunstroke, freezing, lightning, etc., do not arise out of the em- ployment of an injured employ^, for the reason that such casualties are risks which the whole citizenry takes. Where, however, the risk of the employ^^ for injuries of this sort is clearly greater than that of the average person in the same community, then such special exposure to the danger causes the ac- cident, if it occurs, to arise out of the employment. Fensler v. Associated Supply CO., 1 Cal. I. A. C. Dec. 447. Where a person is employed in piling and unpiling bags of cement in a warehouse which has an iron roof and no windows, and while so employed upon a hot day, a thermometer outside reg- istering 105 degrees in the shade, is overcome by heat, such employ^ was es- pecially exposed by his employment to the danger of sunstroke, and such accidental injury arose out of his employment. Id. The injury arose out of the employment where a lineman, while engaged In erecting a new line, was forced by a violent rainstorm to seek shelter with others under cars standing on a switch, no other shelter having been provided by his employer, and was injured from these cars being unexpectedly moved (Workmen's Compensation Law, § 10; Moore v. Lehigh Valley R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620) ; also where a teamsman was eating his dinner in his employer's stable, which was Ms proper place, and was bitten § 118 workmen's compensation 426 occasions for applying this rule to street accidents.'^ Injuries re- ceived on the street by an employe sent on a special mission are by the stable cat (Kowland v. Wright [1909] 1 B. W. C. C. 192, O. A.). It lias been held that injuries received from lightning on a high and unusually exposed scaffold, from a stone thrown by a boy from the top of a bridge at a locomotive passing underi^ath, and from an attack upon a cashier travel- ing with a large sum of money, all arose In the course and out of the em- ployment, while the contrary had been held as to Injuries resulting from a piece of iron thrown in anger by a boy in the same service, from fright at the incursion of an insect into the room, and from a felonious assault of the employer. In re Employers' Liability Assur. Corporation, 215 Mass. 497, 102 N. B. 69T, L. R. A. 1916A, 306— the court referring to Andrew v. Failsworth Industrial Society, [1904] 2 K. B. 32, Challis v. London & Soilthwestern Ry., 11905] 2 K. B. 154, Nisbet v. Rayne & Burn, [1910] 2 K. B. 689 ; Armitage v. Lancashire & Yorkshire Ry. [1902] 2 K. B. 178 ; Craske v. Wigan,- [1909] 2 K. B. 635 ; Blake v. Head, 106 L. T. Rep. 822. s7 A person whose employment requires him to walk along a certain por- tion of the street several times a day, regardless of weather conditions, is pe- culiarly exposed by such employment to the danger of street accidents while walking along that portion of the street in question, and is entitled to com- pensation if he is injured while so doing. Ketron v. United Railroads of San Francisco, 1 Cal. I. A. C. Dec. 528. Where an employ^ was compelled to travel about the streets in going from ■one job to another, and was struck by an automobile while en route between jobs, it was not unreasonable to hold that the danger of being struck by street cars, automobiles, and traflBc of every description should be taken ac- count of, that the very nature of his occupation itself exposed the workman to the unusual risk of an accident of this nature, and that the accident arose out of his employment. Kunze v. Detroit Shade Tree Co. (Mich.) 158 N. W. S51. In McKay v. Metropolitan Life Insurance Co., 1 Conn. Comp. Dec. 380, where the claimant's husband, an Insurance collector and agent, was run down and killed by an automobile when about to board a car for the pur- pose of keeping an appointment and making a collection, after having just left another house where he collected a bill, he, sustained an injury arising •out of his elnployment. Street accidents due to increased risk arose out of the employment where a canvasser collided with a tram car and was killed, while riding a bicycle on his rounds (Pierce v. Provident Clothing & Supply Co., Ltd. [1911] 4 B. W. C. C. 242, 0. A.) ; where a drayman was killed by a motorcar while cross- ing the road to get to his dray (Martin v. Lovibond & Sons, Ltd. [1914] 7 B. W. C. O. 243, C. A.) ; where a salesman and collector was kicked on the knee 427 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 118 •compensable if the mission is the principal factor in such employ- ment, and not merely incidental to the being on the street.'* The •ordinary risks of travel are naturally incident to travel, An em- ploye injured while using the streets or vehicles of travel on his employer's business is entitled to compensation without proof that he was specially exposed to the risk. It is therefore not necessary Ihat he be employed as traveling salesman, or required to travel more than the average person. The risk arises out of the employ- ment, whether he be obliged to travel upon one occasion only or regularly.'* The employment of a teamster on the streets of a large by a passing horse while cycling on his rounds (McNeice v. Singer Sewing Machine Co., Ltd. [1911] 4 B. W. C. C. 351, Ot. of Sess.) ; and where a railway fireman, returning home from work by train (admittedly in the course of his •employment), was last seen standing up putting a basket on the rack just as the train started, and Immediately afterward fell out of the carriage and was fatally injured, without any one seeing just how the accident happened (Pomfret v. Lancashire & Yorkshire Ry. Co., [1903] 2 K. B. 718, 5 W. 0. O. 22 [Act of 1897]). Where the employer failed to furnish proper toilet facilities for employes in the building where they were at work, so that they were obliged to and ■did habitually resort for such facilities to another building of the employer, which lay across a public street, and which custom persisted for a considera- ble time, and, as the court was entitled to find, was therefore known and as- sented to by the employer, and where the deceased, while crossing the street in working hours to reach the toilet in question, was struck by a passing vehicle, sustaining injuries which caused his death, the trial court was jus- tified in finding that he came to his death by an accident which arose out of his employment. Zabriskie v. Erie 11. Co., 86 N. J. Law, 266, 92 Atl. 385, L. R. A. 1916A, 315. This case cites Elliott v. Bex (1904) 6 W. O. G. 27, wherein the court sustained an award in favor of a workman injured while coming from the toilet during the dinner hour, and refused to follow Pearce v. Southwestern Ry. Co. (1899) 2 W. C. C. 152. 88 Malott V. Healey, 2 Cal. I. A. C. Dec. 103. 89 Bush V. Ickleheimer Bros. Co., 1 Cal. I. A. C. Dec. 522. The risk of slipping while walking upon the employer's business is directly incidental to any employment which requires an employ^ to walk upon the business of his employer. It is therefore immaterial whether he be required so to walk only at irregular intervals or regularly, as for a traveling salesman. Ketron v. United BaUroads of San Francisco, 1 Cal. I. A. 0. Dec. 528. § 119 workmen's compensation 42S city accentuates his street risks above those pf other occasional travelers, and causes a special degree of exposure to this risk ordi- narily external to the employment, and where he is killed by a heavy load of beams which fall from a building under construction,, the accident arises out of his employment."" * § 119. Injury from forces of nature The general rule drawn from the English cases is that, where the accident is due to the forces of nature which might have been fore- seen, there is an aggravation of the danger if the workman is more exposed as a result of his employment than the ordinary man, and, if the danger is increased by reason of the employment, the em- ployer is liable. The employer cannot ordinarily be held liable for compensation for disability from sunstroke, freezing, and light- ning. These are forces of nature which he cannot foresee and pre- vent, and the employe is ordinarily no more subject to injury from such sources than are others. But where the work and the method of doing the work exposes the employe to the forces of nature ta a greater extent than he would be if not so engaged, the industry increases the danger from such forces, and the employer is liable.'^ Thus an injury from being struck by lightning arises out of the employment where the employment necessarily placed the work- man at the time of the accident in a position subjecting him to un- usual risk from lightning, but not otherwise.'^ In a Michigan case soMahowald v. Thompson-Starrett Co. (Minn.) 158 N. "W. 913. 91 Skougstad v. Star Goal Co., Eep. Wis. Indus. Com. 1914-15, p. 31. 92 "As far as the instant case is concerned the scope of the English statute- may be considered identical with the Michigan Workmen's Compensatioa Law. Several cases have been passed upon by the English courts arising un- der the English law, where compensation was sought for injury by lightning, and, except in cases where the employment necessarily placed the employ^ at the time of his injury In a position subjecting him to unusual risk from lightning, compensation has been denied." Klawinski v. Lake Shore & M. S. Ky. Co., 185 Mich. 643, 152 N. W. 213, L. R. A. 1916A, 342. A driver for an ice company was required to follow a fixed route, in sub- 429 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 119 the court quotes with apparent approval a memorandum opinion filed in the case wherein the Commission said : "Lightning stroke is stantlal disregard of weather conditions, tliougli permitted to seek shelter in times of necessity. When a severe rainstorm, accompanied by lightning, was in progress, he left his team and went to a tail tree just within the lot line, «ither for protection or in the performance of his duties soliciting orders. Lightning struck the tree, and the same bolt struck him, and he was kUled. It was held that the evidence sustained a finding that the death of the de- cedent was the result of an accident "arising out of" his employment, with- in the meaning of the Workmen's Compensation Act (Laws 1913, c. 467, § 9 ; Gen. St. 1913, § 8203). State ex rel. People's Coal & Ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344. In this case the court cited State ex rel. Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176, 151 N. W. 912, wherein the court adverted to the distinction drawn by the courts between the statutory phrases "arising out of" and "in the course of," but did not deem it wise to attempt the making of a definition accurately distinguishing the two phrases. The court held that the present case did not call for such distinction. Andrews v. Fails worth Industrial Society, Ltd., [1904] 2 K. B. 32, 90 L. T. 611, a leading case, holding that where a brick- layer was killed by lightning while working on a scaffold 23 feet from the ground, in a position which subjected him to peculiar danger and risk from lightning, his death arose out of his employment, and Roger v. School Board, [1912] S. C. 583, wherein the court said: "To be struck by lightning is a risk common to all and Independent of employment, yet the circumstances of a particular employment might make the risk not a general risk, but a risk sufficiently exceptional to justify its being held that accident from such risk was an accident arising out of the employment, were also cited. Notice was taken of Klawinski v. Lake Shore, etc., R. Co., 185 Mich. 643, 152 N. W. 213, L. R. A. 1916A, 342, which involved the death of a railway section hand, kUled by lightning when ui a barn near the right of way, to which he had gone for protection from a storm. In that case the man was exposed to no peculiar danger by the character of his work. The court, in referring to cases under the English law, said that compensation had always been denied for injury by lightning, "except in cases where the employment necessarily placed the employ^ at the time of his injury in a position subjecting him to unusual risk from lightning." The opinion of the court was that: "Dece- dent, by reason of his employment, was in no way exposed to injuries by light- ning other than the community generally in that locality." In the Minne- sota case the court distinguished Hoenig v. Industrial Commission of Wis- consin, 159 Wis. 646, 150 N. W. 996, L. R. A. 1916A, 339, holding that, where an employ^ was struck by lightning while working on a dam, his death did not arise out of his employment. The Wisconsin Industrial Commission held that his death did not arise out of his employment. The circuit court af- § 119 workmen's compensation 430 not popularly spoken of as an accident where it comes from the action of the elements without the agency of man. When the in- dustry, through the agency of man, combines with the elements and produces injury to the employe by lightning stroke, it may welt be said that the injury grows out of the employment and is acci- dental. Such has been the decision of the English courts under the- English Compensation Act. We are aware that the language of the- English Act differs from the language of our Act, but if we accept the -construction of the legislative committee which drew the Act,, then we find the meaning of the two Acts in this respect identical.. Clearly the industry may be and ought to be charged with the bur- den resulting from the hazards of the industry itself. * * * We have no desire to pass upon the question of public policy. That, function is wholly within the province of -the Legislature. We merely desire to correctly interpret the legislative intent. The leg-- islative committee in its report says that 'compensation shall be- paid when the injury grows out of the employment; it makes no- difference who is to blame ; it is sufficient that the industry caused, the injury.' So in the case of lightning stroke, if we can find as a. firmed its holding, saying, however, that upon the same evidence it would not make a like finding, and the holding was sustained by the Supreme Court.. By the Wisconsin statute the findings of the Commission are final upon, questions of fact ; and by section 30 of the Minnesota Act the review by the Supreme Court In compensation cases is by certiorari, and It is a review of questions of law and not of questions of fact. The Minnesota case also dis- tinguished Kelly V. Kerry Council, 42 Ir. L. T. 23, wherein the court held that one killed by lightning while working on a public road did not come to his. death from an accident "arising out of his employment," and distinguished the facts from those present in the Andrews Case, in that there was present no peculiar risk or danger incident to the employe's work, so that it could be said that the accident arose out of his employment. Klawlnski v. Lake- Shore & M. S. Ry. Co., 185 Mich. 643, 152 N. W. 213, L. R. A. 1916A, 342. In Jaskulka v. Hartford & N. Y. Transportation Co., 1 Conn. Comp. Dec. 542, it was held that there was insuflaclent evidence to show that plaintlfC's. death from sunstroke was due to the conditions of his employment, as dis- tinguished from that of other persons working at the same time in the same locality, and that the injury was not shown to have arisen out of the em-- ployment. 431 CIECUMSTANCBS UNDER WHICH COMPENSATION DUE § 119 fact that the injury grew out of the employment, or that the in- dustry caused the injury, then undoubtedly compensation should be p'aid. Assuming the law to provide compensation for industrial accidents only — those growing out of the employment and caused by the industry — we must approach the consideration of each case of injury by lightning on the question of fact. Did the injury grow out of the employment, and did the industry cause the in- jury? The act provides for compensation for 'personal injuries accidentally sustained * * * where the injury is proximately caused by accident.' We are of the opinion that this language refers to industrial accidents, those caused by the industry and chargeable to the industry, and does not apply to injuries resulting from those forces of nature described in the common law as acts of God, such forces as are wholly uncontrolled by men." The rule applicable in the case of lightning applies in case of injury from other forces of nature such as injury from frostbite,'^ glare or heat »8 A longshoreman employed in unloading a vessel on a pier in an open harbor is exposed to greater danger and likelihood of getting frozen than an ordinary outdoor worker, and the freezing of his hands while so employed was an accident arising out of his employment. McManaman's Ciise (Mass.) 113 N. B. 287. A workman hired to deliver coal during extremely cold weather, who froze his foot In the course of delivering a load of coal at an unoccupied house, where there was no opportunity to warm himself, was especially exposed to the danger of freezing, and could recover compensation, even though the injury was one commonly known as due "to the forces of nature." Skougstad v. Star Coal Co., Rep. Wis. Indus. Com. 1914-15, p. 31. In Dorrance v. New England Pin Co., 1 Conn. Comp. Dec. 24 (affirmed by superior court on appeal), it was held that a watchman whose duties required him to get coal from a shed and wheel it to the boiler room, about 35 feet away, several times during the night, was not exposed to undue hazard of frostbite, and that injuries therefrom did not arise out of his employment. The injury did not arise out of the employment where the hand of a jour- neyman baker was frostbitten while he was delivering bread (Warner v. Couchman [1912] 5 B. W. C. C. 177, H. L., and [1911] 4 B. W. C. C. 32, C. A.), or where a seaman had his hands frostbitten while handling frozen ropes at Halifax, Nova Scotia (Karemaker v. Owners of S. S. Corsican [1911] 4 B. W. C. C. 285, C. A.). :§ 120 workmen's compensation 432 of the sun,** and injury from being struck by articles dislodged by the wind.*^ § 120. Injury caused by coemploye or others An accident arises out of the employment whefe it is incidental thereto and a natural consequence thereof, though caused by a fellow workman °* or others," but not if incurred while the injured 84 The injury arose out of the employment where a seaman, while his ship was in port at Hayti, was put on duty on a blackened steel deck without any shade, and the reflection of the blazing sun Injured his eyesight (Davies v. Oillespie [1912] 5 B. W. C. O. 64, O. A.), and where a seaman was incapacitated by sunstroke while he was painting the sides of his ship, in port in Mexico (Morgan v. Owners of S. S. Zenaida [1910] 2 B. W. O. C. 19, C. A.), but not where a school janitor, sent by the head master to deliver a message on a very hot day, became giddy and fell, with fatal consequences (Rodger v. Paisley School Board [1912] 5 B. W. C. C. 547, Ct. of Sess.), or where a plumber, who was laying pipes in a road on a very hot day, was of impaired vitality, and had to stoop a great deal, iand sustained apoplexy or sunstroke while so employed, causing his death (Robson, Eckford & Co., Ltd., v. Blakey [1912] 5 B. W. C. C. 536, Ct. of Sess.). 95 The injury arose out of the employment where a workman was stooping over his work, so that he could not see the fall of a piece of slate, which was blown from a neighboring roof during a gale, and was struck on the head by it (Anderson & Co., Ltd., v. Adamson [1913] 6 B. W. C. O. 874, Ct. of Sess.), but not where a carter was leading his horse and cart through a yard, and a sheet of iron was blown from a neighboring roof so as to strike him (Kinghorn v. Guthrie [1913] 6 B. Wl C. C. 887, Ct. of Sess.). »e In Re Etaployers' Liability Assur. Corporation, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, it was held that where a workman was killed by an intoxicated fellow workman, whose dangerous disposition, when intoxicated, was known to the employer, the injury arose out of the employment. The ■court said: "The injury came while the deceased was doing the work for which he was hired. It was due to the act of an obviously Intoxicated fellow workman, whose quarrelsome disposition and inebriate condition were well known to the foreman of the employer. A natural result of the employment of a peaceable workman in company with a choleric drunkard might have been found to be an attack by the latter upon his companion. The case at bar is quite distinguishable from a stabbing by a drunken stranger, a felonious 8' See note 97 on following page. 433 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 120 attack by a sober fellow workman, or even rough sport or horseplay by companions, who might have been expected to be at work. Although It may be that upon the facts here disclosed a liability on the part of the defendant for negligence at common law or under the Employers' liability Act might have arisen, this decision does not rest upon that ground, but upon the causal connection between the injury of the deceased and the conditions under which the defendant required him to work." Where a workman was injured in a fight with two Italian fellow employes, who disliked him because he had previously taken their place when they were discharged, the accident was incidental to the employment, and might have been reasonably anticipated, and therefore arose out of the employment. Harnet v. Steen, 2 N. Y. St. Dep. Rep. 492 (affirmed in 169 App. Div. 905, 153 N. T. Supp. 1119, and in 216 N. Y. 101, 110 N. E. 170). The accident arose out of the employment where a workman was using a brush which 'belonged to another machine, and was injured when the work- man to whom it belonged snatched it from his hand, not intending to cause injury (Bng. Act. 189T; Mclntyre v. Rodger & Co. [1904] 6 F. 176); also where a newspaper reporter was ordered by his employer to get a first copy of the newspaper off the press to see if the makeup was correct, and was forcibly resisted by the pressman, the reporter repeatedly and properly attempting to do as he was instructed, and then, when about to report the matter to his superior, and as a consequence of his proper efCorts, was unexpectedly and without further provocation assaulted (Brown v. Berkeley Daily Gazette, 2 Cal. I. A. C. Dec. 844). »7 Where a journeyman carpenter was struck and killed by a bar of metal, which fell from an upper story of a building in course of construction, upon which he was working, the bar being caused to fall by the workman of an independent contractor, the accident arose out of his employment. That the bar was caused to fall by a workman of an independent contractor did not preclude recovery of compensation. (P. L. 1911, p. 136, § 2) Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458. This case cites Challis v. London & Southwestern R. Co., [1905] 2 K. B. 154, holding that where an engine driver, while driving an engine under a bridge, was injured by a stone dropped by a boy from the bridge, his injuries were caused by an accident arising "out of" and in the course of his employment, distinguishing Armltage v. Lancashire & Yorkshire Ry. Co., [1902] 2 K. B. 178, wherein the accident was not one of the risks to which it was within the scope of the employment of the workman to submit, and citing Nisbet v. Rayne and Burn, [1910G 2 K. B. 689, holding that the death of a cashier, who was robbed and murdered in a railway carriage while carrying money to pay the wages of his employer's workmen, was caused by accident arising "out of" and in the course of his employment, on the ground that the risk of being robbed and murdered is a risk Incidental to the employ- ment of those who are known to carry considerable sums in cash on regular days by the same route to the same place, citing also Anderson v. Balfour, HoN.CoMP.— 28 § 120 workmen's compensation 434 workman is acting outside the scope of his employment,®' or if caused by something done by a fellow workman outside the scope of [1910] 2 I. R. 497, holding (Cherry, L. J., dissenting) that injury sustained by a gamekeeper through a criminal attack by poachers was injury arising "out of" and in the course of his employment. Where an employ^ with a num'ber of other employes, was standing in line before a pay window for the purpose of receiving his pay check, and some of the employes began pushing and shoving in a friendly way, and applicant was pushed out of line and received a fall, from which he was injured, the mere scuffling does not take the employs temporarily out of the employment, but he is entitled to compensation for injuries sustained while on the grounds of the employer, for he was to all intents and purposes in the employ of the em- ployer, and the Injury arose out of the employment. Garls v. Pekin Cooperage Co., Bulletin No. 1, 111., p. 75. The fact that the injury, occasioning the death of an employs while in the course of his employment, did not result from any negligence on the part of the employer, his officer, agent, or employs, but was caused solely by the negligence of a third person, did not relieve the decedent's employer from paying compensation on account of such death. Biddlnger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70. Accidents arising out of employment: Where several lads were picking stones and other foreign matter from coal as it passed by them on a moving belt, and one of them threw a stone at another, and his eye was so badly injured as to have to be removed. Clayton v. Hardwick Colliery Co., Ltd. (1914) 7 B. W. C. C. 643, C. A. Where an unpopular schoolmaster of an in- dustrial school died of injuries received from an assault by a deliberate con- spiracy of his pupils. Trim Joint District School v. Kelly (1914) 7 B. W. C. C. 274, H. Ir. Wlhere the foreman of a firm of furniture movers was fatally injured by an assault by a man who had been disappointed In getting a van on hire, and the men who hired vans on their own account were of a rough class, and several previous assaults of this nature had been made on differ- ent persons. Weekes v. Stead & Co. (1914) 7 B. W. C. C. 398, C. A., where a taxicab driver, driving an officer from Plymouth to an outlying fort during the war, did not hear the sentry's challenge, because of the noise of an engine and stormy weather, and was shot in the leg. Thorn v. Humm & Co. (1915) 8 B. W. C. C. 190, C. A. 8 8 Where a carpenter foreman, working on his brother's house, got into an altercation with some men, and his brother, taking charge of the controversy, was succeeding, and he then began to take part in the tight, and was struck by a piece of iron thrown at him, the accident did not arise out of his em- ployment. Clark V. Clark (Mich.) 155 N. W. 507. 435 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 120 his employment," particularly if the act be malicious,^ or if caused by the willful act of a third person committed against the employe 8 The injury, to be "out of" the employment, when caused by a coemplpyS, must be a natural incident of it, one which a reasonable person familiar with the situation might expect to happen as a result of the exposure caused by the employment. The Act means more than that it (the accident) must arise out of the parties being brought together by the employment (where the accident results from the act of a fellow-servant). It means that it must have an origin in the occupation in which the parties are engaged. Ely v. M, S. Brooks & Sons, 1 Conn. Comp. Dec. 390 (superior court reversing commis- sioner). Where a workman engaged ia installing machinery was taken ill, and being advised by an employs of the company on whose premises he was working to take some salts, which the employg said might be had at a certain place in the factory, took a chemical from the place indicated, which, however, was poison and resulted in his death, the accident did not arise out of his em- ployment. O'Neil V. Oarley Heater Co., 218 N. Y. 414, 113 N. E. 406. Where a 17 year old boy, carrying toys from the basement to a reserve room, steps into the room of a fellow employ^ with whom he was very friendly, and with the remark, "Look pleasant," points the toy camera at him and, pressing the button, causes the wire spring to shoot into his face, striking and destroying the sight of one of his eyes, such accident does not arise out of the employment, and such injured employ^ is not entitled to compensation. The act causing injury was more than a mere pleasantry in passing, as in Flint V. Coronado Beach Co. The act of pointing a toy camera and discharg- ing it was of such a character that the possibility and even probability of harm coming thereby should reasonably have been anticipated by the offend- ing employs, notwithstanding the fact that he was a boy 17 years of age. Fishering v. Daly Bros., 2 Gal. I. A. C. Dec. 940. The injury did not arise out of the employment where a workman was injured by a piece of iron thrown in anger by another workman at a third (Armitage v. Lancashire & Yorkshire Railway Co. [1902] 4 W, C. C. 5, C. A.); where a mine worker, in dodging some rubbish thrown by a fellow workman, struck his head against the side of the passage and was injured (Baird & Co., Ltd., V. Burley [1909] 1 B. W. C. C. 7, Ct. of Sess.) ; and where one workman pushed a fellow workman, without any reason, and he in saving himself accidentally injured the eye of his assailant (Shaw v. Wigan Coal & Iron Co., Ltd. [1910] 3 B. W. C. C. 81, 0. A.). lA workman. Injured by a malicious act of a fellow workman, does not come within the scope of the Washington act. (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 5. § 120 workmen's compensation 436 for reasons personal, and not because of his employment,* or be- cause such third person is drunk.' An act done by some one who happens to be in the same employment, which has no relation to that employment, but was a wrongful act, and was intended to be a wrongful act against another person in the same employment, is not within the scope of*the employment as part of the risk of the employment.* For a workman to throw something at another is 2 Even though, the injury or death he caused by the tort of a third person, under the Washington Act the emplo.y6 may obtain compensation by election and assignment, except where a willful act of such third person, committed against the employs, is for reasons personal and not because of his employ- ment. (Wk. Comp. Act Wash. § 1) Riulings Wash. Indus. Ins. Com. 1915, p. 3. Fatal injuries to a cigar store clerk, sustained in a quarrel between him and a stranger, not a customer, did not arise out of his employment, in the absence of evidence that the quarrel was not a personal one. Treadwell v. Marks, 3 Cal. I. A. C. Dec. 3. An assault, to come within the Compensation Act, must either be pending the employment of the one who commits it, or so shortly after the cessation of the employment as to be necessarily connected with it, or at least must be for some real grievance shown to have arisen out of the employment. Cowen V. Cowen New Shirt Laundry, Inc., The Bulletin, N. T., vol. 1, No. 8, p. 11. Where a workman, in a quarrel with another employ^ fell back against a machine, and died without recovering consciousness, his injury did not arise out of the employment. Malloy v. Fidelity & Casualty Co. of N. T., 2 Mass. Wk. Comp. Cases, 401 (decision of Com. of Arb.). Where an engineer was shot in pursuance of the premeditated purpose and intention of a fellow workman, the occurrence was not an industrial accident, though it happened on the premises of the employer, since there was no greater hazard of being shot about those premises than any other. Arnold v. Holeproof Hosiery Co., Kep. Wis. Indus. Com. 1914-15, p. 32. 3 The injury did not arise out of the employment where a cook in a hotel, in trying to avoid the pestering of a drunken guest who came into the kitchen, injured her arm (Murphy v. Berwick [1910] 2 B. W. C. C. 103, C. A.), or where a drunken man, who had been told by a carter to leave his horse alone, struck the carter two blows, and the carter died from the results (Mitchinson v. Day Bros. [1913] 6 B. W. C. C. 191, C. A.). The injury received by a bartender from a glass thrown at him by a drunken patron, who does not know what he is doing, arises out of the employment, where the glass is not thrown in a personal altercation between them. State ex reL Anseth v. District Court (Minn.") 158 N. W. 713. 4 Armitage v. Lancashire & Yorkshire Kailway Co. (1902) 4 W. C. C. 5, C. A. 437 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 120 not a danger which is incidental to employment in a coal mine, but is an act which is entirely butside the scope of the employment." But the disobedience by fellow workmen is as much one of the risks of a man's employment as a defect in the mechanical appliances.* That the injury was caused by an independent criminal agency does not render it noncompensable where the danger of injury by such means was an incident of the performance of the work, as well as of the time and place of the performance.'' Injuries received in protecting the employer's property or interests against law violators are compensable where the injured employe's acts are within the scope of his employment, as where one in charge of his employer's business or property and in the discharge of his duties is injured by an unruly employe,* trespasser," robber,^" or passen- 6 Balrd & Co., Ltd., v. Burley (1909) 1 B. W. O. C. 7, Ct. of Sess. 8 Scott V. Payne Bros., Inc., 85 N. J. Law, 446, 89 Atl. 927, citing Bryant V. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Archibald v. Ott (W. Va.) 87 S. E. 791. 7 This appears from cases heretofore noticed. An injury to a railroad en- gine driver, occasioned by a stone thrown from a bridge by a boy while the engine was passing under it, was held to be an accident arising out of the employment (Challis v. London & S. W. Ry. Co., [1905] 2 K. B. 154), because such a danger is a matter of common knowledge and is accordingly deemed to have been within the contemplation of both master and servant. ' Murder of a paymaster incident to his robbery is an accident arising out of the em- ployment (Nisbet V. Kayne and Burn, [1910] 2 K. B. 689), because the habitual carrying of large sums of money in the course of the employment and as an act of service therein is an exposure to the risk of an attack by robbers. A premeditated fatal assault on a schoolmaster by bad and unruly pupils is an accident arising out of the employment (Trim Joint District School Board V. Kelly [1914] App. Gas. 667). 8 The danger of being turned upon and beaten by an unruly employe in the event of being reproved or discharged for disobedience is a risk which » The injury arose out of the employment where a mill superintendent was shot and killed by a trespasser whom he ordered out, and it was not only a part of his general duties to order off trespassers, but he had special instruc- tions as to this particular trespasser (In re Eeithel, 222 Mass. 163, 109 N. E. 951, L. R. A. 1916A, 304, and where a gamekeeper on duty was attacked by poachers and injured (Anderson v. Balfour [1910] 3 B. W. 0. C. 588, C. A.). 10 See note 10 on following page. § 120 workmen's compensation 438 ger/^ or by a customer on whom he is waiting/^ and where a peace officer is injured in attempting to make an arrest or prevent a dis- every foreman takes, and arises out of, and is incidental to, his employment. Assaults arising out of the exercise of his authority by a foreman are to be distinguished from ordinary^flghts between two workmen upon a job. Rud- der V. Ocean Shore R. R. Co., 1 Cal. I. A. C. Dec. 209. Where an assistant foreman was assaulted by two workmen, whom he had just reprimanded for not doing their work properly, the accident arose out of the employment. Yume V. Knickerbocker Portland Cement Co., 3 N. T. St. Dep. Rep. 353 (af- firmed in 169 App. Div. 905, 153 N. Y. Supp. 1151). But where a teamster, whose mules broke the tongue of his wagon and put him in a frenzy of anger, unexpectedly beat the foreman, who was standing near, for not having rendered certain assistance, such unprovoked assault did not constitute a compensable accident, there having been no instructions giv- en by the foreman, or attempt to discharge or discipline the teamster. Peter- sen v. Valley Pipe Line Co., 2 Cal. I. A. C. Dec. 606. Nor was the accident compensable where a foreman was injured by a former employ^, and it did not appear that the foreman received the injury in the necessary performance of his duties, or that the unprovoked assault was even accidental as to the former employe. Halm v. Marshall, 2 Cal. I. A. C. Dec. 605. 10 The danger of being held up by a highwayman is a risk of the occupa- tion which every street car conductor or motorman has to take, and may properly be held to arise out of the employment. Morrison v. Los Angeles Ry. Corp., 2 Cal. I. A. O. Dec. 18. Where a- bartender is shot on his refusal to throw up his hands at the order of hold-up men attempting to rob a saloon at midnight, and while he is trying to reach the adjoining room to get a re- volver, the accident arises out of the employment. Henning v. Henning, 2 Cal. I. A. C. Dec. 733. Where a night watchman in a paper mUl was required in his rounds to visit places accessible and particularly inviting for an attack upon him, and the risk of attack was a complement of his employment, he being employed for that particular purpose, an assault for the purpose of rob- bery by a coemployS was an accident arising out of his employment. Walther v. American Paper Co. (N. J. Sup.) 98 Atl. 264. 11 Under the Washington Act, employes who are injured by third persons while actually engaged in the performance of their duties are entitled to com- pensation for disabilities resulting, as, for example, street car conductors, ■assaulted by disorderly passengers for insisting on obedience of the com- pany's rules. (Wk. Comp. Act Wash. § 3) Rulings Wash. Indus. Ins. Com. 1915, p. 6. 12 The employe had been instructed to decline to supply a certain customer -with merchandise until he had paid a bill long overdue. This customer, after having paid his bill and received the goods ordered, later had occasion to pass 439 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 120 turbance.** On the other hand, an injury is not compensable where the risk thereof was not involved in the employe's duties.^* the employe, and, being In an angry mood because of the latter's refusal to serve him in the first instance, called the employs a name and struck at him as he passed. The employe parried the blow and the customer laid hands on Mm, the employ^ meanwhile resisting, with the result that the latter receiv- ed the personal injury which caused him to be totally incapacitated for work. The Committee of Arbitration came to the conclusion that the employe was subjected to a risk in the proper carrying out of Ms employer's orders through no contributory action or remark of his own. The Board affirmed the Committee's decision and held that the employe was entitled to compensation. O'Connor v. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Comp. Cas- es, 387 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). Where the secretary and office manager of a company is shot by a custom- er, who has been sued by the company to collect an unpaid account, the as- sault being entirely unexpected and unprovoked, and occurring in the office of the company when the customer comes in and demands a receipt in full for the account, which has been paid, and while the secretary is making out the receipt, the accident arises out of the employment. Craycroft v. Cray- croft-Herrold Brick Co., 2 Cal. I. A. C. Dec. 654. 13 Where a deputy marshal, in attempting to ascertain the cause of a dis- turbance and to induce the disturber to desist, is, without reason, shot by such disturber, the accident is peculiarly a risk of that employment, and com- pensable. Acrey v. City of Holtville, 2 Cal. I. A. C. Dec. 587. Where a city marshal is murdered by persons whom he is seeking to arrest as suspicious characters, his widow is entitled to a death benefit. Colson v. City of Bur- bank, 2 Cal. I. A. C. Dec. 127. 1* Petersen v. Valley Pipe Line Co., supra ; Halm v. Marshall, supra. The Injury did not arise out of the employment where a workman, seeking to assist his employer, who had been beset by rowdies, was stabbed and fatal- ly Injured (Collins v. Collins [1907] 2 Ir. R. 104, C. A.); nor where an er- rand boy was assaulted by his employer, who had been in an asylum, and was subject to fits of melancholia (Blake v. Head [1912] 5 B. W. C. C. 303, C. A.) ; nor where the agent and collector of a brewery was murdered while making a delivery of beer, and it did not appear that the purpose of the at- tack was robbery, a risk connected with Ms employment, or that the em- ployer had any reason to anticipate that the attack would be made (SchmoU V. Weisbrod & Hess Brewing Co. [N. J. Sup.] 97 Atl. 723). In Devanzo v. Jarvls, 1 Conn. Comp. Dec. 435 (affirmed by superior court on appeal), where the claimant while at work was feloniously assaulted by two disreputable men, who had previously been his coemployes and who had been discharged, the attack being due to animosity cherished because claim- § 120 workmen's compensation 440 Where a night watchman is murdered by burglars whom he has surprised on the premises of his employer, his death is caused by an accident arising out of his employment.^" But the occurrence does not arise out of the employment where he is shot and killed by a fellow watchman temporarily insane, and the employer and all other persons were previously unaware of his tendency to insan- ity.^' Nor does the injury so arise where a night watchman, mis- takenly believing that two officers are robbers, fires at them, and they believing him to be a robber, return the fire, injuring him, and it appears that his duties do not involve the risk of the injury re- ceived.^' Where the owner of a small store, also local agent for an express company is killed while defending his store from robbery, and it does not appear that the robbers were endeavoring specifically to steal the express company's property, but were merely looking for valuables, without regard to ownership or custody, the death does not arise out of the employment, and the express company is not liable." § 121. Injury from horseplay or practical joking Unless the workman is actually engaged at the particular time in the performance of some duty which contributes to the injury, an injury to a workman from skylarking or horseplay or practical joking, though it may arise in the course of, cannot be said to arise ant had secured their discharge, it was held the injury did not arise out of the employment. In Loesser v. East Shore Amusement Co., 1 Conn. Comp. Dec. 449, it was held that where a bartender was injured about the face and eye by a glass thrown at him by the porter in the saloon, immediately fol- lowing an altercation over a half -eaten sandwich of claimant, which the por- ter had thrown away, the injury did not arise out of the employment, IB Mason v. Western Metal Supply Co., 1 Cal. I. A. C. Dec. 284. 16 Allyn V. Fresno Brewing Co., 2 Cal. I. A. C. Dec. 784. 17 In re Harbroe, 223 Mass. 139, 111 N. E. 709. 18 Herrick v. Wells Eargo & Co., 2 Gal. I. A. C. Dec. 85. 441 CIRCUMSTANCES DNDBE WHICH COMPENSATION DUB § 121 out of, the employment, whether the injured person instigated the occurrence or took no part in it." It has been held, however, that 19 "If two workmen leave their work and begin to indulge in horseplay, they are not doing their master's work, but, on the contrary, are doing what Is absolutely inconsistent with the carrying on of their master's work, and it cannot be said that anything which happens in consequence of such conduct arises out of the employment." (Eng. Act 1897) Lord Justice Clerk, in Mc- Intyre v. Rodger & Co. (1904) 6 F. 176. If an employs is assaulted by a fellow workman, though in play, an in- jury so sustained does not arise out of the employment. Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509. An employs who is injured by a practical joke or by the horseplay of his fellow employSs is not entitled to compensation. Such injury does not arise out of his employment, for the reason that it bears no relation to the duties he is required to perform. Koch v. Oakland Brewing & Malting Co., 1 Cal. I. A. C. Dec. 373, An employer Is not liable, under the Workmeii's Compensation Act (P. L. 1911, p. 134), to make compensation for injury to an employs which was the result of horseplay or skylarking, so called, whether the injured or deceased party instigated the occurrence or took no part in it ; for, while an accident, happening in such circumstances, may arise in the course of, it cannot be said to arise out of, the employment. HuUey v. Moosbrugger, 88 N. J. Law, 161, 95 Atl. 1007, L. E. A. 1916C, 1203. In Armitage v. L. & Y. Ky. Co., L. R. [1902] 2 King's Bench, 178, a boy of 16 years of age, engaged at work where he and other boys were employed, was pushed Into a pit by another boy for a "lark." Becoming angry, he pick- ed up a piece of Iron and threw it at the boy who pushed him in; it missed him, and hit another boy in the eye, injuring him, for which he claimed com- pensation from his employer. The county court judge held that the accident was one which arose out of and in the course of the boy's employment, and awarded compensation. This judgment was reversed. Three opinions were delivered in the case. Collins, M. R., held that the findings of the county judge on questions of fact, if there be evidence to support them and he has not misdirected himself in point of law, are final. Among other things, he said, at page 181: "A boy, engaged in the same work as the respondent, in anger threw a piece of Iron at another boy, -which missed him and hit the re- spondent. This was a wrongful' act entirely outside the scope of the employ- ment. The statute does not provide an insurance for the workman against every accident happening to him while he is engaged in the employment of his master, but only against accidents arising out of and in the course of that employment. * ■* "* As a matter of law, it cannot be said that an acci- dent caused to a workman while engaged in his work by a fellow workman's doing a wrongful act entirely outside the scope of his employment is an ac- § 121 workmen's compensation 442 where a workman's hand was crushed when he attempted, while engaged in operating a triphammer, to remove a tin can placed on cident arising out of and in the course of the employment. For these rea- sons I think the appeal must be allowed." Mathews, L. J., observed at page 182: "The Act gives compensg,tion in respect of accidents 'arising out of and in the course of the employment.' If the words had been merely 'arising in the course of the employment,' possibly the result might have been different ; but we have to deal with the additional words 'out of,' which we must sup- pose to have been introduced by the Legislature for some reason." And Coz- ens-Hardy, L. J., said at page 183: "I think that some meaning must be given to the words 'out of in the section. They appear to point to accidents aris- ing from such causes as the negligence of fellow workmen in the course of the employment, or some natural cause incidental to the character of a busi- ness. An accident arising out of the dangerous nature of a business carried on, and not involving any human agency, such, for instance, as spontaneous combustion of some material, might be said to arise out of the employment. But I do not think that an accident caused by the tortious act of a fellow workman having no relation whatever to the employment can be said to arise out of the employment." In Wrigley v. Nasmyth, Wilson & Co., Work- men's Compensation Reports (England) 1913, p. 145, it was held that where a turner while larking with another turner was knocked into a lathe, thereby injuring himself, the accident did not arise "out of and in the course of the employment" within section 1, subdivision 1, of the Workmen's Compensation Act, 1906. In Hillis v. Shaw, Id. p. 744, it was said: "A domestic servant whilst in the course of her employment was accidentally shot and injured by a farm laborer, who was carrying a gun from the house to the fields, where it was required by the employer for the purpose of shooting crows. In reply to the question, 'Did he present it at you in a joke?' put by the county court judge, the injured servant stated: 'He might have pointed it at me; it was not intended.' Held, that the evidence given by the servant herself was suf- ficient to justify the conclusion that the injury was caused by the larking or fooling of the laborer; and that therefore this was not an accident arising out of the employment within the meaning of section 1, subdivision 1, of the Workmen's Compensation Act, 1906." The injury did not arise out of the employment, where an employs was in- jured from falling while carrying a filled bucket down a flight of stairs, due to a coemployS's taking advantage of his peculiar susceptibility of being tickled (Coronado Beach Co. v. Pillsbury [Oal.] 158 Pac. 218); where a workman's eye was destroyed from being struck by a spring ejected playfully by a co- employfi from a trick camera (Fishering v. Pillsbury [Cal. 1916] 158 Pac. 215) ; where an employ^ was injured from hot water turned on him by a fellow employs as a practical joke (Vittorio v. California Pottery Co., 3 Cal. I. A. 0. Dec. 26) ; where a workman fell and was permanently crippled as a result 443 CIECUMSTANCES UNDER WHICH COMPENSATION DDE § 121 the lower die by a bystander, his injury arose out of his employ- ment, though the bystander placed the can on the die for fun in of being hoisted on a crane by his fellow workmen as a practical joke (Fitz- gerald V. Clarke & Son [1909] 1 B. W. C. 0. 197, C. A.) ; where a workman's injury was due to fellow workmen, who stumbled into him while indulging In horseplay (English Act 1897; Falconer v. London & Glasgow Engineering & Iron Shipbuilding Co., Ltd. [1901] 3 F. 564, Ct. of Sess.); where a work- man injured himself while rescuing a fellow workman who had become involv- ed in danger as a result of horseplay (Mullen v. Stewart & Co., Ltd. [1909] 1 B. W. C. 0. 204, Ct. of Sess.) ; nor where a housemaid was struck in the eye and injured by a baU which was thrown at her playfully, by a nurse un- der the same employer (Wilson v. Laing [1910] 2 B. W. C. C. 118, Ct. of Sess.). Injuries resulting from inexcusable horseplay on the part of a fellow serv- ant who was using a compressed air hose in cleaning his clothes after work, and inserted the hose into the workman's rectum, did not arise from the per- formance of services "growing out of and incidental to his employment" (St. 1915, § 2394—3, subd. 2) Federal Rubber Mfg. Co. v. HavoUc, 162 Wis. 341, 156 N. W. 143. In Ely V. M. S. Brooks & Sons, 1 Conn. Comp. Dec. 390 (superior court reversing commissioner), where the claimant while working was struck in the eye by a piece of wire thrown by a girl working near by, in a spirit of fun and to attract his attention, it being necessary after some time to have the eye removed, it was held the injury did not arise out of the employment. In Carrigan v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 327 (af- firmed by the superior court on appeal), where deceased and a fellow work- man were working near each other sorting scrap metal with pointed sticks, and the fellow workman, being hit by a bullet thrown by some one in a spirit of fun, made at the deceased with his stick, which was run through deceas- ed's wrist when he threw up his arm to parry the thrust, it was held such accident did not arise out of the employment, though it did occur in the course of the employment. But In Griffin v. A. Roberson & Sons, The Bul- letin, N. Y., vol. 1, No. 10, p. 18, compensation was awarded, though it was not clear whether the employ^ fell as the result of the work he was doing, or in trying to ward ofC some foolish action of a coemploy^, where it appeared that whatever was done was done while he was at work. And in Grandfleld v. Bradley Smith Co., 1 Conn. Comp. Dec. 479, where a girl, requiring an empty box for her work, which should have been supplied her by a boy hired for that purpose, went to get one from another boy, who supplied an- other table, and was resisted by him in a spirit of fun, and injured, it was held the injury arose out of her employment. This case was distinguished from other cases of play by the fact that the claimant was not engaged in play, but was in the performance of her duties. § 122 workmen's compensation 444 which the injured workman took no part; "" also that an injury to the eye arose out of the employment where the employe while in the toilet felt something strike her arm, and looked through a crack to. see were the article had come from, whereupon a girl in the adjoining toilet thrust some scissors through the crack into her eye.^^ § 122. Area of duty — Absence — Entry and exit A distinction must be drawn between the doing of a thing reck- lessly or negligently which the workman is employed to do and the doing of a thing altogether outside and unconnected with his employment. A peril which arises from the negligent or reckless manner in which an employe does the work he is employed to do may well be held to be a risk incidental to the employment. Oth- erwise in the other case.^^ As said by Judge Holt, of the Minnesota Supreme Court, in a recent opinion : "When a servant undertakes in the course of his employment, during the proper hours therefor, and in the proper place, to do something in the furtherance of his master's business, • and meets with accidental injury therein, the trial court's finding that the accident arose out of and in the course 2 (Wk. Oomp. Act, § 1) Knopp v. American Car & Foundry Co., 188 111. App. 605. 21 De Fillipis t. Falkenberg, 170 App. Div. 153, 155 N. T. Supp. 761. 22 Barnes v. Nunnery Colliery Co., Ltd. (1911) 4 B. W. C. C. 43, C. A., and (1912) 5 B. W. O. O. 195, H. L. A workman who, on being instructed by a subforeman to come down off a roof, where he was working, for lunch, descended by means of a loose rope ■ extending over the edge of the roof, the end of which he directed a fellow workman to hold for him, instead of using a ladder securely fastened to the side of the building, received a "personal injury arising out of his employ- ment" (Clem V. Chalmers Motor Co., 178 Mich. 340, 144 N. W. 848, L. R. A. 1916A, 352) ; but where one employed in the construction of a railroad was ordered by the Are warden to assist in extinguishing a forest fire, as au- thorized by statute, an injury received while he was so working did not arise out of his employment. Kennelly v. Stearns Salt & Lumber Co. (Mich. 1916) 157 N. W. 378. 445 CIRCUMSTANCES UNDER WHICH COMPENSATION DUE § 122 of employment should not be disturbed, unless it is clear that the ordinary servant, in the same situation, would have no reasonable justification for believing that what he undertook to do when in- jured was within the scope of his implied duties." ^' It is a controlling factor in determining whether an injury arose out of the employment whether the employe was within the area of his duty. For example, the accident arose out of the employment where a delivery boy was injured from being thrown from a bicycle after he had called at his home and taken lunch and while he was on his way to make a delivery,^* where the driver of an express motor truck, within the scope of his employment, was crossing the street on foot to -deliver a package, and was struck and killed by an automobile while so doing,''' where a civil engineer sent to sur- vey a quarry and bring his notes back to the home office for inspec- tion and consultation was drowned on the wrecking of the steam- ship while he was returning,^" where a shipmaster who went ashore to pay a labourer's wages at a public house, at which he remained two hours, on his return, quite sober, fell from the dock and was drowned,^^ but not where the employe fell and was injured dur- ing the noon hour, while racing with other employes,^* where a workman after his day's work cutting ice put up his tools, and started home by a short cut across the pond instead of by the public highway, and while crossing the pond slipped and fell,^° where a workman was injured while stepping ofif a car on his way to work, about two hundred feet from where his work was, and be- 23 State V. District Court, 129 Minn. 176, 151 N. W. 912. 2* (Wk. Comp. Act, pt. 2, § 1) Beaudry v. Watkins (Mich.) 158 N. W. 16. 2 5 Miller v. Taylor (Sup.) 159 N. Y. Supp. 999. 2 6 HutcMnson v. Pacific Engineering & Construction Co., 2 Cal. I. A. C. Dec. 600. 27 Jones V. Ship Alice and Eliza (Owners of), (1910) 3 B. W. C. C. 495, C. A. 28 Thompson v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 145 (decision of Com. of Arb.). 20 Atkins v. Scranton, 1 Conn. Comp. Dec. 34, § 122 workmen's compensation 446 fore time for him to begin work,^" where a typesetter working over- time late at night went out for lunch by an unusual way, over a freight elevator through a rear door used only to admit freight, and on returning stepped into an open space between the elevator and the street,^^ where a buyer and department manager, while in a bathroom of a hotel during a business trip, became faint and un- conscious and fell to the floor, striking her face and sustaining an injury thereby,^^ nor where a workman visited a building which his employer was constructing, for purposes of his own at a time when he was not engaged in doing any of his employer's work, and was injured.^^ A fireman employed upon continuous duty day and night is not acting in the course of his employment while at home or going to and from meals at his home unless a fire alarm should come in and he should start to a fire. In the absence of such fire alarm, he is acting in the course of his employment only when he is about the fire engine house or at a fire or otherwise dis- charging duties connected with his employment.'* It does not prevent an injury from arising out of the employment that the workman had no express authority to do the particular act,'° that he was not acting strictly in accordance with his in- 3 McWilliams v. Haskins, 1 Conn. Comp. Dec. 324. siWheatley v. Journal Publishing Co., 1 Conn. Comp. Dec. 110. 82 Jacobs V. Davis-Schonwasser Co., 2 Cal. I. A. C. Dee. 1013. S3 Lynn v. Employers' Liab. Assur. Corp. Ltd., 2 Mass. Wk. Comp. Cases, 507 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). s* Perry v. City of San Jose, 1 Cal. I. A. C. Dec. 537. Where an employ^ is hired to be upon continuous service day and night as a fireman, it does not follow that every accident received in the course of the 24 hours arises out of the employment. If he were injured by stepping upon his rake while taking care of his lawn, it would not arise out of his employment as fireman. Where he borrows a horse to ride to his home for a meal, and is injured by the horse slipping and falling in coming into the yard of the engine house on his return from his meal, such accident does not arise out of his employ- ment, and he is not entitled to compensation for his injury. Id. 85 Where an employ^ was injured from attempting to form an unexploded dynamite shell into a key, believing the shell to have been exploded, and he 447 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 122 structions,** that he was working on a holiday," or that he has formed an unexecuted intent to abandon his employer's business,'* nor does it prevent an injury from being within the area of the employe's duties that at the time thereof he is attending on his personal necessities,'* but the rule is otherwise where he has un- needed such a key to perform his duties, the injury was due to accident arising out of his employment, though he had no particular authority to make the key. State ex rel. Duluth Brewing & Malting Co. v. District Court (1915) 129 Minn. 176, 151 N. W. 912. In Loveland v. Parish of St. Thomas Church, 1 Conn. Comp. Dec. 14, it was held that a church sexton, part of whose admitted duties was to preserve order on the church premises, was injured by stumbling over a wheelbarrow while going to stop a fight between two boys on the grounds, he sustained an injury arising out of his employment. If it is the duty and the custom of an employ^ to do whatever is found necessary to be done in a. shop, and he is injured in the performance of his work, he Is entitled to compensation, as the accident arose out of his em- ployment. Whaley v. Hudson, Bulletin No. 1, 111., p. 186. Where an employe, hired to assist the weighmaster, held horses which had been weighed whUe the owner went to settle with the weighmaster, he hav- ing performed such services before under the direction of the weighmaster, such service was incidental to his employment. Manis v. City of Milwaukee, Bui. Wis. Indus. Com. 1912-1.3, p. 29. 3 8 That a school principal, killed from being struck by a basket ball on the school ground, while he was supervising some test erercises during school hours, should, under the rules of the school board, have held the tests at re- cess, did not preclude him from being engaged in a service incidental to and growing out of his employment. Milwaukee v. Indus. Com., 160 Wis. 238, 151 N. W. 247. 37 In Reese v. Yale & Towne Mfg. Co., 1 Conn. Comp. Dec. 154, it was held that, where an iron bar fell on the workman's foot while he was taking an inventory for his employer on a holiday, he sustained an accident arising out of his employment. 38 Where a workman was killed by the running away of a horse which he was taking to water in the performance of his duties, he was injured whUe acting within the scope of his employment, though he had formed an unexe- cuted intention to abandon his master's business after performing this duty and to take the horse for his own convenience on a journey of his own. Pigeon V. Employers' Liab. Assur. Corp., 216 Mass. 31, 102 N. B. 932, Ann. Cas. 1915A, 737. 3» Where a railroad trackman was run down by a train while standing on the track getting a drink, with his back to the approaching train, the acci- § 122 workmen's compensation 448 necessarily left his work for his own purposes, or purposes not connected with the. employment.*" An injury occurring during his absence from this area cannot be said to be due to the employ- dent arose out of his employment. Solle v. N. X., N. H. & H. R. E., 4 N. T. St. Dep. Eep. 393. Also, where a*aborer on a railroad culvert was fatally injured while crossing the track to go to dinner in a bunk car at the call of his foreman, the accident arose out of his employment. Carini v. Nickel Plate E. E. Co., 4 N. Y. St. Dep. Eep; 423. The injury arose out of the employment where a housekeeper of a hotel. In which she resided, whose duty it was to be available at all hours, but who commenced active work at 8 a. m., was injured at 7 a. m. while going for hot water for toilet purposes (Leonard v. Fremont Hotel, 2 Cal. I. A. C. Dec. 9&8), and where an engineer, employed to install machinery on a dredger, was required by his employers for their benefit to live on board, and while preparing his breakfast was injured by the explosion of a gas stove (McLean V. Shields, 2 Cal. I. A. 0. Dec. 1046). *o The evidence showed that the employ^, a derk, received a fatal injury in the building in which the office of the subscriber was located. She left her place of employment at lunch time, fully clothed for the street, and while attempting to get off the elevator at the ninth floor received an injury which caused her death. She was on the way to the office of a friend on that floor for the purpose of making a personal delivery of a Christmas gift, this errand having no connection with her employment. It was held the injury did not arise out of .the employment. Eoss v. Casualty Co. of America, 2 Mass. Wk. Oompj Cases, 666 (decision of Com. of Arb.). Where a farm laborer, after taking up his employment and having dinner, was injured by accident while driving to the station after his box, he having been allowed, according to custom, to take his employer's horse and cart for the' purpose, the accident did not arise out of his employment. Whitfield v. Lambert (1915) 8 B. W. 0. C. 91, O. A. ' In Cavagnero v. American Mills Co., 1 Conn. Comp. Dec. 163, it was held, where the breaking of the claimant's leg was due to moving toward a fellow employ^ in order to better hear some remarks on politics or religion, un- connected with the employment, while on the premises during his noonday lunch hour, that the injury did not arise out of the employment. In Cohen V. Union News Co., 1 Conn. Comp. Dec. 62, it was held that where a news- boy running on certain trains, by reason of missing his regular train, had two hours to wait at a station, and while there went to the baggage room, wholly unconnected with his business, ^nd was caught between a safety gate and the floor of an ascending elevator he was trying to board, the injury -did not arise out of the employment. 449 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 122 ment,*^ though the wages paid him cover the time when the in- jury occurred," subject to the qualification that, where the absence *i Where a laundry driver Is accustomed for his own convenience to work on his employer's account books at home nights, instead of working on them at his employer's place of business, where desk room is furnished, he can- not be said to be performing services growing out of and Incidental to his employment while in the act of going home at night with the books. Ogilvie V. Egan, 1 Cal. I. A. C. Dec. 79. Accidents not arising out of employment: Where a longshoreman finished his work for his employer at 7 o'clock on the night before his injury, which occurred while he was crossing railroad tracks the next morning after mak- ing an unsuccessful application for more work. Ganley v. Employers' Liab. Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 159 (decision of Com. of Arb.). England. Where a postman was sent for a postal order to the Hatton Garden post oflSce, and, failing to obtain one there, went on a half mile farther to the general post office, and there fell and injured himself. Smith v. Morrison (1912) 5 B. W. C. O. 162, 0. A. Where a ship's captain, returning from a trip to a hotel ashore, hailed his ship from the quay and asked for a boat, and fell into the water and was drowned before the boat arrived, it not being established that he went ashore on ship's business. Fletcher v. Owners of S. S. Duchess (1910) 3 B. W. C. C. 239, C. A., and (1911) 4 B. W. C. C. 317, H. L. Where a ship's steward, after a trip ashore, was seen on the quay, but was not observed to have reached the gangway, and then a splash was heard, and the cry of "Man overboard!" and he was taken from the water dead. Kltchenham v. Owners of S. S. Johannesburg (1911) 4 B. W. C. C. 91, C. A., and 311, H. L. Where a ship's fireman, returning after a week-end absence from his ship with permission, was injured by slipping on the steps of the quay. Kelly v. Owners of Foam Queen (1910) 3 B. W. C. C. 113, C. A. Where a seaman, on his way back from leave ashore, fell off the quay at a place where a row of barrels greatly narrowed the passageway, and was drowned. Craig v. Owners of S. S. Calabria (1914) 7 B. W. 0. C. 932, Ct. of Sess. Where the dead body of the engineer of a steam trawler in dry dock *2The injury did not arise out of the employment where an employ^ did two hours' overtime work, then was ordered to go home to supper and re- turn for more overtime work, the time in the interval to be included in that for which he was paid at overtime rates, and while returning after supper to the employer's factory was accidentally killed by a train on railroad tracks outside the premises (Leite v. Paraffine Paint Co., 2 Cal. I. A. C. Dec. 1022), or where a lumber company's employ^ was Injured while assisting a fire warden as required by statute, though he was paid his regular wages by his employer, who was reimbursed by the state and county (Kennelly v. Steams Salt & Lumber Co. [Mich.] 157 N. W. 378). HoN.CoMp. — ^29 § 122 workmen's compensation 450 is legitimate, as where it is with leave, the area of duty includes the reasonable or permitted means of going and returning.** But was found in the dry dock some time after he had gone ashore for dinner. Gilbert v. Owners of the Nizam (1910) 3 B. W. C. O. 455, O. A. Where a ship's fireman, who bought his owij, provisions, but was under no contract obligation to do so, was drowned when he fell from the pier on his return from a ship ashore after some provisions. Parker v. Owners of S. S. Black Rock (1914) 7 B. W. O. O. 152, O. A. Where a ship's steward, going ashore to buy stores for the ship, gained permission to visit his home, and went there for break- fast before going to the stores, and was injured on his way from his home to the stores. Lee v. Owners of S. S. St. George (1914) 7 B. W. O.'C. 85, C. A. Where a boiler scaler, after a trip ashore for dinner, stopped on his return to the quay to watch repair work being done to the ship, and was killed by a rope which snapped and struck him while he was standing in an area roped off and marked dangerous. Murray v. Allan Bros. & Co., Ltd. (1913) 6 B. W. C. C. 215, C. A. Where a ship's steward, returning late at night, found that his ship had been moved during his absence on leave for pur- poses of his own, and was struck by a train and injured while making his way along the dock side toward the new berth. Biggart v. Owners of S. S. Minnesota (1912) 5 B. W. C. C. 69, C. A. Where a donkeyman, returning to ship, was fatally injured by slipping from the gangway, but there was no evidence to show his reason for going ashore, or whether or not he had leave. McDonald v. Owners of S. S. Banana (1909) 1 B. W. 0. C. 185, C. A. Where a sailor, who went ashore for his own purposes, returned after dark, and tripped on the gangway, fell off into the water, and was drowned. Hyndman v. Craig & Co. (1911) 4 B. W. C. C. 438, C. A. Where a discharged sailor, at the end of his voyage, got from his ship onto a "dolphin," a floating stage forming a part of the dock premises, and fell into the water and was drowned while passing from' the dolphin to the quay. Cook v. Owners of S. S. Montreal (1913) 6 B. W. C. C. 220, C. A. Where a ship's engineer, re- turning from a trip ashore with leave, found his boat missing, and tried to get out to his ship in a 27-foot lifeboat without any oars, paddling with the rudder, and was blown out to sea and drowned. Halvorsen v. Salvesen (1912) 5 B. W. C. C. 519, Ct. of Sess. Where a workman on a ship, after going ashore contrary to orders, was further disobedient on his return in trying to jump aboard, instead of using the gangway, and, falling into the water, was drowned. Martin v. Fullerton & Co. (1909) 1 B. W. C. O. 168, Ot. of Sess. *8 Kearon v. Kearon (1911) 4 B. W. C. C. 435, C. A. Accidents arising out of employment: Where an employ^ was hired as a woodchopper upon timber lands belonging to the defendant, and was entitled to board and room at a camp provided by the employer, and received an in- 451 CIECUMSTANOBS UNDER WHICH COMPENSATION DUE § 122 it is essential that the risk be due to the means of access, and not to something wholly unconnected with the employment, such as the drunkenness of the wor&man.** Ordinarily an employe injured jury due to a fall while returning from the place where he had been at work to his employer's cookhouse for supper, and it appeared that the day's work was agreed to commence when the choppers left the cookhouse in the morn- ing, and to close when they reached the cookhouse In the evening. Saari v. Pacific Lumber Co., 2 Cal. I. A. C. Dec. 182. Where a woodsman, who was supplied with his board and lodging at a lumber camp situated a mile from the place of his labor, and had to go to and from his work one evening, slip- ped and fell into the river and was drowned. Mendocino Lumber Co. v. Southwestern Surety Insur. Co., 2 Cal. I. A. C. Dec. 755. England. Where a seaman, on his return after a legitimate trip ashore for purposes of his own, fell from the ladder, which was the only means of access to his ship, and was drowned. Moore v. Manchester Liners, Ltd. (1910) 3 B. W. C. O. 527, H, L., and 2 B. W. C. C. 87, C. A. Where a seaman, after being ashore for his own purposes, was returning to his ship by means of a gangway, which connected it with another vessel lying between it and the quay, and was thrown into the water by the slipping of the gangway, and drowned. Leach v. Oakley, Street & Co. (1911) 4 B. W. C. C. 91, C. A. Where a ship's steward, after a trip ashore with leave, returned to the ship by the cargo skid, which the crew often used, contrary to orders, instead of by the gang- way, and in stepping from the skid" to the dock fell into the hold, fatally injuring himself. Eobertson v. Allan Brothers & Co., Ltd. (1909) 1 B. W. C. O. 172, C. A. Where a boatman met with an accident in jumping from a ketch he had been piloting into his own small boat. Barbeary v. Chugg (1915) 8 B. W. C. C. 37, C. A. Where a seaman, going home from his ship, crossed a plank leading to a ladder fixed against the side of the quay, and then, while mounting the ladder, fell and was injured. Webber v. Wans- brough Paper Co., Ltd. (1914) 7 B. W. C. C. 795, H. L., and (1913) 6 B. W. C. C. 583, C. A. Where a seaman, returning to his ship, after crossing the gangway, was standing with one foot on the rail of the ship and the other on a ladder from the rail to the deck, and lost his balance, fell into the wa- ter, and was drowned. Canavan v. Owners of S. S. Universal (1910) 3 B. W. C. C. 355, C. A. Where a seaman, who had been ashore for his own pur- poses, on his return found no gangway, and the ladder commonly used was missing, so, after hailing and getting no answer, he jumped aboard, and was injured. Kearon v. Kearon (1911) 4 B. W. C. C. 435, C. A. **The accident did not arise out of the employment where a sailor be- came intoxicated while ashore with leave, and in returning, while mounting the gangway, was fatally injured by a fall (Nash v. Owners of S. S. Ran- gatira [1914] 7 B. W. C. C. 590, C. A.) ; or where a sailor returned to his § 122 workmen's compensation 452 on the premises of the employer in going to or from work is enti- tled to compensation for such injuries.*' However, where he is in- jured while entering the premises of Kis employer to go to work, but before he has dismounted from a private conveyance carrying him to his work, he cannot be said to have entered upon the per- formance of his duties or any task incidental thereto at the time of his injury, even though the accident occurs upon the employ- er's premises.** Where, however, the employe lives upon the prem- ship in a state of hopeless intoxication, was thrown from the quay to the deck as the ship was moving away, and, after getting up, staggered around and then fell over the side of the ship and was drowned (Frith v. Owners of S. S. Loulsianian [1912] 5 B. W. O. C. 410, C. A.) *B Where a miner, at the end of his day's work, changed his clothes, and, still carrying a miner's lamp, started towards the hottom of the shaft, with the intention of ascending to the top of the mine, and about 200 feet from the room where he had been at work and about one-half mile from the bot- tom of the shaft one of his eyes was put out by coming in contact with a pieca of slate hanging from the roof, it was held his duties had not ende^ until he left the mine, and that the accident arose out of his employment. Sedlock V. Carr Coal Mining & Mfg. Co., 98 Kan. 680, 159 Pac. 9. A roadmaster of a railroad requested an interpreter to get ten men, such as he had secured before, and bring them to a cex-tain siding for the purpose of going to work, at the same time giving him a pass for himself and ten men, from the place where they were to be secured to the place of work. After arriving at the place of work, one of the men, while .remov,ing his baggage, was struck by a train and killed. The evidence was held by the Board to be sufficient to justify the conclusion that the deceased was in the employ of the raUroad company, and that the injury arose out of the employment. Patterson v. Bloomington, D. & C. K. Co., Bulletin No. 1, 111., p. 101. 46 Perry v. City of San Jose, 1 Cal. I. A. C. Dec. 537. The general rule is that employes are under the protection of the Compensation Act when they reach their place of employment on the premises of the employer, and that they remain under the protection of the Act only until they leave the prem- ises of the employer to return to their homes. It is also a general rule that accidents to employes while going to and returning from their work are not compensable. Saari v. Pacific Lumber Co., 2 Cal. I. A. C. Dec. 182. Where a laborer on a highway was brought to his place of employment by a passing automobile as a friendly act, and while in the act of alighting, and before he had presented himself ready for work, lost his balance and fell, the injury did not arise out of his employment. Beatty v. County of Los Angeles, 2 Cal. I. A. C. Dec. 1058. 453 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 122' ises of the employer, and is not injured upon a public highway- while going to and from work, the risk of accident while, so going and coming is a risk of the employment.*^ Where the injury has arisen through the workmen using special modes of access pro- vided by their employers to enable them to go to or come from the actual place of employment, the courts have uniformly held that it arose out of the employinent.*^ But where an employe, in returning to his ship, does not use the safe means of access provided by his employer, but of his own volition uses a means of access that is both unreasonable and unsafe, he does so at his own risk. Where, however, because of drowsiness or absent-mindedness, and not intentionally, he misses the gangway provided by the em- ployer, and by mistake climbs up a ladder left leaning against the ship by painters, which ladder does not reach to the rail or any other opening in the ship, and falls, his injuries arise out of the employment.** " Saari v. Pacific Lumber Co., supra. 48 Moore v. Manchester Liners, Ltd. (1910) 3 B. W. C. C. 527, H. L., and 2 B. W. C. 0. 87, C. A. The employer is liable under the Act for the condition of the ways provided for the ingress and egress of employes. Wheeler v. Con- toocook Mills Corp. (1915) 77 N. H. 551, 94 Atl. 265 ; Boody v. Company, 77 N. H. 208, 90 Atl. 859, L. R. A. 1916A, 10, Ann. Cas. 1914D, 1280. Where an employ^, who had gained permission to ride in his employer's elevator, was thrown violently against the opposite wall of a hall, in getting ofiC, which accident caused a strangulated hernia, he sustained an injury arising out of his employment. Herrick v. Employers' Liab. Assur. Co., Ltd., 2 Mass. Wk. Comp. Cases, 122 (Dec. of Com. of Arb., aflBrmed by Indus. Ace. Bd., also by Sup. Jud. Ct. 217 Mass. 432, 104 N. E. 432). Where a certain stairway was the only means of exit to the street from the third Story, where an employe worked, and she was Injured while on her way down the stairs on her way to luncheon, the injury arose out of her employment. Sundine v. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Comp. Cases, 833 (deci- sion of Indus. Ace. Bd., affirmed by Sup. Jud. Ct., 218 Mass. 1, 105 N. E. 433, L.. R. A. 1916A, 318). In Barnard v. H. Garber & Co., 1 Conn. Comp. Dec. 572, where an aged workman fell on the steps of his employer's establishment when entering to begin work In the morning, on account of their slippery condition, it was held the injury arose out of the employment. 4» Boucher v. Olson & Mahony Steamship Co., 1 Cal. I. A. 0. Dec. 248. § 123 workmen's compensation 454 § 123. Incurring of additional risks While a workman has no right by his own conduct for his own purposes to add a risk which is not incidental to the employment,"" and, where he goes beyond his rights in this respect, an accident re- sulting in consequence thereof will be held not to have arisen out of his employment,"^ particularly where he acts in violation of ex- Bo Eevie v. Cumming (1912) 5 B. W. C. C. 483, Ct. of Sess. Bi Where employes were obliged to enter their place of employment over a railroad's private right of way or one along a public street, but the latter was the safer, although causing employes a longer walk, and therefore not 'customarily used by them, the use by an employe of the more dangerous crossing is an added and unnecessary risk not incidental to the employment, and an accident resulting therefrom does not arise out of the employment. Leite V. Parafflne Paint Co., 2 Cal. I.' A. O. Dec. 1022. Aceidents not arising out of employment: Where a laborer, whose duties were to sack coal and assist the driver of the coal wagon in the unloading on the delivery of orders, voluntarily and without the knowledge of the employer and during the absence of the regular driver, took upon himself the delivery of an or^er. Siri v. Arata & Co., 2 Cal. I. A. C. Dec. 645. Connecticut. Where a workman's fall was caused either by the assault of his foreman or by his at- tempting to escape a real or supposed assault, which was due solely to either the workman's serious and vnllful misconduct or his intoxication. Cooper V. New Haven Rigging Co., 1 Conn. Comp. Dec. 157. Where the employe left the machine where he was working, and went to another room and tried to shape a piece of wood needed for repairing his own machine, which repair was not necessary, and was injured on the buzz saw while so engaged. Duke V. E. Horton & Son, 1 Conn. Comp. Dec. 673. Where the claimant was injur- ed while giving a coemploy6 a ride on a truck used for carrying beams, dur- ing the noon hour and after she had finished her lunch, being allowed to eat lunch on the premises by her employer. Socquet v. Connecticut Mills Co., 1 Conn. Comp. Dec. 653. Where a clerk was Injured while polishing a ring on a buffing wheel, work which was of no benefit to his employer and was wholly unconnected with his duties. Maynard v. New London Ship & Engine Co., 1 Conn. Comp. Dec. 47. Wisconsin. Where a conductor on a street car ex- changed places with his motorman and undertook to run the car back at night, without there being any emergency which required him to do so, and died from injuries caused by the car jumping the track. Neumann v. Milwaukee Electric Ry. & Light Co., Bui. Wis. Indus. Com. vol. I, p. 92. England. Where a dock laborer, seeking a ride to the dock gates on his way to dinner, tried to climb into a train, fell and was injured thereby. Morrison v. Clyde i55 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 123 Navigation Trustees (1910) 2 B. W. C. C. 99, Ot. of Sess. Where a brakeman employed to walk behind a lorry got up onto the lorry to talk with the driver, and, when getting down to apply the brakes, fell, and was injured. Kevie v. Gumming (1912) 5 B. W. C. C. 483, Ct of Sess. Where a builder's foreman, hired to inspect jobs, left his inspecting each evening in ample time to catch a train, which enabled him to report before 6 o'clock, and on one occasion arrived just as the train was moving away, and was fatally injured by a fall when he attempted to board it while in motion. Jibb v. Chadwick & Co. (1915) 8 B. W. C. C. 152, O. A. Where a farm laborer, after finishing his day's work, had to go to his employer's farm two miles away for his pay and instruction, and, accepting a lift from the driver of one of his employer's carts, was thrown out and injured. Parker v. Pont (1912) 5 B. W. C. C. 45, C. A. Where a workman was injured while crossing the metals at a railway station, instead of passing over the footbridge. Pritchard v. Torkington (1914) 7 B. W. C. O. 719, C. A. Where a canal overseer employed by a rail- road company took a short cut from the station to his ofiBce, going down the railroad line, instead of around by the road, and was kUled by a train. Mc- Laren V. Caledonian Ry. Co. (1912) 5 B. W. O. C. 492, Ct. of Sess. Where a craneman in charge of two cranes climbed upon a third, find was fatally in- jured in doing so, and there was no evidence to show his reason. Millers v. North British Locomotive Co., Ltd. (1910) 2 B. W. C. C. 80, Ot. of Sess. Where a workman was drowned while swimming across a river between two farms, instead of going across the bridge. Guilfoyle v. Fennessy (1913) 6 B. W. O. C. 453, C. A. Where a workman climbed onto a hot-water tank in a building, although he was not allowed to do so, and while eating his supper there fell into the tank through an opening and was scalded to death. Brice V. Lloyd, Ltd. (1910) 2 B. W. C. C. 26, C. A. Where a workman, for his own ease, got into a hoist, which was well lighted, but so low that he had to stoop to get in, and was crushed to death by the machinery. Kose v. Morrison & Mason, Ltd. (1911) 4 B. W. C. C. 277, C. A. Where a workman, instead of go- ing to a water-closet, went into an inclosed space under an engine, and while there scalded his foot in hot water escaping from the engine. Thomson v. Flemington Coal Co., Ltd. (1911) 4 B. W. C. C. 406, Ct. of Sess. Where steer- ing a canal boat and driving the horse were distinct duties, and a boatman told a driver under his order to steer in place of another boatman, who had gone off, and the driver met with an accident and was drowned whUe steer- ing. Whelan v. Moore (1910) 2 B. W. C. C. 114, C. A. Where a workman was hired to stack empty flour sacks by hand, and hoisted sacks to the top of a stack by means of a rope and a revolving shaft, and was injured. Plumb V. Cobden Flour Mills Co., Ltd. (1914) 7 B. W. 0. C. 1, H. L., and (1913) 6 B. W. C. C. 245, C. A. Where a collier, traveling from work in a train pro- vided by his employers, jumped ofC before the train reached the platform, and was seriously and permanently injured. Price v. Tredegar Iron & Coal Co. (1914) 7 B. W. C. C. 387, C. A. Where the driver of a motor van, find- § 123 workmen's compensation 456 press rules, warnings, or instructions,"^ yet, where a workman, while performing his duties, meets with an accident to which he is ing that, because of a worn-out clutch, he could not shift gears without con- siderable noise and probable damage to the gears, after complaining several times, took up some of the floor boards, so that he could press the clutch far- ther down, and was seriously injured when his rug became caught in the ma- chinery. Partridge v. Whiteley, Ltd. (1915) 8 B. W. C. O. 53, O. A. 52 Where some boys employed in a steel mill got into one of several wagons, standing on a steep incline, during an interval of rest, and, the wagon start- ing to move, one of them jumped out and tried to sprag the wheels, and was fatally injured in the attempt, the accident did not arise out of the employ- ment, since the boys had been warned several times not to go near the wag- ons. Powell v. Lanarkshire Steel Co. (1904) 6 F. 10.39, Ct. of Sess. (Act of 1897). Accidents not arising out of employment: Where an employ^, upon his re- turn from a vacation, in attempting to go to the place of his employment, insisted upon riding upon a wagon of his employer, contrary to the rules of his employer and the positive orders of the driver of the wagon, and in so doing fell from the wagon and suffered an injury. Gonzales v. Lee Moor Con- tracting Co., 2 Cal. I. A. G. Dec. 302. England. Where a collier was fatally injured while riding, contrary to rules, on the couplings between two trams, going from one part of the mine to another. Powell v. Brynddu Colliery Co. (1912) 5 B. W. C. C. 124, C. A. Where a workman, going home to dinner, tried to jump, contrary to the regulations, onto a tram carrying rubbish, and in so doing fell and was killed. Pope v. Hill's Plymouth Co. (1910) 3 B. W. C. C. 339, C. A, and (1912) 5 B. W. C. C. 175, H. L. Where a miner, after finishing his day's work, jumped onto a hutch, intending to ride to the bottom of the pit, although such action was against the regulations, and was injured on the way. Kane v. Merry & Cuninghame, Ltd. (1911) 4 B. W. C. C. 379, Ct. of Sess. Where a boy, sent to deliver a message, his tramway fare being paid, was permanently injured in trying to board a tram car which was running at a speed of five miles an hour, although he knew of a notice forbidding such action. Wemyss Coal Co., Ltd., v. Symon (1913) 6 B. W. C. C. 298, Ct. of Sess. Where a flagman on a traction engine, supposed to be either riding in the van behind the engine or walking in front of it, mounted to the drawbar, although he had been warned not to, and was injured by slipping ofC. Mc- Keown v. McMurray (1911) 45 Ir. L. T. 190, C. A. Where a fishmonger's boy, delivering fish at the kitchen of an infirmary on the third floor, in spite of former caution went up in a hoist instead of by the stairs, and was injured. McDaid v. Steel (1911) 4 B. W. C. C. 412, Ct; of Sess. Where a collier was kill- ed in an untimbered, very dangerous "goaf," into which the rules forbade him to go, and where he had gone to ease himself. Cook v. Manvers Main Col- 457 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 123 more exposed than persons not so engaged, the accident arises out of his employment, though he is acting negligently or contrary to rules.°* If an employer is without knowledge of a practice among his employes which adds an exceptional risk to the employment, it would be plainly unreasonable to hold that, he was bound to an- ticipate an accident happening from such unknown risk. But where Ueries, Ltd. (1914) 7 B. W. C. C. 696, O. A. Where a girl, working on a steam threshing machine at passing sheaves to the mlUman, tried in his temporary absence, although she had been warned not to leave her place, to step across the machinery to where she could talk to a fellow servant, and was Injured. Callaghan v. Maxwell (1900) 2 F. 420, Ct. of Sess. (Act of 1897). Where a second mate, who had become intoxicated, was ordered by his captain to go to his room, but instead went aft to talk to the chief engineer on a personal matter, and on the way fell down a hatchway and was killed. Horsfall v. Owners of S. S. Jura (1913) 6 B. W. C. C. 213, C. A. Where a youth in a mine sought to reach his work a mile away by riding in a tub on an endless rope, which, although forbidden, was a common method, and was fatally injured. Barnes v. Nunnery ColUery Co., Ltd. (1911) 4 B. W. C. C. 43, O. A., and (1912) 5 B. W. C. C. 195, H. L. Where a boy, employed pn a private railway, whose duties were to walk in front of moving wagons which were being pushed by an engine: and keep watch during shunting operations, was riding on the bufCer of the first wagon, contrary to the rules, and slipped, and was injured. Herbert v. Fox & Co., Ltd. (1915) 8 B. W. C. C. 94, C. A. S3 William V. Llandudno Coaching & Carriage Co., Ltd. (1915) 8 B. W. 0. C. 143, C. A. See next preceding section. Where a lad working at a machine was forbidden to sit down, because it was dangerous to do so, and he nevertheless did sit down, and was seriously and permanently Injured by so doing, the accident arose out of the employ- ment, because he was doing the work he was engaged to do. Chilton v. Blair & Co., Ltd. (1914) 7 B. W. C. 0. 607, C. A. E>eceased, who was working about a barn of respondent, and occasionally drove a wagon, on the occasion on which he met his death took a different route, and drove through a subway under a right of way of a railroad, which was not a regularly traveled wagonway, but had all the appearances of a wagonway, and in attempting to drive under the subway his head was caught between the top of the tank and the lower beams of the bridge, from which he received injuries causing his death. The Board held that deceased was working in the line of his employment, that he drove through the subway in an apparent honest effort to subserve the interest of the employer, and that the accident arose in the course of the employment. Hamang's Estate v. Paragon Refining Co., Bulletin No. 1, 111., p. 23. § 123 workmen's compensation 458 he knows of such practice and does not forbid it, and an accident happens, the accident .will be deemed to have arisen out of the employment."* Where a workman employed to operate an engine and dynamo in the basement of a building goes to an upper floor, where he vol- unteers as a special faster to other workmen to take them in the elevator to a floor above, and is killed in so doing, his death does not result from injuries arising out of his employment. '*° But where 5* Terleckl v. Strauss, 85 N. J. Law, 454, 89 Atl. 1023, affirmed by Court of Errors and Appeals, 86 N. J. Law, 708, 92 Atl. 1087; HuUey v. Moosbrug- ger, 88 N. J. Law, 161, 95 Atl. 1007, L. R. A. 1916C, 1203 ; Schmoll v. Weis- brod & Hess Brewing Co. (N. J. Sup.) 97 Atl. 723. 6 5 Spooner v. Detroit Saturday Night Co., 187 Mich^ 125, 153 N. W. 657, L. R. A. 1916A, 17. Distinguishing Miner v. Franklin County Telephone Co., 83 Vt. 311, 75 Atl. 653, 26 L. R. A. (N. S.) 1195, holding that "the voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, when the proffered service is accepted by his superior, although not by an approval expressed in words, cannot be said, as a mat- ter of law, to put the servant outside the limits of his employment." In that case the plaintiff was an employ^ of the defendant telephone company. On the day of the accident the defendant's foreman said to the linemen, of which the plaintiff was one, that they would go down and splice the cable at a certain point, and all went together to the place. On arriving there the fore- man told the plaintiff and another lineman to go to a certain place and get a ladder. They were unable to get it, and the plaintiff so reported to the fore- man on their return. The foreman was then on the cable seat, with his ma- terials at hand, and was just commencing the work of splicing. After watch- ing him awhile, the plaintiff said he guessed he would go up and help him, and received no reply. The plaintiff then ascended the pole, and stood on an upper cross-arm, and handed the sleeves to the foreman as he needed them; the foreman taking them from him and using them as he proceeded with the splicing. After working in this manner for about 20 minutes, the fore- man placed the bag containing the sleeves on the other side of him, which put them beyond the plaintiff's reach; and, after looking on a while, the plaintiff said he would go down, and proceeded to do so, receiving therein the injury complained of. These were the circumstances tending to show that the plaintiff was in the performance of and carrying on the very work for which he was employed, to wit, he was assisting his foreman, who un- doubtedly represented the master. In the instant case Spooner was render- ing no service which was either accepted by or known to his superior, but 459 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 123 an employe of a contracting company was fatally injured while at- tempting to rescue from a cave-in a fellow laborer working only a few feet away on the same general undertaking, although for a different employer, the accident arose out of his employment." ° was engaged In a voluntary, friendly act, entirely outside the scope of his employment upon the night in question. Distinguishing also the case of Mc- Quibban v. Menzies, 37 Scottish Law R. 526. In that case a workman was engaged as a laborer in a steam joinery, his duty being to carry wood from the machine men to the joiners and to clean and sweep up the floor of tba machine room. A belt in connection with one of the machines became loose, and he went, without being asked to do so, to assist the machine man in re- placing the belt upon the shaft. At the request of the machine man the work- man ascended a ladder to try and replace the belt, and, his arm being caught in the belt, he was drawn up into the shaft and received fatal injuries. It was admitted that, had a foreman been present, he might have ordered the workman to do this act, but no other person had authority to order him to do so. It was held that the accident was one arising out of and in the course of the employment in the sense of the Workmen's Compensation Act. The court said: "The question of law which we have to decide is whether the deceased workman was injured by an accident arising out of and in the course of his employment, and, although that would appear primarily to be a question of fact, there Is no doubt that in cases of this kind questions o* fact and law sometimes run into one another. The words 'arising out of and in the course of the employment' appear to me to be sufficient to include some- thing which occurs while the workman is in his master's employment and on his master's work, although he is doing something in the interest of his mas- ter beyond the scope of what he was employed to do. The Act does not say, 'when doing the work which he was employed to perform,' but It is a fair In- ference that, if it had been intended to limit the right to compensation to such accidents, dUEerent language would have been used from that which oc- curs in the Act. It must be assumed, therefore, that the Legislature used language of wider scope to include cases where a workman intervenes to do something useful and helpful to his master, although outside the special du- ties whlqh he Is employed to perform." After citing cases, the court conclud- ed: "The action of the workman in this case appears to me to have been a natural and helpful intervention in the conduct of his master's business, and accordingly I am of the opinion that the question sljould be answered In the affirmative." 5 6 Water v. WiUiam J. Taylor Co., 218 N. X. 248, 112 N. E. 727, affirming 170 App. rHv. 942, 154 N. T. Supp. 1149. § 124 workmen's cohpensatioti 460 § 124. Intoxication Injuries due alone to drunkenness of the injured employe are not compensable,^' but slight intoxication will not necessarily pre- vent an injury from arising out Of the employment.^* In the language of an English jurist: "A man may be engaged in the performance of his work and an accident may occur incidental to his work, and therefore out of his employment, even although he is in a state of intoxication so great as to be, in the opinion of ordi- nary people, unfit for the performance of his work. If an accident befalls him under these conditions, it appears to me that, owing to his intoxicated condition, it is rightly called an accident due to serious and willful misconduct, but it is none the less an accident arising 'out of his employment, because it is incidental to it." ^° § 125. Susceptibility to risk Susceptibility to risk does not prevent recovery for an injury or death proximately caused by an injury arising out of the em- 5 7 Where tlie workman had practically left his employment to go on a spree, and was thereafter injured while in an intoxicated condition, the injury did not arise out of his employment. Mlnnaugh v. Brooklyn Union Gas Co., The Bulletin, N. Y. vol. 1, No. 8, p. 10. Where the mate of a steamship, so dnmk that he was ordered to leave the bridge, died of injuries sustained from falling down the ladder, the accident did not arise out of his employment. Murphy & Sandwith v. Cooney (1914) 2 I. R. 76, C. A. Where a commercial traveler was seen' drunk on a rail- way platform, and later was found in an injured condition on the rails, the accident did not arise out of the employment. McCrae, Ltd., v. Renfrew (1914) T B. W. C. C. 898, Ct. of Sess. 5 8 Where a stableman, who was under the influence of liquor, was fatally injured while he was ascending a ladder fastened to the wall, for the purpose of chopping feed in the loft, the accident arose out of the employment. Wil- liam V. Llandudno Coaching & Carriage Co., Ltd. (1915) 8 B. W. C. C. 143, C. A. 6 9 Lord President, in Frazer v. Riddell & Co. (1914) 7 B. W. C. C. 841, Ct. of Sess. Where the driver of a traction engine fell from his engine and was killed, the accident arose out of his employment, even though he was drunk at the time. Id. 461 CIRCUMSTANCES UNDER WHICH COMPENSATION DUB § 125 plcyment.'" Every workman brings with him to his employment certain infirmities. They may be disabilities of age, or disabilities of infirmity not connected with age. That a workman put in a 60 (Pub. Laws 1911-12, c. 831, art. 1, § 1) Carroll v. What Cheer Stables Co. ) 3 B. W. C. C 482, C. A. A disease (enteritis) contracted by inhaling sewer gas was not a personal injury by accident Broderick v. London County Council (1909) 1 B. W. C. C. 219, C. A. Where a workman had been engaged for several years in removing sewage, and contracted typhoid fever and died, there was no evidence of accident. Finlay v. TuUamore Guardians (1914) 7 B. W. C. C. 973, C. A. 86 Where a workman, after ten days' service in a bleachery, was aflEected with a rash, which was pronounced to be a condition of eczema, caused by contact with the dampened goods, he was not Injured by accident. I/londale Bleach Dye & Paint Works v. Biker, 85 N. J. Law, 426, 89 Atl. 929. Whether carbon monoxide poisoning is an accidental Injury or an occu- pational disease depends on whether the attack is sudden or gradual. Such poisoning may occur in one of two ways: (1) By suffocation; if an individ- ual who has been thus overcome Is removed early enough to pure air, the carbon monoxide will be eliminated in the course of eight to twelve hours, and the patient will be fully recovered. (2) Where there had been no suf- focation, but the oxygen has been withheld for a long enough period from the blood, due to carbon monoxide, degeneration will be produced in the cells of the nervous system, which may have been exposed to lack of oxygen. In this event there can be no regeneration of the cells, and the function of the nerve tissue is either entirely lost or suffers jwrmanent disorder. If it should be shown that the applicant had suffered over a long period of time from exposure to carbon monoxide gas, producing a slow and Insidious de- generation of Ills nervous system over a long period of time, the Industrial Accident Commission would hold his malady to be an occupational disease, and not covered by the Workmen's Compensation, Insurance and Safety Act in its present form. Burgess v. Star, 2 Cal. I. A. O. Dec. 269. In Cochran t. Fenton, 1 Conn. Comp. Dec. 690, where the injury consisted of eye strain caused by the continuous use of claimant's eyes, required by her employment, not attributable to anything which happened at any def- inite time, but being the gradual result of the use of her eyes, extending over a period of several weeks, it was held no compensation could be awarded. While a porter in a fever hospital was cleaning out the mortuary, he felt sick and dizzy. He became worse, and finally developed a case of scarlet fever; but it was held that there was no accident. Martin v. Manchester Corporation (1912) 5 B. W. C. C. 259, C. A. It was not a personal Injury by accident, where a canvasser and collector, who was hurrying in an effort to get his work done in a certain tune, developed pleurisy from becoming over- § 138 workmen's compensation 542 The Solicitor of the Department of Labor, altering his previous rulings on the subject, held that the federal act covers lead poison- ing an occupational disease.*^ The Attorney General, in a case wherein the employe contracted a severe cold in the course of his employment, resulting in pneumonia, decided that the employe was not entitled to compensation, and said in the course of his opinion that "the word 'injury' however, as used in the statute, is in no- sense suggestive of disease, nor has it ordinarily any such significa- tion." «« heated and then chilling, and was incapacitated. McMillan v. Singer Sew- ing Machine Co., Ltd. (1913) 6 B. W. C. C. 345, Ct. of Sess. A hairdresser's assistant, whose hands began to smart on a certain date, contracted der- matitis, which he alleged w^ caused by his using a dry shampoo, but there was held to be no evidence of accident. Petschelt v. Preis (1915) 8 B. W. 0. C. 44, C. A. It was not a personal injury by accident where a workman, who was employed at dipping rings in a chemical, gradually contracted eczema on his hands (Evans v. Dood [1912] 5 B. W. C. C. 305, C. A.) ; where a sec- ond officer, who superintended the loading of his ship for several days for 17 hours a day, dropped dead 6 days later from heart failure being brought on by the continuous strain (Black v. New Zealand Shipping Co., Ltd. [1913] 6 B. W. 0. 0. 720, C. A.) ; where paralysis was gradually contracted through, riding a carrier tricycle (Walker v. Hockney Bro. [1910] 2 B. W. O. O. 20, C. A.) ; where a miaer, who was engaged in heavy work and felt a sudden pain in his chest, was found to be suffering from cardiac breakdown, which was caused, not by a sudden strain, but by overexertion for a period of sev- eral days (Coe v. Fits Coal Co., Ltd. [1910] 2 B. W. O. O. 8, Ct. of Sess.) ; where a workman contracted heart disease because of the continuous strain of work which he was not physically able to do (Paton v. Dixon, Ltd. [19131 6 B. W. C. C. 882, Ct. of Sess.) ; where "beat hand" and "beat knee," con- tracted by miners, were caused by the gradual process of continued friction (Marchall v. East Holywell Coal Co., Gorley v. Backworth OolUeries [1905] 7 W. C. C. 19 [Act of 1897]) ; or where a workman's boot shrank and became so tight as to iujure one of his toes (White v. Sheepwash [1910|] 3 B. W. C. C. 382, C. A.). ' 8 7 Claimant was a painter and in the course of his employment contracted lead poisoning. Distinguishing this disease from pneumonia, malaria, ty- phoid, or the like, it was held that the incapacity was due to an injury in the course of employment. (This opinion alters the previous ruling in the John Trelman and C. L. Schroeder Oases on this subject.) In re Jule, Op. Sol. Dept. of L. 261. 8 8 In re Sheeran, 28 Op. Atty. Gen. 254. 543 CIRCUMSTANCES DNDBE WHICH COMPENSATION DUB § ISO' § 139. — — Massachusetts An "accident" not being essential under the Massachusetts Act,, an occupational disease is compensable as an "injury," though not expressly made so by statute ; *" the date of injury in such case be- so Johnson V. London Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. E. 735. Afflicted employes held entitled to compensation: An employs Incapacitat- ed by lead poisoning. Johnson v. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Comp. Cases, 108 (decision of Com. of Arb;, aflarmed by Indus. Ace. Bd., also by Sup. Jud. Court, 217 Mass. 388, 104 N. E. 735). An employe who- received a personal injury by reason of his occupation as a cigar maker, which caused a condition of neurosis in his hands and arms, with consequent inability to use them in the making of cigars, this condition being brought about by the unusual degree of strain upon certain groups of muscles for a long period of time, and by the rapidity with which he performed his work. Lee V. Einployers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 753 (decision of Com. of Arb., aflBrmed by Indus. Ace. Bd.). An employ^ injured by the extreme pressure from the shears which he used in cutting a coil of wire, a septic hand and palmar abscess resulting without visible external wound. Erickson v. Mass. Bmploygs Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 149 (decision of Com. of Arb.). A stone grinder, injured by inhaling small particles of stone and dust, by reason of which he contracted fibroid tuber- culosis, usually spoken of as "stone grinder's phthisis." Kalanquin v. Trav- elers' Insur. Co., 2 Mass. Wk. Comp. Cases, 748 (decision of Com. of Arb,). An employe incapacitated for work by a personal injury due to infection, Vitale V. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 425 (de- cision of Com. of Arb., affirmed by Indus. Ace. Bd.). An employe injured by the falling of a door, and Incapacitated for work subsequently by an attack of chorea minor (St. Vitus' dance). Cristoforo v. Employers' Liability Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 364 (decision of Com. of Arb.). An employe injured by the blistering of his hand in using a wheelbarrow, the wound becoming infected and two operations being performed, in conse- quence of which the previously impaired nervous state of the employe was accelerated to the point of insanity, the connection between the personal injury and the Insanity being unbroken. Whalen v. U. S. Fidelity & Guaranty Co., 2 Mass. Wk. Comp. Cases, 318 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). An employe injured by a blow from a 12-pound sledgehammer which he was using, the sledgehammer missing the drill at which it was aimed and striking him vnth considerable force on the left ankle, thus lighting up an inflammatory condition which has been described as a mild chronic osteomye- litis and afterwards necessitating amputation of the leg. Gariella v. Amer- ican Mutual Liability Insur. Co., 2 Mass. Wk. Comp. Cases, 237 (decision of § 139 workmen's compensation 544 ing the date when the workman becomes sick and unable to per- form labor.'" It is not essential to compensability that there be any visible external wound.*^ Com. of Arb., aflarmed by Indus. Ace. Bd.). An employe unable to continue her work as a wire drawejj, by reason of an attack of Irritative eczema, the result of the use of a chemical in connection with her occupation. Dolan V. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 259 (decision of Com. of Arb.). An employe so injured as to cause dislocation of the coecum, general adhesions in the abdomen, and constipation, resulting in traumatic peritonitis, which condition necessitated an operation for the removal of the appendix. Gregg v. Frankfort General Insur. Co., 2 Mass. Wk. Comp. Cases, 581 (decision of Com. of Arb.). »o Where a lead grinder became incapacitated from lead poisoning, the date of injury was when he became sick and unable to perform labor, though the previous absorption /Of lead into his system for more than a year produced the conditions which finally terminated in the injury. (St. 1911, c. 751, as amended by St. 1912, c. 571) Johnson v. London Guarantee & Accident Co., Ltd., 217 Mass. 388, 104 N. B. 735. This case is supported by Sheerin v. F. & J. Clayton Co., Ltd., 3 B. W. C. O. 418 ; Ismay Imrie & Co. v. Williamson, 1 B. W. C. C. 232; Martin v. Manchester Corporation, 5 B. W. C. C. 259 (1912) ; Alloa Coal Co., Ltd., v. Drylie, 6 B. W. C. C. 398 (1913). 91 Erickson v. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 149 (Dec. of Com. of Arb.). 545 DEFENSES TO COMPENSATION CLAIMS § 140 CHAPTER VI DEFENSES TO COMPENSATION CLAIMS Section .140. Serious and willful misconduct — Purposely self-inflicted injury. 141. Disobedience — Violation of rules. 142. Drunkenness. 143. Burden of proof — Question of fact. 144. Estoppel and res judicata. 145. Negligence, contributory negligence, and assumption of risk. 146. Defenses under federal Act. § 140. Serious and willful misconduct — Purposely self-inflicted in- jury While even willful negligence on the part of the workman con- stitutes no defense under the compensatory provisions of some Workmen's Compensation Acts,^ the defense that the employe has been guilty of intentional, or serious, and willful misconduct, is saved in many of the Acts by an express provision (qualified in the English Act by the words "unless it results in serious and per- manent disability or death") ; ^ but, for such misconduct to be available as a defense, the injury must be attributable to it,^ and 1 West Jersey Trust Co. v. Philadelphia & E. Ry. Co., 88 N. J. Law, 102, 95 Atl. 753 ; Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399. 2 The injury amounted to serious and permanent disablement, where a boy lost the top joints of the first and third fingers while he was cleaning a ma- chine in motion, contrary to orders. Hopwood v. Olive & Partington, Ltd. (1910) 3 B. W. C. C. 357, C. A. Also where a machinist in the joinery trade suffered an accident causing him to lose the top joint of the middle finger of his right hand. Brewer v. Smith (1913) 6 B. W. C. C 651, C. A. If the deceased met with his injury by reason of his serious and willful misconduct, no compensation can be awarded. In re Von Ette, 223 Mass. 56, 111 N. B. 697. 3 "The first thing required is that the employer must prove that the injury- was 'attributable' to the misconduct; the second is that he must prove the misconduct to have been 'serious and willful,' in the sense of being far be- HoN.CoMP. — 35 § 140 workmen's compensation 546 the misconduct must have been, within the scope of the employ- ment.* Serious and willful misconduct cannot assist in bringing yond mere negligence, and more than bare misconduct." Lord Stormonth- Darling, in Wallace v. Glenboig Union Fireclay Co., Ltd. (1907) S. O. 967 (Act of 1897). Where there was a statutory provision forbidding miners to carry a naked light In a place where inflammable gas was likely to be, and an oversman, who, though carrying a naked light, remained In a safe place, was killed by an explosion which resulted from another man, who was with him, wandering into a dangerous place, the accident was not attributable to serious and willful misconduct. Id. Where a miner was killed by a stone which fell from the roof of the mine upon him, while he was riding on a loaded hutch, which action was contrary to statutory regulation, the accident was not attributable to the misconduct. Glasgow Coal Co., Ltd., v. Sneddon (1905) 7 F. 485, Ct. of Sess. (Act of 1897). Where a miner, after doing some "holing," by neglecting to put in the supports, left a mass of shale over- hanging in a dangerous position, which was in violation of a statutory regu- lation, and later, while about a different piece of work, was kiUed by its falling down upon him, the accident was not attributable to serious and will- ful misconduct. Tennant v. Broxburn Oil Co., Ltd. (1907) S. C. 58'1, Ct. of Sess. Where a workman was injured when a lorry, which he had run upon a wrong line and contrary to the rules of the railway company, collided with a special train of which no warning had been, given, the accident was attrib- utable to his serious and willful misconduct. McCafferey v. Great North- ern Ry. Co. (1902) 36 Ir. L. T. 27, C. A. Where a miner so far disregarded his own safety as to attempt to cross an incline upon which hutches were as- cending and descending, his injury was the result of serious and willful misconduct. Condron v. Gavin Paul & Sons, Ltd. (1904) 6 F. 29, Ct. of Sess. (Act of 1897). * As the Michigan Act provides compensation only for such injuries as are received in the course of the employment, and then only when they grow out of the employment, and as injuries received outside the employment are not vrtthln the provisions of the act at all, it must follow that the "intentional and willful misconduct" which operates to debar the employe from the compen- sation which he might otherwise receive refers to such misconduct within the scope of his employment. If the injury to the etnployfi was not received "in the course of his employment," it is immaterial whether it was caused by his "intentional and willful misconduct" or not. Bischoff v. American Car & Foundry Co. (Mich.) 157 N. W. 34. Where a collier, seeking to increase the amount of coal to his credit, cut coal at intervals in a dangerous place, where he had been forbidden to work, and was killed by a fall of coal, the question of whether there was serious and willful misconduct is irrelevant, because the accident did not arise out 547 DEFENSES TO COMPENSATION CLAIMS § 140 an accident within the words "arising out of and in the course of" the employment." "Serious" refers, not to the actual consequences, but to the mis- conduct itself.* Mere misconduct is not sufficient. Willfulness is the essential element, and must be established.^ The word "will- ful" imports deliberate misconduct, not merely a thoughtless act on the spur of the moment.* It means more than mere negligence, or even gross or culpable negligence. It involves^ conduct which is of a quasi criminal nature; the intentional doing of something ei- ther with the knowledge that it will result in serious injury or with of the employment WelghUl v. South Hetton Coal Co., Ltd. (1911) 4 B. W. C. C. 141, C. A. But where a collier, going to work in a train furnished by his employers, went out onto the platform before the train had stopped, and, falling, was permanently disabled, riding on the platform of the trains being expressly forbidden, the accident was not outside the scope of his employment. Watkins v. Guest, Keen & Nettlefolds, Ltd. (1912) 5 B. W. C. C. SOT, C. A. In this case the court (opinion by Fletcher Moulton, L. J.) said: "We have the dlflSculty of finding out a line between something that takes the accident en- tirely out of the employment, and something which within the employment is a serious and willful misconduct, which leads to the accident. It is a dif- ficulty which I do not think wUl ever be solved by phrases. I think in each case we shall have to draw the line, and I think 'that that line ought to be drawn generally by the judge of first instance." Id. ' Price V. Tredgar Iron & Coal Co. (1914) 7 B. W. O. C. 387. "Serious and willful misconduct within the sphere of the employment does not prevent his dependents — in that case it was death — ^from claiming compensation; but willful misconduct outside the sphere of his employment does not bring the accident within the sphere of the employment." Cozens-Hardy, in Harding v. Brynddu Colliery Co., 4 B. W. C. C. 271. 6 Johnson v. Marshall, Sons & Co., Ltd. (1906) 8 W. C. C. 10, H. L. (Act of 1897). 7 Kraljlvich v. Yellpw Aster Mining & MUling Co., 1 Cal. I. A. O. Dec. 554. 8 Johnson v. Marshall, Sons & Co., Ltd. (1906) 8 W. C, C. 10, H. L..(Act of 1897). Where an employe impulsively and without reflection attempts to clear sand ofE from a moving belt without first stopping the motor, such con- duct is not such a violation of general rules of safety as to constitute' will- ful misconduct. Swank, v. Chanslor-Canfield Midway Oil Co., 2 Cal. I. A. C. Dec. 330. § 140 workmen's compensation 548 a wanton disregard of its probable consequences ; ° conduct closely resembling the wanton or reckless misconduct which will render » (Code Supp. 1913, § 2477ml) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 36. An employe may do something through thoughtlessness or inattention, may act imprudently or even negligently, or may go about his work in a way contrary to the rules anS instructions of his employer, without having "a willful intention to uijure himself." Id. ; St. 1911, c. 751, pt. 2, § 2. "Serious and willful misconduct" is a very different thing from negligence, or even from gross negligence. In re Nickerson, 218 Mass. 158, 105 N. B. 604, Ann. Cas. 1916A, 790 ; Johnson v. Marshall, Sons & Co., [1906] A. C. 409. "Serious and willful mis- conduct" is much more than mere negligence (Great Western Power Co. v. Pills- bury, 170 Oal. 180, 149 Pac. 35), or even than gross or culpable negligence. It in- volves conduct of a quasi criminal nature, the intentional doing of something either with the knowledge that It is likely to result In serious injury, or with a wanton and reckless disregard of its serious consequences (In re Burns, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787; Johnson v. Marshall, Sons & Co., [1906] A. C. 409, 411; Lewis v. Great Western Ry. Co., 3 Q. B. D. 195, 206, 213). Compensation is awarded without regard to the negligence of the employs, except where the injury results from serious and willful mis- conduct, in which case no compensation is given. In re Murphy (Mass.) 113 N. E. 283. Mere negligence or carelessness of an employs, causing his death or injury, does not preclude right of compensation under said statute. Ar- chibald V. Ott (W. Va.) 87 S. E. 791. Death benefits are to be awarded, where otherwise deserved, "without regard to negligence" ; i. e., negligence of any character. Even gross negligence does not constitute willful misconduct. The term "willful misconduct," as used In the Compensation Act, means much more than negligence, and more than gross negligence. To be guilty of wlU- fiil misconduct, the party so guilty must consciously do a wrong. In other words, the wrong done must be intentionally done — it must be an intentional wrongdoing. The mere doing of a thing in a careless manner, or the mere doing of a thing in a wrong way, without intention to violate a necessary rule of safety or to do injury, is not "vdllful misconduct." Nevadjic v. North- western Iron Co., Bui. Wis. Indus. Com., vol. 1, p. 93 ; Id. 1912-13, p. 21, af- firmed in 154 Wis. 97, 142 N. W. 271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877 ; Hedges v. City of Los Angeles, 1 Cal. I. A. C. Dec. 394 ; Ooelho v. Ride- out Co., 2 Cal. I. A. C. Dec. 773. Where the hazard is manifest, and the ex- periment premeditated, and the act not required by his duties nor the inter- ests of his employer, such act amounts to a willful disregard for the employe's own life and bodily safety, and constitutes willful misconduct. Downer v. Lasky Feature Play Co., 2 Cal. I. A. 0. Dec. 316. " 'Willful misconduct' means misconduct to which the will is a party, something opposed to accident or neg- ligence ; the misconduct, not the conduct, must be vdllful. It has been said, and I think correctly, that perhaps one condition of 'willful misconduct' must 549 DEFENSES TO COMPENSATION CLAIMS § 140 one liable to a trespasser or bare licensee ; ^° conduct exceeding the furthermost limits of negligence and amounting to a willful ex- be that the person guilty of it should know that mischief will result from it. But to my mind there might be other 'willful misconduct' I think it would be wUlful misconduct if a man did an act not knowing whether mischief would or would not result from it. I do not mean when in a state of igno- rance, but after being told: 'Now this may or may not be the right thing to do.' He might say: 'Well, I do not know which is right, and I do not care. I will do this.' I am much inclined to think that that would be 'willful mis- conduct,' because he acted imder the supposition that it might be mischievous, and with an indifCerence to his duty to ascertain whether it was mischievous or not. I think that would be willful misconduct." Bramwell, L. J., in Lewis V. Great Western Ry. Co. (1877) 3 Q. B. D. 206. The consideration of mere negligence is out of place, and it is sufficient if the claimant can show that the accident arose out of and in the course of the employment, though the workman may have been negligent at the time. McNicholas v. Dawson (1899) 1 W. C. O. 86, 87. The applicant was working under a ear in the process of construction in such a position that he would be seriously injured by the moving of the ear while so engaged. The usual signals preceding such movement were given, and applicant had been instructed in the same. It was held the failure of the applicant, through inattention, lack oif mental alertness, or on account of the noise, to hear and comprehend the signals, did not, under the facts in this case, constitute -intentional and willful misconduct. Jankowski v. Ameri- can Car & Foundry Co., Mich. Wk. Comp. Cases (1916) , 327. The proof that a farm servant tied the reins to the brake wheel of the lorry he was driving, instead of holding them in the proper way, and that in consequence he was injured by the horse pulling around and upsetting the lorry, was evidence of serious and willful misconduct. Vaughan v. Nicoll (1906) 8 F. 464, Ct. of Sess. (Act of 1897). Acts not constituting willful misconduct: Where a night watchman in the employ of a construction company, knowing that escaping robbers were in the vicinity, through a mistake fired on deputy sheriffs, who returned the fire and injured him. In re Harbroe, 223 Mass. 189, 111 N. E. 709. In Barksdale y. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Rep. of Comp. Cases, 214 (decision of Com. of Arb., affirmed by Indus. Ace, Bd.), wherein it appeared that the insurer declined to pay compensation on the ground that the employe had unreasonably neglected to obtain proper medical attention, and that such neglect constituted serious and willful misconduct, and the evidence showed that the employ^ had not neglected to obtain such attention, compensation was allowed. Michigan, Where a delivery boy riding a bicycle caught on the 10 In re Nickerson, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790. § 140 woskmkn's oompbnsation 550 rear end of a motor truck, which turned suddenly, causing him to be thrown to the pavement and injured. (Wk. Comp. Act, pt. 2, § 2) Beaudry v. Watklns (Mich.) 158 N. W. 16. Where the injured workman stated, in response to the question of his physician, that he was not an alcohoUc, when he was in fact addicted somewhat to the use of liqiior, there being nothing to show that he understood that his answer would affect the treatment given, or to what extent he needed to be addicted to the use of liquor to become an alcoholic. Ramlow v. Moon Lake Ice Co. (Mich.) 158 N. W. 1027. Wbere an employs, coming down off a roof on which he was working, descended by means of a rope, and was killed by losing his hold and falling, there being no proof that any order or rule forbidding the use of a rope in descending was communi- cated or made known to decedent, and it appearing that other employes used the rope method in descending, and that deceased used much care in letting himself down over the edge of the roof with such rope. Clem v. Chalmers Motor Car Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 40, 178 Mich. 340, 144 N. W. 848, L. R. A. 1916A, 352. California. Where a miner was instructed by his foreman to complete his work in the shaft where he was and then go to another shaft, and, after finishing his work and sending word to the foreman that he was awaiting another assignment, went to the surface of the ground, and stopped temporarily to rest and obtain relief from the extreme heat in the shade of an ore bin, a place commonly used for that purpose by the miners, and was killed by the collapse of the bin. Brooklyn Mining Co. v. Indus. Ace. Com. of State of Cal. (Cal. Sup.) 159 Pac. 162. Where an employe removed a sliver from his finger with a pocket knife, after warning of danger of infection, even though infection developed in the finger, unless it could be shown that the knife was the means of introducing the infection. Blaine v. McKinsey, 1 Cal. I- A. C. Dec. 641. Where a bartender was shot dead upon his refusal to throw up his hands at the order of two hold-up men attempting to rob a saloon at midnight, and while the bartender was trying to reach the adjoining room to get a revolver. Henning v. Henning, 2 Cal. I. A. C. Dec. 733. Where the man was injured by the explosion of dynamite caps which he was holding in his hand at the time, caused by sparks from a lighted fuse which he held in his other hand while his foreman was testing it with a lighted match to see whether it was defective; the fuse not being attached to the caps, and he being an experienced powder man and under the direct supervision of his foreman at the time. Andrencetti v. California Brick Co., 2 Cal. I. A. C. Dec. 284. Where there were no life preservers and no fire extinguishers on a burning launch, and there was on board a quantity of gasoline, which might have ignited and exploded, and the occupants attempted with fatal results to swim to a boom 300 feet away; their fault being an error of judgment, not amounting to suicidal intent nor willful misconduct. Ruprecht v. Red River Lum'ber Co., 2 Cal. I. A. C. Dec. 864. Where a deck hand on a stormy night was last seen by a fellow employe leaning over a post fixed in the deck about one foot from the edge of the barge, and was 551 DEFENSES TO COMPENSATION CLAIMS § 140 posure to a hazardous situation.^^ Wanton and reckless disregard of danger, equivalent to foolhardiness, or a perverse and obstinate warned, "Frank, are you crazy? Stand up. Come on Inside," to whicli he replied, "No, leave me alone," and continued to remain in his perilous posi- tion, his body afterwards being found washed upon the shore, and there being no evidence of any safety rule given by the employer or broken by the em- ploye. Coelho V. Rideout Co., 2 Cal. I. A. O. Dec. 773. Cormecticut. Where the shaping of a piece of wood, necessary for his work, on a machine, was rendered especially hazardous by its small size and because the grain ran crosswise, making it more easy to break, but the workman did not know this. Lane v. Aeolian Co., 1 Conn. Comp. Dec. 32. Where, according to their usual custom, the decedent, a motorman on a passenger car, arranged orally with the motorman of an express ear where they should pass on the return trip, and decedent, after running nine or ten miles, ran by the switch designated and Into a collision with the express car, which resulted fatally for him, and it further appeared that the switch designated by number bore a resemblance to the next one, just past the place of accident. Dalton v. Connecticut Co., 1 Conn. Comp. Dec. 142. England.. Where a miner on a haulage road, knowing that trams were coming, tried to reach a manhole, and while so doing, perhaps negligently, had his leg broken when the haul- age rope slipped. Rees v. Powell Duffryn Steam Coal Co., Ltd. (-1900) 4 W. C. C. 17, C. A. (Act of 1897). Where an engine driver, walking down the tracks after his day's work to report at the station before going home, walked between the rails, although to his knowledge a down train had al- ready been signaled, and was struck and killed by the train. Tod v. Cale- donian Ry. Co. (1899) 1 F. 1047, Ct. of Sess. (Act of 1897). Where a farm servant fastened the reins to his cart, Instead of holding them in his hands, it occurring that the horse bolted, upsetting the cart, and fatally injured the servant. LyaU v. Whitton (1907) S. C. 1267, Ct. of Sess. Where a workman, watching for land slips on a railway line, went along the line 300 yards to a fire, where another workman was posted, where he was run over and killed. Glasgow & Southwestern Ry. Co. v. Laidlaw (190O) 2 F. 708, Ct. of Sess. (Act of 1897). 11 Clark V. Los Angeles County, 1 Cal. I. A. C. Dec. 623. Excessive speed. — Where an employe was killed while driving an automo- bile at from 35 to 45 miles an hour, he was guilty of willful misconduct, though such speed was not unusual or so excessive as to amount to foolhardi- ness or in violation of his employer's Instructions. Fidelity & Deposit Co. of Md. V. Industrial Accident Commission, 171 Cal. 728, 154 Pac. 834. Where proof offered in support of the defense of willful misconduct in speeding an automobile does not show that the driving was extraordinary or unnecessarily dangerous, the defense is not established. Phillips v. Ohanslor-Canfield Mid- § 140 workmen's compensation J5!i2 breach of safety rules, must be established to prove willful mis- conduct.^^ Where an employe, unnecessarily and in the exercise - way Oil Co., 1 Cal. I. A. C. Dec. 580. In determining whether or not the fast driving of an antomobile constitutes willful misconduct, the Commission must be guided by such fundamental facts as the condition of the road, the time of day, and the character of th* car. Driving an automobile at a speed of 35 to 45 miles in the dark, over a fairly good and straight road, by a driver familiar with it, in a heavy, powerful car, equipped with strong lights, may he hazard- ous, but does not exceed gross negligence, nor constitute willful misconduct. Head v. Head Drilling Co., 2 Cal. I. A. C. Dec. 279. Where an employe is violating a municipal ordinance at the time of his injury, this fact does not by itself establish willful misconduct, where the act in violation of the ordi- nance would not constitute misconduct, in the absence of such ordinance. Undoubtedly there are laws founded upon principles of morality or public policy, the breach of which is so far contrary to the public welfare as to deprive the wrongdoer of any claim to compensation for injuries sustained by such breach ; but this is not the case where the breach is of a minor stat- ute or ordinance, whose only function is more conveniently to regulate inter- course in crowded communities, where the act involved is not malum in se, but merely malum prohibitum. Traffic ordinances fall in the latter class, and their violation does not by itself constitute willful misconduct. Hedges v. City of Los Angeles, 1 Cal. I. A. C. Dec. 394. Riding a motorcycle along a crowded thoroughfare in a large city at a rate estimated at about forty- five miles per hour, without extreme necessity, constitutes such a flagrant disregard for the rider's own life and lim'b and bodily safety as to amount to willful misconduct. Bohma v. Western Union Telegraph Co., 2 Cal. I. A. C. Dec. 246. Where the applicant, an employs of a firm dealing in racing motor- cycles, took a motorcycle out on a race track to test its engine and speed, as Instructed by the employer, and, whUe speeding at 62 miles an hour, crashed into a fence, resulting in serious injury,, such accident was compensable. Lawson v. Stockton Motorcycle & Supply Co., 2 Cal. I. A. C. Dec. 649. 12 HafEemayer v. United Keanograph Film Mfg. Co., 1 Cal. I. A. C. Dec. 620. Willful misconduct consists either in the willful disregard of rules made by the employer for the protection of his employes, or in the unnecessary taking of risks by the employs to an extent so far exceeding the requirements of negligence as to amount to foolhardiness or dare-deviltry. Hedges v. City of Los Angeles, supra. Dangerous place. — In an action under the Workmen's Compensation Act (Laws 1911, c. 218), the admitted facts showed that plaintiff was injured by being caught in the revolving cylinders of a machine while standing in or upon it and applying compressed air for the purpose of cleaning the cylinders. Covers or hoods were provided for use when the machine was in operation. 553 DEFENSES TO COMPENSATION CLAIMS § 140 of bad judgment, resorts to a dangerous machine, instead of using the regular tools, but has not been forbidden to use the machine, injuries received are not caused by willful misconduct.^* but In order to clean the machine the covers had to be removed. The plain- tiff could have stood on the ground and applied the air without danger of coming in contact with the revolving cylinders. The court held that plaintiff was not barred from the right to recover compensation by the provision of section 1 of the Compensation Act, on the ground that his injury resulted from his deliberate intent to cause the injury, or from his willful failure to use a guard provided for him as protection against accident. Messick v. Mc- Entire, 97 Kan. 813, 156 Pac. 740. Galifornia. Where the employs was di- rected to polish brass rails in the engine room of the vessel and went inside a railing the better to fulfill his task, but his going inside the railing was attended by some danger, and no specific instructions were issued, either to go inside the railing or not to do so, and such employe was injured by falling into the machinery, such employs was not guUty of willful misconduct, and was entitled to compensation for his injury. Bose v. North Pacific Steamship Co., 2 Cal. I. A. C. Dec. 57. Where there were no fixed means of ingress, and instead of clim'bing over a lumber pile to board the ship, a stevedore used the hoisting gear to get aboard, and was thrown upon the deck and injured through the carelessness of a winchman, it appearing that the hoisting gear was frequently used by stevedores and others for that purpose, and that it was sometimes the least dangerous method, its use by the applicant did not constitute willful misconduct. Soderstrom v. Hart-Wood Lumber Co., 2 Cal. I. A. C. Dec. 688. England. Where a miner in getting a tool crossed the bottom of the shaft just after the cage had been raised, and was injured by its being lowered upon him without warning, considering that, although there was no specific rule forbidding such action, it was known notoriously among the employes to be a dangerous act, and that a pass was provided, so that such action was not necessary, there was evidence of serious and willful mis- conduct. Leishman v. Dixon, Ltd. (1910) 3 B. W. C. C. 500, Ct. of Sess. Where a miner, leaving his work by the main haulage road, was advised to get into a manhole because trams were coming, and continued on his way unheeding, passing six other manholes, and was finally struck and killed by the trams, his action was serious and willful misconduct. John v. Albion Coal Co., Ltd. (1902) 4 W. C. C. 15, C. A. (Act of 1897). Where a miner, dis- regarding the danger, attempted to cross rails upon an incline, where hutches were running up and down, instead of waiting until they were no longer running, he was guilty of serious and willful misconduct. Condron v. Gavin Paul & Sons, Ltd. (1904) 6 F. 29, Ct. of Sess. (Act of 1897). Foolhardiness. — A carpenter, employed to construct the necessary scenery 13 Ponder v. Adams & McBratney, 1 Cal. I. A. C. Dec. 207. •§ 140 workmen's compensation 554 A distinction should be drawn between the intentional opera- tion of a machine without a safety guard provided, and the care- less removal of such safety guard too soon after the shutting off of the power; such removal being necessary for the purpose of repair. The former is willful misconduct, as it is done solely for an im- proper purpose, namely, the operation of the machine in a forbid- den manner; the latter is merely negligent, as done for a proper purpose, but carelessly.^* An assistant foreman, who could have escaped in safety from the place where he was working upon warning of danger, but remained to rescue a fellow workman in peril, and lost his life in conse- quence, was not guilty of willful misconduct in so remaining. Even though he deliberately exposed himself to the danger of injury and death, his action cannot be said to be willful in the sense of being stubborn, perverse, or as evidencing a state of mind opposed to the orders or instructions given him, or as opposed to the action that reasonably should have been taken by him, both as a fellow em- ploye and in hjs official capacity.^" for the production of a motion picture, touched off the fuse of a bomb used in the play with a lighted match, "to see what It would do." His action amounted to willful misconduct. Downer v. Lasky Feature Play Co., 2 Oal. I. A. O. Dec. 316. Where an aviator was at the time of the accident performing no especial feats and taking no extra risks, but was engaged in straightaway flying, and a vacuum created In the air by the explosion of a bomb below his machine caused his precipitation to the earth, and death, there was no foolhardiness or dare-deviltry which could be construed as constituting willful misconduct. Stites V. Universal Film Mfg. Co., 2 Cal. I. A. C. Dec. 670. Where a workman, traveling on a barge in the course of his employment, but having no duties to perform during the trip, was seen leaning against a post near the edge of the barge, but on the inside of the post, shortly before he disappeared, his body being later washed ashore, the court holding that he was not guilty of such reckless foolhardiness as to bar compensation, though his conduct was not careful. W. R. Rideout Co. v. PiUsbury (Cal. Sup.) 159 Pac. 435. 1* Southern Cal. Hardwood & Mfg. Co. v. Adams, 1 Cal. I. A. C. Dec. 406. 16 Mihaica v. Mlagenovich, 1 Cal. I. A. C. Dec. 174. An attempt to save the life of a fellow employfi, even though intensely hazardous, is not willful misconduct. Mafiia v. Aquilino, 3 Cal. I. A. C. Dec. 15. ■555 _ DEFENSES TO COMPENSATION CLAIMS § 141 The -words "purposely self-inflicted," as used in the Ohio Act, imply the unquestioned design of self-injury — an inward purpose ■of injuring one's self — that must be shown by evidence." Proof "•of acts which at common law constitute gross negligence raises no presumption that a resulting injury to an employe guilty of such negligence was "purposely self-inflicted." " § 141. Disobedience — Violation of rules That the injury was occasioned by the employe's intentional dis- obedience of an order is not conclusive against him. To have that eflFect the disobedience must have been willful ; ^* it must have been intentional, and premeditated, and must have proceeded from a conscious motion of the will in opposition to the authority of the 18 (Wk. Comp. Act 1913, §§ 21, 25, and 27) Stopyra v. U. S. Coal Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 92. IT Id. 18 In re Nickerson, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790: Johnson v. Marshall, Sons & Co., Ltd., [1906] A. C. 409, 411. "It must have heen with the intention of being guilty of serious misconduct." Lord James of Hereford, in Bist v. London & Southwestern Ky. Co. (1908) 9 W. C. C. 24. Convincing proof of the deliberate, intentional violation of a rule, formulated, brought to the attention of those whom it is designed to govern, and diligently enforced, will establish willful misconduct. An infraction of rules and •orders Issued and promulgated with less form, and enforced with little or no diligence, will not establish willful misconduct as a defense. Fisco v. Hazel Gold Mining Co., 1 Cal. I. A. C. Dec. 30. Where it appears that the disobedience of an oral instruction was not actuated by willful desire to dis- obey an order, but by a wish to further the employer's interests, the miscon- duct, if any, is not willful, so as to defeat a claim for compensation for the disability resulting from the accidental injury suffered by the employ^. Su- gar V. Atlas Taiicab Co., 1 Cal. I. A. C. Dec. 34. Where it was part of the duties of the applicant to load lumber upon an au- tomobile truck, and he had been instructed not to get out over the wheel In getting ofC the truck, and did get off over the wheel, and received injuries thereby, but there was also evidence to show that at the time of the accident the other means of leaving the truck were blocked, whUe such evidence es- tablishes misconduct. It fails to establish willful misconduct, as required by the act. Van Lahker v. County et. Los Angeles, 1 0*1. I. A 0. Dec. 107. § 141 workmen's compensation 556 employer." But an employe who violates a reasonable rule made for his own protection from serious bodily injury or death is guilty of misconduct, and if he deliberately violates a rule or order, with knowledge of its existence and of all the dangers accompanying its violation, he is guilty of willful misconduct."" In the cases where neglect of a rule has been held not to amount to serious and willful i» Winter v. Johnson-Pollock Lumber Co., 1 Cal. I. A. 0. Dec. 387. Mere disobedience of an order does not necessarily constitute willful misconduct, in the absence of a showing that the disobedience was willful and premedi- tated, and was prompted by a bad state of mind. Collins v. Bodln, 2 Cal. I. A. O. Dec. 153. A definition of "willful misconduct" applicable to all cases cannot be formulated. It may be stated in a general way that the willful violation of a rule or order made for the employe's own safety, or the safety of others, and made by a power having authority to make such rule or order, and enforced with diligence, will constitute willful misconduct. There must be a rule or order, as distinguished from a warning. It must have been diligently enforced. It must appear that the employg is refractory, or in- tentionally and premeditatedly disobedient, in order to constitute willful- ness. liUtz V. Gladding, McBean & Co., 1 Cal. I. A. O. Dec. 8. Where a work- man, hired to oil machinery, was forbidden to oil it while it was in motion, and disobeyed his Instruction in this respect, and as a result was fatally injured, his action did not amount to willful misconduct. Mawdsley v. West Leigh Colliery Co., Ltd. (1912) 5 B. W. C. C. 80, C. A. 2 Coelho V. Rideout Co., 2 Cal. I. A. C. Dec. 773. "I think that we clearly expound the intention which the Legislature had in framing the statute if we hold that that which is 'serious and willful misconduct' must be clearly established against the plaintiff who seeks damages. Also it occurs to me that the word 'willful' must not only mean a mere intentional breach of a rule, but it must also mean willful with the Intention of being guilty of misconduct. * * * If there may be such a case of a breach of the rule, where the person through whose act the cause of action arises has done an intentional act, we- must, before we give effect to the words 'serious and willful misconduct,' see what was in the man's mind at the time that he did so break the rule. In this case, when we look at the effect which is to be given to the word 'serious,' as controlling it, I do not think that we can find that it is 'serious' In conse- quence of the unfortunate man being killed. He did not contemplate that for a moment." Lord James of Hereford, in Bist v. London & Southwestern Ky. Co. (1908) 9 W. C. O. 19, H. L. (Act of 1897). Where the employer has pub- lished a great number of safety rules of a general character, and no one of which has been brought to the special attention of an employ^ with refer- ence to his specific duty, the refusal to obey said rules must be premeditated, 557 DEFENSES TO COMPENSATION CLAIMS § 141 deliberate, and designed, In order to constitute willful misconduct. Swank ■V. Chanslor-Canfield Midway Oil Co.; 2 Cal. I. A. O. I>ec. 330. Violation of safety rules. — ^Where an experienced lineman disobeyed a rule of tbe employer and handled a "hot wire" without the rubber gloves provided by the employer, and at hand, he was guUty of "willful misconduct." (St. 1911, p. 796) Great Western Power Co. v. PlUsbury, 170 Cal. 180, 149 Pac. 35. Where a lineman at work at the top of a pole had a safety belt on his person, but neglected to use it, thereby violating a printed rule of his employer that a safety belt must be used when working on any structure, and the use of the belt would have prevented the injury, such neglect to wear the belt was wUlful misconduct, although the risk involved In such disobedience under the circmnstances was considered by him and other linemen and their foreman to be negligible, and the accident was due to an undisclosed and unusual defect peculiar to the pole on which he was working. Lockwood v. Pacific Gas & Electric Co., 3 Cal. I. A. C. Dec. 26. Except where a violation of safety rules laid down by the employer is shown, acts of the employs imperiling his own safety do not constitute wUlful misconduct, unless they so far exceed ex- treme negligence as to constitute foolhardiness or dare-deviltry. Hedges v. City of Los Angeles, 1 Cal. I. A. C. Dec. 394. Where an employs was in the service of a municipal corporation and received an injury in the course of his employment, but while breaking a municipal ordinance, it cannot be said that he was guUty of violation of a safety rule imposed by his employer for the safety of its employes, where such ordinance was enacted for the regulation of the 'general public, and not for the guidance of municipal employes only. Id. Where an employs failed to use a safety device placed for his own pro- tection on the machine he was working at, and it was a rule of his employer, diligently enforced, that employSs must never use the machine without using the protection provided, but the employs had dispensed with the safety de- vice because he wished to get the work he was upon done more quickly, and was injured by the machine because of his failure to use said protection, the injuries were caused by the willful misconduct of the employs, and he was not entitled to compensation therefor. Gordon v. San Francisco-Oakland Ter- minal Rys., 1 Cal. I. A. C. Dec. 232. Where a person moving flour in sacks was twice Instructed on the morning of his injury to take the sacks from the top of the pile, and not out of the middle, on accoimt of danger involved in removing them from the middle of the pile, and where he was injured by the pUe falling over upon him, due to his taking the sacks out of the middle, such injury was caused by the willful misconduct of the employs, and compen- sation should be denied. Curless v. Peninsula Warehouse, 1 Cal. I. A. 0. Dec. 354. Where an electric lineman, while at work on the top of a pole carrying high current vrires, received a shock causing him to fall, resulting in his death, and it appeared that he was working at the time without rubber gloves or safety belt, which would have prevented the accident, and which, under the rules of the employer, well known to the employs, were reqidred, and that § 141 workmen's compensation 558' he had been expressly warned by both his foreman and fellow workman almost immediately prior to the accident, such neglect and refusal consti- tutes willful misconduct, and was the cause of the accident. Lines v. Pacific- Gas & Electric Co., 2 Oal. I. A. 0. Dec. 837. Where an employe, during work- ing hours, sat down to rest in the shade under an ore bin, and was killed by the collapse of the bin, this fact does not establish willful misconduct, in the absence of evidence tending to show that deceased had been forbidden to rest in the shade under fliis bin for brief periods of time during working^ hours, especially where the evidence fails to show that there was reason to- anticipate danger in resting in the place where the accident occurred. Goer- ing V. Brooklyn Mining Co., 2 Gal. I. A. 0. Dec. 141. Where foreigners, who- were engaged in breaking a rock in which dynamite had been used, had been generally warned of danger, but it is not shown that the warning was under- stood, or that the act resulting in the accident was a willful breach of rules, an employe injured by an explosion of dynamite, which had remained in the- rock, was not guilty of willful misconduct, although he immediately caused the explosion by striking the rock. Kraljlvich v. Yellow Aster Mining & Milling Co., 1 Cal. I. A. O. Dec. 654. Where an employe, engaged to operate a rotary ripsaw which had a safety guard fixed to it, and having strict orders from his employer that the saw was not to be run -without the guard being in place, and where, desiring to clean out the sawdust container \mder the saw, he caused the power to be shut off, and, after waiting the usual time for the saw to cease revolving, removed the safety guard and was Injured by the saw, which was still revolving, he was not barred from compensation on the ground of willful misconduct. Southern Cal. Hardwood & Mfg. Co. v. Adams, 1 Cal. I. A. C. Dec. 406. There was no serious and willful misconduct where it was not proven that the applicant was forbidden to ride back to the studio on horseback, because she was regarded as unable to control the horse and would be in some danger if she rode it, as contended, but merely that she mis- understood the instructions given her, which does not prove the willful -vio- lation of a safety rule. Jansen v. Balboa Amusement Producing Co., 1 Cal. I. A. C. Dec. 477. A rule that employes working with certain machines are not to repair them, but must leave the repairing to be done by a special me- chanic, is not usually a safety rule for the protection of employes, but rather a rule for the division of the work among them. Its violation, therefore, does not usually constitute wlUful misconduct; the act being interpreted to mean that only violation of safety rules imposed by the employer for the protection of his workmen shall constitute such willful misconduct. Winter v. Johnson- Pollock Lumber Co., 1 Cal. I. A. C. Dec. 387. Michigan. A workman received injuries to his hand from the gears in a carding machine in appellant's fac- tory. Gangrene set In and he died sixteen days after the injury. Appellant contended that the injury was the result of the willful and intentional mis- conduct of decedent, by his disregarding the signs warning employes to keep their hands off the machines and not to clean machines while In motion. But 559 DEFENSES TO COMPENSATION CLAIMS § 141 the Board found that the decedent at the time of his injury was picking off some cotton which had collected on the carding cylinder, and that such ac- tion was necessary and ordinarily performed by and required of the operator of the machine. Mich. Workmen's Comp. Mutual Insur. Co. v. Redfleld, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 34. Wisconsin. Where a conductor on a street car exchanged places with the motorman and undertook to run the car in at night, without there being an emergency requiring such action, and knowing that he was wrongfully violating a safety rule of his employer, made for his and the public's protection, and was killed when the car jump- ed the track, his death was the result of serious and wiUful misconduct. Neu- mann V. Milwaukee Electric Ry. & Light Co., Bui. Wis. Indus. Com., vol. 1, p. 92. England. Where one breaks a rule, knowing at the time that he is- breaking it, and is not compelled to break it by some superior power which he cannot resist, he is guilty of a willEul breach of it. An engine driver, contrary to a posted rule of which he knew, climbed upon the tender of an engine while it was in motion, and was killed whUe it was passing under a. bridge; his action constituted serious and willful misconduct. Bist v. Lon- don & South Western Ey. Co. (1908) 9 W. C. C. 19, H. L. (Act of 1897). Where a workwoman disobeyed the rules and practice of the factory, and tried to- clean some machinery while it was in motion, she was guilty of serious and willful misconduct. Guthrie v. Boase Spinning Co., Ltd. (1901) 3 F. 769 (Act of 1897). Wttiere employers posted a notice forbidding the use of a lift by any of their employes vmless they were in charge of a load, and a workman whO' had no load was found fatally injured in the lift, his act did not constitute serious and willful misconduct. Johnson v. Marshall Sons & Co., Ltd. (1906> 8 W. C. C. 10, H. L. (Act of 1897). Violation of mining rule. — "It appears to me that to disobey a special'rule, such as that here in question, is serious and willful misconduct in the sense of the statute ; and it does not seem to me to be any excuse, or to make any difference, that, the rule being duly published, the particular miner does not choose to read it, or make himself acquainted with its terms. I should per- haps add that I do not myself see how it could be any excuse, or make any difference, although the rule should have been commonly disobeyed, or even disobeyed with the knowledge of the employers." Lord Kyllachy, In Dobson V. United ColUeries, Ltd. (1906) 8 F. 241, Ct. of Sess. Lord McLaren has said: "I think it is now determined that the infraction of a mining rule amounts to serious and willful misconduct where it is the cause of the accident. But I think there may be an exception to that principle where the workman is. either excusably ignorant of the mining rule, or where he breaks the rule through some paramount necessity." Id. Where, in order to make his work easier, a miner took away the props which supported a dangerous part of the roof of a cut, replacing them vrith other supports, which, being insufficient, allowed a stone to fall and injure him, although his action was contrary to statutory rules, it was not serious and wUlful misconduct. BumboU v. Nun- § 141 workmen's compensation 560 nery Colliery Co., Ltd. (1899) 1 W. C. C. 29, C. A. (Act of 1897). Where, while the fireman of a squad of blasters was absent, the foreman of the squad, upon the charge being made ready, tried to render the detonator harmless by taking out the wires, and was killed in the effort, his action was not con- trary to the Coal Mines Act, and was not serious and willful misconduct. Queen v. Baird & Co., Ltd. (1904) 6 F. 271, Ct. of Sess. (Act of 1897). Recov- ery was barred by serious and willful misconduct where a miner was injured by an explosion of a shot ne had lighted, and to which, upon the cartridge not exploding, he returned in three minutes, whereas a special rule forbade his returning under such circumstances within thirty minutes (Waddell v. Coltness Iron Co., Ltd. [1913] 6 B. W. C. C. 306, Ct. of Sess.) ; where a miner disregarded a special rule forbidding miners to have a naked light in a posi-" tion where it could set off explosives, and was injured by an explosion result- ing as a consequence of his placing a naked light on the ground near some powder charges he was counting (Donnachie v. United Collieries, Ltd. [1910] S. O. 503, Ct. of Sess.) ; where. In breach of a special rule, a miner opened the gate between the seam and the shaft, without determining whether the cage he had called for had arrived or not, and, the cage not being there, he and the hutch he was pushing were precipitated down the shaft, and he seriously injured (George v. Glasgow Coal Co., Ltd. [1910] 2 B. W. C. C. 125, H. L., and [1909] 1 B. W. C. C. 239, Ct. of Sess.) ; where there was a statutory rule for- bidding miners to have a naked lamp in their caps while carrying cartridges which were not inclosed, and a miner was fatally Injured by an explosion which resulted from his breaking the rule (Dailly v. Watson, Ltd. [1900] 2 F. 1044, Ct. of Sess. [Act of 1897]); and where a miner, who was "holing," broke a statutory rule in neglecting to prop the roof, and was killed by head coal falling upon him (O'Hara v. Cadzow Coal Co., Ltd. [1903] 5 F. 439, Ct. of Sess. [Act T)f 1897]). DisobecUence of orders. — ^Where there is a deliberate and unmistakable act of disobedience to an express order, or where there is a deliberate breach of a law or rule, which is framed in the interests of the workingman, it will be held that such a breach or such disobedience amounts to serious misconduct. Head v. Head Drilling Co. (Fidelity & Deposit Co. v. Industrial Ace. Com- mission) 2 Cal. I. A. O. Dec. 973 ; 171 Cal. 728, 154 Pac. 834. Where a miner deliberately and against the known and enforced orders of the employer takes a dangerous position on the bucket ascending from the mine, from which he falls and is killed, this is willful misconduct, and the employer is not liable for any death benefit. Lopez v. Harvard Mine, 2 Cal. I. A. C. Dec. 593. Evi- dence that where a ship had gone upon the rocks and was in imminent dan- ger of going to pieces, and the order was given by the captain to desert the vessel, and the first mate, knowing of such order, for some reason which can- not be ascertained, remained on the ship, and, failing to reach his boats, was lost in the wreck when the ship broke up a few minutes later, it being im- possible to obtain evidence as to why he failed to leave the ship with the other 561 DEFENSES TO COMPENSATION CLAIMS * § 141 members of the crew, such evidence is Insufficient to establish the defense of willful misconduct on the part of such officer. Bolger v. North- Pacific Steam- ship Co., 2 Cal. I. A. C. Dec. 268. Where an employe upon a building under construction had fastened a hod of mortar to the bucket used to hoist it, and his employer, seeing it, had called down to him not to have the bucket sent up, but that other workmen standing near by shouted that it was all right, and for the driver of the horse to go ahead, and the workman was injured by the hod falling from the bucket in being taken out at the upper story, such facts are insufficient to establish willful misconduct of the injured employe contributing to his accident. The accident was in fact due to others causing the bucket to be hoisted, directly assented to by the employer by failing to stop them. Collins v. Bodln, 2 Cal. I. A. C. Dec. 153. Connecticut. In San- ford V. Connecticut Co., 1 Conn. Comp. Dec. 485, where, after deliberate dis- regard and disobedience of several safety rules he knew and understood, de- cedent conductor was fatally Injured in picking up a live wire from the high- way vnthout using any insulation, contrary to the rules and the direct cau- tioning of his motorman, it was held he was guilty of serious an^ willful mis- conduct. Massachusetts. An employg was engaged to do general cleaning, painting, and whitewashing, and some of his work, having to be done near machinery and shafting in motion, was dangerous. He had been directed to do this work during the noon hours, when the machinery was stopped. On the day of the injury the superintendent told the employg about 11:30 a. m. that the work on a wall near the moving shafting should be done at noon, when the machinery was stopped. The employs started to work at this place about five minutes later, expecting to finish the job when the machinery was stopped. His clothing was caught by a projection from the collar of the shafting, and he was fatally injured. The insurer pleaded serious and will- ful misconduct on the part of the employ^ in failing to obey the instructions of the superintendent, but the Committee of Arbitration held that the widow was entitled to compensation, the injury not having occurred by reason of the employe's serious and willful misconduct. Nickerson v. New England Casualty Co., 2 Mass. Wk. Comp. Cases, 879 (decision of Com. of Arb., af- firmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790). England. Lord Trayner has said: "I cannot fig- ure anything more serious or willful than positive and Intentional disobe- dience to a strict and positive order." Powell v. Lanarkshire Steel Co., Ltd. (1904) 6 F. 1039, Ot. of Sess. (Act of 1897). Where a carpenter tried to put back a belt which had slipped ofC the wheel of the grindstone upon which he was sharpening a tool, although he had had orders not to touch the machinery, his misconduct was not willful. Whitehead v. Reader (1901) 3,W. C. C. 40, C. A. Where a miner, following the frequent practice of his fellow workmen, although it was dangerous and against orders, ascended to a higher level in the cage of a sump shaft which was used for raising ore, and was killed while so doing, his action was not serious and willful misconduct. Douglas v. Unlt- HoN.CoMP. — 36 § 141 workmen's compensation 562 misconduct, there have generally been extenuating circumstances leading up to the neglect.^^ It is not serious misconduct to break a rule, violations of which have been tacitly permitted by the em- ployer,^^ or to break a rule not properly posted or brought to the ed Mineral Mining Co., Ltd^ (1900) 2 W. C. C. 15, C. A. Where a boy, who had been forbidden to put his hand across the saw upon which he was cutting screws, was injured by leaning across it while in motion, in an effort to pick up a screw which had fallen, he was guilty of negligence, but not serious and willful misconduct. Reeks v. Kynoch, Ltd. (1902) 4 B. W. C. 0. 14, O. A. It was serious and willful misconduct where a girl, working on a threshing ma- chine, tried to step across the machine so that she might talk to a fellow servant, when she had been warned that to do so was dangerous (Oallaghan V. Maxwell [1900] 2 F. 420, Ot. of Sess. [Act of 1897]) ; where a collier was ordered to bore from above into the top hole of a seam for the purpose of drawing oflf the gas, and although forbidden to enter the top hole, which was marked off as dangerous, nevertheless did so, seeking to see if the drill was working properly, and was suffocated (Harding v. Brynddu Colliery Co., Ltd. [1911] 4 B. W. C. C. 269, C. A.) ; where some boys employed in a steel works, who had been continually warned not to go near certain wagons which were standing on a steep incline, did so (Powell v. Lanarkshire Steel Co., Ltd., supra) ; and where a workman was killed while operating a circular saw without any guard, although he had been ordered several times to use one, because it was dangerous not to (Brooker v. Warren [1908] 9 W. C. C. 26, C. A. [Act of 1897]). In the last-named case Collins, M. R., said: "He was guilty of misconduct in deliberately and intentionally refusing to -obey the order to use the guard, and the misconduct was willful, and that misconduct was serious, because it produced a condition of danger to himself and others. He was therefore guilty of serious and willful misconduct." 21 United Collieries, Ltd., v. McGhie (1904) 6 F. 810. 22 It must be shown that orders given by the employer were accompanied by such disciplinary measures as were necessary to entitle them to respect. Where discipline is unreasonably lax by the employer, and his orders are habitual- ly disregarded by his employfis, disobedience of such orders will not constitute willful misconduct. Collins v. Bodia, 2 Cal. I. A. C. Dec. 153. Where safety instructions are given merely as cautions, and repeated violations thereof are known and permitted without penalty, disregard of such cautions does not constitute such opposition to the employer's will as to amount to willful mis- conduct. Haffemayer v. United Keanograph FUm Mfg. Co., 1 Cal. I. A. O. Dec. 620. To constitute willful misconduct there must be a violation of a rule imposed by the employer for the protection of an employe, which is dili- gently enforced. Where such rule is not enforced, its disobedience being no- torious and allowed to continue without any penalty being imposed, a vio- 563 DEFENSES TO COMPENSATION CLAIMS § 141 lation of it wMch results in Injury does not constitute willful misconduct. Cleveland v. Hastings, 2 Cal. I. A. C. Dec. 15. Lord Atkinson said: "I agree tliat an employer should not be permitted to shield himself from liability by merely posting up a notice proMbitlng some practice in his works, where he has tacitly permitted the practice to be followed, 'winked,' as it is called, at the disregard of his orders." In Barnes v. Nunnery Colliery Co., Iitd. (1912) 5 B. W. C. C. 199. It was not serious and willful misconduct on account of the employer's ac- quiescence where the exhibiting of a "GUa monster" by a "spieler" to attract a crowd was not positively forbidden, and any objection was not because he or his employer believed the bite of the reptile to be dangerous, and the con- tinuation of such exhibition was tacitly acquiesced in (Merritt v. Clark & Snow, Inc., 2 Cal. I. A. O. Dec. 983); where an employe, with a previously excellent reputation for obedience to instructions given by his superiors, was injured while emptying a bin, because of Ms failure to place a proper grating beneath it, and the evidence showed that the employes had been in the habit of emptying the bin without using such grating, and that they were not cautioned or reprimanded or discharged on account of this neglect (Cruz v, Cal. Portland Cement Co., 2 Cal. I. A. C. Dec. 155) ; where a brakeman on a raUroad train was injured as a result of using his foot to aid In making a coupling, which was a slightly dangerous act and in violation of instructions, neither peremptory, nor specific, nor vigorously enforced, and often violated without protest or discipline (Conners v. Sugar Pine Ry. Co., 2 Cal. I. A. C. Dea 879) ; where the injury to a girl, caused by the explosion of a bottle into which she was bottling mineral waters, might have been prevented by the wearing of gauntlets, but the regulation requiring them was not strictly en- forced (Casey v. Humphries [1913] 6 B. W. C. C. 520, C. A.) ; or where, there being a sump shaft in a mine which was used for raising ore, in which it was dangerous and against orders for miners to ascend or descend, although they habitually did so when no oflBcials were watching, a miner was killed while he was ascending in a cage in the shaft (Douglas v. United Mineral Mining Co., Ltd. [1900] 2 W. C. C. 15, 0. A. [Act of 1897]). In Grandfield v. Bradley Smith Co., 1 Conn. Comp. Dec. 479, where there was a rule in a candy factory requiring girls to get empty boxes from the boy who supplied their table, and forbidding them to get boxes from any other boy, which rule was, however, not uniformly enforced, and the viola- tion of which was attended with no danger, it was held a girl injured while violating the rule, by the act of the boy in resisting an effort to keep her from getting a box, was not guilty of serious and willful misconduct. In Forbes v. Brown, 1 Conn. Comp. Dec. 202, where the deceased, engaged in "scoring" logs in the woods, and working in sight of his employer, diverted from the usual and proper method of standing on the log, and was scoring while stand- ing on the ground, beside the log, and was warned by his employer to stand on the log, but did not, and the employer gave no further suggestions or or- § 141 workmen's compensation 564 employe's attention."' Ignorance of a statutory rule which has been properly posted is no excuse."* There is a difference of opin- ion as to whether violation of a rule is prima facie serious and will- ful." = ders, and the employe five minutes later was struck on the leg by the ax, he was not guilty of serious and willful misconduct. 23 Lord President said, in Dobson v. United Collieries, Ltd. (1906) 8 F. 246 : "I think it goes without saying that a rule not properly posted is really no rule at all; it is mer^y a piece of paper in the employer's pocket, so to speak, and no question of breach can arise until the rule is posted." Where a large building contained two widely separated freight elevators, and the employer of young errand boys made and enforced a rule that his boys should not operate "the elevator" by themselves, but his rule did not refer specifically to operating the elevator more distant from his loft, which was frequently operated by the boys, though without the knowledge ol the em- ployer, and the fact that the rule was for their protection was not made plain to them in a manner suited to their Intelligence, and the risk of injury or death involved was not apparent enougli to make the act of more than ordi- nary negligence, and one of the boys, while attempting to operate the more distant elevator, though aware of his employer's rule, in some manner fell to the bottom of thfr elevator shaft and was killed, the Commission held he was not guilty of willful misconduct, as having deliberately violated a rule made for his own protection. Cassell v. Simon Millinery Co., 2 Cal. I. A. C. Dec. 1071. Where an employ^ is killed by electric shock from climbing upon a crane within close proximity to power lines, and it is shown that the em- ploy§ had been cautioned not to go upon such part of the crane without shut- ting off the power, but such caution did not amount to any regularly enforced safety rule or regulation, and it appears in evidence that the employes were 24 Where a miner was injured by an explosion caused by his carrying a naked light in his cap, contrary to a statutory rule, at the same time as he was carrying an uninclosed cartridge, his action was serious and willful mis- conduct, although he had no knowledge of the regulation, and was following the usual practice. Dobson v. United Collieries, Ltd. (1906) 8 F. 241, Ct. of Sess. 25 Lord Loreburn has said : "In my opinion it is not the province of the court to lay down that a breach of a rule is prima facie evidence of serious and willful misconduct. That is a question purely of fact, to be determined by the arbitrator as such." George v. Glasgow Coal Co., Ltd. (1910) 2 B. W. C. C. 129. But Lord Trayner expressed the opinion that prima facie any breach of a rule is wiUful and serious. United Collieries, Ltd., v. McGhie (1904) 6 F. 808. 565 DEFENSES TO COMPENSATION CLAIMS § 142 § 142. Drunkenness Whether drunkenness is willful misconduct depends on the facts of the particular case.^® It is quite possible for a person to be in an intoxicated condition which proximately caused the accident, accustomed without rebuke to make repairs light in character, near the said power wires, without turning off the power, that no danger signals had been erected or warning notices posted, that work had previously been done upon this machine without throwing the switch, and that no one had been repri- manded, suspended, or discharged for failure to do so, the evidence is Insuffi- cient to establish that the death of the employe was caused by willful mis- conduct. Freid v. Smith Lumber Co., 2 Cal. I. A. C. Dec. 117. Where a spe- cial rule forbade miners, who had lighted trains to fire shots, to return to the train sooner than thirty minutes after, but such rule was not properly posted and was not obeyed very generally, and a miner was injured when he returned within six minutes to see why there had been no explosion, his action cannot be said to be serious and willful misconduct. McNicol v. Speirs, Gibb & Co. (1899) 1 F. 604, Ct. of Sess. (Act of 1897). Where a workman, seeking something for his work, mounted a furnace platform on a hoist which it was dangerous and against the rules to use, but proof that he knew of the reg- ulation was lacking, it was held there was evidence to justify a finding that his action was not serious and willful misconduct. Logue v. FuUerton, Hod- gart & Barclay (1901) 3 F. 1006, Ct. of Sess. (Act of 1897). 26 (St. 1911, § 2394 — 4) Nekoosa-Edwards Paper Co. v. Industrial Commission, 154 Wis. 105, 141 N. W. 1013, L. R. A. 1916A, 348, Ann. Cas. 1915B, 995. Where an indulgence in intoxicants results in the Impairment of the work- man's faculties, which he would ordinarily use to safeguard himself against danger when he is working with dangerous appliances or necessarily work- ing in a dangerous place, and it is plain that the impairment of those faculties as the result of Intoxication is the major contributing cause of the accident, such intoxication will be held to be the proximate cause of the accident and compensation will be denied. Arnold v. Benjamin, 1 Cal. I. A. C. Dec. 412. Compensation cannot be collected for an injury sustained on account of the intoxication of the injured employ^. (Code Supp. 1918, § 2477mla) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 24. Lord McLaren said in McGroarty V. Brown & Co., Ltd. (1906) 8 F. 809, Ct. of Sess. (Act of 1897) : "Of course there are degrees of intoxication, but in this case the appellant was dismiss- ed for being drunk -and unfit for work. I cannot doubt that drunkenness to the extent of unfitting a man for his work is 'serious and willful misconduct,' and disentitles the applicant to compensation under the Act of Parliament." Because of the extraordinary hazard of the occupation of an electric line- man and his need of full possession of his faculties, the California Commls- § 142 workmen's compensation 566 which in turn proximately caused the death, and yet not he guilty of willful misconduct. Though the drinking of intoxicating liquors sion will deny compensation If the evidence is sufficient to show any consid- erable degree of intoxication. • Hewitt v. Red River Lumber Co., 2 Cal. I. A. 0. Dec, 286. In Filliger v. Allan, 1 Conrl* Comp. Dec. 35, brought by the widow of a driv- er who fell from his wagon and broke his neck, it appeared that he had often been drunk before, had drunk at three saloons on the day of the accident, and had admitted drinking, being told by a bystander he was in no condition to drive, the injury was due to the employe's serious and willful misconduct. In Boyington v. Stoddard, 1 Conn. Comp. Dec. 103, where the deceased work- man in building a silo used no staging, but stood on upright staves and held himself in position by the projecting staves, and fell, receiving injuries which caused his death, there being evidence that he had drunk a quantity of whisky and showed evidence of intoxication, such as inability to hit a nail, dropping the staves, and a boisterous and argumentative spirit, his death was held due to intoxication, and no recovery was allowed. I In Spencer v. Scanlon, 1 Conn; Comp. Dec. 280, where it appeared that a painter, who fell from a ladder while painting, sustaining serious Injuries, had drunk freely of liquor the night before, and showed evidence of being still under th& effects of it next morn- ing, a fellow workman telling his employer he was in no condition to work, and the doctor who was called testifying he observed the odor of alcohol on claimant's breath, the injury was held due to intoxication, precluding recov- ery^ In Cooper v. New Haven Rigging Co., 1 Conn. Comp. Dec. 157, where a workman's fall was caused either by the assault of his foreman or by his at- tempting to escape a real or supposed assault, which was caused either "by the workman's serious and willful misconduct or his Intoxication, it was held his injury was due to either serious and willful misconduct or intoxication, and hence was not compensable. The employ^ was intoxicated when he started to drive, and when he drove his horses and wagon up the incline into the barn; he was so intoxicated that he had lost his normal and ordinary senses of observation, understand- ing, and judgment, so that he could not appreciate the operation of ordinary causes and effects with which he was fully familiar, and his injury was caus- ed by this intoxicated condition. He had voluntarily drunk the liquor to the extent of causing such intoxication while on duty, and was therefore not en- titled to compensation. White v. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 567 (decision of Com. of Arb.). Where an employe, shown to have been very much under the Influence of liquor, was seen by the engineer of the train which ran over him sitting on the track with his head bent over and paying no attention to the whistle, which was sounded continuously, his death was due either to his willful In- tention to cause his own death, or to his intoxication, and therefore his widow 567 DEFENSES TO COMPENSATION CLAIMS § 145 is willful, in the sense of intentional, the mere fact of drinking is not misconduct."' There are many cases where, though the drink- ing is intentional, the intoxication is not, as where one, by reason of fatigue, hunger, sickness, or some abnormal condition, becomes intoxicated in consequence of imbibing a quantity of liquor which ordinarily .would not so affect him. To be available as a defense, intoxication must contribute to the happening of the accident or the disability resulting therefrom.** Where intoxication is pleaded as a defense, the burden of proof rests upon the defendant to af- firmatively establish the fact of such intoxication.*" Under some could not recover. Dowling v. New York Central & H. R. R. R. Co., The Bul- letin, N. X., vol. 1, No. 10, p. 17. Where a laborer on a ship came to his work drunk, and was ordered home, and was later found injured at the foot of a ladder, he was guilty of serious and willful misconduct. McGroarty v. Brown & Co., Ltd., supra. 27 Nekoosa-Edwards Paper Co. v. Industrial Commission, supra. Though an employe is to some extent Intoxicated, and is injured while in the course of his employment, he is entitled to compensation. Hanson v. Com- mercial Sash Door Co., Bulletin No. 1, 111., p. 30. 28 Where an employ 6 sustained a fracture of the skull by falling from a wagon, caused by the kingbolt of the wagon bending and allowing the front wheels to pull from under it, and it was shown that, though the employfi was intoxicated at the time of said accident, his intoxication was in no wise connected with the cause of the accident or fall, the employer Is not relieved from liability for such accident because of such intoxication. Summerville V. De Bella & Co., 2 Cal. I. A. C. Dee. 122. 29 Hewitt V. Red River Lumber Co., 2 Cal. I. A. C. Dec. 286; Potts v. Pa- cific Stevedoring & Ballasting Co., 1 Cal. I. A. O. Dec. 630; Phillips v. Chans- lor-Canfield Midway Oil Co., 1 Cal. I. A. C. Dec. 580; Ruprecht v. Red River Lumber Co., 2 Cal. I. A. C. Dec. 864. Sufflcieney of proof of intoxication. — The Commission does not accept as conclusive of intoxication the mere evidence of the odor of alcohol upon the breath of the injured man and testimony that he had taken three or lour drinks of beer within six hours prior to the accident. Potts v. Pacific Stevedor- ing & Ballasting Co., supra. Where the defense of intoxication is not sub- stantiated by direct evidence, but is only a surmise, the defendants have not discharged the burden upon them, and the defense is not established. Phil- lips V. Chanslor-Canfield Midway Oil Co., supra. The finding of a bottle re- sembling a whisky bottle, containing a fluid that looks like whisky, upon the § 142 -workmen's compensation 568 Acts, it must be the sole cause, and not merely the contributing cause, of the injury.'" Drunkenness by an applicant during his period of disability is not a defense to his application for compensation, unless it ag- gravated or prolonged his disability, and then only to that ex- tent." § 143. Burden of proof — Question of fact The burden of proof is upon the defendant affirmatively to es- tablish that the accident and injury were caused by the willful mis- conduct of the injured, employe,'^ and this burden is not met where body of an employe killed in an accident, and the statement of a fellow em- ploye that another employ^ had told him he had been drinking with the de- ceased the morning of the accident, does not furnish evidence sufficient to establish the alleged intoxication of the deceased. Hewitt v. Bed River Lum- ber Co., supra. Where the Insurer claimed that the injury which caused employe's death was due to his own serious and willful misconduct, to wit, intoxication, but the evidence failed to maintain his claim, and showed that the deceased was in a normal condition and well able to perform his customary work, the dependent mother was awarded compensation. Shea v. United States Casualty Co., 2 Mass. Wk. Comp. Cases, 481 (decision of Com. of Arb.). 30 American Ice Co. v. Fitzhugh (Md.) 97 Atl. 999. 31 West V. City of Pasadena, 1 Cal. I. A. O. Dec. 2T4. 32 Kraljlvich v. Yellow Aster Mining & Milling Co., 1 Cal. I. A. C. Dec. 554 ; Ruprecht v. Red River Lumber Co., 2 Cal. I. A. C. Dec. 864; Maffia v. Aqulli- no, 3 Cal. I. A. C. Dec. 15. The burden is upon the employer to show that the injury was attributable to the workman's serious and willful misconduct. Logue V. FuUerton, Hodgart & Barclay (1901) 3 F. 1010. Proof of intoxication, see § 142, ante. Sufflciency of proof. — Where the deceased employ^ was subordinate to an- other employ^, who was in command of and was running a launch in a manner violating the rules of the employer, by reason of which violation it is alleged the subordinate employ^ was killed, the burden of proof resting upon the employer to show ipso facto willful misconduct on the part of the subordinate employ^ was not sustained. Ruprecht v. Red River Lumber Co., 2 Cal. I. A. C. Dec. 864. In Sirica v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 171, where the employer showed that an employ^, whose hand was crushed in an automatic punch while he was oiling it, could easily have stopped the machine, but the evidence was conflicting as to whether he had 569 DEFENSES TO COMPENSATION CLAIMS § 144 the element-of willfulness is left in doubt.'' Where injuries result in death, the evidence to establish the fact of such willful miscon- duct must be clear and unequivocal, and of the highest character. It must approach the point of proof beyond a reasonable doubt, for the reason that the workman's lips are closed by death and he cannot be heard in his own defense.'* The existence of willfulness under any particular circumstances is usually a question of fact.'= In the absence of substantial evidence to the contrary, it will be presumed that an employe's death was not occasioned by his willful intention, and did not result solely from intoxication while on duty.'' § 144. Estoppel and res judicata Where an employe, injured while performing work in the usual line of his employer's business, ignorantly supposes that the work been instructed to do so, It was held the employer had not discharged the burden of proof upon him to sustain his charge of serious and willful mis- conduct. In Pelham v. Burstein, 1 Conn. Comp. Dec. 49, it was held that, while the use of kerosene oil in kindling or replenishing a fire, contrary to clear and explicit orders of the employer, if established, constitutes serious and willful misconduct, barring compensation, the evidence of such facts was not sufficient in this case to justify such a finding. In Keyser v. Gil- bert & Bennett Mfg. Co., 1 Conn. Comp. Dec. 636, where, though conflicting stories of the accident were told, it was found that on either story the claim- ant had jumped from a moving elevator, falling into the shaft, and had vio- lated a strict rule in leaving his machine to get supplies, he was held guilty of serious and willful misconduct. 3 3 Hedges v. City of Los Angeles, 1 Cal. I. A. O. Dec. 394. 84 Freid v. Smith Lumber Co., 2 Cal. I. A. C. Dec. 117. 3 5 In re Nickerson, 218 Mass. 158, 105 N. E. 604, Ann. Cas. 1916A, 790; Leishman v. Dixon, 3 B. W. C. C. 560; George v. Glasgow Coal Co., [1909] A. C. 123 ; Hist v. London & Southwestern Ry., 96 L. T. 750. Whether a railroad employe was guilty of intentional and willful mis- conduct in climbing over the bumpers of a train to which a live engine was attached was a question, for the jury. Gignac v. Studebaker Corporation, 186 Mich. 576, 152 N. W. 1037. 38 American Ice Co. v. Fitzhugh (Md.) 97 Atl. 999. § 144 workmen's compensation 570 is done for his employer, when as a matter of fact it is done in pursuance of an independent contract of the employe's foreman with the understanding of the employer, the employer is estopped to deny liability for compensation.^'' A corporation will be estop- ped to plead the defense of ultra vires against liability for injuries to its employes. A laboring man ought not to be obliged to in- quire as to the power of his general manager to direct him to do different kinds of work, concerning which directions are given.'* Payment of compensation to the injured workman under an agree- ment does not estop the employer from claiming that the work- man's subsequent death is due to disease and not to the accident.'* The ex parte action of an employer in causing judgment to be rendered against itself does not affect the right of the employe to further compensation.*" § 145. Negligence, contributory negligence, and assumption of risk At common law the master was not liable for an injury to his servant, caused by the negligence of a fellow servant, on the ground that the servant assumed the risk. Undet the Workmen's Com- pensation Acts the master assumes all risks "incidental to the em- ployment" ; *^ that is, risks incidental to or connected with what a workman has to do in fulfilling his contract of service.*^ Such risks may be either ordinary risks, directly connected with the. employ- ment, or extraordinary risks, which, owing to the special nature of 37 Summers v. National Tent & Awning Co., 2 Cal. I. A. C. Dec. 968. 88 English V. Cain, 2 Cal. I. A. C. Dec. 399. 3» Cleyerley v. Gaslight & Coke Co., Ltd. (1909) 1 B. W. C. C. 82, H. L. 40 BacUi V. Solvay Process Co., Mich. Wk. Comp. Oases (1916) 48. *i HuUey V. Moosbrugger, 87 N. J. La<7, 103, 93 Atl. 79. *2 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458 ; Pope v. Hill's Plymouth Co. (1912) 102 L. T. R, 632, 3 B. W. C. C. 339, and on appeal (1912) 105 L. T. R. 678, 5 B. W. C. C. 175. 571 DEFENSES TO COMPENSATION CLAIMS § 145 the employment, are only incidentally connected with it.** Contrib- utory negligence on the part of the injured person is not ordinarily a defense to a claim for compensation,** nor is it any defense that the employer was without fault and not negligent, and that he could not by the exercise of reasonable care and caution have pre- vented the injury.*" *3 Bryant v. Flssell, 84 N. J. Law, 76, 86 Atl. 458. 44Eainey v. McClaiii, 1 Cal. I. A. O. Dec. 57; McCrystle v. Enos, 2 Cal. I. A. C. Dec. 43. Negligence of an employ^ contributing to his Injury cannot be relied upon by the employer as a defense to the claim of such employ^ for compensation. Woodruff v. Peterson, 1 Cal. I. A. C. Dec. 516. When the scope of the employment is once ascertained, any injury arising out of and in the course of it is to be compensated for, although the employ^ acted in a negligent or unusual way. Mann v. Glastonbury Knitting Co., 90 Conn. 116, 96 Atl. 368. Under the Illinois Act, an employ^ is entitled to compensation even though he violates orders given him, or for injury sustained as a result of negligence. Reynolds v. Mound City Water & Light Co., Bulletin No. 1, 111., p. 123. Compensation wUl not be denied because of contributory neg- ligence of the employd. American Ice Co. v. Fitzhugh (Md.) 97 Atl. 999. Where it appeared that there were more than four employes working in a common employment, the defense of contributory negligence was not avail- able. (St. 1915, § 2394—1 [3]) Sullivan v. Chicago, M. & St. P. Ry. Co. (Wis.) 158 N. W. 321. 46 Jensen v. Southern Pac. Co., 215 N. Y. 514, 109 N. E. 600, L. R. A. 1916A, 403, Ann. Cas. 1916B, 276; Sexton v. Newark District Telegraph Co., 84 N. J. Law, 85, 86 Atl. 451; Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399. The employe's right to compensation does not depend on negligence of the employer. American Ice Co. v. Fitzhugh (Md.) 97 Atl. 999; In re Murphy (Mass.) 113 N. B. 283. It is no defense in an action for compensation that the accident is one which the employer could not by the exercise of reason- able care and caution prevent, as compensation is payable under the act without regard to want of reasonable care. Johnston v. Mountain Com-, mercial Co., 1 Cal. I. A. C. Dec. 100. An employer's liability to an injured employ^ is in no way predicated upon any fault or negligence of the employer, or control of the cause thereof by the employer. Douglas v. Kimbol, 1 Cal. I. A. C. Dec. 543. That the employer was in no way negligent or at fault is not open to him as a defense. McCrystle v. Enos, 2 Cal. I. A. C. Dec. 43. In a proceeding before the Industrial Commission of Ohio under the Work- men's Compensation Act of 1913 it is not necessary for the claimant to prove that his injury was caused by the negligence of his employer. It is sufficient to prove that the injury for which compensation is claimed occurred while § 146 workmen's compensation 572 § 146. Defenses under federal Act The original federal Act provided that no compensation shall be paid under it where the injury is due to the negligence or miscon- duct of the employe injured, nor unless the injury shall continue more than fifteen days. Negligence under this act involves the idea of misconduct, or voluntary, and unnecessary exposure to ob- vious danger, and means more than mere inadvertence or error of judgment, under circumstances not suggesting danger.*" Failure^ to exercise incessant vigilance in avoiding a known danger is not negligence.*^ Nor is one chargeable with negligence because he is slower to think and act than another,** or because in a sudden emergency, and seemingly called upon to act at once, the action taken leads to an injury which would not have occurred other- wise.** A laborer called upon to perform a task out of his regular "in the course of employment." Biddinger v. Champion Iron Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70. *6 In re Dieselman, Op. Sol. Dept. of L. 401; In re Strayer, Op. Sol. Dept. of L. 446 ; In re Taylor, Op. Sol. Dept. of L. 411. Proof of negligence. — An injury to a printer's back, incurred whUe working a hand press, was not due to negligence merely because the printer had con- tinued working the press, although it worked hard and required extra ex- ertion. In re Hutton, Op. Sol. Dept. of L. 408. The employ^ was engaged in painting machinery while same was in motion. No orders had been given to the contrary, so he was held not guilty of negligence or misconduct. In re Butler, Op. Sol. Dept. of L. 502. The workman was employed as fire guard in the Forest Service, occupying quarters furnished by the govern- ment. In attempting to shoot a rat in his cabin he accidentally shot him- self. There was nothing in this to show negligence or misconduct. In re McDonald, Op. Sol. Dept. of L. 502. *7 In re Reinburg, Op. Sol. Dept. of L. 398. A laborer engrossed in his work, who momentarily forgets a known danger, is not guilty of negligence. In re Glass, Op. Sol. Dept. of L. 393. *8 No man can be assumed to be indifferent to impending and apparent danger; it is fair to assume that he will endeavor to avoid it. That he is slower to think or slower to act than another is not negligence. In re Mc- Fadden, Op. Sol. Dept. of L. 396. 49 In re Lyte, Op. Sol. Dept. of L. 397. 573 DEFENSES TO COMPENSATION CLAIMS § 146 line of work is not chargeable with negligence because he adopts, through ignorance, a method dangerous in fact, but not obviously dangerous to an inexperienced man.°" Artisans are not necessarily negligent because, as they become proficient and dextrous, they naturally make use of movements more or less mechanical or in- voluntary, which might be regarded as negligent if it were reasona- ble to expect men never to relax their vigilance and to be con- stantly on guard.°^ The violation of a positive rule or instruction directly resulting in injury amounts to negligence or misconduct,"^ if the violation is willful or wanton. °^ But, in order that the violation of a rule or regulation shall constitute negligence or misconduct, it must ap- pear that reasonable efforts have been made to enforce the same.''* A workman called upon to perform a task out of his regular line of employment is not chargeable with negligence for violation of a rule requiring the wearing of goggles while performing this class of work.=° BO In re Turner; Op. Sol. Dept. of L. 406. oiln re Robinson, Op. Sol. Dept. of L. 389. 5 2 In re Pagllarulo, Op. Sol. Dept. of L. 503. 5 3 Willful or wanton disobedience of orders is necessary to constitute neg- ligence or misconduct under the federal Act. In re Horn, Qp. Sol. Dept. of L. 504. 5 4 In re Wilhelm, Op. Sol. Dept. of L. 508. 55 In re Duer, Op. Sol. Dept. of L. 507. §147 workmen's compensation 574 CHAPTER VII COMPENSATION Section 147-154. Article I. — Earnlggs as basis of compensation. 155-166. Article II. — Disability and incapacity for work. 167-174. Article III.— Death benefits. 175-192. Article IV. — ^Payment, release, and related matters. 193-201. Article V. — ^Treatment and funeral expense. 193-200. Division I. — Expenses of medical, surgical, and hospital treat- ment. 201. Division II. — Funeral expenses. ARTICLE I EARNINGS AS BASIS OF COMPENSATION Section 147. What constitutes earnings. 148. Loss of earning capacity. 149. Massachusetts. 150. Computation of earnings in general. 151. Determination of average earnings. 152. Average weekly earnings. 153. Daily wages. 154^ Federal Act. § 147. What constitutes earnings "Earnings," which by these Acts are made the basis for compu- tation of the amount of compensation, include, not only money, whether received as regular wages, as "extra wages," ^ or as gra- tuities, called "tips," ^ or deducted from the employe's wages for 1 "Extra wages," paid the steward of a ship over and above his ordinary wages, if his work on the trip was satisfactory, and profits made by selling whisky, were part of his remuneration. Skailes v. Blue Anchor Line, Ltd. (1911) 4 B. W. C. C. 16, C. A. 2 An employ^ in a hotel received a monthly wage of $30 in cash and meals to the value of $30 more. These earnings were increased by tips or gratui- 575 COMPENSATION § 147 equipment or material,' but also anything having a money value, ties from the guests of the hotel, an average monthly income of $80, be- cause of the polite and attentive treatment accorded them in accordance with the conditions of his employment. The insurer claimed that compen- sation should be based on a monthly wage of $60, but it was held that tips or gratuities are earnings, and that the employe's compensation should be based upon all his earnings. Hatchman v. New England Casualty Co., 2 Mass. Wk. Comp. Cases, 419 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). Where tips which amounted to from 10s. to 12s. a week were received by a waiter in a railway dining car, such tips were a part of his earnings. Penn V. Spiers & Pond, Ltd. (1909) 1 B. W. O. C. 401, C. A. Tips received by a carman in collecting and delivering goods, for special services in leaving or getting the packages at some place other than the entrance, were part of his earnings. Knott v. Tingle, Jacobs & Co. (1911) 4 B. W. C. C. 55, C. A. But it has been held that gratuities received by employes incident to the services performed by them are not to be treated as earnings upon which to base a computation of compensation, unless the contract of hire is made between the employer and employ^ with reference to such gratuities as the whole, or a part, of the remuneration to the employ^ for the performance of the services which he is engaged to pferform. Reynolds v. Smith, 1 Cal. I. A. C. Dec. 35. 3 Where a miner obtained his explosives at the mine, and their cost was subtracted from his wages, the sum he paid for them was a part of his earn- ings. McKee v. Stein & Co., Ltd. (1910) 3 B. W. C. C. 544, Ct. of Sess. Six- pence, which was kept out from a miner's pay each week to pay for the oil he used in his lamp, was part of his earnings. Houghton v. Sutton Heath & Lea Green Collieries Co., Ltd. (1901) 3 W. C. C. 173, C. A. (Act of 1897). Money deducted from a miner's wages for things furnished him, and for other equipment expenses, was part of his earnings. Abram Coal Co. v. Southern (1903) 5 W. C. C. 125, H. L. (Act of 1897). But where employers of a gang working in ironstone and sand paid each one the average sum earn- ed per hour by the gang, keeping out the average cost per man of the ex- plosives they used, the cost of the explosives was held not to be a part of the earnings of a member of the gang. Shlpp v. Frodingham Iron & Steel Co., Ltd. (1913) 6 B. W. C. O. 1, C. A. Buckley, L. J., said in the last-named case: "There is a difference, material to the present case, between — first, earnings and a right in the employer to make a deduction from those earn- ings; and, secondly, earnings arrived at by finding a sum which is the dif- ference between two sums. The present case is one of the latter kind. * * * There is no deduction as between the employer and any one of the employed. The deduction is made as between the employer and all the em- ployed in the aggregate. The remuneration payable as between any one of the gang and the employer is that man's proportionate part of the sum, ar- § 147 workmen's compensation 576 such as board, lodging, and washing,* and use of a uniform." They do not include payments not received in the employment,' rived at after deduction of the cost of the powder used, not by himself alone, but by himself and others." '' Where the injured employ^ received in wages $15 a week and his board, worth $3 a week, 50 percent, of his earnings amounted to $9, instead of $7.50, a week. (Wk. Comp. Act, P. L. 1911, p. 134) Baur v. Court of Com- mon Pleas, 88 N. J. Law, 128, 95 Atl. 627. The value of the use of bedroom, kitchenette, and bath by a hotel man- ager, where the same are furnished as a part of the contract of employment, should be included in the computation of average annual earnings. Fowler V. Zellerbach-Levison Co., 1 Cal. I. A. C. Dec. 609. In Wallack v. Sorensen, 1 Conn. Comp. Dec. 197, it was held that where there is no direct evidence of the value of board received by the employ^ as part of his earnings, except as to a few of the things served, the commis- sioner can take judicial notice of the cost of board and room ordinarily. In this case, having regard to the appearance of the family and of the em- ploy6, board and room was fixed at $3 per week ; the commissioner holding it proper to take the lower limit, since the burden is on the claimant to es- tablish his case. Where a workman was earning $30 a month besides his board, which was acknowledged to be worth $15 a month, his average monthly wage was $45. Lewandowski v. Crosby Transportation Co., Rep. Wis. Indus. Com. 1914-15, p. 9. Where a workman was paid $23 per month during the winter months and $30 per month during the fall, together with board, washing, and lodging, estimated at $10 per month, the Commission found his average annual earn- ings, including the board, to be $452, and his average weekly earning $8.70. Vojacek v. Sehlaefer, Kep. Wis. Indus. Com. 1914-15, p. 8. The value of board and lodging of a seaman while aboard his ship is the cost to the employers (here Is. 7d. a day), notwithstanding that it would have cost the seaman more ashore (16s. a week), and in determining his earnings its value must be added to the money compensation of 21s. a week. Rosenquist v. Bowring & Co., Ltd. (1909) 1 B. W. C. C. 395, C. A. Free food and washing, supplied to the captain of a ship in addition to his salary of £216 per year, is part of his earnings, and its value is the cost of it to the employers. Dothie v. MacAndrew & Co. (1909) 1 B. W. C. C. 308, C. A. Fletcher Moulton, L. J., said in the above case : "It is incontestable that you must reckon the value of the food as part of the remuneration which he 5 The use of a uniform is part of the earnings of a railway guard, al- though it is owned by his employers. Great Northern Ry. Co. v. Dawson (1905) 7 W. C. C. 114, C. A. (Act of 1897). 6 Duberly v. Mace (1913) 6 B. W. O. C. 82, C. A. 577 COMPENSATION § 147 such as compensation for a prior injury/ charity,' the value of as- sistance necessarily procured by the employe, whether furnished gratuitously or paid for by him," or business profits,^" or payment for the use of the employe's horse in his work,^^ or the rent of a house supplied by his employer under the terms of a lease, and not gets. It is remuneration in the sense that it is something which he receives for his labor ; it is remuneration in the sense that it is something the ex- pense of which has to be borne by his master to procure that labor." 7 Where an 'injured workman, who was receiving compensation for his injury under the agreement that his pay each week for light work as a battery carrier, divided by two, should be subtracted each week from the amount of compensation, met with a fatal accident while doing the light work, only his wages as battery carrier are to be considered in computing his earnings. Gough v. Orawshay Bros., Ltd. (1909) 1 B. W. C. 0. 374, C. A. 8 Where a blind man, working in a charitable Institution, was supplied with board, lodging, clothing, and 5s. a month besides, and the part exceeding what he earned was made up by charity, compensation must be based on his weekly earnings, excluding the contributions of charity. MacGlUivray v. Northern Counties Institute for the Blind (1911) S. C. 897, Ct. of Sess. » The wages of a drawer, paid by a miner who was compelled to employ him, were not part of the miner's earnings. McKee v. Stein & Co., Xtd. (1910) 3 B. W. C. C. 544, Ct. of Sess. Where a miner was assisted by his son without remuneration, although the work was worth 2s. 9d. per day, there being no money paid, there could be no reduction in earnings. Nelson v. Kerr & Mitchell (1901) 3 F. 893, Ct. of Sess. 10 Where a workman, who was paid £94 a year before his accident, made £98 a year clear profit on a public house which he bought after the injury, this amount cannot be taken as a criterion of his earning capacity. Pater- son v. Moore & Co. (1910) 3 B. W. C. C. 541, Ct. of Sess. Where a teamster worked under an agreement for 5s. a week, provided that. If he ever earned more than 10s. a week, his wages were to be submitted to arbitration, and employed his father and a lad on a farm he owned, paying his father 13s. a week, the decision of the judge reducing his compensation for loss of his left thumb to Id. a week was not disturbed. Duberly v. Mace (1913) 6 B. W. C. C. 82, C. A. 11 Where an employ^ is hired at $5 a day, and required to furnish his own horse without additional pay, it would be manifestly Improper to allow as wages the value of the hire of .the horse, that being an Income from the capital invested, and not for the personal services of the rider. While there is no absolute standard" of wage for man and horse separately, the evidence here established as a reasonable division the dally wage of $3 for the serv- HoN.CoMP. — 37 § 148 workmen's compensation 578 as a part of the salary,^" or wages possible under a contract, but not in fact received,^^ or a pension from the government.^* Where an employer pays to an employe having general charge of the affairs of the business a fixed sum of money each month, from which the employe is required to pay an assistant, if one is employed by him to assist in the work, such sum as may be agreed upon between the employe and the assistant, the sum so paid the assistant forms no part of the salary or compensation of the employe, and in deter- mining the salary of such employe the amount paid the assistant must be deducted from the total amount paid by the employer.^" § 148. Loss of earning capacity Compensation is based upon the loss of earning power or capacity to earn,^° as to which the claimant has the burden of proof.^' The ices of the man and $2 for rental of the horse. Kid v. New York Motion Picture Co., 1 Cal. I. A. C. Dec. 475. 12 Where, as an inducement to enter the employment, an employ^ secures a lease of a tract of land of his employer upon which is located the house In which the employ^ lives while performing the work of his employment, the rent of the house cannot be included as a part of the salary of the employ^. Olson V. Olson Winery Co., 2 Cal. I. A. 0. Dec. 325. 13 Where the contract of employment of a wine maker provided for the payment of a salary and also for an increase of $25 for each 100 tons crush- ed in excess of 700 tons, with the assurance that the winery would run at its full capacity of 2,000 tons, but the evidence showed that no grapes in excess of 700 tons were crushed, the sum specified in the contract constituted the annual earnings of the employ^. - Olson v. Olson Winery Co., 2 Cal. I. A. C. Dec. 325. 1* A pension from the United States government on account of service ren- dered in the army or navy, or on account of disability incurred in the mili- tary or naval service, will not be considered in ascertaining the "average weekly wage." In re Harriet Horn, vol. 1, No. 7, Bui. Ohio Indus. Com., p. 35. 15 State ex rel. Gayloi'd Farmers' Co-op. Creamery Ass'n v. District Court, 128 Minn. 486, 151 N. W. 182. 18 Without such loss there is no provision for compensation. (Wk. Comp. Act, c. 831, art. 2, § 11) Weber v. American Silk Spinning Co. (E. I.) 95 17 See note 17 on following page. 579 COMPENSATION § 148 object of this legislation, broadly stated, is to compensate for loss of capacity to earn, measured by what the workman can earn in Atl. 603. The scheme of the Compensation Acts makes compensation al- most inseparable from wages. Porton v. Central (Unemployed) Body for London (1910) 2 B. W. C. C. 301. Farwell, L. J., has said: "The Acts do not give compensation for a loss such as the loss of a limb, but for the loss of earning capacity actually caused by the loss of such limb. During the continuance of such incapacity the loss of the limb diminishes the capacity to earn, but the court has to measure the compensation by the loss of earnings. Therefore, if the work- man has learned as a one-armed man to earn, and earn as high or higher wages than he got as a man with both arms, he cannot then get compensa- tion, for there is no loss. * * * Physical incapacity due to the loss of a limb is doubtless strong and probably conclusive evidence, in the absence of anything else, of incapacity to earn full wages on an application to award compensation." Calico Printers' Association, Ltd., v. Higham (1912) 5 B. W. C. C. 110. The evidence showed that the employ^, manager for the subscriber, re- ceived a cut from a circular saw which necessitated the amputation of the forefinger and caused material damage to the second finger of the right hand. The employ^ claimed that his earning capacity had been lessened by the in- jury, stating, that, whereas he was able to earn $27 weekly before the in- jury, he was able to earn only $13.50 afterward. The record of the meeting of the corporation by which he was employed showed that by vote of the corporation at its annual meeting, seven months after the injury, the em- ploye's wages were fixed at $27 for the ensuing year, but despite this vote it was claimed that the earning capacity of the employ^ was only $13.50 weekly. The employ^ was held not entitled to compensation. Grady v. Fi- delity & Deposit Co. of Md., a Mass. Wk. Comp. Cases, 678 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). Computation of loss of earning power. — In Carlson v. Emantelson, 1 Conn. 17 The burden is on the claimant to show with reasonable definiteness the extent of the loss of earning capacity. Weber v. American Silk Spinning Co. (R. I.) 95 Atl. 603. In Jacobs v. American Steel & Wire Co., 1 Conn. Comp. Dec. 100, it was held that the claimant could not be allowed incapacity compensation on ac- count of an injury to his eye which incapacitated him for work as a printer, when he had not worked at this trade for 18 years previous, did not secure printing work after voluntarily leaving his other employment, and did not produce any evidence of the prevailing wages in the printing trade at the time, though experts agreed that he was incapacitated for such work ap- proximately 10 per cent. The claimant must show his earning power after the injury, in order to recover for loss of earning power. § 148 workmen's compensation 580 the employment in which he is, under the conditions prevailing therein before and up to the time of the accident. That he takes a Oomp. Dec. 139, where a woman, employed to do washing, ironing, house- cleaning, and similar duties for several employers, sustained an injury, after which she was only able to work two days a week, instead of six, as before, she was awarded one-half her loss of wages /during such partial incapacity. Where the claimant has recovered sufficiently to be able to work one-half of the time, he is to be awarded one-half the difference between his wages at the time of the injury and what he is able to earn now by reasonable effort. Hurlowski v. American Brass Co., 1 Conn. Comp. Dec. 6. In Field v. N. T., N. H. & H. E. R. Co., 1 Conn. Comp. Dec. 199, it was held that the Commis- sioner, in awarding for partial incapacity, can determine as a matter of judicial knowledge, considering evidence of the workman's capabilities and health, what a man partially incapacitated can reasonably earn. The em- ploy6 was in a nervous condition, and it was found that the only practical way to regain his capacity was for him to begin on light work, and gradually increase the work until he entirely recovered ; the Commissioner awarding compensation until a time sufficient to effectuate a complete recovery. In Bristol V. Bristol, 1 Conn. Comp. Dec. 368, where the employ^, partially in- capacitated, worked for the same employer, receiving $20 less per month than before, one-half that amount was awarded him as compensation; in this case the employer had already paid more than that amount, and so was dis- charged from liability. In Margolin v. Union Hardware Co., 1 Conn. Comp. Dec. 334, where because of the injury to his eye the claimant was unable to do his previous work, or any other which he could find, he was awarded for total incapacity, provided that, if his employers found him work, the wages he then earned should be taken as his earning capacity. In Baggonski .v. Clayton Bros., Inc., 1 Conn. Comp. Dec. 299, where it appeared that the claimant had been taken back by his employer, but whereas he earned $1.75 per day before the injury, he was then earning but $1.50, compensation for partial incapacity was awarded on the basis of the difference of earnings before and after the injury. (Wk. Comp. Act, pt. B, § 12) In Penfield v. Town of Glastonbury, 1 Conn. Comp. Dec. 637, where a janitor who had been in- jured continued to work and draw full wages, but had to employ assistants h% would not otherwise have needed, compensation for loss of earnings, based upon the amounts so expended, was awarded. New York. In deter- mining the amount of an award for compensation, the fact that the vocation of blacksmith helper is not a vocation which requires much time or talent to jacquire, and that the workman can without loss take up some other vocation ithat is as remunerative as that of a blacksmith helper, will be considered. Saccoccio v. Bradley Contracting Co., The Bulletin, N. T., vol. 1, No. 5, p. 11. 'That a stockholder would not have received so large a salary, but for the fact that he was a stockholder, and that if he were to go into the employ of 581 COMPENSATION § 148 holiday and forfeits his wages for a month does not interfere with what he can earn. It is only that for a month he did not choose to earn. So, too, where there is a casualty accidentally stopping the work. But where it is part of the employment to stop for a month in each year, he cannot earn wages for that time in that employ- ment, and his capacity to earn is less for the year.^' Under the Ohio Act it has been held that, inasmuch as the purpose of the Act is to compensate the employe for impairment of his earning capac- ity and not for pain and suffering ^° — the rule prevailing under many of the Acts, including that of California ""-j-a. workman who any other person Ms salary would be greatly reduced owing to his injury^ did not form a basis for allowing compensation where Ms salary in fact con- tinued the same as before the accident. Kennedy v. Kennedy Mfg. Co., The Bulletin, N. Y., vol. 1, No. 5, p. 12. It was later held (vol. 1, No. 8, p. 8) that, In view of fact that his salary bad been reduced by the company which suc- ceeded Ms former employer, he should be allowed compensation based on his loss of earnings. 18 Anslow V. Cannock Chase Colliery Co., Ltd. (1910) 2 B. W. O. O. 361, C. A., and 365, H. L. Where an injured workman, who had returned to work in a different capac- ity, was earning as much as before the accident, but later, during a general fall in wages, had his pay reduced, the reduction was not due to incapacity, and cannot be considered a loss of earning power. Merry & Cuninghame, Ltd., V. Black (1910) 2 B. W. C. C. 372, Ct. of Sess. The Industrial Accident Board was not prevented from awarding additional compensation for impairment of earning capacity in the workman's trade by the fact that the claimant, when filing his petition for additional compensa- tion and when the testimony was taken, was earning as much or more wages in another employment than he did before the accident. Foley v. Detroit United Bly. (Mich.) 157 N. W. 45. Awards made are according to a surgical scale of relative impairment of earning capacity. Previous wages or specialized value of lost members cannot be considered. While the workman may not get full "compensation," he will always get some compensation, without expense to him and at a time when he most needs it. (Wk. Comp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 17. 19 In re David Burns, vol. 1, No. 7, Bui. Ohio Indus. Com., p. 5. 2 Compensation is not allowed for pain and discomfort following injury, hut only for disability to labor at any form of employment which the injured § 148 workmen's compensation 582 receives an injury resulting in temporary disability, and who, en- ters other emplpyment before he has fully recovered at a wage equal to or greater than he was receiving at the time of his injury, is not entitled to compensation after engaging in the latter employ- ment, even though he was not at that time able to resume the employment in which he was engaged at the time of his injury.^^ But it must not be assumed that an injured employe will remain in the same employment always, and if by reason of permanent in- jury or disfigurement he is handicapped in seeking other employ- ment, or exercising his physical powers to the utmost, compensa- tion should be awarded for this loss of earning capacity.''^ Award man might, by the exercise of reasonable diligence, be able to do. Conse- quently, when nature has remedied the injuries as far as It can, and whatever remains to make the cure complete is to be supplied by the applicant himself in going to work and giving his limbs the use which alone would effect his complete restoration, compensation should be discontinued. Kid v. New York Motion Picture Co., 1 Cal. I. A. C. Dec. 475. Where an employe has sustained an injury, such as a fracture, which has healed as far as nature can repair the damage without the hearty co-operation of the injured party in getting the member back into use, the employe is not entitled to further compensation because of stiffness and pain in using it. The law does not contemplate com- pensation for mere pain and inconvenience, but only for disability to labor. Wolff V. Levison & Zellerbach, 1 Oal. I. A. C. Dec. 347. The California Com- mission regards "disability," within the meaning of the Act, as referring to inability to earn, and no form of temporary disability is compensable under the Act, except and in so far as it involves inability to earn. Every injured employe is expected to make every effort to earn a living, either at the old or a new occupation. Larnhart v. Kice-Landswick Co., 1 Cal. I. A. C. Dec. 557. Where, as often happens in the healing of a broken rib, a nerve is caught in the callous thrown around the fracture, and the injured person feels pain whenever it is moved or touched, but the pain is not aggravated nor his physi- cal condition harmed in any way by working at his occupation, and the con- dition of the nerve would be relieved sooner by resuming work and forgetting about it, such condition, though painful, does not constitute disability, and no compensation will be awarded during its continuance after the rib has knit together sufficiently to allow his return to work. Semi v. Rolandi, 1 CaL I. A. C. Dec. 184. 21 In re David Burns, vol. 1, No. 7, Bul.'Ohio Indus. Com. p. 5. 22 Greenock v. Drake, 2 Cal. I. A. C. Dec. 379, 583 COMPENSATION § 149 must be made with reference to the effect of the injury upon the power to secure employment in the open market."' Where the in- jury is incurable, the temporary increase or decrease in earnings need not be considered. This is so, even where the injured employe continues to earn his wages following the accident in an amount equal to or in excess of his former earnings,'^* § 149. Massachusetts The Massachusetts Act provides that the Massachusetts Em- ployes' Insurance Association shall pay to the injured employe, where the injury is partial, "a weekly compensation equal to one- half the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than $10 a week ; and in no case shall the 28 A dismemberment of the body, although slight, and although the Injured person has returned to his employment at his former wages, creates a partial disability; it causes an inability to compete with other men in obtaining em- ployment, and, in the average man, results in a lower earning power. Bassett V. Thomson Graf Bdler Ck)., 1 Cal. I. A. C. Dec. 60. The loss of the forefinger of the left hand affects a carpenter and cabinet maker very difCerently from a sewer digger. The California Commission, in making its permanent dis- ability ratings, cannot take into consideration the fact that the present employer of the applicant may always retain him in its employment. Eatings and awards must be made with reference to the effect of the injury upon a man's securing employment in an open labor market. Immel v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 385. Where the ability to compete is seriously impaired, an award for a total disability indemnity will be made, subject to the condition that, if the employer or insurance carrier shall find and offer to the injured person employment suitable to his physical condition at a fair wage, the Injured employe shall be entitled to receive only 65 per cent, of the difference between the wage he was receiving at the time of his injury and the wage which he was offered for doing the light work tendered by the employer or his insurance carrier. Rally v. Island Transportation Co., 2 Cal. I. A. C. Dec. 608. The mere fact that an enjployer gives an employs employment after an injury is not binding or conclusive as to the character of the earning capacity of the employe. Waters v. Kewanee Boiler Co., Bulletin No. 1, 111., p. 169. i* Greenock v. Drake, 2 Cal. I. A. C. Dec. 379. § 150 workmen's compensation 584 period covered by such compensation be greater than 300 weeks from the date of the injury." ^° In determining the compensation payable under this provision, no deduction should be made from the employe's average weekly wages earned prior to the injury because of subsequent business depression, but the award should be based on the dififei^nce between the wages which he actually earned prior to the injury and the wages which he is able to earn subsequent thereto.^* The compensation given is not properly con- sidered as a payment of wages. The quantum of compensation is measured by the amount of wages ; but the payment is in place of all the rights of action that belonged to the injured employe and covers suffering as well as loss of wages.^^ § 150. Computation of earnings in general In computing the average earnings for a particular period, micro- scopical accuracy is not required, and indeed is seldom possible. The nature of the employment, its terms, its actual duration, and the personal qualifications of the workman may all be taken into consideration.^^ What is to be considered in determining the amount of wages is not the recompense in fact received, but the rate which the contract of hiring fixed, whether that rate was in fact 2 5 St. 1911, c. 751, pt. 2, § 10. 28 In re Durney, In re Revere Rubber Co., In re American Mut. Liability Insur. Co., 222 Mass. 461, 111 N. E. 166. 2 7 (St. 1911, c. 751, pt. 2, §§ 3, 11) King v. Viscolold Co., 219 Mass. 420, 106 N. B. 988. 2 8 Bamett v. Port of London Authority (1913) 6 B. W. C. C. 111. Where a man worked odd days before and after pay day, when he began and was leaving the employment, the judge, in computing his average weekly earnings, should have added these odd days together, instead of counting them two full weeks. Turner v. Port of London Authority (1913) 6 B. W. C. C. 23, C. A. In computing the average weekly earnings for a year and a half work, the judge properly refused to consider two periods of four days each when the workman was sidk and unable to work. Id. 585 COMPENSATION § 150 realized for the whole time or not.'" The amount to be awarded is not to vary according to the employe's age, or the character of his work, or his expectancy of life ; the only variance between the cas- es of different employes is that caused by a difference in wages earned.'" In the case of concurrent contracts of service — that is, contracts running concurrently in respect to successive and sep- arate employment — ^the computation of weekly earnings as a basis of an award is to be made as if all the earnings were earned in the employment of the one who was employer at the time of the in- jury,'^ provided the services are performed in the same occupation. 2 9 In an employment and in a community wliere tlie regular working week was six days of ten hours each, and the workman was paid 25 cents an hour, the hourly rate reduced to a weekly rate was $15 a week. (P. L. 1913, p. 313) Smolenski v. Eastern Coal Dock Co., 87 N. J. Law, 26, 93 Atl. 85. Where petitioner had worked only part of a day at the time of his injury, and up to 11 o'clock had earned ?1.60, it could be properly found that he was earning $4 per day. Schaeffer v. De Grottola, 85 N. J. I^iw, 444, 89 Atl. 921. so (P. D. 1911, § 2) Bateman Mfg. Co. y. Smith, 85 N. J. Law, 409, 89 Atl. 979. SI Where a night watchman works for six independent employers at the same time, his earnings, upon which compensation is to be computed, are the total amount received from all six, and not just the amount received from the employer on whose premises he was injured. (Wk. Comp., etc.. Act, § 17) Western Metal Supply Co. v. Pillsbury (Cal.) 156 Pac. 491. Where a night watchman is employed by a number of employers severally, and is paid a certain amount by each for watching their premises, his average annual earn- ings are to be fixed at the amount earned by him from all of such employers in his occupation of night watchman during the year preceding his injury. Compensation is not primarily determined between the employer and his in- jured employe, but between the state and the industries of the state. It is rated upon the average amount necessary to tide injured persons over periods of adversity consequent upon accident. The accident has deprived the widow of the whole of the earnings of the deceased from all sources as night watch- man, and she is entitled to an award computed upon the whole of her hus- band's earnings. Mason v. Western Metal Supply Co., 1 Gal. I. A. C. Dec. 284. There were concurrent contracts of service, upon which to compute earn- ings, where a charwoman worked regularly certain days of the week for one employer, and on other days worked for other people (Dewhurst v. Mather [1909] 1 B. W. C. C. 328, C. A.); where a railway company's rule that their employes must "devote themselves exclusively to the company's service" meant § 150 workmen's compensation 586 Where a person is employed as a night watchman, and also earns a small amount acting as janitor in the daytime, the sums earned as janitor in the employment of others cannot be included in his average annual earnings for the purpose of ascertaining the amount of death benefit, where he is killed while acting as night watchman. It was as night watchnj^n that he was pmployed by the defendant, and -his earnings in that occupation only are to be considered.^^ In determining the amount of compensation due for a temporary disability, compensation is based upon the present total or partial loss of earnings.*' The probable loss of wages will be determined , by computation and estimate from all the evidence, and cannot be established definitely by evideiice of earnings at any particular time.** § 151. Determination of average earnings In California, where a workman has worked substantially the whole of the preceding year in the same employment, his average that they must do so only during the hours of the day they were working for the company, and a plate layer worked evenings In a theater (Lloyd v. Midland Ry. Co. [1914] 7 B. W. C.\C. 72, C. A.) ; and where the stoker on a merchant ship received in addition to his earnings there a retainer of £6 per year as a member of the Boyal Naval Reserve (Owners of S. S. Raphael V. Brandy [1911] 4 B. W. C. C. 307, H. L., and 6, C. A.) ; but not where a casual laborer worked at two different times for two different employers (Cue v. Port of London Authority [1914] 7 B. W. C. C. 447, O. A.). Where a work- man, in conjunction with his three years' continuous employment by the respondents, worked as a sorter in the post oflBce, and was killed, his earnings under the concurrent contract were not considered. Buckley v. London & India Docks (1910) 2 B. W. C. O. 327, C. A. 32 Mason v. Western Metal Supply Co., 1 Oal. I. A. C. Dec. 284. 38 Greenock v. Drake, 2 Cal. I. A. C. Dec. 379. Where one employed at a yearly salary sustains an injury resulting in temporary disability only, he is not entitled to compensation If, under his contract, no deduction from his salary is to be made for loss of time. In re A. Costello, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 54. 34 Saunders v. Oxnard Home Telephone, 1 Oal. I. A. C. Dec. 636. S87 COMPENSATION § 151 annual, earnings are to be taken at three hundred times his average daily wage. The average daily wage is to be ascertained by divid- ing the whole amount earned by the employe during the number of days worked in earning such amount, and not by the number of working days in the year." Where the employe has worked stead- ily for more than a year under the same conditions, it is improper to determine his average annual earnings by multiplying his average daily wage by three hundred ; this method applying only where the employe has worked substantially less than a year.*' Earnings can be computed on the basis of the average annual earnings, or twelve times the average monthly earnings during the year preceding the injury, only where the employe has worked substantially all of the year,'^ except possibly where he belongs to a class not accustomed to put in full time throughout the year, and it is possible to arrive at an accurate figure representing monthly earnings based on actual earnings over a portion of the year.*' By "substantially the whole 36 Craig v. Axt, 1 Cal. I. A. C. Dec. 72 ; Frankfort General Ins. Co. v. Pills- bury (Cal.) 159 Pac. 150. 3 8 (Wk. Comp. Act, pt. 2, § 11) Riobbins v. Original Gas Engine Co. (Mich.) 157 N. W. 437. 3' Eep. Nev. Indus. Com. 1913-14, p. 21; Andrewjeski v. Wolverine Coal Co., 182 Micli. 298, 148 N. W. 684. 3 8 Where it appears that employes of a certain class do not, as a rule, put in full time throughout the year, and that it is possible to arrive at an ac- curate figure representing monthly earnings based upon actual earnings over a portion of the year, average annual earnings may be taken as 12 times such monthly earnings, instead of at 300 times the daily vyages. Coleman v. Guilfoy Cornice Works, 1 Cal. I. A. C. Dec. 31. An injured employe was engaged in rafting logs, an employment normally lasting four months in the year, at a daily vyage of $3.60, and it could fairly be presumed that for the remaining eight months he could have secured work in the neighboring mills as a common laborer at $2.25 per day. The average annual earnings were rated at $3.60 per day for four months and $2.25 per day for eight months. Buprecht v. Red River Lum'ber Co., 2 Cal. I. A. C. Dec. 864. But because an industry is seasonal it does not necessarily follow that all employments connected with it are also seasonal. Where an employe is following a calling which is used at aU seasons, as that of a stationary engineer, then, athough he may be § 151 Workmen's compensation 588 year," within the California Act, is meant that the employe must have worked anywhere from two hundred and seventy-five to three hundred and twelve days. Where such is the case, no attention is paid in calculating the average annual wage to working days in which the employe was not employed, as a sufficient average or deduction is made for them by the statutory requirement fixing the average annual earnings at three hundred times the average daily wage.^° In that state, where the workman is employed for seven days in the week, the average daily wage is multiplied by three hundred and thirty-two, instead of three huiidred.*" Where he is hii-ed to work continuously, but is to have two holidays off for every holiday which he works, Sundays being counted as holidays, his average annual earnings are to be determined upon the basis of working at the time of the injury In a seasonal industry, his occupation Is not of itself seasonal, and the average annual earnings will be and are here found by multiplying the average monthly earnings by 12. Reger t. McOloud River Lumber Co., 1 Cal. I. A. C. Dec. 567. 89 Craig V. Axt, 1 Cal. I. A. O. Dec. 72. *o Where an employ^ is required by his contract of hire to work seven days per week, subdivisions 1 and 2 of subsection (a) of section 17 of the California Act cannot fairly and reasonably be applied. These subdivisions, which fix the average annual earnings at 300 times the average daily wage, clearly have reference only to employment for six days per week, as the number 300 is a fair average of days actually worked per year only for such men as work approximately six days per week throughout substantially the whole year. Where an employs works seven days per week, his average annual earnings are to be computed by subdivision 3 of subsection (a) of section 17, and are to be found by multiplying the average dally wage by an arbitrary average representative of the number of days per year that one so employed actually works, and fixed by the Commission at 332. Gallagher v. City of Los Angeles, 2 Cal. I. A. C. Dec. 26 ; Phillips v. Chanslor-Canfleld Midway Oil Co., 1 Cal. I. 'A. C. Dec. 580. But the usual method applies where an employ^ was sup- posed to be working seven days a week, 'but actually received two days off each month on an average, and had worked substantially the whole year pre- ceding the injury with the same employer, and to ascertain his average annual earnings there should be multiplied by 300 his average daily earnings, obtained by dividing his actual earnings by the number of days he was actually em- ployed. Beals V. United Railroads of San Francisco, 3 Cal. I. A. C. Dec. 30. 589 COMPENSATION § 151 employment seven days in the week for one-third of the year and six days in the week for two-thirds of the year.*^ It is immaterial that the earnings of the year were above or below normal, or were more or less than he earned in other years.*^ Where other methods of computation are not available, the annual earning "capacity" of the employe at the time of the accident will be used to determine the average annual earnings.*' Where the period of employment has been so short as to fur- nish no basis for determining the average wage, the rate of wages received by the workman at the time of receiving the injury and the wages usually paid in that vicinity for the same class of work may be taken into consideration in determining the average wage.** *i Holmquist v. Shipowners' & Merchants' Tugboat Co., 1 Cal. I. A. 0. Dec. 224. *2 Where the injured employg has worked substantially the whole of the year immediately preceding his injury La the same employment, whether for the same employer or not, the earnings for that year alone are to be taken as the basis for computing his average annual earnings. (Wk. Comp., etc., Act, § 17, par. 1.) The fact that the earnings for such year are above or below nor- mal cannot be considered, nor can his earnings for other years be taken into account. Gordon v. Evans, 1 Cal. I. A. C. Dec. 94. *3 Where an aviator had 'been employed for only six weeks, and there was no evidence as to what are the average earnings of aviators where engaged for the whole year, the third method provided in the Act, namely, the annual earning "capacity" of the employ^ at the time of the accident, will be used to determine the average annual earnings. In this case the maximum allowed by law was determined upon as the average weekly earnings and was in excess of $70 per week. Stites v. Universal Film Mfg. Co., 2 Cal. I. A. C. Dec. 670. ** In re Frances Williams, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 31. Wlhere an instructress employed by the city is drawing a salary of $60 per month, but has not worked a full year, the presumption is that persons doing the same work, who worked by the year, received the same wages per month that she received. Shannessy v. City of Chicago, Bulletin No. 1, 111., p. 160. The California Act provides that, where other methods cannot "be fairly and reasonably applied," the "earning capacity" of the employe may be com- puted with regard to the earnings of other employes in the same class and his previous earnings. (Wk. Comp., etc., Act, § 17 [a] [3].) Where a miner § 151 workmen's compensation 590 While it has been the general practice under the various Acts, in determining the issue of average annual earnings, to compute the works only a few weeks at a time in order jto secure a grub stake and spends the rest of his time prospecting, his average annual earnings are based, not upon his actual earnings d]^ing the year preceding the injury, but upon the basis of the wages of other employes in the same or a similar employment who have worked substantially the whole year. Larson v. Holbrook, McGuire & Cohen, 2 Cal. I. A. C. Dec. 105. Where the injured employ^ has worked less than one year in the occupation where he is employed at the time of his injury, his average daily earnings are to be fixed at the average daily wage of other employes doing similar work. Rudder v. Ocean Shore Eailroad Co., 1 Cal. I. A. C. Dec. 209; Clark v. Los Angeles County, 1 Cal. I. A. O. Dec. 623. (Wk. Oomp., etc., Act, § 17 [a] [2].) Where an employs has not worked substantially the whole year in the employment wherein he is injured, the law required that his average annual earnings be computed on a basis of the experience of other men of his class who have worked substantially the whole year. Testimony must be taken as to the common experience of men of the grade and class to which the injured workman belongs in the employment in which he is engaged at the time of his injury. In determining average annual or daily wages of an employfi, the issue is not as to what the actual earnings of the injured employ^ may or may not have been. The purpose of the law is to reach the common experience in the same or a neighboring locality of workmen of a class to which the injured workman belongs. Craig v. Axt, 1 Cal. I. A. C. Dec. 72. Where an employs received $2.50 a day and his board, and was engaged in outside work requiring his absence from home, it was proper to fix his daily wages with reference to the wages received by others in the same occupation with reference to work at the place of employment and with reference to allowances for board while away from the place of employment. Binkley v. Western Pipe & Steel Co., 1 Cal. I. A. C. Dec. 33. But in determining the average dally wages of a person employed for only a short time before the accident, regard cannot be had to the employe's earnings in other or more skilled occupations prior to his accident. Where such person is employed at the time of the accident as a common laborer, his average daily wage must be determined upon the basis of that paid common laborers in that community, even though the employe was a fireman and had worked at that occupation within the previous few weeks. Ginther v. Knickerbocker Co., 1 Cal. I. A. C. Dec. 458. Where a workman belonging to a labor union having a fixed scale of wages per day was employed by the day at the time of his death, but had worked under prior employments by the job, the case was one in which it was im- practicable to compute the average wages, and where resort could be had to the average amounts earned by a person in the same grade, employed in the I 591 COMPENSATION § 151 wages on the basis of what the injured employe was doing and the pay he was receiving at the time of the accident,*" where a laborer same employment In the same vicinity. (Wk. Oomp. Act, pt. 5, § 2, cl. 4) Gove V. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702. The following definition of "average monthly wages" was adopted by the Nevada Industrial Commission: "Average monthly wages shall mean the earnings of the injured employe during the period of twelve calendar months immediately preceding the date of Injury, divided by 12; but if the injured employe lost more than two weeks' time during such period, then the earnings for the remainder of such twelve calendar months shall be divided by the number of months remaining after the time so lost has been deducted. When, by reason of the shortness of the time during which the employe has been in the employment of his employer, or the nature of the terms of the employ- ment, it is impracticable to compute the average monthly wages, as above defined, regard may be had to the average monthly amount which, during the twelve months previous to the injury, was being earned by a person in the same grade, employed at the same work by the same employer; or, if there is no person so employed, by a person In the same grade, employed in the same class or employment and in the same district. Whenever it may be im- practicable to compute the average monthly wages, as above defined, the com- putation shall be made by the Nevada Industrial Commission in such manner as the Commission may, in its judgment, deem just to all concerned. The earnings or wages of the injured employe, in the employment of the said em- *5 Martin v. Mahoney Bros., 2 Cal. I. A. C. Dec. 436. Where a workman, by occupation a cement finisher, at which trade he receives $5 a day, does such other work as the necessities of his employer require, occasionally that of an ordinary cement worker for a wage of $4 per day, or that of a carpenter's helper for a wage of $2.50 per day, and Is injured while working as a car- penter's helper, the disability compensation must be based on the earnings at the time of the accident as a carpenter's helper. Id. Where a brewery worker was hired as a helper in sinking and digging a well, and paid the regular brewery union rate of $3 per day, his average weekly wage was $18, and not what a laborer doing similar work would regu- larly average in earnings per week. Coyle v. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 704 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). Where a village marshal called upon decedent to assist in controlling an offender, who fataUy wounded deceased, the basis of compensation to be awarded his widow was the earnings of one doing a policeman's services in that or a neighboring locality, and not his average weekly wages in his usual occupation, that of a plumber. Village of West Salem v. Indus. Com., 162 Wis. 57, 155 N. W. 929. § 151 workmen's compensation 592 regularly receives twenty cents an hour wages, but on an extraor- dinary occasion, in which he is injured, is paid one dollar an hour, the extraordinary remuneration should be disregarded in fixing his average earnings.*" Where, in a New York case, it appeared that a motorman on a street car had been shifted to a new run a month » ployer in which he was engaged when injured, are the only earnings or wages that shall be considered in computing average monthly wages. No additional source of income or earning power shall be considered. 'Average monthly earnings' shall have the same meaning as 'average monthly wages.' " Rep. Nev. Indus. Com., 1913-14, p. 21. Where the deceased workman had worked for his employer only a short time, his average annual earnings were computed from the amount paid other employes in the same or similar employment who had worked substantially a whole year. Nycek v. C. Reiss Coal Co., Bui. Wis. Indus. Com. 1912-13, p. 23. Average wages in grade and personal element. "Having found that a man has a particular grade and what are the average wages in that grade, there is no obligation to adopt those average wages as the basis of compensation. The personal element then comes in. It will still be open to consider whether the individual workman is an average man, or below an aiYerage man. This must be so where men in a particular grade are employed in piece work. You cannot reject evidence of the skill and eflBciency of the iridividual work- man; where payment Is at so much an hour for, every man in a particular grade, the skill and efficiency of the individual may perhaps be disregarded, though I am not prepared to say that the age and the habits of the individual may not have such an influence upon his chance of employment as to deserve consideration." Cozens-Hardy, M. R., in Perry v. Wright (1909) 1 B. W. C. C. 354. Where the wages of a casual dock laborer averaged £2 a week for a year, whereas the average wages of the whole class of dock laborers averaged only 25s. a week, the judge should have considered this element in awarding compensation. Instead of merely allowing him half of the class average wage. Snell v. Bristol Corporation (1914) 7 B. W. 0. C. 236, O. A. Where a casual laborer's compensation was based upon his average weekly earnings under the proviso of the schedule, disregarding the fact that when working for other employers he showed himself able to earn more than the average, such personal qualifications must be taken into consideration. Cue v. Port of London Authority (1914) 7 B. W. C. C. 447, C. A. Where a county judge, holding casual and regular shipwrights to be distinct grades, awarded for the death of a casual shipwright the average wages of a good workman of that grade, there being no evidence as to whether the particular workman was above or below the average, his award was without error. Cain v. Leyland & Co., Ltd. (1909) 1 B. W. O. O. 351, 368, G. A. *e Mazzini v. Pacific Coast By., 2 Cal. I. A. C. Dec. 962. 593 COMPENSATION § 1^2 before the accident, at an increase per hour in wages, and there was evidence that it was customary to pay motormen in the service as long as the claimant had been the rate he was getting in the lat- er employment, his wages were to be taken as of the date of the injury, and not those earned during the entire preceding year, part of which were earned on the other run.*^ Under the California Act, the weekly payments of permanent partial disability indemnity in case of a minor are to be assessed at the probable earnings of the minor after reaching the age of twenty-one, in the occupation in which he was employed at the time of 'his injury, in the usual course of promotion, if he had not been injured.*' Where at the time of the death of a minor iron worker he had been promised that, if he showed greater proficiency in operating a riveter, he would in two months receive forty cents an hour, and it is shown that this is five cents an hour greater than the average adult wage for the same kind of work, the average adult wage, must be the basis of com- putation, and not possible earnings for unusual efficiency.*" In New Jersey, compensation for the death of an employe should be calculated on the wages being received by him at the time of his death, and not limited to his average wages."" § 152. Average weekly earnings The "average weekly earnings," sometimes the proper basis of the award," ^ signify the average earnings which the workman would 47 Fredenburg v. Empire United Rys., Inc., 168 App. Div. 61S, 154 N. X. Supp. 351. 48 (Wk. Comp., etc., Act, § 17, [c]) Collins v. York Bradford Co.,. Inc., 2 Cal. I. A. C. Dec. 220. 49 Mashburn v. California-Portland Cement Co., 2 Cal. I. A. C. Dec. 613. BO (P. L. 1911, p. 137, § 2, par. 12) Davidheiser v. Hay Foundry & Iron Works, 87 N. J. Law, 688, 94 Atl. 309, following Huyett y. Pennsylvania B. R. Co., 86 N. J. Law, 683, 92 Atl. 58, stating such to be the law, though injustice 51 (Wk. Gomp. Act, pt. 2, § 11) Linsteadt v. Louis Sands Salt & Lumber Co. (Mich.) 157 N. W. 64. HoN.CoMP.— 38 § 152 workmen's compensation 594 make in a normal week if he were employed on the terms pre vailing before and up to the time of the accident/^ and where he has been regularly employed at the same employment for a longer period than one year, are to be determined by dividing the aggre- gate amount of his earnings for the year preceding his death by fifty-two. ^^ Periods Sf slackness in the trade, which are incidental to the trade, causing a workman's idleness a part of the year, must be taken into account in figuring his average weekly earnings. °* In some states, where he has been continuously employed for a con- siderable period of time, but not for an entire year, his average weekly wage is determined by dividing the aggregate amount of his earnings by the number of weeks he was employed."" result to the employer when the employ^ Is paid by the piece and his earnings are unusually high at the time of injury, and to the employe when his earn- ings are unusually low ; the correcting of the defect being for the Legislature, not for the court. 62 Bailey v. Kenworthy (1909) 1 B. W. C. O. 351, 371, O. A. In Silveria v. Connecticut Quarries Co., 1 Conn. Comp. Dec. 509, where, though the deceased workman had earned an average weekly wage of $12.05 during the 13 weeks preceding the injury, he had been irregularly employed before that, and had not done or tried to obtain work during these periods of idleness, the commissioner held his average weekly earnings should be com- puted by dividing the total amount earned during the twenty-six weeks pre- ceding the injury hy 18, the number of weeks during some part of which he had worked. (Wk. Comp. Act, pt. B, § 13.) In Cheski v. Connecticut Mills Co., 1 Conn. Comp. Dec. 218, where an employe had worked eighteen days out of four weeks, his average weekly wages were computed by dividing the total amount earned by four. Workmen's Compensation Act of New York, § 15, subd. 3, provides that compensation for loss of an eye shall not be less than $5 a week, except that "if the employe's wages at the time of the injury is less than $5 per week he shall receive his full weekly wages." "Weekly wages" in this section does not mean average weekly wages as defined by section 14 to be 1/52 of his average annual earnings, but means the wages actually received, as defined by section 3, subd. 9. Morey v. Worden, 2 N. Y. St. Dep. Rep. 494. 68 Andrewjeski v. Wolverine Coal Co., 182 Mich. 298, 148 N. W. 684; In re Anna King, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 37. See § 151, ante. 54 White V. Wiseman (1912) 5 B. W. C. C. 654, C. A. B 6 In re Elida Baird, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 28. 595 COMPENSATION § 154 The provision of the New Jersey Act with relation to weekly ' wages being taken to be six times the average daily earnings for a working day of ordinary length, excluding overtime, is confined to cases where the rate of -yvages is fixed by the output of the employe, and does not apply where he receives a fixed wage per day.^" It has been held that a letter written by the authorized agent of the em- ployer, stating that the employe's wages were $11.94 a week, to- gether with evidence that he worked seven days a week at $1.75 a day, authorized a finding that his weekly wage was $11.94.°' § 153. Daily wages "Daily earnings," or wages, when made the basis on which to compute the amount of compensation, mean that which would be earned by working for the ordinary number of hours where the employment is by the hour; no deduction being made by reason of enforced idleness during some of these hours, and nothing be- ing added because on some days the employe works overtime."* § 154. Federal Act "The same pay as if he continued to be employed," within the provision of the original federal Act authorizing the award of such pay as compensation, and yet in force as to injuries prior to the Act of 1916, means the same rate being paid at the time of the in- jury.°° It includes allowance for subsistence, or in lieu of subsist- ence, when the same forms a part of the regular remuneration or earnings,®" but not otherwise.*^ It includes the right to any in- 5 6 Conners v. Public Service EHectric Oo. (N. J. Sup. 1916) 97 Atl.\792.* 07 Id. '\ 5 8 (P. L. 1913, p. 313) Smolenski v. Eastern Coal Dock Co., 87 N. J. Law, 26, 93 Atl. 85. See, also, § 151, ante. 5 9 In re Sellos, Op. Sol. Dept. of L. 387. 60 In re Lanzy, Op. Sol. Dept. of h. 373. 61 When lodging and subsistence are not reckoned as a part of the em- ploye's earnings, such employd is not entitled to commutation of subsistence § 154 workmen's compensation 596 crease in the pay attached to th6 injured person's position, made after the injury and during incapacity.'* The question of fact as to what is the "same pay" is ordinarily better determined by the ad- ministrative and accounting ofificers of the establishment in which he is employed than by the Secretary of Commerce and Labor. *^ in fixing the rate of payment during incapacity. In re Hurtt, Op. Sol. Dept. of L. 384. 62 In re Hamilton, Op. Sol. Dept. of L. 379. 8» In re Clark, Op. Sol. Dept. of L. 381. 597 COMPENSATION § 155 ARTICLE II DISABILITY AKD INCAPACITY FOR WORK Section 155. "Disability" and "incapacity for work." 156. Permanent total disability. 157. Permanent partial disability. 158. Temporary total disability. 159. Temporary partial disability. 160. Computation in case of previously Impaired physical condition. 161. Hernia — California. 162. Scheduled injuries. 163. Eye. 164. Arm. 165. Hand, fingers, foot, and ankle. 166. Disfigurement. § 155. "Disability" and "incapacity for work" Compensation is awarded for disability and incapacity for work, whether permanent or temporary, total or partial.** Since "dis- ability" usually means more than mere loss of earning power, the fact that an injured workman is employed at the same work and the same wages after the injury as before will not disentitle him to compensation if his physical efficiency has been substantially im- paired.*" It is essential, however, that there be some impairment of efficiency.*' The occupation to be considered in making a dis- «* Compensation should be provided by the employer or his insurer for all Injuries involving permanent or temporary disability, whether total or par- tial. Wagner v. American Bridge Co. (Sup.) 158 N. Y. Supp. 1048. «6 (P. L. 1911, p. 134, § 2) Burbage v. Lee, 87 N. J. Law, 36, 93 Atl. 859; De Zeng Standard Co. v. Pressey, 86 N. J. Law, 469, 92 Atl. 278; Gailey v. Peet Bros. Mfg. Co., 98 Kan. 53, 157 Pac. 481. 88 This legislation does not cover injuries having no tendency to impair the efficiency of the employe in his occupation, as where an employe's ear was bit- ten by a horse and its amputation became necessary. Shinnick v. Clover Farms Co., 169 App. Div. 236, 154 N. Y. Supp. 423. An employe who has suffered no loss other than two teeth, which have been § 155 workmen's compensation 598 ability rating is usually that at which the employ^ was engaged at the time of the injury.''' Under some Acts, recovery is allowed for total disability because the employe was unfitted by his injury to follow the occupation in which he was engaged when injured, al- though it is shown without dispute that he was capable of earning substantial wages in other occupations.** replaced by the employer, Is not entitled to any compensation. Kandalets v. Swift &i Co., Bulletin No. 1, 111., p. 24. Wbere the employe was incapacitated for work for a time by straining his left shoulder while he was pushing on a piece of joist in order to remove a safe, but there was no restriction in his power to use the injured shoulder or arm, or in its field of motion, at the time of the hearing, the employe was denied compensation. Eobson v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 235 (decision of Com. of Arb.). "The Compensation Act does not attempt to compensate the applicant for the loss of his fingers, nor for his pain and suffering. It merely considers him as a workman, and provides him with competent medical attention, • * * iand compensates him for 65 per cent, of his loss of wage." Janiec v. Mitchell- Lewis Motor Co., Bui. Wis. Indus. Com., 1912-13, p. 80. 87 Felsen v. Atchison, Topeka & S. F. Ey. Co., 3 Cal. I. A. O. Dec. 11. In computing the average annual earnings of a machinist, who, while work- ing as such machinist, has sustained Injury to his hand, resulting in the loss of his ability to play and teach the violin, whereby he had earned considerable In addition to his wages as machinist, such earnings must be disregarded ; the Act not contemplating compensation except upon the basis of earnings in the industry in which injury occurs. Id. The award of compensation must be based on disability and loss of wages as applied to the employment in which the applicant was performing service at the time of his injury. Winters v. Mellen Lumber Co., Bui. Wis. Indus. Com. vol. 1, p. 89. Disability of a common laborer must be considered In regard to his being able to go back to work as a common laborer in the va- rious kinds of work pertaining to that employment Janiec v. Mitchell-Lewis Motor Co., Bui. Wis. Indus. Com. 1912-13, p. 30. The ability of the workman to do the exact work for which he had been employed at the time of the Injury is not the sole measure of disability; the nature of the physical Injury or disfigurement and the workman's age may also be considered. Frankfort General Ins. Co. v. PUlsbury (Cal.) 159 Pac. 150. «8 International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53. Ann, Cas. 1916B, 330. 599 COMPENSATION § 1^5 "Incapacity for work" means loss of earning power as a work- man in consequence of the injury, whether the loss manifest itself in inability to perform such work as may be obtainable, or inabil- ity to secure work to do," or inability to reach his place of work." »8 Gorrell t. Battelle, 93 Kan. 370, 144 Pac. 244. What the Legislatures had in mind was compensation for loss of earning capacity as a workman as a result of injury. Whether this loss manifest itself In inability to perform work which is obtainable or inability to secure work to do is not very mate- rial. While personal Injury must occur, when the word "incapacity" is not expressly qualified by the use of the word "physical" in the statute, depriva- tion of power to earn wages as a workman as a result of injury is incapacity within the meaning of the law. Id. "Incapacity for work" means no more than inability to earn wages, or full wages, as the case may be, at the work in which the injured workman was employed at the time of the accident. Duprey v. Maryland Casualty Co., 219 Mass. 189, 106 N. E. 686 ; Ball v. Wil- liam Hunt & Sons, Ltd., 5 B. W. C. 0. 459; McDonald v. Wilsons & Clyde Coal Co., Ltd., 5 B. W. C. C. 478; Gillen's Case, 215 Mass. 96, 102 N. B. 346, L. K. A. 1916A, 371. Inability to obtain work resulting directly from a per- sonal injury is an Incapacity for work within the meaning of this act, though a like inability resulting from some other cause, such as an altered condition of the labor market, would not be so. The inability to get work is evidence tending to show an Incapacity for work, though it wiU not always be con- clusive. In re SuUlvan, 218 Mass. 141, 105 N. B. 463, L. B. A. 1916A, 378; Radcliffie v. Pacific Steam Navigation Co., [1910] 1 K. B. 685; CardifC v. Hall, 4 B. W. C. C. 159, [1911] 1 K. B. 1009; Brown v. J. J. Thomecroft & Co., Ltd., 5 B. W. O. O. 386; Ball v. WUUam Hunt & Sons, Ltd., supra (overruling 1 K. B. 1048) ; McDonald v. WUsons & Clyde Coal Co., supra. Where the injury necessitated amputation of the employe's arm, he was entitled to compensa- tion for a total incapacity for work during the entire time that he was out of work, though during a portion of that time he was physically able to work, but on account of being a one-armed man was unable to procure work. (St. 1911, c. 751, pt. 2, § 9) In re SuUlvan, supra. Where an injured employe has been unable after repeated efforts to get an opportunity to earn wages, a find- ing that his earning capacity is gone, and that therefore he Is under an "in- capacity for work," is warranted, though he has a physical capacity to work and earn money. Duprey v. Maryland Casualty Co., supra. Where the dis- ability of the employe is of such a character as to interfere with his ability to secure employment, as distinguished from his ability to do work, such dls- 70 Where a workman fractured his ankle, and although otherwise in good health, could not walk to his work, such inability was held to constitute total Incapacity. Beddard v. Stanton Ironworks Co., Ltd, (1913) 6 B. W. C. C. 627, 0. A. § 155 workmen's compensation 600 This expression was taken from the English Workmen's Compen- sation Act of 1906, in which it was provided that the amount of compensation to be paid "where total or partial incapacity for ability Is compensable, and the Commission has decided on a form of condi- tional award to include #nd provide tor such disability. Rally y. Island Transportation Co., 2 Cal. I. A. C. Dee. 608. Where as a result of the Injury the employe's opportunity to obtain work had been so narrowed that he found It impossible to get any employment, and his ability to earn had been thereby rendered negligible, the possibility of his obtaining work being so remote, and the market for workmen of his capacity for performing work so inaccessible, that he was to all intents and purposes, at least for some time, totally incapacitated for work, he was award- ed total incapacity compensation. Gillen v. Ocean Accident & Guarantee Corp., Ltd., 2 Masa. Wk. Comp. Cases, 812 (decision of Indus. Ace. Bd.). The employe lost his arm by accident, and for a period of five months, from May 31 to October 25, did not work. He diligently endeavored to secure employ- ment, but was unable to do so because of the loss of his arm. He obtained a position as watchman on October 26 at an average weekly wage of $15. The evidence showed that on May 31 he was capable of performing the work which he finally procured, or a:ny work which a one-armed man could ordinarily per- form. It was held that the employs was totally incapacitated for work during the perlofi from May 31 to October 25. Sullivan v. American Mutual Liability Insur. Co., 2 Mass. Wk. Comp. Cases, 435 (decision of Com. of Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 218 Mass. 141, 105 N. B. 463, L. K. A. 1916A, 378). The employs, a foreman, had his right hand crushed, the first and second fingers severed, and the hand otherwise so mutilated that it would never be useful. Practically the only work which he could do was that of foreman, the position which he held when he was injured, and which he again expected to obtain when contracting business improved. Because of the mutilation of his hand he could not find employment as a blacksmith, his previous occupation; nor was he able, on account of the Injury, to obtain any other work. He was entitled to compensation on the basis of total in- capacity for work. Brennan v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cas- es, 503 (decision of Com. of Arb.). An employs received a personal injury, necessitating the severance of two fingers of the right hand, and was subse- quently furnished work which he was unable to perform. He was there- upon discharged, and the insurer declined to pay compensation. The em- ploys searched diligently for work, but was unaUe to obtain any which he could do because of the Incapacity due to the injury. He was held entitled to compensation on the basis of total incapacity. KruUa v. Casualty Co. of America, 2 Mass. Wk. Comp. Oases, 409 (decision of Com. of Arb.). Where a workman who had been partially incapacitated was doing light 601 COMPENSATION § 155 work" resulted from the injury should be certain weekly payments. Accordingly decisions of the English courts fixing the meaning there to be given to these words are of great weight.^ ^ The same words were used in an earlier English statute, and it was held by the Court of Appeals that the object of the Act was to give com- pensation for an inability to earn wages, and that if an injured em- ploye, after repeated efforts, could not get an opportunity to earn wages, a finding that his earning power was gone, and that there- fore he was under an "incapacity for work," was warranted, though he had a physical capacity to work and earn money J ^ There is incapacity for work when a man has a physical defect which makes his labor unsalable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labor salable for less than it would otherwise bring. ''^ Incapacity refers to inability to get work in the open market, and not to whether the workman is receiving the same wages as before the accident* The question is: Was the workman left in such a work for Ms employers and receiving part compensation, and, being then dismissed, was unable to find work In the district, the incapacity Included the loss due to the Inability to obtain work. McDonald v. Wilsons & Clyde Coal Co., Ltd. (1912) 5 B. W. C. C. 478, H. L. 71 In re Sullivan, 218 Mass. 141, 105 N. E. 463, L. B. A. 1916A, 378; In re Hunnewell (1915) 220 Mass. 351, 107 N. B. 934. 72 Clark V. Gas Light & Coke Co., 21 L. T. E. 184. T3 Ball V. Hunt & Sons, Ltd. (1912) 5 B. W. O. 0. 462. Where a county court judge granted full compensation for a period during which a collier who had ruptured himself waited for a vacancy at the hos- pital and an operation, refusing, on medical advice, to work during that pe- riod, the judge saying that he had acted reasonably, it was held to be a mis- direction, since the question was not one of reasonableness, but of capacity to work. Evans v. Cory Bros. & Co., Ltd. (1912) 5 B. W. O. C. 272, C. A. T4 The statutory test is earning capacity, and if it should appear upon the facts that the workman's earning capacity is less after than it was before or at the time of the accident, it seems that he might have a claim even if he was in fact receiving the same wages at the two periods. Freeland v. Mac- farlane, Lang & Co. (1900) 2 F. 832, Ot. of Sess. (Act of 1897). A boy workman, who had been injured, was paid more by the same em- § 155 woekmen's compensation 602 position that in the open market his earning capacity might in the future be less than it was before the accident, as a result of the ac- cident?^" Incapacity may be a nervous or mental condition, provided it be such as an average reasonable man would not have overcome.^* ployers for doing nondescrijit work than lie had made before the accident hap- pened, but a suspensory award was nevertheless made. Id. Where a ship's fireman was unable to use a hammer because of the loss of a finger by acci- dent, and was held to be permanently partially incapacitated, and his em- ployers, seven months after rehiring him as a fireman at full wages, applied to terminate compensation, it was held that his incapacity had not ceased, but was permanent. Warwick Steamship Co. v. Callaghan (1912) 5 B. W. 0. C. 283, O. A. Where a workman who had been permanently injured was re- employed by his former employers to do some light work, and was paid more than he had received before, but was prevented by heart disease from con- tinuing this work, he was still incapacitated by his injury. Cory Bros. & Co., Ltd., V. Hughes (1911) 4 B. W. C. 0. 291. In a case where a workman who had been injured was taken back at his old wages by his employers, and they then applied to terminate the weekly compensation, which had been reduced to Id. a week by registered agreenient, it was held that incapacity refers to Inability to get work in the open market, and not to whether he is receiving the same wages as before the accident. Birmingham Cabinet Mfg. Co. V. Dudley (1910) 3 B. W. C. C. 169, C. A. Oozens-Hardy, M. E., said : "The question which the judge put to himself appears to have been : Was this man able to earn the same wages as he did before the accident? I do not think that was the right question. The question should have been: Is he hampered in the labor market by reason of the accident? Is he not less likely to secure employment? If he is, it would not be right to disentitle him from ever saying that his capacity was diminished by reason of the acci- dent." Id. Where an injured employ^ has recovered, so that he is only partially dis- abled physically from doing work, but the remaining disability substantially prevents him from competing in the open labor market, his disability is to be considered as total. Lindh v. Toyland Co., Inc., 2 Cal. I. A. C. Dec. 646. Where an employs is partially able physically to perform remunerative tasks, but because of deformity and inability to satisfy prospective employers, due to his injury, is totally disabled from earning a livelihood, he should be awarded total disability indemnity. CohnhofC v. Thomas & Schneider Art Glass Co., 2 Cal. I. A. O. Dec. 564. 7 6 Birmingham Cabinet Mfg. Co. v. Dudley (1910) 3 B. W. C. O. 169, O. A. ' 7 8 Cozens-Hardy, M. R., has said: "The effects of an accident are at least two fold: They may be merely muscular effects — they almost always must 603 COMPENSATION § 155 That the employe, but for want of sufficient will power, could have thrown off the nervous condition which followed the injury, will not deprive him of the right to compensation for such condition/'' include muscular effects — and there may also be, and very frequently are, ef- fects which you may call mental, or nervous, or hysterical. I cannot, for the moment, think which is the proper word to use in respect to them. The ef- fects of this second class, as a rule, arise as directly from the accident which the workman suffered as the muscular efCects do ; and it seems to me entirely a fallacy to say that a man's right to compensation ceases when the muscular mischief is ended, but the nervous or hysterical effects still remain." Eaves V. Blaenclydach Colliery Co., Ltd. (1910) 2 B. W. C. C. 329, C. A. An injured workman recovered as far as his muscular condition was con- cerned, but still honestly believed he was unable to work; it was held that he was still incapacitated. Id. A workman who sustained a nervous shock while assisting an injured fellow workman, and was unable to work, was held to be incapacitated. Yates v. South Kirby, Featherstone and Hemsworth Collieries, Ltd. (1910) 3 B. W. C, C. 418, C. A. Where, in a case based on an injury to a ship painter's eye, the medical testimony was conflicting, and the medical referee said that if the man was telling the truth it was a case of hysterical blindness, it was held there was evidence to support a finding of total Incapacity. James v. Morley, Carver & Co., Ltd. (1913) 6 B. W. C. C. 680, C. A. Where a workman was in a hospital for a week as a result of a fall, and on being discharged did light work for five weeks, and then had to go to an infirmary for three months, being discharged from there in a ner- vous, hysterical condition, which rendered him incapable of working, it was held there was evidence to support a finding of neurasthenia caused by the accident. Morris v. Turford &- Southward (1913) 6 B. W. C. C. 606, C. A. Where a workman suffering from neurasthenia gave up as soon as his heart failed him, whereas he would probably have recovered if he had kept on work- ing, the incapacity did not result from the accident. Price v. Brunyeat, Brown & Co. (1910) 2 B. W. C. C. 337, G. A. Where an injured workman returned to his work, and eighteen months later quit wopk because of nervousness caused by the accident, but which an average reasonable man could have overcome, it was held that he was not incapacitated. Turner v. Brooks & Doxey, Ltd. (1910) 3 B. W. 0. C. 22, C. A. Where an injured man had recovered his phy- sical condition, and was quite fit for his work, but from brooding over the accident had lost the courage to persevere at his work, and applied for an in- crease of a nominal award, it was held that his incapacity had ceased. Holt V. Yates & Thorn (1910) 3 B. W. O. C. 75, C. A. 77 In re Hunnewell, 220 Mass. 351, lOT N. E. 934. A hod carrier was carrying a hod of bricks on his shoulder when the ele- vator upon which he was standing suddenly fell a distance of five stories; § 155 woekmbn's compensation 604 Mere inability to obtain work does not conclusively show in- capacity.''* The applicant must establish the fact of disability, and show that his inability to earn as much as he was earning at the time of the injury was the result of the injury, and not because work is scarce and hard to find. Compensation is payable for inability to do work, not for inability to find work to do.'" Discharge for lack of work does not constitute disability.*" Whether the discharge of an injured workman, who has been re- employed, has any bearing on the right to compensation, depends on whether the discharge was due to a condition resulting from the he being very much bruised on his chest, back, and side, and suffering from a nervous shock and disturbance in consequence. The question of malingering was raised by the insurer, and an impartial physician was called upon to examine the employfi and report. He reported : "That he took, and until to- day, has taken, his pains too seriously, is beyond question; but such a mis- interpretation is a very natural consequence of his unpleasant experience, and so, I think, he is not malingering." The employ^ was held entitled to compensation. Diaz v. Contractors' Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 150 (decision of Com. of Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct, 217 Mass. 36, 104 N. B. 384). See § 95, ante. 7 8 An employs fell on the stairs of the factory in which he was employed, striking on his back and being incapacitated for twenty-one days. About four months after the injury the factory shut down and the employ^ was unable to obtain any employmtent from the date of the shut-down, April 8, to June 18, when he secured a position at which he earned a higher wage than at the time of the injury. He claimed compensation for the period during which he was unable to find employment. He had suffered prior to the injury from the after effects of a disease of childhood, and an impartial physician reported that he had wholly recovered from the effects of the injury. Not having any physical incapacity due to the injury, he was not entitled to com- pensation because of inability to obtain work. Tremblay v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 156 (decision of Com. of Arb.). Where an injured workman, who had been receiving part wages and part compensation, was discharged, the mere fact that he could not obtain employ- ment elsewhere did not show incapacity which entitled him to more compen- sation. Dobby V. WUson, Pease & Co. (1910) 2 B. W. C. C. 370, C. A, 7 9 Winn V. Small, 1 Cal. I. A. C. Dec. 5. 80 Lough V. Standard Oil Co., 1 Oal. I. A. C. Dec. 41. 605 COMPENSATION § 155 injury, or to some other cause, such as misconduct of the work- man.*^ While no burden rests on the employer, such as relieves the employe from seeking suitable employment, to obtain employ- ment for him,*' yet where the injury is of a nature tending to af- fect the ability to obtain work, an employer seeking to reduce compensation, or be relieved therefrom, must prove that suitable employment can be obtained.*^ On this subject Commissioner SI A carpenter had the thumb, forefinger, and little finger of his left hand cut off by a circular saw which he was operating. He obtained work at differ- ent times after the injury, but was discharged as soon as his employers no- ticed his hand and found that he was unable to perform the work given him. He was entitled to compensation on account of total incapacity for work. McDonald v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 224 (decision of Com. of Arb.). Where a waitress suffered an injury to the index finger of her right hand, which left It stiff, and on returning to her employment was grumbled at be- cause the stiff finger made her clumsy, and left, there was compensable in- capacity resulting from the injury. Ward v. Miles (1911) 4 B. W. C. C. 182, C. A. But where a workman, after a permanent injury, was taken back by his employers at higher wages than before, and then later dismissed for mis- conduct, there was no incapacity resulting from the injury. HUl v. Ocean Coal Co., Ltd. (1910) 3 B. W. C. C. 29, C. A. Where a workman, after the loss of one eye, was re-employed at his former wages, and was later discharg- ed for alleged misconduct, but there was really incapacity resulting from the accident, compensation must be awarded. White & Sons v. Harris (1911) 4 B. W. C. C. 39, C. A. 82 Where a trial judge found that a workman who had lost his right arm was physically able to do light work, and from his own knowledge of labor conditions in the district knew that the workman could get such work if he tried, the amount of compensation was rightly reduced. Silcock & Sons v. Golightly; (1915) 8 B. W. C. C. 48, C. A. Where a miner so far recovered from nystagmus that he was able to do light work, but would make no effort to get it, his compensation was reduced. Williams v. Ruabon Coal & Coke Co., Ltd. (1914) 7 B. W. C. C. 202, C. A. Cozens-Hardy, M. R., said: "The man says, in effect, 'It is for you, the employers, to find me light work.' I re- pudiate that way of putting it entirely ; there is no principle of law to sup- port it." Id. 83 The court refused to terminate compensation, because the employer's burden in this respect was not discharged, where a boy working as a cabinet maker's apprentice, after having his hand mutilated, found work as an er- § 155 workmen's compensation 606 Chandler, of Connecticut, said: "Employers generally recognize the moral obligation to find employment for employes more or" less debilitated from injury, at the earliest possible moment, usually permitting them to resume work for the first few days under fav- orable conditions. This practice should be encouraged, and fail- ure to observe it withoSt good cause should be given such adverse consideration as the other evidence and the circumstances of the case justify." ^* Where pending litigation a workman's employers offer him work, which, however, is not for any certain period and not permanent, such an offer has little significance in determining rand boy at higher wages than he had received before, .but was soon dis- charged for misconduct, and his former employer did not show that work was procurable (Wilson v. Jactson's Stores, Ltd. [1905] 7 W. C. C. 122, C. A.); where, although a mason's . laborer, who had one eye injured, could do work which did not require two eyes for safety, but was nevertheless unfitted for his former occupation, and there was no evidence that such work could be obtained (Bryce & Oo. v. Connor [1905] 7 F. 193, Ot. of Sess. [Act of 1897]) ; where the employers showed that the workman was physically able to do light work, but not that he could obtain any (Proctor & Sons v. Robinson [1910] 3 B. W. C. 0. 41, C. A.) ; where a coal porter in a gasworks was per- manently incapacitated by an accident which took off four fingers, and failed in his efforts to get other work (Clark v. Gaslight & Coke Co. [1905] 7 W. C. C. 119, O. A.) ; and where a ship painter's eye, which had been injured, re- tained only 15 per cent, of normal vision, and his other eye was poor, so that he was incapacitated for scaffold work, and his employers did not prove that he was able to obtain work (James v. Mordey, Carner & Co., Ltd. [1913] 6 B. W. C. C. 680, C. A.). But it has been held that where a workman's employers, on application for review, showed that the man was fit to do any kind of light work, their burden was discharged, although there was evidence that he had failed in several efforts to obtain employment. Cardiff Corporation v. Hall (1911) 4 B. W. C. C. 159, C. A. And where an injured workman was re-employed by his former employers, but was idle for four days during a labor strike, which made it impossible for his employers to find work for all their regular staff, and claimed compensation for the four days on the ground that his injury pre- vented him from getting work elsewhere, but the trial judge found no such incapacity, his claim was refused. Woodhouse v. Midland Ey. Co. (1914) 7 B. W. C. C. 690, C. A. 8* Naruk v. Main, 1 Conn. Comp. Dec. 48. 607 COMPENSATION § 155 his probable future earnings.*" Where it appears that the employe was totally incapacitated, the award cannot be reduced because he has not attempted to obtain employment.'* But he cannot, by act- ing on unwise advice and refusing work suitable to his condition, improve his right to compensation.'^ Inability resulting from idle- ness is not compensable incapacity, though the idleness originated in an injury,*' unless the continued idleness is due to inability, as a consequence of the injury, to obtain work.'* The fact that an SB Giachas v. Cable Co., 190 lU. App. 285. 86 (Laws 1911, c. 751) In re Septimo, 219 Mass. 430, 107 N. E. 63. 8' Where a workman unreasonably refused light work on account of un- wise medical advice and the domination of his wife, there was no incapacity resulting from the injury, and the judge on review terminated the payments. Higgs & Hill, Ltd., v. Unicume (1903) 6 B. W. C. C. 205, C. A. Where a ship's 'fireman refused a light job offered him a year after an injury to his hand, without even going to see what it was, and where he would have recovered by the date of the arbitration if he had accepted, it was held there was no Incapacity resulting from the Injury. Furness, Withy & Co. v. Bennett (1910) 3 B. W. C. C. 195, O. A. But where an employe with a slight injury to one hand was offered light work, which he refused to do, but it did not clearly appear that it had be^n determined by his physician that he was able to do light work yet, or that he understood he was to go to work until his physician had so advised, the of- fer of work was indefinite and misunderstood by the employs and did not de- prive him of compensation for the disability. McKnight v. American Can Co., 2 Cal. I. A. C. Dec. 427. 88 Where, upon the stopping in 1910 of the payments to a workman injured in 1907, he took proceedings, and it was found that long idleness was the cause of his inability, it was held the incapacity did not result from the injury. David V. Windsor Steam Coal Co. (1911) 4 B. W. O. O. 177, O. A. Where it was found, on an application to review compensation, that the workman's inability was due to lack of condition, caused by a long period of idleness, it was held that incapacity was not resulting from the injury, and compensa- tion was reduced to Id. a week. Upper Forest & Worcester Steel & Tinplate Co., Ltd., V. Grey (1910) 3 B. W. C. C. 424, C. A. 89 Where an injured collier would probably have recovered if he could have done light work, but his efforts to obtain it met with no success, there was Incapacity resulting from accident. Bonsall v. Midland Colliery Owners' Mut. Indemnity Co., Ltd. (1914) 7 B. W. 0. C. 613, 0. A. § 155 workmen's compensation 608 employe was placed in jail after the injury does not bar recovery of compensation, if he was incapacitated from performing his reg- ular duties by reason of the accident during that time.*" That the employe is a man of failing physical powers, and proba- bly will be incapacitated for work in a few years, as a result of such physical weakness, independently of his injury, does not bar him from compensation for total disability if his incapacity to work is the result of his injuries. °^ But the California Commission has held that where an aged employe is injured by a fall, sustaining the frac- ture of several ribs, as well as bruises and' contusions, and after the physical injuries caused by the fall have healed it is found that he is unable to recover the strength to resume work because of his advanced age, compensation should be paid only for the period for which he was disabled by the fractures and bruises. The industry is not responsible for the breakdown of his physical condition, caused by increasing age, though such disability is brought on at this time by the accident, instead of later.*^ The question of in- capacity *' and duration thereof are questions of fact to be deter- so Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 40; McNally v. Fur- ness, Withy & Co., Ltd. (1913) 6 B. W. C. C. 664, C. A. An employe who received a serious injury to his foot was afterward sent to the State Farm because of intoxication. The evidence showing that he was totally incapacitated by reason of the injury during the time of his sentence at the State Farm, he was allowed compensation. Hanlon v. Employers' Liab. Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 716 (decision of Com. of Arb.). 81 Duprey v. Maryland Casualty Co., 219 Mass. 189, 106 N. E. 686; Lee v. WUliam Baird & Co., Ltd., 1 B. W. C. C. 34. 82 Udell V. Wagner, Peterson & Wilson, 2 Cal. I. A. C. Dec. 113. 93 Where a workman suffered the loss of an eye, and received compensation for some time from his employers, and then, believing that he could do cer- tain work they offered, accepted a nominal award, and on finding that he could not do the work was restored by a finding of the county court judge to full compensation, the question of incapacity was one of fact for the judge to decide. Thayne v. Gray & Co., Ltd. (1915) 8 B. W. C. O. 17, C. A. Where a workman who had lost the top joint of his thumb worked at light work for six months, and on being asked to resume his old job refused, on the ground that he was unable to grip ropes such as would be necessary, and was award- 609 COMPENSATION § 155 mined as are other questions of fact.®* Compensation will seldom be awarded on the unsupported testimony of the workman as to the time when the disability terminates. The duration of the dis- ability will instead be determined in California by reference to the testimony of the applicant, the information given by the attending physician as to the probable course of the injury after the injured man left his care, and by the advice of the medical director of the Industrial Accident Commission."^ Where it appears that the dis- ability is proximately caused by accident, that it exists at the time of the hearing, and that the only issue is as to the cause of the con- tinued disability, conflicting or undecisive medical evidence will be resolved in favor of the injured employe."® The Washington Commission has' held that, where a claimant is unable to furnish proof of the magnitude of the injury sustained by the detailed report of a competent attending physican, who made examination of the resulting physical condition within a rea- sonable time after the accident, it will not open the door to fraud by making an award, unless the injury is of such continuing and serious character that a state surgical examiner has been able to make a full and satisfactory special report thereon,"^ and that the duration of disability, if temporary, or the character, if permanent, except in rare cases, must be proven by report of a licensed physi- cian or surgeon."^ To establish a valid claim under the Washing- ed compensation for partial incapacity by the county court judge, the question of Incapacity was one of fact for him to decide. Curry v. Dosford & Sons, Ltd. (1915) 8 B. W. C. C. 19, C. A. Where, on an application for review by the employers, the judge said he could not decide the question of Incapacity because the medical evidence was conflicting, the case was returned with instructions that he must decide. Cowan v. Simpson (1910) 3 B. W. C. C. 4, C. A. 94 Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244. 95 Gregory v. Merrill Metallurgical Co., 1 Cal. I. A. C. Dec. 408. 96 Spencer v. Gibson, 1 Cal. I. A. C. Dec. 565. 97 (Wk. Comp. Act Wash. § 12) Rulings Wash. Indus. Ins. Com. 1915, p. 21. 9 8 Id. p. 20. HoN.CoMP.— 39 § 155 workmen's compensation 610 ton Act, the injured workman need not be so helpless as to re- quire the assistance of a nurse, but there must be professional cer- tification of his being entirely incapable of doing any gainful work for a period of time resulting in a loss of not less than 5 per cent, of his monthly wage.°° The existence and aontinuation of incapacity on the one hand, and of malingering or termination of incapacity on the other, are questions of fact to be determined from the evidence; compensa- tion being awarded, denied or limited in accordance with such de- termination.^ The signing of a final release while evidence of the >»o (Wk. Comp. Act Wash. § 5) Id. p. 16. 1 In Intorigne v. Smith & Cooley, 1 Conn. Comp. Dec. 228, where It ap- peared that the disability was due largely to imagination and slight neurotic condition, which would be best cured by the claimant's early return to work, he having already received compensation for twenty-six weeks, an award of six weeks additional was made to allow the claimant sufficient time to re- sume his normal mental condition and end the disability. In Dominick v. Brainerd, Shaler & Hall Quarry Co., 1 Conn. Comp. Dec. 655, wherein the evidence tended strongly to show malingering, the commissioner, in consid- eration of all the facts shown, awarded compensation of $5 a week for four weeks, and incidental expenses of $3, "in order to administer a soothing balm to the injured's mental condition, and to allow a sufficient lapse of time to effect a recovery by proper muscular activity of the injured arm." In Hurlowski v. American Brass Co., 1 Conn. Comp. Dec. 6, where the claim- ant's vision was still impaired as a result of the injury, and was apt to be made worse by fatigue, and he also suffered headache and dizziness when he tried to work, it was held that he was still incapacitated. In Wallace v. Tracy Bros. Co., 1 Conn. Comp. Dec. 156, where a workman was taken back by his employers and given light work, but was later discharged because they had no more of that kind of work, while another man was kept on at his old work and he was given no chance to try it, and was "unable to find other work that he could do, he was entitled to compensation for incapacity due to the injury. In Giovanellie v. 0. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 164, where it appeared that the claimant had been discharged from the hospital and his card marked "cured," and was seen walking a half mile to the doctor's ofBce and at play throwing balls weighing about two pounds, and had ceased to receive medical attention, while the evidence he produced of incapacity was of doubtful character, it was held his incapacity had ended. In Fasulo (alias Fise) v. Andrew B. Hendryx Co., 1 Conn. Comp. Dec. 29 (affirmed by superior court), where it was shown on medical examination that the claimant's injured finger had healed sufficiently to enable him to 611 COMPENSATION § 156 employe's opinion that he was able to work is not necessarily con- clusive that he is in fact able to do so, since his opinion may be erroneous. Self-diagnosis is not of itself evidence of ability to work.^ That a workman thought his disability had ceased and set out on his vacation, does not affect compensation, so long as his disability actually continues.* § 156. Permanent total disability There are four classes of disability : Permanent total, temporary- total, permanent partial, and temporary partial. Permanent total disability usually entitles the employe to periodical payments, based upon his wages, to last a maximum number of periods, and a pen- sion after that for the rest of his life.* Whether a disability con- stitutes a permanent total disability is a question of fact, to be de- termined from the facts of each particular case," but is not neces- work without harm other than inconvenience, it was held that Incapacity had ceased. In Killoy v. Evans, 1 Conn. Comp. Dec. 277, where it appeared that, though plaintiff slipped and fell on the ice while discharging her duties and sustained an abrasion of her face and head, she was at no time incapaci- tated from work and had received full wages during the entire time since the accident, her claim was dismissed. In Puridzy v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 420, where owing to the fact that claimant's left eye was never as good as his right, that he was unused to using it sole- ly, and to a slight sympathetic irritation, due to the injury to the right eye, causing total loss of sight, he suffered considerable in his left eye, but there was no injury to the left eye, and no incapacity in that eye connected with the Injury, compensation was allowed only for the total loss of sight of the right eye. 2 Naruk v. Main, 1 Conn. Comp. Dec. 48. 3 Compensation will be awarded for the full term of disability caused by a compensable injury, although during such period of disability the injured employs, mistakenly deeming his wound had practically healed, left on his vacation without pay. Bickelnitzky v. Acme Brewing Co., 3 Cal. I. A. O. Dec. 5. 4 Wk. Comp. Act Cal. § 15 (2) (5). B state ex rel. Casualty Co. of America v. District Court (Minn.) 168 N. W. 700. Paralysis of the body, from the waist down, and of both legs, which is per- manent, constitutes a total disability of 100 per cent. Phillips v. Chanslor- § 156 workmen's compensation 612 sarily a jury question." The loss of sight of both eyes constitutes permanent total disability.'' The determination of the extent of Canfleld Midway Oil Co., 1 Cal. I. A. O. Dec. 580. Where a workman, as a result of coming in contact with a high-power electric current, sustained a permanent complete disablement of the right arm, shoulder, and hand, spi- nal deformity, and complete- loss of motion of spine, shoulders, and neck, lim- ited motion of the right leg, and distortion and lameness in both feet, ne has suffered a 100 per cent, permanent disability, which entitles him to an award of 65 . per cent, of his average earnings for 240 weeks, and a pen- sion of 40 per cent, of his average earnings thereafter for life. Gibney v. Caspar Lumber Co., 2 Cal. I. A. C. Dec. 825. In Haughland v. Howe, 1 Conn. Comp. Dec. 401, where the claimant, though having no useful vision, as far as ability to earn was concerned, in the injured eye, was able to count figures at a distance of two feet, it was held he could not recover specific indemnity under the schedule for "com- plete and permanent loss of sight," though he was awarded for partial in- capacity, and provision made for reopening the finding in case of further diminution of sight. Where the weight of the evidence, medical and otherwise, showed that the employ^ was totally incapacitated for work by the results of the injury, due to the amputation of his arm, and that another surgical operation was need- ed to relieve a condition of sensitiveness following the operation, it was held that he was totally incapacitated for work. Clementi v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 330 (decision of Com. of Arb.). Where claimant lost by the accident the entire sight of his right eye and 95 per cent, of his left, and sustained injuries to his head which made it im- possible for him to stoop or bend over without pain, and there was testimony that he was unable to engage in any occupation, the evidence of injury was sufllcient to support a finding of permanent total disability. State ex rel. Casualty Co. of America v. District Court, supra. Where the arm of a domestic servant was stiffened by the injury, so that it would not flex more than 20 per cent., was also atrophied and stiffened at the shoulder so that she could not raise her arm above her head, and the nerves to the extensor muscles of her wrist were severed, so that though able to do some work as a domestic, she required assistance in nearly every line of the work, and could not have secured employment as a regular do- mestic because of her condition, she was totally incapacitated. McGill v. Dunn County, Bui. Wis. Indus. Com., 1912-18, p. 33. 6 Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5. 1 Kraljlvich v. Yellow Aster Mining & Milling Co., 1 Cal. I. A. C. Dec. 554. The employe having suffered loss of both eyes, a permanent total disabil- ity is conclusively presumed, and he is entitled to a 100 per cent, rating, or 613 COMPENSATION § 157 the compensable disability in case of a previously impaired physical condition is reserved for consideration in another section.* § 157. Permanent partial disability A workman is partially disabled where he is rendered less able to perform work.® The per cent, of total disability that the injury in each case constitutes depends on the particular facts.^" The combined result of two accidents in the same employment may en- title the workman to compensation for a permanent partial disabil- ity, though, if each accident were considered separately, such com- pensation would not be due.^^ Whether there is a permanent par- indemnity of 65 per cent, of his average weekly earnings for 240 weeks, and thereafter 40 per cent, thereof for the remainder of life. Sampo v. Yellow Aster Mining & Milling Co., 2 Cal. I. A. C. Dec. 539 ; Galante v. Mammoth Copper Mining Co. of Maine, 2 Cal. I. A. C. Dec. 732. 8 See § 160, post. 9 Where an employ^, in consequence of an injury to his fingers, could not tightly close them in his hand, and was thereby rendered less able to perform his work, he was partially incapacitated from performing labor. Galley v. Peet Bros. Mfg. Co., 98 Kan. 53, 157 Pac. 431. 10 Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5. Where an electric power station operator, by accidental contact with two blades of a switch he was polishing, had his arm burned off four Inches below the elbow, and his right hand so badly burned that it was impossible for him to pick up articles, and his mouth and jaw so burned as to prevent distinct speech, the Commission found his disability sufficient to entitle him to an award of a life pension of 34% per cent, of his average weekly earn- ings, following the usual indemnity of 65 per cent, of his weekly wages for 240 weeks. Brooks v. Central California Traction Co., 2 Cal. I. A. C. Dec. 420. That an injury causing the amputation of the index finger of a carpenter and cabinet maker between the knuckle and proximal joint occasioned a per- manent partial disability of 20'!4 per cent., although he was able to do the same work as Before the injury, was a, finding of fact supported by the evi- dence. Frankfort General Ins. Co. v. Pillsbury (Cal.) 159 Pac. 150. 11 Where an employe lost the first joint of one finger of his left hand by accident, and two months later lost the joint of another finger of the same hand by another accident in the same employment, and no permanent par- § 157 workmen's compensation 614 tial disability, where the disability would ordinarily be only par- tial, but is made total by a previously existing impairment, is con- sidered in another section.^^ Permanent disability ratings are made under the California Act with reference to the nature and extent of the injury, the age of the injured person, and»his occupation. Thus the fact that the loss of a part of a finger on the left hand is more disabling to a car- penter than to a common laborer will be considered.^' After a per- manent disability rating has been properly arrived at, it is not a defense that the employe returned to work before the termination of the period covered by the payments, or that the disability did not disqualify him for the kind of work which he was doing at the time of his injury.^* Inability of an injured employe, who is only tial disability compensation would be due if each accident were treated sep- arately, but the combined result of the two accidents entitled the applicant to permanent partial disability indemnity of 5% per cent., it was awarded. Where both accidents occur in the same employment within a short space of time, and no compensation has been paid for the first, the percentage of permanent disability should be based upon the combined results of the two, as accords nearest to the actual injury or deprivation of earning power sus- tained. Berry v. Pacific Coast Steel Co., 2 Oal. I. A. O. Dec. 178. 12 See § 160, post. 13 Johnson v. Hammond Lumber Co., 1 Cal. I. A. O. Dec. 574. The rating schedule for permanent partial disability is made, not solely with regard to the direct loss of earning power by reason of the injury, but with regard al- so to the impairment of physical efficiency for the remainder of the life of the injured employ^. Immel v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 385. But where the circumstances of a special case indicate that the rating ap- pearing in the schedule published by the Commission, as to a certain kind of permanent disability, is too low, or where the testimony shows that the framers of such schedule made an underestimate as regards a certain class of permanent disability, the Commission will not be bound by the schedule, but will rate such disability upon the basis indicated by the evidence to be proper. Lee v. Pacific Coast Steel Co., 3 Cal. I. A. C. Dec. 28. 1* Gabriel v. Northwestern Pacific R. R. Co., 2 Cal. I. A. O. Dee. 129. Where a carpenter accidentally has the index finger of his left hand severed, but within twenty days returns to his work at the same wage, and the par- 615 COMPENSATION § 157 partially disabled, to find employment by reason of hard times or of the scarcity of employment, cannot be taken into consideration in determining the extent of a disability indemnity to be awarded him. The California Commission is authorized to take into con- sideration, irr determining the extent of temporary partial disabil- ity only: (1) The work which such employe with reasonable dili- gence is capable of doing in view of the nature of his physical in- juries; and (2) the handicap of an injured or sick employe over able-bodied persons seeking employment.^^ This Commission has power to award compensation for a permanent partial disability amounting to less than 10 per cent, of total disability.^' No per- manent partial disability award is given for an injury resulting in the loss of the little finger at the distal joint and the tip of the third finger between the end and the distal joint, both on the right hand, for the reason that the disability caused thereby is of too slight a nature to be compensated in this manner. Full temporary total and partial disability award will be made for such injury, however.^^ Where an applicant sustains a fractured leg, thereby entitling him to a temporary total disability until his recovery, and also sustains a permanent disability to his toes, but the amount to which he is entitled because of his permanent disability is less than the amount paid him as a temporary disability indemnity, he is not entitled to any compensation for his permanent injury.^' ties stipulate that he is able to do as good work and as much of It as he had done previously, his permanent disability will nevertheless be rated with reference to the nature of his physical Injury or disfigurement, the occupa- tion of the injured employ^, and his age, especially where the stipulation is shown to have been entered into by inadvertence and to be untrue in fact. Tmmel v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 385. 15 Johnson v. Cluett Peabody Co., 2 Cal. I. A. O. Dec. 7. , 18 SoUoway v. Kopperud, 2 Cal. I. A. O. Dec. 18J. The Commission has power to award compensation for a less per cent, of total disability than 10 per cent., here 2%. Mass. Bonding & Ins. Co. v. Pillsbury, 2 Cal. I. A. C. Dec. 480, 170 Cal. 767, 151 Pac. 419. 17 Shushke v. Vail & Vickers, 2 Cal. I. A. C. Dec. 182. 18 Mason v. Knight, 1 Cal. I. A. C. Dec. 493. § 157 workmen's compensation 616 The provision of the New York Act that, in case of partial dis- abihty not otherwise specifically provided for in section IS, the compensation shall be 66% per cent, of the difference between the average weekly wages of the injured employe and his wage-earn- ing capacity after the accident, this compensation to continue dur- ing the disability, subject to certain conditions and limitations, ap- plies to a case of the loss of the tip of the first phalange of a finger, where the wages received after the accident are less than those re- ceived prior thereto.^* The amount to be awarded for permanent partial disability under the Washington Act is in the discretion of the Industrial Insurance Department.^* § 158. Temporary total disability The facts of each case of temporary disability must determine whether or not it is total.^^ Total temporary disability no longer 18 (Wk. Comp. Act, § 15, subds. 3, 4) Mockler v. Hawkes (Sup.) 158 N. Y. Supp. 759. 20 Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5. 21 As to relation between total disability and inability, because of the in- jury, to obtain work, see § 155, ante. Where the evidence shows that an injured employs is able to work a few days at a time, but that whenever he does attempt to work a relapse is inev- itable after a few days, such employ^ is still under a total temporary dis- ability. Colot V. Union Lumber Co., 1 Cal. I. A. C. Dec. 512. In Verderame v. Blenner, 1 Conn. Comp. Dec. 325, where claimant sustained an injury consisting of the severance of the artery, nerves, and tendons up- on the anterior surf ace of her left wrist, she was awarded compensation for total temporary incapacity. Where on supplemental hearing it was shown that she had little use of her left hand, the fingers contracting upon the palm, and she being unable to dress herself or do any amount of work, it was held there was stUl total uicapacity resulting ,from the injury. The employe was totally incapacitated for work where a girl, 15 years of age, suffered an injury as a result of which the ring finger was wholly am- putated and the index fingers were rendered permanently Incapable of use below the middle joint, and the little finger also Injured (Cunka v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 491 [decision of Com. of Arb.]) ; where an employe received a blow in the right eye from a belt which carried power to a boring machine on which he was employed, and a trau- 617 COMPENSATION § 158 exists when by reasonable diligence an employe can earn. When this ability has returned to him to a definite extent, he is then only entitled to compensation for temporary partial disability.^ ^ Evi- dence that the injured employe was employed by his former em- matic cataract developed, which sympathetically affected the left eye and caused incapacity for work (Stachuse v. Fidelity & Casualty Co. of N. Y., 2 Mass. Wk. Comp. Cases, 324 [decision of Indus. Ace. Bd.]) ; where a car- penter, blind in one eye and partially deaf at the time of the injury, was in- capacitated for work except "bench work," though he claimed later to be totally incapacitated from performing any work, and was shown upon ex- amination by an impartial examiner to be unable to perform any work ex- cept that which could be done while seated (Duprey v. Md. Casualty Co., 2 Mass. Wk. Comp. Cases, 132 [affirmed by Sup. Jud. Ct., 219 Mass. 189, 106 N. E. 686]) ; where the employ^ suffered a fracture of the bones in his left hand and of his right arm, above the elbow, the latter so serious that the broken bone never united, leaving the left hand considerably stiff and cramp- ed, and the right arm incapable of use, and endeavored to obtain work at various places of employment without success, being in fact unable to earn any wages (Jamieson v. Fidelity & Deposit Co. of Md., 2 Mass. Wk. Comp. Cases, 772 [decision of Com. of Arb.]) ; where an impartial physician reported that the employ^ was still unable to do the work of a grocery clerk, his reg- ular occupation, and recommended that the treatment suggested by the em- ploye's physician be afforded him (Portnoy v. Fidelity & Casualty Co. of N. T., 2 Mass. Wk. Comp. Cases, 823 [decision of Indus. Ace. Bd.]) ; and where a carpenter had the tip of the thumb of his right hand taken off by a planer knife, and later obtained employment wheeling coal, but, finding he was un- able to continue at this work because of further trouble with the injured thumb, asked for lighter work, was discharged, and was unable to obtain oth- er work (Noval v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 586 [decision of Com. of Arb., affirmed by Indus. Ace. Bd.]). Where the evidence showed that the employ^ received a peculiar and serious injury, which in fact incapacitated him wholly for work, and there was need of fur- ther expert medical treatment in order to more promptly restore the employs to normal working efficiency, the employe was totally incapacitated for work. Dibilio V. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 485 (de- cision of Com. of Arb.). 22 Larnhart v. Eice-Landswick Co., 1 Cal. I. A. C. Dec. 557. Where a concrete worker, who sustained an Injury while working for the same employer as a common laborer digging trenches, recovered sufficiently to assume the duties of a common laborer, but was not strong enough to per- form the rpore arduous duties of a concrete worker, the compensable tempo- rary disability had terminated. Utieres v. Otto, 2 Cal. I. A. C. Dec. 652. § 158 workmen's compensation 618 ployer and paid wages', after the accident, though some evidence that he was not wholly incapacitated, is not conclusive.^* Under the California Act, where the permanent disability rating was for a period of sixteen weeks for the crippling of the em- ploye's left hand, but the actual total incapacity resulting from the injury lasted for five months longer, compensation is payable for the actual total disability ; the permanent partial rating being in- cluHed therein.^* Where the employer paid, full wages during the disability, and there is no evidence showing an agreement of the parties as to what portions were respectively for services and com- pensation, it will be conclusively presumed that the disability was total.^" § 159. Temporary partial disability Like other phases of disability, the existence of temporary par- tial disability is to be determined from the facts of each particular case.^* Under the Massachusetts Act, an award of compensation 25 In re Septimo, 219 Mass. 430, 107 N. E. 63. 2* Maher v. Sxmset I/umber Co., 2 Cal. I. A. O. Dec. 602. 26 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991. 2 6 Where a carpenter's foreman is still able to supervise the work lie is employed upon, but is unable as the result of the accident to use tools and work with those under him, he is under a partial disability. It is not gener- ally or customarily true that a carpfenter's foreman is not expected to use tools and only to superintend the work of carpenters imder him. While this would be true of a superintendent of construction on a large building, it is not generally true of the foreman of a gang of carpenters. Gordon v. Brans, 1 Cal. I. A. C. Dec. 94. A fracture of the main bone of the forearm, be- cause of the pain, if for no other reason, constitutes disabUity for a reasonable period, whatever the occupation of the injured person, and therefore entitles him to disability compensation. Shouler v. Greenberg, 1 Cal. I. A. C. Dec. 146. The statement of the doctor that applicant cannot do ordinary labor, together with his own testimony to the same effect, practically uncontrovert- ed, is sufficient to warrant a conclusion that the applicant was at least par- tially Incapacitated from earning a living. Acrey v. City of HoltvUle, 2 Cal. r. A. C. Dec. 587. » In Peters v. Indianapolis Abattoir Co., 1 Conn. Corap. Dee. 263, where the 619 COMPENSATION § 160 for total disability to terminate at a certain date did not preclude the employe from securing payment for partial disability, where it appeared that it was intended that the question of payment for par- tial disability should be left open for future determination."' § 160. Computation in case of previously impaired physical con- dition In some states, where an injury to an employe results in total disability because his physical condition was previously impaired, claimant had recovered from his injuries, all but a tenderness on the left side and atrophy of the muscles, but suffered from backache resulting from over- use and strain upon the muscles of the back, consequent upon his injury, he was awarded compensation for partial incapacity. In Jacobs v. American Steel & Wire Co., 1 Conn. Comp. Dec. 100, where the claimant, after several weeks of total Incapacity from being struck in the eye with a wire, returned to work, but was unable to work full time because he was still undergoing medical treatment, which caused continual pain and annoyance, he was awarded one-half the difference between his wages before and after the In- jury, on the basis of partial incapacity. In Cottun v. I. Newman & Sons, 1 Cojon. Comp. Dec. 289, the commissioner found, on medical evidence conflict- ing as to whether there was mere flabbiness of the injured muscle at the time of hearing, or an injury to the structure, that there was partial disability, but refused to find that condition permanent, and recommended that the employer offer work under favorable conditions, so as to ascertain definitely the ex- tent and probable duration of such incapacity, the award for five weeks ad- ditional to be modified if it later appeared necessary. The employe, who bad previously been awarded indemnity for total inca- pacity, had obtained a position at which he was able to earn an average week- ly wage of $1.50. He had made several efforts to obtain other employment, but without success. The medical testimony showed that his partial inca- pacity for work was due to a condition of hysterical blindness and neurosis, having a casual relation with the personal injury received. His average weekly wages at the time of the injury were $30. It was held that the em- ploye is entitled to compensation on account of partial Incapacity. Hunne- weU V. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 827 (decision of Indus. Ace. Bd., affirmed by Sup. Jud. Ct, 220 Mass. 351, 107 N. E. 934). It was error to classify the "consolidation" of two laches of the workman's lung as temporary, after it had healed as much as it would ever heal, and thereby extend the allowance for temporary disability. (P. L. 1913, p. 302, 2 7 In re Hunnewell, 220 Mass. 351, 107 N. E. 934. § 160 workmen's compensation 620 as where a one-eyed man is made totally blind by the loss of the other eye, or a man having only one hand loses it, the award is made for total disability.^' In other states, a different rule pre- vails,''" and, in case of loss of sight, compensation is allowed only amending Wk. Oomp. Ac(» of 1911) Birmingham v. Lehigh & Wilkesbarre Coal Co. (N. J. Sup.) 95 Atl. 242, distinguishing Nitram Co. v. Creagh, 84 N. J. Law, 243, 86 Atl. 435, in which the temporary award ran while the hand was in process of healing. 28 "The employe, when he entered the service of the subscriber, had that degree of capacity which enabled him to do the work for which he was hired, ^hat was his capacity. It was an impaired capacity as compared with the normal capacity of a healthy man in the possession of aU his faculties. But nevertheless it was the employe's capacity. It enabled him to earn the wages which he received. He became an 'employS' under the Act, and thereby en- titled to all the benefits conferred upon those coming within that description. The Act afCords a fixed compensation for a limited time while the Incapacity for work resulting from the injury is total. It establishes no other standard. It fixes no method for dividing the effect of the injury, and attributing a part of it to the employment and another part to some pre-existing condition, and it gives no indication that the Legislature intended any such division. The total capacity of this employfi was not so great as it would have been if he had had two sound eyes. His total capacity was thus only a part of that of a normal man. But that capacity, which was all he had, has been trans- formed into a total incapacity by reason of the injury. That result has come to him entirely through the injury." In re Branconnier, In re Trav- elers' Insur. Co., 223 Mass. 273, 111 N. B. 792. Where a workman, having only one hand, lost it as the result of an acci- dent in his employment, he was entitled to compensation for total disability. (Wk. lOomp. Law, § 15, subd. 1) Schwab v. Emporium Forestry Co., 167 App. Div. 614, 153 N. Y. Supp. 234. A pile driver lost the vision of his left eye by accident. The vision in the right eye had been destroyed previously by a cataract, and he was totally incapacitated for work because of the injury. The Committee of Arbitra- tion awarded compensation on accotmt of total disability. Morrison v. Fidel- ity & Casualty Co., 2 Mass. Wk. Comp. Cases, 594 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). 2 9 The liability of the employer is ordinarily limited to compensation com- mensurate with the injury suffered by the employe while in his service, and he is relieved from the consequences of an injury previously sustained, even though both resulted in permanent total disability. The employer accepts in his service a disabled employe, knowing of the disability and with knowledge 621 COMPENSATION § 160 for the loss or disability which resulted from the injury suffered in the employment.'" that under the Compensation Act he is liable for accidental injuries to such employe while engaged in his service ; but to couple the prior disability with one suffered while in his service, and make the employer liable for both, would seem a hardship the Legislature intended to avoid. State ex rel. Garwin v. District Court, 129 Minn. 156, 151 N. W. 910. 30 Where a workman, who had previously lost one eye, lost the other in an accident arising out of and in the course of his employment, the injury could not be considered a total disability. Weaver v. Maxwell Motor Co., 186 Mich. 588, 152 N. W. 993, L. R. A. 1916B, 1276. Prior to the time relator entered respondent's service he had lost the sight of one eye by accidental means. After entering respondent's service he lost, by accident happening during the course of his employment, the sight of his other eye, thus rendering him totally blind. It was held, under section 15 of the Compensation Act, that the last employer was liable for a permanent partial disability only, for that was the extent of the injury which the em- ploye suffered whUe in his service. State v. District Court, supra. Section 15, Wk. Comp. Act, limits the liability of an employer for accidental injury to an employe, where such employe had before entering the service suffered an injury which resulted in permanent partial disability, to the compensation provided for by section 13 for a permanent partial disability, though both in- juries together result in permanent total disability. (Gen. St. 1913, c. 84a, §§ 8195-8230). Id. Where an employe sustained a serious injury to one eye in 1911, which would eventually result in total blindness of that eye, and in 1914 sustained the immediate destruction of the sight of the other eye by accident occurring in the course of his employment with the defendant, the percentage of perma- nent disability for which the employer is liable in compensation is to be de- termined solely with reference to the physical injuries caused by the sec- ond accident, and not with reference to the condition of the applicant ensu- ing after the second accident, as influenced by the first. The employer is therefore liable to pay compensation for the loss of one eye, and not for to- tal blindness. Rouner v. Columbia, Steel Co., 2 Cal. I. A. C. Dec. 207. Where disability is prolonged by reason of the injured workingman's having suffered, prior to the happening of the accident in question, from varicose ulcers, so as to have practically no skin left, but only scar tis- sue upon the exposed parts, and this feature greatly prolongs disability from a new ulcer caused by an accidental bruise, the disability payments will be limited to such time as, in the judgment of the competent medical advis- ers, the disability would have terminated in any ordinary case of varicose ulcer. Fischer v. Union Ice Co., 2 Cal. I. A. C. Dec. 72. , Where the applicant § 160 woekmbn's compensation 622 Under the Connecticut Act, where one eye is destroyed and the other injured, and total incapacity for work results from the in- jured eye because of the blindness of the other, though it would not have caused incapacity had that eye been normal, compensa- tion is payable for loss of the eye under the schedule, and for total incapacity during its existence. '^ Where the claimant had no use- ful vision in her eye because of a prior injury, though she was able to distinguish light from dark, she could not recover for loss of sight on account of an accident which necessitated the removal of the eye ; but where the removal of such eye was made desirable by pain and soreness consequent upon sticking a spindle into it while stooping to pick up a bobbin which had fallen on the floor, compensation was allowed for disability due to its removal.'* § 161. Hernia — California A hernia, though usually remediable by operation, and therefore a temporary disability, constitutes a permanent disability where it is not operated upon and no operation is tendered by the em- ployer. An employe receiving a hernia is under no obligation to sustain an operation at his own expense, as his earnings should be devoted primarily to the support of his family, and he cannot rea- sonably be required to deprive them of such support to undergo was injured by a fall, causing a severe sprain of the left ankle, and recovery therefrom wsis prolonged by reason of a condition of general arterial disease, and at the date of the hearing the ai)plicant's disability was about equally divided between' his general condition and the result of the accident, he was held entitled to compensation during the entire continuance of disability re- sulting from the accident. Dabila v. Brandon & Lawson, 1 Cal. I. A. O. Dec. 239. But where an employg bruises his leg, this bruise subsequently breaking down i^to an ulcer, and the duration of this ulcer is greatly prolonged by a condition of varicose veins, but it is shown that the varicose condition did not in any way contribute to the formation of the ulcer, compensation will be allowed for the fuU period of disability. Hoffman v. Kom, 2 Cal. I. A. O. Dec. 166. 81 Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433. 82 In Nichols v. Max Pollock Co., 1 Conn. Comp. Dec. 74. 623 COMPENSATION § 162 an operation.*' Unless an employer has knowledge prior to the accident of a hernia then existing, disability awards for hernia, claimed to result from the accident, will be made only when the traumatic origin of the hernia is clearly established, and any award will be limited to cover the cost of operation to cure the hernia and for disability consequent upon such operation, except for such dis- ability as may have existed prior to the offer on the part of the employer or insurance carrier to provide for such operation.'* Where an employe is operated upon for hernia, and within a few days after leaving the hospital returns, suffering from typhoid fever, such typhoid fever will not be presumed to have been caused by the hernia or operation, and compensation will be allowed only for the normal period of disability which would result from the operation if no disease had intervened.'" § 162. Scheduled injuries Where compensation under the schedule is in addition to other compensation, it is often called "additional compensation." '° , The 38 Taylor v. Spreckels, 2 Cal. I. A. C. Dec. 62. A Mrnia may be treated as a permanent disability unless operated upon, and compensation may be awarded upon the basis of sucb permanent disability, unless an operation be tendered for its cure at the expense of the employer, even though 90 days may have elapsed from the date of the accident. Id. Hernia cannot usually be regarded as a permanent disability, as it is reme- diable by operation. Brandt v. Globe Indemnity _0o., 1 Cal. I. A. 0. Dec. 309. Hernia is a temporary disability, because it is remediable, and the risk of the operation is inconsiderable, in view of the seriousness of the injury If not remedied, imder section 16, subd. (e), of the California Act. An employ 6 suffering from hernia must therefore submit to an operation, if offered, or forfeit part or aU of the compensation due him. McNamara v. United States FideUty & Guaranty Co., 1 Cal. I. A. O. Dec. 138. 3* Mifsud V. Palace Hotel Co., 1 Cal. I. A. C. Dec. 37. SB Viglione v. Montgomery Garage Co., 2 Cal. I. A. C. Dec. 87. sa The Injured employe, who had suffered the loss of any member, was en- titled to specific award, as stated In section 25 of the Nevada Industrial In- surance Act, and in addition to said award was also entitled to an award § 162 workmen's compensation 624 particular injuries set out are merely examples to aid in administer- ing the Act. The enumeration does not profess to be exclusive.*'' The usual theory of the Compensation Acts is to make provision in the schedule for certain specific injuries, and to leave all other inju- ries to be compensated for under general provisions.'* An award within the statutory Ijmit cannot be held arbitrary.*" Under a pro- vision that the schedule shall also apply "in case the injury is such that" the member "is permanently incapable of use," the words "in- capable of use" should receive a construction which, while fairly within their interpretation, is not narrow and technical, nor, on the of 50 per cent, of the average monthly wage for such time as he was totally disabled. Rep. Nev. Indus. Com. 1913-14, p. 24. The fact that a workman, after suffering the loss of one or more fingers, is able to earn the same wage as before, does not affect his right to ^the specific indemnity provided in section 10, part II, of the Law ; such indemnity being given because the workman must go through the remainder of his life without the use of the members so lost. Lardie v. Grand Kapids Showcase Co., Mich. Wk. Oomp. Cases (1916) 17. 3 7 Wagner v. American Bridge Co. (Sup.) 158 N. T. Supp. 1043. 38 "The whole schedule is so specific that it is difficult to see how the Leg- islature could have intended that an injury to an arm impairing its useful- ness 50 per cent, or any degree, would come within the schedule. It seems from the whole Act that the purpose of the Legislature was to confine the fixed compensation named in the schedule in subdivision 5 to the specific Injuries named therein." Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856. It was held in Wallace v. Tracy Bros. Co., 1 Conn. Comp. Dec. 155, that the Connecticut Act provides compensation under the schedule in lieu of all other compensation for the injuries included therein, and that compensation may be awarded in addition to compensation under the schedule, for injuries to other fingers which do not come under the schedule. In Batch v. Borough of Groton, 1 Conn. Comp. Dec. 177, where claimant's finger was crushed in a pump, and infection set in and spread, causing the total loss of the use of the hand and septic phlebitis in the right leg, compensation was awarded under the schedule for loss of the use of the hand, and separate disability indemnity for incapacity due to the condition of the leg. 3 9 An award of $1,200 to a servant for loss of several fingers could not be set aside as arbitrary, where this was less than the maximum amount au- thorized by statute. Slnnes v. Daggett, 80 Wash. 673, 142 Pac. 5. 625 COMPENSATION § 162 Other hand, so free and liberal as to give a right which the words themselves do not fairly import.*" The complete loss of the func- tions of a thumb, finger, toe, hand, arm, foot, leg, or eye should be considered as the total loss' of such member; *^ but the loss of the merest shaving of bone from the tip of the first phalange is not equivalent to the loss of the phalange.*" When the accident sets in motion agencies which ultimately destroy the sight of the eye, no right to compensation accrues, and no compensable injury ex- ists, until the point of time is reached where the eye is a total loss.*^ "All other cases in this class," in the provision of the Wisconsin Act that in such cases "the compensation shall bear such relation to the amount stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule," obviously has reference to the injuries mentioned specifically in the schedule, and was not intended to include impairment occasioned by a dif- ferent injury than that named in the schedule.** Where the injury consisted of a fracture of the skull, paralysis of the right side of the mouth, and injuries to the nostril, eye, and ear, together with impairment of the use of the right arm, an award of 340 weeks' pay was unauthorized under the New Jersey Act, when there was no evidence that the injuries stood to the disability in the propor- tion of 340 to 400, but, on the contrary, the evidence showed that *o (St. 1911, c. 751, pt. 2, § 11, amended by St. 1914, e. 708) Floccher v. Fi- delity & Deposit Co. of Md., 221 Mass. 54, 108 N. E. 1032. 41 Rep. Nev. Indus. Com.. 1913-14, p. 21. The loss of the use of a member is suflScient to entitle the injured party to compensation as provided in the schedule, whether the member is completely severed or not ; the action of the surgeon in amputating the finger, or failing to amputate it, not being controlling (section 10, part II, Workmen's Com- pensation Act). Lardie v. Grand Rapids Showcase Co., Mich. Wk. Oomp. Cases (1916) 17. 42 (Wk. Comp. Act, § 15, subd. 3) Mockler v. Hawkes, 158 N. Y. Supp. 759. 43 Kalucki v. American Car & Foundry Co., Mich. Wk. Comp. Cases (1916) 390. 44 Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856. HoN.CoMP. — 40 § 162 workmen's compensation 626 the proportion of the extent of the disability was much less. None of these injuries are specially provided for, and allowance there- for must be under the provision that the compensation shall bear such relation to the amounts stated in the schedule as the disabili- ties bear to those produced by the injuries named in the schedule.*^ Awards under the s^edule of the Washington Act are dependent upon surgical discharge and proofs when the extent of the injury is to be determined.*^ There is nothing in the New York Act to justify concurrent com- pensation for temporary total disability and under the schedule for total disability, and such a construction is contrary to the intention of the I^egislature.*^ § 163. Eye An award for permanent impairment of vision is unauthorized, where the injury does not destroy the workman's eye or vision, or prevent liim from returning to work and earning the same wages . as before the injury, though his eye be permanently injured.** The loss being only partial, he is entitled to compensation measured only by his lessened wages.*' Where a workman, after injury to *6 O'Connell v. SImms Magneto Co., 85 N. J. Law, 64, 89 Atl. 922. An award made under section 2 of the New Jersey Act must be according- to paragraph 11, containing the schedule of amounts, and Is limited by that paragraph. (P. L. 1911, p. 136, § 2, par. 11) Bateman Mfg. Co. v. Smith, 85 N. J. Law, 409, 89 Atl. 979. 48 (Wk. Oomp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 17. 47 Predenburg v. Empire United Rys., Inc., 168 App. Div. 618, 154 N. T. Supp. 351. 48 HIrschkorn t. Ficge Desk Co., 184 Mich. 239, 150 N. W. 851. 49 Cline V. Studebaker Corporation (Mich.) 155 N, W. 519, L. R. A. 1916C, 1139. Where, as a result of an injury, an employ^ lost 50 per cent, of the vision in one eye, and his earning capacity was thereby impaired, he was entitled to one-fourth of his average weekly wages, the same being based upon one- fourth loss of vision, and the injury as a matter of law having affected his 627 COMPENSATION § 163 his eye, has 10 per cent, of the normal vision without glasses and 50 per cent, with glasses, he is not entitled to compensation for total loss of the eye, on the ground that his eyesight has been di- minished 90 per cent., since it is his duty to minimize the injury by using glasses."" But where the injury will permanently destroy the sight of an eye unless the workman submits to an operation, full compensation should be awarded for loss of an eye, not merely . for temporary disability ; the proper course, being to deal with the case as it stands at the time — that is, as a case of permanent dis- ability — and allow compensation for 100 weeks. If. the workman chooses later to submit to an operation and is cured, the extent of the intervening temporary disability will be known, and the weekly compensation can be terminated on application to the court for a modification of the order, as the statute authorizes. If the opera- tion proves a failure, the award for permanent disability will stand.^^ lyoss of the sight of an eye is considered total where the sjght remaining in the eye is of no practical value,°^ and an opera- tion would not only be very dangerous, but could result in a benefit of no value, unless there be a total loss of the sight of the other eye."^ Where the evidence showed that it was probable that there earning capacity to that extent. Csuprinski v. Mechanical Mfg. Co., Bulletin No. 1, 111., p. 105. 00 Id. Bi Fryer v: Mt. Holly Water Co., 87 N. J. Law, 57, 93 Atl. 679. 2 In Cowles v. Wilkenda Land Co., 1 Conn. Comp. Dec. 361, where It ap- peared that the claimant had sustained an injury to his eye which made it impossible for him to distinguish even the largest objects until' they were too close to avoid them, in case of an automobile or car, and that the eye was of no practical use and a detriment to the vision in the other eye, it was held he had suffered a complete and permanent loss of the sisht of the eye within section 12 of the Act. 5 3 In Lewis v. Goodyear India Rubber Glove Mfg. Co., 1 Conn. Comp. Dec. 238, where the claimant had no present si?ht in his right eye, and an opera- tion to restore the sight would be inadvisable, very dangerous, and probably fatal, and the benefit accomplished only of value in case of total loss of sight of the other eye, it was held the employ^ had suffered a "complete and § 164 workmen's compensation 628 was potential, or possible, vision in the right eye prior to the oc- currence of the injury, that the restoration of vision following an operation would be useful only in the event of a great or total loss of vision in the uninjured left eye, that the injury destroyed, any possibility of ever restoring sight to the right eye, and that, prior to the injury, the eAploye had less than one- tenth vision in the right eye, he was not entitled to a specific "additional" compensation provided for in case of reduction of vision to one-tenth of normal, with glasses."* A schedule giving compensation for total blind- ness of one eye authorizes compensation under a relative injury provision for partial blindness of one eye, the physical organ being retained."" § 164. Arm The provision of an Act that paralysis of a member shall be equivalent to a "loss" of the member does not authorize classifying » permanent loss of the sight of the eye," compensable under the schedule (Wk. Comp. Act, pt. B, § 12, subd. [g]). S'tEldredge v. Employers' Llab. Assur. Corp., Ltd., 2 Mass. Wk. Comp. Cases, 639 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). 6 (St. 1913, § 2394^-9, subd. 5; Laws 1915, c. 378) Stoughton Wagon Co. v. Myre (Wis.) 157 N. W. 522. "It was held in Northwestern Fuel Co. v. Lelpus, supra, that a partial and permanent impairment of the strength and usefulness of an arm was not Within the class of injuries scheduled in subdivision 5 of section 2394 — 9, St. 1913, because that schedule referred to the physical loss of an arm, and mere impairment without loss of the member could not be held to be in that class. The case before us, however, is plainly not within that reasoning. The schedule gives a certain compensation for total blindness of one eye, the physical organ itself being retained, and in the present case there is partial blindness of the eye, the physical organ being retained. The court is of opinion that this Injury is logically within the statutory class, and hence tljat compensation under the relative injury provision of the statute was properly awarded. The relative injury clause in question has been amended by chapter 378, Laws of 1915, so that there is now no doubt of the legislative purpose to make it applicable to all cases of permanent disability resulting from injuries to those members of the body or its faculties named In the schedule, although the member be not severed or the faculty totally lost." Id. 629 COMPENSATION § 165 a mere impairment of an arm as a loss thereof."' An award, for a partial injury to the motion of the arm, of the same compensation as the statute fixes for the loss of the arm, is not in compliance with a statutory mandate that the compensation shall bear such relation to the amounts stated in the schedule as the disabilities bear to those produced by the injuries named in the schedule. °' § 165. Hand, fingers, foot, and ankle No award can be made for partial loss of a hand under a sched- ule providing compensation only for a total loss.°" A hand is in- capable of use when its normal use has been entirely taken away; it not being essential that the incapacity of use be tantamount to an actual severance of the hand."' For example, where the workman's middle, ring, and little fingers are paralyzed, and there is such an interference with the circulation that the hand goes "to sleep, the hand is "incapable of use," though there is a small amount of mo- 66 Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856. Obvious- ly the "loss" of a member designated in the schedule has reference, not to the impairment of the member by injury, but to the physical loss of it. All through the schedule there is nothing to indicate tliat impairment of a mem- ber was intended to be loss of a member, or that reduction of the eflBclency of the member one-half would be one-half loss of the member. "The loss of an arm at the elbow," or "the loss of a forearm at the lower half thereof," does not mean the impairment of the arm, but the actual physical ^severance of it. The fact that the schedule so specifically fixes the precise injury for which compensation is allowed excludes the idea that the schedule covers any other or different injury. In every instance the loss is specifically de- fined. Id. 5r (P. L. 1913, pp. 302, 304) Barbour Flax Spinning Co. v. Hagarty, 85 N. J. Law, 407, 89 Atl. 919, distinguishing Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027, which arose under the earlier statute, wherein the period of time during which compensation should be paid was fixed, whereas, under the amendment of 1913, which now controls, the period is not fixed. 58 (wk. Comp. Act pt. 2, § 10) Carpenter v. Detroit Forging Co. (Mich.) 157 N. W. 374. 5 9 (St. 1911, c. 751) In re Meley, 219 Mass. 136, 106 N. E. 559. § 165 workmen's compensation 630 tion in the thumb and first finger.*" Injuries between the elbow and the wrist should be considered injuries to the hand.®'^ Where the injury results in complete loss of the' index, second, and third fingers, and makes the fourth finger stiff and practically useless, the workman is usually entitled to compensation as for a! hand ren- dered permanently useless, rather than for loss of the particular fingers ; "^ but it has been held that where a workman lost the use of four fingers, apparently retaining the use of the rest of his hand, it was not clear that the claimant should be allowed for the loss of the use of the entire hand, the court saying: "It is now claimed that claimant did not lose the use of the hand, but only of the four fingers, and that the usefulness of the remainder of the hand, in- cluding the thumb, was practically unimpaired. These seem to be the conceded facts. I am not clear that upon these conceded facts the claimant should have been allowed for the loss of the use of the entire hand. While the four fingers were stiffened, the thumb was uninjured, and the claimant is unquestionably better off than 60 Floccher v. Fidelity & Deposit Co. of Md., 221 Mass. 54, 108 N. E. 1032. ,ei Rockwell V. Lewis, 168 App. Div. 674, 154 N. Y. Supp. 893; State ex rel. Kennedy v. District Court, 129 Minn. 91, 151 N. W. 530, which cites (N. J. Sup.) 88 Atl. 953. In a hearing under the Wk. Comp. Act to ascertain the compensation to be awarded an injured employ^, where there are permanent injuries to the hand and arm below the elbow, the court should determine the percentage of total disability of the hand and fix the compensation accordingly. Where the same accident results also in permanent partial disability to the arm above the elbow, the court should determine the total disability of the arm as a whole, including the forearm and hand, and fix the compensation accord- ingly. It is improper in such a case to divide the injuries into two units, those to the hand an^ those to the arm. (Laws 1913, c. 467; Gen. St. 1913, c. 84a) State ex rel. Kennedy v. District Court, supra. A workman's forearm and hand were Impaired by an accident to the ex- tent of 75 per cent., and his upper arm to the extent of 8 per cent. The amount awarded was 75 per cent, of what the statute fixes for an arm. It was held that this award was not necessarily incongruous with the statutory provision making amputation between the elbow and the wrist equivalent to the loss of a hand only. Blackford v. Green, 87 N. J. Law, 359, 94 Atl. 401. «2 Rockwell V. Lewis, 168 App. Div. 674, 154 N. T. Supp. 893. 631 COMPENSATION § 165 if the hand had been taken off or rendered entirely useless. In my judgment, it is unnecessary to determine this, because the award was made by consent of the attorney representing the appellants, and, while the appellants afterward claimed that he exceeded his authority, we are unwilling to interfere with the determination of the Commission that the award should stand." «' Similar holdings have been made in other cases,"* but the rule is to the contrary in Illinois." ° Where the accident necessitating amputation of the first phalange of the third finger is followed by cellulitis of the joints, which makes the remainder of the finger practically useless, the in- jury is equivalent to the loss of the finger, and claimant cannot re- cover more than the specific amount provided for such loss by con- tending that he has not lost the finger, and so bringing the injury under the relative injury clause." In awarding compensation the hands may be considered separately, and, after compensation has 6 3 Cunningham v. Buffalo C. & B. Rolling Mills (Sup.) 155 N. Y. Supp. 797. 64 In De Vlto v. Atlantic Insulated Wire & Cable Co., 1 Conn. Comp. Dec. 407, where the claimant's Injury necessitated the amputation of the four fingers of the right hand, but left the functions of the thumb unimpaired, it was held he had not suffered "a complete and permanent loss of the use of the hand," entitling him to an award under the schedule, though he was awarded for the loss of four fingers. And in Kilbride v. Pratt & Whitney Co., 1 Conn. Comp. Dec. 688, where the evidence showed that there was a large scar and deformity on the back of the workman's hand, and that he could not hold things with the hand, and the medical evidence estimated a 45 per cent, impairment of the hand, It was held the total and permanent loss of the use of the hand had not been shown. Under a schedule allowing 60 weeks' compensation for the loss of all the fingers of one hand, where there was, according to medical evidence, apt to be a little use of the first finger and slight movement of the proximal joints, after a careful operation, compensation was awarded for 50 weeks. Higgins V. Hanover & Butler, Rep. Wis. Indus. Com. 1914-15, p. 37. 6B The loss of the first, second, third, and fourth fingers of a right hand, with palm and thumb remaining intact, constitutes a permanent and com- plete loss of the hand, under paragraph (e), section 8. Swickard v. Arrow Motor Cartage Co., Bulletin No. 1, 111., p. 172. 6 8 (Consol. Laws, c. 67, § 15, subd. 3) Felnman v. Albert Mfg. Co., 170 App. Div. 147, 155 N. X. Supp. 909. § 165 workmen's compensation 632 been allowed for injuries rendering one hand incapable of use, ad- ditional compensation can be given for incapacity to use a finger of the other hand,'^ Where an employe suffers the loss of two joints of his index finger and an injury to his thumb, in an accident in his employ- ment, he is entitled t(j compensation under the Illinois Act, both for the 15 weeks of incapacity due to the accident and also compen- sation for the permanent disfigurement of his hand."* Where a thumb is so injured that a piece of tendon and flesh are destroyed, compensation is properly awarded for loss by severance of one phalange of the thumb, rather than for loss of the thumb."* Where an arm is broken and an abscess develops, resulting in ankylosis of the thumb, making it permanently useless, compensa- tion is recoverable for partial injury to the thumb.''" Under the Nevada Act, the loss of the distal or second phalange of the thumb, or the distal or third phalange of the first, second, third, or fourth finger, is considered a permanent partial disability and equal to the loss of one-half of such thumb or finger; and compensation is one- half of the amount specified for the loss of the entire thumb, or first, second, third, or fourth finger.'^ Where a portion of the second phalange of the workman's index finger is amputated, compensation should be awarded on the basis of total loss of the finger.''^ An award of one-half the amount speci- fied for loss of a finger is also proper, where the injury necessitates 87 In re Meley, 219 Mass. 136, 106 N. E. 559. 6 8 (Act of 1912, Jones & A. Ann. St. 1913, par. 5453, § 5, subds. "a," "b," and "c") Waiters v. Kroehler Mia. Co., 187 111. App. 548. 09 Weber v. American Silk Spinning Co. (R. I.) 95 Atl. 603. ■"> Newcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. 928. 71 Rep. Nev. Indus. Com. 1913-14, p. 24. 7 2 Fortlno v. Merchants' Dispatch Transportation Co. (Sup.) 156 N. Y. Supp, 262. In Illinois, the loss of more than one phalange of a finger or toe is equiva- lent to the loss of the entire member. McClennan v. Allith Prouty Co., Bul- letin No. 1, 111., p. 116. 633 COMPENSATION § 165 amputation of the third finger of the right hand, so that substan- tially all the outer phalange is cut off.''' But the mere pinching of a finger, which does not result in permanent injury, is not to be considered as loss of one-half of a finger.''* Distinct allowances may be made for injury to' different fingers,''" and compensation may be allowed for temporary injury to one finger and permanent injury to another.''® Separate awards under the schedule for the loss of a thumb and a finger run consecutively, and not concur- rently.^' And where there is incapacity due to the laceration of a finger, as well as the loss of one phalange of the third finger and the entire fourth finger, compensation will be awarded sep- arately for each injury, the payments to run consecutively.'' 73 In re Petrle, 215 N. T. 335, 109 N. E. 549. Amputation of about one-third of the bone of the distal phalange, materi- ally interfering with the use of the finger, authorizes an award of one-half the amount allowable for loss of a finger. (Laws 1914, c. 41, § 15, subd. 3) In re Petrle, 165 App. Div. 561, 151 N. Y. Supp. 307. 74 (Laws 1914, c. 41, § 15, subd. 3) In re Petrle, supra. 7 5 Maziarski v. Ohl & Co», 86 N. J. Law, 692, 93 Atl. 111. That distinct dam- age may be allowed for injury to each finger is sufficiently indicated by the provision of the statute that the amount received for more than one finger shall not exceed the amount provided in the schedule for the loss of a hand. Id. Where several fingers are partly injured by the same accident, the total award is properly composed of separate awards for the injury to each finger, as fixed by the statute, not to exceed, however, the amount provided for loss of a hand. The weekly payments in such case do not run concurrently. George W. Helme Co. v. Middlesex Common Pleas, 84 N. J. Law, 531, 87 Atl. 72. 76 Maziarski v. Ohl & Co., 86 N. J. Law, 692, 93 Atl. 111. Where a workman got his fingers smashed, and some of them amputated, and a temporary disability resulted, partly due to an infection preventing his going to work, damages were properly allowed both under clause "a" and clause "c," even though the damages would exceed the maximum recoverable under clause "b." (P. L. 1911, p. 137, § 2, par. 11) Nitram Co. v. Creagh, 84 N. J. Law, 243, 86 Atl. 435. 77 Fredenburg v. Empire United Rys., Inc., 168 App. Div. 618, 154 N. 1. Supp. 351. 78 Drapeau v. Stoddard, 1 Conn. Comp. Dee. 590. In Pascale v. S. L. & G. H. Rogers Co., 1 Conn. Comp. Dec. 33, compensation § 165 workmen's compensation 634 The -clause of the New Jersey Act providing for a minimum com- pensation of $5 applies where the injury is to the index finger and the middle finger of the left hand ; that to the index finger being temporary and that to the other finger being equal to the loss of one-half the phalange of that finger.''" Where an employe earning $8.50 per week loses the first phalange of the index finger, he is entitled to $5 per week for thirty-five weeks, besides the cost of rea- sonable medical and hospital services and medicines for two weeks.'" Compensation for permanency of the injury cannot be allowed under the Massachusetts Act, in addition to an allowance for in- capacity for work, where one-half inch of the first phalange of the left index finger was severed, rendering the phalange permanently incapable of use, but not resulting in permanent incapacity for use of the entire fingef.*^ But where the employe received a personal injury causing the right hand and the little finger of the left hand to be permanently incapacitated for use, he is entitled to "addi- tional" compensation for fifty weeks for the permanent incapacity of the hand, and twelve weeks for the permanent incapacity of the finger.*^ The loss of a part of the bone of any phalange constitutes the loss of that phalange for the purpose of the Illinois Act.'* was awarded separately for injuries causing the amputation of parts of two different fingers, 35 weeks for one and 7 for the other. 7 8 Maziarski v. Ohl & Co., 86 N. J. Law, 692, 93 Atl. 110; Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027. In Nitram Co. v. Court of Common Pleas, 84 N. J. Law, 243, 86 Atl. 485, an allowance for both temporary injury and permanent injury was sustained. 80 (P. L. 1911, p. 134, § 2, par. 14) James A. Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027 (rehearing denied 89 Atl. 923). ,81 (St. 1911, c. 751, pt. 2, § 11, amended by St. 1913, c. 696) In re Con- tractors' Mut. Liab. Insur. Co., 217 Mass. 511, 105 N. E. 376. 82 Meley v. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 404 (decision of Com. of.Arb., affirmed by Indus. Ace. Bd., also by Sup. Jud. Ct., 219 Mass. 136, 106 N. E. 559). 83 Palmer v. Scheidenhelm, Bulletin No. 1, 111., p. 135. 635 COMPENSATION § 166 The fact that the workman is totally disabled by reason of inju- ries to two fingers for 2% months, and that the injury resulted in a partial loss of the use of his fingers, which condition is permanent, is such as to make a compensation award of 50 per cent, of his average weekly wage, for a 'period of 43 weeks, a reasonable award under the Michigan Act.** An allowance of more for an injury to an ankle than the stipu- lated compensation for the loss of a foot is authorized. Whether the allowance should equal such stipulated compensation is a ques- tion to be determined at the trial.'" Where it appears that, though the claimant's foot was not actually cut off, it is wholly useless and gives no better results than an artificial foot, besides being painful to use, compensation will be awarded for the complete and perma- nent loss of the use of the foot.** § 166. Disfigurement In order to entitle one to compensation for disfigurement, the dis- figurement must usually be of 'such a serious and permanent char- acter as to either directly or indirectly impair his earning capacity or ability to secure work in the labor markets of the world.*' The highest court of England has decided that an injury or dis- 8* Ridler v. Little Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 27. SB (P. L. 1911, p. 134, § 2, par. 11) Eaklee v. Delaware, U & W. K. Co. (N. J. Sup.) 88 Atl. 953. 86 Mahoney v. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292. sTBillman v. Two Rivers Coal Co., Bulletin No. 1, 111., p. 69. Disfigure- ment, to entitle applicant to compensation, must in reality disfigure to the extent that it will interfere with his obtaining employment. Harpestad v. Alexander, Bulletin No. 1, 111., p. 14. A sear on side of head, about three-quarters of an inch wide is such dis- figurement as to afCect the workman's earning capacity, as it makes him less aggressive and more timid. Id. But the loss of a tooth that has been replaced by a gold crown does not constitute a disfigurement of the face, under paragraph (c), § 8, of the Workmen's Compensation Act Niemark v. West Coast Roofing Co., Bulletin No. 1, 111., p. 56. § 166 workmen's COMPENSATION 636 figurement which destroys or impairs the injured workman's ca- pacity to get work is an element to be taken into consideration in the assessment. of compensation.'* Under the Illinois Act, where a workman loses the tips of two fingers of his right hand, impairing the sense of feeling in these fingers, and incapacitating him per- manently from doing l4ie kind of work in which he was engaged at the time of the accident, he is entitled to compensation for dis- figurement of his hand.*' And where an employe suffers the loss of two joints of his index finger and an injury to his thumb, in an ac- cident in his employment, he is entitled to compensation for the permanent disfigurement of his hand.®" Under the New York Act, where an employe's ear is bitten by a horse and amputation neces- sitated, leaving a disfigurement, but not impairing the employe's efficiency, the injury does not come in the class of scheduled dis- abilities.'^ It is otherwise, however, where total deafness results and impairs the employe's industrial efficiency.''' 8 8 Ball V. Hunt, 81 L. J. K. B. 782, 787. «9 (Wk. Comp. Act 1911, Jones & A. Ann. St. 1913, par. 5453, § 5) Steven- son V. Illinois Watch Case Co., 186 111. App. 418. 00 (Act of 1912, Jones & A. Ann. St. 1913, par. 5453, § 5, subsecs. a, b, and c) Watters v. Kroehler Mfg. Co., 187 111. App. 548. 01 Shinnick r. Clover Farms Co., 169 App. Div. 236, 154 N. T. Supp. 423. 02 Wagner v. American Bridge Co. (Sup.) 158 N. Y. Supp. 1043. 637 COMPBNSATIOK § 167 ARTICLE III DEATH BENEFITS Section 167. Computation and amount of benefit. 168. California. 169. Minnesota. 170. New Jersey. 171. New York. 172. Washington. 173. Wisconsin. 171. Federal Act. § 167. Computation and amount of benefit Under the English Act, and state Acts similar to it in this respect, the compensation payable to dependents is an amount reasonable and proportionate to their injury."' The English Workmen's Com- pensation Act provides that in cases of partial dependency the amount recoverable shall be reasonable "and proportionate to the injury to the said dependents." This language required that the English courts in cases of partial dependency inquire whether de- ceased was a financiaL asset and whether his death was a financial injury to the dependent. On the other hand, the Connecticut Act makes the sole test one of dependency upon the earnings of the deceased at the time of the injury and fixes the minimum award in cases where the injury results in death. It follows, therefore, that in determining under the latter Act the extent of dependency upon a minor, it is immaterial whether the cost of the minor's sup- port used up all his wages, where the dependent was legally entitled 98 In England the amount payable to dependents is to be reasonable and proportionate to their injury, and the exact amount is determined for each case. "The sum is to be proportioned to the injury. It is for the Committee to say what is reasonable and proportionate to the injury." Hodgson v. Owners of West Stanley Colliery (1910) 3 B. W. C. C. 267. The purpose of the Compensation Act was to provide a percentage income to the widow, or dependent next of kin, based upon their pecuniary loss. State ex rel. Gaylord Farmer's Co-op. Creamery Ass'n v. District Court, 128 Minn. 486, 151 N. W. 182. § 167 workmen's compensation 638 to receive the wages of the minor and to use them for the support of the family."* Under the Massachusetts Act, the sum to be paid is measured by the wages of the deceased workman, not by the injury done to the dependent.' Where the dependents were only partly dependent upon the earnings of tht deceased, the amount to be paid is "a week- ly compensation equal to the same proportion of the weekly pay- ments made for the benefits of persons wholly dependent as the amount contributed by the employe bears to the annual earnings of the deceased at the time of his injury." The amount to be paid in case the dependent was partly dependent is to be measured by that proportion of the average weekly wages of the deceased which the amount of his wages contributed by him to the dependent's sup- port bore to the amount of his annual earnings, without regard to the benefits, if any, received by the deceased from the dependents.*' Where an employe receives board from a dependent to whose sup- port he contributed, the value of such board is not to be deducted from his contributions in determining percentage of dependency."* »* Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025. In Koether v. Union Hardware Co., 1 Conn. Comp. Dec, 38, it was held that, where a soh contributed practically all of his earnings to a family fund, all of which was required for the support of the family, the board, room, clothing, washing, etc., which he received were not to be deducted in computing the amount of compensation. 9B (Wk. Comp. Act, § 6) Gove v. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702. Where all of a minor's weekly earnings, amounting to $5.67, were given by him to his father to support his father's family, consisting of a wUe and several minor children, IncludlQg decedent, the father was entitled to $4 per week for 300 weeks from the date of the fatal injury, though he paid the ex- pense of the deceased son's maintenance to the extent of at least $2.50 per week. (St. 1911, c. 751, pt. 2, § 6) In re Murphy, 218 Mass. 278, 105 N. E. 635. 8 8 Gove V. Royal Indemnity Co., 223 Mass. 187, 111 N. E. 702. The employe contributed the siun of $12.50 weekly to the dependents, $10 in cash to his mother, and $2.50 in groceries, and the sole question at issue was whether the dependents were entitled to the payment of a weekly com- 639 COMPENSATIOIf § 167 No deduction will be made from death benefits for the time during which the employe worked after the injury,*' or for payments made to him by way of compensation."^ pensation equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employ^ to the partial dependents bears to the average annual earnings of the deceased, or whether from the amount so contributed the value of his board should be deducted. The Committee held that the value of board should not be deduct- ed In computing the compensation. Hayden v. Mass. Employes' Insur. Ass'n, 2 Mass. Wk. Comp. Cases, 198 (decision of Com. of Arb.). The employ^, a minor, contributed all of his wages, amounting to $5.67 a week, to his father. The father was not wholly, but only partially dependent upon the wages of the son for support, and the question is: Is the father entitled to the mini- mum of $4 a week, or should there be a deduction from the minimum amount, on account of the fact that the employe, while contributing all his wages to his father, was supported by the father, and his maintenance was at least $2.50 a week? The Board decided and held that the employe contributed his entire earnings to the dependent, a proportion of 100 per cent., and that there is due the dependent 100 per cent, of the minimum compensation provided by the statute ; that is, the payment of $4 a week for 300 weeks from the date of the injury. Murphy v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 817 (decision of Indus. Ace. Bd., aflSrmed by Sup. Jud. Ot., 218 Mass. 278, 105 N. E. 635). 97 (St. 1911, c. 751, part 2, § 6) In re Cripp, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828. «8 The v?idow, as sole dependent of a deceased employfi, was entitled to ' compensation from the date of the last payment to the deceased employe for a period not to exceed 300 weeks from the date of the accident, without any deduction being made for payments made to the employe for loss of a finger. (St. 1911, c. 751, pt. 2, § 11 [d], as amended by St. 1912, c. 571, § 2, and St. 1913, c. 696, § 1) In re Nichols, 217 Mass. 8, 104 N. E. 566, Ann. Cas. 1915A, 862. The employe received an injury which necessitated the amputation of the third finger of the right hand. Later blood poisoning set in and death en- sued. Under section 11 (d), part II, the employe was entitled to the payment of half his weekly wages for a period of 12 weeks, in addition to the pay- ments due on account of incapacity for work; the amputation of the finger being one of the "specified injuries" for which the specified compensation named should be paid "in addition to all other compensation." Subsequent to the payment of the "additional compensation" the employe died, and the insurer requested the Board to rule as to whether the amount paid as "ad- ditional compensation" should not be properly deducted from the compensation due the widow. The Industrial Accident Board ruled that the statute makes § 168 workmen's compensation 640 § 168. California The California Act does not require that all payments made by an employe to the support of his dependents shall be paid from his earnings for the period during which such contributions' were made. It requires merely that the extent of partial dependency be fixed at such proportion of three times the average annual earn- ings "as the annual amount devoted by the deceased to the support of the person or persons so partially dependent bears to such av- erage earnings." "^ Where a partial dependency is clearly estab- lished, but there is no direct evidence to show the amount of con- tributions made, such partial dependency may be computed by reference to the earnings of the deceased employe during the year preceding his death and deducting therefrom his known expendi- tures, making a reasonable allowance for the cost of room and board, clothing, and incidental spending money,^ or by estimating it obligatory upon the insurer to pay the additional compensation, and that no provision is made for its deduction if death results from the injury. Nichols V. London Guarantee & Accident Co., Ltd., 2 Mass. Wk. Comp. Cases, 814 (decision of Indus. Ace. Bd., affirmed by Sup. Jud. Ct., 217 Mass. 3, 104 N. E. 566, Ann. Cas. 1915A, 862). 99 Mahoney v. Yosemite Valley R. R. Co., 2 Cal. I. A. C. Dec. 150. Where an employ^ was shown to have contributed various sums to a sister for her support until his death, and one of such contributions was the sum of $230 received from the proceeds of a life Insurance policy canceled by him, this amount may be included in the annual contribution for support used as a basis for determining the extent of dependency. Id. 1 Parsley v. O'Brien Bros., 1 Cal. I. A. C. Dec. 494. Where partial dependency is well established, but by reason of the fail- ure of the dependents to keep records of the contributions made by the de- ceased employe it is impossible to determine directly the amount of his con- tributions, it may be determined by subtracting from the total earnings of the deceased during the preceding year his estimated expenditures, including the estimated value of board and room received at home; it being shown that he turned in for the support of his family all of his wages, except cer- tain amounts retained for personal purposes. Donovan v. Holy Cross Ceme- tery, 1 Cal. I. A. C. Dec. 510. Where, the fact of partial dependency being established, the applicant claimed to have received $30 per month from him, but the known wages and expenditures of the deceased indicated that he 641 COMPENSATION^ § 168 the income of the dependent relatives from all other sources and finding the difference between this amount and the cost of main- tenance of the whole family for the same period.'' Where contribu- tions made by a deceased employe are shown to have been in ir- regular amounts, covering a period of fifteen months, the annual- contribution will be computed by reducing the total amount given for support during this time to a proportionate amount for a period of twelve months. The Act provides as a basis for determining a death benefit based upon partial dependency the annual contribu- tion devoted by the deceased employe to the support of the de- pendent.* In fixing the extent of dependency in cases where no particular sum is regularly paid over by a son who lives with his aged parents and is their principal support, and the parents do not look to any one else for support, it is proper to consider all the cir- cumstances in the conduct of the household, and to have regard to any other source of income the family may have.* Where a son contributes one-half his earnings to his family, consisting of a sister, mother, and father, one-sixth of his average annual income is es- timated as having been devoted to the sister's support.® Proof of partial dependency need not be made by direct and ir- refragable evidence. A technical and rigid requirement to estab- lish the degree of dependency by this sort of evidence would in many cases result in failure to establish any degree of dependency could not well have contributed more than $27.50 a month, the extent of the par- tial dependency was determined upon the basis of contributions at the month- ly rate of $27.50. Dennehy v. Flinn & Tracy, 1 Cal. I. A. C. Dec. 302. 2 Matthlesen v. Pacific Gas & Electric Co., 1 Cal. I. A. 0. Dec. 398. When the fact of dependency is established, but the evidence on the extent thereof is not exact, the amount contributed may be estimated from the alleged con- tributions to the dependent, his average earnings, the living expenses of the dependent, and her other sources of income, if any. Bristol v. Gartland, 1 CSal. I. A. C. Dec. 632. 8 Mahoney v. Tosemite Valley B. K. Co., 2 Cal. I. A. C. Dec. 150. * Binkley v. Western Pipe & Steel Co., 1 Cal. I. A. C. Dec. 33. s Irwin v. Globe Indemnity Co. of N. Y., 1 Cal. I. A. C. Dec. 547. HON.COMP. — 41 § 169 workmen's compensation 642 whatever, when, as a matter of fact, a substantial contribution to the support of the family was made by the deceased.' § 169. Minnesota The purpose of the compensatory provision of the Minnesota Act is to secure the widow, or dependent next of kin, of an employe who should meet an accidental death* while engaged in the line of his employment, a percentage income based upon their pecuniary loss, and the salary or compensation actually received by the em- ploye at the time of his death represents such loss.'' Under the pro- vision that partial dependents are entitled to "that proportion of the benefits provided for actual dependents which the average amount of the wages regularly contributed by the deceased * * * bore to the total income of the dependent" the monthly contributions of a workman to his mother should be considered as a part of her "total income," in determining the amount she is entitled to recover as a partial dependent.' A partially dependent sister of a deceased workman is entitled to the minimum ° weekly paytaent of $6 for 3.00 weeks,^" regardless of whether she inherited anything from the estate of the employe.^^ § 170. New Jersey Where the decedent leaves no widow, but leaves a mother or father actually dependent upon him, compensation should be com- 8 Matthiesen v. Pacific Gas & Electric Co., 1 Oal. I. A. C. Dec. 398. Ml^aws 1913, c. 467, §§ 8-34; Gen. St. 1913, §§ 820^-8230) State ex rel. Gaylord Farmers' Co-op. Creamery Ass'n v. District Court, 128 Minn. 486, 151 N. W. 182. 8 (Gen. St. 1913, § 8211, as amended by Laws 1915, c. 209) State ex rel. Hayden v. District Court (Minn.) 158 N. W. 792. » (Laws 1913, c. 467, § 14, subds. 13, 15, 17; Gen. St. 1913, § 8208). State ex rel. Globe Indemnity Co. v. District Court (Minn.) 156 N. W. 120. 10 (Gen. St. 1913, § 8208) State ex rel. Crookston Lumber Co. v. District Court, 131 Minn. 27, 154 N. W. 509. 11 Id. See I 78, ante. 64:3 COMPENSATION § ITl puted on the basis of 25 per cent, of his wages for the number of weeks fixed by statute, with due regard to the maximum and mini- mum amounts also fixed by the statute.^'' § 171. New York Under an express provision of the New York Act, the probable increase in a minor employe's wages may be considered, notwith- standing a provision that "all questions of dependency shall be de- termined as of the time of the accident." ^^ This Act places no lim- it on the number of payments that may be awarded to the depend- ents.^* A provision "for the support of grandchildren or brothers and sisters under the age of 18 if dependent upon the deceased at the time of the accident, 15 per cent, of such wages for the support of each person until the age of 18 years; and for the support of eaqh parent or grandparent of the deceased if dependent upon him at the time of the accident, 15 per cent, of such wages during such dependency," contemplates a separate award for each dependent, and hence the award of one dependent is not merged in the award of another legally chargeable with her support.^" 12 (P. L. 1911, p. 139, § 2, par. 12) Reardon v. Phila. & R. Ry. Co., 85 N. J. Law, 90, 88 Atl. 970 ; Quinlan v. Barber Asphalt Paving Co., 84 N. J. Law, 510, 87 Atl. 127; McFarland v. Central R. Co. of N. J., 84 N. J. Law, 435, 87 Atl. 144, 47 L. R. A. (N. S.) 279, Ann. Cas. 1915A, 1 ; Tlscliman v. Central R. Co. of N. J., 84 N. J. Law, 527, 87 Atl. 144. Coinpensation at the rate of 25 per cent, of the average weekly wages may be awarded to a father, who is an actual dependent upon a deceased son; the son, a minor, leaving a father and mother, five minor brothers, and four sisters surviving. Havey v. Erie R. Co., 88 N. J. Law, 684, 96 Atl. 995. 13 (Wk. Comp. Act, §§ 14, 16) Kilberg v. Vitch, 171 App. Div. 89, 156 N. X. Supp. 971. In awarding compensation to a dependent mother and sister of a deceased employe 16 years old, the Commission properly considered the probable in- crease of the employe's wages. (Wk. Comp. Act, Consol. Laws, c. 67, § 14). Id. 1* (Wk. Comp. Act, § 16, subd. 4) Walz v. Holbrook, Cabot & Rollins Corp., 170 App. Div. 6, 155 N. Y. Supp. 702. 15 Id. § 172 workmen's compensation 644 § 172. Washington The rule existing at the time of the passage of the Washington Act was that parents of a minor workman were not entitled to dam- ages for his death, even though actually dependent, their recovery- being limited to the lo^ of his services during minority. The com- pensation provided for by subdivision 3 of section 5 of the Act is therefore the exclusive compensation to be allowed for the death of an unmarried minor workman.^^ A widow is not entitled to ad- ditional compensation on account of the adoption of a child sub- sequent to the death of her husband.^' A 19 year old employe's de- pendent mother is entitled to compensation while her dependent condition continues, not merely until decedent would have been 21 years old."-* § 173. Wisconsin The Wisconsin Act provides that, in case of permanent disability of an employe who is over 55 years of age, the specified compensa- tion shall be redflced by 5 per cent. ; in case he is over 60 years of age, by 10 per cent.; and in case he is over 65 years of age, by 15 per cent. In preceding subdivisions it is provided that in case of death of the employe a sum equal to the compensation specified for a permanent injury or disability shall be paid as a penalty to the surviving dependents. The term "permanent injury," as thus used, has its ordinary meaning, and cannot be extended to include injuries resulting in death, and hence in case of death there can be no re- duction for the advanced age of the employe.^* 16 (Wk. Oomp. Act Wash. § 5, subd. 3) Opinion Atty. Gen., Jan. 9, 1912. IT (Wk. Comp. Act Wash. § 5) Rulings Wash. Indus. Ins. Com. 1915, p. 16. 18 (Sess. Laws 1911, c. 74, § 5, subd. 3) Boyd v. Pratt, 72 Wash. 306, 130 Pac. 871. 19 (St. 1913, § 2394r— 9, subd. 5) City of Milwaukee v. Ritzow, 158 Wis. 376, 149 N. W. 480. While the point raised is not entirely free from diflSculty, it is considered that the terms "injury," "permanent injury," "disability," "permanent disability," and "permanently totally disabled" are descriptive of , 645 COMPENSATION § 174 Under this Act, where the deceased employe leaves no one wholly dependent upon him for support, but one or more persons partially dependent, the death benefit should be such percentage of four times the average annual earnings of the deceased employe as the average amount devoted by him to the support of the per- son so partially dependent bears to such average annual earnings."" "The amount devoted by the deceased * * * to the support of partial dependents" means, in the case of dependent parents, the amount received for themselves and for the support of minor chil- dren, including the deceased. In short, it is the amount contribut- ed to the support of the family."^ The "support" of a dependent means the shelter, food, clothes, etc., required to meet his daily necessities', and compensation is to be determined by the amount devoted by the employe to those purposes during the year preced- ing his death."^ § 174. Federal Act The amount of compensation payable to a dependent parent un- der the original federal Act is equivalent to the full pay of the de- ceased for the balance of the year following the latter's death, though the parent had not been wholly dependent upon him, or had received, before the injury, only a share of his wages."* a class of events creating a right to compensation to the injured one, and that the injury resulting proximately or otherwise, or followed by death, covered by subdivisions 3 and 4, constitute a separate and distinct class of events, where the compensation goes to the dependents, and that it Is to the former only that the words "the compensation herein shall be reduced," etc., applies. Id. 20 Dougherty v. State of Wisconsin, Bui. Wis. Indus. Com. vol. 1, p. 99. 21 Damrau v. Kuetemeyer, Eep. Wis. Indus. Com. 1914-15, p. 19. 22 Dougherty v. State of Wisconsin, Bui. Wis. Indus. Com. vol. 1, p. 99. 28 In re Noriega, Op. Sol. Dept. of L. 378. § 175 workmen's compensation 646 ARTICLE IV r PAYMENT, RELEASE, AJND RELATED MATTERS Section 175. Time, commencement, and continuation of payments. 176. Original federal Act. 177. Waiting period. 17S. Original federal Act. 179. Lump sum payments. 180. Amount. 181. Deductions from award or settlement. 182. Deduction . of payments made. 183. Deduction for interest. 184. Increased and reduced compensation. 185. Restriction of employe's rights in insurance contract. 186. Pensions. 187. Change, suspension, and termination of compensation. 188. CaUfornia. 189. Release. 190. Contracting out. 191. Assignment of compensation rights. 192. Apportionment. § 175. Time, commencement, and continuation of payments Where disabilities are temporary, or where they are total and permanent, the New Jersey Act directs that compensation be paid for the period of disability. Where the disability is partial, but per- manent, the statute omits that direction, because in many cases the amount cannot be ascertained, except by judgment of the court, and there is no statutory authority for giving that judgment a retroactive effect.^* Where an award of compensation for 200 weeks is made, and later it is determined that the disability is to- tal and permanent, and an additional award of compensation for 200 weeks is made, to make the 400 weeks authorized by this Act, the 2* (P. L. 1911, p. 137, § 2, par. 11, subds. a, b, c) Banister Co. v. Kriger (N. J. Sup.) 89 Atl. 923, denying rehearing in the case reported in 84 N. J. Law, 30, 85 Atl. 1027. 64T COMPENSATION § 176 second 200 payments should not begin until the expiration of the first 200 payments.*" Two awards, one under the schedule and one not, ordinarily run consecutively and not concurrently.*" There is no provision in the Iowa Act which permits, employers to make payments otherwise than weekly, unless an arrangement is made for the payment in a lump sum.*' § 176. Original federal Act The year for which compensation is payable begins to run on the day following the date of the injury and terminates with the anni- versary of the day of injury."* The date of the injury is the date on which the injury results in incapacity for work.*" So long as the injury continues the employe is entitled to his status at the time of the injury, and must be paid compensation as if he continued to be employed,*" even though the work on which he was employed has been stopped or suspended before he is able to resume work; '^ but he is entitled to compensation no longer than his incapacity is due 2B Diskon v. Bu^b, 88 N. J. Law, 513, 96 Atl. 660. 28 In Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433, It was held that com- pensation for the loss of an eye under the schedule and compensation for in- capacity due to injury to the other does not run concurrently, but consecu- tively. In Kaiser v. Pinney, 1 Conn. Comp. Dec. 562, where the claimant was found entitled to compensation under the schedule for loss of hearing, and also for total Incapacity, as a result of being struck on the head by a piece of timber, causing Meniere's disease, it was held that the double compensation should run consecutively, and not concurrently. As to separate awards xmder the schedule, see § 165, ante. 2 7 (Code Supp. 1913, § 247Tml4) Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 34. 28 In re Kelly, Op. Sol. Dept. of L. 337. The compensation year begins to run from the exact time when the wage earnings cease. In re Robinson, Op. Sol. Dept. of li. 386. 29 In re Bowen, Op. Sol. Dept. of I.. 340. 30 In re Huff (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 568 ; (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 786. 81 In re McCrae, Op. Sol. Dept. of L. 375. § 176 workmen's compensation 648 to his original injury, and may not be paid because, on account of old age or other bodily infirmity, he is unable to resume work with- in the year.^^ The payment of compensation provided for contem- plates a continuing liability, and even in case of death that the payments will be made as they would have accrued.^' Where the period of incapacity qpvers more than one fiscal year, payment should only be made for the time of incapacity during each fiscal year from the appropriation for that year. A temporary employe, who is injured and whose incapacity continues beyond his term of appointment, is entitled to pay during incapacity, regardless of the termination of the employment.'* Ability to resume the regular work of the injured person's employment appearing, compensation ceases under the Act, though the employe remains seriously and permanently injured.*' Ability to resume work means inability to resume the regular work of the injured person's employment in the 82 In re Blackhurst, Op. Sol. Dept. of L. 690. To entitle an employs to con- tinued compensation, the disability must be due in an appreciable measure to the original Injury. In re McAllister, Op. Sol. Dept. of L. 680. A workman was struck, in the eye by a piece of steel, causing the loss of the eye. The injury, while permanent, was stated by the United States hos- pital service physician to have no bearing on the physical condition. He was held entitled to compensation only for the time he was physically in- capacitated by the injury. In re Holden, Op. Sol. Dept. of L. 268. In this case the superior officer of the claimant recommended that he be paid only for a certain nmnber of days, but gave no satisfactory reason for his recom- mendation. As the medical evidence appeared to substantiate the conten- tion of the claimant, it was decided that a claim was established. In re Smith, Op. Sol. Dept. of L. 745. The hospital surgeon reported that the in- jury should not have caused incapacity for more than 15 days, while the at- tending physician certified to incapacity for a longer period. In view of all the circumstances, the claim was allowed. In re Williamson, Op. Sol. Dept. of L. 750. S3 In re HufC (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 568. 3* (Dec. Comp. of Treas.) Op. Sol. Dept. of L. 794. Where the period of in- capacity covers more than one fiscal year payment should only be made for the time of incapacity, regardless of the termination of the employment. (Dec. Comp. of Treas.) Op. Sol. Dept. of E. 795. SB In re Carroll, Op. Sol. Dept. of I* 367. 649 caMPffiNSATioN § 176 course of which the injury was sustained, not any work he may be able to do notwithstanding the injury.'' Hence, inability to resume regular work of the employment appearing, compensation is pay- able, though the claimant is discharged and obtains other employ- ment of a diiferent character.'^ However, where an injured em- ploye, though unable to return to his regulaf work, returns to work of a different character, and receives the same pay as if his duties remained unchanged, compensation under the Act ceases ; his right to compensation is merged in his right to receive pay for his serv- ices.'* Ability to resume work at a given date cannot be predicated on the fact that an injured person refused to submit to an opera- tion, and therefore, according to medical opinion, delayed recov- ery.'° When delay in returning to work is not chargeable to the claimant, but to some rule or regulation of the establishment where he is employed, loss of time occasioned thereby is an incident of the injury, and the claimant is entitled to pay therefor.*" The time consumed by an injured workman in returning from the place where he was treated for the injury may be considered a part of the inca- pacity period, where it was necessary to go to such place for treat- ment because of the lack of facilities at a nearer point.* ^ The compensation period includes all regular working days, exclusive of Sundays and legal holidays.*^ 36 In re Query of Naval Constructor of Boston Navy Yard, Op. Sol. Dept. of L. 345. Claimant was advised by the government physician who treated the injury to perform light work in the way of exercise, but this did not disentitle him to compensation, which was payable untU he was able to resume his regular duties. In re Richerson, Op. Sol. Dept. of L. 775. 37 In re Hill, Op. Sol. Dept. of I>. 369. 38 In re Manaloc, Op. Sol. Dept. of D. 383. 89 In re Passus, Op. Sol. Dept. of L. 371. 40 In re Winn, Op. Sol. Dept. of L. 389. *i In re Cernich, Op. Sol. Dept. of L. 539 ; In re Bailey, Op. Sol. Dept. of L. 297. *2 In re Welssenbom, Op. Sol. Dept. of I* 388. § 177 workmen's compensation 650 § 177. Waiting period As a rule, compensation is not payable unless the resulting dis- ability lasts longer than two weeks,*' or ten days.** The provision of the New Jersey Act that "no compensation shall be allowed for the first two weeks after injury received, except as provided by paragraph 14, nof in an^ case unless the employer has actual knowl- edge of the injury or is notified thereof within the period specified in paragraph 15," does not reduce the compensation for loss of a phalange from an allowance for 35 weeks to an allowance for 33 weeks. It is probable that the intent of this section was to ex- clude allowance of compensation in the case of a temporary dis- ability lasting less than two weeks, except for medical and hos- pital services and medicines.*' This section must be read in connec- tion with the section relating to the furnishing of medical attention and medicine, and be confined to cases where death does not oc- cur. Where the workman is killed instantly, the provision for hold- ing up the compensation for two weeks does not apply.*' Under the California Act, where an injured employe returns to work with- in two weeks after an accident at the same wages that he was re- ceiving before his injury, no temporary total or partial disabiiity compensation can be awarded, even though he has not entirely recovered. Compensation is awarded only for loss of earnings due to accidental injury, and hot for pain and suffering unaccompanied 13 Armiger v. Townsend-Davis Baking Co., 1 Cal. I. A. O. Dec. 55 ; Tur- geon V. Fox Co., 1 Cal. I. A. C. Dec. 68 ; Lough v. Standard OU Co., 1 Cal. I. A. C. Dec. 41; KagarofE v. Southern California Gas Co., 1 Cal. I. A. O. Dec. 43. 44 In Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433, it was held that the loss of a member compensable under the schedule is a presumed incapacity, and that the waiting period applies to such Injuries, under a provision that, if Incapacity extends beyond a period of ten days, compensation shall begin on the eleventh day. (Wk. Comp. Act, pt. B, § 8, as amended by Laws 1915, c. 288, § 4.) 45 James A. Banister Co. v. Kriger, 84 N. J. Law, 30, 85 AtL 1027. 46 Conners v. PubUc Service Electric Co. (N. J. Sup. 1916) 97 Atl. 792. '651 COMPENSATION § 17S by loss of earnings beyond the two weeks' waiting period.*^ But where an employer elects to pay compensation for any portion of the period of disability, without deducting for the waiting period of the first fifteen days, the injured employe will not be forced to refund the indemnity paid for such waiting period, nor will the employer be credited therewith on the award.** 178. Original federal Act Although the nature of the injury and the physician's certifi- cate indicate clearly that the incapacity will continue more than fifteen days, the Secretary is not justified in approving a claim which fails to show affirmatively that incapacity continued for more than that period.*" When the days of incapacity, whether consecutive or in broken periods, amount to more than fifteen, ■counting intervening Sundays and holidays,, the law entitles the employe to compensation.^" The day on which the injury occur- red should be included in determining whether duration of inca- pacity existed for more than fifteen days."^ An employe who is so injured that he can never resume the work on which he was en- .gaged at the time of the injury, but. who, after fourteen days of incapacity, is able to resume work by accepting an assignment to a. character of work with which his injury does not materially in- terfere, and who does so resume work, may receive compensation for the time lost, even though it may not amount to more than fifteen days.^'' Where there is a conflict of opinion between the *T Ely V. Maryland Casualty Co., 1 Cal. I. A. C. Dec. 335. 48 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991. *» In re Dray, Op. Sol. Dept. of L. 540. BO In re Wells, Op. Sol. Dept. of L. 515. Bi In re Taylor, Op. Sol. Dept. of L. 542. An Injury continues for "more than" fifteen days if the period of disability lasts for fifteen full days in addition to the day of Injury ; the day of injury cannot be disregarded with- out extending the period limited to sixteen days^ In re Fogg, Op. Sol. Dept. of L. 509. B2 In re Davis, Op. Sol. Dept. of L. 516. § 179 workmen's compensation 652" government surgeon and the attending physician as to the ability of the claimant to return to work, and the record sustains the views of the attending physician, the claimant cannot be forced to lose his- right to compensation by being compelled by decision of the gov- ernment surgeon to resume his work before the fifteen-day period expires.^* An employenvho is physically able to resume work with- in fifteen days after the injury, but who is prevented from actually resuming work until eighteen days thereafter because of holidays or lack of work, is not entitled to compensation."* Any doubt as to whether the injury continued more than fifteen days should be re- solved in the claimant's favor."" § 179. Lump sum payments From an investigation of the Workmen's Comp'ensation Acts in the various countries and states, it appears that almost without ex- ception provision is made for commutation of payments to a lump sum. In some jurisdictions the lump surii payment may be made by agreement, but in' the majority the question whether it shall be permitted is left to the determination of an administrative board or to the judgment of a court. In some states it can be made by the tribunal on the application of either party; in some the matter is 6 8 In re Tyrrell, Op. Sol. Dept. of L. 546. f * In re Avery, Op. Sol. Dept.^of L. 517. B6 The government physician certified that he had treated an Injury daily for a period of more than fifteen days, but that the injury received did not show sufficient' external evidence of violence to lead to the belief that it would cause incapacity for more than fifteen days. As claimant made affidavit that he was unable to resume work for the same period that the government physician treated the injury. It was held that the preponderance of the evi- dence established a claim for compensation. In re Smith, Op. Sol. Dept. of L. 541. When claimant's actual incapacity, due to the injury from shock re- ceived at the time of the accident and developing later, continued beyond the period of disability (less than fifteen days) covered by a report of the yard surgeon, and about which condition there was a difference of opinion between the yard surgeon and the attending physician, the doubt should be determined in the claimant's favor. In re Coleman, Op. Sol. Dept. of L. 544. » '653 COMPENSATION § 179 within the discretion of the court or Commission, with or without the consent of either party; in some states six months must ex- pire before the agreement or the application to the court may be made. The manner in which the lump sum is to be arrived at or must be computed is also fixed in some states, while in others it is left to agreement, subject to approval by the court. The theory of legislation authorizing commutation of payments to a lump sum is that cases will arise in which the employe's condition will be so :marked that there will be little reason to anticipate improvement in earning capacity, and that the circumstances will warrant al- lowing a lump sum available at once, rather than periodical pay- ments.°* A discretion vested in the court relative to the method of pay- ment must be exercised in conformity with the spirit of the law and so as to best promote the ends of justice. One method must not be chosen in preference to another arbitrarily, or merely to •suit the convenience or lessen the labors of the judge, but he should consider the circumstances, and apply that method which will most effectually promote the welfare of the parties.'' When Tie exercises his judgme.^t and discretion as to the best method of making compensation in the light of all the facts, the result will not be disturbed on appeal, except for an abuse of the discretion.^' 56 Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413; McCracken v. Missouri Valley Bridge & Iron Co., 96 Kan. 353, 150 Pac. 832; Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244. 87 Ackerson v. National Zinc Co., 96 Kan. 781, 153 Pac. 530. 68 Gorrell v. BatteUe, 93 Kan. 370, 144 Pac. 244; Ackerson v. National Zinc -Co., supra. An award of compensation in a lump sum will not be disturbed, in the absence of abuse of discretion. Muenzenmayer v. Hood, 97 Kan. 565, 155 Pac. •917 ; GorreU v. Battelle, supra ; Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251; Roberts v. Packing Co., 95 Kan. 728, 149 Pac. 413; McCracken T. Bridge Co., 96 Kan. 353, 150 Pac. 832. An award of compensation in a lump sum for partial disability for a maxi- mum period allowed by the statute will not be disturbed, where it appears authorized by the facts. Gorrell v. Battele, supra. § 1T9 workmen's compensation 654 A statement by the court in a Kansas case, in response to a sug- gestion that as long as the employer was not in default no action to recover could be brought, that "that theory would shut a man out from his right to recover a lump sum and would not give him any discretion," did not show that the court failed to exercise its discretion in the matter of periodical payment or lump sum judg- ment."* Commutation, being a departure from the normal method of payment, is to be allowed only when it clearly appears that the con- dition of the beneficiaries warrants such departure,*" but there o» Girten v. National Zinc Co. (Kan.) 158 Pac. 33. 60 Bailey v. U. S. Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237. The law should be administered with due regard to the preservation of the means of support, and in ordinary cases the normal method should not be departed from. Id. The power of the insurance department to commute payments to a lump sum will, as a matter of policy, be seldom exercised, as in practically all cases it is obviously better for the beneficiaries to 'receive the sum to which they are entitled in installments at stated intervals, rather than in a lump sum. (Wk. Comp. Act Wash. § 7) Rulings Wash. Indus. Ins. Com. 1915, p. 18. The Commission will not require a defendant against its objections to pay compensation in a lump sum, except in cases of exceptional urgency. Wilson V. Gallegher, 1 Cal. I. A. C. Dec. 306. Lump sum settlements are not favored by the Commission, and will not be granted, except where necessary for the protection of the rights of the applicant, or unless extreme need be shown by him. One of the principal purposes of the Act is to prevent injured persons from becoming public charges, and it is for this reason that the Commission permits lump sum settlements only in relatively rare instances, and never if such lump sum settlement seems likely to be followed by an individual becom- ing a charge upon the state or any political subdivision of it. Bedinl v. North- western Pacific R. R. Co., 1 Cal. I. A. C. Dec. 312. Gormwutation denied. In Morgillo (alias Morgean) v. Westinghouse, Church, Kerr & Co., 1 Conn. Comp. Dec. 311, where claimant applied for a commuta- tion to a lump sum in order to allow him to return to his home in Italy, but It appeared that his thigh, which was broken by the accident, had formed a vicious union, causing pain and awkwardness, amounting to a deformity, which would be greatly decreased by an operation, and the employer was willing to provide such an operation free of charge, by a competent surgeon, it was held to be for the best interest of the parties that commutation be denied ; and on rehearing in this case, where the operation was considered advisable on account of the vicioua union, because under any stress it would be liable to 655 COMPENSATION § 179 should be no hesitancy in permitting such departure where the best interests of the parties demand it.'^ Where the employer is will- break again, after which the proposed operation woulcl be no longer possible, and it being improbable that if claimant returned to Italy (for which purpose he desired the commutation) he would be able to secure expert surgical treat- ment on account of the extraordinary demands made upon surgeons of that country by the war, commutation was again denied. In Fabbian v. O. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 305, where it was shown that only part of the compensation being paid periodically was needed for the support of the dependent minor son, but that if commutation were allowed a certain profit would be made on the rate of exchange in transmitting the money to Italy, where the dependent lived, the commissioner held such was not sufficient reason to justify commutation. In Oushner v. H. 0. Howe & Co., 1 Conn. Comp. Dec. 574, it was held commutation into a lump sum was neither just nor necessary, the only reason to justify a commutation being the necessity for an expensive operation, and it appearing that the claimant had sufficient funds in the bank to meet the expense of such operation. 81 Because the court exercises discretionary power in a matter peculiarly for its consideration, its action is practically final. Consequently it is to be expected that district courts will act cautiously and candidly, and not render lump sum judgments for any other reason than that the welfare of the parties requires it. Whenever such a judgment appears to be best under all the cir- cumstances, there should be no hesitation in pronouncing it. McCracken v. Missouri Valley Bridge & Iron Co., 96 Kan. 353, 150 Pac. 832.' Commutation granted. In Clarke v. Bigelow-Hartford Carpet Co., 1 Conn. Comp. Dec. 166, where the decedent left a widow and several dependent chil- dren, the death benefit was commuted to a lump sum In order that it might be applied on a mortgage on the home where the family lived. In Connecti- cut commutation is wholly in the discretion of the commissioner, regardless of the consent of the parties. In Catto v. G. Cudemo & Co., 1 Conn. Comp. Dec. 374, where it appeared that claimant had a brother and brother-in-law resid- ing in Italy, that if he could purchase a small place near, his wife and chil- dren, with such help as they might receive from said relatives, would be able to support the family, and that in these surroundings they would be much better situated, an agreement for commutation of the total disability pay- ments into a lump sum was approved by the commissioner. In Riley v. Walsh, 1 Conn. Comp. Dec. 505, where commutation to a lump sum was desired in order that the widow might lease and stock a small farm, she expecting to derive her support therefrom, and both parties requested the commutation, it was allowed. In Bucherri v. Hartford Rubber Works Co., 1 Conn. Comp. Dec. 622, it was held that in view of the claimant's natural desire to return to his home in Italy, of the decreased cost of living there, and the advantage § 179 workmen's compensation 656 ing to make the commutation, it will be authorized where con- venient to the applicant and he is shown to be competent to safely invest the proceeds without squandering them."^ Commutations to lump sums have been made in order to enable the employe to invest his compensation in a business of his own,°* to return to his of exchange rates, a commutation to a lump sum was just and reasonable, and an amount necessary to discharge claimant's indebtedness in this country and provide his transportation was advanced, and the remainder deposited in a bank agreed upon near his home, to his account. In Pumpanelli v. Aberthaw Construction Co., 1 Conn. Comp. Dec. 620, where the improvement of claim- ant's injured eye by operation was possible, but uncertain, and not one which he could be required to accept, and he desired a commutation to a lump sum for the purpose of returning to his wife and children in Italy, and the em- ployer joined in the request for commutation, it was granted. Where it ap- peared that the dependent father, residing in Italy, was in extremely straitened circumstances, the compensation payments were commuted to a lump sum, under section 17 of the Act. Brio v. Carpenter, Boxley & Herrick, The Bulletin, N. X., vol. 1, No. 5, p. 11. 6 2 Green v. County of Alameda, 2 Cal. I. A. C. Dec. 636; Wilson v. Gallegher, 1 Cal. I. A. C. Dec. 306. Where the widow, found entitled to a death benefit, asks for a lump sum settlement, and the evidence shows her to be possessed of business experience, economical, and thrifty, the owner of her own home, and thoroughly capable of handling money, and the defendant employer advises such commutation, such facts are sufficient to warrant an award of a lump sum settlement. Green v. County of Alameda, supra. Commutation of the weekly death bene- fit payments to a lump sum discounted at the statutory rate will be allowed, where the defendant is willing to pay a lump sum and the applicant desires the money to take her to her family in Texas and to purchase a house and small tract of land there to aid in her support. Owen v. Mahoney Bros., 1 Cal. I. A. C. Dec. 308. 83 The commutation of the weekly payments of the award to a lump sum was here allowed, where the employs was a man thirty-four years of age and desired the money in a lump sum to start a small grocery store in a com- munity where the chances of success were found by the Commission after investigation to be good. Kelly v. Snare & Triest Construction Co., 1 Cal. I. A. C. Dec. 471. But where an applicant who had sustained an injury entitling him to $2,557.44 requested, against the opposition of bis employer, a com- mutation to enable him to purchase a dairy herd for his milk business, such facts were an insufficient basis for commutation. Casson v. Northwestern Pacific Ry. Co., 2 Cal. I. A. O. Dec. 729. 657 COMPENSATION § 179 native land/* to discharge a mortgage on the dependent's home,"" and also where the employer was about to wind up its business 64 Where a stevedore, who had accidentally lost one of his eyes and was unable to follow his trade, requested commutation of his disability indemnity to enable him to return to Norway, where his parents resided in a home belonging to him, there to take up the business of a fisherman, and It appeared that he was an Industrious, temperate, and thrifty man, a commutation of the whole sum was made. Olsen v. Western Fuel Co., 2 Oal. I. A. O. Dee. 643. An employer will be allowed to settle his liability for compensation by the pay- ment of a lump sum, instead of In weekly payments, where the possibility of the workman's future improvement is uncertain, and the employfi wishes to return to his native country, provided that the sum be paid by the purchase of a ticket for transportation for him, and the balance upon his departure. Bedini v. Northwestern Pacific R. R. Co., 1 Cal. I. A.- C. Dee. 312. But where the only reason assigned by the applicant for the commutation of a permanent disability award is his desire to return to his native country to invest the balance there, such reason is insufficient to justify the Commission in order- ing that the amount of benefit made payable be discounted to a lump sum. Galante v. Mammoth Copper Mining Co. of Maine, 2 Cal. I. A. C. Dee. 732. 80 Except in cases of exceptional urgency, as to enable a widow of the de- ceased employ^ to discharge a mortgage upon the family home, the Com- mission will not require a defendant against its objections to pay compensa- tion in a lump sum. Wilson v. Gallegher, 1 Cal. I. A. C. Dec. 306. A com- mutation to a lump sum of a portion of the death benefit awarded to the mother of an employ^ will be allowed where it is to be used to discharge a mortgage upon her home. State Comp. Insur. Fund of the State of Cal. v. Jacobsen, 1 Cal. I. A. C. Dec. 311. The commutation of a portion of the award to a lump sum, with proper allowance for interest deductions in find- ing the present worth of future payments so commuted, wUl be allowed, where the amount is sought to enable the dependent to remove incumbrances on the family home, defray funeral expenses, and meet an unsecured note given by the deceased. Kennedy v. Guardian Casualty & Guaranty Co., 1 Cal. I. A. C. Dec. 152. But where an injured employg asks that the indem- nity awarded be commuted to a lump sum to enable him to purchase furni- ture for a rooming house and pay off a mortgage on property of his mother in Wisconsin, and there is no showing that it is necessary for the protec- tion of the applicant, or for his best interests, the request will be refused. Kruger v. Strehlow, Freese & Peterson, 2 Cal. I. A. O. Dec. 334. Where the widow Inherited from her husband a house heavily mortgaged, and also some insurance, and it appeared that if her compensation were commuted to a lump sum she could pay off the mortgage and so escape pay- ing interest, and a competent business man volunteered , to attend to the HoN.CoMP. — 42 § 179 workmen's compensation 658 and leave the state.'" Requests for commutation have been re- fused where the applicant was shown to be intemperate,"' and where he was suffering mental disability."^ The Nebraska Act leaves the question of how much shall be paid in a lump sum in ordinary cases to the agreement of interested par- ties, but in such serioift matters as death and permanent disability, where the interests of those dependent upon the workman may be involved, the question of whether it is for the best interests of the dependents to have the payments made periodically or to be made in a lump sum must be submitted to the district court, acting in a capacity somewhat analogous to that of a guardian or next friend of the dependents, for its approval or rejection. The object of this provision is to preserve the rights of persons often inexperienced in business matters and unable to protect themselves, and to deter- mine whether it is to their best interests to substitute a lump sum, which might easily be dissipated, for payments made in lieu of payment of the mortgage and assist her in safely investing the balance, without pay therefor, commutation was allowed. Zarling v. North Side Coal Co., Bnl. Wis. Indus. Com. 1912-13, p. 29. 6 8 Where a death benefit had been rendered against an employer who was not insured, and it was later shown that the employer was about to wind up its business and to leave the state, and the widow of the deceased employ^ was shown to be competent to handle the balance of the award due her, the balance was commuted in accordance with the provisions of the Act and made payable at once. Decounter v. United Greenwater Copper Co., 2 Cal. I. A. C. Dec. 700. 6 7 Where an injured employ^ asks that the indemnity awarded be com- muted to a lump sum to establish him In business, and it appears that he is intemperate and had been arrested for drunkenness even since his injury, and there are no unusual circumstances to justify commutation, his request will be refused. Olson v. Tice, 2 Cal. I. A. O. Dec. 333. 6 8 Where an employe was in a bad mental condition, suffering from some brain trouble which made him very dull and stupid, but the exact character of the disability was very uncertain, and the claimant was unable to show any advantage in a lump sum settlement, or that he was able to conserve a large sum of money, the awarding of a lump sum was inadvisable, and was denied. Oatterson v. County of Los Angeles, 2 Cal. I. A. O. Dec. 981. 659 COMPENSATION § 179 wages.*' There is no provision in this Act allowing either party to compel the employer to pay, or the workman or dependent to receive, a lump sum satisfaction.''" An agreement made by the parties subject to "consent" of the court is prerequisite.''^ Such agreement, if reasonable and made in good faith, is binding on the 09 Bailey v. U. S. Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237. 7 (Rev. St. 1913, § 3681) Bailey v. U. S. Fidelity & Guaranty Co., supra; Johansen v. Union Stockyards Co., 99 Neb. 328, 156 N. W. 511. The Employers' Liability Act allows the parties interested to "settle all matters of compensation between themselves" (Rev. St. 1913, § 3677). The amount of compensation, when not agreed upon by the parties, is to be de- termined by the district court (section 3680), and except as expressly provid- ed in the Act must be payable periodically (section 3666). Pierce v. Boyer- Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509. When the amount of compensation in periodical payments has been determined, either by agreement of the parties or by decision of the court, it "may be com- muted to one or more lump sum payments, except compensation due for death and permanent disability." (Rev. St. 1913, § 3681) Id. There is no requirement in the section of the statute which applies to residents of this country that six months must elapse before an agreement for a lump sum payment may be made, or the consent of the district court be procured to such an agreement. Bailey v. XJ. S. Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237. In such case no other or different authority for making such commutation is provided by that section. It still depends upon the agreement of the parties, except that their right to so agree in the specified cases depends upon "the consent of the district court." Id. 71 Although in general the agreement of the parties will authorize such commutation, in case of death or permanent disability, the consent of the court is also necessary. If the district court, upon careful investigation, finds that special circumstances exist, making it necessary to commute to a lump sum for the protection of the workman or his dependents, the court may "consent" to such agreement by the parties. Pierce v. Boyer-Van Ku- ran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509. 72 If an employer and the party to whom payment is to be made make a reasonable agreement in good faith for the payment of a lump sum, not in- consistent with the amount of the periodical payments previously determined, the agreement will bind an insurance company, which has assumed a risk under section 3688, Rev. St. 1913, equally with the employer. It has no greater rights than he has, and cannot block a settlement by objecting to payment in a lump sum merely because it was not consulted. Bailey v. U. § 179 workmen's compensation 660 The Nevada Industrial Commission, believing that the indis- criminate exercise of the authority conferred by section 31 of the Nevada Industrial Insurance Act, which provides that the Commis- sion may, in its discretion, allow the conversion of compensation provided for in this Act into a lump sum payment, under such rules, regulations, and system of computation as may be devised for ob- taining the present value of such compensation, would nullify the spirit and intent of the Act, announced by resolution that such authority, as a matter of policy, would be exercised only in ex- traordinary cases, as in practically all cases it is better for the beneficiaries to receive the award to which they are entitled in in- stallments at stated intervals, rather than in a lump sum.''* The New Jersey Act, as amended in 1913, not only fixes the rate and manner of computation, but indicates principles for the court's guidance in passing on an application for commutation. It pro- vides that: "In determining whether the commutation asked for will be for the best interest of the employe or the dependents of the deceased employe, or that it will avoid undue expense or undue hardship to either party, the judge of the court of common pleas will constantly bear in mind that it is the intention of this Act that the compensation payments are in lieu of wages, and are to be received by the injured employe or his dependents in the same manner in which wages are ordinarily paid. Therefore commuta- tion is a departure from the normal method of payment and is to be allowed only when it clearly appears that some unusual circum- stances warrant such a departure. Commutation shall not be al- lowed for the purpose of enabling the injured employe, or the de- S. Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237. "We find nothing in the statute to justify the claim that if the employer and the workman, or the dependent person to whom payment is due, agree upon a lump sum in lieu of the periodical payments, an insurance company has any right to ob- ject to the manner of payment agreed upon by the parties by the consent of the court." Id. ; Pierce v. Boyer-Van Kuran Lumber & CoaH Co., 99 Neb, 321, 156 N. W. 509. 78 Rep. Nev. Indus. Com. 1913-14, p. 24. 661 COMPENSATION § 180 pendents of a deceased employe, to satisfy a debt, or to make pay- ment to physicians, lawyers, or any other persons." ^* Before awarding a lump sum, the judge must determine what sum should be paid periodically, and should state the method by which he reached his result and the reasons which induced him to commute the periodical payments into a lump sum."* His decision shpuld be based on specific findings of fact supported by legal evidence.''" In Minnesota the matter of settlement is governed by sections 13 and 14 of the Act, but the question how and in what manner such settlement shall be paid is left with the parties to agree up- on. When a lump sum is agreed upon, it is final, and not subject to readjustment. Settlement means one thing, and payment of the amount settled upon another, and when the parties agree that the sum fixed shall be paid in lump, and that sum is in fact paid, the matter is concluded.''' The parties in controversy must agree to a lump sum award before the court has any right to commute the payments to a lump sum. The court cannot commute the pay- ments against the will of either party.''* § 180. Amount "Commute" indicates a lessening of the amount of payment.'* The amount to be awarded in a lump sum is ordinarily the pres- 1* P. ti. N. J. 1913, p. 309, § 2, par. 21. T5 (P. L. 1911, p. 134) Mockett v. Ashton, 84 N. J. I/aw, 452, 90 Atl. 127. The determination of the trial judge should set forth, in cases where weekly payments^ are to be commuted in a lump sum, the basis of award in amount per week and number of weeks; the commuted amount under paragraph 21 being expressly predicated on such finding. (Laws 1911, p. 142, § 2, par. 20) Iiong V. Bergen County Court of Common Pleas, 84 N. J. Law, 117, 86 Atl. 529. '6 (St. 1911, p. 143, § 2, par. 21) New York Shipbuilding Co. v. Buchanan, 84 N. J. Law, 543, 87 Atl. 86. 77 (Gen. Laws 1913, c. 467, § 22, subd. 1 ; Gen. St. 1913, § 8216) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 8. 78 State ex rel. Anseth v.- District Court (Minn.) 158 N. W. 713. 7 9 As used in a provision of the Ohio Act that a Board may commute peri- odical benefits to one or more lump sum payments, the word "commute" § 181 workmen's compensation 662 ent worth of that sum which would otherwise be payable.*" How- ever, in the absence of a statute authorizing deductions for interest, payment on a lump sum settlement must be for the full amount." § 181. Deductions from award or settlement In computing the sum payable, the rule is that regard must be had to any payment, allowance, or benefit received from the em- ployer, but not payment of debts or anything received otherwise than from the employer.^'' Deductions for previous overpayments means that tlie Board, may authorize the payment to the dependent of some- thing less than he would otherwise receive. (Wk. Comp. Act, § 40) State v. Indus. Com., 92 Ohio St. 434, 111 N. E. 299. so'Virjiere, on petition for payment of compensation In a lump sum, it ap- pears that it would be for the best interests of both parties that the pay- ment be thus made, the amount awarded in a lump sum should be the pres- ent worth of that sum to which the petitioner would be entitled under the Act. (Wk. Comp. Act 1912, Jones & A. Ann. St. 1913, par. 5449 et seq.) Staley v. Illinois Central K. R. Co., 186 111, App. 593. In commuting the peri- odical payments to a lump sum, it is error to multiply the weekly minimum by the prescribed number of weeks. Award must be made sufficient to re- duce the lump sum to the present value of the periodical payments. (P. L. 1911, p. 137, § 2, par. lie) James A. Banister Co. v. Kriger, 84 N. J. Law, 30, 85 Atl. 1027 (rehearing denied 89 Atl. 923). A lump sum settlement, made by taking the present value of the periodical payments computed at 5 per cent, simple Interest, is not error. Bailey v. U. S. Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237. 81 (Gen. Laws Minn. 1913, c. 467, § 25 ; Gen. St. 1913, § 8220). Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 9. 8 2 On application for compensation the judge must consider a lump sum of £10 paid under an agreement which he had refused to register. Horsman V. Glasgow Navigation Co., Ltd. (1910) 3 B. W. O. C. 27, C. A. The cost of maintaining an injured seaman In a hospital in port for fifteen weeks after his accident, which the employers were not required to do under the Mer- chant Shipping Act, must be regarded in fixing the amount of compensation. Kempson v. Owners of Moss Rose (1911) 4 B. W. C. C. 101, C. A. Payment by the employers of a biU for a workman's hospital maintenance and medi- cal treatment Is a. factor to be considered in assessing compensation. Sor- ensen v. Gate & Co. (1913) 6 B. W. C. C. 279, Ct. of Sess. Where employ- ers paid an injured workman considerably more than the amount of full 663 COMPENSATION § 181 have been held improper.*' But where a workman agrees to have his rent deducted from his weekly compensation, such deductions are proper.^* Awards for temporary disability or under a schedule for specific injuries cannot be deducted from awards for permanent disabil- compensation during nine months, and then in paying half wages failed to consider certain extras, and refused to correct their error, which they admit- ted, unless the amounts overpaid in the first nine months should be deducted, they were entitled to such reduction. Porter v. Whitbread & Co. (1914) 7 B. W. C. C. 205, O. A. The fact that a workman who was injured in the employ of a distress committee received poor relief of 10s. a week during his inability is not to be considered in assessing the compensation. Gilroy V. Mackie et al. (Leith Distress Committee), (1910) 2 B. W. 0. C. 269, Ct. of Sess. Where under the Merchant Shipping Act a seaman who is injured while the ship is at sea must be paid his wages until he can be discharged at a port, the eight days' wages paid the workman in this instance for the time between the accident and his discharge at port are not to be consid- ered in assessing compensation. McDermott v. Owners of S. S. "Tintoretto" (1911) 4 B. W. G. C. 123, H. U, and 2 B. W. C. C. 208, C. A. That the deceased workman was a member of the Duluth Firemen's Re- lief Association and that his dependents draw benefits therefrom does not bar recovery of compensation nor reduce the amount thereof. The firemen who join this association are held to have purchased its protection for the benefit of themselves and their families, and not for the benefit of their em- ployers. State ex rel. City of Duluth v. District Court (Minn.) 158 N. W. 791. 83 It was improper for a county court judge in assessing compensation to deduct overpayments previously received by the workman before arbitration. Flynn v. Burgess (1914) W. C. & Ins. Kep. 238, C. A. Where an employer paid compensation of 14s. 7d. per week under an agreement up until June, and then on review secured their reduction to 10s. beginning in February, he could not withhold present payments because of the previous overpay- ments. Hosegood.& Sons v. Wilson (1911) 4 B. W. C. C. 30, O. A. Where a judge, on review of compensation, found that in consequence of receiving fuU amount of compensation from August to October, whereas he should only have had part compensation from August to December, a workman had al- ready received more than he was legally entitled to, and therefore awarded no compensation for the remaining two months, he was in error in regarding the previous overpayments. Doyle v. Cork Steam Packet Co. (1912) 5 B. W. C. O. 350, C. A. 84 Brown V. South Eastern & Chatham By. Oo.'s Managing Committee (1910) 3 B. W. C. O. 428, O. A. § 181 woekmbn's compensation 664 ity.*" In view of the provision of the California Act that "liability for compensation shall not be reduced or affected by any insurance contribution or other benefit whatsoever due to or received by the person entitled to such compensation," a contribution received by an injured employe from his labor union during a strike, which occurs during his period of disability, cannot be deducted from the compensation due him.*' The California Commission has no au- thority to allow deductions to be made from the amount of an award for debts owed by the injured employe to the employer, where such debts do not arise out of the payment in advance or on account of compensation due for his injury.'^ In California an employer is allowed to deduct from the tempo- rary total disability indeninity due an injured employe the amounts earned by him while working elsewhere during the period for which such disability indemnity was payable,** but such deduction will SB Awards under Wk. Comp. Act Wash. § 5, subd. (3) (d) for a temporary period, paid monthly or otherwise, are not to be deducted from awards for dismemberment or "permanent partial disability" provided in subdivision (f). (Wk. Comp. Act Wash. § 16) Opinion Atty. Gen. Wash. Dec. 12, 1911. 8'e (Wk. Comp., etc., Act, § 34 [b]) Schebrosky v. Morrison & CyNeU, 1 Cal. I. A. C. Dec. 401. See § 78, ante. 8 7 Cason V. Star Laundry, 1 Cal. I. A. C. Dec. 485. The Industrial Acci- dent Commission is without jurisdiction or authority to allow a deduction to be made from compensation awarded an injured employe for debts claimed to be owed by him to his employer. The power of the Commission to make deductions from compensation due is expressly limited by section 29 (a) of the Act, and the cases enumerated therein do not include set-offs arising out of other transactions. Furthermore, to allow such set-off would require the Commissioner to sit as a court and determine liabilities arising from con- tract or perhaps tort, while its jurisdiction is expressly limited to cases aris- ing under the Compensation Act. Stormont v. Bakersfield Laundry Co., 1 Cal. I. A. C. Dec. 533. The amount of the award for compensation must be paid, without set-off of money owed by the employ^ to the employer, under section 29 (a) of the Act Manford v. Carstenbrook, 3 Cal. I. A. C. Dec. 21. 88 Harbart v. Bryson Etetate Co., 1 Cal. I. A. C. Dec. 515. While the fact that an employfi earning wages for a few days at a time, but suffering a re- lapse each time, is not inconsistent with the condition of temporary total disability, the employer or insurance carrier is entitled to have such earnings 665 COMPENSATION § 181 not be allowed from an award for permanent disability."' Under the New Jersey Act, that the workman worked for the employer for several years after the accident for the same wages as before does not entitle the employer, in the absence of an agreement that the wages shall be considered as compensation, to a deduction there- for from the award."" In Wisconsin, compensation may be allowed to a workman totally incapacitated from again following his oc- cupation, but able to engage in other employments, without any deduction for such amounts as he may be able to earn in the other employments.*^ In a recent case the court seemed to favor the op- posite holding, but considered itself bound by the terms of the Act. It said (opinion by Judge Barnes) : "This is a new statute con- taining a large number of provisions which deal with a new arid complex subject. It may well be that, if the I^egislature had in mind the concrete case with which we are dealing, it would have provided for such a contingency. It is not very probable that it was intended to give an employe who lost a thumb and finger of the left hand the same compensation that he would be entitled to deducted from the temporary total disability benefits payable by them. Co- lot V. Union Lumber Co., 1 Cal. I. A. C. Dec. 512. 89 Where an employs is awarded a permanent partial disability indemnity, and within three months after his injury returns to work at full wages, this fact does not entitle the employer to a deduction from the payments of compensation, since the benefits for permanent disability are not based upon immediate loss of earnings, but upon a sum necessary to recompense the in- jured employs for the physical loss for the rest of his life. Peterson v. Pel- lasco, 2 Cal. I. A. C. Dec. 199. Where an injured employs, awarded com- pensation for a permanent partial disability, before the period of weekly payments therefor has expired, returns to work with the same employer un- der full pay and performs full service, the employer is not entitled to have credited on the award of disability indemnity any part of the full pay given the employs for such service. Wray v. Panama-Pacific International Exposi- tion, 3 Cal. I. A. C. Dec. 6. 90 De Zeng Standard Co. v. Pressey, 86 N. J. Iaw, 469, 92 Atl. 278. 91 Mellen Lumber Co. v. Indus. Com., 154 Wis. 114, 142 N. W. 187, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997. § 182 workmen's compensation 666 receive had he been so maimed that he was totally incapacitated from doing any kind of work. If this is so, then it is apparent that the Legislature overlooked the contingency with which we are deal- ing, or it in fact has provided that the future earning capacity of the employe must be taken into account. The plain and obvious meaning of the language»used in the statute is generally the safest guide to follow in construing it. Seeking hidden meaning in vari- ance with the language used is a perilous undertaking, which is quite as apt to lead to an amendment of a law by judicial con- struction as it is to arrive at the actual thought in the legislative mind. Where a statute plainly says, as this one does, that the loss in case of partial disability shall consist of such percentage of the weekly earnings of the employe as shall fairly represent the proportionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the ac- cident, we fail to see how the court would be justified in adding thereto the following limitation; 'Less such sums as the em- ploye might be able to earn in some other calling.' " '* § 182. Deduction of payments made Payments on account of compensation, made by the employer before the hearing, may be deducted from the amount of the award made against him at the hearing.'* Where compensation under the 82 Id. 98 After an injury, which entitled a workman to an award of $5 a week, he went back to work and was paid $10 a week, although he did not earn that amount. Upon proceedings under the Workmen's Compensation Act the judge credited the employer with $5 a week for 39 out of 41 weeks for which they had paid. It was held that there was no error, as it was a fair pre- sumption that the payments were made in discharge of the legal liability, so far as there was such liability, and that payments in excess of that liability were either compensation for labor or were a benevolence. (P. L. 1913, p. 312) Blackford v. Green, 87 N. J. Law, 359, 94 Atl. 401. Where irregular or advance payments are made by an employer to an in- jured employe on compensation which may later be awarded, the employer is allowed to have such payments credited upon an award against him, pro- 667 COMPENSATION § 182 schedule is in lieu of all other compensation, and a claimant has al- ready received compensation allowed for temporary total disability before it becomes known that the sight of his eye is completely de- stroyed, this amount is to be deducted from compensation provided by the schedule."* Money advanced to the decedent as unearned wages may be deducted from compensation due him, but not from benefits due to the widow on account of her dependency, or for burial expense ; the rights of the widow being separate and distinct from those of the workman."'' No deduction can be made for medical services furnished by the employer beyond the period required by statute.'* In death cases, where employers make advances that are absolutely needed and necessary to the injured employes, and no serious question is raised concerning the correctness of same, the Illinois Board will allow credit for them.*^ Under the Califor- Vided that no serious harm has been done the employ^ because of the irregu- larity of the payments. Unless money be paid as part payment on account of compensation, it cannot be credited to the employer, as the Act contains no provisions authorizing the Commission to adjust a set-off or counterclaim. Johnson v. Cluett Peabody Co., 2 Cal. I. A. C. Dec. 7. Where an employer by mistake secures a simple accident Insurance policy upon an employs, in- stead of an employer's compensation liability policy, and the employ^ is in- jured, and payments are made to him by the insurance company in accord- ance with the policy, the employer is entitled to have credited to himself the amount paid, upon the theory that the payments made by the insurance com- pany were in reality payments procured to be made by him upon account of liability for compensation. Mecartea v. Marsh, 2 Cal. I. A. 0. Dec. 128. Where during the first five weeks of total disability following the injury the applicant received full wages from his employer, and during the next six weeks of total disability received more than 65 per cent, of his earnings, the full sum paid should not be treated as 100 per cent, compensation during the five weeks, but the whole sum paid should be credited in full on whatever sum was awarded to the applicant. Hamirez v. Binkley & Wayne, 3 Cal. I. A. C. Dec. 33. 9* Kreppel v. Boy land, 2 N. X. St. Dep. Eep. 489. 95 Hackney v. City of New Britain School Board, 1 Conn. Comp. Dec. 160. 96 Mahoney v. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292. 97 Kediger v. Pekin Wagon Co., Bulletin No. 1, 111., p. 146. § 183 workmen's compensation 668 nia Act, where an employe, so disabled that his service is of little value, is kept at work on full pay, instead of being paid indemnity, the Commission will hold such pay to be compensation, and no part of it to be wages, since the law does not contemplate satisfying its compensation provisions by payment of wages; instead of com- pensation."* But whe^e he permits the injured employe to re- main in living quarters formerly furnished her, but later furnished to her sister, also an employe, and as a part of the sister's contract of employment, the value of such quarters cannot be deducted as a part payment of the compensation due the injured employe."* Nor where money is paid by an employer to his employe, after an injury sustained by the latter, as a pure gift, and not as a part payment on liability to be later determined, can the employer sub- sequently change his mind and claim a pecuniary benefit for what was at the time intended as an act of generosity or charity. Such payments cannot be credited upon compensation later awarded.* § 183. Deduction for interest The Minnesota Act provides that an employer may deposit with "any savings bank or trust company of the state to be approved and designated by the court," "a sum equal to the present value of all future installments of compensation calculated on a 6 per cent, basis," and that "such sum, together with all interest thereon," shall thereafter be held in trust for the employe or his dependents, and "payments from said fund shall be made by the trustee in the same amounts and at the same time as are herein required of the 98 Turner v. City of Santa Cruz, 2 Cal. I. A. C. Dec. 991. Where an em- ployer elects to pay 100 per cent, compensation, Instead of 65 per cent, pro- vided by the Act, the employ^ will not be required to refund any portion of Indemnity so paid, and the employer will be credited only for the number of payments he has made, and not with the amount thereof in money. Id. 89 Fowler v. Zellerbach-Levison Co., 1 Cal. I. A. C. Dec. 609. 1 Johnson v. Oluett Peabody Co., 2 Cal. I. A. C. Dec. 7. ^69 COMPENSATION § 184 employer until such fund and interest shall be exhausted." " Under this provision, where employer and employe agree upon the amount of compensation to be paid, and the court grants permission to the employer to pay the amount to the trustee, the employer may deduct 6 per cent, on all deferred payments.' § 184. Increased and reduced compensation The Massachusetts Act provides that, "if the employe is injured by reason of the serious and willful misconduct of a subscriber or of any person regularly intrusted with and exercising the powers of superintendence, the amounts of compensation * * * shall be doubled." * Under this provision it has been held that serious and willful misconduct on the part of the eniployer is not estab- lished by failure to provide safety devices," by poor working condi- tions permitted by him,* by failure to supply a foreman,' or prop- I 2 Minn. Wk. Comp. Act, Gen. Laws 1913, c. 467, § 28 (Gen. St. 1913, § 8223). 3 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 15. * Mass. Wk. Comp. Act, § 3, pt. II. 8 An employer neglected to provide a "skid" on the right-hand side of the staging, and by reason of this reglect the employ^ was fatally injured. This was not serious and willful misconduct on the part of the employer. Ker- rigaji V. Employers' Liab. Assur. Corp., Ltd., 2 Mass. Wk. Oomp. Cases, 360 (decision of Com. of Arb.). 6 The employ^ claimed double compensation because of the failure of an inexperienced workman to properly repair an elevator which he was re- quired to operate. Because of the poor manner in which the elevator was repaired, it broke loose from the wire cable which supported it, falling with 7 The employ^, with other men, had. been ordered to take down a staging section by section, and had been instructed by the employer to be very care- ful about the manner in which it was taken down. The staging was removed by the workmen, under general orders from the employer, but without proper supervision by him or any other person vested with authority to supervise, and after the work had proceeded for about an hour and a half the structure fell. The employ^ was not entitled to double compensation. Holland v. Fi- delity & Deposit Co. of Md., 2 Mass. Wk. Comp. Oases, 308 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). § 184 workmen's compensation 670 er tools,* or sufficient workmen, where their presence would not have prevented the accident ; " nor is such misconduct shown by the exercise of poor judgment on the part of a foreman.^" The him ia it from the second to the first floor of the building. It was held that the employ^ was not entitled to double compensation. Jacques v. Travelers' Insur. Co., 2 Mass. Wk. Comp. Cases, 478 (decision of Com. of Arb.). The employ^ claimed that his personal injury was due to the condition of the saw which he was using. Two feUow employes testified, however, that the injury happened because the claimant reached over the saw to remove a stick which had become wedged, and cut his thumb thereby. He could have shut off the power and removed the obstruction without danger of injury. It was held that the injury was not caused by the serious and willful mis- conduct of the employer. Mikonis v. Koyal Indemnity Co., 2 Mass. Wk. Comp. Cases, 384 (decision of Com. of Arb.). 8 The employ^ received a fatal injury while working in the pole yard of the subscriber, his head being crushed. It was claimed that the pole which caused his death would not have rolled over, but for the inability of the em- ploye's fellow workmen to hold it, because of the inefficient cant hooks sup- plied and their inexperience. The evidence showed that all of the men on the job had been employed for a period adequate to become familiar with the work which they were required to do, and had been instructed by the superintendent and foreman the proper manner in which to perform this work. The cant hooks were not in good repair, and a new supply of hooks had been ordered by the subscriber. The Committee held that the widow was not entitled to double compensation. Tobin v. Mtnst Life Insur. Co., 2 Mass. Wk. Comp. Cases, 612 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). 9 The employ^ claimed that the failure of the subscriber to provide a "tag man," whose sole duty should be to signal the engineer when to start and stop the engine, was serious and willful misconduct. The foreman acted as "tag man" when the necessity arose, and the engine was not in operation at the time of the accident. Therefore the presence of an employe, whose sole duty was to act as "tag man," would not have prevented the Injury, and the employ^ was not entitled to double compensation. Marshall v. U. S. Fidelity & Guaranty Co., 2 Mass. Wk. Comp. Cases, 119 (decision of Com. of Arb.). 10 The employ^ claimed serious and willful misconduct of the subscriber through a person exercising superintendence — a foreman. The evidence showed that the injury was not due to the serious and willful misconduct of the foreman, the latter's act in ordering the employ^ to resume the work of digging out a blast hole being neither willful nor deliberate. It could not be said that the foreman had any idea serious consequences would result 671 COMPENSATION § 184 breaking of a wire rope, allowing a heavy heater coil to fall upon the workman, has been held not to show serious and willful mis- conduct of the employer.^^ Under a provision of the Wisconsin Act that, in case the in- jury is caused by the failure of the employer to comply with any lawful order of the Commission, the compensation awarded shall be increased 15 per cent., where the injury to the muscles and lig- aments of the workman's arm was sustained by coming in contact with set screws on a line shaft, which were there contrary to an order of the Commission, the compensation award was so in- creased; ^^ likewise where the injury was due to a violation of an order requiring guards in front of the feed rolls on an ironer, to prevent the workman's hands being drawn into the rolls. '^^ Where from the carrying out of his instructions. The blast had been carefully in- spected immediately after the explosion by a party of five, Including the fore- man, one of the employers, and the employ^, and as a result of this inspec- tion the two former were satisfied that there had been a perfect explosion in each of the blast holes. The employ^ was not entitled to double compen- sation. Revita v. Eoyal Indemnity Co., 2 Mass. Wk. Comp. Cases, 352 (de- cision of Com. of Arb., affirmed by Indus. Ace. Bd.). The employe claimed that his injury was due to the serious and willful misconduct of a person exer- cising superintendence. The evidence showed, however, that the belt had not broken frequently, as claimed by him, and that it was not defective, but was made of good material. The employ^ was held not entitled to double compensation. OUveira v. .^tna Life Insur. Co., 2 Mass. Wk. Comp. Oases, 517 (decision of Com. of Arb.). 11 The employ 6 was instructed by his foreman to block a car In the test- ing room about 400 feet from the scene of the fatality, but during the ab- sence of the foreman voluntarily left his work to assist other workman in loading a heavy heater coil on a flat car. While he was helping the wire rope which held the heater coil broke, and the coll fell upon and fatally injured him. A claim for double compensation, on the ground that the injury oc- curred by reason of the serious and willful misconduct of the employer, was filed by the widow, but was dismissed. Malewickl v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 366 (decision of Com. of Arb.). 12 (Wk. Comp. Act Wis. § 2394^-9 [5] a) Hickox v. Beloit Concrete Co., Rep. Wis. Indus. Com. 1914^15, p. 37. 13 Higgins V. Hanover & Butler, Rep., Wis. Indus. Cpm. 1914-15, p. 37. § 185 workmen's compensation 672 the accident was caused by the employe's willful failure to use a safety device provided by his employer, and by his willful failure to obey a reasonable rule regarding the use of a safety device, name- ly, an insulated tool, compensation was reduced IS per cent.^* § 185. Restriction of ftnploye's rights in insurance contract It is contrary to the policy of the Minnesota Act to permit the employer and the insurance company to make any collateral agree- ment which will impair or abridge the employe's right to recover direct from the insurance company (where the circumstances are such as authorize the employe to proceed directly against the in- surance company) the full benefits provided for in part 2 of the Act, including reimbursement for medical, surgical, and hospital services, which should have been, but were not, seasonably fur- nished by the employer. The Legislature can properly regulate the terms of the contract which the employer and the insurance company may enter into, ^nd has done so by requiring that, in so far as policies are issued, they shall provide for compensation ac- cording the full benefits of part 2. Since the parties to such an insurance contract are bound to enter into the contract specified in the statute, if at all, they cannot indirectly and secretly enter into a contract which nullifies or abridges the contract which the statute requires them to make, nor can they in any way limit the rights of the employes thereunder. What cannot be done direct- ly cannot be done indirectly and secretly.^" While this Act does not attempt to regulate the premium which the insured shall pay for his insurance, it does prescribe the contract which shall be made, if any is made, and the insurance company cannot diminish the obligation which the law says shall be assumed.'-' 1* Busek V. Wisconsin Gas & Electric Co., Kep. Wis. Indus. Com. 1914r-15, p. 38. 10 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 14. 18 Id. The insurer cannot limit its liability under either parts 1 or 2 of the Act, but must assume the full obligations imposed upon the employer by 673 COMPENSATION § 187 § 186. Pensions Under the Washington Act, if part of a reserve is converted into a lump sum, the pension is to be reduced proportionately.^'^ When total disability is probable, monthly allowances, not a lump sum, will be paid.^^ When a workman makes a statement that he has a a wife, or a wife and children under the age of sixteen years, but is living apart from them, the Commission requires an affidavit from the workman to show that he is contributing to their support. In the absence of satisfactory proof of this fact, his compensation is rated on the basis of an unmarried inan.^® Pension warrants will be mailed direct to the foreign address of a dependent residing abroad.^* § 187. Change, suspension, and termination of compensation The Workmen's Compensation Acts, in so far as they relate to payments to the employe, speak in terms of disability. When the period of disability ceases, compensation ceases.^ ^ The right to the provisions of the Act In other words, the liability of the insurer cannot be limited to certain specified amounts, as was formerly the practice in writ- ing employers' liability insurance. It follows that policies of insurance are not valid which eliminate the medical attention feature specified in section 18 of the Act. (Gen. Laws 1913, c. 467, § 18; Gen. St. 1913, § 8212) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 13. 17 (Wk. Comp. Act Wash. § 7) Rulings Wash. Indus. Ins. Com. 1915, p. 18. 18 (Wk. Comp. Act Wash. § 5, subd. [3] [d]) Id. p. 17. 19 (Wk. Comp. Act Wash. § 3) Id. p. 5. 20 (Wk. Comp. Act Wash. § 3) Id. p. 6. 21 "The statute speaks in terms of disability. All of its provision being considered, it does not mean that compensation must be paid during a period , of actual disability, and also, if a member is lost, during a period equal to the one during which total disability is deemed to continue. It does not provide a specific indemnity for the loss of a member in addition to com- pensation for disability. The aim of the statute Is to afford compensation if the employ^ is disabled. When the period of disability ends, compensation HON.COMP. — i3 § 187 workmen's compensation 674 compensation for incapacity being peculiar to the employe himself, ceases at his death ; ^^ but where the employe dies before such com- pensation is paid, leaving no dependents, the claim for unpaid com- pensation usually becomes a part of the assets of his estate.^' How- ever, under the express provision of the Illinois Act, a claim for un- paid compensation previously awarded abates upon the d'eath of ceases. Limron v. Blair, 181 Mich. 76, 147 N. W. 546 ; Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244. In Tatta v. Capitol City Lumber Co., 1 Conn. Comp. Dec. 161, where the claimant's incapacity was due largely to psychic depression, he having been discharged from the hospital as "recovered," and it was shown that a gradual return to normal activities and work was the best treatment for him, com- pensation was terminated. In Glidder t. Haliver, The Bulletin, N. Y., vol. 1, No. 4, p. 10, where the workman had been discharged from the hospital as recovered, and a speciaLsL selected by the Commission testified positively that he was malingering, fur- ther compensation was denied. Upon the medical referee certifying that a man is physically able to re- turn to his work, although he might be nervous, the payments of compensa- tion should be terminated. Cranfield v. Ansell (1911) 4 B. W. O. C. 57, C. A. Where a sheriff-substitute found that a hoistman recovering from an Injury was able to do work on the level, but would endanger himself to do any climbing, and that to return to work would be the best treatment for him, and upon these facts ended the employer's liability, the question was one of fact for him to decide. Cunningham v. McNaughton & Sinclair (1910) 3 B. W. C. 0. 577, Ct. of Sess. 22 Additional compensation allowed for permanent incapacity of both legs from paralysis ceased at the employe's death ; the right to such compensation being peculiar to the employ^, not created for the benefit of his dependents. (St. 1911, c. 751, pt. 2, §§ 9, 10, and § 11, as amended by St. 1913, c. 696, § 1) In re Burns, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787. In Kilbride v. Pratt & Whitney Co., 1 Conn. Comp. Dec. 688, it was held that the estate of a deceased workman has no vested interest in compensa- tion for incapacity which would have been payable but for the death, and that the right to such compensation terminated at the death of the workman. 23 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 29. The compensation that has actually accrued prior to the death of the em- ploy6, and has not been paid to him, becomes a p^rt of his estate, and as such Is collectible by his administrator. Schoenreiter v. Quincy Mining Co., Mich. Wk. Comp. Cases (1916) 32. 675 COMPENSATION § 187 the employe from some other cause than the injury.''* The sur- vival of claims of dependents is considered in a preceding section.^' The Massachusetts Act provides that any weekly payment may be reviewed by the Industrial Accident Board at the request of the association or of the employe, and that on such review it may be ended, diminished, or increased, subject to the maximum and mini- mum amounts provided for in the Act, if the Board finds that the condition of the employe warrants such action.''^ It is within the power of the Board to decide that for a time compensation shall be suspended, but not ended, with reservation of leave to the em- ploye to apply for further payments under the Act, provided this course in its opinion is required by the facts. It has been the cus- tom under the English Act to award compensation at the rate of a penny a week to keep the case open while payments are other- wise suspended.^'' This custom does not prevail in the United States. But it is not necessary, even in England, that this be done in order to keep the case alive, provided the purpose is plain not to terminate the claim definitely, but to keep it open for further consideration and order.^* That the prolongation of incapacity is due to a pre-existing disease does not authorize discontinuance of compensation payments.^" If the workman is disqualified by the injury to continue his reg- 24 Where an award is made to an employ^ under the Act, and death oc- curs, not the result of injury, the compensation remaining unpaid at the time of the death abates under section 21 of the Act. Ticzkus v. Standard Office Co., Bulletin No. 1, 111., p. 176. 25 See § 79, ante. 26 (St. 1911, c. 751, pt. 3, i 12) In re Hunnewell, 220 Mass. 351, 107 N. E. 934. 27 Id., supported by Owners of the Vessel Tynron v. Morgan, [1909] 2 K. B. 66; s. c, 2 B. W. C. C. 406, and Griga v. London & Northwestern Ry., 3 B. W. C. C. 116. 28 In re Hunnewell, 220 Mass. 351, 107 N. B. 934 ; Taylor v. London & Northwestern By., [1912] A. O. 242, 245. 29 Hills V. Oval Wood Dish Co. (Mich.) 158 N. W. 214. See § 98, ante. § 187 woekmen's compensation 676 ular employment, the fact that he procures temporary eniployment in a different occtipation for a few days at equal or greater wages is not conclusive that his disability has ceased.'" Under the English Act, if the employe has his compensation re- duced on account of his. return to work, and later finds that he is unable to work, or is discharged, and cannot find other light work, his compensation payments must be increased.'^ The amount of compensation- should be reduced, but not suspended, where a work- man previously receiving full compensation becomes able to earn. 80 Simonelll v. Sargent & Co., 1 Conn. Comp. Dec. 553 ; Hanley v. Union Stockyards Co. (Neb.) 158 N. W. 939. 31 A finding upon medical evidence wMcli reduced the payments of com- pensation to Id. a week does not bar a review applied for by the workman, alleging that he could not get work because of incapacity. Sharman v. HoUiday & Greenwood, Ltd. (1904) 6 B. W. C. C. 147, C. A. (Act of 1897). Where a collier recovered, and his compensation was reduced to Id. a week, but he was unable to get light work, and broke down while trying to do his old work, he was entitled to review. Walton v. South Kirby, Feather- stone & Hemsworth Colliery, Ltd. (1912) 5 B. W. C. C. 640, C. A. Where a judge, assuming that the employers of a workman 'who was liable to break- downs in an injured knee as a result of an injury would find him employ- ment which he could do, awarded only Id. a week, but the man applied for review because he could not get work, he was entitled to full compensation. Thomas v. Fairbairu, .Lawson & Co., Ltd. (1911) 4 B. W. 0. C. 195. Where an injured workman was dismissed after doing light work for his employer for a year and a half, and found himself unable to get any work elsewhere, he was entitled to review upon these grounds. McDonald v. Wilsons & Clyde Coal Co., Ltd. (1912) 5 B. W. C. C. 478, H. L. Where the employers of a boiler maker, who had lost an eye by accident, paid compensation amount- ing to Id. a week and gave him employment at the same wages as he receiv- ed before, but later discharged him, and he was able to get work only as a casual laborer, the amount of the compensation was increased. Brown v. Thornycroft & Co., Ltd. (1912) 5 B. W. C. C. 386, C. A. Where, after a judge had reduced the weekly compensation received by a butcher's mate on a ship for loss of the top of a finger to Is., estimating that his chances of employ- ment were reduced that much, the workman tried and was unable to obtain work on account of his physical condition, such fact was a change in cir- cumstances suflScient to justify an increase to 15s. per week, which was awarded. EadclifiCe v. Pacific Steam Navigation Cto. (1910) 3 B. W. C. C. 185, C. A. 677 COMPENSATION § 188 something in an insane asylum, to which he has been sent because of insanity, although the insanity was not in consequence of the accident.'^ Where a collier, after receiving an agreed weekly com- pensation for six weeks for an injury to his eye, returned to his work at his former wages, ahd was dismissed two weeks later, when part of the mine was closed down, it was held that his compensa- tion had been terminated by mutual consent when he returned to work.*' § 188. California Where the disability is partial, but the loss of earning capacity total, by reason of inability to compete in the open labor market, the employer may secure a reduction of the compensation to a basis of partial disability by offering the employe light and acces- sible employment which he is able to perform in his disabled con- dition. Upon the tender of such employment the compensation is thereby reduced to 65 per cent, of the difference between the for- mer wages and the wages offered him for such light work.^* Where the employer, before his injured employe is entirely recovered and able to resume the work he was doing at the time of the accident, offers easier work at the same wages as were paid before the in- jury, the employe, if able to perform such easier tasks at that time, must either accept the offer or forfeit all further disability compen- sation.*^ But where the employe shows apparent total disability, 52 Slater v. Blyth Shipbuilding & Dry Docks Co., Ltd. (1914) 7 B. W. C. O. 193, C. A. 53 Bradbury v. Belworth Coal & Iron Co. (1900) 2 W. C. C. 138, C. A. 8*Lindli T. Toyland Co., Inc., 2 Cal. I. A. C. Dec. 646. If tBe employer furnishes the employ^ such work as he can perform, thereafter until the ter- mination of the temporary disability the employer is chargeable only with 65 per cent, of the difference between the wages paid for the light work pro- cured and the wages the employe was receiving at the tilme of his injury. Acrey v. City of HoltviUe, 2 Cal. I. A. O. Dec. 587. 35 Denehy v. Panama-Pacific International Exposition Co., 1 Cal. I. A. C. Dec. 109. § 188 workmen's compensation 678 the burden is on the employer to show a definite earning capacity in the employe.'^ If there is serious insubordination and drunken- ness, persisted in by an injured employe during his treatment, sus- pension of compensation in so far as the disability is continued or aggravated by the intoxication, or unreasonable refusal to abide by the medical treatment^ will be authorized.^' Where, after findings and award on the basis of partial disability, it appears that such disability has become total, the indemnity will be increased to that for total disability.' ' Where it appears, after a temporary total dis- ability indemnity has been awarded, that the injuries sustained are permanent in nature, and not temporary, the findings and award will be amended, after proper notice to all parties and opportun- ity to be heard, to change the compensation from that based on temporary disability to that for permanent disability. The defend- 36 Larnhart v. Rice-Landswick Co., 1 Cal. I. A. C. Dec. 557. In view of the provision of the Act that due regard shall be had to the ability of the injured employ^ to compete in an open labor market, in order to justify the reduction of the compensation from that for total disability to partial disa- bility it is necessary to show that the disability of the injured person does not wholly prevent his competing in the open labor market. Eaily v. Island Transportation Co., 2 Cal. I. A. 0. Dec. 608. 37 Hill V. Guardian Casualty & Guaranty Co., 1 Cal. I. A. C. Dec. 415. Where a workman with a fractured jaw, after being discharged from the hospital with instructions to return to have it dressed, at once indulged to great excess in alcoholic liquors, contrary to the instructions of his physician, which resulted in increase of disfigurement and impairment of the function of the jaw, the Commission held that in all such cases there will be a forfei- ture in whole or in part of compensation, in this case diminution of the award one-third, reducing the compensation from 74 weeks to 48 weeks. Kelliher v. Great Western Power Co., 2 Cal. I. A., C. Dec. 378. Where, on four occasions between the date of injury and the date of operation per- formed on his foot, the applicant had been confined in a hospital for intoxi- cation, and upon two occasions had been confined in a padded cell, while this did not relieve the employer of liability, in such cases the employ^ will suffer a reduction in the allowance of compensation, although it cannot be determined to just what extent the disability was prolonged. Mitchell v. Occidental Forwarding Co., 2 Cal. I. A. C. Dec. 336. 38 (Eoseberry Act) Manfredi v. Union Sugar Co., 2 Cal. I. A. C. Dec. 920. 679 COMPENSATION § 188 ant will be credited on his account of the permanent disability with all payments he may have made upon the basis of temporary dis- ability.»» Where, after an award of continuing total disability com- pensation for injury resulting from a fracture of the skull of the workman, it is discovered that the continuing disability was prox- imately due to a syphilitic condition of the workman, of origin prior to the accident, and not due to the accident, an order will be made terminating such disability indemnity.*" In this state, "whenever in case of injury the right to compen- sation would exist in favor of any employe, he shall upon the writ- ten request of his employer, submit from time to time to examina- tion by a practicing physician. * * * So long as the employe, after such written request of the employer, shall fail or refuse to submit to such examination, or shall in any way obstruct the same, his right to begin or maintain any proceeding" for the collection of compensation shall be suspended, and if he shall fail or refuse to submit to such examination after direction by the Commission, or any member or referee thereof, or shall in any way obstruct the same, his right to the weekly indemnity which shall accrue and become payable during the period of such failure, refusal or ob- struction, shall be barred." *^ Where an employe does not abide 39 Hey V. Pacific Coast Casualty Co., 1 Cal. I. A. C. Dec. 38. Where an injured employs Is awarded by the California Commission for a short temporary total disability caused by an injury to the ends of two fingers, and some months later it is shown by competent medical advice that a slight permanent partial disability has resulted from the accident, the Commission will, after notice and an opportunity to be heard is given to all the parties in interest, order that the findings and award be amended to allow compensation for the permanent partial disability, deducting therefrom the benefits pre- viously paid to the applicant upon the basis of the temporary disability. Karas v. Northwestern Pacific Ry. Co., 2 Cal. I. A. C. Dec. 84. *o Cianettl v. Fremont Consolidated Mining Co., 2 Cal. I. A. C. Dec. 947. *i (Wk. Comp. Ins. & Safety Act Cal. § 21) This provision of the Act will be strictly enforced. Bianchini v. Selby Smelting & Lead Co., 2 Cal. I. A. C. Dec. 195. Where an employe, after receiving written notice to submit to a medical § 188 workmen's compensation 680 by the instructions of his physician, and thereby greatly increases his disability, the employer is not required to pay compensation for a longer period than the employe would have been disabled, had his injury taken the normal course. Compensation is not payable for such portion of the illness as is due to the injured employe's own actions aggravating his disability.*^ But, in justice to the patient, the Commission will require the fact of insubordination, lack of co-operation with the physician, or reprehensible conduct to be clearly established before it will sanction the cutting of? of the treatment and the compensation payments allowed by law.** The employe must co-operate with the physician in effecting a cure.** Where an employe is disabled, but it appears that he might be cured by an operation or hospital treatment, the California Com- mission has ruled that, if the employer offers such operation and treatment at his own expense, as well as disability indemnity dur- ing the disability caused by the treatment, the employe must accept it, or forfeit his right to compensation.*'* A temporary partial dis- examination at a reasonable time and place fixed by the employer, falls or refuses to submit to sucli examination, bis rigbt to commence and maintain proceedings for the collection of compensation is by section 21 suspended during the period of Ms refusal, and an application filed for compensation during the period must be dismissed. Id.; Parini v. Selby Smelting & Lead Co., 2 Cal. I. A. O. Dec. 192. But the notice must be in writing. Where an injured employ© is directed by his employer to go to a certain physician for examination, and either mis- understands the direction or refuses to abide by it, and does not report for examination, if the direction is given orally, the failure to submit to examina- tion is not a bar to the proceedings for compensation. Brain v. Elisf elder, 2 Cal. I. A. C. Dec. 30. 42 Smrakar v. Pacific Lumber Co., 2 Cal. I. A. C. Dec. 87. *3 Hill V. Guardian Casualty & Guaranty Co., 1 Cal. I. A. O. Dee. 415. ** The employer may select the physician to treat the injured person, and it is incumbent upon the employ©, if he accepts the services tendered, to co- operate with such physician in effecting a cure. Kainey v. McClaln, 1 Cal. I. A. C. Dec. 57. *B The reasonable cost of an operation to relieve an injured workman from the consequences of an industrial accident, with compensation for the period 681 COMPENSATION § 188 ability award for hernia will be terminated upon offer by the em- ployer or his insurance carrier, at its own expense, of an operation for the cure of the hernia, and its rejection or acceptance by the employe, and its satisfactory outcome.*^ of disability caused by the operation, was awarded him, and the employer required to tender at its own cost suitable surgical and hospital facilities for the operation, and if the applicant then declined the operation, the defendant was to be freed from all liability. Haley v. Hardenburg, 1 Cal. I. A. C. Dec. 127. 'Wihere medical experts determine that an operation will probably greatly aid applicant's recovery from injury, the Commission will make the payment of compensation conditional upon the injured man's acceptance of an operation when it is tendered by the employer or insurance carrier. Ayl- ward V. Oceanic Steamship Co., 2 Cal. I. A. C. Dec. 95. It being shown that traumatic neurosis may be cured by proper scientific treatment, the Commis- sion will make its award upon the basis of a temporary partial disability, with a provision that if the employer shall tender proper hospital and medical treatment for at least thirty days to cure the injured employs, with full compensation during the period of his treatment, and, being undergone, it is successful, compensation may be discontinued. It also provided that, if the injured employs refuses to accept such hospital treatment, compensation may thereupon cease. Finley v. San Francisco Stevedoring Co., 2 Cal. I. A. C. Dec. 174. Where it seems probable at the time of the award that the appli- cant will require a surgical operation thereafter to remove the disability, the award may provide that, upon operation being recommended by competent surgical authority and being undergone, the employer shall pay the reasonable cost of the operation and a full disability benefit during the resultant incapac- ity, but if the applicant refuses to submit to an operation after its being so recommended, all disability payments shall cease during the continuance of his refusal. Gordon v. Evans, 1 Cal. I. A. C. Dec. 94. Where, owing to mis- taken diagnosis and inadequate treatment, the employe continues to be totally disabled after the ninety-day limit has expired, but it appears that with prop- er treatment he could be entirely cured, the Commission will make an award for temporary total disability payments to continue during the disability, but conditioned that if the employer or his insurance carrier tender proper treat- ment to cure and relieve the applicant from the effects of the injury, the ap- plicant must accept the treatment, or forfeit further compensation. Johnson V. Pacific Surety Co., 1 Cal. I. A. C. Dec. 560. 46 An employs having a serious hernia is handicapped practically 50 per cent, in his Industrial activities. Since his employer cannot be required to furnish medical treatment after the expiration of the ninety days from the date of the accident, a temporary partial disability award should be made in favor of such employs so injured, in the sum of 50 per cent, of 65 per cent, of § 189 workmen's compensation 682 § 189. Release A settlement made by an employer and the giving of a release by the injured workman ordinarily bars a claim by such work- man.*' A release executed by the employe, releasing his employer from compensation liability, will not, however, bar the right of any other person, such as bis dependents.*' Nor does a release by the deceased employe's widow bar an action by the personal repre- sentative for the benefit of infant children.*" A release of the em- ployer from liability for compensation will not release the third person whose negligence caused the injury, where no negligence of the employer contributed to the injury."" Nor will a settlement be- tween his employer and the employe, releasing all claims on ac- count of the injury, include a claim for malpractice against physi- his average weekly earnings, to terminate, however, upon the tender of the employer or his insurance carrier, at its own expense, of an operation for the cure of the hernia, and its rejection or acceptance 'by the employs and its satisfactory outcome. Brandt v. Globe Indemnity Co., 1 Cal. I. A. O. Dec. 309. " (Wk. Comp. Act Wash. § 8) Rulings Wash. Indus. Ins. Com. 1915, p. 19. *8 An employe cannot, by making a settlement with a third person, preclude his wife from recovering compensation for his subsequent death as a result of the injuries. The widow's right to compensation can be discharged only by herself, where she is the sole dependent, or by those authorized to act in her behalf. (St. 1911, c. 751, pt. 2, §§ 6, 7, 22) In re Cripp, 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828; WiUiams v. Vauxhall Colliery Co., [1907] 2 K. B. 433, 436; Howell v. Bradford Co. (1911) 104 L. T. R. N. S. 433. In an action under the Wisconsin Act it was held that a payment to de- ceased for one day's work lost by reason of his disability, and execution by him of a release by which he released the company from all claims which he might have under the Compensation Act, did not affect the claim of his widow for compensation for his death. Milwaukee Coke & Gas Co. v. Indus. Com., 160 Wis. 247, 151 N. W. 245. As to effect in general of settlement to bar dependent's claim, see § 78, ante. As to settlement agreements in general, see § 202, post. *9 (Wk. Comp. Act 1911, § 2, par. 12) West Jersey Trust Co. v. Phila. & Reading R. R. Co., 88 N. J. Law, 102, 95 Atl. 753. BO Jacowicz v. Delaware, L. & W. R. B. Co. (1915) 87 N. J. Law, 273, 92 Atl. 946, Ann. Cas. 1916B, 1222. '683 COMPENSATION § 189 •cians who attended the employe.^^ A release to the third party whose negligence caused the injury, given without consideration ■and without the approval of the employer's insurer, does not bar an action by the employe against the insurer for compensation."^ It may, however, be evidence of the employe's election to take dam- ages, instead of compensation, and so bar a claim for the latter."' A release from compensation liability, given by an employe's guard- ian, does not bar an action for damages, where the injured employe, ~by reason of his minority and illegal employment, was not within the Compensation Act.°* An agreement for additional specific compensation for the loss of three fingers, but not stating that it is intended to cover all claims for additional compensation, does not bar an award of additional compensation for an injury to the hand arising out of the same accident."" It has been stated that while, as a matter of law, the authority ■of an employer under the California Act to exact the execution of any form of contract or release as a condition precedent to the pay- ing of compensation duly awarded, further than a plain receipt which, when the final payment is made, may probably be made a receipt in full of all claim, is doubtful, no reasonable beneficiary of the Act should object to releasing a right which he ought not Bi (Gen. St. 1913, § 8195 et seq.) VUta v. Dolan (Minn.) 155 N. W. 1077. 02 (Wk. Comp. Act, §§ 29, 33) Woodward v. B. "W. Conklln & Sons, Inc., 171 App. Div. 736, 157 N. Y. Supp. 948. 53 In GUliland v. Kearns, 1 Conn. Comp. Dec. 277, where an accident was sustained under circumstances creating a legal liability for damages in a third party, and the claimant prior to the hearing had executed a release on valuable consideration discharging said third party from all liability in con- nection with the accident, it was held he had exercised his option to claim compensation or damages, and could not recover compensation. (Wk. Comp. Act, pt. B, § 6.) B* Stetz V. F. Mayer Boot & Shoe Co. (Wis.) 156 N. W. 971. B6 (St. 1913, c. 445, § 1, as amended by St. 1914, c. 708, § 6 [e]) Lemieux v. Contractors' Mut. Liab. Insur. Co., 223 Mass. 346, 111 N. E. 782 ; In re Hun- newell, 220 Mass. 351, 107 N. E. 934. § 189 workmen's compensation 684 to possess when he receives the full value of the right he does pos- sess under the Act.°° All settlements and releases for compensation executed between employer and employe in Minnesota must be approved by a judge of the district court before they can be filed with the labor commissioner.'"' It has been held in Massachusetts that the signing of a settJipment receipt did not bar the employe from asking for a hearing before the Committee of Arbitration because of its refusal to reimburse him on account of his outlay for medical services."* A release may be rescinded for mutual mistake of law. A party who, with full knowledge of the ignorance of th* other contracting party, has not only encouraged that ignorance, but has knowingly- deceived and misled that other into a mistaken conception of his legal rights, cannot shield himself behind the doctrine that a mere mistake of law affords no ground for relief."* § 190. Contracting out A common provision of the Compensation Acts that any agree- ment by the employe to waive his right to compensation shall be void *" is not retroactive."^ eeEeed v. Zelinsky, 1 Cal. I. A. C. Dec. 496. 5''(Wk. Comp. Act, § 22; Gen. St. 1913, § 8216) Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 11, p. 15. ^^ ' B8 Ducy V. American Mut. IJab. Iilsur. Co., 2 Mass. Wk. Comp. Cases, 513 (decision of Com. of Arb.). 5 9 Carpenter v. Detroit Forging Co. (Mich.) 157 N. W. 374. 60 See text of various Acts. (Wk. Comp. Law N. Y. § 32.) A contract signed by an employe before going to work, absolving the em- ployer from all obligations resulting from any accident he might subsequent- ly meet, is not binding, as the contract entered into between the employer, employ^, and the state of Illinois, when they accepted the provisions of the Workmen's Compensation Act, is controlling, and all previous contracts en- 81 Laws 1913, c. 174, p. 312, prohibiting "contracting out," is inapplicable where the accident happened before its passage. Blackford v. Green, 87 N. J. Law, 359, 94 Atl. 401. €85 COMPENSATION § 191 § 191. Assignment of compensation rights Compensation rights cannot ordinarily be assigned or subjected to the payment of debts.'^ Relative to this prohibition it has been said : "The exemption of awards from assignment or charge is nec- essary in order to protect the injured employe and his dependents. If the claim were made assignable, he could sell it for a small sum, and thus deprive his dependents of benefits to which they are en-i titled. The compensation also is made exempt from his debts on the same 'principle that wages are now exempt. The justice and fairness of this should be conceded by all." *' Under the recognized rules of statutory construction,"* a provision validating an assign- tered into are merged. Chicago Savings Bank & Trust Co. v. Chicago Eys. Co., Bulletin No. 1, lU., p. 104. A provision in the lease of a dredge, whereby the owner and employer each exempted the other from liability for the other, did not operate to re- lease the employer from liability for injuries to the owner while he was oper- ating a gasoline launch as employe. In re Powely, 169 App. Div. 170, 154 N. Y. Supp. 426. 82 See text of various Acts. The right to compensation from the state insurance fund cannot be as- signed. (Wk. Comp. Act, § 41) In re Oscar Berg, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 102. 83 (Wk. Comp. Act Wash. § 10) Rulings Wash. Indus. Insur. Com. 1915, p. 20. 61 "When the intention can be collected from the statute, words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsist- ency with such intention." Lewis' Sutherland's Statutory Construction (2d Ed.) vol. 2, § 347. "The Intention of an act will prevail over the literal sense of its terms." Id. § 348. "The presumption is that the lawmaker has a definite purpose in every enactment, and has adapted and formulated the subsidiary provisions in harmony with that purpose. * * • That purpose is an implied limitation on the sense of general terms." Id. § 369. "Words or clauses may be enlarged or restricted to effectuate the intention or to harmonize them with other expressed provision." Id. § 376. "A thing which Is not within the intent and spirit of a statute is not within the statute, though within the letter." Id. § 379. "The real Intention, when accurately as- certained, will always prevail over the literal sense of the terms. • • • Statutes are likewise to be construed in reference to the principles of the § 192 workmen's compensation 686" ment of the workman's cause of action to the insurer must be lim- ited to its special purpose, and construed as impliedly repealing or modifying the existing law as to the nontransferability of personal, injury claims only so far as necessary to effectuate such purpose."' § 192. Apportionment?* Apportionment of compensation between dependents will ordi- narily be made equitably in proportion to the respective contribu- tions made by deceased for their support."" Surviving brothers and sisters, who are not dependent upon the earnings of the deceased workman, are not entitled to a share of the compensation along with a dependent mother, who received her support from him."^ In New Jersey, the trial judge need not apportion compensation between a widow and child of a deceased employe, where such apportionment is not specially applied for."^ The provision of the New Jersey Act relative to distribution of compensation to children applies only^ to children of the deceased workman, and not to his brothers and sisters."* Where a deceased workman is survived by a reputed wife, found to be totally dependent on him and a member of his family, and by his legal wife and a minor child, for whose main- common law; for it is not to be presumed that the Legislature intended ta make any innovation upon the common law further than the case absolutely required." 1 Kent's Commentaries (14th Ed.) 462. 6 6 (Wk. Comp. Law, § 29) United States F. & G. Co. v. New York Rys. Co., 93 Misc. Kep. 118, 156 N. Y. Supp. 615. es Where a minor contributed small sums, averaging not over 50 cents a. week, to his father for tobacco, money and groceries amounting to S5 a week to his mother, and money estimated at 50 cents a week, and some clothing, , to his sister, the death benefit was apportioned at the rate of one-sixth to- the father, one-sixth to the sister, and two-thirds to the mother. Anderson V. American Straw Board Co., 1 Conn. Comp. Dec. 11 (affirmed by superior court on appeal). 67 Matecny v. Vierling Steel Works, 187 111. App. 448. « 8 Taylor v. Seabrook, 87 N. J. Law, 407, 94 Atl. 399. «» Conners v. Public Service Electric Co. (N. J. Sup. 1916) 97 Atl. 792. 687 COMPENSATION § 192 tenance he was legally liable, the compensation may, in the dis- cretion given the California Commission by a provision authorizing it to apportion death benefits among the dependents in proportion to their respective needs, be equally divided between such benefi- ciaries.''° That decedent was a member of the family of his brother, who was partially dependent upon him, does not make the brother, a "next of kin," entitled to compensation under the Massachusetts Act, in preference to decedent's surviving father.'^ Under the Con- necticut Act, where the deceased workman leaves two dependent daughters, one over 18 dependent in fact, and one 17 dependent both presumptively and in fact, the total death benefit may be awarded to the latter until she reaches the age of 18, and thereafter be divided equally between the sisters.^- The insurer cannot litigate by appeal the proportions of the divi- sion of a death benefit after a decree apportioning same, from which the dependents themselves do not appeal.''* The word "portions" as used in the federal Act, refers to the divi- sion of the compensation among the claimants, and not to its division into weekly or monthly payments, and the Secretary is au- thorized to direct that one beneficiary receive a larger and another a smaller portion; his authority in this regard may even justify his direction that the whole compensation be paid to one benefi- ciary, to the exclusion of the others.'* 70 (Wk. Comp., etc., Act Cal. § 19 [e]) Rossi v. Standard Oil Co., 2 Cal. I. A. C. Dec. SOT. 71 (St. 1911, c. 751, pt. 2, § 6, and part 5, § 2) In re Kelly's Case, 222 Mass. 538, 111 N. E. 395. 12 Maher v. N. Y., N. H. & H. B. B. Co., 1 Conn. Comp. Dec. 82 (afflimed by superior court). As to payment to representatives in general, see § 79, ante. 73 In re Janes (1914) 217 Mass. 192, 104 N. E. 556. T4ln re Brinkley, Op. Sol. Dept. of L. (1915) 603. § 193 workmen's compensation 688 ARTICLE V TREATMENT AND FUNERAL EXPENSE Division I. — Expenses or Medical, Stjkgical, and Hospital Tbeatment Section # 193. Rights,' duties, and liabilities in general. 194. Massachusetts. 195. Failure or neglect of employer — Procurement of services and treatment by employ^. 196. Where physician is furnished by employer. 197. Change of physician or service. 198. Expense for which employer is liable. 199. Recovery by physician. 200. Services of nurse or member of the family. Division II. — Funeeal Expenses 201. Provisions allowing funeral expenses. Division I. — Expenses of Medical, Surgical, and Hospital Treatment § 193. Rights, duties, and liabilities in general The common legislative requirement that the employer bear the burden of reasonably necessary medical and surgical treatment of his injured employe was not intended as a charity to one, or as a penalty to the other, but as the recognition of the economic truth that such expense is a legitimate element in the cost of production, and should be placed upon the product as directly as practicable, using the employer as the first necessary step. The legislative idea is that an employer is so specially interested in his injured employe being restored as soon as practicable as to be most likely to provide proper medical and surgical treatment.'"' Since the employer must " City of Milwaukee v. MiUer, 154 Wis. 652, 144 N. W. 188, L. E. A. 1916A. 1, Ann. Cas. 1915B, 847. 689 COMPENSATION § 193 pay the cost, he is given the privilege of selecting the physican and services requisite to proper treatmentJ^ This is a privilege, how- ever, which must be exercised without unnecessary delay." By necessary implication there is reserved to the employer, under ordi- 78 The plain purpose of this section Is to Impose upon the Insurer the duty of providing reasonable medical and hospital services and medicines when they are needed. Manifestly, the workman is not permitted generally to select his own physician or hospital, but should accept that which the law thus requires to be provided for him. (St. 1911, c. 751, pt. 2, § 5) In re Panasuk, 217 Mass. 589, 105 N. E. 368. Where services or supplies of the character In- dicated by the provision requiring that the employer promptly provide for the injured employe "such medical, surgical or other attendance or treatment, nurse or hospital service, medicine, crutches and apparatus as may be re- quired or be requested by the employe during the sixty days after the injury," ar^ needed or are reasonably or properly requested by the employe, the em- ployer must provide same, using his own, judgment and exercising his own choice, so long as he does not make an unreasonable selection as to the person who shall render such services and as to the nature of the supplies, and it is only when he faUs to provide that the employe may do so at the employ- er's expense. Where the employer has not faUed in his duty In this respect, the employe cannot designate the particular Individual who shall render the required services. Kelgher v. General Electric Co., 158 N. Y. Supp. 939. In- asmuch as the employer or his insurance carrier must pay the disability in- demnity, if the disability is not relieved, and must pay full death benefits or permanent disabilities. In addition to the medical and surgical charges, if Incompetent physicians or hospitals aggravate the injury, the statute gives the party who must pay the cost the right to select the physician and hospi- tal. McNamara v. United States Fidelity & Guaranty Co., 1 Cal. I. A. C. Dec. 138. 7 7 Scott V. -^tna Mfe Ins. Co., 1 Cal. I. A. C. Dec. 34S. Where evidence shows an imreasonable delay on the part of the employer and his Insurance carrier in offering medical treatment to the employe, the latter will be awarded the reasonable cost of such services which he himself has contracted for. De Mott v. Stone & Webster Construction Co., 1 Cal. I. A. C. Dec. 187. By the term "seasonable" the law means "In due season," "opportunely," "timely," which, in most cases of physical injury, means forthwith, inasmuch as delay causes danger of infection. In a city or other populous community, an Insurance carrier or employer should have its physi- cian in charge of the Injured employe, if not in time to render first aid, at least within a very few hours, certainly as soon as it is necessary to change an emergency dressing. Failure to do this forfeits the right to designate HoN.CoMP. — 44 § 193 workmen's compensation 690 nary circumstances, reasonable opportunity to exercise the privi- lege, and the right of the employe to obtain such treatment, or for who shall furnish medical treatment. Scott v. ^tna Life Insurance Co., supra. Where an employer's foreman has knowledge of the injury on the day it happened, Saturday, but«io steps are taken by the defendants to furnish medical attention until the following Monday, and the injured man has, in the meantime, secured the services of another physician, who continues to treat him until his cure, the defendants must pay the reasonable value of the services rendered by the employe's physician. While the law gives the em- ployer the right to select the physician, it does not allow him to sleep upon that right. If he does not furnish medical attention "seasonably," the em- ployg may secure medical attention at his employer's expense. Simpson v. Paraffine Paint Co., 1 Cal. I. A. C. Dec. 76. Where an employer is notified at the outset of the serious condition of his employe, caused by an infected woimd, and the insurance carrier offers the services of its own physician on the same day, Tuesday, but, the physician not being present and the case urgent, an arrangement is made to meet this physician later in the afternoon, but he does not get into communication with the employ© until the following Friday, after a serious operation has been performed, the insurance carrier has not seasonably tendered medical treatment, and is liable for the reason- able value of the treatment procured elsewhere. Jameson v. Bush, 1 Cal. I. A. C. Dec. 507. Where an employe sustains a fracture and is taken to a physi- cian by his employer, who later calls in another physician, and the employe, without further instructions from his employer, retains the second physician and dismisses the first, and where instructions as to medical treatment are not furnished by the insurance carrier for nearly a week, and not until aft- er the employe has completed final arrangements for his treatment and is about to undergo or has just undergone an operation, the tender of medical treatment by the Insurance carrier is not made seasonably, and it is liable for the reasonable value of treatment rendered to the employe by a physician of his own choice. Hotchkiss v. Boyer, 2 Cal. I. A. C. Dec. 51. Where the employer or Insurance carrier is notified at once of the accident and instructs its physician to treat the injured employe, and the physician, after making a superficial examination, neglects the patient for five days, though requested to call, and the employe in the meantime secures other medical attention, the employer or his insurance carrier has not seasonably furnished medical at- tention within the meaning of the Act, and is therefore liable for the rea- sonable value of services contracted for by the employe. Bailey v. Wheeler Co., 1 Cal. I. A. C. Dec. 142. Where a series of delays of the employer and insurance carrier to provide medical treatment occurred, during which time the applicant went to her own physician, and then, after a mistaken diagnosis by the insurer's physician, she again went to her own physician and received 691 COMPENSATION § 193 the same to be obtained in his behalf, at the expense of the em- ployer, is contingent upon such opportunity having been ac- corded,''' and proper notice of the injury having been given,'" necessary treatment, the defendants are chargeable with all such treatment received. AUard v. Browne, 2 Cal. I. A. C. Dec. 489. Where an employe ac- cidentally sustains a hernia which is irreducible, and immediate operation is therefore required, and notice is given to the insurance carrier the day of the happening of the accident, and an operation is performed by the em- ploye's physician within two or three days thereafter, the insurer not hav- ing tendered medical treatment of its own selection within such period, it is liable for the reasonable cost of the operation, for the reason that, in view of the urgency of the case, it did not seasonably tender treatment. Viglione V. Montgomery Garage Co., 2 Cal. I. A. C. Dec. 87. 78 City of Milwaukee v. MiUer, 154 Wis. 652, 144 N. W. 188, L. B. A. 1916A, 1, Ann. Cas. 1915B, 847. The privilege acCbrded the employer requires as an incident reasonable tune to exercise it after notice of the need therefor. Competency of an injured employs to procure medical and surgical treat- ment, or for such to be procured in his behalf, at the expense of the employer, under the Workmen's Compensation Act, exists for the reasonable time after the injury required for such employe to afford the employer opportunity to exercise his privilege; it is then suspended if the employer exercises such privilege, but revives and relates back to the time of the suspension, if neces- sary, if the employer unreasonably neglects or refuses to exercise such privi- lege. Id. 7» The law does not cast upon employers the duty of active vigilance to dis- cover cases of personal injury to their employes, but casts upon the latter such vigilance as they can reasonably exercise to bring such injuries to the attention of employers, with their need and desire for medical and surgical treatment to be provided. City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. E. A. 1916A, 1, Ann. Oas. 1915B, 847. Where an employe is dere- lict in not reporting the fact of injury to his employer in time to give the lat- ter opportunity to select the surgeon to treat him, no award of cost of medical and surgical care will be made. Jenkins v. Pieratt, 1 Cal. I. A. C. Dec. 114. Where an employe receives a slight Injury, and does not notify the employer until after he has procured all necessary medical treatment himself, and the employer, not knowing of the happening of any accident, did not have oppor- tunity to furnish medical treatment of his own selection, then the employer is not liable for the reasonable cost of medical treatment secured by the injured employe. Morrish v. Brookmiller, 2 Cal. I. A. C. Dec. 76. Where an injured employe notifies his employer that his hand has been injured, but omits to inform the employer of the cause of the injury, or to connect it with the employment, or with any accident, and no request Is made § 193 wokkmbn's compensation 692 except where the employer has actual knowledge dispensing with the necessity of such notice.'" .But this does not militate against for medical treatment, the employer is not given notice to supply medical serv- ices, and is not liable for tlie expenses thereof. If he then, after infection setting in, himself employs a physician and nurse at an exorbitant expense, and the employer, if he hsid been notified, could have secured the same or bet- ter treatment at a reasonable expense, and prompt medical attention would have prevented the disability which followed the infection, the employer has been prejudiced by the failure to give notice, and is not liable for the expenses in- curred. Himes v. Powers Investment Co., 2 Cal. I. A. O. Dec. 1035. Where neither employer nor employ^ are acquainted with the provision of the Act, and an employe reports very informally to the employer that he has received an accidental injury, neither party realizing the Importance of such notice, nor appreciating the responsibility cast upon the employer thereby, never- theless, such informal statement is sufficient to give the notice required by law, and make the employer liable for the reasonable value of medical and surgical services furnished the employ^ on accoimt of the Injury. Conner V. Acme Cement & Plaster Co., 1 Oal. I. A. O. Dec. 143. 8 Gardiner v. State of Cal. Printing OfiBce, 1 Cal. I. A. O. Dec. 21. The only burden placed upon the injured employe is to let his employer, or the employer's superintendent or other person in authority, know that he has been injured. Knowledge of the fact o£ Injury on the part of the em- ployer or his subordinates constitutes aU the opportunity to designate and furnish the necessary medical and surgical treatment which the employer needs in the contemplation of the law. Scott v. iBtna Life Insurance Co., 1 Cal. I. A. O. Dec. 343. An employer, having actual knowledge of the acci- dental injury of his employs, is bound to furnish necessary medical and surgical attendance, and upon his neglect to do so is liable for the reasonable charges incurred by the injured employ^ in that behalf (Coleman v. Guilfoy Cornice Works, 1 Cal. I. A. C. Dec. 31), though all parties are under the im- pression that the injury is slight and wiU not amount to anything (Larson V. Holbrook, McGuire & Cohen, 2 Cal. I. A. C. Dec. 105). Where an employ^ sustains an accident and teUs a fellow employe to notify the captain of the ship upon which he Is working, and the ;Eellow employe testifies that he told the captain that the applicant got hurt and wanted a permit to go to the Marine Hospital, and both applicant ajid the captain were ignorant of their rights and duties under the Act, and the captain testifies that no report of the injury was made to him, but that he understood the ap- plicant was sick with rheumatism, such evidence establishes sufficient notice to the employer to render him liable for medical and surgical treatment. Connolly v. California Salt Co.. 2 Cal. I. A. C. Dec. 115. Jn Ezykowski v. F. B. Dashiel Co., 1 Conn.. Comp. Dec. 236, where the 693 COMPENSATION § 193 the employe's right to obtain medical and surgical treatment at the expense of his employer in the interim between the happening of the injury and time for notice to the employer of the employe's needs,'^ subject to the right of the employer or insurer to change physicians at the close of the emergency treatment.*^ The right to be supplied with medical services is independent of the right to disability compensation,'* and the forfeiture of the right to med- claimant was not entitled to medical expense, because of not giving notice and of neglect In securing treatment, but later sufCered a new injury, and the employers had knowledge of the second Injury, medical expenses were allow- ed for 30 days after the second injury. Where an employe was Injured, and reported the injury to the foreman at 8 o'clock the following morning, and was advised by the foreman to see a doc- tor, the employer was liable for medical bills arising out of the accident, not to exceed $200. Eide v. Horn, Bulletin No. 1, 111., p. 44; City of Milwaukee V. Mmer, 154 Wis. 652, 144 N. W. 188, L. .R. A. 1916A, 1, Ann. Cas. 1915B, 847. 81 Where emergency treatment Is imperative, as where a skull is fractured, the employ^ is entitled to the expense incurred, even though the employei had no opportunity to tender treatment by his own physician. Travelers' Insur. Co. v. Spauldlng & Bros., 1 Cal. I. A. C. Dec. 575. The Compensation Act contemplates that adequate treatment be provided by the employer. The most important treatment at the time of the injury is to ascertain the nature and extent of the injury, and where a fracture is involved this can seldom be done with adequate appliances, such as facilities for taking X-ray photo- graphs, and an employ^ is justified in going at once to where a correct diag- nosis of his case can be made. Miller v. .^tna Springs Co., 2 Cal. I. A. C. Dec. 781. An injured employs is justified In seeking emergency treatment on the day of his Injury from any physician, unless specifically directed by the employer or Insurance carrier, prior to securing such treatment, as to where to go. The cost of such emergency treatment is a proper charge against the employer or insurer. Where, however, medical treatment is tendered by them in seasonable time after the first aid, the Injured employe must discontmue treatment by the physician called in and accept the treatment tendered by the employer, or else bear the cost of the treatment himself. Robitson v. Panama Fruit Co., 1 Cal. I. A. 0. Dec. 385. 82 gee § 195, post. 88 Casanegri v. Madera Sugar Pine Co., 1 Cal. I. A. O. Dec. 589. In Pelham v. Burstern, 1 Conn. Comp. Dec. 49, where there were no sur- viving dependents, an award was made for medical expenses. § 193 workmen's compensation 694 ical services does not affect the right to such other compensation.^* Where the employer and employe, both knowing that the status of the practitioner provided is not that of a regular physician and surgeon, but that he has had considerable practice as a bonesetter, agree in selecting him, they are estopped from later making the point that he is not angularly educated physician.*' Under the California Act, in ordinary cases of varicose ulcers, due to injury, the employe will be allowed medical treatment and appliances to cure and relieve from the effects of the ulcer, but will be allowed no disability indemnity. In cases of a more serious nature an award will be made for the cost of a radical operation to effect a permanent cure, where such an operation is deemed necessary by a competent surgeon, together with a disability in- demnity while the employe is incapacitated as a result of the operation, but nothing further.*" Under a provision of the Kansas Act which contemplates no compensation for medical attendance except where the workman dies, a deduction should be allowed for an amount paid by the defendant to a physician for attending the employe.*' A policy of insurance cannot be lawfully issued which eliminates the obligation of the insurance company to indemnify an employer who has performed the statutory duty to furnish medical, surgical, or hospital service. Nor can such insurance company, after having issued such a policy, lawfully enter into any collateral contract or agreement which in any way restricts or modifies the obligations assumed by it by the terms of the policy.** Employes of Ohio em- 84Id. ; Cochran v. Whiting Wrecking Co., 1 Cal. I. A. C. Dec. 186; Eup- recht V. Red Eiver Lumber Co., 2 Cal. I. A. 0. Dec. 864. SB Hodge V. HofEman, 1 Conn. Comp. Dec. 322. 88 Keen v. Scott Co., 2 Cal. I. A. C. Dec. 533. 87 (Wk. Comp. Act, § 12, subd. e, and section 11, subd. a [3], as amended by Laws 1913, c. 216, § 5) Cain v. National Zinc Co., 94 Kan. 679, 148 Pac. 251 (on rehearing; former opinion in 146 Pac. 1165). 88 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 12. See § 185, ante. 695 COMPENSATION § 194 ployers who have elected to pay compensation direct are entitled to receive the same amounts to cover expenses for medical attendance as employes of those who have contributed to the state insurance fund are entitled to receive from the fund.'" If a California em- ployer is insured, his insurance carrier should inform him in ad- vance exactly what he is to do in case of accident with reference to medical and hospital treatment. If he fails to follow the instruc- tions so given, an issue may arise between the insurer and insured under the contract of insurance, but the rights of the injured em- ploye are not jeopardized thereby. "' A provision of the Oregon Act authorizing the Commission to provide hospital accommoda- tions for workmen "who are entitled to benefits hereunder" does not apply to workmen injured before the approval of the Act."'- Where the employer is insured, the insurance company must reim- burse him for the pecuniary loss sustained in case he himself has furnished services at his own expense, or make good the amount paid by the employer to his employe in a case where the employer has failed to furnish the services, and the employe has provided such services at the employer's expense. If the services have been sea- sonably furnished by the employer, the injured employe cannot, of course, recover anything for such items, either from the employer or the insurer."^ § 194. Massachusetts The obligation to furnish medicinal and hospital services for the first two weeks after the injury is imposed by the express words 89 Robison v. Newark Reflector Co., vol. 1, No. 7, Bui. Ohio Indus. Com. p. 167. 90 Scott V. Mtna. Life Insurance Co., 1 Oal. I. A. C. Dec. 343. 91 Under Const, art. 4, § 1, providing that any Act referred to the people shall take efEect and become a law when it is approved by a majority of the votes cast and not othervsdse, Workmen's Compensation Act, § 23, authoriz- ing the Commission to provide hospital accommodations, did not apply to a 92 Op. Atty. Gen. on Minn. Wk. Comp. Act, Bid. 9, p. 14. § 194 workmen's compensation 696 of the Massachusetts Act. This duty must be performed, or rea- sonable efforts made to that end, before the statutory obligation is satisfied.*^ "Furnish" means to provide or supply. Its signifi- cance may vary with the connection in which it is found. As said by the Supreme Judicial Court, it is used here to describe a duty placed on the insurer ij^specting a workman who receives "a per- sonal injury arising out of and in the course of his employment." Such a person manifestly is presumed by the Act to be under more or less physical disability, and hence not in his normal condition of ability to look out for himself. The word "furnish" in such connec- tion imports something more than a passive willingness to respond to a demand. It implies some degree of active effort to bring to the injured person the required humanitarian relief. Reasonably suf- ficient provision for rendering the required services must, of course, be made. Then either express notice must be given to the employe, or there must be such publication or posting of the information as warrants the fair inference that knowledge had reached the em- ploye. If the insurer has made adequate arrangements for the care of those to whom the duty is owed in the event of injury, and then by conspicuous notices posted in places frequented by the employe, in a language capable of being read by him, has given full informa- 'tion of that fact, and directions as to the steps to be taken by the injured employe in order to avail himself of such arrangements, a very different question is presented than that which is presented when this is not done. This might go a long way toward proving compliance with the requirements of the statute. But where noticej though posted in front of the place where the employe works, is not such as to challenge his attention, he being an illiterate foreigner, and the notice being in the English language, it is insufficient, though it would have been sufficient if he had been able to read the workman injured before approval of the Act at a referendum election on No- vember 4, 1913. Salem Hospital v. Olcott, 67 Or. 448, 136 Pac. 341. 88 In re Panasuk, 217 Mass. 589, 105 N. E. 368. 697 COMPENSATION § 195 English language. The insurer has readily accessible means of as- certaining the nationality of employes insured by it and their degree of intelligence. If among them are those who cannot read or speak the English language, this circumstance requires greater effort on its part in order to comply with the statute."* § 195. Failure or neglect of employer — Procurement of services and treatment by employe The duty of employers to furnish their own surgeon is a correl- ative of their right to do so.'° The employer's failure to promptly provide proper medical or surgical treatment renders him liable for the reasonable value of such services procured by the employe,"" 9* Id. »5 Vauglm V. American Coal Co., 1 CJorm. Comp. Dec. 617. 86 Where tie employer and insurer neglect to provide surgical treatment reasonably required, and the injured employe procures such treatment, his claim therefor should be allowed. (Wk. Comp. Act, §§ 15a, 34, subd. 2) Mass. Bonding & Insur. Co. v. Pillsbury, 170 Gal. 767, 151 Pac. 419. If an employ^ who has elected to come under part 2 is injured while working for an em- ployer also under part 2, it is the duty of the employer to furnish such serv- ices (those specified in section 18 of the Act) as may be reasonably required at the time of the injury, and thereafter during the disability of the injured employe, but not exceeding 90 days. If the employer fails to furnish the in- jured employe with such services, the employe can procure the same and re- cover the value thereof from his employer, not exceeding, however, $100, or in special cases $200. Op. Atty. Gen. on Minn. Wk. Comp. Act, Bui. 9, p. 14. Where the employer has notice or reason to believe that medical and surgical treatment is necessary, and does not seasonably offer the same, he will be liable for the expenses of such treatment necessarily incurred by the injured employe within 90 days of the accident. Peres v. Wand, 1 Cal. I. A. C. Dec. 607. The law places the obligation upon the employer to provide necessary medical and surgical attendance, and knowledge of the accidental injury of an employe and the reasonable opportimlty given to provide the requisite treatment are sufficient to charge the employer, neglecting to provide it, with the reasonable expense incurred by the employe in that behalf. Gardiner V. State of Cal. Printing Office, 1 Cal. I. A. 0. Dec. 21. Where an employer, knowing of an Injury to an employe at the time it was received, but believing it to be caused by disease, and not by accident, fails to provide medical treat- § 195 workmen's compensation 698 provided the employe's conduct in respect to reporting his injury and related matters has not been unreasonable, in view of his in- ment or to notify his insurance carrier, and it is found later that the injury was caused by accident, the employe is entitled to have paid by the insurance carrier the reasonable value of medical service and hospital treatment fur- nished to her by physiciai^ of her own choice. Loustalet v. Metropolitan Laimdry Co., 1 Oal. I. A. O. Dec. 318. Where an employer did not furnish any medical service to the injured em- ployg, who obtained it for himself, the workman was entitled to reimburse- ment to the amount of such services made necessary by the injury. Ducy v. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 513 (decision of Com. of Arb.). A foreigner, who was unable to read, write, or understand the English lan^age, received a personal Injury, and reported it to his fore- man. N(> information was given him as to his rights with regard to medical attendance, nor was any effort or offer of medical attendance made by his employer, or any representative of the employer or insurer. It appeared in evidence that a certain typewritten notice in English was posted near the place where the employfi performed his work. He afterwards called in a physician of his own selection, and the insurer declined to pay the bill, and also asked for a ruling that the Committee of Arbitration had no jurisdic- tion over a dispute concerning the nonpayment of a bill for medical services. It was held that the insurer was required to pay the physician's bill. Pana- suk V. American Mut. Liab. Insur. Co., 2 Mass. Wk. Comp. Cases, 338 (deci- sion of Com. of Arb., affirmed by Indus. Ace. Board, also by Sup. Jud. Ct., 217 Mass. 589, 105 N. E. 868). The employe received a serious injury, but no attempt was made by either the Insurer or employer to furnish medical at- tendance of any kind, though the employe was sent home in a carriage sup- plied by the employer, and nothing was said to her about medical attendance. Upon her arrival home she sent for a physician, a specialist in injuries such as she had sustained. He gave her skillful and helpful treatment, and present- ed a reasonable bill for the services rendered. The Committee of Arbitration held that the insurer did not furnish medical attendance, and that he must pay the bill of the physician. Flanagan v. American Mut. Liability Insur. Co., 2 Mass. Wk. Comp. Cases, 441 (decision of Com. of Arb., affirmed by Indus. Ace. Bd.). In Pampuro v. Murray Bros., 1 Conn. Comp. Dec. 674, where the employer's physician, being called twice by the employe because the Injured member he had been treating had become swollen, refused to attend, saying it was un- necessary, and the employe then procured his own physician, without any fur- ther notification to his employer, the employer was held liable for the expense of the employe's physician. In Vaughn v. American Coal Co., 1 Conn. Comp. Dec. 617, it was held that where the employer was tardy in providing a phy- sician for a serious case, and then provided a physician for one occasion only. 699 COMPENSATION § 195 telligence and other circumstances of the particular case.*'^ The •employer must, upon the happening of an accident, at once instruct the employe regarding the medical and surgical treatment to be fur- allowing the employe to remain in ignorance of Ms rights and duties, and on finding that another physician had been engaged, and being notified that he would drop the case if they so required, declined to disturb the situation, the employer was liable for the expense incurred. In CoUer v. Donohue, 1 Conn. Comp. Dec. 654, where the employer knew that the employ^ had been hurt, but took no steps to provide a physician, he Was held liable for medical expense Incurred by him. Where the employers did not furnish the necessary medical, surgical, and hospital treatment, taking the position that the work- man was not under the Act at the time of the accii^ent, such action was neg- lect and refusal such as renders them liable for the expense incurred by the employe. Vojacek v.' Schlaefer, Eep. Wis. Indus. Com. 1914r-15, p. 8. Competent physician. In Reed v. Orient Music Co., 1 Conn. Oomp. Dec. 36, It was held that a chiropractor was not a competent physician for the employ- er to provide to care for his employSs. Where he furnished a chiropractor, who after three treatments discharged the employ^, telling him he was able to work, and the employe continued to receive treatment from his ,own phy- sician, the employer is liable for the reasonable cost thereof. In this case Commissioner Chandler said: "The notion of competency, when embodied in a^ legislative act, connotes conformity to some prevailing standard. * * * There are numerous schools and cults enjoying limited patronage and making divers claims of ability to alleviate pain and cure disease, whose merits it is not necessary for me to consider. * * * When * * * the employer, operating under this statute undertakes to provide an exponent of any such school or cult as 'competent,' and the question of competency has to be passed upon by the Com- missioner, the measure of competency then becomes the prevailing standards of society, not the judgment or convictions of the [employer] however sincerely or disinterestedly exercised. * * * While it is not without the limits of possibility that some person or group of persons, either by reasoning on theo- retical grounds, or by experimentation, or even accident, might discover a new and better method than that generally practiced and taught, such a contingency is highly improbable, and the employer under this Act who pro- vides a practitioner of any such unusual method, contrary to the prevailing standards of society and the preference and consent of the injured employe, fails to conform to the provisions of section 7 of part B of the Act." 97 In Philp V. International Silver Co., 1 Conn. Comp. Dec. 448, where the employer put notices containing warning against danger of blood poisoning from a scratch and directing workmen to report at once, the notices being printed in English, in the pay envelopes, and a Greek workman, unable to read, speak, or understand English, did not go to a doctor until two or three § 195 workmen's compensation 700 nished. He must specifiSally instruct what to do and to whom to report. If the employe is not so instructed, and secures treatment on his own behalf, the employer is liable for the reasonable value of such treatment, even though he was ready and desirous of furnish- ing medical aid according to his own plans."* Wherever a large employer has provided^no adequate hospital facilities for serious cases, the California Commission will sanction the taking of em- ployes so injured out of the hands of the employer's physician and placing them in a proper hospital and under the care of a proper physician."" A definite offer is required of the employer.^ If he days after tlie injury, and, aside from showing his finger to the foreman, did not report the injury for some time, it was held, in view of his lack of intelli- gence, his conduct was not unreasonable, and that the employer was liable for medical expenses. In Forte v. Waterbury Mfg. Co., 1 Conn. Comp. Dec. 685, where, though the employer maintained an emergency hospital, it was not shown that any .rules had been passed or brought to the attention of the workmen requiring report of injury to such hospital, and an illiterate for- eigner reported his injury to his foreman the day after, and that he was re- ceiving medical attention therefor, but no offer of medical services was made to the employg, nor did the foreman report the injury to the proper officers, it was held that the employe had given sufficient notice, and his medical ex- pense was awarded. In Beese v. Yale & Towne Mfg. Co., 1 Conn. Comp. Dec. 154, it was held that where a workman told his foreman of an injury to his foot immediately, and on going to his employer's emergency room and seeing the shades drawn and the door closed, supposed the room was closed because it was a holiday and only a few of the men were working, and then went home, and summoned his own physician that night, he was justified in so doing, and the employer was held liable for his medical expense. »8 Deneny v. Panama-Pacific International Exposition Co., 1 Cal. I. A. C. Dec. 109. 89 Campbell v. To. E. White Lumber Co., 4 Cal. I. A. O. Dec. 33. 1 Where an employer does not definitely or clearly notify an Injured em- ploye, at a time when the employe is mentally competent to make decisions, that he would furnish medical and hospital service free of expense to the em- ploye, and it does not appear that the employe knowingly rejected any such offer, the employer is liable for the expense of medical and hospital treatment incurred by the employe. Trueblood v. County of Los Angeles, 2 Cal. I. A. C. Dec. 988. In Bradley v. Waterbury Clock Co., 1 Conn. Comp. Dec. 179, it was held that where the plaintiff gave no notice of the injury, a slight scratch. 701 COMPENSATION § 195 •does not offer or furnish the services in a seasonable time, the em- ploye must not delay in procuring them himself." The fact that it cannot be known until some time after the injury which of two ■employers is responsible does not relieve the responsible employer from providing necessary medical treatment after he has notice or knowledge of the injury.' The employer is liable for all reasonable consequences of his neglect to furnish the services, such as infec- tion resulting from poor treatment applied by the employe him- self,* incompetency of the physician the employe selects,' and infec- which became infected and necessitated the amputation of parts of the third and little fingers, until after he was taken to the hospital, but, on then giv- ing notice, the employer took no action, nor made any offer of medical treat- ment, such employer is liable for the reasonable expense incurred, more than A passive willingness to furnish treatment being required of him. 2 In delaying surgical treatment for more than two months after the in- jury, applicant not only jeopardized her own interests, but the interests of her employer, and in fact slept upon her own rights to demand medical and surgical treatment at the expense of her employer, and so forfeited them. Ash V. Barker, 2 Oal. I. A. C. Dec. 577. 3 Foley V. A. T. Demarest & Co., 1 Conn. Comp. Dec. 661. ■* Where disability was aggravated by conscientious, but improper, treat- ment given the injury by the injured employs herself, and infection resulted, ■which would have been avoided had the employer promptly furnished medical services, the employer was liable for the medical expenses consequent upon the aggravation. Forgues v. Southern Pacifio Co., 2 Cal. I. A. O. Dec. 1038. " Where a surgeon of applicant's own selection does not diagnose the case correctly upon first examination, the employer is not relieved of liability for the results of such mistake by not having furnished the treatment. Mitchell V. Occidental Forwarding Co., 2 Cal. I. A. C. Dec. 336. Where an injured employ^ is treated by an incompetent physician not licensed to practice in the state, and the treatment given the employg makes his injury worse, or causes permanent disability, and the employer has had sufficient opportunity to provide competent medical aid, and has failed to do so, the employer must compensate his Injured employ^ for all disability caused by his injury, includ- ing the aggravation thereof by malpractice. Employers and insurance car- riers must not sleep on their rights to designate the treatment that is to be had, and if they are negligent or careless in arranging for treatment, they cannot be absolved from the consequences of their neglect. Stockwell v. W«y- mlre, 1 Cal. I. A. O. Dec. 225. § 195 workmen's compensation 702" tion due to delay and uncertainty as to what physician he, should call." Where an employer or insurance carrier consents to the em- ploye obtaining his own physician, it is liable for the reasonable cost of his services/ even though the assent be only passive.' But if services are procured unnecessarily, when another good physician is in charge or is offered, the employer is not liable.* Nor is he lia- 8 Where an injured employfi, falling after notice to Ms employer to receive- medical assistance, goes first to one physician, and then to another, and then to a physician in a third town, in uncertainty what to do, and because of this indecision the infection requires amputation of the arm at the elbow, in- stead of merely a finger, the employer is responsible for the disability re- sulting and for the medical and surgical expense. Sams v. Komas & Dorros,- 2 Cal. I. A. C. Dec. 285. '' Where the employs, with the consent of his employer, selected a physician and was treated by that physician practically until his recovery, the insur- ance carrier could not then substitute its physician against the wishes of the employe. Fly v. San Diego Transfer Co., 2 Cal. I. A. C. Dec. 714. Wherfr an insurance carrier discovers that an injured employe of its insured is being treated by his own physician, and offers to pay the bill when rendered if it is in accordance with the fee schedule of the Commission, and -the physician subsequently renders a bill to an extent beyond that authorized in the fee schedule, such insurance carrier has waived its right to insist upon treat- ment of the injured employ^ by physicians of its own choice, and is liable for the reasonable value of the services of the physician procured by the em- ploye. Devlin v. Smith, 1 Cal. I. A. C. Dec. 418. 8 Where an employe was injured, and upon notifying the employer was- asked if he wanted to go to a certain hospital for treatment, to which he re- plied that he would go to his own doctor, in the absence of any dissent, the employer was liable for medical services rendered by the doctor of the em- ploye's selection. Read v. Bowman, 2 Cal. I. A. C. Dec. 681. 9 Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 96 Atl. 1025. In Wyrwas v. Bigelow-Hartford Carpet Co., 1 Conn. Comp. Dec. 326, where- the employer's physician rendered first aid treatment to the injured work- man, and then, sending him home, went for additional materials, but on ar- riving at the house, prepared to give further treatment, was told another physician had been summoned, and that his services were not required, it was held the employe had exercised his option to pay and provide his own physi- cian, and that the employer was not chargeable for medical expense (Wk. Comp. Act, pt. B, § 7). In Searles v. Connecticut Co., 1 Conn. Comp. Dec. 97 (affirmed by the superior court on appeal), it was held that where an em- 703 COMPENSATION § 19^ ble for doctor and hospital bills where he is given no chance to name the attending physician.^' § 196. Where physician is furnished by employer If the physician which the employer selects prematurely dis- charges the employe as cured, and the employe procures further treatment, the employer must stand the expense thereof.^^ The ployg, suffering with a hernia sustained by accident, went to his employer's physician, and was told that an operation was advisable and necessary, but said physician refused to perform or direct an operation because the work- man had had a prior hernia, and he, suffering great pain, went to his own physician, and after notlfymg his employer that he was about to undergo an operation, and receiving no offer of treatment, had the operation performed by his own physician, he was justified in so doing, and the employer was lia- ble for the reasonable expense incurred. Where an employ© told his employer's representative that he was suffering some physical ailment, refused an offer of the services of one of the company doctors, went home, and was examined by his own physician, and was later operated on in pursuance of his own arrangements, he could not hold the em- ployer liable for the amount of such expense; that right being given only where the employer neglects or refuses to provide the services. Reseberg v.. Hamilton Mfg. Co., Rep. Wis. Indus. Com. 1914-15, p. 14. 10 Bakiewicz v. National Brake & Electric Co., Rep. Wis. Indus. Com. 1914- 15, p. 11. In Sirica v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 171, it was held that where the workman understood that he could have his injured hand treated at an emergency hospital provided by his employer, and could have the services of a skilled physician free of charge, but decUned and selected his own physi- cian, he must stand his own expense. 11 Where an employe is treated by physicians indicated by the employer, or his insurance carrier, is discharged by them as cured, and subsequently ob- tains treatment from other physicians, beuig in fact afficted with traumatic neurosis after the date of his discharge, the employer or insurer is liable for the reasonable cost of the subsequent treatment. Hakala v. Jacobsen-Bade Co., 1 Oal. I. A. C. Dec. 328. Where an employs is given treatment by a phy- sician designated by the employer, or the latter's Insurance carrier, and the physician discharges the employ© as cured, but thereafter the employ© obtains treatment from another physician of his own choice for the same injury, and it is shown to the satisfaction of the Commission that the disability had not terminated at the time of his first discharge, he Is entitled to an award for § 196 workmen's compensation 704 employer is also responsible for a mistaken diagnosis of the case by its own physician.^" It is within the province of a surgeon placed in charge by the employer to make all necessary arrangements for such treatment, consultation, and assistance as in his judgment are reasonably required to cure and relieve the patient from the effect of the injury, and thest^ expense is properly chargeable against the defendant.^' In the absence of evidence which clearly establishes serious malpractice, it will be assumed that injured persons will recover as speedily when in the care of one surgeon as another, where such surgeons are of standing in the community and are regularly licensed to practice their profession, and their credentials show that they have had, regular training to prepare them for do- ing surgical work.^* The amount of services furnished by the em- tbe reasonable value of surgical treatment furnished by the second physician. Douglas V. J. & J. Drug Co., 2 Oal. I. A. C. Dec. 164. 12 While an employer or insurance carrier is justified in acting upon the recommendation of its physician that no disability was sustained by an em- ployS claiming to have been injured, the employ^ is not deprived of his right to compensation and medical attention at the expense of the employer, vphere such diagnosis was in fact erroneous, and the employ 6 was in fact disabled. Wayman v. HufC, 1 Cal. I. A. C. Dec. 358. Such advice does not absolve the employer or his insurer from the consequences of a mistaken diagnosis and consequent inadequate treatment; The rights of the injured employ^ are not lost by reason of the mistakes of physicians whom the employer or his insur- ance carrier designate to furnish medical treatment. Johnson v. Pacific Sure- ty Co., 1 Cal. I. A. C. Dec. 560. 13 Swain v. Pacific Telephone & Telegraph Co., 2 Cal. I. A. C. Dec. 360. When the employer's physician in charge of an injured employ^, not desiring to assume sole responsibility of treating a grave injury, acquiesces in the sug- gestion of the family of the injured employ^ to call in consultation another surgeon, and co-operates with and operates under the direction of the sur- geon so called, the necessity of such assistance is presumed. Id. 1* Tennant v. Ives, 2 Cal. I. A. C. Dec. 862. In the absence of convincing testimony, the Commission will not presrune that, if the employg had been in the hands of a physician furnished by the defendants, he would have been more quickly cured than if in the hands of any other surgeon authorized to practice in the state. Telford v. Healy-Tib- bitts Cons. Co., 3 Cal. I. A. O. Dec. 41. T05 COMPENSATION § 197 ployer after the statutory time limit has expired is not to be deduct- ed from the disability compensation.^" It may be of advantage to the employer to continue medical treatment in an endeavor to gain a cure and relieve himself from further disability indemnity pay- ments. If he desires to do so, the California Commission has de- cided that it will use its power to require the employe to submit to such treatment, and will authorize a suspension of payments on re- fusal to accept or co-operate with the treatment thus offered.^" § 197. Change of physician or service An employer or insurer may demand a change of physicians at the close of the emergency treatment immediately following the in- jury, or within a reasonable time thereafter, but cannot delay for several days beyond that, and until arrangements for the continua- tion of treatment have been entered into, and then make such de- mand, particularly where the patient is seriously ill.^^ If the serv- ices are offered by the employer within a reasonable time, and are 15 The California Commission is without authority to deduct from the com- pensation due an injured employ^ the cost of medical services furnished at the expense of the employer after the expiration of 90 days from the date of the accident. While the employer Is under no duty to furnish medical treat- ment after 90 days, the cases in which the Commission can allow deductions from compensation due are limited by section 29 of the Act to the situations mentioned therein, which do not Include the present case. Cypher v. United Development Co., 1 Cal. I. A. C. Dec. 425. 16 Hakala v. Jacobsen-Bade Co., 1 Cal. I. A. C. Dec. 328. 17 Jameson v. Bush, 1 Cal. I. A. C. Dec. 507 In case of an injury of se- rious character, that physician should be summoned by either party who can be the most quickly obtained, and he should render such first aid as the necessities of the case require. This is a proper charge against the employer and its insurance carrier, no matter by whom furnished. Immediately there- after, the employer should Instruct his Injured employ^ what physician Is to have charge of his case, and to what hospital he shall go^ if any. Scott v. JEtna Life Insur. Co., 1 Cal. I. A. C. Dec. 343. If they fail to furnish a physi- cian seasonably, they cannot require the employ^ to change physicians when they get ready to furnish one. The employer has a right to select the phy- sician. He must take the initiative, and must act promptly in so doing. If HoN.CoMP. — 45 § 197 workmen's compensation 706 refused by the employe, the employer is released from liability for medical and surgical treatment.^* Where an employer or insurance carrier offers an employe his choice of a truss or an operation for he fails to do so, he cannot afterward require the injured person to change his physician. Bassett v^ Thomson Graf Edler Co., 1 Cal. I. A. C. Dec. 60. Where an employ^ was not instructed at once by the employer as to where to go for medical treatment at the expense of the employer, and before re- ceiving such notice has incurred reasonable expenses for treatment and made arrangements for its continuance, he Is not required, upon receipt of notice by the employer, to dismiss his own physician and put himself under the med- ical attention offered by the employer. Denehy v. Panama-Pacific Interna- tional Exposition Co., 1 Cal. I. A. C. Dec. 109. Where an employ^ is seriously injured, and a physician is called at the instance of the employer, and per- forms a necessary capital operation, and the Insurer does not tender a physi- cian until after the operation has been performed, it is too late for the in- surance carrier to insist upon a change of physicians. It is an unreasonable request and an improper undertaking to change physicians immediately after a capital operation has been performed. Such change should be made only when it becomes manifest that the operating surgeon is wholly unfit to take care of the case. Matteoni v. Roberts & Clark, 1 Cal. I. A. C. Dec. 356. 18 Kelley v. Pacific Electric Ky. Co., 1 Cal. I. A. O. Dec. 150. Where proper medical and surgical services to relieve an injured employ^ were at once tendered by the defendants and refused vnthout adequate cause, the employs thereupon procuring the services of his own physician, he was not entitled to have any allowance made for the charges incurred by him for services rendered. Eby v. Weaver, 2 Cal. I. A. C. Dec. 715. If an injured employe continues with medical treatment of his own selection after the em- ployer's insurer has seasonably tendered proper medical attention, he must stand the cost himself. On the other hand, if he continues such treatment by arrangement of the insurance company, the duty of the latter to pay for such treatment arises through its contract with the physician, and is not a liability imposed by the Compensation Act. The Industrial Accident Commis- sion is therefore without jurisdiction to render an award for the reasonable value of services in either event. Ely v. Maryland Casualty Co., 1 Cal. I. A. C. Dec. 335. Where the employer or his insurance carrier notifies an injured employs seasonably that he will be treated free of charge by the physician furnished by the former, and direct him to go to such physician, the employ^ is not justified in going elsewhere for medical aid, and the employer and his insurer are not liable for the cost of any medical attention given the injured workman by any other physician. Newkirk v. Union Ice Co., 1 Cal. I. A. O. Dec. 166. Where an employ^ is tendered and refuses surgical treatment which would necessitate hospital care, and later is treated by his own physician 707 COMPENSATION § 197 the treatment of his hernia, and a truss is chosen, but before a re- quired approval of this settlement by the California Commission the employe requests an operation, and it appears that he is entitled to relief, he will be required to refund the cost of the truss before be- ing tendered an operation at the expense of the insurance carrier.^" If they furnish medical treatment, and the employe becomes dis- satisfied and forsakes the treatment for that of his own procuring, unless the furnished treatment is inadequate or inefficient, he must bear the expense he incurs ; ^^ but, if the services are inefficient or and Incurs necessary hospital expenses, tlie employer is not liable for such expenses. Koponen v. Union Lumber Co., 2 Cal. I. A. 0. Dec. 1055. Where a clerk was asked to bind a slight laceration of an injured hand of an employ^, and subsequently infection occurs, and with knowledge that there was an employer's physician available, the employS's mother calls in a different physician to treat the hand, and a few days thereafter, when the employer received notice of the injury, offer was made of the services of the company physician, which the employ^ refused, the employer is not liable for the medical expense incurred. McKnight y. American Can Co., 2 Cal. I. A C. Dec. 427. 18 Taylor v. Spreckels, 2 Cal. I. A. C. Dec. 62. 20 The right to medical and surgical treatment is forfeited if the injured man, without warrant, forsakes the medical service supplied by the employ- er. Casanegri v. Madera Sugar Pine Co., 1 Cal. I. A. C. Dec. 589; Evans V. Pacific Coast Casualty Co., 1 Cal. I. A. C. Dec. 140. Where the employer, the county of Los Angeles, had placed the applicant in the county hospital after his injury, and he later became dissatisfied and left the hospital without the consent of the employer, the county is not liable for the reasonable value of medical treatment furnished by other than its own hospital or physicians. Van Lanker v. County of Los Angeles, 1 Cal. I. A. C. Dec. 107. Where it is shown that the injured employ^, while receiving hospital and medical treatment furnished by the employer, and, contrary to the wishes of his employer and the advice of the attending physician, gives up such treatment and secures elsewhere and of his own selection other med- ical treatment, he is not entitled to reimbursement for the charges of the serv- ices incurred by him. (Commissioner French dissented on the ground that the facts to him showed an implied permission to secure medical treatment elsewhere.) O'Connor v. Yosemite Lumber Co., 2 Cal. I. A. C. Dec. 334. Where it is understood by the workmen of the defendant employer generally, and by the applicant in particular, that the employer maintains a hospital upon its grounds in which all the employes are entitled to treatment free of charge for § 197 workmen's compensation 708 inadequate, the employe is justified in changing to his own physi- cian, and will be allowed the reasonable cost of the services. ^^ accidental injuries received by them, and the applicant after treatment at such hospital becomes dissatisfied and secures other treatment of his own choice, without the consent of the employer, he is not entitled to an award for the cost of the treatment rendered by his physician, in the absence of proof that the employer's hospital service was ineflicient or inadequate. Mc- Bride v. Union Iron Works, 1 Cal. I. A. C. Dec. 376. Where the cost of main- taining a hospital for the treatment of injured employes upon the grounds of the employer is wholly or partly defrayed by an association of the em- ployes, or by small assessments deducted from the wages of the employes, and an injured employ^ receives treatment from such hospital for a time, but becomes dissatisfied and procures treatment of his ovim choice, the employer is not liable for such treatment. The employer having designated such place as a place where his employes can obtain treatment free of cost to them (as far as the actual cost of the treatment is concerned), the only question is as to the duty of the employer to refund the cost of treatment to the hospital association. While this is a fit subject for legislative control, it is one with which the Industrial Accident Commission has nothing to do as the law now stands. Id. The failure of the employer to disclaim liability for treatment elsewhere on l)eing informed of it does not make him liable for such outside treatment, in the absence of express consent to its being furnished at his expense. Id. Where an injured employ^ becomes dissatisfied with the med- ical treatment furnished by his employer, and procures other treatment of his own selection, and is thereafter operated upon by his own physician, and it is claimed by the employer that such operation was unjustifiable, and un- necessarily prolonged the workman's disability, such claim is not a defense against liability for compensation for the whole period of disability actually sustained. It is, however, a good defense against liability for the cost of medical treatment procured by the applicant, following his refusal of further treatment supplied by the defendant. Tennant v. Ives, 2 Cal. I. A. C. Dec. 169. 21 The California Commission will exact from the physician and surgeon whom the employer selects the utmost eye and attention of persons injured by accident. But testimony of Injured persons as to neglect or poor treat- ment by physicians or at hospitals supplied by the employer, unsupported by evidence of physicians in charge, is to be carefully scrutinized, as persons in pain and bedridden are wont to regard all hospitals as places of torment. Unless such poor treatment be clearly established, an employe abandoning medical attention or hospital accommodations furnished by his employer does so at his own cost. Kelley v. Pacific Electric Ry. Co., 1 Cal. I. A. C. Dec. 150. Where the employe is dissatisfied with the advice given him by the 709 COMPENSATION § 197 The employer's assent to a change of physicians does not bind the insurer, where the original services were furnished by it.^'' physician or surgeon first selected by the insurance company or employer, and after the communication of such dissatisfaction he is directed to another surgeon, who is found to be out of town, and thereupon he selects his own family physician, he is entitled to reimbursement for the cost of such services. Mass. Bonding & Insur. Co. v. Pillsbury, 2 Cal. I. A. O. Dec. 480, 170 Cal. 767, 151 Pac. 419. Where an employe, who had sustained a fracture of the right clavicle, was on the day following put by the employer in the care of a physician and told that some one else would be called, if desired, but such physician who attended him, because of lack of facilities in the counti'y town, had no means of determining, and did not definitely determine, the na- ture and extent of the injury, and the employfi, after remaining for two days longer, without receiving or asking for further medical treatment, left the town and entered a hospital in San Francisco, where the fracture was dis- covered and expert treatment given, the employer was liable for such treat- ment. Miller v. .SEtna Springs Co., -2 Cal. I. A. O. Dec. 781. Where the medical treatment accorded an injured employg was shameful and utterly in- adequate, and likely to result in death, and the refusal of the physician of the employer to permit the employe to go elsewhere for treatment was un- justifiable, the employer must pay the full medical bill incurred by the em- ploye in securing proper treatment. Campbell v. L. B. White Lumber Co., 3 Cal. I. A. C. Dec. 33. In Patralia v. American Brass Co., 1 Conn. Comp. Dec. 412, where the phy- sician furnished by the employer to treat claimant's hernia supplied a truss, and, that giving no relief, furnished a second, and told claimant to go back to work in a couple of days, and he, trying to work, was unable to do so, and was then denied the privilege of seeing the physician because of the ex- pense, whereupon he submitted to an operation by a surgeon of his own choice, it was held the employer had failed to promptly provide proper treatment,, and was liable for the expense of the operation incurred by the employe. An employe, not being satisfied with the medical services furnished by the Insurer's physician, engaged his own physician and claimed compensation on account of his liability to his physician for the services rendered him. It was. agreed that the employe was justified in changing physicians, and was held that he was entitled to a reasonable allowance for the services he secured. O'Brien v. Employers' Liab. Assur. Corp. Ltd., 2 Mass. Wk. Oomp. Cases, 398 (decision of Com. of Arb.). 22 Where an injured employe,' while under treatment by a ph,vsician and at a hospital admittedly supplied by the insurance carrier, abandons such treat- ment without adequate cause or justification, and without the knowledge of the insurance carrier, and procures at his own expense other hospital and § 198 workmen's compensation 710 § 198. Expense for which employer is liable Medical and surgical services have been held to include dental work/' and first aid treatment,^* and expense necessarily incurred by him in furnishing two physicians,^^ and securing a physician from a distance; "' but not treatment by a Christian Science prac- titioner,^^ or the expen.se of an artificial limb.^' The fact that the medical treatment, with his employer's consent, the insurance carrier is not liable for the medical and hospital charges incurred by him, notwithstanding his employer's consent. Spring v. J. G. Miller Co., 3 Cal. I. A. C. Dec. 4. 23 Where the accident causes the loss of several teeth, but no other injuries or loss of working time, the employe is entitled to compensation for the rea- sonable value of dental services rendered to cure and relieve him from the consequences of the accident. Day v. Lincoln Sightseeing Co., 1 Gal. I. A. C. Dec. 269. 2* An employe must not refuse first aid treatment at the hands of the per- son designated by the employer to render first aid services and provided with 2B In Wessman v. Bloomfield, 1 Conn. Comp. Dec. 336, it was held that, while the Act requires the furnishing of only one physician, if the employer sees fit to furnish two different physicians or surgeons, he must pay them both. 26 In Hodge v. Hoffman, 1 Conn. Comp. Dec. 322, where the employer con- sulted the employe as to what surgeon should be called to treat the frac- ture, and in pursuance of this discussion secured a surgeon from a town 23 miles away, the employer was liable for the reasonable value of the services rendered, though their cost was considerably more than they would have been had a surgeon been secured in the town where claimant resided. 2 7 Where the ailments of the applicant indicated necessity for surgical treatment, and she had relied for two months largely upon treatment by a Christian Science practitioner, regardless of what may be said in favor of treatment at the hands of Christian Science practitioners for other ailments occasioned by industrial accidents, the California Commission cannot hold that such treatment may reasonably be required to cure and relieve as these words are used in the Compensation Act. Ash v. Barker, 2 Cal. I. A. C. Dec. 577. As to competency of physician furnished or offered, see § 195, note 96, ante. 2 8 In Pedroni v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 670, it was held that the medical, surgical, and hospital expenses required of the em- ployer by section 7 of part B of the Act did not include the expense of an artificial limb, where the injury necessitated the amputation of the natural Umb. 711 COMPENSATION § 198 claimant was not sent to a hospital, such treatment not being nec- essary in view of the extent of the injury, does not entitle him to recover the value of his board during incapacity.^ ° The California Act limits the extent of the medical services for which the employer is liable to 90 days, and after that time the Commission can neither compel the employer to furnish, nor the employe to accept, such services.^" The Michigan limit is 3 weeks, commencing when it is first needed,^ ^ and in Iowa there is a double limit of $100 in cost or two weeks in time.^^ In Minnesota the court has no right to the proper eg[uipment for this purpose, merely because such person is not a physician or person skilled in such treatment. The law of California re- quires every considerable employer of labor to keep in his camp a first aid kit, in order that any injury may be washed with antiseptic solution and dressed in a way to keep dirt out of it and avoid infection, and it is the duty of every Injured employ^ to submit to that treatment until the services of a physician can be obtained. But where an employ^ refuses first aid treatment tendered him, for the reason that no physician was present to administer it, the employer is not discharged thereafter from his duty to furnish treatment by a physician. Gregory v. Merrill Metallurgical Co., 1 Cal. I. A. C. Dec. 408. 29 Hurlowski v. American Brass Co., 1 Conn. Comp. Dec. 6. 30 (St. 1913, c. 176, § 15 [a]) Burkard v. San Francisco Breweries, Ltd., 2 Cal. I. A. C. Dec. 365. Where, owing to mistaken diagnosis and inadequate treatment, the 90-day period during which medical treatment can be required of the employer or Insurance carrier has elapsed without effecting a cure, the Oommissiou has no power to require the employer or insurance carrier to furnish further treatment, nor can it require the Injured person to devote any part of his disability indemnity, to procuring treatment. Johnson v. Pacific Surety Co./ 1 Cal. I. A. C. Dec. 560. There was a similar decision under the Koseberry Act. Marshall v. Ran- some Concrete Co., ,2 Cal. I. A. C. Dec. 923. SI Claimant was injured while in the exercise of his ordinary duties, but serious effects did not develop until more than eight weeks after the accident occurred. Payment for medical and hospital services was disputed on the 32 An employer is required to furnish the injured employ^ with reasonable surgical, medical, and hospital services and supplies, but he need not fur- - nlsh any in excess of a cost of $100 or for more than two weeks following the necessity for medical attention. Op. Sp. Counsel to Iowa Indus. Com. (1915) p. 30. § 198 workmen's compensation 712 award medical expenses in excess of $100, unless a special applica- tion is made for the excess, and then not in excess of $200.^^ The provisions made by the Wisconsin Act for medical aid are probably- more liberal than the provision made by any other Compensation Act in the United States.'* The time limit under this Act is 90 days. Where part of the medical expense which is sought to be charged to the employer was iticurred after the 90-day maximum period had expired, and the remainder without knowledge on the part of ground that they were rendered more than three weeks after the accident, but the Board held that an employer must furnish the injured employ^ medi- cal and hospital service, not exceeding three weeks in point of time, beginning at. the time the injury requires it. (Wk. Comp. Act, pt. 2, § 4) In re Hart, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 18. S3 State ex rel. Anseth v. District Court (Minn.) 158 N. W. 713. 8* In the report of the Wisconsin Industrial Commission, 1914r-15, It Is said: "The Wisconsin Act provides more liberal medical aid than any other Compensation Act in the United States. In this respect the law is eminently wise. On economic grounds alone It is cheaper for the employer to save an arm by an expensive operation than to pay indemnity for the loss of an arm. It is for the interest of the employer to give the best medical attendance; that it is also for the interest of the workman and of the community goes without saying. There is reason to believe, however, that medical service in this state is costing too much. The Commission's records indicate that physicians and hospitals received over $400,000 for services rendered under the Compensation Act during the last fiscal year. This is nearly one-half the total amount paid directly to injured workmen and their families. It is probable that the Compensation Act has very greatly increased the income of the medical profession as a whole. Hundreds of serious injuries which doc- tors formerly treated on a charity basis are now paid cases. This is as it should be. The medical profession ought not to be called upon to take care of injured workmen for less thah the service is fairly worth. On the other hand, since the pay is certain and the number of cases large, the fees should not be exorbitant. A great number of physicians, including the recognized leaders of their profession, have shown a spirit of co-operation and have ren- dered highly skilled service at very moderate cost. Some, however, have been disposed to feel that the employer or the insurance company is rich and to render bills based upon that assumption. Chapter 241 of the Laws of 1915 gives the Commission power to pass upon the reasonableness of medical and hospital bUls in disputed cases. It is hoped that a basis of charge can be agreed upon which will be fair to all parties concerned." 713 COMPENSATION § 198 the employer that the workman had sustained an accident, or that he was in need of treatment, the claim will be dismissed." The date of the injury, from which the employer is liable for medical expense under these Acts, is the time when the injury becomes effective, and causes illness.^ ° The liability of the employer is limited to services required by the accident, and if the accident causes an extension of a prior condition and disability, and an operation is performed to cure the entire abnormality, the employer is only liable for that portion of the expense which is required to repair the injury caused by the accident.^^ He is liable only for "reasonable expense," which is to be the ordinary cost of like treatment,*' and not increased because 35 Oberts v. Wisconsin Telephone Co., Eep. Wis. Indus. Com. 1914-15, p. 24. 38 Barton v. N. X., N. H. & H. R. R. Co., 1 Conn. Comp. Dec. 227. In Peterson v. H. B. Beach & Sons, 1 Conn. Comp. Dec. 469, It was held that an employ^ is entitled to 30 days' medical treatment in addi|;ion to the day on which he is injured. In Kiniavsky t. New Haven Carriage Co., 1 Conn. Comp. Dec. 119, it was held that the day of injury is not to be counted in figuring the 30 days for which the employer must furnish medical treat- ment; he is liable for 30 fuU days, beginning the day after the injury. 3r Loustalet t. Metropolitan Laundry Co., 1 Cal. I. A. C. Dec. 318. 3 8 The amount allowed for medical and hospital services will in no case exceed such as is ordinarily charged and paid for similar services in the community where they are rendered. In re David Bruns, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 5. Expenses incurred by an employ^ in excess of sum awarded were here declared unreasonable and not given. United States Fidelity & Guaranty Co. v. Bosenbach, 1 Cal. I. A. C. Dec. 92. Reasonableness of charges and expenses. — Reasonable medical charges for setting and treating two broken ribs would not exceed $15. Demott v. Stone & Webster Construction Co., 1 Cal. 1. A. C. Dec. 187. Where a son gives up employment in which he is earning $3 a day to care for his injured father, from May 28 to July 2, $90 Is the reasonable value of such services. Kelley 7. Manley, 2 Cal. I. A. C. Dec. 318. Where the physician in charge, while convinced of the futility of an operation to save the workman's life, calls in three other physicians to consult with as to the proper course, the workman dying next day without the performance of an operation, a charge of $10 each for the consulting physicians was a reasonable charge and such services were such "as may reasonably be required." Schlegal v. Frankfort General § 198 workmen's compensation 714 it is he or the insurer who must pay.'° The reasonableness of a charge depends on the position of the average employe, not on the Insur. Co., 2 Cal. I. A. G. Dec. 491. In Razzlunl v. John Salter & Son, 1 Conn. Comp. Dec. 687, a physician's charge of $3 for dressings of a fracture of the great toe, accompanied by Infection, done at the home of the patient a mile and a quarter from the physician's office, he furnishing all gauze and other materials, was held ^asonable and approved. In Swanson v, Sargent & Co., 1 Conn. Comp. Dec. 433, where it was necessary. In order for the claimant to reach the office of the physician furnished by his employer, to hire a horse and wagon, and later to pay car fare, such expense was held reasonably included under "medical aid," and was chargeable to the employer (Wk. Comp. Act, pt. B, § 7). In Beinotovitz v. National Iron Works, 1 Conn. Comp. Dec. 623, where it appeared highly probable that, had the employ^ been paying his own bill, he would have been sent to the public ward of the hospital, instead of a semiprivate, and would there have received the services of a physician without extra charge, and treatment entirely adequate to the nature of his injury, the surgeon's bill for attendance upon Mm was disap- proved; it being especially emphasized that it was the surgeon claiming re- muneration who had sent him to the semiprivate ward. In Johnson v. Spring Glen Farm, Inc., 1 Conn. Comp. Dec. 593, where the physician called up the president of the respondent company shortly after he was taken to the hos- pital, and discussed the treatment to be provided, the president agreeing that the workman be sent to a private ward, where his surgeon's bill would be extra, a bill of $100 for the operation and $1 each for 54 dressings was held reasonable and approved. In Chrlstophson v. Turner Construction Co., 1 Conn. Comp. Dec. 591, a hospital bill for $259.36, including a special mal'e nurse, rendered necessary because the patient was for a time violently in- sane, and attendance and room at $18 per week for 3 */7 weeks, was approved, in addition to the physician's bill. The injury consisted of a broken collar bone and a fracture at the base of the skull, and by excellent care provided the employ^ entirely recovered. It appearing that the hospital made no profit, and that the exigencies of the particular case called for unusual treatment, the charge was held reasonable. In Barton v. N. Y., N. H. & H. R. K. Co., 1 Conn. Comp. Dec. 227, it was held that, while ordinarily the pub- lic ward in a hospital is ample provision of hospital treatment, where such public ward is filled, it is reasonable for the workman to be treated in a semiprivate ward costing $3 per week more. In Peterson v. H. B. Beach & Sons, 1 Conn. Comp. Dec. 469, on the approval or disapproval of a physician's 80 The amount allowed for reasonable expenses of medical and surgical treatment should be the fair value of the service as such — -neither more nor less because of the employer being liable therefor. City of Milwaukee v. Miller, 154 Wis. 652, 144 N. W. 188, L. R. A. 1916A, 1, Ann. Cas. 1915B, 847. 715 . COMPENSATION § 108 financial position of the particular man treated.*" As said in a Con- necticut case : "The amount to be charged by the physician ozier Motor Co., 187 Mich. 660, 154 N. W. 67. 38 Cutaria v. Swieberg, Bulletin No. 1, 111., 153. § 217 workmen's compensation 774 will tend to arouse prejudice against the employer, as where it shows ill treatment of the employe by the employer's foreman."^ Unsworn opinion evidence, given without notice to the employer or insurer, or opportunity to interrogate the witness or make ad- ditional proof, should not be considered.'* While, on review by the courts of many ^ates, the finding of a coroner or hig jury is inadmissible in evidence on the trial of an issue as to the cause of death, the rule is otherwise in Illinois, and in that state the inquest of the coroner and the verdict of the jury are competent evidence. '° An admission by an employer against his interest should be given its full force, the same as in an action at law, and is equally good against his insurance carrier.*' § 217. Hearsay A provision authorizing a Commission to disregard "technical rules" does not usually authorize an award made on hearsay evi- dence; the rule against hearsay evidence being more than a mere artificial technicality of law.*'- Many considerations preclude the 87 Kuth V. Wltherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403. 3 8 Pacific Coast Casualty Co. v. PlUsbury, Indus. Ace. Com., 171 Cal. 319, 153 Pac. 24 ; McCay v. Bruce, 2 Cal. I. A. 0. Dec. 975. so Armour & Co. v. Indus. Board of 111. (1916) 273 111. 590, 113 N. E. 138; Victor Chemical Works v. Indus. Board of lU. (111. 1916) 274 111. 11, 113 N. E. 173. The admissibility of such evidence has been declared in the following cases, which include actions on contract of life insurance, a suit to set aside a will, and actions arising from negligence: United States Life Ins. Co. v. Vocke, 129 lU. 557, 22 N. E. 467, 6 L. R. A. 65 ; Pyle v. Pyle, 158 111. 289, 41 N. E. 999 ; StoUery v. Cicero & Proviso Street Ry. Co., 243 111. 290, 90 N. B. 709 ; Grand Lodge I. O. M. A. v. Wieting, 168 111. 408, 48 N. B. 59, 61 Am. St. Rep. 123 ; Foster v. Shepherd, 258 111. 164, 101 N. E. 411, 45 L. R. A. (N. S.) 167, Ann. Gas. 1914B, 572 ; Devine v. Brunswick Balke Co., 270 111. 504, 110 N. B. 780. There is no distinction in principle between these cases and such as arise under the Workmen's Compensation Act. Armour & Co. v. Indus. Board of 111. (1916) supra. 40 Moss V. Ames Iron Works, The Bulletin, vol. 1, No. 8, p. 9. *i Englebretson v. Indus. Ace. Com., 170 Cal. 793, 151 Pac. 421; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Gas. 1916C, 771. An award based on hearsay evidence will be set aside. Englebretson v. 775 SETTLEMENT OF CONTEOVBRSIES § 217 admission of hearsay evidence. The unreliability of a relation by one person of statements made to him by another is so well known that it has become customary and is considered necessary for courts, in cases, where oral -admissions of a party are proved against him, to instruct the jury that they must view such admissions with caution, because of the tendency of witnesses to make perverted or inaccurate reports. There are many decisions of courts of the highest standing declaring the importance and substantial character of the rule against hearsay testimony. It has been said that the fact "that this species of testimony supposes some better testimo- ny which might be adduced in the particular case is not the sole ground of its exclusion. Its intrinsic weakness, its incompetency to satisfy the mind of the existence of the fact, and the frauds which might be practiced under its cover combine to support the rule that hearsay evidence is totally inadmissible. * * * The danger of admitting hearsay evidence is sufficient to admonish courts of jus- tice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule, the value of which is felt and acknowledged by all. If the circumstance that the eyewitnesses of any fact be dead should justify the introduction of testimony to establish that fact from hearsay, no man could feel safe in any property, a claim to which might be supported by proof so easily Indus. Ace. Com., supra; Employers' Assur. Corp. v. Indus. Ace. Com., 170 Cal. 800, 151 Pac. 424. The rule against the admission of hearsay evidence as proof of a fact is more than a mere technical rule of admission, and is not to be considered as one of the technical rules of evidence referred to in sec- tion 77 of the Compensation Act. Bnglebretson v. Indus. Ace. Com., 2 Cal. I. A. C. Dec. 449. The Industrial Accident Commission has no power to make an award, where the only evidence of accidental injury consists of hearsay testimony, notwithstanding the provision of section 77 of the Compensation Act that hearings before the Commission "shall be governed by this Act and by the rules of practice and procedure adopted by the Commission, and in the conduct thereof neither the Commission nor any member thereof nor any referee appointed thereby shall be bound by the technical rulps of evidence," and notwithstanding the provision of subdivision 6 of section 75, which pur- ports to give to the Commission the power "to regulate and prescribe the na- ture and extent of the proofs and evidence." Id. § 217 workmen's compeksation 776 obtained." *^ But, under the provision of the New York Act that the Commission shall not be bound by statutory rules of evidence or technical rules of , procedure, the Commission is authorized to receive and consider, not only hearsay testimony, but any kind of evidence that may throw light on a claim pending before it.*' In this connection it shpuld be noticed, however, that though the New York Commission in its investigations may receive hearsay *2 Englebre'tson v. Indus. Ace. Com., 170 Cal. 793, 151 Pac. 421, quoting Chief Justice Marshall, in Queen v. Hepburn, 11 U. S. (7 Cranch) 296, 3 L. Ed. 348, holding that the reasons for excluding hearsay evidence were these: "First, because the averment of fact does not come to the jury sanctioned by the oath of the party on whose knowledge it is supposed to rest ; and, secondly, because the party, upon whose interests it is brought to bear, has no oppor- tunity to cross-examine him on whose supposed knowledge and veracity the truth of the fact depends" — citing 1 Greenleaf on Evidence (16th Ed.) page 183, § 99a, wherein Mr. Greenleaf says: "To these reasons may be added considerations of public Interest and convenience for rejecting hearsay evi- dence. The greatly increased expense and the vexation which the adverse party must incur in order to rebut or explain it, the vast consumption of pub- lic time thereby occasioned, the multiplication of collateral issues for decision by the jury, and the danger of losing sight of the main question and of the justice of the case if this sort of proof were admitted, are considerations of too grave a, character to be overlooked by the court or the Legislature in de- termining the question of changing the rule." The above case also dies 2 Wigmore on Evidence,, p. 1697 ; Woolsey v. Pethlck Bros., 1 Butterworth, 411 ; Gilbey v. Great Western Ry. Co., 102 L. T. 202, 3 Butterworth, 135 ; Amys v. Barton, 5 Butterworth, 117. *3 (Laws 1914, c. 41, § 68) Carroll v. Knickerbocker Ice Co., 218 N. T. 435, 113 N. E. 507, reversing 169 App. Div. 450, 155 N. Y. Supp. 1; Putnam v. Murray, The Bulletin, N. T., vol. 1, No. 4, p. 9. Commissioner Lyon said la StadtmuUer v. Travelers' Insur. Co., The Bulle- tin, N. T., vol. 1, No. 4, p. 9, that "it would be perfectly proper for the Com- mission, ,if it thought the weight of the hearsay evidence efficient, to grant compensation on that evidence alone, but if it were the only evidence in the case I should personally hesitate very seriously before doing so. I do not un- derstand that the opinion of the Appellate Division goes any farther than to make it possible for this Commission, in carefully weighing evidence, to make a finding upon hearsay evidence alone. I do not understand that the Appel- late Division has in any way intimated that this Commission should make such a finding on such evidence, unless it is convinced by the weight of tLj evidence of its truth. 777 SETTLEMENT OF CONTROVERSIES § 218 testimony, the probative eflfect of such evidence is unchanged, and an award which is altogether dependent upon such testimony can- not be sustained, where there is substantial evidence to the con- trary.** Thus hearsay testimony of the deceased workman's state- ments as to the cause of thcaccident, made at a time when he was in a highly nervous state, which resulted in delirium tremens, causing death, is no evidence at all, where there is substantial legal evidence that, no such accident happened.*" § 218. Declarations of workman Statements made by the injured workman relative to his bodily or mental feelings may be admitted, but his statements relative to the cause of his illness should be excluded.*" This is true of state- ments made by a deceased workman to a fellow servant as to the cause of his injury.*' The statement of a workman, made imme- diately after an accident, that he had received a pin prick while cleaning spittoons, made when he was unconscious of the tragical results which were to follow, was the best evidence of the surround- ings and circumstances of the cause of his fatal malady.** *4 Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 113 N. E. 507, reversing 169 App. Div. 450, 155 N. T. Supp. 1. 45 Id. 48 Eeck V. WMttlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771 ; GUbey v. Great Western Ry. Co., 3 B. W. C. C. 135. There was no error In receiving evidence as to declarations of the deceased employg. Pigeon v. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. B. 932, Ann. Cas. ],915A, 737. 47 Reck v. WMttlesberger, supra. As to probative effect of workman's dec- larations, see next section. But in AUard v. N. Y., N. H. & H. R. R. Co., 1 Conn. Comp. Dec. 385, where the claimant's statement that he had received a strain resulting in an injury to his hip, and had called the attention of two fellow employes to the fact was unsupported, and the two workmen denied having any knowledge of the Injury, it was held he had not sustained his claim by a preponderance of evidence. 48 Patch V. First National Bank of Milwaukee, Bep. Wis. Indus. Com. 1914r- 15, p. 9. § 219 workmen's compensation 778 § 219. Burden of proof and evidence to sustain it — Presumption The burden of proof is upon an applicant to establish his claim by a preponderance of credible testimony. This burden may in some cases be discharged by the testimony of the applicant alone, but such testimony must convince the mind that he has made his claim in good faith, aftd is entitled thereto.*" It was held in a Mich- igan case, however, that where there is no evidence as to an acci- dent arising out of and in the course of an employment, other than statements of a deceased employe in the absence of his employer, an award cannot be sustained. ^^ Proof of the workman's death may be made by circumstantial evidence, and the finding of the body is *9 Denker v. Pacific Stevedoring & Ballasting Co., 1 Cal. I. A. C. Dec. 14. Xhe burden of proving facts necessary to make out a case rests on the party petitioning for relief under the Act as much as it does on the plaintiff in any proceeding at law. Corral v. William H. Hamlyn & Son (R. I.) 94 Atl. 877. An applicant for disability caused by accidental injury must prove his claim by a preponderance of the testimony. Kebello v. Marin County Milk Produc- ers, 1 Cal. I. A. 0. Dec. 87; W. K. Rideout Co. v. PUlsbury (Cal.) 159 Pac. 435. The burden of proof is on the applicant to establish by competent proof Che fact of death. Western Grain & Sugar iProducts Co. v. PUlsbury (Cal.) 159 Pac. 423. In Stampick v. American Steel & Wire Co., 1 Conn. Comp. Dec. 474, Commissioner Beers said the burden of proof resting upon the claimant is "a burden of proof which does not rest on any technical rule, but which is inherent in that principle of justice which determines that one cannot se- cure from another the payment of money without showing that he is enti- tled to it." The burden of proof in aU claims for compensation rests on the claimant to furnish convincing proof to the Board as to every jurisdictional fact, or to furnish proof of facts from which such jurisdictional facts may be clearly deduced. In re Gfertrude Patterson, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 33. The testimony of a workman that the loss of an eye had impair- ■ed his efficiency as a workman, because he could not gauge distances as ac- curately as before, was a sufficient basis for a finding that there was a sub- stantial permanent impairment of his earning capacity. Oliver v. Christopher, ■98 Kan. 660, 159 Pac, 397. 5 Reck V. Whlttlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771. This rule is emphasized to the extent of even holding admission of such evidence reversible error, because the mind of the trial court might have been "colored by his admitting statements which are Inadmissible as evi- dence." Id. ; Smith v. Hardman, Ltd., 6 B. W. O. C. 719. '779 SETTLEMENT OP CONTROVERSIES § 219 -not an indispensable requisite to a conclusion that the employe came to his death by violence.'^ A prima facie case is made when it is shown that an employe was at his usual place of empl'oyment, at the usual time of day when he was expected and required to be there, and an injury of any •character is shown." Where it is difficult to determine where the weight of testimony lies concerning a given state of facts, or con- dition or manner in which an accident happened, the legal pre- sumption favors the payment of compensation."' In other words, if the evidence, though slight, is yet sufficient to make a reasonable man conclude in the claimants' favor on the vital points, then his ■case is proven. But the rational mind must not be left in such un- certainty that these essential elements are not removed from the realm of fancy."* The burden of proof in respect to particular matters, and the sufficiency and probative effect of evidence relative to such mat- ters, is considered in other sections."" The presumptions created by the New York Act, that the claim comes within the law, that sufficient notice was given, and that the injury was not caused by the employe's willful intention or intox- ication, do not arise until an accident arising out of and in the 51 Wstern Grain & Sugar Products Co. v. Pillsbury (Oal.) 159 Pac. 423. 62 Cerny y. Wood Street Mill Co., Bulletin No. 1, 111., p. 52. B3 Isidora v. Bockford Gas Light & Coke Co., Bulletin No. 1, 111., p. 42. B4 In re Sponatski, 220 Mass. 526, 108 N. E. 466, L. R. A. 1916A, 333 ; Plumb v. Cobden Flour Mills Co., Ltd., [1914] A. C. 62 ; Barnabas v. Busham Colliery Co., 4 B. W. C. C. 119, H. L. ; Flecher v. Owners of the Ship Dutchess, [1911] A. C. 671. See also Childs v. American Exp. Co., 19T Mass. 337, 84 N. E. 128 ; Bigwood t. Boston & N. St. B. Co., 209 Mass. 345, 95 N. E. 751, 35 L. B. A. (N. S.) 113. In Foley v. A. T. Demarest & Co., 1 Conn. Comp. Dec. 661, where the evi- dence to show that the workman was injured while in the employ of one of the defendant companies was hardly more than a mere guess, it was insuffi- cient to sustain the burden of proof against that defendant. SB For section references, consult index. § 220 workmen's compensation 780 course of the employment of the claimant by the defendant has been proven." § 220. Report— Evidentiary effect The report of the accident made by the employer as required by statute is competent prima facie evidence of the facts stated there- in, subject to be explained or contradicted."' Where the report is made by the employer's agent authorized to make same, the em- ployer is bound thereby."* A repart made by a Commission under statutory authority may be considered by it, when it has been laid before the parties."' § 221. Medical examination Submission to a medical examination to afford opportunity to procure evidence, is ordinarily required.*" A claim that the injured 68 (Wk. Comp. Act, § 21) CoUins T. Brooklyn Union Gas Co., 171 App. Dlv. 381, 156 N. Y. Supp. 959. B7 First Nat. Bank v. Indus. Com., 161 Wis. 526, 154 N. W. 847. A report of the employer constituted prima facie evidence that the accident occurred as reported, and that the injury arose out of and in the course of em- ployment. (Pub. Acts Ex. Sess. 1912, No. 10) Reck v. Whittlesberger, 181 Mich, 463, 148 N. W. 247, Ann. Gas. 19160, 771. 5 8 The Supreme Court of Michigan has held that such reports are admissi- ble. First Nat. Bank v. Indus. Com., 161 Wis. 526, 154 N. W. 8l7; Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, 249, Ann. Oas. 1916C, 771. This conclusion finds support in Seaboard Air Line By. Co. v. Florida, 203 U. S. 261, 27 Sup. Ct. 109, 51 K Ed. 175; Chicago & N. W. Ry. Co. v. Railroad Commission, 156 Wis. 47, 145 N. W. 216, 974. 59 A report made by the Industrial Commission under St. 1911, § 2394 — 52, subd. 10, authorizing the collection and publication of statistical and other information, may be considered by the Commission as evidence when it has been laid before the parties. International Harvester Co. v. Indus. Com., 157 Wis. 167, 147 N. W. 53, Ann. Cas. 1916B, 330. «o In re McLean, 223 Mass. 342, 111 N. E. 783. The evidence showed that the employe had been requested by the Board to report at the office of an impartial physician for examination, as provided by part III, § 8, of the Act, and that he had failed to do so. Other evi- ^81 BBTTLEMBNT OF CONTROVERSIES § 222 employe refused to submit to a medical examination is not sub- stantiated, where before the employer's physician arrived the em- ploye's counsel announced that they would not consent to an ex- amination, but no demand appears to have been made after the physician arrived, and the anticipatory refusal did not lead the prosecutor to countermand him; he afterwards appearing and be- ing sworn as a witness.'^ Where within a few weeks from the decision of the California Commission an operation is performed, and it becomes possible that permanent disability may be lessened considerably, the Commis- sion will allow a further examination at any time upon the request of either party to determine the extent of permanent disability, whether a year has elapsed or not.'" Where the opinions of emi- nent physicians as to whether the applicant had varicose veins, and whether his disability was affected thereby, are conflicting, and the parties agree to rest their decision on the report of a medical ref- eree, who reports that there had never been varicose veins, such report will be accepted as the basis of an award in favor of the ap- plicant."' § 222. Federal Act The duty of claimants under the original federal Act, continued in force as to injuries prior to the Act of 1916, to submit to medical examination at least once in six months, is mandatory upon them ; but the obligation of the Secretary to provide such an examination is directory, so that a right to compensation is not lost by the latter's denee indicated that his Incapacity for worfe had ceased. The employe filed a request for a hearing about four months after he had been notified to report for an impartial examination, and was held not entitled to compensation. Diminico v. Fidelity & Casualty Co. of N. Y., 2 Mass. Wk. Comp. Cases, 328 (decision of Com. of Arb.). «i Birmingham v. Lehigh & Wilkesbarre Coal Co. (N. J. Sup.) 95 Atl. 242. 62 Peterson v. Pellasco, 2 Oal. I. A. O. Dec. 199. 88 O'Neal V. Palmer & McBryde, 2 Cal. I. A. C. Dee. 745. § 222 workmen's compensation 782' failure to act.'* In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that the exami- nation shall have been directed by the Secretary, that it be made without expense to the employe, and that the employe be advised by the Secretary that such examination is required."" If the Secre- tary so directs, an examination ma'de by a naval surgeon designated! • by the Secretary of the Navy to examine an employe to determine his right to continued compensation would be a compliance with the Act.*® The requirement as to examination shows that the Act: contemplates the payment of compensation be not authorized for a longer period than six months at a time, even though the disability is permanent in its nature.®^ The examinations should be paid for by the government, the contingent appropriation for the depart- ment being available for such purpose.'® 64 In re Villafranca, Op. Sol. Dept. of L. (1915) 762. es In re Mayott, Op. Sol. Dept. of L. (1915) 765. e a In re Vlllanueva, Op. Sol. Dept. of L. (1915) 765. 8T In re Haynes, Op. Sol. Dept. of L. (1915) 761. 88 (Dec. Comp. of Treas.) Op. Sol. Dept. of L. (1915) 781. 783 SETTLEMENT OF CONTEOVEESIBS § 223 ARTICLE VI PROCEEDINGS BEFORE SPECIAL TRIBUNAL Section 223. In general. 224. Jurisdiction. 225. Service of summons. 226. Parties. 227. Pleading and issues under California Act. 228. Taking and reception of testimony. 229. California. 230. Hearing, findings, and award. 231. California. 232. Review 'by special tribunal. 233. Dismissal. 234. Reopening of case, rehearing, and supplementary proceedings. 235. California. 236. Proceedings under original federal Act. § 223. In general The procedure before a Commission should be flexible and adapt- ed to the direct accomplishment of the aim of the Acts, with as little formality or hampering restriction as is consistent with the preser- vation of the real rights of the parties and the doing of justice ac- cording to the terms of the Acts."* While it was evidently the in- tent of this legislation that, by concise and plain summary pro- ceedings, controversies arising under the Acts should be prompt- ly adjusted, under a simplified procedure unhampered by the more technical forms and intervening steps which sometimes cumber and delay regular litigation, the elementary and funda- mental principles of a judiciary inquiry should be observed.'"* Commissions and Boards are purely creatures of statute, endowed 8 » In re Hunnewell, 220 Mass. 351, 107 N. B. 934. The hearing before the Commission is of a sumnjary character, and the Commission is not bound by the ordinary rules of evidence and practice. Gardner v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899. 70 Reck v. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771. § 223 workmen's compensation 784 with varied and mixed functions. Primarily they are administra- tive bodies, created to carry provisions of the Acts into effect. Supplemental to this, in order that they may more efficiently ad- minister the law, they are vested with quasi judicial powers, ple- nary within the limits fixed by the statute. Along the lines marked out by the Acts, they are authorized to pass upon disagreement between employers and claimants in regard to compensation for in- juries, and to that end make and adopt rules for a simple and reason- ably summary procedure. As a rule, hearings are to be held upon notice to parties in interest; compulsory process for attendance of witnesses and power to administer oaths is given; the parties in interest are entitled to notice, to be heard, and to submit evidence; a review, findings, a decision, and an award of compensation are pro- vided for ; t%)Ugh in the final test resort must be had to the courts to enforce the awards.''^ The rule seems to be that Commissions 71 This legislation is remedial, and should be given a Ijroad interpretation. All controversies arising between the employe and the employer and insurer under the terms of the acts are to be settled in accordance with the procedure there established. This follows from general considerations touching the nature of the legislation and the aim intended to be accomplished by it. In re Panasuk, 217 Mass. 589, 105 N. E. 368. The Arbitration Committee and the. Industrial Accident Board are given authority to summon witnesses, administer oaths, hold hearings, take testimony, examine evidence, make rulings of law and findings of fact, and render decisions. Their decisions may be enforced by appropriate proceedings in the courts. The power to take testimony and make rulings of law which are subject to review by the judi- cial department of the government goes far to indicate that In performing those functions they are to be guided and controlled by the same general principles which would govern judicial officers in discharging the same duties. Pigeon V. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932, Ann. Gas. 1915A, 737. The Arbitration Committee and the Industrial Accident Board had juris- diction to consider whether the amount paid for medical attendance by the injured employ^ during the first two weeks after his injury could be recovered. (St. 1911, c. 751, pt. 2, §§ 1-5) In re Panasuk, supra. Where the employs made no claim under the Act, the action of the insurer of her employer in notifying the Industrial Accident Board of the accident and the formation of a Com- mittee of Arbitration which made an award in favor of the employfi was 785 SETTLEMENT OF CONTROVEESIES § 223 and Boards are not courts/^ and that their members are not judicial officers, within the strict meaning of these termsJ' It has been held in Massachusetts, however, that the word "court" is used with a broader significance than including simply judicial officers; that it may be given a signification liberal enough to include the Com- mittee on Arbitration and the Industrial Accident Board as con- stituted by the Act, and should be given such construction ; ^* and the California Supreme Court has stated that "the Industrial Acci- dent Commission exercises judicial functions; it sits as a court to try matters pertinent to issues within its jurisdiction." ^° The claimant before the Wisconsin Industrial Accident Board is not a suitor in any court within a provision of the Constitu- tion of that state that a suitor in any court may prosecute or defend either in person or by attorney or agent.' ° The Wisconsin warranted. (St. 1911, pt. 3, § 5, as amended by St. 1912, c. 571, § 10) Young V. Ehincan, 218 Mass. 346, 106 N. B. 1; Burt v. Brigham, 117 Mass. 307. T2 The Compensation Board provided for by the Act of 1916 is not a "court" within Const. § 135, prohibiting the establishment of courts not provided for by the Constitution. Greene v. Caldwell, 170 Ky. 571, 186 S. W. 648. The Industrial Accident Board is a ministerial and administrative body, with incidental quasi judicial powers, exercised by consent of those electing to be governed by the Act, not vested with powers or duties in violation of consti- tutional limitations. Mackin v. Detroit-Timkin Axle Co., 187 Mich. 8, 153 N. Wi. 49. The Industrial Commission is merely an administrative body, and not a court. Menominee Bay Shore Lumber Co. v. Indus. Com., 162 Wis. 344, 156 N. W. 151. The Commission is not a court; its hearings are inquiries, not trials. McDonald v. Globe Laundry Co., 2 Cal. I. A. C. Dec. 217. 73 The members of the Industrial Commission are not "judicial officers" within the Constitution. Pigeon v. Employers' Liab. Assur. Corp., 216 Mass. 51, 102 N. E. 932, Ann. Cas. 1915A, 737. T4 Id. 75 Smith V. Indus. Ace. Com., 26 Cal. App. 560, 147 Pac. 600. This case Is supported by Corea v. Higuera, 153 Cal. 451, 95 Pac. 882, 17 L. R. A. (N. S.) 1018; People v. McCue, 150 Cal. 195, 88 Pac. 899. The Industrial Ac- cident Commission, in awarding compensation, is a judicial body exercising judicial functions. Western Metal Supply Co. v. Pills'bury (Cal.) 156 Pac. 491 ; Carstens v. Pillsbury (Cal. 1916) 158 Pac. 218. 7 6 International Harvester Co. v. Indus. Com., 157 Wia 167, 147 N. W. 53, Ann. Cas. 1916B, 330. HoN.CoMP. — 50 § 223 woekmen's compensation 786 Act recognizes the right of a claimant to select and employ his own attorney, subject to the limitation that the fee to be paid must be approved by the Board.''' The Industrial Commission of Ohio acts as the state I The undersigned being duly sworn deposes and says that a true, correct and verbatim copy of the foregoing notice was on the day of ,. 19 — . served upon {employer's name). Subscribed and sworn to before me by this day of , 19 — . {Seal.) > Notary Public. Employer's Election Not to Become Subject to Workmen's. Compensation Act Industrial Commission, Take notice that the undersigned employer of labor in the state of § 254 woekmen's compensation 848 hereby elects not to accept the provisions of the Workmen's Compensation Act. Dated at this day of , 19—, By (P. O. Address.) * Employer's Noticb op Withdrawai, from Operation Under Workmen's Compensation Act Industrial Commission, Take notice that the undersigned employer of labor in the state of hereby withdraws his (.her) (its) election to become subject to the provisions of the Workmen's Compensation Act of the state of . Dated at this day of , 19 — . By iP. O. Address.) Notice oE Employe Upon Entering Employment That He Elects Not to be Subject to the Workmen's Compensation Act * {Write name of employer plainly on aVove line.) (Write address of employer plainly on aiove lime.) You will take notice that, being about to enter your employ, I elect, not to be subject to the provisions of the Workmen's Compensation Act of the state of . (Em4>loy4) To (Address) Dated at this day of , 19—. 849 ILLUSTRATIVE SELECTED FORMS § 255 § 255. Notices to be posted, and certificate In accordance with the provisions of section 6, part I, of the Michigan Act, the Industrial Accident Board prepared the follow- ing, printed on cardboard, 12x20 inches : NoTice TO Employes All workmen or operatives employed by the undersigned In or about this establishment are hereby notified that the employer or employers owning or operating the same have filed with the Industrial Accident Board, at Lansing, notice of election to become subject to the provisions of Act No. 10 of Public Acts, Extra Sessions 1912. (This Act is commonly known as the Workmen's Compensation Law.) You are further notified that unless you serve written notice on your em- ployer of your election not to come under the law. the act will immediately apply to you. If you do notify your employer that you elect not to come under said act, you may afterwards waive such claim by, a notice in writing, which shall take effect five days after it is delivered to the employer, at the expiration of which period the law will apply to you. Injury Not Resulting in Death — Notice of An employ^ who has been injured in the course of his employment and whose incapacity extends over a period of two weeks (sec. 3, part 2) shall serve written notice of such injury on his employer (from whom blank forms may be obtained), which notice shall be signed by the person injured and shall state in ordinary language the time, place and cause, of the injury (sec. 16, part 2). Injury Resulting in Death — Notice of When death results from an injury received by an employs in the course of his employment, notice shall be served by his dependents, or by a person in their behalf (sec. 16, part. 2). Limit of Period of N otiUcation. Notice of the injury shall be given to the employer within three months after the happening thereof, and claim for compensation shall be made within six months, or in case of death or in the event of physical or mental inca- pacity, notice shall be given within six months after the death or removal of such mental or physical incapacity. No proceeding for compensation under this Act shall be maintained unless these rules are observed (sec. 15, part 2). Date . , Employer. HoN.CoMP. — 54 § 255 workmen's compensation 850 The Industrial Accident Board has prepared the following cer- tificate, to be executed by the employer and filed with the Board, showing that such notices were actually posted as required by the section of the law above quoted. This certificate should be prompt- ly filed with the Board, and the signature to the same is required to be that of the employer himself or if made by an officer or agent of a corporation^ the appropriate designation of the official charac- ter of the person signing must accompany signature. Certificate Industrial Accident Board, Lansing, Mich. : We do hereby certify that on the day of , we posted in the most prominent places in and around our place of business, viz. : (insert workrooms, mines, stations, etc.) (give number) printed notices of our acceptance of the provisions of Act No. 10 of Public Acts Extra Ses- sion 1912, the same being notices furnished by the Industrial Accident Board ; and we further certify that said notices were conspicuously posted and se- curely fasteried. Dated at , day of , 19 — . § 256. Notice of injury or claim To (Name of Em/ployer): You will take notice that according to the Workmen's Compensation Act of (state), (claimant) hereby makes claim for compensation for injury (or gives notice of injury for which compensation will be claimed), received by (workman), (post office address), while in your employ at (place). The accident occurred (date), at (place). The cause of the injury is as follows : . The nature and. de- gree of the injury is as follows: (and said injury resulted in death ■ IdateJ). (Name of claimant.) (Address of claimant.) Dated at this -^ day of , 19—. 851 ILLUSTRATIVE SELECTED FOEMS § 257 § 257. First report of accident Name of person furnishing information Position . Date of report {month and day) 19—. (1) Employer's na,me (individual or firm name). (2) Address (St. No., city or town). (3) Under the Compensation Act (yes or no). (4) Nature of business or Industry . (5) Location of plant or place where accident occurred (city or town). (6) Name . (7) Address — ; (St. No., city or town). (8) Age . (9) Sex . (10) Married or single . (11) Nationality . (12) Speak English (yes or no). (13) If not, what language . (14) Did injured person make use of guards or safety devices (yes or no). (15) Was injury due to willful misconduct on part of employe (yes or no). (16) What was the occupation of the person injured (have in mind work done). (17) Length of experience here in this occupation . Elsewhere in this occupation . (18) Piece or day worker . (19) Working days per week . Wages per day . Per week . (20) Date of accident , . M. (21) Day of week . (22) Hour of day when Injured began work . (23) What was it (give the maker's name as welt). (24) Could injured person start and stop the machine (yes or no). (25) How . (26) Part causing the accident . (27) Was machine provided with safeguards (yes or no). (28) Were safeguards properly attached at the time of the accident . (29) If not, who removed them . (30) Describe the guard or safety device — (31) How did the accident occur (32) What would you suggest to prevent similar accidents . Check the one or ones applicable. (33) At hospital . (35) At home . (34) At factory . (36) At whose expense . (37) Was accident fatal (yes or no; state exactly the part of person injured and nature of injury), (38) Has the accident resulted in any permanent physical injury (yes or no). (39) Disability : Total (yes or no). Partial (yes or no). Proba- ble duration in days . f 267 workmen's compensation 852 (40) Attending physicians: (Name) (Address) (41) Dependents (give name of dependents in fatal cases only) : (Name) \ (Age) (Relationship) (Address) (42) Remarks. § 258, Employer's reports Employbr's First Report of Injury Commission of the State of Employer's name . Business • Main office : Street and No. . City or town . City or town in whicli injury was sustained . County . Employe's name . Street and No. . City or town . Age . Sex . Married or single . American or foreign bom . Occupation when injured (machinist, carpenter, laborer, etc.) . Average weekly wage $ — . Date of injury . Day of week . Date injured had to leave work on account of injury . Describe in full how injury was sustained State exactly part of person injured and extent of injury- Ip Injured has Recovebed, Fili, in Below Crive exact date injured employg was physically able to return to work . Give the actual number of working days injured was absent from work. No. of days Any permanent injury, describe fully . Payments of compensation $ . No. of weeks . Payments for physicians $ . Hospital $ . Other medical aid Did your insurance carrier make any payments in this case? Give the name of your insurance company . If Injubt was Fatal, Fill in Below Date of death . Payments for burial expenses $ i If deceased left dependents, state relationship of each 1 Date of report . Made out by . 853 ILLTJSTEATIVB SELECTED F0EM8 § 258 (Another Form) EmpIvOyur's First Rbport op Injury Commission of the State of (street and number, city or town and Employer's name - Oflice address — county). Business, goods produced, work done or kind of trade or trans- portation . Location of plant or place of work where accident occurred (street and nurnber). In what city or town? ; — . County . CA M Date of accident 19 — ; hour of day Employer, Place and Time -{i- The M. Did accident happen on premises? . If away from the plant, state where . Was employs injured in course of- employment? . If employ^ did not leave work on day of injury, on what day di(J- Incapacity begin? . Give full name of injured employ 6 . Address -^ (street and nurnber, city or town and county). Sex . Age . Speak English? . If not, what language? Employe Occupation when injured? Married or single? Was injured employ^ doing his regular work? what work? . If not. Describe in full how the accident occurred- The State nature and extent of injury Injury (if amputation was necessary, state what part loas amputated). Name of machine, tool, appliance, etc., in connection with which accident occurred? Cause of Injury Medical Hand feed or mechanical? . Part of machine on which accident occurred? . What guard, safety appliance or regulation in connection with this machine is it possible to provide that might have pre- vented this accident? . Was medical attendance provided by you? . How soon after accident? . Name and address of physician . To what hospital was employe sent? , Address of hospital ■ Attendance if not sent to hospital, where is he? . Are you still providing medical attendance? ■ What will be the probable length of disability? ■ best estimate). (gfoe ymir 258 WOEKMEN S COMPENSATION 854 how many working days per weekV Hours per day? Wages per day at time of accident? Wages How long has employe received above rate of wages? Notice of Injury Was the injured employ^ per diem or piece worker? {Check which.) Were you notified by the injured employe of his injury? . If so, when? . Did you or your managing superintendent in charge of the work of injured employ^ at time of injury have actual knowledge of such accident and injury? . Signed, this ■ day of • -, 19—, at Employer's Name Signed by . Official Title Received this ■ ■ day of • -.19- EMPtOYER's SUPPLEMBNTAL OR FiNAL REPORT OE INJURY Commission of the State of Employer's name City or town Main Office : Street and No. Employe's name . Date of injury . When was injured employs physically. able to return to work? , The actual number of working days injured was absent from work . Number of days employed per week . Can Injured do the same work as before the injury? . Any permanent Injury, describe fully Amounts paid for physician's services $- aid $- Hospital or other medical Amounts of compensation paid $- No. of compensation weeks Remarks concerning your method of computing rate of compensation If Injuet was Fatal Fill in Below Payments for burial expenses $ — Date of death If deceased left dependents, give relationship of each. Name Age Relationship Amounts paid in death benefits %— . Date of report . Made out by (offlcial position). 855 ILLUSTRATIVE SELECTED FORMS § 259 § 259. Agreements Agreement in Regard to Compensation We, {name of injured employ 4), residing at city (or town) of , and (Employer or Usurer), have reached an agreement in regard to compensation for the injury sustained by said employ^ while in the employ of on the day of , 19 — , A. M. (or P. M.) at . Cause of injury Nature and extent of injury . This agreement conforms to the provisions of the Workmen's Compensation Act, and is a claim for compensation. It is agreed that the average weekly wages of the said employ^, computed according to the terms of the Workmen's Compensation Act are $ and that the said — will pay said employs 50 per cent, of said sum within the minimum and maximum of the statute or $ per week, beginning . 19-.* Witnesses Dated at this day of , 19 — . (Another Form) (Name of injured employ €) By. Agreement Between Employer and Employe as to Payment oe Compensation Claimant, ' V. Respondent, Insurance Carrier. We, (name of injured, employ^, residing at (street and num- ber), (P. 0.), and (name of employer), have reached an agreement in regard to compensation for the injury sustained by said employ^, and sub- mit the following statement of facts relative thereto: ♦Note. — Here add appropriate words to Indicate length of disability, If permanent par- tial, permanent total, temporary partial, or temporary total, it known; If not, add "Dur- ing Disability." If death claim, add words to indicate nature of dependency and length of time during which payments are to be made. If amputations or within schedule of injury,, .add words to indicate statutory period. § 259 WOEKMEN S COMPENSATION 1. Said injury was sustained on , 19 — , at M, 2. Nature of injury '■ . 3. Period of disability : From ^ — to , 19 — , at — 856 M. 4. Employe's average weekly wage at time of injury : $- 5. Permanent total or partial disability (// injury has caused a permanent disability, gi/ve acourate description of same.) 6. Terms of agreement as to compensation: $ per week for (2Vo. of weeks) beginning . 19 — . 7. {If disability has not ended at time this agreement is filed, give estimate as to probable date employ^ will be able to resume work.) 8. The compensation agreed upon herein, as above set forth, is in an amount equal to or greater than is provided for by the Workmen's Compensa- tion Act. 9. Said employer has furnished for said employ^ all medical services, etc., required by law that is reasonably necessary in the treatment of said injury, and in the amount or value as shown below: Nature of Expense Amount Nature of Expense Amount The foregoing agreement is herewith submitted for confirmation and ap- proval by said Commission. Signed In the presence of: By {Employer) {Employ^ MEMORANDUM OF SETTLEMENT Company, Employ^.. Employer. Liability insured at time of injury in — Date of injury . The Injury arose out of and in course of the employment, the employ^ at the time being engaged as follows Compensation Act at Employer and employ^ were both under the — ■ the time of injury. If either party filed a rejection state when withdrawn . Nature of injury and results : If death, date of . Dismemberment (// so state what member or what part of member.) Disability {State whether temporary or pemuinent and whether total or partial.) 857 ILLUSTRATIVE SELECTED FORMS § 259 Days absent from work . Employe's average annual earnings were $- Average weekly wages $ ; daily $ — ■ How many days employed during week State how averages of either annual, weekly or daily wages were made. Amount of medical, surgical^, hospital relief supplied. Amount of compensation agreed upon $ . Amount paid and receipt acknowledged $ . Address of employer . Address of employe . Dated at this day of , 19 — . Filed . Returned on review • Approved . Employer.' Employe. Commission. Approval op Compensation Agreement Employe, Dependent—, Personal Representative. and Compensation Agreement No. Employer. , 19-. The Workmen's Compensation Board has examined compensation agree- ment No. between and and hereby declares it to be in accordance with the provisions of the Workmen's Compensation Act, and to be valid. Workmen's Compensation Board, {Seal.) . Chairman. Attest: , Secretary. Disapproval oe Compensation Agreement Employ^, Dependent—, Personal Representative, Claimant. and Compensation Agreement No. ^. Employer. , 19—. The Workmen's Compensation Board has examined compensation agree- ment No. between and anS hereby declares it to be in- § 260 workmen's compensation 858 valid as not being in accordance with the provisions of the Workmen's Com- pensation Act in the following particulars : . Workmen's Compensation Board, {Seal.) , Chairman. Attest: , Secretary. ♦ § 260. Application for adjustment of claim— Settlement and pe- tition Commission of the State of Applicant — Claim No. -Application for Adjustment of Claim. Defendant — The petition of the above-named applicant — respectfully shows to your Honorable Commission as follows : I. ^ That on the day of , 19 — , (name of person injured) was killed (or injured) by reason of an accident arising out of and in the course of h — employment by the above-named (name of employer). That your petitioner is the person injured (if applicant is a dependent, state relationship). II. That a question has arisen with respect to the compensation to be paid therefor and the general nature of the claim in controversy is as follows, to wit: (Give the date that employer refused to pay the compensation de- manded, and state briefly the exact matter in dispute, as for example: (A) Employer denies liability for compensation ; or, ■ (B) A dispute has arisen concerning the amount or duration of the compensation payable.) III. That the following Is a statement of particulars relative to this applica- tion: 1. Name of injured em- ploy6. Address. Occupation. Age. «59 ILLUSTRATIVE SELECTED FORMS 260 Name of employer. Address. Place of business. Business address. 3. Name and address of all other parties to this application and reason why each party is joined. Name and address of employer's insurance carrier, if known. 4. Place of accident. Nature of work on which injured per- son was engaged at time of accident. 6. How did accident oc- cur? (Describe in detail.) 7. Nature of injury. (De- scribe in detail.) Has injured person fully recovered? If so, when? When did injured per- son return to work? 9. Particulars of disabil- ity, whether total or partial, and estimat- ed duration thereof. If death resulted, so state, giving date of death. ) 10. Was medical and sur- gical treatment re- quired? Was it furnished by employer? If not, did employer have opportunity to furnish it? 260 WOEKMBN S COMPENSATION 860 11. Names and addresses of attending physi- cians. 12. Wages of employe at time of accident. (State whether paid by day, week, mopth, or year.) How long did Injured person work for this employer at this wage prior to the accident? State whether employ- ment was for 5%, 6, or 7 days per week. . dollars per • 13. Amount injured per- son is earning, or is able to earn in some suitable employment or business after the accident. per week; $- per month. 14. Payment, allowance or benefit received from employer. for tendance. weeks' medical care and at- per week for weeks' disability compensation. 15. Additional amount claimed as compen- sation. for tendance. weeks' medical care and at- (Itemize expenditures made by you for this purpose) per week for weeks' disability. 16. When was the employ- er notified of the ac- cident? 17. If employer was not notified within thir- ty days after date of accident, give rea- son for failure to notify him. 861 ILLUSTRATIVE SELECTED FORMS § 260 18. li application is filed to adjust claim for death, state name, address and rela- tionship of all de- pendents. If to ad- just claim for medi- cal attendance or funeral expenses, state name and ad- dress of all other such creditors and amount of claims, if known. {In case of death of employ^ this paragraph must he filled out completely) Name Address : Name Address Name Address - Name Address _ IV. (Here state any further facta that may he desired) . Wherefore your petitioner prays, that the above-named defendant^ — be re- quired to answer this petition, that a time and place be fixed for hearing hereof and due notice thereof given, and that upon such hearing, an order or award be made by your Honorable Commission granting such relief as the said applicant — may be entitled to in the premises. Dated at this day of , 19 — . (Signed) . Address . Application op Dependents of Deceased Employe to the In- dustrial Board for the Adjustment op Claim for Compensation Before the Industrial Board of Plaintiff- Defendant — Application No. - to your Honorable Board as follows : 19 — , died as a proximate re- sult of personal injuries received by him by reason of an accident arising out The plaintiff — respectfully represent- 1. That on the day of 260 WORKMEN S COMPENSATION 862: of and In the course of h — employment by the above named defendant In. (designate the employment in which the deceased was engaged at the time of the injury). 2. That said left surviving him as all and his only dependents the- following named persons: Names. lige. Kelationsliip. Wholly or Partially Dependent. Address. 3. That a controversy has arisen with respect to the compensation to be- paid therefor. That the general nature of the question In dispute is as follows : (A) The defendant — denies liability for compensation, or (B) The plaintiff — and defendant — disagree as to the rate of compensa- tion payable, or (C) The plaintife— and defendant— disagree as to the amount of compen- tion payable, or (D) The plaintifE — and defendant — disagree as to the duration of thfr time for which compensation is payable. 4. That the following is a statement of the facts relative to this applica- tion : 1. Name of deceased employfi . Address at time of death . Occupation Name of the defendant employer Address . Place of business . Business address . Names and addresses of all other parties, if any, to this application, and the reason why such parties are joined : 4. Place of accident . 5. Nature of work on which the deceased was engaged at the time of the accident .^—. 6. Description of accident and cause of injury . 7. State whether medical or surgical treatment was required 8. Was it furnished by the employer? . 9. Were hospital services or supplies required? . 863 ILLUSTRATIVE SELECTED FORMS § 260 10. Were they furnished by the employer? . 11. Name of attending physician . Address . 12. Nature of injury (describe fully) 13. That death resulted as a direct and proximate result of said injury on the day of , 19 — , at o'clock m. 14. Particulars of disability during the period intervening between injury and death, whether total or partial and duration thereof - 15. Average earnings of the deceased prior to injury, $ per week. 16. Did the defendant pay the burial expenses of the deceased? . If so, state the amount paid. $ . 17. Payment, allowance or benefit received from employer by the deceased during period of disability between injury and death. a. $ on account of medical care and attention, hospital services- and supplies. b. $ per week for weeks total disability. c. $ per week for weeks partial disability. 18. Additional amount claimed as compensation : a. $ on account of medical care and attention, hospital services^ and supplies. b. $ per week for weeks total disability. c. $ per week for weeks partial disability, d. $ for burial expenses. 19. Notice of injury was served on the employer on the day of , 19—. 20. If notice was not served within thirty days after the injury, state fully the reasons for the faUure to do so.. Wherefore the plaintiff — pray — that an award be made by your Honorable- Board granting to such relief as — ^h — may be entitled in the premises. Dated at this day of , 19—. Plaintiff—. Address . :r=L-.}. State of County The undersigned plaintiff, being duly sworn, upon his oath says that the matters set out in the foregoing application are true. Subscribed and sworn to before me, this day of . 19 — . , Notary Public. My commission expires on the day of , 19 — . § 260 workmen's compensation 864 Settlement and Petition — Minnesota Form State of Minnesota, "I District Court County of . J^^' Judicial District In the Matter of Compensation for Injury ^ To ■ , Employ^ I Against , Employer f and , InsurerJ The undersigned, being the only parties Interested in the above entitled mat- ter, hereby petition the Court for approval of the following agreement and settlement, and agree and represent to the Court as foUovcs: That they are subject to the provisions of Part II of Chapter 467 of the Laws of Minnesota of 1913 and Amendatory Acts; that the employ^ can (cannot) read and understand the English language. Employ^ address . Employer's address . Employe's age . Weekly wage at time of injury . Date of injury . Hour of injury . Accident occurred at . Injuries consisted of Nature of disability . Therefore, it is hereby agreed that the employe is entitled to and shall re- ceive compensation for said injury from the employer, beginning , 19 — , &t the rate of $ per week during disability (or) for weeks, pay- able as follows : all subject to the limitations of said Act; and the employs agrees to give proper receipts for each payment made hereunder. The employe hereby acknowledges that he has received to date medical and surgical treatment and benefits given by section 18, Part II, of said Act, and the employer agrees to continue to furnish the same, if any be necessary, to the extent and in the manner required by said section. The employe agrees to present himself for examination, or if physically unable to do so, to submit himself to examination by the physician or physicians designated by the em- ployer, when requested. This settlement is substantially in accordance with sections 13 and 14 of said Act. When all payments hereunder have been made the employer shall be, and hereby Is, released from all claims on account of said injury, under said Act or otherwise. This settlement contains the whole agreement between the parties hereto. Dated this day of , 19 — . Witnessed by i , Employe. Employer, } By Insurer of Employer, By . 865 ILLUSTRATIVE SELECTED FORMS § 261 § 261. Answer to application Answe;r to Application Industrial Commission of , Applicant, V. -, Respondent :} The respondent above named for answer to the application herein respect- fully shows: 1. (State all facts in application that are admitted not to be in dispute.) 2. {State pertinent facts in reply to application, that are in dispute.) 3. (State such additional facts as may constitute a defense or partial de- fense.) 4. Wherefor the respondent prays (stating relief asked), (Signed) , Respondent. Special Answer to Application for Adj^jstmbnt ot Claim for Compensation Before the Industrial Board of PlalntlfE- Appllcation No. Defendant- The defendant — , employer, for special answer to the application for the adjustment of the claim for compensation In the above entitled cause, says : I. That the injury (or death) of (name of employS), for which compen- sation is claimed by said application, was due to : 1. The wUful misconduct of said employe In this, to wit: 2. The intoxication of said employe. 3. The vsdlful failure (or refusal) of said employe to use a safety appliance. 4. The wilful failure (or refusal) of said employe to perform the following duty, required by statute: (Here specify the duty and designate the statute requiring it.) II. That no compensation should be awarded upon said application for the reason following, to wit : (Here state the facts constituting am.y other defense of confession and avoidance.) Defendant — , HoN.CoMP. — 55 § 262 workmen's 'compensation 866 § 262. Notice of hearing Notice of Hearing Industrial Accident Commission, Claim Department , Claimant. , Employer. , Insurer. «> ,19-. To the parties above named and to each of them : Notice is hereby given that in the matter of •', Injured , 19 — , while in the employ of a hearing has been requested by parties inter- ested, on the following grounds : This hearing will be conducted by under the authority of the Com- mission on , A. D. 19 — , at o'clock, M., at , County of , State of . Please accept this notice to be present or represented if you so desire, and notify the Commission if you have any witnesses whom you desire to have summoned; also sign, detach and mail to this Commission the attached form of acknowledgment. Industrial Accident Commission of the state of . Secretary Acknowledgment oe Notice Plan No. Notice of hearing In the case of , Claim No. . to be conducted under authority of the Industrial Accident Commission at (city, street and rmmber) County of , State of , on the day of , A. D. 19 — , at the hour of M., is hereby acknowledged this day of , A. D. 19—. 867 ILLUSTRATIVE SELECTED FORMS § 263 § 263. Arbitration Order for Arbitration Applicant, V. Respondent(s). The notice and application of the above named applicant, for an adjustment of claim in the above named matter having been presented to the Industrial Accident Board, and due consideration thereof having been had, and it appearing to the Board that the arbitration prayed for by said applicant should be had ; it is ordered that the matters in difference between siid applicant and said respondent mentioned in the notice and application filed herein be adjusted and determined by arbitration under the provisions of the Workmen's Compensation Act and that said arbitration be held at in the tovrn of , County of , State of , on the day of , 19 — , commencing at o'clock in the ^noon, and that of the Industrial Accident Board be and he is hereby appointed and designated as chairman of the committee to be formed for such arbitration. It is further ordered that due notice be given to said applicant of the time and place of such arbitration, together with request and notice for said ap- plicant to select one member of said arbitration committee ; and that like no- tice be given to said respondent together with like notice and request that said respondent choose one member of said arbitration committee. (Beal.) .Chairman. Dated and entered this day of , A. D. 19 — . Notice oe Appointment oe Member of Committee oe Arbitra- tion Applicant, Ilespondent(s). To the Industrial Accident Board — Gentlemen : Tou are hereby notified that , whose postofflce address is , has been chosen as a member of the committee of arbitration in the above entitled matter by the undersigned. {Applicant.) (Respondents.) Dated at this day of , 19—. § 263 workmen's compensation 868 Award of Arbitration Applicant, * Respondent(s). Notice and application for adjustment of claim for compensation having been filed with said Board in the above entitled matter, and thereafter said Board having requested both of the parties to appoint their respective repre- sentatives on the committee of arbitration, and said committee of arbitration having been duly formed, consisting of , representing said applicant, and , representing said respondent(s), and , member of the In- dustrial Accident Board, as chairman thereof ; and said matter having come on to be heard before the aforesaid arbitration committee at , in the city of , county of and State of , on the day of , 19 — , at o'clock in the noon, and after hearing the proofs and allegations of the said applicant(«) and said respondents, and said com- mittee having made careful inquiry and investigation of said matter and being fully advised in the premises, doth find, determine and adjudge that the said applicant, , is entitled to receive and recover from said respond- ent(s), , the sum of dollars per week for a period of weeks, from the day of , 19 — , and that said applicant is en- titled to receive and recover from said respondent(s) on this date dol- lars, being the amount of such compensation that has already become due un- der the provisions of law, the remainder of said award to be paid to said , applicant, by said respondent(«) in weekly payments, commencing one week from the date of the award. Committee of Arbitration, By , Chairman. Dated and entered this day of , A. D. 19 — . In a considerable number of cases, the facts surrounding the in- jury are not in dispute, the only matter of uncertainty being the ap- plication of the law to such facts and conditions. Frequently in such cases the parties desire to submit to the Board directly the legal questions in dispute, waiving arbitration and obtaining a speedy decision of the full Board thereon. For the purpose of facil- itating this practice the Michigan Board has prepared the follow- 869 ILLU8TEATIVE SELECTED F0EM8 § 263 ing form for stipulating the facts and submitting the matter directly to the full Board, viz. : Stipulation, and Waiver ot Arbitration Applicant, Respondent(s). The facts in tliis case being -undisputed and the only matter in difference between the parties hereto being the construction and application to said facts of the Workmen's Compensation Law, being Act No. 10, Public Acts 1912, ex- tra session, and the parties hereto desiring to obtain a decision of said mat: ter by the full board without resorting to arbitration, do hereby stipulate and agree as follows : 1. That the accident to the employe, upon which the claim for compensa- tion in this cause is based, occurred on the day of , 19 — , in the town of ■ — , county of , State of Michigan, and that the same arose out of and in the course of his employment. That the character and nature of the injury and the result thereof is as follows {state m detail the nature of the injury, /disaMlity or death resulting, etc.) : , 2. That the facts relating to the \yages of , said employe, are as fol- lows : . (If average weekly wage is undisputed, so state; if disputed, state all material facts relating to same.) 3. The other material facts in said cause not included in paragraphs 1 and 2 are as follows : . — 4. That the arbitration of the matters in difference between the parties hereto, provided for in said Workmen's Compensation Law, be and the same is hereby waived, and the decision of said matters is hereby submitted to the Industrial Accident Board, sitting as a full board, the same as if this cause had proceeded to arbitration under said law, and the decision on arbitration ' therein had been appealed from and said cause thereby brought before the full board on appeal from such decision. It is further stipulated and agreed § 263 workmen's compensation 870 that the decision of said board in this cause pursuant to this stipulation, and based upon the facts set forth herein shall be valid and binding, and shall have the same validity, force and efEect as if said cause had proceeded to arbitration in due course, and was brought before the full board on appeal duly tal^en from the decision of an arbitration committee therein. In witness whereof the parties hereto have signed this stipulation at in the county of , State of Michigan, this day of , 19 — . (Applicant.) Signed in presence of • . {Respondents.) State op Michigan, 1 County of . j ®® ' On this day of , 19 — , before me , a notary public in and for said county personally appeared , known to me to be the persons described in and who signed the foregoing stipulation, and acknowledged that they signed the same as their free act and deed. And I further certify that I read over all of said stipulation to said persons, and fully acquainted them with the contents thereof before the same was aclmowledged and signed by him (them). Notary Public. My commission expires the day of , 19 — , ■}' State of Michigan, County of — On this day. of , 19 — , before me , a notary public in and for said county personally appeared , known to me to be the person who signed the foregoing stipulation on behalf of , the employer therein -mentioned, and acknowledged that he executed the same on behalf of said , being duly authorized so to do, and that the same is his free act and deed as (state position or office) for said employer. , Notary Public. My commission expires on the day of , 19 — . Appeal From Decision oe Arbitration Committee The decision of an arbitration committee in Michigan will stand as the decision of the Industrial Accident Board unless a claim for review is filed by either party to the cause within seven days. The 871 ILLUSTRATIVE SELECTED FORMS § 264 act, however, gives the Board power to grant further time in which to claim such review if sufficient cause be shown. The Board has prepared the following form for making application for review : STATE OF MICHIGAN Industrial Accident Board Lansing APPLICATIOK FOE REVIEW OP CLAIM BEFOBB FulL BOABD To the Industrial Accident Board, Lansing, Mich. Gentlemen: The undersigned, as provided in Part 3, Sec. 8, of Act No. lO, Public Acts 1912, makes application for a review of the findings of the Com- mittee on Arbitration in the claim of v. — . This claim for review is based on the following grounds: '■ Dated at this day of , 19 — . § 264. Attending physician's certificate 1. Name of injured person . Address 2. Date of accident . Hour of day M. 3. Was first treatment rendered by you? . If not, by whom? . Address . 4. If an assistant, consultant, or anaesthetist was necessary, give name and address . 5. Who furnished necessary medical supplies? 6. Was a nurse ordered by you? . Name . Address . 7. Is —he able to attend to any part of his present or any other occupa- tion? . 8. Was hospital treatment necessary? . Name . Address . 9. Give an accurate description of the nature and extent of the injury ?- 10. Describe the treatment . 11. Are the symptoms from which he is suffering due entirely to this in- jury? . 12. Has the injury resulted in a permanent disability? . If so, what? . 13. Has previous sickness or injury affected the present disability? . § 264 workmen's compensation 872 14. Is there evidence of syphilis? . Tubercular infection? . Al- coholism? . Any infectious disease? . Occupational dis- ease? . Neuresthenia? . Hypochondriasis? — . Hys- teria? . Exaggeration . 15. Is there evidence of malingering? . 16. For what period, from the date of accident is disability likely to exist? weeks days. 17. State in patient's own words, how accident occurred ' 18. Name of employer 19. Remarks. Dated 19—. Attending Physician. Address . Degree . lear . College • State op }' County of . j^- I, , a Notary Public (or Justice of the Peace) for the State of , residing at , , do hereby certify that on this day of . A. D. 19 — , personally appeared before me, the above named , a physi- cian in regular standing and to me well known, and made oath In due form of law that the foregoing statements, and each and all of them are full and true of his (her) own knowledge, and are made without reservation or con- cealment. I In witness whereof, I have hereunto set my hand and aflSxed my notarial seal the day and year last above written (Seal.) Notary Public (or Justice of the Peace). § 265. Proof of death and certificate authorizing burial Proof o]f D^ath from Undertaker State ov County of .}■ says that he is a duly Ucepsed undertaker of (city or town) at street No. ; that as such he was required on the day of , 19 — , to prepare the dead body of for burial ; that he placed said body in a coffin and placed said coffin containing the said body in a (ffrave. 873 ILLUSTRATIVE SELECTED FORMS § 265 vault, or expreis car) in cemetery (cemetery, crematory, or mauso- leum) ; that lie shipped said body via -^ to (relative, friend, etc.) at (address) ; that he was directed to conduct such burial by , who. authorized the following : Moving remains to morgue $ Washing, shaving and dressing $ Embalming $ Telephone $ TJnderclothes and hose $ Slippers $ Burial robe % Funeral notices $ Cemetery lot $ Opening and filling grave $ Lining grave $ Outside box $ Grave vault $ Taking box or vault to cemetery $ Casket, coffin $ Hearse $ Personal service $ Use of gloves $ Use of double rigs ? •- Use of single rigs ■ $ Funeral service by $ Wagon deliveries $ Total $ That he was informed said bill would be paid by . That no part of said bill of expense so authorized for said biu:ial has been paid, except r ? by $ by $ by (Bigned) . (UndertaTcer sign here.) Subscribed and sworn to before me this day of , A. D. 19 — . County (or City) Clerk (or Notary Public). Cbrtipicate of Person Authorizing Burial I, , hereby certify that I have read the foregoing affidavit of undertaker; that I authorized the items of expense therein amounting to $ , as the of deceased workman. (Signed) . (ferson a/uthorizing turial sign here.) § 266 workmen's compensation § 266. Subpcena SUBPCBNA Industrial Commission of State of In the Matter of 874 The People of the State of . To , Greeting: We command you, that all and singular, business and excuses being laid aside, you appear and attend before the Industrial Commission of at on the day of , 19 — , at the hour of o'clock M., then and there to testify in the above entitled matter, now pending before said Industrial Commission of , in which is being investigated and that you bring with you and then and there produce the following de- scribed books, papers and records : and for a failure to attend you will be deemed guilty of contempt and pun- ished according to law. Given under the seal of the Industrial Commission of this day of , 19—. Witness : (Seal.) The Industrial Commission of . By , Secretary. § 267. Petition for review Petition for Review ot Agreement or Decree Applicant(s) V. Respondent(8) .J , the above named applicant — , hereby gives notice to said Industrial Accident Commission that the above named parties on day of , 19 — , made an agreement for compensation approved by the Commission (or ^75 ILLDSTEATIVB SELECTED FORMS § 268 that a decree was made by said Commission) that the (employer's full name) should pay to (employe's full name) the sum of dollars per week for and during the term of weeks. That since said decree {or agreement) was made the injury for which the employe was compensated has ended {or increased, or diminished). Said applicant further shows that the accident upon which claim for com- pensation was based In this matter occurred on the day of , 19 — , at the town {or city) of , county of , and State of , and re- sulted in {state full result of injury) The postoflBce address of the above named applicant is and the post- -offlce address of the respondent(«) is as follows : The above named applicant prays for the following relief in that said com- pensation as originally given ma|y be ended {or increased, or diminished). {Signed) , {Applicant.) Dated at . this day of , 19 — . § 268. Notice of hearing Notice of Hearing of Petition for Review of Agreement or Decree Appllcant(s) Eespondent(8). To the above named parties and each of them: Notice is hereby given that on the day of , 19 — , notice and ap- plication for petition for review of agreement {or decree) for compensation in the above entitled matter was filed with the Industrial Accident Commission at its office in , and that a true copy of said notice and application is hereto attached. You will further take notice that a hearing in accordance with the provi- sions of {section and act) will be held on the day of , 19 — , at , commencing at o'clock in the noon of said day. You are further notified to be present at the time and place fixed for said hearing and be prepared to proceed with the same. Industrial Accident Commission, By , Secretary. Dated at this day of , 19 — . § 269 WORKMEN S COMPENSATION 875 § 269. Lump sum settlements/ Agreement for Redeeming Liabiuty by Payment o? Lump Sum Received of dollars and — (name of employer or insurer) the lump sum of — cents, making in all, with weekly payments already received by me, the total sum of dollars and cents, a weekly payment hav- ing been continued for^not less than six months. Said payments are received in redemption of the liability for all weekly payments now or in the future due me under the Workmen's Compensation Act, for all injuries re- ceived by me on or about the day of , 19—, while in the em- ploy of (name of employer and address), subject to the approval of the Industrial Accident Commission. Witness my hand this day of — Witness _ 19—. QIame) {Name of employ^ (City or town) {City or town) (Street and number) (Street and number) Application for Lump Sum Setti^ement In the Matter of Claimant, and Employer, Insurer, Respondents. _ Name of applicant . Address (street and nunbber) (city or town) (state). Age . Name of injured or deceased . Date of injury or death (manth) A. M, (or P. M.) (day), 19 — (year). Hour 877 ILLUSTRATIVE SELECTED FORMS § 269 Place of injury or death . Date agreement was approved {month) (.day), 19 — (j/eor).. Date award entered (month) (day), 19 — (year). Amount of compensation or death benefits received to date, $ . Amount due under award or agreement $ . Time compensation is to be paid under award or agreement (weeka) (months) (years). Date of first payment (month) (day), 19 — (year). In Case of Death Benefits, Answer the Pollowing: What relation do you bear to deceased? . If widow, have you re- married? . What children receiving benefits have reached age of 18 years? . Have any of dependents died? . What do you Intend to do with the money if a lump sum Is granted? If an investment is con- templated, give details. Wherefore, your petitioner respectfully prays the Commission for a settle- ment in one lump sum, the balance due under said award or agreement said sum to be computed according to the terms of the Workmen's Compensation Law. Dated at , this — day of , A. D., 19—. Petition by Employe or Dependents for Commutation oe Compensation Employs, Dependent—, Personal Representative, Claimant, [andj Compensation Agreement No. . Claim Petition No. Employer, Defendant. , 1^. To the Workmen's Compensation Board: an injured employ© (or a dependent or dependents of a deceased employe) hereby petitions your Honorable Board to commute the future in- stallments of compensation which are payable to by (name of employer, or State Workmen's Insurance Fund) under Compensation Agree- ment No. (or the award In claim petition No. ) as provided in section of the Workmen's Compensation Act, and to order the said (name of employer, or State Insurance Fund) to forthwith pay the 269 WORKMEN S COMPENSATION 878: present value of such installments in one lump sum payment, and alleges tbe following facts as the ground of this petition. Subscribed and sworn to before me, this My commission expires on the day of (Signature of petitioner.} ■ day of (Address.) -, 19—. -19—. -, Notary Public. § 270. Petition to terminate or modify PETITION FOR Termination or Modification of Agreement or Award on Ground of Changed DisabiIvITy ■Employ^, Dependent — , Personal Representative, Claimant. fand"! I--; Employer, Defendant. Compensation Agreement No. . Claim Petition No. , 19—. , an employer (or an employ^), a paa-ty to Compensation Agreement No. — ■ (or Award Claim Petition No. ), hereby petition your Honorable Board to terminate (or modify) the said agreement (or award), and as ground for the petition allege that the disability of , entitled to compensation under the said agreement (or award) has terminated (or increased or de- creased) as follows : (State manner in which disability has terminated or the manner w which and the extent to which it has increased or decreased.) And in support thereof I state the following facts : Sworn to and subscribed before me, this day of My commission expires on the day of , 19— (Name.) (Address.) -, 19—. Notary Public. 879 ILLUSTRATIVE SELECTED FORMS § 271 § 271. Receipt and release Receipt for Partial Payments Receipt for Partial Payment Under Workmen's Compensation Law . 19—. Received of the sum of dollars ($ ) said amount being such part of my weekly wages for a period of from the day of , 19 — , to the day of , 19 — , as I am entitled to under the Workmen's Compensation Law on account of an accident sustained by me on or about the day of , 19 — , while in the employ of . (Name) . {Address) . Witnesses : State op , , Vss: County of ■■}• , being first duly sworn, deposes and says that on the day of , A. D. 19 — , I read the above receipt to , who signed the same, and that before he signed I correctly Interpreted the contents of said receipt from the English language into the language to said '—, and the said then stated that he fully knew and understood the contents of said receipt. Subscribed and sworn to before me this day of , A. D. 19— (Seal.) Notary Public in and for County and State Aforesaid. Receipt Showing Release and Final Settlement Release and Final Receipt for Compensation Paid Under the Work- men's Compensation Lazv , 19—. Received of the sum of dollars ($ ) making in all, with the weekly payments already received by me, the total sum of dollars ($ ) such payment being the final payment of compensation under the Workmen's Compensation Law and in consideration of which I hereby re- lease and forever discharge the said , heirs, successors and as- signs, from any and all actions, causes of action, claims and demands, for, upon or by reason of any damage, loss, injury, suffering and disfigurement which heretofore has been or which hereafter may be sustained by me in § 271 workmen's compensation 880 ■consequence of an accident suffered by me on or about the day of , 19 — , while In the employ of . Witness my hand and seal, this day of 19—. "Witnesses : . (Seal.) State of , 1 County of -jf^* , being first duly sworn, deposes and says that on the day of , 19 — , he read the above receipt to , who signed the same, and that before signing, he, this deponent, correctly Interpreted the contents of said receipt from the English language in the language to said , and the said ■ — then stated to this deponent that he fully knew and un- derstood the contents of said receipt. Subscribed and sworn to before me this day of , A. D. 19 — . (Seal.) . Notary Public in and for County and State Aforesaid. § 272. Insurance — Notices Notice to Employes As required by (statute) this will give you notice that I (ice) have provided for payment to our injured employes under the above act by insur- ing with the Insurance Co. of (insert address of company here). Date . (Name of employer.) Address , . (City or tovm, street and numier.) Notice That an Employer has CeasEd to be a Subscriber This is to give you notice that I (we) have ceased to be a subscriber in any insurance company, under (statute) and that the policy formerly held by me expired (or is to expire ). (Name of employer.) Address , :. (Gity or tovm, street and rvumber.) TABLE OF CASES CITED Opinions of Attorney Generals of various states will be found in this table un- der the name of the state. Opinions of OomptroUer of Treasury will be found under "Federal Act" in this table. Opinions of Special Counsel to Iowa Industrial Commission will be found in this table under "Iowa." Report of Nevada Industrial Commission will be found in this table under "Nevada." First Annual Reports Oregon Industrial Accident Commission will be found in this table under "Oregon." Rulings of Washington Industrial Accident Insurance Commission will be found in this table under "Washington." A Page Aberdeen Steam Trawling & FlsMng Co. v. Gill, 1 B. W. C. C. 274 172 Abram Coal Co. v. Southern, 5 W. O. C. 125, H. L 575 Ackerson v. National Zinc Co., 96 Kan. 781, 153 Pac. 530 653, 728, 750, 761, 763 Acres v. Frederick & Nelson, 79 Wash. 402, 140 Pac. 370, 5 N. C. C. A. 557 737 Acrey v. Holtvllle, 2 CaL I. A. C. Dec. 587 198, 439, 618, 677, 767 Adams v. Acme White Lead & Color Works, 182 Mich. 157, 148 N. W. 485, li. R. A. 1916A, 282, 283, 6 N. C. C. A. 482 6, 110, 275, 276, 278, 298, 537, 539, 540 V. Acme White Lead & Color Works, Op. Mich. Indus. Ace. Bd. 31 73 V. Shaddox, 2 K. B. 859 28 y. Thompson, 5 B. W. C. C. 19, G. A 281 Addie & Sons' Collieries v. Trainer, 7 F. 115, Ct of Sess 245 Adler, In re. Op. Sol. Dept. of L. 63, 67, 15 Comp. Dec. 845 188, 811 V. Thomas Hefsky Theatre Co., The Bulletin, N. Y., vol. 1, No. 11, p. 13 ...: 335, 805 Admiral Fishing Co. v. Robinson, 3 B. W. O. C. 247, C. A 171 Agard, In re. Op. Sol. Dept. of L. 550 250 Agler v. Michigan Agriculture College, 181 Mich. 559, 148 N. W. 341, 5 N. C. C. A. 897 118, 182 V. Michigan Agriculture College, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 25 199 HoN.CoMP.— 56 (881) Aikea CASES CITED 882 Page Aiken v. Anderson, 2 Cal. I. A. C. Dec. 323 -. 206 Aillo V. Milwaukee Refrigerator Transit & Car Co., Kep. Wis. Indus. Com. 1914r-15, p. 18 421 Aitken v. Finlayson, Bousfield & Co., 7 B. W. C. C. 918, Ct. of Sess 299, 406 Akins V. Pacific Liglit & Power Corp., 2 Cal. I. A. C. Dec. 985 506 Albanese v. Stewart, 78 Misc. Rep. 581, 138 N. Y. Supp. 942 33, 90, 91, 92 Alcee, In re. Op. SoLJJept. gf L. 61 lOT Alderidge v. Merry, 6 B. W. C. C. 450, C. A 381 Allaire v. Copping, 1 Conn. Comp. Dec. 288 727 Allard V. Browne, 2 Cal. I. A. C. Dec. 489 691 V. New York, N. H. & H. R. R. Co., 1 Conn. Comp. Dec. 385 756, 777 Allen V. MillvlUe, 87 N. J. Law, 356, 95 Atl. 130, 1011, 9 N. C. C. A. 749. .73, 750 V. Southwestern Surety Ins. Co., 1 Cal. I. A. C. Dec. 67. , 479, 512 V. State (Sup.) 160 N. Y. Supp. 85 9, 333 Alloa Coal Co. v. Drylie, 6 B. W. 0. C. 398, Ct. of Sess., 1 Scot. L. T. 167, 4 N. O. C. A. 899 300, 302, 544 Allyn V. Fresno Brewing Co., 2 Cal. I. A. C. Dec. 784 440 Alton V. Hopkins & AUen Arms Co., 1 Conn. Comp. Dec. 378 486 Alvarez v. Eisenmann, 1 Conn. Comp. Dec. 357 240 American Coal Co. v. Allegany County Com'rs, 128 Md. 564, 98 Atl. 143.. 59, 64, 66, 80 American Ice Co. v. Pitzhugh, 128 Md. 382^ 97 Atl. 999. .331, 568, 569, 571, 818 American Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. 634 256 American Mut. Liability Ins. Co., In re, 215 Mass. 480, 102 N. E. 693, Ann. Cas. 1914D, 372, 4 N. C. C. A. 60 33, 191, 745, 820, 836 American Mut. Liability Ins. Co., In re, 222 Mass. 461, 111 N. E. 166 584 American Radiator Co. v. Rogge, 87 N. J. Law, 314, 93 Atl. 1083, affirm- ing 86 N. J. Law, 436, 92 Atl. 85, 94 Atl. 85, 7 N. C. C. A. 144 39, 41, 115 American R. Co. v. Didricksen, 227 TJ. S. 145, 33 Sup. Ct. 224, 57 L. Ed. 456 251 Ames V. New York Cent. R. B. Co., The Bulletin, N. Y., vol. 1, No. 12, p. 17 ,. 367 Amys V. Barton, 5 B. W. C. C. 117, C. A 322, 420, 776 Anderson, In re, vol. 1, No. 7, Bui. Ohio Indus. Comp. p. 90 363, 379 V. American Straw Board Co., 1 Conn. Comp. Dec. 11 234, 686 V. Ashmore Mut. Tel. Co., BuUetin No. 1, 111., p. 132 331 V. Baird & Co., 40 S. L. R. 263 523 V. Baird & Co., 5 F. 373, Ct. of Sess 528 V. Balfour, 3 B. W. C. C. 588, C. A 284, 437 V. Balfour, 2 I. R. 497 433 V. Fielding, 92 Minn. 42, 99 N. "W. 357, 104 Am. St. Rep. 665 251 V. Fife Coal Co., 3 B. W. C. C. 539, Ct. of Sess 372 V. Mickelson, 1 Cal. I. A. C. Dec. 189 133 V. National Fireproofing Co., Bulletin No. 1, 111., p. 41 801 883 CASES CITED Atchison Page Anderson v. North Alaska Salmon Co., 2 Cal. I. A. C. Dee. 241 39, 99 V. Perew, 2 Cal. I. A. C. Dec. (Bulletins 1915) 736 1T7, 349 Anderson & Co. v. Adamson, 6 B. W. C. C. 874, Ct. of Sess 432 Andremi v. CudahyvPacking Co., 1 Cal. I. A. O. Dec. 157, 6 N. O. C A. 390. . 501 Andrejwskl v. Wolverine Coal Co., 182 Mich. 298, 148 N. W. 684, 6 N. C. 0. A. 807 25, 587, 594 Andreucetti v. California Brick Co., 2 Cal. I. A. C. Dec. 282, 284 550 Andrew v. Alaska Packers' Ass'n, 2 Cal. I. A. C. Dec. 770 271 Andrews v. Andrews & Mears, 1 B. W. C. C. 264, C. A 129 V. Failsworth Industrial Soc, 2 K. B. 32, 90 L. T. 611 426, 429, 430 Angelucci v. H. S. Kerbaugh, Inc., The Bulletin, N. Y. Vol. 1, No. 12, p. 16 243, 270 Andrzejewski v. Northwestern Fuel Co., 158 Wis. 170, 148 N. W. 37 828 Anslow V. Cannock Chase Colliery Co., 2 B. W. C. C. 361, C. A 581 Aquilano v. Lambo, 1 Conn. Comp. Dec. 145 499, 527 Arata, In re, Op. Sol. Dept. of L. 264 299 Archibald v. Ott (W. Va.) 87 S. E. 791 322, 323, 324, 381, 382, 383, 415, 437, 477, 548 Arizona & N. M. E. Co. v. Clark, 207 Fed. 817, 125 C. C. A. 305, affirmed 235 U. S. 669, 35 Sup. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834 31 Armanis v. Kerr, 1 Conn. Comp. Dec. 338 716 Armiger v. Townsend-Davis Baking Co., 1 Cal. I. A. C. Dec. 55 483, 650 Armistead, In re. Op. Sol. Dept. of L. 305 402 Armitage v. Lancashire & Y. R. Co., 2 K. B. 178 324, 426, 433, 441 V. Lancashire & Y. R. Co., 4 W. C. C. 5, C. A 435, 436 Armour & Co. v. Industrial Board of Illinois, 273 111. 590, 113 N. E. 138. . 464, 774, 831, 840 Armstrong v. Industrial Commission of Wisconsin, 161 Wis. 530, 154 . N. W. 844 244 Arnold, In re. Op. Sol. Dept. of L. 156, 158 344 V. Benjamin, 1 Cal. I. A. C. Dec. 412 565 V. Brooklyn, 1 Conn. Comp. Dec. 188 480 V. Holeproof Hosiery Co., Rep. Wis. Indus. Com. 1914^15, p. 32. .320, 436 Arnott V. Fife Coal Co., 6 B. W. C. C. 281, Ct of Sess 479 Arrol & Co. v. Kelly, 7 F. 906, 42 S. C. L. 695 228, 233 Artensteln v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases 699 177 Ash V. Barker, 2 Cal. I. A. C. Dec. 139 510 V. Barker, 2 Cal. I. A. C. Dec. 577 480, 488, 500, 701, 710 Ashley V. Lilleshall Co., 5 B. W. C. C. 85, C. A 308 Ashton V. Boston & M. R. Co., 222 Mass. 65, 109 N. E. 820, L. R. A. 1916B, 1281 114 Atchison, T. & S. F. R. Co. v. Matthews, 174 V. S. 106, 19 Sup. Ct. 609, 43 L. Ed. 909 80 Atkins CASES CITED 884 Page Atkins V. Scranton, 1 Conn. Comp. Dec. 34 363, 445 Atkinson, In re, Op. SoL Dept of L. 235 490 Atlas Shoe Co. v. Bloom, 209 Mass. 563, 95 N. B. 952 159 Augustine v. Cotter, 2 Gal. I. A. C. Dec. 49 206 Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57, 57 N. B. 168, 79 Am. St. Kep. 565 3^9 Avery, In re, Op. Sol.^ept. of L. 517 652 V. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 311. . . .227, 247, 261, 269 Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34, 155 N. Y. Supp. 916. . 330 Aylward v. Oceanic S. S. Co., 2 Cal. I. A. C. Dec. 95 534, 535, 681 6 Bacik V. Solvay Process Co., Mich. Wk. Comp. Cases (1916) 48 .570, 800 Ba,ck V. Dick, Kerr & Co., 8 W. C. C. 40, H. L 129 Backman v. Dwight Devine & Sons, The Bulletin, N. Y., vol. 1, No. 10, p. 17 512 Badolato, In re, Op. Sol. Dept. of L. 630. 769 Baggonski v. Clayton Bros., 1 Conn. Comp. Dec. 299 580 Bagley V. James, 2 Cal. I. A. C. Dec. 842 198 BaUey, In re. Op. Sol. Dept. of li. 297 353, 649 V. Kenworthy, 1 B. W. C. C. 351, 371, C. A. 594 V. United States Fidelity & Guaranty Co., 99 Neb. 109, 155 N. W. 237 142,654,659,660,662 V. Wheeler Co., 1 Cal. I. A. C. Dec. 142 690 Balne v. Libby, McNeil & Libby, 2 Cal. I. A. 0. Dec. 433 310 Baird, In re, VoL 1, No. 7, Bui. Ohio Indus. Com. p. 28 237, 594 Baird& Co. v. Burley, 1 B. W. C. C. 7, Ct. of Sess.. 435, 437 V. Podolska, 8 F. 438, Ct. of Sess 235 V. Robson, 7B. W. C. C. 925 407 Baker, In re. Op. Sol. Dept of L. 100 188 V. Armstrong, 2 Cal. I. A. C. Dec. 1057 210 Bakiewicz v. National Brake & Electric Co., Bep. Wis. Indus. Com. 1914:- 15, p. 11 511, 703, 755 BaU V. Hunt, 81 Ii. J. K. B. 782, 787 635 V. William Hunt & Sons, 5 B. W. C. 0. 469, H. L. ; 4 B. W. C. O. 225, O. A. 479, 599, 601 Banister Co. v. Kriger, 84 N. J. Law, 30, 85 AtL- 1027, rehearing denied 89 Atl. 923 629, 634, 646, 650, 662, 805, 837, 839 Bank v. Com., 167 TJ. S. 461, 17 Sup. Ct 829, 42 L. Bd. 236 80 Banks V. Adams Exp. Co., The Bulletin, N. T., vol. 1, No. 7, p. 9 510 Barbeary v. Chugg, 8 B. W. C. C. 37, C. A. 300, 451 Barbour Flax Spinning Co. v. Hagarty, 85 N. J. Law, 407, 89 AtL 919, 4 N. C. O. A. 586 629 885 CASES CITED Bayiie Page Barclay, Curie & Co. v. McKinnon, 3 F. 436, Ct. of Sesa 129 Bargewell v. Danies, 98 L. T. R. 257, C. A 191 Bargey v. Massaro Macaroni Co., 218 N. T. 410, 113 N. B. 407, aflarming 170 App. Div. 103, 155 N. Y. Supp. 1076 332 Barksdale v. Fidelity & Deposit Co. of Maryland, 2 Mass. Wk. Eep. of Comp. Cases, 214 549 Barnabas v. Bersham Colliery Co., 3 B. W. C. O. 216, C. C, 102 L. T. R. 621 308, 464 V. Bersham CoUiery Co., 4 B. W. C. C. 119, H. L., 103 L. T. R. 513 308, 464, 779 Barnard v. H. Garber & Co., 1 Conn. Comp. Dec. 572 369, 453 Barnes v. Evans & Co., 7 B. W. C. O. 24, C. A 212 V. Nunnery Colliery Co., 4 B. W. C. C. 43, C. A 389, 444, 457 V. Nunnery Colliery Co., 5 B. W. C. C. 195, 199 389, 444, 457, 563 V. Nunnery Colliery Co. (1912) App. C. 44 321, 392 Barnett v. Port of London Authority, 6 B. W. C. C. Ill 584 Barozzi v. Bertin & Leporl Co., 1 Cal. I. A. C. Dec. 484 725 Barrett v. Grays Harbor Commercial Co. (D. C.) 209 Fed. 95, 4 N. C. C. A. 756 150, 736 V. Shartenberg & Robinson Co., 1 Conn. Comp. Dec. 305 38a Barron v. Venice, 2 Cal. I. A. C. Dec. 25 184 Barron's Case, 121 U. S. 186, 7 Sup. Ct. 931, 30 L. Ed. 915 71 Barry v. Bay State St. B. Co., 222 Mass. 366, 110 N. E. 1031. .155, 159, 160, 724 Bartley v. Boston & N. St. Ry., 198 Mass. 163, 83 N. E. 1093 257 Barton v. Mulvane, 59 Kan. 313, 52 Pac. 883 763 V. New York, N. H. & H. R. B. Co., 1 Conn. Comp. Dec. 227. . .531, 713, 714 Bartz V. Friedlander, The Bulletin, N. Y., vol. 1, No. 11, p. 11 333, 423 Bassett v. Chicago, R. I. & P. R. Co., Bulletin No. 1, 111., p. 120 46 V. Thomas Graf Edler Co., 1 Cal. I. A. C. Dec. 60 583, 706 Batch V. Borough of Groton, 1 Conn. Comp. Dec. 177 624 Batchelder v. Kreis, 1 Cal. I. A. C. Dec. 63 134, 794 Bateman v. Albion Combing Co., 7 B. W. C. C. 47 467 V. Carterville & Big Muddy Coal Co., 188 111. App. 357 106 Bateman Mfg. Co. v. Smith, 85 N. J. Law, 409, 89 Atl. 979, 4 N. C. C. A. 588 4 585, 626 Bates V. Mirfield Coal Co., 6 B. W. C. C. 165, C. A 473 Bathgate v. Caledonian R. Co., 4 F. 313, Ct. of Sess 130 Batista v. West Jersey & S. B. Co. (N. J.) 88 Atl. 954, 4 N. O. C. A. 781. . . 246 Battenfleld v. Atchison, T. & S. F. R. Co., 2 Cal. I. A. C. Dec. 688 53 Baur V. Court of Common Pleas, 88 N. J. Law, 128, 95 Atl. 627 31, 576, 745, 766 Baumgartner v. New Method Laundry Co., 2 Cal. I. A. C. Dec. 639 767 Bayer v. Bayer (Mich.) 158 N. W. 109 322 Bayne v. Riverside Storage & Cartage Co., 181 Mich. 378, 148 N. "W. 412, 5 N. C. C. A. 837 822, 825, 839 Bayoa CASES CITED 886 Page Bayon v. Beckley, 89 Conn. 154, 161, 93 Atl. 139, 8 N. O. C. A. 588 25, 110, 111, 327, 732 Heals V. United Railroads of San Francisco, 3 Cal. I. A. C. Dec. 30 588 Beam r. Thornton Claney Lumber Co., Bulletin No. 1, lU., p. 113 801 Beamer v. Southern Pac. Co., 2 Cal. I. A. C. Dee. 737 52 Beatty v. Los Angeles County, 2 Cal. I. A. C. Dec. 1058 379, 452 Beauchamp v. Chanslor-Canfleld Midway Oil Co., 2 Cal. I. A. O. Dec. 510. . 307 Beaudry v. Watkins ^ich.) 158 N. W. 16 355, 445, 550 Beaumont v. Underground Electric R. Co. of London, 5 B. W. C. C. 247, C. A 309 Becker v. Blake, 1 Conn. Comp. Dec. 516 ., 804 Beckster v. Pattison, 1 Conn. Comp. Dec. 61 311 Beddard v. Stanton Ironworks Co., 6 B. W. C. C. 627, C. A 599 Bedini v. Northwestern Pac. R. Co., 1 Cal. I. A. C. Dec. 312 303, 654, 657 Behrlnger v. Inspiration Consol. Copper Co., 17 Ariz. 232, 149 Pac. 1065 24, 91, 102 Beinotovitz v. National Iron Works, 1 Conn. Comp. Dec. 623 714 Belcher v. Campo, 1 Conn. Comp. Dec. 612 233 Belfast, The, 7 Wall. 624, 19 L. Ed. 266 44 Bell V. Hayes-Ionia Co. (Mich.) 158 N. W. 179 295, 797, 822, 826 V. Toluca Coal Co., 272 111. 576, 112 N. E, 311 109 Bell's Gap Railroad v. Pennsylvania, 134 U. S. 232, 237, 10 Sup. Ct. 533, 33 L. Ed. 892 80 Bellamy v. Humphries & Sons, 6 B. W. C. C. 53, C. A 468 Bender v. Zent, The, 2 B. W. C. C. 22, C. A 468 V. Zent, The, 100 L. T. 639 469 V. Zent, The, 2 K. B. 41 ■ 471 Bennett v. San Buenaventura Wharf Co., 1 Cal. I. A. C. Dec. 200 239 V. Wordie & Co., 3 F. 908 762 Benoit v. Bushnell, 1 Conn. Comp. Dec. 172 211, 827 Benson v. Hutchinson Co., 2 Cal. I. A. C. Dec. 901 350, 412 V. Lancashire & Xorkshire B. Co., 6 W. C. C. 20, C. A 326, 359, 385 Bentley v. Massachusetts Employees Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 42, affirmed 217 Mass. 79, 104 N. E. 432 235 Bentley's Case (Bentley, In re) 217 Mass. 79, 104 N. E. 432, 4 N. C. C. A. 559 .25, 257, 263, 821, 824, 830 Benton v. Wilson, Bulletin No. 1, 111., p. 54 117, 330 Berg, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 102 685 V. Great Lakes Dredge & Dock Co., 158 N. Y. Supp. 718 388 Bergeron, Petition of, 220 Mass. 472, 475, 107 N. E. 1007 290 Bernard, In re. Op. Sol. Dept. of L. 323 371 V. Michigan United Traction Co. (Mich.) 154 N. W. 566 101 Bernstein v. Bothman, BuUetin No. 1, 111., p. 163 801, 802 Berry v. Paciflc Coast Steel Co., 2 Cal. I. A. 0. Dec. 178 614 887 CASES CITED Blanvelt Page Berthold v. McCormlck S. S. Co., 2 Cal. I. A. O. Dec. 993 803 Berton v. Tietken & Land Dry Dock Co. (D. C.) 219 Fed. 763 45 Bertram v. Crocker Co., 2 Cal. I. A. O. Dec. 851 498 Besnys v. Herman Zohrlaut Leather Co., 157 Wis. 203, 147 N. W. 37, 5 N. C. 0. A. 282 20, 111, 113 Blanchini v. Selby Smelting & Lead Co., 2 Cal. I. A. O. Dec. 195 679, 680 Bickelnitzky v. Acme Brewing Co., 3 Cal. I. A. C. Dec. 5 611 Biddinger v. Champion Iron Co., Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 70 110, 147, 208, 325, 353, 434, 572 Biero v. New Haven Hotel Co., 1 Conn. Comp. Dec. 52 240, 792 Biggart v. Minnesota, The, 5 B. W. C. C. 69, C. A 450 Billingsley v. tjnited Tuna Packing Co., 2 Cal. I. A. C. Dec. 133 807 BiUman v. Two Rivers Coal Co., Bulletin No. 1, 111., p. 69 635 Binkley v. Western Pipe & Steel Co., 1 Cal. I. A. C. Dec. 33 590, 641 Birmingham v. Lehigh & Wilkesbarre Coal Co. (N. J.) 95 Atl. 242 31, 620, 766, 781, 815 Birmingham Cabinet Mfg. Co. v. Dudley, 3 B. W. C. C. 169, G. A 602 Birk V. Matson Nav. Co., 2 Cal. I. A. C. Dec. 177 305 Birnie v. Contractors' Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 619 318 BischofC V. American Car & Foundry Co. (Mich.) 157 N. W. 34 403, 546, 823 Bishop V. Iroquois Iron Co., Bulletin No. 1, 111., p. 108 239 V. Southern Pac. Co., 2 Cal. I. A. C. Dec. 749 53 V. United States Crushed Stone Co., Bulletin No. 1, 111., p. 201 239 Bisotti V. Behlow Estate Co., 2 Cal. I. A. C. Dec. 986 409 Bist V. London & Southwestern R. Co., 9 W. C. C. 19, 24, H. L., 96 L. T. 750 555, 556, 559, 569 Black V. New Zealand Shipping Co., 6 B. W. O. C. 720, C. A 542 Blackall v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 183 227, 275, 515 Blackford v. Green, 87 N. J. Law, 359, 94 Atl. 401 630, 666, 684 Blackhurst, In re, Op. Sol. Dept. of L. 690 648 Blaine, In re. Op. Sol. Dept. of L. p. 117 341 V. McKinsey, 1 Cal. I. A. C. Dec. 641 192, 207, 550 Blake V. Head, 5 B. W. C. C. 303, C. A, 284, 439 V. Head, 106 L. T. R. 822 324, 426 V. Herskovitz, Bulletin No. 1, 111., p. 161 519, 801 Blanchard v. Portland & R. F. Ry., 87 Me. 241, 32 Atl. 890 186, 187 Blanding v. Sayles, 21 R. I. 211, 42 Atl. 872, 23 R. I. 226, 49 Atl. 992 822 Blanton v. Wheeler & Howes Co., 1 Conn. Comp. Dec. 415 227 Blanz V. Brie R. R. Co., 84 N. J. Law, 35, 85 Atl. 1030 231 Blass V. Studebaker Corp. of America, 1 Cal. I. A. C. Dec. 162 799 Blatt V. Schoneberger & Noble, The Bulletin, N. Y., vol. 1, No. 6, p. 10 511 Blauvelt v. Chicago & A. R. Co., Bulletin No. 1, 111., p. 181 16, 46, 47 Block OASES CITED 8S8 Page Block V. Mutual Biscuit Co., 2 Cal. I. A. C. Dec. 274 303, 411, 515 Blood V. Industrial Ace. Commission of California (Cal. App.) 157 Pac. 1140 205 Bloom, In re, 222 Mass. 434, 111 N. E. 45 748, 749, 761, 824 V. Jaffe, 94 Misc. Rep. 222, 157 N. T. Supp. 926 719 Blount, In re, Op. Sol. Dept of L. 137 846 Blovell V. Sawyer, 20 T. L. R. 105 396 Blovelt V. Sawyer, 6 W. 0. C. 16, C. A 380 Blynn v. Pontiac, 185 Mich. 35, 151 N. W. 681, 8 N. C. O. A. 793 222, 327 Boardman v. Whitworth, 3 W. C. C. 33 287 Board of Water Supply, In re, 170 App. Div. 107, 155 N. Y. Supp. 753 823 Bobbey v. Crosbie, SB. W. C. C. 236, C. A 124,128 Bockwicb V. Housatonic Power Co., 1 Conn. Comp. Dec. 266 476,491 Bode V. Shreve & Co., 1 Cal. I. A. C. Dec. 6 350, 353 Boehme v. Owl Drug Co., 2 Cal. I. A. C. Dec. 529 467 Boggeln V. Coronada Hotel, 1 Cal. I. A. C. Dec. 276 499 Bobma v. Western Union Tel. Co., 2 Cal. I. A. C- Dec. 246 652 Bolger V. North Pacific S. S. Co., 2 Cal. I. A. 0. Dec. 268 561 BoUes V. New York Motion Picture Corp., 2 CaL I. A. O. Dec. 501 372 Bolton T. Bridgeport Brass Co., 1 Conn. Comp. Dec. 515 521 BOnsaU t. Midland Colliery Owners' Mut. Indemnity Co., 7 B. W. O. O. 613, C. A , 607 Bonsanar, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 87 260 Boody V. K. & C. Mfg. Co., 77 N. H. 208, 90 Aa 859, K B. A. 1916A, 10, Ann. Cas. 1914D, 1280, 5 N. C. C. A. 840 .109, 277, 325, 328, 411, 453 Boon V. Quance, 3 B. W. C. C. 106, O. A 180 Booth V. Burnett, 2 CaL I. A. C. Dec 125 373 V. Leeds & Liverpool Canal Co., 7 B. W. C. C. 434, C- A 474 Borgnis v. Falk Co. (Borgnls Case) 147 Wis. 327, 133 N. W. 209, 37 L. B. A. (N. S.) 489, 3 N. C. C. A. 649 71, 72, 77, 82, 85, 86, 98, 772, 829 Borland v. Watson, Gow & Co., 5 B. W. C. C. 514, Ct of Sess 318, 517 Boschetti r. Lecas, 3 Cal. I. A. C. Dec. 39 192 Boston & M. R. R. Co. v. Trafton, 151 Mass. 229, 23 N. B. 829 33 Boswell V. Gilbert, 2 B. W. C. C. 251, C. C 120 Boucher v. Olson & Mahony S. S. Co., 1 Cal. I. A. C. Dec. 248 375, 453 Bowdish V. Northwestern Pac. R. Co., 2 Cal. I. A. C. Dec. 777 407 Bowen, In re, Op. Sol. Dept. of L. 340 647 BowhiU Coal Co. T. Nelsh, 2 B. W. C. C. 253, Ct. of Sess 241 Bowne v. S. W. Bowne Co., The BuUetin, N. Y., voL 1, No. 12, p. 17 173, 334 Boyd V. Doharty, 2 B. W. C. C. 257, Ct of Sess 214 V. Pratt, 72 Wash. 306, 130 Pac. 371 644, 843 Boyington v. Stoddard, 1 Conn. Comp. Dec. 103 211, 566 BracMns v. Trinity Asbestos Mining Co., 3 Cal. I. A. C- Dec. 22 396 Bradbury v. Belworth Coal & Iron Co., 2 W. C. C. 138, C. A 677 CASES CITBD Brooklyn Page Bradford T. Union Hollywood "Water Co., 2 Cal. I. A. 0. Dec. 792 272 Bradley V. Wallaces, Ltd., 6 B. W. 0. C. 706, C. A 154 V. Waterbury Clock Co., 1 Conn. Comp. Dec 179 700 Brady v. Grove, 1 Conn. Comp. Dec. 240 123 Brain t. Blsfelder, 2 Cal. I. A. C- Dec. 30 130, 133, 205, 206, 680 Braithwalte v. Rowley, 1 Conn. Comp. Dec. 355 804 Braithwaite & Kirk t. Cox, 5 B. W. C. C. 77, C. A 526 Bramley v. Evans & Sons, 3 B. W- O. C. 34, C. A 753 Brandt v. Globe Indemnity Co., 1 Cal. I. A. C. Dec. 309 623, 682 Branch, In re, Op. Sol. Dept. of L. 576 249,256 Branconnier, In re, 223 Mass. 273, 111 N. E. 792 620 Bravls v. Chicago, M. & St P. R. Co., 217 Fed. 234, 133 C. C. A. 228 55 Breakwater Co. v. U. S., 183 Fed. 112, 114, 105 C. C. A. 404 183 BreakweU v. Clee HiU Granite Co., 5 B. "W. C. C. 133, C. A 752 Brennan v. Travelers Ins. Co., 2 Mass. Wk. Comp. Cases, 503 600 Brenner v. Brenner, 127 Md. 189, 96 Atl. 287 12, 28, 817 Brewer v. Belcher, 1 Conn. Comp. Dec. Ill .107, 742, 754 V. Smith, 6 B. W. C. C. 651, 0. A 545 Brice V. Lloyd, Limited, 2 B. W. C. C. 26 379, 380, 455 V. Lloyd, Limited, 2 K. B. 809 327 Bridge v. Southern Pac. Co., 2 Cal. I. A. C. Dec. 736 52 Bridgewood v. Union Iron Works Co., 2 Cal. I. A. C. Bee. 599 315 Briere v. Taylor, 126 Wis. 347, 105 N. W. 817 821 Briggs V. Mitchell, 4 B. W. O. C. 400, Ct. of Sess 242 Brightman, In re, 220 Mass. 17, 107 N. E. 527, L. E. A. 1916A, 321, 8 N. C. C. A. 102 309, 407, 416, 510, 830 Brine v. May, Ellis, Grace & Co., 6 B. W. C C. 134, C. A 127 Brinkley, In re, Op. Sol. Dept. of L. (1915) 603 687 Brlntons, Limited, v. Turvey, 6 W. C. C. 1, C. A., 74 L. J. K. B. 474. . .302, 538 V. Turvey, 7 W. C. C. 1, H. L 302 Brio V. Carpenter, Boxley & Herpick, The Bulletin, N. Y,, vol. 1, No. 5, p. 11 656 Briscoe, In re, Op. Sol. Dept. of L. 776 345 Bristol V. Bristol, 1 Conn. Comp. Dec. 368 580 V. Gartland, 1 Cal. L A. C. Dec. 632 262, 641 Bristow, In re. Op. Sol. Dept. of L. 150 343 Brockman V. Sheridan, 2 Cal. L A. C. Dec. 1061 205 Broderlck v. London County Council, 1 B. W. O. C. 219, C. A 274, 541 V. San Francisco Stevedoring Co., 2 Cal. I. A. C. Dec. 293. . ; 741 ■ V. Southern Pac. Co., 4 N. Y. St. Dep. Rep. 371 482 Broforst V. Blomfield, The, 6 B. W. C. C. 613 306 Brooker v. Warren, 9 W. C. O. 26, C. A. 562 Brooklyn Mining Co. v. Industrial Ace. Commission of California (Cal.) 159 Pac. 162 550 Brooki CASBS CITED 890 Page Brooks V. Central California Traction Co., 2 Oal. I. A. C. Dec. 420 613 Brown, In re (Sup.) 159 N. X. Supp. 1047 334 Brown, In re. Op. Sol. Dept. of L. 102 187 Brown, In re. Op. Sol. Dept. of L. 137 343 Brown, In re, Op. Sol. Dept. of L. 328 402 V. Berkeley Dally Gazette, 2 Cal. I. A. C. Dec. 844 283, 395, 433 V. Clark, 80 Conn. 419, 423, 68 Atl. 1001 824 V. Corona Citrus IkBB'n, 2 Cal. I. A. C. Dec. 144 533, 534 V. Davies-Iieavitt Co., 2 Cal. I. A. C. Dec. 12 787, 788 V. Decatur, 188 lU. App. 147 125, 339, 419 V. J. J. Thornecroft & Co., 5 B. W. C. C. 386 599, 676 V. Kemp, 6 B. W. C. C. 725, O. A 462 V. Kent, 6 B. W. C. C. 745, C. A 515 V. Kidman, 4 B. W. C. C. 199, C. A. 482 V. Lochgelly Iron & Coal Co. (1907) S. C. 198, Ct. of Sess 752 T. Mauston, Bui. Wis. Indus. Com. vol. 1, p. 97 199, 755 V. Pioneer Fruit Co., 2 Oal. I. A. C. Dec. 827 395 V. Richmond Light & E. R. Co., The Bulletin, N. Y., vol. 1, No. 6, p. 12 376 V. Scott, 1 W. C. C. 11, C. C 405 V. Sheffield Scientific School, 1 Conn. Comp. Dec. 419 728 V. South Eastern & Chatham R. Co.'s Managing Committee, 3 B. W. O. C. 428, C. A 663 V. Thornecroft & Co., 5 B. W. C. C. 386, C. A 599, 676 T. Watson, Limited, 6 B. W. C. C. 416, Ct. of Sess 300, 491 V. Watson, Limited, 7 B. W. O. C. 259, H. L ,. 300, 491 Bruce V. Taylor & Maliskey (Mich.) 158 N. W. 153 822 Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458, 460, 3 N. C. C. A. 585 29, 162, 276, 281, 288, 321, 322, 323, 324, 346, 347, 396, 408, 433, 437, 464, 465, 570, 571, 839 Bryce v. Edward Lloyd Co., 2 B. W. C. C. 26 397 Bryce & Co. v. Connor, 7 P. 193, Ct. of Sess 606 Bryne v. Baltinglass Rural District Council & Kelly, 5 B. W. O. O. 566, C. A 212 Buchanan v. White Dumber Co., 2 Cal. I. A. C. Dec. 796 225, 227 Bucherri v. Hartford Rubber Works Co., 1 Conn. Comp. Dec. 622 655 Buckley v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 186, affirmed 218 Mass. 354, 105 N. E. 979, Ann. Cas. 1916B, 474. . . 237 V. London & India Docks, 2 B. W. C. 0. 327, C. A 586 Buell V. New York Cent & H. K. R. R. Co., The Bulletin, N. Y., vol. 1, No. 5, p. 12 48 BuUard, In re. Op. Sol. Dept. of L. 140 343 BuUworthy v. Glanfleld, 7 B. W. C. C. 191, O. A 390 Burbage v. Lee, 87 N. J. Law, 36, 93 Atl. 859 597 Burgess v. Star, 2 Cal. I. A. 0. 269 299, 541 ^91 CASES CITED OamelUer Page Burgess & Co. v. Jewell, 4 B. W. 0. 0. 145, 0. A. 507 Burkard v. San Francisco Breweries, 2 Cal., I. A. C. Dec. 365 534, 711 Burke, In re. Op. Sol. Dept. of L. 139 343 V. Shepard, 1 Conn. Comp. Dec. 106 757 Burman v. Zodiac Steam Fishing Co., 7 B. W. C. C. 767, C. A 171 Burnes v. Swift & Co., 186 111. App. 460 121 B«rnham v. Thames Nat. Bank, 1 Conn. Comp. Dec. 339 173, 174 Burnham & Co. v. Taylor, 3 B. W. C. C. 569, Ct. of Sess 213 Burns, In re, 218 Mass. 8, 105 N. E. 601, Ann. Cas. 1916A, 787, 5 N. C. C. A, 635 290, 507, 548, 674, 824 In re, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 5 581, 582, 713, 720 V. Manchester & Salford Wesleyan Mission, 99 L. T. 581, C. A 182 V. Summerlee Iron Co., 6 B. W. C. C. 320, C. A. 404 Burrell v. Holloway Bros., 4 B. W. C. C. 239, 241, C. A 749, 758, 761 Burt V. Brigham, 117 Mass. 307 785 Burwash v. Leyland & Co., 5 B. W. 0. C. 663, C. A 473 Busek V. Wisconsin Gas & Electric Co., Rep. "Wis. Indus. Com. 1914-15, p. 38 672 Bush V. Ickleheimer Bros. Co., 1 Cal. I. A. C. Dec. 522 415, 427, 465 Bustamente v. Gate City Ice & Precooling Co., 2 Cal. I. A. C. Dec. 918. .261, 268 Butler, In re. Op. SoL Dept. of L. 502 572 V. Burton-on-Trent Union, 5 B. W. C. C. 355, C. A. 420 V. Sheffield Farms, The Bulletin, N. Y., vol. 1, No. 4, p. 11 310 Butt V. Gellyceidrim ColUery Co., 3 B. W. C. 0. 44, C. A 756 V. Provident Clothing Supply Co., 6 B. W. O. C. 18, C. A 401 Butti V. MacRorie-McLaren Co., 2 Cal. I A. C. Dec. 535 198 Buzby, In re. Op. Sol. Dept. of L. 141 343 Byer's Case, 84 Ohio St. 408, 95 N. E. 917, 38 L. R. A. (N. S.) 913 93 By Strom Bros. v. Jaeobson, 162 Wis. 180, 155 N. W. 919 278, 279, 477 Cadwalader, In re. Op. Sol. Dept. of L. 182 , . 345 Cahill, In re, 159 N. Y. Supp. 1060 743 Cain V. Leyland & Co., 1 B. W. C. C. 351, 368, C. A 592 V. National Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251.653, 694, 842 Calef V. Union Oil Co. of CaUfornia, 2 Cal. I. A. C. Dec. 488 765 Calico Printers' Ass'n v. Higham, 5 B. W. C. C. 110 579 California State Board of Prison Directors v. Dickerson, 1 Cal. I. A. C. Dec. 262 227 CaUaghan v. MaxweU, 2 F. 420, Ot. of Sess 457, 562 Callender, In re. Op. Sol. Dept. of L. 637 770 Oamellierv. CardllU, 1 Conn. Comp. Dec. 215 135 Cameron CASES CITED S92' Pagff Cameron v. CUcago^ M. & St. P. R. Co., 63 Minn. 384, 65 N. W. 652, 31 L. R. A. 553 82 T. PUlsbury (Cal.) 159 Pac. 149 173 V. Port of London Authority, 5 B. W. 0. C. 416, O. A 492 CampaneUa v. Frank Stola Const. & Bldg. Co., Tlie Bulletin, N. Y., vol. 1, No. 12, p. 17 361 Campbell v. iEtna Life Ins. Co., 2 Mass. Wk. Comp. Cases, 701 494 V. li. E. White liUmBer Co., 3 Cal. I. A. C.Dec. 33 700, 709- V. Los Angeles, 2 Cal. i. A. C. Dec. 300 184 Campos V. Southern Pac. Co., 2^Cal. L A. C. Dec. 747 54 Canavan t. Universal, The, 3 B. W. C. C. 355, C. A 451 Cannon v. Original Min. & MilL Co., 1 Cal. I. A. C. Dec. 278 264 Canton v. Bender, The BuUetin, N. Y., vol. 1, No. 8, p. 12 332 Cantor v. Rubin Musicant Co., 3 N. Y. St. Dep. Rep. 392 173 Cantwell v. Travelers' Ins. Co., 2 Mass. "Wk. Comp. Cases, 246 519 Can well v. Kelsall Bros. & Beeching, 5 B. W. C. C. 667, C. A.. .. ., 171 V. Kelsall Bros. & Beeching, 6 B. W. C. C. 480, H. L 171 Cardlfe Corp. v. HaU, 4 B. W. C. C. 159, 1 K. B. 1009 599, 606 Cardinale v. Valencano, Bulletin No. 1, lU., p. 114 773, 79a Cardoza v. Pacific Gajs & Electric Co., 1 Cal. I. A. C. Dec. 435 822 v.Pillsbury, 169 Cal. 106, 145 Pac. 1015 .' 834 Carey, In re, Op. Sol. Dept. of L. 139 343 CarindufC V. Gilmore, 7 B. W. C. C. 981, C. A 380, 415 Carini v. Nickel Plate R. Co., 4 N. Y. St. Dep. Rep. 423 380, 448 Carls V. Pekin Cooperage Co., Bulletin No. 1, 111., p. 75 396 Carlson v. Emanuelson, 1 Conn. Comp. Dea 139 522, 532, 57& Carmlcheal v. Hogrefe, 2 CaL I. A. C. Dec. 734 497 Carney, In re. Op. SoL Dept. of L. 173 345 Carpenter v. Detroit Forging Co. (Mich.) 157 N. W. 374 629, 684, 729, 828 Carrigan v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 327. . . . 443 Carroll, In re. Op. Sol. Dept of L. 367 648 V. BJiickerbocker Ice Co., 218 N. Y. 435, 113 N. E. 507, reversing 169 App. Dlv. 450, 155 N. Y. S. 1 512, 776, 777, 836, 841 V. United States Casualty Co., 2 Mass. Wk. Comp. Cases, 488 469 V. What Cheer Stables Co. (R. I.) 96 AU. 208 280, 461, 463, 825 Carstens v. PiUsbury (Cal.) 158 Pac. 218 749, 785, 788, 793, 820 Carswell v. Sharp, 8 B. W. C. C. 552, Ct. of Sess 124, 180 Carter, In re, 221 Mass. 105, 108 N. E. 911, 9 N. C. C. A. 579 238 V. Hume-Bennett Lumber Co., 2 CaL I. A. C. Dec. 42 348, 413 V. Llewellyn Iron Works, 2 Cal. I. A. C. Dec. 971 487 Casanegri v. Madera Sugar Pine Co., 1 Cal. I. A. C. Dec. 589 693, 707 Casey v. Humphries, 6 B. W. C. C. 520, C. A., 4 N. C. 0. A. 881 563 Cason V. Star Laundry, 1 CaL I. A. C. Dec. 485 664 Casparson v. Munn, Bulletin No. 1, IlL, p. 151 390 893 CASES CtTBO Cbilton Page Cass V. Great Lakes Dredge & Dock Co., Bulletin No. 1, 111., p. 99 725 Cassell V. Simon Millinery Co., 2 Cal. I. A. 0. Dec. 1071 ^ . 564 Cassidy, In re, Op. Sol. Dept. of L. 180 345 Casson v. Northwestern Pac. R. Co., 2 Cal. I. A. C. Dec. 729 656 Castellotti v. McDonneU, 1 Cal. I. A. C. Dec. 351 197, 206 Caton V. Summerlee & H. I. & S. Co., 39 Scotch L. B. 762 368 Catterson v. Los Angeles County, 2 Cal. I. A. 0. Dec. 981 658 Catto V. G. Cudemo & Co., 1 Conn. Comp. Dec. 374 655 €avagnero y. American Mills Co., 1 Conn. Comp. Dec. 163 381, 448 Cavanaugh v. Morton Salt Co., 152 Wis. 375, 140 N. W. 53 109 Cavett, In re. Vol. I, No. 7, BuL Ohio Indus. Com. p. 150 228 Cegrelski v. Lehon Co., Bulletin No. 1, 111., p. 35 717 Central R. Co. of New Jersey v. KeUett, 86 N. J. Law, 84, 90 Atl. 1005, 5 N. C. C. A. 529 722 Cernich, In re. Op. Sol. Dept. of L. 539 ,. 649 Cerny v. Wood Street Mill Co., Bulletin No. 1, 111., p. 52 779 Cetefont v. Camden Coke Co., 78 N. J. Law, 662, 75 Atl. 913, 27 L. B. A, (N. S.) 1058 , 61 Chaboya v. Becker, 2 Cal. I. A. C. Dec. 958 865 Challis V. London & S. W. B. Co., 2 K. B. 154 426, 433, 437 V. London & S. W. B. Co., 7 Wl C. C. 23, C. A 284 Chamberlain v. Southern Fish Co., 2 Cal. I. A. C. Dec. 424 317 Chambers, In re. Op. Sol. Dept. of L. 291 371 Chandler v. Great Western B. Co., 5 B. W. C. 0. 254, 0. A 468 Chapin v. Jenkins, 50 Kan. 385, 31 Pac. 1084 763 ChappeUe v. 412 Broadway Co. (N. Y.) 112 N. a 569, reversing (Sup.) 155 N. Y. Supp. 858 , 331 Charles v. Walker, Limited, 2 B. W. 0. C. 5, 0. A ..,.., 474 Charvil v. Manser & Co., 5 B. W. C. C. 385, C. A ,.., , 474 Chase, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 53 352 Cheever, In re, 219 Mass. 244, 106 N. K 861 201 €henoweth v. MitcheU, 2 Cal. I. A. C. Dec. 75 487 Cheski v. Connecticut MUls Co., 1 Conn. Comp. Dec. 213 594 Chicago, K. & W. E, Co. v. Chase County Com'rs, 49 Kan. 399, 30 Pac. 456 763 Chicago, M. & St. P. E. Co. v. Westby, 102 0. 0. A, 65, 178 Fed. 619, 47 L. B. A. (N. S.) 97 80 Chicago Sav. Bank & Trust Co. v. Chicago Eys. Co., Bulletin No. 1, 111., p. 104 330, 685, 790 Chicago & N. W. B. Co. v. Ballroad Commission, 156 Wis. 47, 145 N. W. 216, 974 772, 780, 829 Chiesa v. United States Crushed Stone Co., BuUetin No. 1, lU., p. 82 503 Childs V. American Eip. Co., 197 Mass. 337, 84 N. H. 128 779 Chilton V. Blair & Co., 7 B. W. 0. C. 607, 0. A. ^ .., 457 CMng Sbee CASES CITED 894 Page Ching Shee v. Madera Sugar Pine Co., 2 Cal. I. A. O. Dec. 1014 235, 791 Chippewa B. Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931 821 CMsholm V. Walker & Co., 2 B. W. C. C. 261, Ct. of Sess 212. Cliristensen v. R. W. Bartelmann Co., 278 111. 346, 112 N. E. 686 817 Christiansen v. St. Mary's Hospital, Rep. Wis. Indus. Com. 1914r-15, p. 20 466, 532: Chrlstlanson v. Barber,*Bulletln, No. 1, 111., p. 71 330 Christophson v. Turner Const. Co., 1 Conn. Comp. Dec. 591 714 Chulata v. Ransome-Crummey Const. Co., 2 Cal. I. A. C. Dec. 1026 260 Cianetti v. Fremont Consol. Mining Co., 2 Cal. I. A. C. Dec. 947 67a Cieck V. Standard OU Co., 1 Cal. I. A. C. Dee. 135 50a City of Butte v. Industrial Accident Board (Mont.) 156 Pac. 130 125 City of Cleveland v. Hastings, 2 Cal. I. A. C. Dec. 15 563 City of Goshen v. England, 119 Ind. 368, 21 N. E. 977, 5 D. R. A. 253 513 City of Milwaukee v. Althofe, 156 Wis. 68, 145 N. W. 238, L. R, A. 1916A, 327 35a V. Industrial Commission, 160 Wis. 238, 239. 240, 151 N. W. 247 447, 477, 487, 823, 825, 82e V. Miller, 154 Wis. 652, 144 N. W. 188, I* B. A. 1916A, 1, Ann. Gas. 1915B, 847, 4 N. C. C. A. 149 7, 8, 27, 190, 688, 691, 693, 714, 716, 720, 721 V. Ritzow, 158 Wis. 376, 149 N. W. 480, 7 N. C. C. A. 498 644, 645 City of Superior v. Industrial Commission, 160 Wis. 541, 152 N. W. 151, 9 N. C. C. A. 960 125, 347 City of Winfield v. Bell, 89 Kan. 96, 130 Pac. 680 73 Clapp V. Carter, 7 B. W. C. O. 28, C. A 753 Clark, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 125 353 In re. Op. Sol. Dept. of L. 49 220 In re, Op. Sol. Dept. of L. 120 342 In re. Op. Sol. Dept. of L. 188 275, 277, 291 In re. Op. Atty. Gen., Op. Sol. Dept. of L. 200 , 291 In re. Op. Sol. Dept. of L. 270 300 In re. Op. Sol. Dept. of L. 381 SOS V. Clark (Mich.) 155 N. W. 507 400, 434 V. Fruit Dispatch Co., 2 Cal. I. A. C. Dec. 993 727 V. Gaslight & Coke Co., 7 W. C. C. 119, C. A 606 V. Gaslight & Coke Co., 21 L. T. R. 184 " 601 V. Los Angeles County, 1 Cal. I. A. C. Dec. 623 551, 590 V. Morrison & Bums, 2 Cal. I. A. C. Dec. 90 178 V. Taylor & Co., 7 B. W. C. C. 856, Gt. of Sess. 871, H. L. 504 Clarke, Iii re, Op- Sol. Dept. of D. 133 342 V. Bailieborough Co-Op. Agricultural & Dairy See, 47 Ir. L. T. R. 113, C. A 214 895 CASKS CITED Coleman Page Clarke v. Blgelow-Hartford Carpet Co., 1 Conn. Comp. Dec. 166 655 Clarkson v. Charente S. S. Co., 6 B. W. C. C. 540, C. A > 312 Claudlo V. California Street Cable R. Co., 3 Cal. I. A. C. Dee. 7 236, 246, 260, 261, 271 Clausen, In re (Clausen's Case) 65 Wash. 156, 117 Pac. 1102, 37 L. R. A. (N. S.) 466 65, 68 Clayton v. Hardwick Colliery Co., 7 B. W. C. C. 643, C. A 434 Clayton & Co. v. Hughes, A. C. 242, 26 T. L. R. 359 276 Clem V. Chalmers Motor Car Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 40 384, 412, 550 T. Chalmers Motor Co., 178 Mich. 340, 144 N. W. 848, L. R. A. 1916A, 352, 4 N. C. C. A. 876 389, 444, 550 Clement! v. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 330 612 Clements, In re. Op. Sol. Dept. of L. 228 306 V. Columbus SawmiU Co., Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 161 26, 117, 199, 202, 327 Cleveland v. Foland, 174 Ind. 411, 91 N. B. 594, 92 N. E. 165 79 V. Hastings, 2 Cal. I. A. C. Dec. 15 194, 197, 563 Oleverley v. Gas Light & Coke Co., 1 B. W. C. C. 82, H. L 570 Clifford V. Joy, 2 B. Wl C. C. 32, C. A 420 CUne V. Studebaker Corp. (Mich.) 155 N. W. 519, L. R. A. 1916C, 1139 300, 469, 626 Clover, Clayton & C!o. v. Hughes, 3 B. W. 0. O. 275, 280, H. L 276, 282, 306, 461 V. Hughes (1910) A. C. 242 309 Coakley v. Coakley, 216 Mass. 71, 102 N. E. 930, Ann. Cas. 1915A, 867, 4 N. C. C. A. 508 ,., 267 V. Mason Mfg. Co., 37 R. I. 46, 90 Atl. 1073 104 Coakley's Case, 216 Mass. 71, 102 N. E. 930, Ann. Cas. 1915A, 867, 4 N. C. C. A. 508 25 Coal Co. V. Illinois, 185 U. S. 203, 22 Sup. Ct. 616, 46 L. Ed. 872 82 Cochran v. Fenton, 1 Conn. Comp. Dee. 690 541 V. Whiting Wrecking Co., 1 Cal. I. A. C. Dec. 186. 694 Cody V. Beach, 1 Conn. Comp. Dec. 447 486 Coe V. Fife Coal Co., 2 B. W. C. C. 8, Ct. of Sess 279, 542 Coelho V. Bideout Co., 2 Cal. I. A. C. Dec. 773 548, 551, 556 Coffey V. Borden's Condensed Milk Co., 1 Conn. Comp. Dec. 167 203, 493 Cohen v. Union News Co., 1 Conn. Comp. Dec. 62 37, 448 Cohnhoff V. Thomas & Schneider Art Glass Co., 2 Cal. I. A. C. Dec. 564. . 602 Cokolon V. 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Rep. 109 483 Condron v. Gavin Paul & Sons, 6 F. 29, Ct. of Sess 546, 553 ConneU & Co. v. Barr, 116 U T. 127, Ot. of Sess 511 Conner v. Acme Cement & Plaster Co., 1 Cal. I. A. C. Dec. 143 692, 717, 788 V. Drake (Conner's Case) 1 Ohio St. 166 72 Conners v. PubUc Service Electric Co. (N. J.) 97 Atl. 792 226, 256, 257, 595, 650, 686, 842 V. Sugar Pine R. Co., 2 Cal. I. A. C. Dec. 879 54, 563 Connole v. Norfolk & W. R. Co. (D. C.) 216 Fed. 823 50 Connolly v. California Salt Co., 2 Cal. I. A. C. Dec. 115 692 V. Connolly, 2 Cal. I. A. C. Dec. 790 216 Connor, In re, Op. Sol. Dept of L. 330 355 Connors v. Gross, 144 N. Y. Supp. 18 751 V. Semet-Solvay Co., 159 N. Y. Supp. 431 739 Consolidated Arizona Smelting Co. v. Ujack, 15 Ariz. 382, 139 Pac. 465, 5 N. C. C. A. 742 24, 91, 102, 739, 741 Consumers' Lignite Co. v. Grant (Tex. Civ. App.) 181 S. W. 202 65, 66, 67, 73, 74, 84, 109 Contractors' Mut. Liability Ins. Co., In re, 217 Mass. 511, 105 N. E. 376. . . 634 In re (Mass.) 113 N. 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W. 582 70 Coronado Beach Co. v. Pillsbury (Cal.) 158 Pac. 212, 218 324, 408, 409, 442 Corral v. William H. Hamlyn & Son (R. I.) 94 Atl. 877 464, 513, 778, 839 Cory Bros. & Co. v. Hughes, 4 B. W. C. C. 291 ' 602 Cory & Son v. France, Fenwick & Co., 1 K. B. 114, C. A 155 Costa V. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 457 531, 750 Costello, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com., p. 54 586 V. Kelsall Bros. & Beechlng, 5 B. W. C. C. 667, C. A 171 V. Kelsall Bros. & Beeching, 6 B. W. C. C. 480, H. L 171 V. Taylor, 217 N. Y. 179, 111 N. E. 755, affirming 169 App. Dlv. 905, 153 N. Y. Supp. 1111, 11 N. C. C. A. 320 331, 337 Cotter V. Johnson, 5 B. W. C. C. 568, C. A 191 Cottun V. I. Newman & Sons, 1 Conn. Comp. Dec. 289 619 Ooughlin V. R. Wallace & Sons, 1 Conn. Comp. Dec. 652 718 Coulson V. South Moor ColUery Co., 8 B. W. C. C. 253, C. A 751 Coulthard v. Consett Iron Co., 8 W. C. C. 87, C. A 246 Courier v. Simpson Const. Co., 264 111. 488, 106 N. E. 350 826 Covert V. Goldstone, 1 Cal. I. A. O. Dec. 618 498 Cowan, In re, Op. Sol. Dept. of L. 184 345 V. Simpson, 3 B. W. C. 0. 4, C. A 609 CoweU V. Mason, 1 Cal. I. A. C. Dec. 614 464 Cowen V. Cowen New Shirt Laundry, The Bulletin, N. Y., Vol. 1, No. 8, p. 11 436 Cowles V. Alexander & Kellogg, 2 Cal. I. A. O. Dec. 615 197, 204, 206 V. Wilkenda Land Co., 1 Conn. Comp. Dec. 361 627 Coyle V. Massachusetts Employes Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 704 202, 591 Coylton Coal Co. v. Davidson, 7 F. 727, Ct. of Sess 129 Craft V. State, 3 Kan. 451 735 Craig, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 38 352 V. Axt, 1 Cal. L A. C. Dec. 72 587, 588, 590 V. Calabria, The, 7 B. W. O. C. 932, Ct. of Sess 388, 449 T. Hartson, 2 Cal. L A. C. Dee. 235 192 Crandall, In re, Op. Sol. Dept of L. 77 188 Cranfield v. Ansell, 4 B. W. O. C. 57, C. A 674 Craske v. Wigan, 2 B. W. 0. C. 35, C. A 420 V. Wigan, 2 K. B. 635 426 Crawford, In re. Op. Sol. Dept. of L. 56 220 Craycroft v. Craycroft-Herrold Brick Co., 2 Cal. I. A. O. Dec. 654 173, 439 HoN.CoMP. — 57 Creamer CASES CITED 898 Page Creamer, In re, Op. Sol. Dept. of I>. 109 186 Crehan v. Los Angeles, 1 Cal. I. A. C. Dec. 252 185 Cremins v. Gest, Keen & Nettlefold, 1 B. W. C. C. 160, C. A 377 V. Gest, Keen & Nettlefold, 1KB. 469 376 Cripp, In re (Cripp's Case) 216 Mass. 586, 104 N. E. 565, Ann. Cas. 1915B, 828 639, 682, 724, 739, 740, 836 Cripps V. JEtna Llfe^ns. Co., 2 Mass. Wk. Comp. Cases, 68, affirmed 216 Mass. 586, Ann. Cas. 1915B, 828, 104 N. B. 565 299, 411 Cristoforo v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 364 543 Crittenden v. Eobbins, 1 Conn. Comp. Dec. 523 211 Croad v. Paraffine Paint Co., 1 Cal. I. A. C. Dec. 179 40 Crockett v. State Ins. Fund, 170 App. Div. 122, 155 N. Y. Supp. 692 819 Crofut V. Bredow & Bohm, 1 Conn. Comp. Dec. 524 531 Cromowy v. Sulzberger & Sons Co., Bulletin No. 1, 111., p. 37 348, 416 Cronin v. Silver, 4 B. W. C. C. 221, C. A 404 Crooks V. TazeweU Coal Co., 263 111. 343, 105 N. E. 132, Ann. Caa. 1915C, 304, 5 N. C. C. A. 410 64, 101, 107, 731 Crosby v. Strong, 2 Cal. I. A. C. Dec. 408 207, 216 Crouch V. Bitter, 2 Cal. I. A. C. Dec. 702 488 Crow V. Los Angeles Ky. Corp., 1 Cal. I. A. C. Dec. 449 376 Crowley v. Lowell, 223 Mass. 288, 111 N. E. 786 189, 461 Crucible Steel Forge Co. v. Moir, 135 C. C. A. 49, 219 Fed. 151, 8 N. C. C. A. 1006 109 Cruz V. California Portland Cement Co., 2 Cal. I. A. C. Dec. 155 563 Csuprinski v. Mechanical Mfg. Co., Bui. No. 1, 111., p. 105 627 Cue V. Port of London Authority, 7 B. W. C. C. 447, C. A 586, 592 Cuebas v. Atchison, T. & S. F. E. Co., 3 Cal. I. A. C. Dec. 17 53 Cunka v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 491. . 616 Cunningham, In re. Op. Sol. Dept. of L. 81 18S V. Buffalo C. & B. Rolling Mills (Sup.) 155 N. Y. Supp. 797. .631, S21, 823 V. McGregor, 3 F. 775, Ct. of Sess 245 V. McNaughton & Sinclair, 3 B. W. C. C. 577, Ct. of Sess 674 V. Northwestern Imp. Co., 44 Mont. 180, 119 Pac. 554 71, 74, 82, 85, 98 Cunningham's Case, 44 Mont. 180, 119 Pac. 554 62 Curless v. Peninsula Warehouse, 1 CaL I. A. C. Dec. 354 557 Currie v. Royal Indemnity Co., 2 Mass. Wk. Comp. Cases, 174 490 Curry v. Dosford & Sons, 8 B. W. C. C. 19, C. A 609 V. Hull, 2 Cal. I. A. C. Dec. 994 727 Curtis V. Plumbtre, 6 B. W. C. C. 87, C. A 212 V. Talbot & Kidderminster Infirmary Committee, 5 B. W. C. C. 41, C. A 401 Cushner v. H. C. Eowe & Co., 1 Conn. Comp. Dee. 574 655, 789 Cutaria v. Swleberg, Bulletin No. 1, 111., 153 748, 773 899 CASES CITED Dearborn Page Cutty V. Carson, 125 Md. 25, 93 Atl. 302, 305 28 Cypher y. United Development Co., 1 Cal. I. A. C. Dec. 425 133, 705 D Dabila v. Brandon & Lawson, 1 Cal. I. A. C. Dec. 239 622 DafE V. Midland Colliery Owners' Mut. Indemnity Co., 5 B. W. C. C. 67, C. A 146 V. Midland Colliery Owners' Mut. Indemnity Co., 6 B. W. 0. C. 799, H. L 146 Dahl V. Jensen, 2 Cal. I. A. C. Dec. 749 718 Daigle v. Steele & Johnson Mfg. Co., 1 Conn. Comp. Dec. 196 727 DaiUy v. Watson, 2 F. 1044, Ct. of Sess 560 Daily News v. McNamara & Co., 7 B. W. C. C. 11, K. B. D 156 Dale V. Saunders Bros. (In re Workmen's Compensation Commission) 218 N. Y. 59, 112 N. E. 571, affirming 171 App. Div. 528, 157 N. Y. S. 1062. . . 175, 330, 336, 394, 826 Dalgiesh v. Gartside & Co., 7 B. W. C. C. 585, O. A 757 Dalton V. Connecticut Co., 1 Conn. Comp. Dec. 142 551 V. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 231 347, 414 Da Duz V. Kideout, 2 Cal. I. A. C. Dec. 359 226, 227 Daly V. Mahoney Bros., 1 Cal. I. A. O. Dec. 625 807 V. Mahoney Bros., 2 Cal. I. A. 0. Dec. 34 809 Damerow v. Paine Lumber Co., Rep. Wis. Indus. Com. 1914-15, p. 34 308 Damps V. Michigan Cent. B. Co., Mich. Wk. Comp. Cases (1916) 25 748, 764 Damrau v. Kuetemeyer, Rep. Wis. Indus. Com. 1914-15, p. 19 645 Dana v. De Turk, 2 Cal. I. A. C. Dec. 954 198 Daniels v. Charles Boldt Co. (W. Va.) 88 S. E. 613 101 Darlington V. Boscoe & Sons, 9 W. C. C. 1, C. A 254 David V. Windsor Steam Coal Co., 4 B. W. C. C. 177, C. A 607 Davidheiser v. Hay Foundry & Iron Works, 87 N. J. Law, 688, 94 Atl. 309, affirming 94 Atl. 1103 39, 41, 593 Davies v. Crown Perfumery Co., 6 B. W. C. O. 649, C. A 404 V. Gillespie, 5 B. W. C. C. 64, C. A 432 V. Point of Ayr OolUeries, 2 B. W. C. C. 157, C. A 760 V. Rhymney Iron Co., 2 W. C. C. 22, C. A 378 V. Rhymney Iron Co., 16 Times Law Rep. 329 376 Davis, In re. Op. Sol. Dept. of L. 516 651 Davis, In re. Op. Sol. Dept. of L. 740 317 Day V. Lincoln Sightseeing Co., 1 Cal. I. A. O. Dec. 269 710 Dazy V. Apponaug Co., 36 R. I. 81, 89 Atl. 160, 4 N. C. C. A. 594 224, 225 Dean v. London & N. W. R.Co., 3 B. W. C. O. 351, C. A 492 Dearborn v. Peugeot Auto Import Co., 170 App. Div. 93, 155 N. Y. Supp. 769 738, 820 Deavers CASES CITED 900 Page Deavers, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 62 402 De Bias! v. Normandy Water Co. (D. C.) 228 Fed. 235 731, 732, 733 De Constantin v. Public Service Commission, 75 W. Va. 32, 83 S. E. 88, li. R. A. 1916A, 329 " 828 Decormier v. Western Indemnity Co., 2 Cal. I. A. C. Dec. 764 491 Decounter v. United Green water Copper Co., 2 Cal. I. A. C. Dec. 700 658 Deem r. Kalamazoo Paper Co. (Mich.) 155 N. W. 584 825 Deeny v. Wright & Cobfe Lighterage Co., 36 N. J. Law J. 121 36 De Fazio v. Goldschmidt Detinnlng Co. (N. J. Sup.) 88 Atl. 705, 4 N. O. C. A. 716 312, 325 De FiUipis v. Falkenberg, 170 App. Div. 153, 155 N. Y. Supp. 761 284, 321, 383, 444 De Francesco v. Piney Mining Co. (W. Va.) 86 S. HI 777, 10 N. C. O. A. 1015 85, 111 Deibeikis v. Link-Belt Co., 261 111. 454, 104 N. B. 211, 215, Ann. Cas. 1915 A, 241, 5 N. C. C. A. 401 64, 69, 81, 82, 85, 92, 95, 96, 99, 100, 111 De La Gardelle v. Hampton Co., 167 App. Div. 617, 153 N. X. Supp. 162, 9 N. C. C. A. 703 329 V. Hampton Co., 169 App. Div. 905, 153 N. X. Supp. 1112 336 Delaware, L. & W. K. Co. v. Hardy, 59 N. J. Law, 35, 34 Atl. 986 839 Delgado v. California Portland Cement Co., 1 Cal. I. A. O. Dec. 436. .247, 248, 262, 269 DeLong v. Krebs, 1 Cal. I. A. C. Dec. 592 399, 410, 412, 806, 811 V. Krebs, 2 Cal. I. A. C. Dec. 256 794 V. Krebs, 2 Cal. I. A. C. Dec. 376 402 DeMott V. Stone & Webster Const Co., 1 Cal. I. A. O. Dee. 187 689, 713 Denehy v. Panama-Pacific International Exposition Co., 1 Cal. I. A. O. Dec. 109 677, 700, 706 Denker v. Pacific Stevedoring & Ballasting Co., 1 CaL I. A. C. Dec. 14 778 Dennehy v. Flinn & Tracy, 1 Cal. I. A. C. Dec. 302 272, 641 Denver-Laraine Realty Co. v. Wyoming Trout & Produce Co., 219 Fed. 155,135 0. O. A. 53 110 DePaUna v. Home Const. Co., 1 Conn. Comp. Dec. Co. 358 124 De Pasquale v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 497 , 237 v. Mason Mfg. Co. (R. I.) 97 Atl. 816 105, 106 Derbeck v. Pfister & Vogel Leather Co., Bui. Wis. Indus. Com. Vol. 1, p. 92 , 7Td Derkinderen v. Bundle Mfg. Co., Kep. Wis. Indus. Com. 1914r-15, p. 16. . . 280 De Kosa v. Fred T. Ley & Co., 1 Conn. Comp. De& 75 531 Detroit Steel Products Co. v. Jendrus, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 21 533 Detwiler v. Kettering, 2 CaL I. A. 0. Dec. 810 219 901 CASES CITED Dodge Page Devaney v. American Mut. Liability Ins. Co., 2 Mass. Wk. Oomp. Cases, 233 235 Devanzo v. Jarvis, 1 Conn. Comp. Dec. 435 439 Devine, In re. Op. Sol. Dept. of li. 277 306 V. Brunswick Balke Co., 270 111. 504, 110 N. E. 780 774 V. Caledonian R. Co., 1 F. 1105 407 V. Delano, 272 111. 166, 111 N. E. 742 64 De Vito V. Atlantic Insulated Wire & Cable Co., 1 Conn. Comp. Dec. 407. . 631 DevUn v. Pelaw Main Collieries, 5 B. W. C. C. 349, C. A 247 V. Smith, 1 Cal. I. A. C. Dec. 418 702, 717 Devney v. Boston, 223 Mass. 270, 111 N. E. 788 183 De Voe v. New York State Rys., 218 N. Y. 318, 113 N. E. 256, affirming 169 App. Div. 472, 155 N. Y. Supp. 12 26, 333, 423 Devons V. Anderson & Sons (1911) S. C. 181, C. A 762 Dewhurst v. Mather, 1 B. W. C. O. 328, C. A 200, 585 DeWitt V. Jacoby Bros., 1 Cal. I. A. C. Dec. 170 285, 299, 540 Dexter v. People's Cloak & Suit Co., 2 Cal. I. A. C. Dec. 567 721 De Zeng Standard Co. v. Pressey, 86 N. J. Law, 469, 92 Atl. 278 597, 665 Diaz, In re, 217 Mass. 36, 104 N. E. 384, 5 N. C. C. A. 609 822 V. Contractors' Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 150, affirmed 217 Mass. 36, 104 N. E. 384 604 Dibilio V. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 485 617 Dick V. Knoperbaum, 157 N. Y. Supp. 754 742 Dickinson v. Barmak, Limited (1908) L. T. Jo. 403, O. A 367 Dickson v. Scott, Limited, 7 B. W. C. C. 1007, C. A 154 Dleselman, In re, Op. Sol. Dept. of L. 401 572 Dletz V. Big Muddy Coal & Iron Co., 263 111. 480, 105 N. E. 289, 5 N. C. C. A. 419 64, 100, 101, 102, 111 Dight V. Craster Hall, The, 6 B. W. C. C. 674, C. A 753 Diminico v. Fidelity & Casualty Co. of New York, 2 Mass. Wk. Comp. Cases, 328 781 Dirken v. Great Northern Paper Co. (Dirken's Case), 110 Me. 374, 86 Atl. 320, Ann. Cas. 1914D, 396 81, 82 Diskon v. Bubb, 88 N. J. Law, 513, 96 Atl. 660 647, 815, 843 Dissosway v. Jallade, The Btdletin, N. Y., vol. 1, No. 6, p. 13 43, 119 Dittmarv. Wilson, Sons & Co., 2 B. W. C. C. 178, C. A 128 Dittmat V. V 393, The, 2 B. W. C. C. 178, O. A 128 Dixon V. Ambient, The, 5 B. W. C. C. 428, C. A 473 Dobbies v. Egypt & Levant S. S. Co., 2 B. W. C. O. 348, Ct. of Sess 257 Dobby V. Wilson, Pease & Co., 2 B. W. C. C. 370, C. A 604 Dobson V. United Collieries, 8 F. 241, 246, Ct. of Sess 559, 564 Dodge V. Boston & Providence R. R., 154 Mass. 299, 28 N. E. 243, 13 L. R. A. 318 235 Doggett CASES CITED 902 V Page Doggett V. Waterloo Taxlcab Co., 3 B. W. C. C. 371, C. A. 179 Doherty, In re, 222 Mass. 98, 109 N. E. 887 464, 475, 805, 820, 822 Dolan V. Judson, 1 Conn. Comp. Dec. 362 137 V. Massachusetts Employes Ins. Ass'n., 2 Mass. Wk. Comp. Cases, 259 544 Dolbeer & Carson Lumber Co. v. Watson, 1 Cal. I. A. C. Dec. 654 228 Dominick v. Brainerd, Shaler & Hall Quarry Co., 1 Conn. Comp. Dec. 655 610 Donahue v. K. A. 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C. C. 15, C. A. 392, 561, 563 Dowd V. Bennie & Son, 40 S. L. R. 239 523 V. Bennie & Son, 5 F. 268, Ct. of Sess 530 Dowling V. New York Cent. & H. R. B. Co., The Bulletin, N. X. vol. 1, No. 10, p. 17 369, 567 Downer v. Lasky Feature Play Co., 2 Cal. I. A. C. Dec. 316 548, 554 Doyle V. Cork Steam Packet Co., 5 B. W. C. C. 350, C. A 663 Dragovich v. Iroquois Iron Co., 269 111. 478, 109 N. E. 999, 10 N. C. C. A. 475 24, 64, 406, 416, 464 Drapeau v. Stoddard, 1 Conn. Comp. Dec. 590 633 Draper v. Lore & Co., 1 Cal. I. A. C. Dec. 132 484 Dray, In re. Op. Sol. Dept. of L. 540 651 DriscoU V. Cushman's Exp. Co., Mass. Wk. Comp. Cases (July 1, 1912- June 20, 1913) pp. 125, 130 461 Drolshagen v. Milwaukee Pattern & Mfg. Co., Wis. Indus. Com. 1914r-15, p. 25 314 Dube V. Clayton Bros., 1 Conn. Comp. Dec. 441 311, 756 Duberly v. Mace, 6 B. W. C. C. 82, C. A 576, 577 Ducy V. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Gases, 513. . 684, 698 903 CASES CITDD Ebe Page Duden v. City & County of San Francisco, 2 Cal. I. A. C. Dec. 1067 348 Duer, In re, Op. Sol. Dept. of L. 507 573 DufCy, In re, Op. Sol. Dept. of L. 594 250 Dufrene v. Rlsdon Tool & Machine Co., 1 Conn. Comp. Dec. 411 295 Duke V. E. Horton & Son, 1 Conn. Comp. Dec. 673 454 Dundee Steam Trawling Co. v. Robb, 48 S. L. E. 13 479 Dunham v. Clare, 2 K. B. 292, C. A 494, 505, 508 V. Phelan & Sullivan, The Bulletin, N. Y., vol. 1, No. 9, p. 30 720 Dunnigan v. Oavan & Lind, 4 B. W. C. C. 386, Ct. of Sess 530 V. Cavan&Lind (1911) S. C. 579, Ct. of Sess 507 Duprels v. Holt Lumber Co., Rep. Wis. Indus. Com. 1914^15, p. 32 496 Duprey v. Maryland Casualty Co., 219 Mass. 189, 106 N. E. 686 599, 608, 617, 802, 837 Durham v. Brown Bros. Co., 1 F. 278, Ct. of Sess 388, 389 Durney, In re, 222 Mass. 461, 111 N. E. 166 584 Durrant v. Smith & Co., 7 B. W. C. C. 415, O. A 467 Dutton V. Priest (Dutton's Case) 67 Fla. 370, 65 South. 282 62, 80 Dyer v. James Black Masonry & Contracting Co., Mich. Wk. Comp. Oases (1916) 52, 158 N. W. 959 201, 215 Dyke v. Conlon, 2 Cal. I. A. 0. Dec. 814 740 E Eagle Chemical Co. v. Nowak, 161 Wis. 446, 154 N. W. 636 823 Earnshaw v. Lancashire & Y. R. Co., 115 L. T. Jour. 89, 5 B. W. 0. C. 28. . 384 Eastman v. State Compensation Insurance Fund, 2 Cal. I. A. C. Dec. 390. . 184, 423 Eaton, In re, Op. Sol. Dept. of L. 183 345 V.Evans, 5 B. W. C. C. 82, C. A 756 Eaves v. Blaenclydach Colliery Co., 2 B. W. C. C. 329, C. A 293, 294, 603 Ebner, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com., p. 47 509 Eby V. Weaver, 2 Cal. I. A. O. Dec. 715 706 Eccles V. Scovill Mfg. Co., 1 Conn. Comp. Dec. 241 531 Edgley v. Firth, 1 Cal. I. A. C. Dec. 651 346, 386 Edmonds, In re. Op. Sol. Dept. of L. 259 299 Edmunds v. Peterston, The, 5 b. W. C. C. 157, C. A. 392 Edwards v. International Coal Co., 5 W. C. C. 21 400 V. Wingham Agricultural Implements Co., 6 B. W. O. C. 511, C. A 378 Edwardson v. Jarvis Lighterage Co., 168 App. Div. 368, 153 N. Y. Supp. 391 34, 357, 475 Egerton v. Moore, 5 B. W. 0. C. 284, C. A 758 Ehrhart v. Industrial Ace. Commission of California (Cal.) 158 Pac. 193. . 768 Eide V. Horn, Bulletin No. 1, 111., p. 44 693 Eke V. Hart-Dyke, 3 B. W. C. C. 482, C. A 541, 751 Eldorado CASES CITBD 904 Page Eldorado Coal & Mining Ck). v. Mariottl, 131 C. 0. A. 359, 215 F. 51, 7 N. O. O. A. 966 92, 734 Eldredge v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Oases, 689 628 Eldridge v. Endicott-Jolinson & Co., The Bulletin, N. Y., vol. 1, No. 8, p. 8 493 EUett, In re. Op. Sol. Dept. of L. 112 187 Elliott V. Eex, 6 W. C. C. 2T 427 ElUsv. ElUs & Co., 7 W. C. C. 97, O. A 180 V. Fairfield Shipbuilding & Engineering Co., 6 B. W. C. C. 308, Ct. of Sess. 752 V. U. S., 206 V. S. 246, 27 Sup. Ct. 600, 51 U Ed. 1047, 11 Ann. Cas. 589 183 Ellmore, In re. Op. Sol. Dept. of I* 245 299 Ely V. Maryland Casualty Co., 1 Cal. I. A. C. Dec. 335 .651, 706, 799 T. M. S. Brooks & Sons, 1 Conn. Comp. Dec. 390 435, 443 Emerson v. Massachusetts Employ6s' Ins. Ass'n, 2 Mass. Wk. Comp. Cas^, 181 '. 222 Emmert v. Trustees of Preston School of Industry, 1 Cal. I. A. C. Dec. 17. . 283 Employers' Assur. Corp. v. California Industrial Ace. Commission, 2 Cal. I. A. C. Dec. 452, 453, 170 Cal. 800, 151 Pac. 423, 424 314, 775, 826, 828 Employers' Liability Assur. Corp., In re, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306, 4 N. C. C. A. 522 29, 267, 321, 322, 324, 326, 426, 432 Bncinas, In re. Op. Sol. Dept of L. 601 249 Bnglebretson v. Indus. Ace. Com., 2 Cal. I. A. O. Dee. 449 314, 775 V. Indus. Ace. Com., 170 Cal. 793, 151 Pac. 421, 10 N. C. C. A. 545. . . . 310, 772, 774, 776, 826, 834 English T. Cain, 2 Cal. L A. C. Dec. 399 142, 204, 206, 207, 570, 809 Ennis v. Hanna D. Co., 148 "Wis. 655, 134 N. W. 1051 825 Erickson, In re, Op. Sol. Dept. of L. (191^ 774 811 V. Empire Laundry Co., 1 Cal. I. A. C. Dec. 612. . i 419 v. Massachusetts Employes' Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 149 (decision of Com. of Arb.) 543, 544 V. Peppard & Burrill, Rep. Wis. Indus. Com. 1914^15, p. 27 214 Erie R. Co. v. WUliams, 233 U. S. 685, 34 Sup. Ct. 761, 58 L. Ed. 1155, 51 L. E. A. (N. S.) 1097 v 45 Espy V. Grossman, 2 Cal. I. A. C. Dec. 328 381, 383, 412 Bstell V. Los Angeles Ice & Cold Storage Co., 1 Cal. I. A. C. Dec. 501. . .8(39, 810 Estorga, In re. Op. Sol. Dept. of L. 566 250 Etherington & Lancashire & Yorkshire Ace. Ins. Co., In re, 1 K. B. 591, O. A 492 Etienne, In re. Op. Sol. Dept. of L. 163 345 Euman v. Dalziel & Co., 6 B. W. C. C. 900, Ct of Sess 482 EvanhofC v. State Industrial Ace. Commission, 78 Or. 503, 154 Pac. 106 24, 63, 66, 67, 70, 73, 94, 97 905 CASBS CITED Feehan Pago Evans, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com., p. 55 251 V. Cory Bros. & Co., 5 B. W. C. C. 272, 0. A 601 v. Dood, 5 B. W. C. C. 305, C. A. 542 V. Holloway, 7 B. W. C. C. 248, C. A 385 V. Pacific Coast Casualty Co., 1 Cal. I. A. C. Dec. 140 707 V. PenwyUt Dinas SlUca Brick Co., 4 W. C. C. 101 214 Evenson, In re. Op. Sol. Dept. of L. 187 345 Everitt v. Eastaff & Co., 6 B. W. C. C. 184, C. A 401 Eydmann t. Premier Accumulator Co., 8 B. W. C. C. 121, O. A 757 Bzykowski v. F, B. Dashiel Co., 1 Conn. Comp. Dec. 236 692 F FabMan v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 305. . . . ,240, 655, 790 Fahey, In re. Op. Sol. Dept. of L. 283 ■ 365 Fair, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 83 299 Fairchlld v. Pennsylvania R. Co., 170 App. Div. 135, 155 N. T. Supp. 751 46, 825 Falconer v. London & Glasgow Engineering & Iron Shipbuilding Co., 3 F. 564, Ct of Sess ■. 419, 443 Fannah v. Midland Great Western Ry., 4 B. W. C. C. 440, C. A 470 Farinholt v. Luckhard, 90 Va. 936, 21 S. E. 817, 44 Am. St. Rep. 953 186 Farley v. Koch, 2 Cal. I. A. C. Dec. 986 219 Farmer v. Barber, 3 CaL I. A. C. Dec. 21 844 V. Stafford, Allen & Sons, 4 B. W. O. C. 223, C. A 311 Farrell v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 423 347, 411 Farris v. Potomac Oil Co., 2 Cal. I. A. C. Dec. 487 133 Farrish v. Nugent, 1 Cal. I. A. C. Dec. 98 486 Fasulo V. Andrew B. Hendryx Co., 1 Conn. Comp. Dec. 29 610 Favero v. Board of Public library Trustees, 1 Cal. I. A. C. Dec. 225 519 Favro v. Superior Coal Co., 188 lU. App. 203 105, 111 Feder v. Iowa State Traveling Men's Ass'n, 107 Iowa, 538, 78 N. W. 252, 43 L. B. A. 693, 70 Am. St. Rep. 212 283 Federal Act, Op. Sol. Dept. of L. p. 779 341 p. 781 782 p. 783 250 p. 784 248 p. 785 730 p. 786 647 p. 794 , 648 p. 795 648 Federal Rubber Mfg. Co. v. HavoUc, 162 Wis. 341, 156 N. W. 143 25, 285, 325, 409, 417, 418, 443 Feehan v. Tevis, 2 Cal. I. A. C. Dec. 434 194, 195,206 Felnmaa CASES CITED 906 Page Feinman v. Albert Mfg. Co., 170 App. Div. 147, 155 N. T. Supp. 909 631 Felsen v. Atchison, T. & S. F. B. Co., 3 Cal. I. A. C. Dee. 11 59S Feltis, In re, Op. Sol. Dept. of L. 123 342 Fenn v. Miller, 2 W. C. C. 55, C. A 129 Fennah v. Midland Great Western Ey., 4 B. W. C. C. 440, C. A 416, 461 Fensler v. Associated Supply Co., 1 Cal. I. A. C. Dec. 447 425 Fenton, In re. Op. Sol. Dept. of L. 127 342 V. J. Thorley & Co. 4;i903) A. C. 443, 19 L. T. R. 684 279, 288 V. Thorley & Co., 5 W. C. C. 1, 6, 9, H. L 276, 278, 288, 295, 315 Fenz, In re, Op. Sol. Dept. of I* 116 187 Ferguerson v. Royal Indemnity Co., 1 Cal. I. A. C. Dec. 11 366, 411 J'ergus V. Russel, 270 lU. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120 64 Ferguson v. Barclay Sons & Co., 5 F. 105, Ct. of Sess 129 Fernandez, In re, Op. Sol. Dept. of L. 187 344, 345 Ferranti v. Kennedy, 1 Conn. Comp. Dec. 196 180 Fidelity & Deposit Co. of Maryland v. Industrial Ace. Commission, 2 CaL I. A. C. Dec. 973, 171 Cal. 728, 154 Pac. 834 514, 551, 560, 826 Field V. New York, N. H. & H. B. R. Co., 1 Conn. Comp. Dec. 199 580 Fierro's Case, In re, 223 Mass. 378, 111 N. B. 957 .' 259, 263, 270, 766, 772, 805, 822 Fife Coal Co. t. Wallace, 2 B. W. C. C. 264, Ct. of Sess 270 Filer & S. Co., In re, 146 Wis. 629, 132 N. W. 584 57 Filler, In re, Op. Sol. Dept. of L. (1915) 663 770 Filliger v. Allen, 1 Conn. Comp. Dec 35 247, 566 FIndley v. Judah Co., 2 Cal. I. A. C. Dec. 760 374 Fineblum v. Singer Sewing Mach. Co., 1 Conn. Comp. Dee. 126 168 Finlay v. TuUamore Guardians, 7 B. W. C. C. 973, C. A 124, 541 Finley v. San Francisco Stevedoring Co., 2 Cal. I. A. C. Dec. 174 293, 681 Finn v. Detroit, Mt. Clemens & Marine City Ry., Mich. Wk. Comp. Cases (1916) 222 262 Flocca T. Dillon, The BuUetin, N. X., vol. 1, No. 6, p. 13 352 FloMo V. Ferrie, 1 Conn. Comp. Dec. 459 123, 728, 803 First Annual Reports Industrial Accident Commission wiU be found in this table under "Oregon." First Nat. Bank v. Industrial Commission, 161 Wis. 526, 154 N. W. 847. . . 772, 780, 823,829 Fischer v. Union Ice Co., 2 Cal. I. A. C. Dec. 72 303, 621 Fisco V. Hazel Gold Mining Co., 1 Cal. I. A. G. Dec. 30 555 Fise V. Andrew B. Hendryx Co., 1 Conn. Comp. Dec. 29 610 Fisher, In re, 220 Mass. 581, 108 N. E. 361 290, 830 V. Dnnshee, 2 Cal. I. A. C. Dec. 849 218 Fishering v. Daly Bros., 2 Cal. I. A. C. Dec. 940 435 T. Pillsbury (CaL) 158 Pac. 215 442 Pitt V. Central Illinois Public Service Co., Bulletin No. 1, 111., p. 129. . .100, 725 "^07 CASES CITED Forte Page Fitzgerald v. CTarke & Son, IB. W. C. 0. 197, C. A 443 V. Lozler Motor Co., 187 Mich. 660, 154 N. W. 67 466, 467, 773, 829 V. Manchester Liners (1910) A. C. 498, 500 347 V. W. G. Clarke & Son, 2 K. B. 796, 77 L. J. K. B. 1018. . .322, 323, 324, 408 Fitzpatrick, In re, Op. Sol. Dept. of L 306 T. Hlndley Field Colliery Co., 4 W. C. C. 7, O. A 374 Flaherty v. Locomobile Co. of America, 1 Conn. Comp. Dec. 354 486 Flanagan v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 441 698 Flannery v. O'Brien, 1 Conn. Comp. Dec. 264 797 -Flash V. Pattridge Metal Equipment Co., Bulletin No. 1, 111. p. 46 106 Fleet V. Johnson & Sons, 6 B. W. C. C. 60, C. A 468 V. Johnson & Sons, 6 B, W. C. C. 633 504 Fleming v. Massachusetts Employes Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 411 306 Flemmings, In re, Op. Sol. Dept. of L. 225 353 rietcher, In re, Op. Sol. Dept. of L. 744 358 V. Duchess, The (1911) A. C. 671 469, 474, 779 V. Duchess, The, 3 B. W. C. C. 239, C. A 449 V. Duchess, The, 4 B. W. C. C. 317, H. L. 449 Flint V. Coronado Beach Co., 2 Cal. I. A. C. Dec. 395 353, 435 Floccher v. Fidelity & Deposit Co. of Maryland, 221 Mass. 54, 108 N. E. 1032 526, 625, 630 Flora, In re, Op. Sol. Dept. of L. 226 291 Plotat V. Union Hardware Co., 1 Conn. Comp. Dec. 5 305, 727 Fly V. San Diego Transfer Co., 2 Cal. I. A. C. Dec. 714 702, 717 Flynn v. Burgess (1914) W. C. & Ins. Rep. 238, C. A 663 J'obes V. KlUeen, Bulletin No. 1, 111., p. 68 316 J'ogarty v. National Biscuit Co., The Bulletin, N. T., vol. 1, No. 6, p. 9. .312, 333 Fogg, In re. Op. Sol. Dept. of L. 509 651 TFoley v. A. T. Demarest & Co., 1 Conn. Comp. Dec. 661 701, 779 V. Detroit United By. (Mich.) 157 N. W. 45 581, 805 Fonseca v. Cunard S. S. Co., 153 Mass. 553, 555, 27 N. E. 665, 12 L. R. A. 340, 25 Am. St. Rep. 660 159 Fontes v. Scott's Exp. Co., 2 Cal. I. A. C. Dec. 829 725, 726 Forbes v. Brown, 1 Conn. Comp. Dec. 202 563 V. Humboldt County, 2 Cal. I. A. C. Dec. 887 132, 720 Ford V. Gaiety Theatre Co., 7 B. W. C. C. 197, C. A 757 Forde, In re, Op. Sol. Dept. of L. 309 365 Foreman Bros. Banking Co. v. George Lanz & Co., Bulletin No. 1, 111., p. 81 396 Forgues v. Southern Pac. Co., 2 Cal. I. A. O. Dec. 1038 701 Forrest v. Roper Furniture Co., 267 lU. 331, 108 N. E. 328 735 V. Roper Furniture Co., 187 111. App. 504 304 Forte V. Waterbury Mfg. Co., 1 Conn. Comp. Dec. 685 700 Fortimo CASES CITED 908" Page Fortino v. Merchants' Dispatch Transp. Co. (Sup.) 156 N. Y. Supp. 262. . . 632 Foster v. Shepherd, 258 lU. 164, 101 N. E. 411, 45 L. R. A. (N. S.) 167, Ann. Cas. 1914B, 572 774 Foth V. Macomber & Whyte Rope Co., 161 Wis. 549, 154 N. "W. 369, 11 N. C. C. A. 599 27, 190 Foiist T. Hartford Builders' Finish Co., 1 Conn. Comp. Dec. 512 481 Fowler, In re, Op. Sol. Dept. of L. 180 345 V. Kisedorph BottlI:% Co., The Bulletin, N. Y., vol. 1, No. 7, p. 7 495 V. Zellerbach-Levison Co., 1 Cal. I. A. C. Dec. 609' 576, 668 Fox V. Masons' Fraternal Ace. Ass'n, 96 Wis. 390, 394, 395, 71 N. W. 363. . 72 V. TJnion Oil Co. of Cal., 2 Cal. I. A. C. Dec. 414 765- Frabbie v. Freeburg, 1 Conn. Comp. Dec. 614 486 Fralin v. United States Casualty Co., 2 Mass. Wk. Comp. Cases, 758 512 Frandsen v. J. Llewellyn Co., 3 Cal. I. A. C. Dec. 23, 144, 76T Frankfort General Ins. Co. v. Pillsbury (Cal.) 159 Pac. 150 587, 598, 613, 792, 800, 824,834 Fraser v. Great North of Scotland B. Co., 3 F. 908, Ct. of Sess "762 Frazer v. Rlddell & Co., 7 B. W. C. C. 841, Ct. of Sess 460 Freeh v. San Joaquin Light & Power Corp., 2 Cal. I. A. C. Dec. 948 303 Fredenburg v. Empire United Rys., 168 App. Div. 618, 154 N. Y. Supp. 351 593, 626, 633 Fred E. Sanders, The (D. C.) 208 Fed. 724 44 Fred E. Sanders, The (D. C.) 212 Fed. 545, 5 N. C. C. A. 97 739 Freeland v. Macfarlane. Lang & Co., 2 F. 832, Ct. of Sess 601, 602 Freeman v. East Jordan & S. R. Co. (Mich.) 158 N. W. 204 115 Freid v. Smith Lumber Co., 2 Cal. I. A. C. Dec. 117 565, 569 French v. Cloverleaf Coal Mining Co., 190 111. App. 400 105, 112 V. Underwood, 5 W. O. C. 119 225 Frey v. Kerens-Donnewald Coal Co., 271 111. 121, 110 N. E. 824 467 Friscia V. Drake Bros. Co., 167 App. Div. 496, 153 N. Y. Supp. 392 230, 231 Frith V. Louisianian, The, 5 B. W. C. C. 410, C. A 452 Fry V. Cheltenham Corp., 5 B. W. C. C. 162, C. A 752, 756 Fryer v. Mt. Holly Water Co., 87 N. J. Law, 57, 93 Atl. 679 627 Fumiciello's Case, 219 Mass. 488, 107 N. B. 349 471 Furness, Withy & Co. v. Bennett, 3 B. W. O. O. 195, O. A 607 Furniss v. Gartside & Co., 3 B. W. C. C. 411, C. A 401 Furnival v. Johnson's Iron & Steel Co., 5 B. W. C. O. 43, C. A 471, 483 G Gabriel v. Northwestern Pac. R. Co., 2 Cal. I. A. C. Dec. 129 614 Gaherty v. International Silver Co., 1 Conn. Comp. Dec. 403 497, 756 Galley v. Peet Bros. Mfg. Co., 98 Kan. 53, 157 Pac. 431 597, 613, 763 Galante v. Mammoth Copper Mining Co. of Maine, 2 Cal. I. A. C. Dec. 732 613, 657 '909 CASES CITED Getzlaff Page ■Galelli v. Magneslte Products Co., The Bulletin, N. T., vol. 1, No. 6, p. 12. . 178 Gallagher, In re, 219 Mass. 140, 106 N. E. 558 263 V. Federal Transfer Co., 1 Cal. I. A. C. Dec. 39 178 V. Los Angeles, -2 Cal. I. A. C. Dec. 26 588 V. New York Cent. R. Co., The Bulletin, N. Y., vol. 1, No. 11, p. 21.. 120 V. Western Steam Nav. Co., 1 Cal. I. A. O. Dec. 525 39 Gallant v. Gabir, The, 6 B. W. C. C. 9, C. A 389 Gallup r. Pomona, 1 Cal. I. A. C Dec. 242 346, 354, 362 Gambling v. Halght, 59 N. Y. 354 164, 731 Gane v. Norton HiU Colliery Co., 2 B. W. C. C. 42, C. A 374, 828 V. Norton HUl Colliery Co., 2 K. B. 439 376 Ganley v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 159 357, 449 Garbroski's Case, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82 Am. St. Rep. 524 79 Garcia, In re, Op. Sol. Dept. of L. 611 248 V. Atchison, T. & S. F. R. Co., 2 Cal. I. A. O. Dec. 741 54 V. Industrial Accident Commission of California, 2 Cal. I. A. C. Dec. 630, 171 Cal. 57, 151 P. 741 257, 268 Gardiner v. State of California Printing Office, 1 Cal. I. A. C. Dec. 21 370, 692, 697 Gardner v. Horseheads Const. Co., 171 App. Div. 66, 156 N. Y. Supp. 899 42, 783, 795, 827 <3are v. Vorton Hill Colliery Co., 2 K. B. 539 365 <}ariella v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 237 543 Garls V. Pekin Cooperage Co., Bulletin No. 1, 111., p. 75 434 <3arratt-Callahan Co. v. Industrial Accident Commission of State of Cali- fornia, 2 Cal. I. A. O. Dec. 953, 171 Cal. 334, 153 Pac. 239 821, 834 Garsia, In re. Op. Sol. Dept. of L. 166 344 GaskUl V. Voorhies Co., 2 Cal. I. A. O. Dec. 1020 , 386, 424 Caynor, In re, 217 Mass. 86, 104 N. E. 339, L. R. A. 1916A, 363, 4 N. C. C. A. 502 200 Geary v. Ginzler & Co., 6 B. W. C. C. 72, 0. A. 405 Georgandas v. Panama-Pacific International Exposition, 2 Cal. I. A. C. Dec. 520 198 •George v. Glasgow Coal Co. (1909) A. C. 123 569 V. Glasgow Coal Co., 2 B. W. C. C. 125, 129, H. L 560, 564 George W. Helme Co. v. Middlesex Common Pleas, 84 N. J. Law, 531, 87 Atl. 72, 4 N. C. C. A. 674 , 633 Gerber v. Central Council of Stockton, 2 Cal. I. A. C. Dec. 580 14, 119, 803 Oerow, In re, Op. Sol. Dept. of L. 282 378 Gertel v. H. W. Dorman & Co., 1 Conn. Comp. Dec. 616 106, 168 -Getzlaff V. Enloe, 3 Cal. I. A. C. Dec. 18 219, 348, 351 GlacliaB CASES CITED 910' • Page Giachas v. Cable Co., 190 111. App. 285 607 Giacobbia v. Kerno-Domewald Coal Co., Bulletin No. 1, 111., p. 196 348, 410 Giampollm-Iiombardi Co. v. Employers' Liability Assur. Co., 2 Cal. I. A. C. Dee. 1010 413, 478, 51& Gibney v. Caspar Lumber Co., 2 Cal. I. A. O. Dec. 825 612 Gibson v. Aves, 2 Cal. I. A. C. Dec. 185 466 V. Dunkerley Bros., 8 B. W. C. C. 345, O. A 156 Gignaij v. Studebake*Corp., 186 Mich. 576, 152 N. W. 1037 569 Gilbert v. Nizam, The, 3 B. W. C. C. 455, C. A 450 V. Nizam, The, 79 L. J. K. 1172 469 Gilbey v. Great Western B. Co., 102 L. T. 202, 3 B. W. C. C. 135 776, 777 GilfiUen, In re. Op. Sol. Dept. of t. 654 771 Gilkey, In re. Op. Sol. Dept. of L. 288 359- Gill, In re, Op. Sol. Dept. of L. 170 345 Gillen v. Ocean Accident & Guarantee Corp., 2 Mass. Wk. Comp. Cases, 812 600 Gillen's Case, 215 Mass. 96, 102 N. E. 346, L. R. A. 1916A, 371 599 GUliland v. Kearns, 1 Conn. Comp. Dec. 277 683 Gilmore, Ex parte, 3 Eng. Com. B. 967 266- V. Sexton, 1 Cal. I. A. C. Dec. 257 210 Gilmour v. Dorman, Long & Co., 4 B. W. C. C. 279, C. A 371 Gilroy v. Mackie (Leith Distress Committee) 2 B. W. G. C. 269, Ct. of Sess. 182, 663 Gilson, In re. Op. Sol. Dept. of L. 326 399' Ginther v. Knickerbocker Co., 1 Cal. I. A. C. Dec. 458". 206, 207, 590 GiovanelUe v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 164 610 Giovanni, In re, Op. Sol. Dept. of L. 287 374 Girten v. National Zinc Co., 98 Kan. 405, 158 Pac. 33 654, 815- Gitting's Case, 2 Ohio St. 21 72 Glasgow Coal Co. v. Sneddon, 7 F. 485, Ct. of Sess 54® Glasgow & S. W. K. Co. v. Laidlaw, 2 F. 708, Ct. of Sess 551 Glass, In re, Op. Sol. Dept. of L. 393 572. Gleisner v. Gross & Herbener, 170 App. Div. 37, 155 N. Y. Supp. 946 175, 176, 330, 829 Glidder v. HaUver, The BuUetin, N. Y., vol. 1, No. 4, p. 10 674 Globe Indemnity Co. v. Terry, 2 Cal. I. A. C. Dec. 682 305 Gloyd, In re. Vol. 1, No. 7, Bui. Ohio Indus. Comp. p. 79 242, 243 Goering v. Brooklyn Mining Co., 2 Cal. I. A. C. Dec. 141 174, 373, 385, 558 Golden, In re. Op. Sol. Dept. of L. 68 187 Golden, In re, Op. Sol. Dept. of L. 159 344 V. Delta Creamery Co., 2 Cal. I. A. C. Dec. 744 213, 363 Colder v. Caledonian R. Co., 5 F. 123, Ct. of Sess 509, 511 Goldstein v. Centre Iron Works, 167 App. Div. 526, 153 N. Y. Supp. 224. . . 821 Gomez v. Thomas & Ettinger, 2 Cal. I. A. C. Dec. 877 789 Gonzales, In re. Op. Sol. Dept. of L. 333 371 911 CASES CITED Green Page Gonzales v. I/ee Moor Contracting Co., 2 Cal. I. A. C. Dec. 302 392, 456 Gooding v. Ott (W. Va.) 87 S. E. 863 33, 84, 38, 9& Goodlet V. Caledonian B. Co., 4 F. 986 382 Goodley, In re, Op. Sol. Dept. of L. 619, overruled, Op. Sol. Dept. of L. 648 768 Goodwin v. Libby, McNeil & Llbby, 2 Cal. I. A. C. Dec. 211 420 Gordon v. Eby, 1 Cal. I. A. C. Dec. 16 373 V. Evans, 1 Cal. I. A. C. Dec. 94 589, 618, 681, 795 V. San Francisco-Oakland Terminal Rys., 1 Cal. I. A. O. Dec. 232 557 Gorley v. Backworth Collieries, 7 W. C. O. 19 279, 542 Gorman v. George Gibson & Co. (1910) S. C. 317, 47 S. L. B. 394 126 Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244 107, 599, 609, 653, 674, 822 Goslan v. GilUes & Co. (1907) S. C. 68, Ct. of Sess 405 GougU V. Crawshay Bros., 1 B. W. C. C. 374, C. A 577 Gould, In re (Gould's Case) 215 Mass. 460, 486, 102 N. E. 693, Ann. Cas. 1914D, 372, 4 N. C. C. A. 60 32, 36, 274 Gove V. Boyal Indemnity Co., 223 Mass. 187, 111 N. E. 702 30, 172, 591, 638 Grace V. Adams, 100 Mass. 505, 507, 97 Am. Dec. 117, 1 Am. Eep. 131 159 Grady v. Fidelity & Deposit Co. of Maryland, Mass. Wk. Oomp. Cases, 678 579 Graf V. Brooklyn Eapid Transit Co., The Bulletin, N. X., vol. 1, No. 6, p. 9 314 Graham, In re, Op. Sol. Dept. of L. 629 769 V. Barr & Thornton, 6 B. W. C. C. 412, Ct. of Sess 363, 370, 372 V. Bay Counties Exp. Co., 2 Cal. I. A. C. Dec. 37 395 V. Daly Bros., 2 Cal. I. A. C. Dec. 794 422 Grandfield v. Bradley Smith Co., 1 Conn. Comp. Dec. 479 397, 443, 563 Grand Lodge I. O. M. A. v. Wieting, 168 111. 408, 48 N. E. 59, 61 Am. St. Eep. 123 774 Grand Eapids Lumber Co. v. Blair (Mich.) 157 N. W. 29 30, 60 Grand Trunk R. Co. of Canada v. Knapp (C. C. A.) 233 Fed. 950 16, 46, 742 Grant, In re. Op. Sol. Dept. of L. 94 185, 186, 187 Grant, In re. Op. Sol. Dept. of L. 660 771 V. Narlian, 1 Cal. I. A. C. Dec. 482 478 Graves v. Connecticut Mills Co., 1 Conn. Comp. Dec. 657 349, 414 V. Pacific Coast Casualty Co., 2 Cal. L A. C. Dec. 22 145 Gray, In re. Op. Sol. Dept. of L. 118 342 Gray, In, re. Op. Sol. Dept. of L. 648, overruling Op. Sol. Dept. of L. 619 768 Gray's Appeal, 80 Conn. 248, 251, 67 Atl. 891 '. 824 Great Northern E. Co. v. Dawson, 7 W. O. C. 114, C. A 576 V. Whitehead, 4 W. C. C. 39, K. B. D 156 Great Western Power Co. v. Plllsbury, 2 Cal. I. A. C. Dec. 482 493 T. Pillsbury, 170 Cal. 180, 149 Pac. 35, 9 N. C. C. A. 466 548, 557, 822, 823, 826, 833 V. Pillsbury, 171 Cal. 69, 151 Pac. 1136, L. E. A. 1916A, 281, 11 N. C. C. A. 493 493, 515 Green, In re. Op. Sol. Dept. of L. 237 300 V. Alameda County, 2 Cal. I. A. C. Dec. 636 656 tlreen CASES CITED 912 Page Matter of) 215 N. Y. 514, 109 N. B. 600, 603, 604 L. B. A. 1916A, 403, Ann. Cas. 1916B, 276, 9 N. C. C. A. 286 45, 47, 60, 75, 87, 88, 95, 98, 163, 571, 731 Jerman, In re, Op. Sol. Dept. of L. 152 343 Jerome v. Queen City Cycle Co., 163 N. Y. 351, 57 N. E. 485, affirming 24 App. Div. 632, 48 N. Y. Supp. 1107 838 Jlbb V. Chadwlck & Co., 8 B. W. C. C. 152, C. A 455 Jillson V. Ross (R. I.) 94 Atl. 717. .7, 11, 61, 389, 415, 814, 815, 822, 828, 839, 840 Jiminez, In re, Op. Sol. Dept. of L. 657 771 Jobson V. Cory & Sons, 4 B. W. O. C. 284, C. A 251 Joeogan v. Hershman, 1 Conn. Comp. Dec. 229 , 761 Johansen v. Union Stockyards Co., 99 Neb. 328, 156 N. W. 511 276, 478, 659 John V. Albion Coal Co., 4 W. C. C. 15, C. A 553 Johns, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 172 208, 210 Johnson, In re. Op. Sol. Dept. of L. 185 345 Johnson, In re. Op. Sol. Dept. of L. 748 317 V. Bauer Pottery Co., 1 Cal. I. A. C. Dec, 72 539 V. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 170 488 V. Cluett Peabody Co., 2 Cal. I. A. C. Dec. 7 i615, 667, 668 •v. Engstrum Co., 2 Cal. I. A. C. Dec. 788 766, 767 T. Hammond Lumber Co., 1 Cal. I. A, C. Dec. 574 614 V. London Guarantee & Accident Co., 2 Mass. Wk. Comp. Cases, 108, affirmed 217 Mass. 388, 104 N. B. 735, 4 N. 0. C. A. 843 292, 293, 414, 543, 544 Johnson CASES CITED 922 Page Johnson v. Lowe,. 2 Cal. I. A. C. Dec. 568 304 V. Marshall, Sons & Co. (1906) A. 0. 409, 411 548, 555 V. Marshall, Sons & Co., 8 W. C. C. 10, H. L 547, 559 V. Nelson, 128 Minn. 158, 150 N. W. 620 35, 37, 38, 64, 101 V. Pacific Surety Co., 1 Cal. I. A. C. Dec. 560 681, 704, 711 V. Southern California Box Factory, 1 Cal. I. A. C. Dec. 577 505 V. Southern Pac. Co., 2 Cal. I. A. C. Dec. 738 52 V. Spring Glen Fsftm, 1 Conn. Comp. Dec. 593 714 V. Sudden & Christenson, 1 Cal. I. A. C. Dec. 422 '.484, 485, 754, 795 V. Wootton, 4 B. W. C. C. 258, C. A 762 Johnston v. Monasterevan General Store Co., 2 Ir. R. 108, C. A 191 V. Mountain Commercial Co., 1 Cal. I. A. C. Dec. 100 126, 277, 284, 373, 571 JoUey V. O'Shea, 2 Cal. I. A. C. Dec. 569 720 Jones, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 57 387 Jones, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. 187 243, 262 Jones, In re. Op. Sol. Dept. of L. 155 344 V. Com., 2 Mass. Wk. Comp. Cases, 721 .' 169 V. Penwyllt Dinas Silica Brick Co., 6 B. "W. C. C. 491, C. A 214 V. Public Service R. Co., 86 N. J. Law, 646, 92 Atl. 397 304 V. Ship Alice and Eliza, 3 B. W. C. C. 495, C. A 181, 384, 445 Jorgensen v. Healy-Tibbitts Const. Co., 2 Cal. I. A. C. Dec. 46. . T 500, 514 Jost V. General Electric Co., 1 Cal. I. A. C. Dec. 527 500, 501 Joyce V. Great Northern R. Co., 100 Minn. 225, 110 N. W. 975, 8 L. K. A. (N. S.) 756 82 Judd V. Metropolitan Asylums Board, 5 B. W. O. C. 420, C. A. 754 Jule, In re, Op. Sol. Dept of L. 261 542 K KagarofE v. Southern California Gas Co., 1 Cal. I. A. C. Dec. 43 650 Kaiser v. Pinney, 1 Conn. Comp. Dec. 562 647 Kalanquin v. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 748 543 Kalucki v. American Car & Foundry Co., Mich. Wk. Comp. Cases (1916) 390 , 625, 766 Kandalets v. Swift & Co., BuUetin No. 1, 111., p. 24 598 Kane v. Merry & Cuninghame, 4 B. W. C. C. 379, Ct. of Sess 456 V. New Haven Union Co., 1 Conn. Comp. Dec. 492 226, 413 Karas v. Northwestern Pacific R. Co., 2 Cal. I. A. C. Dec. 84 679 Karemaker v. Corsican, The, 4 B. W. C. C. 285, C. A .431 Kamy v. Northwestern Malleable Iron Co., 160 Wis. 316, 151 N. W. 786. . 110, 114 Karras v. Southern Pac. Co., 2 Cal. I. A. a Dec. 748 53 Karumbellas, In re, Op. Sol. Dept. of L. 614 253 '923 OASES CITED Kennerson Page Kasovltch V. Wattis Co., 2 Cal. I. A. C. Dec. (Bulletins 915) 319 168, 210 Kavas v. Northern Electric R. Co., 2 Cal. I. A. C. Dec. 196 293, 501 Keaney, In re, 217 Mass. 5, 104 N. E. 438, 4 N. C. O. A. 556 192, 196 Kearney, In re, Op. Sol. Dept. of L. 147 .' 343 Kearns v. New London Marine Iron "Works Co., 1 Conn. Comp. Dec. 225. . 515 Kearon v. Kearon, 4 B. W. C. C. 435, C. A 450, 451 Keast V. Santa F6 R. Co., 2 Cal. I. A. C. Dec. 694 53 Keating, In re, Op. Sol. Dept. of L. 91 188 Keatley v. Shields & Son, 1 Cal. I. A. C. Dec. 191 845 Keck V. Morehouse, 2 Cal. I. A. C. Dec. 264 485 Keehan v. Milwaukee, Bui. Wis. Indus. Com. 1912-13, p. 24 506 Keen v. Scott Co., 2 Cal. I. A. C. Dec. 533 463, 694 Keenan v. Flemington Coal Co., 5 F. 164, Ot. of Sess 383 Keenev. St. Clements Press, 7 B. W. C. C. 542, C. A 398, 416 Keigher v. General Electric Co., 158 N. Y. Supp. 939 689 Kelley v. Manley, 2 Cal. I. A. C. Dec. 318 713, 721 Kelley's Case, In re, 222 Mass. 538, 111 N. E. 395 235, 687, 802 Kelliher v. Great Western Power Co., 2 Cal. I. A. O. Dec. 378 678 Kellogg V. Church Charity Foundation, 203 N. Y. 191, 96 N. E. 406, 38 L. R. A. (N. S.) 481, Ann. Cas. 1913A, 883 826 Kelly, In re. Op. Sol. Dept. of L. 337 647 Kelly, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 141 765 V. Auchenlea Colliery Co., 4 B. W. C. C. 417, Ct. of Sess 300 V. Buchanan, 47 Ir. L. T. 228, C. A 191 V. Foam Queen, The, 3 B. W. C. C. 113, C. A 449 V. Haylock (Wis.) 157 N. W. 1094 328 V. Hopkins, 2 Ir. R. 84, C. A 245 V. Kerry County Council, 42 Ir. L. T. 23 430 V. Miss Evans, The, 6 B. W. C. C. 9*16, C. A 181 V. Pacific Electric R. Co., 1 Cal. I. A. C. Dec. 150 294, 706, 708 V. Snare & Triest Const. Co., 1 Cal. I. A. C. Dec. 471 656 Kemp V. Lewis, 7 B. W. C. C. 422, C. A ' 177 Kemp & Dougall v. Darngavil Coal Co. (1909) S. C. 1314, Ct. of Sess 154 Kempson v. Moss Rose, The, 4 B. W. C. C. 101, C. A 662 Kennedy, In re, Op. Sol. Dept. of L. 131 342 Kennedy v. American Brass Co., 1 Conn. Comp. Dee. 406 234 V. David Kaufman & Sons Co. (N. J. Sup.) 91 Atl. 99 221 V. Guardian Casualty & Guaranty Co., 1 Cal. I. A. C. Dec. 152 253, 657 V. Kennedy Mfg. Co., The Bulletin, N. Y., vol. 1, No. 5, p. 12. .34, 173, 581 V. Utah Const. Co., 2 Cal. I. A. C. Dec. 60 502 Kennelly v. Stearns Salt & Lumber Co. (Mich.) 157 N. W. 378 403, 444, 449, 822, 825 Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 Atl. 372, L. R. A. 1916A, 436 -7, 25, 34, 44, 48, 49, 100, 234, 238, 821 Kenny CASES CITED 924 Page Kenny, In re, Op. Sol. Dept. of L. 57 220 V. Union R. Co., 166 App. Div. 497, 152 N. Y. Supp. 117, 8 N. C. O. A. 986 9, 18, 30, 100, 141, 176, 179, 835 Kent V. Porter, 38 S. L. B. 482, Ct. of Sess 129 Kentuelsy State Journal Co. v. Workmen's Compensation Board, 161 Ky. 562, 170 S. W. 1166, L. K. A. 1916A, 389, Ann. Cas. 1916B, 1273, affirmed 162 Ky. 387, 172 S. W. 674, L. R. A. 1916A, 402 76, 78 Kerr v. Ayr Steam Shf^ping Co., 6 B. W. C. C. 324, Ct. of Sess 473 V. Ayr Steam Shipping Co., 7 B. W. C. C. 801, H. L 473 V. Baird & Co., 4 B. W. C. C. 397, Ct: of Sess 404 V. Rltchies, 6 B. "W. C. C. 419, Ct. of Sess 308 Kerrigan v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 360 , 669 Kesler v. Massachusetts Employe's Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 168 463 Ketron v. United RaUroads of San Francisco, 1 Cal. I. A. CtDec. 528 359, 421, 424, 426, 427 Keyes-Davis Co. v. Alderdyce, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 19 35 Keyser v. Burdick & Co., 4 B. W. C. C. 87, C. A 372 V. Gilbert & Bennett Mfg. Co., 1 Conn. Comp. Dec. 636 569 Kid V. New York Motion Picture Co., 1 Cal. I. A. C. Dec. 475 578, 582 Kiernan v. Priestedt Underpinning Co., 171 App. Div. 539, 157 N. Y. Supp. 900 350 V. Schermerhom, The Bulletin, vol. 1, No. 8> P- 12- • 337 V. Turlock Irrigation District, 2 Cal. I. A. C. Dec. 259 185, 499, 521 Kilberg v. Vitch, 171 App. Div. 89, 156 N. Y. Supp. 971 643 Kilbride v. Pratt & Whitney Co., 1 Conn. Comp. Dec. 688 631, 674 KiU V. Hollister, 1 Wilson, 129 72 v. Industrial Commission, 160 Wis. 549, 152 N. W. 148, L. R. A. 1916A, 14 „ 516 Killoy V. Evans, 1 Conn. Comp. Dec. 277 611 King, In re. Vol. 1, No. 7 Bui. Ohio Indus. Com. p. 37 237, 371, 594 King, In re (King's Case) 220 Mass. 290, 107 N. E. 959 201, 231, 270, 471 V. Greenwood Cemetery Ass'n, 67 Ohio St. 244, 65 N. B. 882 29 V. Viscolold Co., 219 Mass. 420, 106 N. E. 988, 7 N. C. C. A. 254 251, 584, 730, 734 Kinghom v. Guthrie, 6 B. W. C. C. 887, Ct. of Sess 432 Kingsley v. Donovan, 169 App. Div. 828, 155 N. Y. Supp. 801. .394, 412, 823, 825 Kiniavsky v. New Haven Carriage Co., 1 Conn. Comp. Dec. 119 713 Kinney, In re. Op. Sol. Dept. of L. (1915) 768 811 Kinney's Case, 171 Ind. 612, 85 N. E. 954, 23 L. B. A. (N. S.) 711 79 Kitchenham v. Johannesburg, The, 4 B. W. C. C. 91, C. A. 449 V. Johannesburg, The, 4 B. W. C. C. 311, 312, H. L. 320, 449 325 CASBS CITED Iiambert Page Klawinski v. Lake Shore & M. S. R. Co., 185 Mich. 643, 152 N. W. 213, L. E. A. 1916A, 342 8, 428, 429, 430 Kline, In re, Op. Sol. Dept. of L. 92 , 188 V. Eussell, 113 Ga. 1085, 39 S. E. 477 y. 186 Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 643, 648, 20 Sup. Ct. 824, 44 L. Ed. 921 44 Knight V. BucknlU, 6 B. W. C. C. 160, C. A 200 Knoll V. Salina, 98 Kan. 428, 157 Pac. 1167 754, 764, 765, 843 Knopp V. American Car & Foundry Co., 186 111. App. 605, 5 N. C. C. A. 798 350, 444 Knott V. Tingle, Jacobs & Co., 4 B. W. C. C. 55, C. A 575 Koch V. Oakland Brewing & Malting Co., 1 Cal. I. A. C. Dec. 373. .284, 383, 441 Koether v. Union Hardware Co., 1 Conn. Comp. Dec. 38 638 Kohler v. Frohmann, 167 App. Div. 533, 153 N. Y. Supp. 559 176, 335 Konkel r. Ford Motor Co., Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 29 722 Konzelskl v. Grlffln-Neuberger Tobacco Co., 1 Conn. Oomp. Dec. 50 414 Koponen v. Union Lumber Co., 2 Cal. I. A. O. Dee. 1055 707 KordeUos v. Northwestern Pacific R. Co., 1 Cal. I. A. C. Dec. 586 518, 520 Kowalski v. Trostel & Sons, Rep. Wis. Indus. Com. p. 17 302 Kozlowskl V. Illinois Steel Co., Rep. Wis. Indus. Com. 1914-15, p. 19 502 Kraljlvich v. Yellow Aster Min. & Mill. Co., 1 Cal. I. A. C. Dec. 554 547, 558, 568, 612 Kramer, In re, Op. Sol. Dept. of L. 322 361 V. Schalke, The Bulletin, N. Y., vol. 1, No. 8, p. 8 136 Krasmeski v. New Haven Clock Cki., 1 Conn. Comp. Dec. 699 527 Kraus v. Fritz & Son, 87 N. J. Law, 321, 93 Atl. 578 226 Kreppel v. Boyland, 2 N. Y. St. Dep. Rep. 489 667 Krisan v. American Steel Foundries, Bulletin No. 1, 111., p. 156 773 Krisman v. Johnston City & Big Muddy Coal & Mining Co., 190 111. App. 612 107 Kruger v. Strehlow, Freese & Peterson, 2 Cal. I. A. C. Dec. 334 657 KruUa v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 409 600 Krzus V. Crow's Nest Pass Coal Co., 6 B. W. C. O. 271 239 Kuehnle, In re. Op. Sol. Dept. of L. (1915) 665 771 Kunze v. Detroit Shade Tree Co. (Mich.) 158 N. W. 851 355, 426 Lacey v. Mowlem & Co., 7 B. W. C. C. 135, C. A Y59 Lachuga v. Kataoka, 2 Cal. I. A. C. Dec. 766 218 La Finer v. Wood, The Bulletin, N. Y., vol. 1, No. 7, p. 7 482, 510 Lagerholm, In re, Op. Sol. Dept. of L. 104 188 Lakos V. Pacific Coast Casualty Co., 2 Cal. I. A. C. Dec. 21 145 Lambert, In re. Op. Sol. Dept. of L. 122 342 Iiambert CASES CITBD 92& Page Lambert v. Southern Pac. Co., 2 Cal. I. A. 0. Dec. 743 54 Lamkin, In re, Op. Sol. Dept. of L. 128 342, 343 Lane v. .^ollan Co., 1 Conn. Comp. Dec. 32 551 V. Herrick, 3 Cal. I. A. C. Dec. 29 118 V. Joyland Co., 2 Cal. I. A. C. Dec. 872 350 Lannigan v. Lannlgan, 222 Mass. 198, 110 N. E. 285 320, 464, 465, 471, 822 LanUs v. Sacramento, 2 Cal. I. A. C. Dec. 680 741 Lantry v. Mede, 127 App. Div. 557, 560, 111 N. T. Snpp. 833 329 Lanzy, In re. Op. Sol. Dept of L. 373 595 Lardie v. Grand Rapids Show Case Co., Mich. Wk. Comp. Cases (1916) 17 624, 625^ Larke v. John Hancock Mut. Life Ins. Co., 90 Conn. 303, 97 Atl. 320 300, 346, 3#7, 354, 489, 822, 824 Larnhart v. Eice-Landswick Co., 1 Cal. I. A. C. Dec. 557 582, 617, 67& Larsen, In re, 218 N. T. 252, 112 N. E. 725, affirming 169 App. Div. 838, 155 N. T. Supp. 759 334 V. Paine Drug Co., 169 App. Div. 838, 155 N. Y. Supp. 759 335, 338 Larson v. Holbrook, McGuire & Cohen, 2 Cal. I. A. a Dec. 105 590, 692 V. Powers, 2 Cal. I. A. C. Dec. 265 4^ La SaUe v. Whiting-Mead Commercial Co., 1 Cal. I. A. C. Dec. 346 253 Lauruska v. Empire Mfg. Co., 271 lU. 304, 111 N. E. 82 64 La Veck v. Park, Davis & Co. (Mich.) 157 N. W. 72 300, 309, 823 Lavin v. Wells Bros. Co., 272 IH. 609, 112 N. E. 271 836 Lawrence, In re, Op. Sol. Dept. of L. 178 345 Lawson v. Stockton Motorcycle & Supply Co., 2 Cal. I. A. C. Dec. 649. .395, 552 Lawton v. Los Angeles Transfer Co., 2 Cal. I. A. C. Dec. 1063 358 Leach V. Hickson, 4 B. W. C. C. 153, C. A 759^ V. Oakley, Street & Co., 1 K. B. 523 474 V. Oakley, Street & Co., 4 B. W. C. C. 91, 98, C. A 321, 387, 451 Leary v. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 184 465 Ledford v. Caspar Lumber Co., 2 Cal. I. A. C. Dec. 691, 255 Ledoux V. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 493 299, 409 Lee V. Baird & Co., 1 B. W. C. C. 34, Ct. of Sess 511, 608 V. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 753. . 543 V. Pacific Coast Steel Co., 3 Cal. I. A. C. Dec. 28 614 V. Bessie, The, 5 B. W. C. C. 55, C. A 247 V. St. George, The, 7 B. W. C. C. 85, C. A 450 V. Stag Line, Limited, 5 B. W. C. C. 660, C. A 470 Lees V. Dunkerley Bros., 4 B. W. C. C. 115, H. L. 156 Legge V. Nixon's Nav. Co., 7 B. W. C. C. 521, C. A 498 Legget & Sons v. Burke, 4 F. 693, Ct. of Sess. (Act of 1897) 271 Lehmann v. Great Western Ace. Ass'n, 42 L. R. A. (N. S.) 562 279 V. Ramo Films, Inc., 92 Misc. Rep. 418, 155 N. X. Supp. 1032. .43, 332, 813 927 OASES CITED Llpsoomb Page Leishman v. Dixon, liimited, 3 B. W. C. C. 560 569 Leishman v. Dixon, Limited, 3 B. W. C. C. 500, Ct. of Sess 553 Lelte V. Paraffine Paint Co., 2 Cal. I. A. C. Dec. 1022 362, 449, 454 Lemanes, In re, Op. Sol. Dept. of L. 613 ,. 254 Lemieux v. Contractors' Mut. Liability Ins. Co., 223 Mass. 346, 111 N. B. 782 683, 762, 822 Lentz V. Estabrook Co., 2 Cal. I. A. C. Dee. 205 .' 38 Leon V. Exposition Wheel Chair Co., 2 Cal. I. A. C. Dec. 845 219 V. Galceran, 11 Wall. 185, 20 L. Ed. 74 44 Leonard v. Fremont Hotel, 2 Cal. I. A. C. Dec. 998 383, 448, 533 Lera v. Fairchild-Gilmore- Wilton Co., 1 Cal. I. A. O. Dec. 44 ' 412 Lesh V. Illinois Steel Co. (Wis.) 157 N. W. 539. . .25, 27, 476, 514, 523, 524, 526 Lester v. Otis Elevator Co., 169 App. Div. 613, 155 N. Y. Supp. 524, af- . firming 90 Misc. Rep. 649, 153 N. Y. Supp. 1058 163, 737 Leveroni v. Travelers' Ins. Co. (Fumicello's Case) 219 Mass. 488, 107 N. B. 349 , 362 Lewandowski v. Crosby Transp. Co., Kep. Wis. Indus. Com. 1914-15, p. 9 40, 576 Lewis V. Garratt-Callahan Co., 2 Cal. I. A. C. Dec. 952 214 V. Goodyear India Eubber Glove Mfg. Co., 1 Conn. Comp. Dec. 238. . . 627 V. Great Western Ry. Co., 3 Q. B. D. 195, 206, 213 548, 549 V. Heafey, 2 Cal. I. A. C. Dec. 492 270 V. Port of London Authority, 7 B. W. C. C. 577, O. A 495 V. Stanbridge, 6 B. W. C. C. 568, C. A 215 Lewis & Clark County v. Industrial Ace. Board (Mont.) 155 Pac. 268 4, 8, 17, 65, 69, 73, 74 Leyman v. Amalgamated Oil Co., 2 Cal. I. A. C. Dec. 921 794 Lichtenberger v. Strack, Rep. Wis. Indus. Com. 1914-15, p. 13 282 Lightbrown v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 243 307 Lima v. JEtna Life Ins. Co., 2 Mass. Wk. Comp. Cases, 800 489 Limron v. Blair, 181 Mich. 76, 147 N. W. 546, 5 N. C. C. A. 866 674 Linck V. Millard, 4 N. Y. St. Dept. Rep. 385 277 Lindebauer v. Werner, 94 Misc. Rep. 612, 159 N. Y. 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Dec. 86 295, 498, 502 Massachusetts Bonding & Insurance Co. v. Pillsbury, 2 Cal. I. A. C. Dec. 480, 170 Cal. Y67, 151 Pac. 419, 11 Ijr. C. C. A. 426 615, 697, 709, 733 Matecny v. Vierling Steel Works, 187 111. App. 448 231, 255, 686 Mathison v. Minneapolis St. R. Co., 126 Minn. 286, 148 N. W. 71, 73, 5 N. C. C. A. 871 .21, 63, 64, 82, 84, 85, 86, 96, 98, 110, 161 Matney v. Azusa Irrigating Co., 2 Cal. I. A. C. Dec. 898 '. 195, 366 Matteoni v. Roberts & Clark, 1 Cal. I. A. C. Dec. 356 706 Matthews v. Bedworth, 1 W. C. C. 124 417 Matthiesen v. Pacific Gas & Electric Co., 1 Cal. I. A. C. Dec. 398: 641, 642 Matwiczuk v. American Car & Foundry Co., (Mich.) 155 N. Ww 412 747 Maurmann v. Chirhart & Nystedt, 1 Cal. I. A. C. Dec. 499 512 Mawdsley v. West Leigh Colliery Co., 5 B. W. C. C. 80, 0. A 391, 556 May V. Ison, 7 B. W. C. C. 148, O. A., 110 L. T. 525 360, 377 Mayhew v. Thayer, 8 Gray (Mass.) 172 263 Maynard v. New London Ship & Elngine Co., 1 Conn. Comp. Dec. 47 454 Mayott, In re. Op. Sol. Dept. of L. 765 782 Maziarski v. Ohl & Co., 86 N. J. Law, 692, 93 Atl. 110, 111 633 Mazura v. Kllngon, 1 Conn. Comp. Dec. 296 107, 715 Mazzarisi v. Ward & TuUy, 170 App. Diy. 868, 156 N. Y. Supp. 964 305, 340 Mazzini v. Pacific Coast By., 2 Cal. I. A. C. Dec. 962 123, 206, 365, 413, 692 Mead v. Lockhart, 2 B. W. C. C. 398 819 Meaddows v. Smith Bros., 2 Cal. I. A. C. Dec. 344 348 Mecartea v. Marsh, 2 Cal. I. A. 0. Dec. 128 667 Meese v. Northern Pacific B. Co., (D. C.) 206 Fed. 222 732 Meier v. Dublin Corporation, 2 Ir. R. 129, C. A 761 Meissner, In re. Op. Sol. Dept. of L. 131. . , 342 Melchor, In re. Op. Sol. Dept. of L. 646 769 Meley, In re, 219 Mass. 136, 106 N. E. 559 25, 629, 632, 634, 822, 843 935 OASES CITED IMikonis Pago Meley v. Massachusetts Employes Ins. Ass'n., 2 Mass. Wk. Comp. Cases, 404, affirmed 219 Mass. 136, 106 N. E. 559 : . . . 634 Melia v. Race Brook Country Club, 1 Conn. Comp. Dec. 549 496 Mellen Lumber Co. v. Industrial Commission, 154 Wis. 114, 142 N. W. 187, L. R. A. 1916A, 374, Ann. Cas. 1915B, 997 96, 98, 665, 666 Melling, In re. Op. Sol. Dept. of L. 129 , 346 Melton's Case, 218 U. S. 36, 30 Sup. Ct. 676, 54 L. Ed. 921, 47 L. R. A. (N. S.) 84 80 Melville v. McCarthy, 47 Ir. L. T. R. 57 754 Memphis Cotton Oil Co. v. Tolbert (Tex. Civ. App.) 171 S. W. 309, 7 N. C. C. A. 547 '. 58, 65, 66, 73, 110, 112 Mendocino Lumber Co. v. Southwestern Surety Ins. Co., 2 Cal. I. A. 0. Dec. 755 451, 787 Menominee Bay Shore Lumber Co. v. Industrial Commission, 162 Wis. 344, 156 N. W. 151 729, 785, 791 Mentz V. Armenia Fire Ins. Co., 79 Pa. 478, 21 Am. Rep. 80 , 72 Menzies v. McQuibban, 2 F. 732, Ct. of Sess , 405 Merchants' & Manufacturers' Bank v. Com., 167 U. S. 461, 17 Sup. Ct. 829, 42 L. Ed. 236 80 Merrill v. Boston & Lowell, 63 N. H. 256, 260 , 33 Merriman v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 596 229, 480 Merritt v. Clark & Snow, 2 Cal. I. A. C. Dec. 983 348, 413, 563 V. Knife Falls Boom Co., 34 Minn. 245, 25 N. W. 403 82 V. North Pacific S. S. Co., 2 Cal. I. A. C. Dec. 237 357, 470 V. Travelers Ins. Co., 2 Mass. Wk. Comp. Cases, 635 462, 490 Merry & Cuninghame v. Black, 2 B. W. C. C. 372, Ct. of Sess 581 Messick v. McEntire, 97 Kan. 813, 156 Pac. 740 553 Meyer v. Pacific Light & Power Co., 1 Cal. I. A. C. Dee. 333 493 Mezansky v. Sissa, 1 Conn. Comp. Dec. 430 83, 135 Michael v. Western Salt Co., 2 Cal. I. A. C. Dec. 501 213 Michaels, Barbara, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 156 199 Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 57 L. Ed. 417, Ann. Cas. 1914C, 176 52, 251 Michigan Sugar Co. v. Auditor General, 124 Mich. 677, 83 N. W. 625, 56 L. R. A. 329, 83 Am. St. Rep. 354 70 Michigan Workmen's Compehsation Mut. Ins. Co. v. Redfield, Op. Mich. Indus. Ace. Bd., Bui. No. 3, p. 34 559 Middleton v. Texas Power & Light Co. (Tex.) 185 S. W. 556, 11 N. C. C. A. 873 ■ 69, 72, 73, 74, 80, 87, 96 Mifsud V. Palace Hotel Co., 1 Cal. I. A. C. Dec. 37 499, 623 Migeles, In re. Op. Sol. Dept. of L. 162 345 Mihaica v. Mlagenovich, 1 Cal. I. A. 0. Dec. 174 132, 554 Mihm V. Hussey, 169 App. Div. 742, 155 N. Y. S. 860 332 Mikonis v. Royal Indemnity Co., 2 Mass. Wk. Comp. Cases, 384 670 Miles OASES CITED 936 Page Miles V. Huntington Beach Hardware Co., 2 Cal. I. A. 0. Dec. 422. 755 Miller, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 46 353 Miller, In re, Op. Sol. Dept. of L. 108 187 V. ^tna Springs Co., 2 Cal. I. A. C. Dec. 781 698, 709 V. Algar, 2 Cal. I. A. C. Dec. 584 194 V. American Steel & Wire Co., 90 Conn. 349, 97 Atl. 345 538, 539, 540 V. libby & Blinn, 1 Conn. Comp! Dec. 377 413 V. New York, N. H.»& H. B. Co., 1 Conn. Comp. Dec. 349 48, 724 V. New York Rys. Co., 171 App. Div. 316, 157 N. Y. Supp. 200.. 163, 164, 731 V. Public Service B. Co., 84 N. J. Law, 174, 85 AtL 1030. .230, 233, 246, 256 V. Riverside Storage & Cartage Co. (Mich.) 155 N. W. 462 224, 225, 230, 256, 257 V. Sovereign Camp W. of W., 140 Wis. 505, 122 N. W. 1126, 28 L. B. A. (N. S.) 178, 133 Am. St Bep. 1095 266 v. Taylor (Sup.) 159 N. Y. Supp. 999 445 Millers v. North British Locomotive Co., 2 B. W. C. C. 80, Ct. of Sess. . . . 455 MllUken v. A. Towle & Co., 212 Mass. 293, 103 N. E. 898, L. B. A. 1916A, 337 504 Milwaukee Coke & Gas Co. v. Industrial Commission, 160 Wis. 247, 151 N. W. 245 251, 285,, 682, 823, 829 Milwaukee Western Fuel Co. v. Industrial Commission, 159 Wis. 635, 150 N. W. 998 313, 475, 819, 823, 827, 829 Miner v. Franklin County Tel. Co., 83 Vt. 311, 75 Atl. 653, 26 L. B. A. (N. S.) 1195 397, 458 V. Turnbull, The Bulletin, N. Y., vol. 1, No. 6, p. 21 , 143 Mlnnaugh v. Brooklyn Union Gas Co., The Bulletin, N. Y., vol. 1, No. 8, p. 10 '. 898, 460 Minneapolis & St. L. B. Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. 207, 32 L. Ed. 585 62 Minneapolis, St. Paul & S. S. M. R. Co. v. Industrial Commission, 153 Wis. 552, 141 N. W. 1119, Ann. Cas. 1914D, 655, 8 N. C. C. A. 707 104 Minnesota, Opinions of Attorney General, Bui. 9, p. 8 661 ^ p. 9 662 p. 11 147 p. 12 694 p. 13 678 p. 14 672, 695, 697 p. 15 850 p. 16 43 p. 17 40, 104 p. 19 50 p. 20 50, 196 p. 22 189 937 OASES CITBD Mondou Page Minnesota, Opinions of Attorney General, Bui. 9, p. 23 177 p. 24 ,. . 223 p. 26 , 222 p. 27 183 p. 28 495 Bui. 11, p. 15 669, 684 p. 16 57, 101 p. 20 201 p. 24 733 p. 29 674 p. 31 229 p. 40 608 Bui. 13, p. 31 183, 184, 208 p. 32 171, 184 p. 33 ,.. 171 Mlnnis v. Young, The Bulletin, N. Y., vol. 1, No. 10, p. 14 512, 516 Miro, In re, Op. Sol. Dept. of L. 728 295 Mississippi Valley Trust Co. v. Oregon- Wasblngton Trust Oo. (D. O.) 213 Fed. 988 150 Missouri Pacific R. Co. v. Mackey, 127 TJ. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107 65, 80, 81 Mitchell, In re, vol. 1, No. 7, Bui. Ohio Indus. Com. p. 56 373 V. Crichton, 2 Cal. I. A. O.Dec. 1005 244, 268 V. Fairchlld-Gilmore-Willton Co., 1 Cal. I. A. C. Dec. 71 242, 252 V. Glamorgan Coal Co., 9 W. O. O. 16, C. A 468, 746 V. McNab & Smith, 1 CaL I. A. C. Dec. 116 484, 534 V. Occidental Forwarding Co., 2 Cal. A. C. Dec. 336 678, 701 V. Saxon, The, 5 B. W. C. O. 623, 0. A 473 V. State, 115 Md. 360, 80 AO. 1020 28 Mitchinson v. Day Bros., 6 B. W. 0. C. 191, C. A 409, 436 Mobile, J. & K. O. R. Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 78, 32 L. B. A. (N. S.) 226, Ann. Cas. 1912A, 463, 2 N. C. C. A. 243 65, 82 Mockett V. Ashton, 84 N. J. Law, 452, 90 Atl. 127, 4 N. C. C. A. 862 661 Mockler v. Hawkes (Sup.) 158 N. Y. Supp. 759 .616, 625 Moell V. Wilson, The Bulletin, N. Y., vol. 1, No. 10, p. 15 258, 391 MoeUer v. Bereda Mfg. Co., Bulletin No. 1, lU., p. 66 801 Mohr V. Frederick L. Cranford, Inc., The Bulletin, N. Y., vol. 1, No. 6. p. 10 493 >IoIamphy v. Sheridan et al., 7 B. W. C. C. 957, C. A 526 Mole V. Wadworth, 6 B. W. 0. C. 128, 129, 511 376 MoIIoy V. South Wales Anthracite Colliery Co., 4 B. W. 0. O. 65, C. A.. . 356 Monaghan v. United Collieries, 3 F. 149, Ct. of Sess 128 Mondou V. New York, N. H. & H. B. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, 1 N. C. O. A. 875 52, 82, 86 Monroe OASES CITED 938 Page Monroe, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 186 169 Monroe v. Yosemlte laundry Co., 2 Cal. I. A. O. Dec. 718 210 Montes, In re, Op. Sol. Dept. of L. 153 344 Moore, In re. Op. Sol. Dept. of L. 143 343 V. LeMgh Valley R. Co., 169 App. Div. 177, 154 N. Y. Supp. 620 10, 26, 29, 64, 276, 281, 322, 382, 425 v. Manchester Liners, 3 B. W. 0. 6. 527, 529, H. L. ♦ 346, 387, 388, 396, 451, 453 V. Manchester Liners, 2 B. W. C. C. 87, 0. A 387, 451, 453 Moore v. Naval Colliery Co., 5 B. W. C. C. 87, C. A. 751 V. William Harkin & Sons, 4 N. T. St. Dep. Eep. 383 506 Morales, In re, Op. Sol. Dept. of L. 295 399 Moreno v. San Pedro, Los Angeles & Salt Lake B. R. Co., 2 Cal. I. A. C. Dec. 754 53 Morey v. Worden, 2 N. Y. St. Dep. 494 594 Morgan, In re. Op. Sol. Dept. of L. 177 345 V. Zenaida, The, 2 B. W. C. O. 19, C. A 281, 432 Morgan's Louisiana & L. R. & S. S. Co. v. Louisiana Board of Health, 118 U. S. 455, 6 Sup. Ct. 1114, 30 L. Ed. 237 45 Morgean v. Westinghouse, Church, Kerr & Co., 1 Conn. Comp. Dec. 311 654 Morgillo V. Westinghouse, Church, Kerr & Co., 1 Conn. Comp. Dec. 311 654 Morris v. Lambeth Borough Council, 8 W. C. C. 1, C. A 384 V. Rowbotham, 8 B. W. C. C. 157,.0. A 404 V. Spears, 1 Cal. I. A. C. Dec. 317 193 V. Turford & Southward, 6 B. W. C. C. 606, C. A 603 Morrish v. Brookmiller, 2 Cal. I. A. C. Dec. 76 691 Morrison v. Clyde Navigation Trustees, 2 B. W. O. C. 99, Ct. of Sess 454 V. Fidelity & Casualty Co., 2 Mass. Wk. Comp. Cases, 594 620 V. Los Angeles Ry. Corp., 2 Cal. I. A. C. Dec. 18 438 Morse v. Royal Indemnity Co., 1 Cal. I. A. C. Dec. 53 230, 269 V. Waterbury Clock Co., 1 Conn. Comp. Dec. 138 413 Moss V. Ames Iron Works, The Bulletin, Vol. 1, No. 8, p. 9 774 MOSS& Co. V. Akers, 4 B. W. C. O. 294, O. A 531, 828 Motely V. McDonald, Bulletin No. 1, 111., p. 25 802 Moyes v. t)ixon. Limited, 7 F. 386, Ct. of Sess. 81 237 Muenzenmayer v. Hood, 97 Kan. 565, 155 Pac. 917 653, 728, 764 Muir V. Ocean Accident & Guarantee Corp., 2 Mass. Wk. Comp. Cases, 172 368 Mulhall V. Fallon, 176 Mass. 276, 57 N. E. 386, 54 L. B. A. 934, 79 Am. St. Rep. 309. (. 32 MulhoUand v. Hazelton & Co., 36 Ir. L. T. 217, C. A 404 Mullan V. Rogers, 2 Cal. I. A. C. Dec. 927 145, 307 Mullen V. Stewart & Co., 1 B. W. C. C. 204, Ct. of Sess 443 MulUgan v. John Dick & Son, 6 Fed. 126, Ct of Sess 156 MuUins, In re. Op. Sol. Dept. of L. 58 188 ■939 CASES CITED Nelson Page Mulrooney v. Todd & The Bradford CJorp., 2 B. W. 0. C. 191, 0. A 127 Mulverhill, In re, Op. Sol. Dept. of L. 672 304 Munn, In re, Op. Sol. Dept. of L. 597 250 V. Industrial Board, 274 111. 70, 113 N. E. 110. . .356, 819, 824, 826, 838, 839 V. People of State of Illinois, 94 U. S. 113, 24 L. Ed. 77 86 Murphy, In re, 218 Mass. 278, 105 N. B. 635, 5 N. C. 0. A. 716 638 ^Murphy, In re (Mass.) 113 N. E. 283 231, 255, 548, 571, 824 v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 817, affirmed by 218 Mass. 278, 105 N. E. 635 639 V. Berwick, 2 B. W. C. C. 103, C. A 436 V.Berwick, 43 Ir. I. T. R. 126 324 V. Blycher, 1 Conn. Comp. Dec. 443 135 V. Casualty Co. of America, 1 Cal. I. A. C. Dec. 54 316 V. Enniscorthy Board of Guardians, 2 B. W. O. O. 291, 0. A 179 V. Standard Oil Co., 2 Cal. I. A. 0. Dec. 304 227 Murphy & Sandwith v. Cooney, 2 I. R. 76, C. A 460 V. Allan Bros. & Co., 6 B. W. C. C. 215, 0. A 450 Murray, In re, Op. Sol. Dept. of D. 239 299 V. North British R. Co., 6 Fed. 540, Ct. of Sess 156 Muzik V. Erie R. Co., 85 N. J. Law, 131, 89 Atl. 248, 86 N. J- Law, 695, 92 Atl. 1087 256 Muzik V. Erie R. H. Co., 85 N. J. Law, 129, 89 Atl. 248, Ann. Cas. 1916A, 140, affirmed 86 N. J. Law, 695, 92 Atl. 1087 233, 469 Mustaccio v. Simpson Const. Co., Bulletin No. 1, 111., p. 60 798 Mustaikas v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 547. .. . 305 Mutter, Howey & Co. v. Thomson, 6 B. W. C. C. 424, Ct. of Sess 519 Mutual Ace. Ass'n v. Barry, 131 U. S. 100, 121, 9 Sup. Ct. 755, 762, 33 L. Ed. 60 276 N Naruk V. Main, 1 Conn. Comp. Dec. 48 606, 611 Nash V. Rangatira, The, 7 B. W. C. C. 590, C. A 451 Naud T. King Sewing Mach. Co., 95 Misc. Rep. 676, 159 N. Y. Supp. 910. . 277, 280, 818, 830 Naylor v. Musgrave Spinning Co., 4 B. W. C. C. 286, O. A 403 Neel V. White, 2 Cal. I. A. O. Dec. 933 131, 762 Neimeyer v. Volger, 2 Cal. I. A. C. Dec. 305 192 Nekoosa-Edwards Paper Co. v. Industrial Commission, 154 Wis. 105, 141 N. W. 1013, L. B. A. 1916A, 348, Ann. Cas. 1915B, 995 565, 567, 823 Nellis, In re, Op. Sol. Dept. of L. 286 371 Nelson, In re, 217 Mass. 467, 105 N. E. 357, 5 N. 0. 0. A. 694. . .224, 259, 262 V. Belfast Corp., 1 B. W. C. C. 158, C. A 356, 406 V. Fitzgerald, Bulletin No. 1, 111. 95 117 Nelson OASES CITED 940' Page Nelson V. Kerr & Mitchell, 3 F. 893, Ct. of Sess 577 V. Thomas McLamon & Co., The Bulletin, N. X., Vol. 1, No. 10, p. 19 512 Nesland v. Eddy, 131 Minn. 62, 154 N. W. 661 251 Nesselroad v. Castle Bros., 2 Cal. I. A. C. Dec. 529...- 307 Netherland v. Contra Costa Const. Co., 1 Cal. I. A. C. Dec. 440 473 Neumann v. Milwaukee Electric Ry. & Light Co., Bui. Wis. Indus. Com. Vol. 1, p. 92 ♦ 454, 559 V. Turner, 1 Conn. Comp. Dec. 130 107, 742 Nevada, Reports of Industrial Commission 1913-14, p. 16 298 p. 19 26. p. 21 587, 592, 625^ p. 24 624, 632, 660 p. 25 35, 209, 277, 290, 489 p. 26.. 168, 170 Nevadjic v. Northwestern Iron Co., Bui. Wis. Indus. Com. Vol. 1, p. 93. . 261, 548 V. Northwestern Iron Co., Bui. Wis. Indus. Com. 1912-13, p. 21, af- firmed 154 Wis. 97, 142 N. W. 271, L. B. A. 1916A, 366, Ann. Cas. 1915B, 877 .261, 548 New Amsterdam Casualty Co. v. Olcott, 165 App. Div. 603, 150 N. Y. Supp. 772 147 Newark Paving Co. v. Klotz, 85 N. J. Law, 432, 91 Atl. 91 162, 241 Newcomb v. Albertson, 85 N. J. Law, 435, 89 Atl. 928 492, 632. Newkirk v. Union Ice Co., 1 Cal. I. A. O. Dec. 166 706, 718, 791 Newman v. Newman, 218 N. Y. 325, 113 N. E. 332, affirming 169 App. Div. 745, 155 N. Y. Supp. 665 29, 175, 321, 338, 41& Newman's C^se, In re, 222 Massi 563, 111 N. B. 359, L. B. A. 1916C, 1145 256, 259, 262, 263, 822 New Monckton Collieries v. Keeling, 4 B. W. C. O. 49, C. A 247 V. Keeling, 4 B. W. C. C. 332, 6 N. C. C. A. 240, H. L. 247 Newson v. Burstall, 8 B. W. C. C. 21, O. A 177 New York Shipbuilding Co. v. Buchanfin, 84 N. J. Law, 543, 87 Atl. 86. . . 661 Nicholas, In re. Op. Sol. Dept. of L. 125 342, 346 V. Dawson, 15 T. L. B. 242 469 NichoUs V. Briton Ferry U. D. C, 8 B. W. C. O. 42, C. A 757, 761 Nichols, In re, 217 Mass. 3, 104 N. B. 566, Ann. Cas. 19150, 862, 4 N. C. C. A. 546 28, 639, 640 T. London Guarantee & Accident Co., 2 Mass. Wk. Comp. Cases, 814, affirmed 217 Mass. 3, 104 N. E. 566, Ann. Cas. 1915C, 862. . . 640 V. Max Pollock Co., 1 Conn. Comp. Dec. 74 622 V. Walter, 37 Minn. 264, 33 N. W. 800. .. ; 82 Nickerson, In re, 218 Mass. 158, 105 N. B. 604, Ann. Cas. 191 6A, 790, 5 N. O. C. A. 645 548, 549, 556, 569, 824 '941 CASES CITBD O'Brien Page Nlckerson v. New England Casualty Co., 2 Mass. Wk. Oomp. Cases, 379. . 561 Nlcoletti V. Pennsylvania Mining Co., 2 Cal. I. A. 0. Dec. 347 315 Niemark v. West Coast Roofing Co., Bulletin No. 1, 111., p. 56 635 Nisbet V. Rayne & Bum, 3 B. W. O. O. 507, O. A 284 V. Rayne & Bum, 2 K. B. 689 i .426, 433, 437 Nitram Co. v. Court of Common Pleas, 84 N. J. Law, 243, 86 Atl. 435 634 V. Creagh, 84 N. J. Law, 243, 86 Atl. 435 13, 93, 620, 633 Noble State Bank v. Haskell, 219 TJ. S. 104, 31 S. Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487 98 Noden v. GaUoways, Limited, 5 B. W. C. C. 7, C. A 462, 517 Nolan V. Cranford Co., 4 N. Y. St. Dep. Rep. 337, affirmed 155 N. T. Supp. 1128 169 V. New England Casualty Co., 2 Mass. Wk. Comp. Cases, 417 409 V. Parter & Sons, 2 B. W. C. C. 106 359 Noonan v. Ferris, 2 Cal. I. A. C. Dec. 89 185 Noriega, In re, Op. Sol. Dept. of L. 378 645 Norman v. Empire Lighterage & Wrecking Co., 2 N. X. St. Dep. Rep. 480. . 119 Norris v. Lambeth Borough CouncU, 8 W. C. C. 3 396 North V. University of Illinois, Bulletin No. 1, 111., p. 63 118, 339 North Carolina R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, 9 N. C. C. A. 109 379 Northern Employers' Mutual Indemnity Co. v. Kniveton, 19 T. L. R. 504, Dist. Ct., 4 W. C. C. 37 146 Northern Pac. R. Co. v. Meese, 239 U. S. 614, 36 Sup. Ct. 223, 60 L. Ed. 467 65 Northwestern Fuel Co. v. Leipus, 161 Wis. 450, 152 N. W. 856 624, 625, 628, 629 Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97, 142 N. W. '271, L. R. A. 1916A, 366, Ann. Cas. 1915B, 877. . . .28, 259, 264, 265, 266, 821, 823, 825 V. Industrial Commission, 160 Wis. 633, 152 N. W. 416 382, 396 Norton v. Shore Line Electric R. Co., 84 Conn. 24, 35, 78 Atl. 587 827 Noval V. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 586, O. A 617 Nurse, In re. Op. Sol. Dept. of L. 626 769 Nycek v. C. Reiss Coal Co., Bui. Wis. Indus. Com. 1912-13, p. 23 592 o Oaks V. Berkeley Steel Co., 1 Cal. I. A. C. Dec. 218 844 Oberts v. Wisconsin Tel. Co., Rep. Wis. Indus. Com. 1914^15, p. 24. . .486, 713 O'Brien v. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 226 469 V. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp, Cases, 398. . 709 V. Star Line, Limited, 1 B. W. 0. 0. 177, Ct of Sess 473 O'Connell OASES CITED 942 Page O'Connell v. Slmms Magneto Co., ,85 N. J. Law, 64, 89 AH. 922, 4 N. O. C. A. 590 626 O'Connor v. London Guarantee & Accident Co., 2 Mass. Wk. Comp. Cases, 387 439 V. Yosemite Lumber Co., 2 Cal. I. A. C. Dec. 334 707 O'DonneU v. Clare County Council, 6 B. W. C. C. 457, C. A 201, 214 Ogilvie V. Egan, 1 Cal. I. A. C. Dec. 79 366, 428, 449 O'Hara v. Cadzow Coal Ob., 5 F. 439, Ct. of Sess 560 V. Hayes, 3 B. W. C. C. 586, C. A 308 O'Hare v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases 369 496. Okrzsezs v. Lehigh Valley R. Co., 170 App. Div. 15, 155 N. Y. Supp. 919. . 46 Oldenberg v. Industrial Commission, 159 Wis. 333, 150 N. W. 444 823, 830 Oldham v. Southwestern Surety Ins. Co., 1 Cal. A. C. Dec. 258 370, 377 Oleskie v. Dodge Bros., Mich. Wk. Comp. Cases (1916) 45 845 Oliveira v. iEtna Life Ins. Co., 2 Mass. Wk. Comp. Cases, 517 671 Oliver v. Christopher, 98 Kan. 660, 159 Pac. 397 778, 837, 841 V. Macon Hardware Co., 98 Ga. 249, 25 S. E. 403, 58 Am. St. Rep. .300 183, 186. V. Nautilus Steam Shipping Co., 2 K. B. 639, C. A. 5, W. C. C. 65 157 OUie V. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 676 532 Olney v. West Side Lumber Co., 2 Cal. I. A. C. Dec. 272 493. Olsen V. Hale, 2 Cal. I. A. C. Dec. 607 313, 387 V. Rogers Development Co., 2 Cal. I. A. C. Dec. 586 184 V. Western Fuel Co., 2 Cal. I. A. O. Dec. 643 657 Olson, In re. Op. Sol. Dept. of L. 136 342 Olson, In re. Op. Sol. Dept of L. 141 344 V. Dorset, The, 6 B. W. C. C. 658, C. A 311 V. Hillman's, Inc., Bulletin No. 1, 111. p. 121 749- V. Olson Winery Co., 2 Cal. I. A. C. Dec. 325 578 V. Tice, 2 Cal. I. A. C. Dec."333 658 O'Neal V. Palmer & McBryde, 2 Cal. I. A. C. Dec. 745 781 Oneida Steel Pulley Co., In re (N. Y.) 113 N. B. 455 844 O'Neil V. Carley Heater Co., 218 N. Y. 414, 113 N. E. 406 435 O'Neill V. Brown & Co., (1913) S. C. 653 526. V. Brown & Co., 6 B. W. C. C. 428, Ot. of Sess 528 Opinion of Justices, In re, 209 Mass. 607, 96 N. B. 308, 309, 1 N. C. C. A. 557 81, 85, 9r Opinions of Attorney Generals of various states wiU be found in this table under the name of the state. Opinions of Comptroller of Treasury wiU be found under "Federal Act" in this table. Opinions of Special Counsel to Iowa Industrial Commission will be found in this table under "Iowa". 943 OASES CITED Fapinaw Page Opltz V. Ohas. Hoertz & Son, Mich. Wk. Comp. Oases (1916) 311 136, 144 O'Regan v. Cunard S. S. Co., 160 Mass. 356, 361, 35 N. E. 1070, 39 Am. St. Rep. 484 159 Oregon, First Annual Reports Industrial Accident Commission June 30, 1915, p. 6 22 p. 7 23 p. 10 23 p. 18 503 p. 19 ; 14 p. 22 22 p. 23 21 p. 24 13, 21 p. 42 20 Orient Ins. Co. of Hartford, Conn. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552 80 O'Rourke v. Cudahy Packing Co., 1 Conn. Comp. Dec. 8 107 Osgood, In re, Op. Sol. Dept. of L. 391 490 Ostrowski v. Stanley Iron Works, 1 Conn. Comp. Dec. 554 241 Otot V. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 254. . 496 . Owen V. Mahoney Bros., 1 Cal. I. A. C. Dec. 308 656 Oyos V. Pacific Sewer Pipe Co., 2 Cal. I. A. C. Dec. 622 470 Pacific Coast Casualty Co. v. PUlsbury, 2 Cal. I. A. C. Dec. 538, 171 Cal. 52, 151 Pac. 658 806, 810 V. PUlsbury, 171 Cal. 319, 153 Pac. 24. . . .515, 521, 719, 774, 797, 810, 835 Paddington Borough Council v. Stack, 2 B. W. C. 0. 402, C. A 527 Page V. BurtweU, 2 K. 3.758, C. A 156, 739 Pagliarulo, In re, Op. Sol. Dept. of L. 503 573 Palacios, In re. Op. Sol. Dept. of L. 162 345 Palama v. Chase Metal Works, 1 Conn. Comp. Dec. 444 311, 413, 480 Palmer v. Scheidenhelm, Bulletin No. 1, 111., p. 135 634 Palmeri v. Greist Mfg. Co., 1 Conn. Comp. Dec. 669 349, 414 Pampuro v. Murray Bros., 1 Conn. Comp. Dec. 674 698 Panama-Pacific International Exposition Co. v. Hooper, 1 Cal. I. A. C. Dec. 429 191. 19^ Panasuk, In re (Pansuk's Case) 217 Mass. 589, 105 N. E. 368, 5 N. C. O. A. 688 25, 689, 696, 697, 698, 784 T. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 338, affirmed 217 Mass. 589, 105 N. B. 368 698 Pangburn, In re. Op. Sol. Dept. of L. 138..: ; 343 Pansoda v. Bridgeport Hydraulic Co., 1 Conn. Comp. Dec. 118 240 Papinaw v. Grand Trunk R. Co., (Mich.) 155 N. W. 545 347, 825 Pappas CASES CITED 9^^ Page Pappas V. Warren, 2 Cal. I. A. 0. Dec. 874 193 Pappianl v. WMte Oak Crushed Stone Co., 1 Conn. Comp. Dec. 619 270 Parini v. Selby Smelting & Lead Co., 2 Cal. I. A. C. Dec. 192 535, 680 Parker v. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Cases, 392 411, 478 V. Black Bock, The, 7 B. W. 0. C. 152, C. A 459 V. Hambrock, 5 B. W. C. C. 608, C. A 393, 400 V. Pont, 5 B. W. C. (> 45, C. A 455 V. Pout, 105 L. T. 493 376 Parro v. New York, S. & W. K. Co., 85 N. J. Law, 155, 88 Atl. 825, 4 N. C. C. A. 680 8l3 Parsley v. O'Brien Bros., 1 Cal. I. A. C. Dec. 494 640 Parsons v. Delaware & Hudson Co., 167 App. Div. 536, 153 N. Y. Supp. 179 46, 176 Partridge v. Whiteley, Limited, 8 B. W. 0. C. 53, C. A 456 Pascale v. S. L. & G. H. Rogers Co., 1 Conn. Comp. Dec. 33 633 Passus, In re, Op. Sol. Dept. of L. 37i; 649 Patch V. First Nat. Bank, Rep. Wis. Indus. Com. 1914-15, p. 9 482, 777, 792 Paterson v. Lockhart, 7 F. 954, Ct. of Sess 214 V. Moore & Co., 3 B. W. O. C. 541, Ct. of Sess 577 Paton V. Dixon, Limited, 6 B. W. C. C. 882, Ct. of Sess. 522, 542 ,Patralia v. American Brass Co., 1 Conn. Comp. Dec. 412 709 Pattberg v. Young & Swain Baking Co., 2 Cal. I. A. C. Dec. 883 315 Patterson, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 33 475, 778 Patterson, In re. Vol. ,1, No. 7, Bui. Ohio Indus. Com. p. 157 763 V. Bloomington, D. & C. R. Co., Bulletin No. 1, 111. p. 101 .361, 452 Pattison v. White & Co., 6 W. C. C. 61, C. A 129 Paul V. Johnson Bros., 3 Cal. I. A. C. Dec. 32 719 V. Nikkei, 1 Cal. I. A. C. Dec. 648 137, 204, 205, 406 Pawlak V. Hayes, 162 Wis. 503, 156 N. W. 464, 11 N. C. C. A. 752 520, 742 Payne v. Barlow, 84 Kan. 132, 113 Pac. 432 73 Pe^body v. Superior, Bui. Wis. Indus. Com. vol. 1, p. 99 137 Pearce v. Southwestern R. Co., 2 W. C. C. 152. 427 Pearl v. Harris, 121 Mass. 390 71 Pears v. Gibbons, 6 B. W. C. C. 722, C. A 180 Peck V. San Francisco-Oakland Terminal Rys., 1 Cal. I. A. C. Dec. 462 505, 519 Pedersen v. Delaware, L. & W. B. R., 229 U. S. 146, 33 Sup. Ct. 648, 47 L. . Ed. 1125, Ann. Cas. 19140, 153, 3 N. 0. C. A. 779 55 Pedez, In re. Op. Sol. Dept. of L. 171 344 Pedroni v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 670 710 Peel V. Lawrence & Sons, 5 B. W. C. C. 274, C. A 418, 419 Peet V. Mills, 76 Wash. 437, 13B Pac. 685, L. R. A. 1916A, 358, Ann. Cas. 1915D, 154, 4 N. C. C. A. 786 19, 25, 27, 58, 73, 732 945 CASES CITED Philadelphia Page Peggie v. Wemyss Coal Co. (1910) S. 0. 93, Ct. of Sess 765 Pelham v. Burstein, 1 Codb. Comp. Dec. 49 ; . .569, 693, 723 Pellett T. Industrial Commission of Wis., 162 Wis. 596, 156 N. W. 956. .754, 760 Peloquln v. Fidelity & Deposit Co. of Maryland, 2 Mass. Wk. Comp. Cases, 718 259 Penfield v. Glastonbury, 1 Conn. Comp. Dec. 637 204, 209, 369, 580 Penn v. Spiers & Pond, 1 B. W. C. C. 401, C. A 575 Pennington v. Geo. W. Pennington Sons, 2 Cal. I. A. C. Dec. 994 726 Pensabene v. F. & J. Auditore Co., 78 Misc. Kep. 538, 138 N. Y. Supp. 947 40, 91, 92 People V. Brady, 268 111. 192, 108 N. E. 1009 24 V. Henning Co., 260 111. 554, 103 N. B. 530 24 V. McCue, 150 Cal. 195, 88 Pac. 899 785, 829 V. Township Board of Salem, 20 Mich. 452, 4 Am. Rep. 400 70 People ex rel. Kinney v. White, 64 App. Div. 390, 392, 72 N. Y. Supp. 91. . ^29 Pepper v. Sayer, 7 B. W. C. C. 616, C. A 389 Peres v. Wand, 1 Cal. I. A. C. Dec. 607 697 Perkins, In re, Op. Sol. Dept. of L. 579 248 Peroni v. San Francisco, Napa & Calistoga By., 2 Cal. I. A. C. Dec. 818. . . 466 Perry v. Anglo-American DecorattQg Co., 3 B. W. C. C. 310 359 V. Ocean Coal Co., 5 B. W. C. C. 421 308 V. San Jose, 1 Cal. I. A. C. Dec. 537 446, 452 V. Wright, 1 B. W. C. C. 354 592 Petch V. Lamont & Bichardson, 2 Cal. I. A. C. Dec. 982 803 Peters v. Indianapolis Abattoir Co., 1 Conn. Comp. Dec. 263 618 Peters, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 25 540 Petersen v. PeUasco, 2 Cal. I. A. C. Dec. 199. ..178, 205, 207, 665, 781, 799, 808 V. Sperry & Barnes, 1 Conn. Comp. Dec. 370 481 V. Valley Pipe Line Co., 2 Cal. I. A. C. Dec. 606 438, 439 Peterson v. H. B. Beach & Sons, 1 Conn. Comp. Dec. 469 713, 714, 716 V. State of California, 2 Cal. I. A. C. Dec. 48 182 Petrie, In re, 215 N. Y. 335, 109 N. E. 549 25, 633 In re (N. Y.) 113 N. B. 455 844 In re» 165 App. Div. 561, 151 N. Y. Supp. 307 633 Petrock v. Keystone Steel & Wire Co., Bulletin No. 1, 111., p. 89 802 Petrozino v. American Mut. Liability Co. (Caliendo's Case) 219 Mass. 498, 107 N. E. 370 225, 238, 239, 257 Petrucci v. Bed Kiver Lumber Co., 3 Cal. I. A. C. Dec. 40 260 Petschelt v. Preis, 8 B. W. O. O. 44, C. A 542, 761 Pettee v. Noyes (Minn.) 157 N. W. 995 190 Pettit V. Mendenhall, 2 Cal. I. A. C. Dec. 212 285, 748 Pfaender v. Chicago & N. W. R. Co., 86 Minn. 218, 90 N. W. 393 82 Philadelphia, B. & W. E. Co. v. Schubert, 224 U. S. 603, 32 Sup. Ct 589, 56 L. Ed. 911 66 HoN.CoMP.— 60 Pbj^lipg CASES CITED 946 Page Phillips, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 49 364 V. Chanslor-Canfleld Midway Oil Co., 1 Cal. I. A. C. Dec. 580 354, 412, 552, 567, 588, 611, 798 V. Pacific Gas & Electric Co., 2 Cal. I. A. C. Dec. 789 400 V. Williams, 4 B. W. C5. C. 143, O. A ^ 356, 401 , Philp V. International Silver Co., 1 Conn. Comp. Dec. 448 699 Piatt V. Swift & Co., 188 Mo. App. 584, 176 S. W. 434 101, 108, 739 Pickett, In re. Op. Sol. Dept. of L. 80 189 Pidgeon v. Maryland Casualty Co., 2 Mass. Wk. Comp. Cases, 348 463 Pierce v. Boyer-Van Kuran Lumber & Coal Co., 99 Neb. 321, 156 N. W. 509, Ann. Rep. Neb. St. Dept. of L. 1915, Bulletin 32, p. 94. 320, 410, 441, 659, 660 V. Provident Clothing & Supply Co., 4 B. W. C. O. 242, C. A 426 Pigeon V. Employers' Liability Assur. Corp., 216 Mass. 51, 102 N. B. 932, Ann. Cas. 1915A, 737, 4 N. C. C. A. 516 122, 385, 447, 724, 777, 784, 785, 821, 822, 836' Pimm V. Clement Talbot, Limited, 4 B. W. C. C. 565, C. A 753 Pinel V. Rapid By. System, 184 Mich. 169, 150 N. W. 897 228 Pinoza v. Northern Chair Co., 152 Wis. 473, 140 N. W. 84 113 Pitt V. Central Illinois Public Service Co., 273 111. 617, 113 N. E. 153 831 Pizzo V. Wiemann, 149 Wis. 235, 134 N. W. 899, 38 L. B. A. (N. S.) 678, Ann. Cas. 1913C, 803, 3 N. O. C. A. 149 113 Plass V. New England B. Co., 169 App. Div. 826, 155 N. Y. Supp. 854. .301, 823 Pliska V. Hatton Lumber Co., Bui. Wis. Indus. Com. vol. 1, p. 95 272 Plumb V. Cobden Flour Mills Co. (1914) App. C. 62 (Eng.) 321, 779 V. Cobden Flour MUls Co., 6 B. W. C. C. 245, C. A 4KJ V. Cobden Flour Mills Co., 7 B. W. C. C. 1, H. L 455 V. Cobden Flour Mills Co., 7 B. W. O. C. 6 392 Poccardi v. Public Service Commission, 75 W. Va. 542, 84 S. E. 242, L. B. A. 1916A, 299 282, 313, 467, 483, 746, 826, 828 Pogue V. Nassau Light & Power Co., 1 N. Y. St. Dep. Rep. "429 366 Polin V. Bristol Bay Packing Co., 3 Cal. I. A. C. Dec. 12 34 Poling V. Brown, Bulletin No. 1, 111., p. 21 117, 719 Pollard V. Goole & Hull Steam Towing Co., 3 B. W. C. C. 366, C. A 122, 124 Polled V. Great Northern B. Co., 5 B. W. C. C. 620, C. A 247 Pollock V. Wagner Leather Co., 3 Cal. I. A. C. Dec. 37 244 Pomfret v. Lancashire & Y. B. Co., 2 K. B. 718, 5 W. C. O. 22 427, 472 Ponce V. Bngstrum Co., 2 Cal. I. A. C. Dec. 370 315 Ponder v. Adams & McBratney, 1 Cal. I. A. C. Dec. 207 553 Pope V. Hey wood Bros. & Wakefield Co., 221 Mass. 143, 108 N. E. 1058 109 V. Hill's Plymouth Co., 5 B. W. C. C. 175, H. L 456 V. Hill's Plymouth Co., 102 L. T. R. 632, 3 B. W. C. C. 339, C. A.. .456, 570 V. Hill's Plymouth Co., 105 L. T. R. 678, 5 B. W. C. C. 175 570 Poppos V. Silver Palace Theatre Co., 2 Cal. I. A. C. Dec. 397 497 947 OASES CITED Pryoe Page Porter v. Anderson, 1 Cal. I. A. C. Dee. 608 ". 485 V. Anderson, 2 Cal. I. A. O. Dec. 67 806 V. Noble, 1 Cal. I. A. C. Dec. 588 521 V. WMtbread & Co., 7 B. W. C. C. 205, C. A 663 Portnoy v. Fidelity & Casualty Co. of New York, 2 Mass. Wk. Comp. Cases, 823 617 Porton V. Central (Unemployed) Body for London, 2 B. W. C. C. 296, C. A. 181, 579 Posey, In re, Op. Sol. Dept. of L. 183 345 Post V. Burger & Gohlke, 216 N. Y. 544, 111 N. B. 351, Ann. Cas. 1916B, 158, 10 N. C. O. A. 888 33, 34, 175 Postex Cotton MiU Co. v. McCamy (Tex. Civ. App.) 184 S. W. 570 73 Potter, In re, Op. Sol. Dept. of L. 272 301 V. Welch & Sons, 7 B. W. C. C. 738, 0. A 753 Potts V. Nlddrie & Benhar Coal Co. (1913) A. C. 531, 538 257 V. Pacific Stevedoring & Ballasting Co., 1 Cal. I. A. C. Dec. 630 567 Poulton V. Kelsall, 5 B. W. C. O. 318, C. A 362, 385 Powell V. Brown, 1 Q. B. 157, C. A. 1 W. C. C. 44 130 v. Brynddu Colliery Co., 5 B. W. C. C. 124, C. A 456 V. Lanarkshire Steel Co., 6 F. 1039, Ct. of Sess 401, 456, 561, 562 V. Main Colliery Co., 2 W. C. C. 25, A. C 762 V. Main Colliery Co., 2 W. C. C. 29, H. L 769 V. Main Colliery Co. (1900) A. C. 366 739 V. State of Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253 63 Powely, In re, 169 App. Div. 170, 154 N. Y. Supp. 426 217, 685, 823 Powers, In re. Op. Sol. Dept. of L. 214 318 In re. Op. Sol. Dept. of L. 622 770 V. Smith, 3 B. W. O. C. 470, C. A 492 Preston, Ex parte, 72 Tex. Cr. R. 77, 161 S. W. 115 222 Price, In re. Op. Sol. Dept. of L. 163 346 V. Burnyeat, Brown & Co., 2 B. W. C. C. 337, C. A 603 V. Clover Leaf Coal Mining Co., 188 111. App. 27 90, 100, 109 V. Occidental Life Ins. Co., 169 Cal. 800, 147 Pac. 1175 278 v.' Tredegar Iron & Coal Co., 7 B. W. C. C. 387, C. A 455, 547 Prichard v. American Beet Sugar Co., 2 Cal. I. A. C. Dec. 341 226, 228, 268 Printy v. Jacobsen-Bade Co., 1 Cal. I. A. C. Dec. 519 535 Pritchard v. Torkington, 7 B. W. C. C. 719, C. A 455 Procknau, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 66 399 Proctor & Sons v. Robinson, 3 B. W. C. C. 41, C. A 606 Prohaska v. American Typewriter Co., 1 Conn. Comp. Dec. 116 715 Proprietors of Hays' Wharf, Limited, v. Brown, 3 B. W. C. C. 84 524 Proulx V. Hudson & Sons, Bulletin, No. 1, 111. 45 518 Pryce v. Penrikyber Nav. Colliery Co. 1 K. B. 221 225 fryce CASES CITED 948 Page Pryce v. Penrikyber Nav. Colliery Co., 4 W. C. C. 115, 0. A 252 Przykopenski v. Citizens' Coal Co., 270 111. 275, 110 N. E. 336 64 Puddy V. Fitch, Rep. Wis. Indus. Com. 1914-15, p. 17 130 Puget Sound Traction, Light & Power Co. v. Schleif, 220 Fed. 48, 135 C. C. A. 616 .106, 341 Pugh V. Dudley, 7 B. W. C. C. 528, C. A 467 Puljevlch V. Lime Kock ^gar Co., 1 Cal. I. A. C. Dec. 165 295, 500 Pumpanelli v. Aberthaw Const. Co., 1 Conn. Comp. Dec. 620. .- 656 Purdy V. Sault Ste. Marie (Mich.) 155 N. W. 597 750 Puridzy V. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 420 611 Purnell v. State Board of Education, 125 Md. 266, 93 Atl. 518 28 Purse V. Hayward, 85 L. T. 502 288 Puterbaugh, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 143 389 Putnam v. Murray, The Bulletin, N. Y. vol. 1, No. 4, p. 9 325, 776 Puza V. C. Hennecke Co., 158 Wis. 482, 149 N. W. 223 112, 113 Pyle V. Pyle, 158 111. 289, 41 N. E. 999 774 Pyrah, In re, Op. Sol. Dept. o£ L. 129 312 Q Queen v. Baird & Co., 6 F. 271, Ct. of Sess 407,560 V. Clarke, 2 Ir. B. 135 245 V. Hepburn, 11 U. S. (Cranch.) 296, 3 L. Ed. 348 776 Query of Naval Constructor of Boston Navy Yard, In re, Op. Sol. Dept. of L. 345 649 Quinlan v. Barber Asphalt Pav. Co., 84 N. J. Law, 510, 87 Atl. 127 643 Quinn v. McCallum, 2 B. W. C. 0. 339 514 V. McCallum, 46 S. L. R. 141, Ct. of Sess 511 Quong Wing v. Kirkendall, 39 Mont. 64, 101 Pac. 250 82 R Kacuija v. National Folding Box & Paper Co., 1 Conn. Comp. Dec. 522 718 RadcUffe v. Pacific Steam Nav. Co., 3 B. W. C. C. 185, C. A 676 V. Pacific Steam Nav. Co. (1910) 1 K. B. 685 599 Badigen v. Sanitary Dist. of Chicago, Bulletin No. 1, 111., p. 138. . .16, 100, 125 Eadley v. Nephew, 2 Cal. I. A. C. Dec. 78 484 Railroad Co. v. Beckwith, 129 TT. S.'26, 9 Sup. Ct. 207, 32 L. Ed. 585 62 V. Berry, 31 Tex. Civ. App. 408, 72 S. W. 1049 186 V. Mackay, 127 TJ. S. 205, 8 Sup. Ct. 1161, 1163, 32 L. Ed. 107. . . .65, 80, 81 V. Matthews, 174 U. S. 106, 19 Sup. Ct. 609, 43 L. Ed. 909 80 T. Schubert, 224 U. S. 603, 32 Sup. Ct. 589, 56 L. Ed. 911 66 V. Turnipseed, 219 U. S. 35, 81 Sup. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463, 2 N. C. C. A. 243 65, 82 949 OASES CITED Rees Page/ EaUroad Co. v. Westby, 102 C. O. A. 65, 178 Fed. 619, 47 L. R. A. (N. S.) 97 80 RaUy V. Island Transp. Co., 2 Cal. I. A. C. Dee. 608 583, 600, 678 Rainey v. McOlain, 1 Cal. I. A. C. Dec. 57 571, 680 Rains v. Diamond Match Co., 171 Cal. 326, 153 Pac. 230 834 Rakiec v. Delaware, L. & W. R. Co. (N. J. Sup.) 88 Atl. 953, 4 N. C. C. A. 734 630, 635, 840 Ralph V. Mitchell, 6 B. W. C. C. 678, C. A 756 Ramirez v. Binkley & Wayne, 3 Cal. I. A. C. Dec. 33 667 Ramlow v. Moon Lake Ice Co. (Mich.) 158 N. W. 1027 482, 550 Rankine v. Alloa Coal Co., 6 F. 375, Ct. of Sess.. 752 Ransom, In re. Op. Sol. Dept. of L. 103 187 Raper v. Harrison, 37 Kan. 243, 15 Pac. 219 763 Raphael, The, v. Brandy, 4 B. W. C. C. 307, H. L., 6 O. A..-. 586 RatclifC V. DeWitt Co., 1 Cal. I. A. O. Dec. 639 192 Rathbone v. Hopper, 57 Kan. 240, 45 Pac. 610, 34 L. R. A. 674 73 Ratzberg v. Deltox Grass Rug Co., Rep. Wis. Indus. Com. 1914-15, p. 34. . . 317 Ravenscroft v. Packard, 3 Cal. I. A. C. Dec. 24 207 Raymond y. Chicago, M. & St. P. R. Co. (C. C. A.) 233 Fed. 239 55, 58, 62, 67, 68 Rayner v. Sligh Furniture Co., 180 Mich. 168, 146 N. W. 665, L. B. A. 19il6A, 22, Ann. Cas. 1916A, 386, 4 N. C. C. A. 851. . . .325, 361, 823, 839 V. Sligh Furniture Co., Op. Mich. Indus. Ace. Bd. Bui. No. 3, p. 22. . . 393 Razziuni v. John Salter & Son, 1 Conn. Comp. Dec. 687 714 Read V. Bowman, 2 Cal. I. A. C. Dec. 681 702 Reardon v. Philadelphia & R. R. Co., 85 N. J. Law, 90, 88 Atl. 970, 4 N. C. C. A. 776 226, 643 Rebello t. Marin County Milk Producers, 1 Cal. I. A. C. Dec. 87 282, 778 Reck V. Whittlesberger, 181 Mich. 463, 148 N. W. 247, Ann. Cas. 1916C, 771, 5 N. C. C. A. 917 71, 466, 774, 777, 778, 780, 783, 795, 829 Redbum, In re, Op. Sol. Dept. of L. 154 344 Redfield v. Michigan Workmen's Compensation Mut. Ins. Co., 183 Mich. 633, 150 N. W. 362, 8 N. C. C. A. 889 793, 822, 838 Rediger v. Pekin Wagon Co., Bulletin No. 1, lU. p. 146 667, 773 Redondo, In re. Op. Sol. Dept. of L. 563 769 Reed v. Booth & Piatt Co., 1 Conn. Comp. Dec. 121 168, 424 V. Great Western R. Co., 2 B. W. C. C. 109, H. L 401 V. Orient Music Co., 1 Conn. Comp. Dec. 36 699 V. Rothe, Rep. Wis. Indus. Com. 1914^15, p. 33 244, 248 V. Smith, Wilkinson & Co., 3 B. W. C. C. 223, C. A 120 V. Washington Fire & Marine Ins. Co., 138 Mass. 572 72 V. Winn, 2 Cal. I. A. C. Dec. 687 197 V. Zelinsky, 1 Cal. I. A. C. Dec. 496 684 Reeks v. Kynoch, Limited, 4 B. W. C. C. 14, 0. A 562 Rees, In re, Op. Sol. Dept. of L. 599 250 Bees OASES CITED 950 Page Kees V. Penrikyber Nav. Colliery Co., 87 L. T. 661, 6 W. 0. C. 117 229, 245 V. Powell Duffryn Steam Coal Co., 4 W. 0. C. A. 17 551 V. Thomas, 1 W. C. C. A. 9, C. A 407 V. Thomas, 4 W. C. C. A. 9 416 Reese v. Yale & Towne Mfg. Co., 1 Conn. Comp. Dee. 154 349, 447, 700, 749 Reeves, In re. Op. Sol. Dept. of L. 73 -. 188 Refuge Assur. Co. v. Millar, 5 W. B. C. C. 522, Ot. of Sess 414, 752 Reger v. McClond River iSimber Co., 1 Cal. I. A. C. Dee. 567 588 Reich V. Imperial, 1 Cal. I. A. C. Dec. 337 294, 503 Reid V. State of Colorado, 187 U. S. 137, 23 Sup. Ct. 92, 47 L. Ed. 108. .. . 45 V. Thomas Elevator Co., Bulletin No. 1, 111. p. 144 299 Reimers v. Proctor Pub. Co., 85 N. J. Law, 441, 89 Atl. 931, 4 N. C. C. A. 738 310, 392, 464, 467 Reinburg, In re. Op. Sol. Dept. of L. 398 572 Reis V. Standard Portland Cement Co., 2 Cal. I. A. C. Dec. 869.'. 261 Reisinger, In re, Op. Sol. Dept. of L. 161 345 Reithel, In re, 222 Mass. 163, 109 N. B. 951, L. R. A. 1916A, 304, 11 N. C. C. A. 235 351, 437 Remsnider v. Union Savings & Trust Co., 89 Wash. 87, 154 Pac. 135 330 Remlow v. Moon Lake Ice Co. (Mich.) 158 N. W. 1027 823 Renfrew v. McCraw, Limited, 7 B. W. C. C. 898 401 Rennie v. Reid, 1 B. W. C. C. 324, Ct. of Sess 191, 200 Benwick, In re, Op. Sol. Dept. of L. 172 345 Replogle V. Seattle School Dist. No. 1, 84 Wash. 581, 147 Pac. 196 340, 737 Report of Nevada Industrial Commission will be found in this table under "Nevada." Reseberg v. Hamilton Mfg. Co., Rep. Wis. Indus. Com. 1914-15, p. 14 703 Ress V. Toungstown Sheet & Tube Co., Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 194 236, 290 Revere Rubber Co., In re, 222 Mass. 461, 111 N. B. 166 584 Revie V. Cumming, 5 B. W. C. C. 483, Ct. of Sess 454, 455 Revita v. Royal Indemnity Co., 2 Mass. Wk. Comp. Cases, 352 671 Reynolds v. Mound City Water & Light Co., Bulletin No. 1, 111. p. 123 390, 571 V. Smith, 1 Cal. I. A. C. Dec. 35 575 Rheinwald, In re, 168 App. Div. 425, 153 N. T. Supp. 598 5, 9, 15, 16, 26, 170, 171, 172, 175, 199, 220, 330, 829 Rhyner v. Hueber Bldg. Co., 171 App. Div. 56, 156 N. X. Supp. 903 233, 234, 823, 825, 827 Richards v. Travelers' Ins. Co., 89 Cal. 170, 26 Pac. 762, 23 Am. St. Rep. , 455 278 Richardson v. Builders' Exch. Ass'n, The Bulletin, N. Y., Vol. 1, No. 10, p. 18 495, 755 V. Denton Colliery Co., 6 B. W. C. C. 629, 0. A 394 951 CASES CITED Rogers Richardson v. Morris, 7 B. W. O. C. 130. O. A 37T V. Sears, Roebuck & Co., 271 111. 325, 111 N. E. 85 64 V. Avonmore, The, 5 B. W. C. C. 34, C. A 349, 471 Rlcherson, In re, Op. Sol. Dept. of L. 775 649 Ridler v. Little Co., Op. Mich. Indus. Ace. Bd. Bui. No. 3, p. 27 169, 635 Rldeout Co. V. PlUsbury (Cal.) 159 Pac. 435 311, 355, 509, 554, 778, 824 RlefC V. Sacramento, 2 Cal. A. I. C. Dec. 223 381, 412 Rlggs, In re, Op. Sol. Dept. of L. 155 344 Riley v. Holland & Sons, 4 B. W. C. C. 155, C. A 356, 363 V. Walsh, 1 Conn. Conrp. Dec. 505 655 Rintoul V. Dalmeny Oil Co., 1 W. B. C. 340 229 Ripley, In re, Op. Sol. Dept. of L. 110 187 Rlsdale v. Kilmarnock, The, 8 B. W. C. O. 7, C. A 405 Rist T. Larkln & Sangster, 171 App. Div. 71, 156 N. Y. Supp. 875. .300, 408, 414 Ritchings v. Bryant, 6 B. W. C. C. 183, C. A 200 Rives V. Smith, 2 Cal. I. A. C. Dec. 972 798 Roadhouse v. Wells, 2 Cal. I. A. C. 251 206 Robblns v. Original Gas Engitie Co. (Mich.) 157 N. W. 437 275, 276, 279, 280, 295,587 Roberts, In re. Op. Sol. Dept. of L. 127 342 V. Charles Wolf Packing Co., 95 Kan. 723, 728, 149 Pac. 413 653, 761 V. Trollop & Sons & Colls, 7 B. W. C. O. 679, C. A 399 V. Whaley (Mich.) 158 N. W. 209 226, 241 Robertson t. Allan Bros. & Co., 1 B. W. C. C. 172, C. A 451 V. Hall Bros. S. S. Co., 3 B. W. C. C. 368, C. A 245 Robinson, In re, Op. Sol. Dept. of L. 386 647 In re. Op. Sol. Dept. of L,. 389 573 V. Durfy, 2 Cal. I. A. C. Dec. 1060 143 Robison v. Newark Reflector Co., Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 167 215, 695 Robltson V. Panama Fruit Co., 1 Cal. I. A. C. Dec. 385 693 Robson V. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 235, C. A 598 Robson, Eckford & Co. v. Blakey, 5 B. W. C. C. 536, Ct. of Sess 432 Rocca V. Stanley Jones & Co., 7 B. W. C. C. 101, C. A 519 Rock, In re. Op. Sol. Dept of L. 573 249, 256 Rockwell, In re, Op. Sol. Dept. of L. 307 387 V. Lewis, 168 App. Div. 674, 154 N. Y. Sup. 893 630 Rodger v. Paisley School Board, 5 B. W. C. C. 547, Ct. of Sess 432 Rodriguez, In re. Op. Sol. Dept. of L. 227 292 In re. Op. Sol. Dept. of L. 551 769 Roesch V. Reo Pac. Co., 2 Cal. I. A. O. Dec. 486 501 Roger V. School Board (1912) S. C. 583 429 Rogers V. Cardiff Corporations, 8 W. O. O. 51 28 Rokos OASES CITED 952 Page Rokos V. Glares & Papas, 2 Cal. I. A. O. Dec. 993 803 Roles V. Pascall & Son, 4 B. W. 0. O. 148, C. A , 754 Roll, In re, Vol. 1, No. 7, Bill. Ohio Indus. Com. p. 63 353 Rollins, In re. Op. Sol. Dept. of L. 153 348 RoUnik v. LankersMm, 1 Cal. I. A. C. Dee. 45 293, 794 Rolpli V. Morgan, 2 Cal. I. A. C. Dec. 543 494 Roman v. American Steel & Wire Co.j 1 Conn. Comp. Dec. 566 510 Rongo.v. R. Waddington a»Sons, 87 N. J. Law, 395, 94 Atl. 408, 9 N. O. C. A. 402 122 Roos V. State, 6 Minn. 428 (Gil. 291) 63 Roper V. Greenwood, 83 L. T. 471 288 Rose V. Los AngeleSi 2 Cal. I. A. C. Dec. 574 461, 495 V. Morrison & Mason, 4 B. W. C. C. 277, 0. A 455 V. North Pac. S. S. Co., 2 Cal. I. A. C. Dec. 57 348, 553 T. Pickrell, 1 Cal. I. A. C. Dec. 85 210, 219 Rosenberg v. Western Mercantile Co., 2 Cal. I. A. C. Dec. 673 217 Rosenquist v. Bowring & Co., 1 B. W. C. C. 395, C. A., 576 V. Bowring & Co., 2 Cal. I. A. C. Dec. 673 174 Ross V. Aberthaw Const. Co., 1 Conn. Comp. Dec. 533 718 V. Casualty Co. of America, 2 Mass. Wk. Comp. Cases, 663 448 V. Erlckson Const. Co., 89 Wash. 634, 155 Pac. 153. . . .13, 20, 520, 732, 736 Rossi V. Standard Oil Co., 2 Cal. I. A. C. D«c. 307. 243, 261, 269, 687 Rossow V. Denvir, Bulletin No. 1, 111., p. 141 801 Rothwell V. Davies, 5 B. W. C. C. 141, C, A 528 Rouda & Spivoek v. Heenan, 3 Cal. I. A. C. Dec. 36 309 Rouner v. Columbia Steel Co., 2 Cal. I. A. C. Dec. 207 621 Rounsaville v. Central R. Co,, 87 N. J. Law, 371, 94 Atl. 392. . . .34, 41, 48, 49, 92, 99, 101 Rowland v. Wright, 1 B. W. C. C. 192, C. A 381, 426 Ruabon Coal Co. v. Thomas, 3 B. W. C. C. 32, C. A 528 Rudder v. Ocean Shore R. Co., 1 Cal. I. A. C. Dec. 209 283, 352, 438, 590, 796 Rugan, In re. Op. Sol. Dept. of L. 285 365 Rulings of Washington Industrial Accident Insurance Commission, wiU be found in this table under "Washington, Rulings of Industrial Acci- dent Insurance Commission." RumboU V. Nunnery Colliery Co., 80 L. T. 42, 1 W. C. C. 28 823 V. Nunnery ColUery Co., 1 W. C. C. 29, C. A.. 559 Ruprecht v. Dominguez Land Corp., 3 Cal. I. A. C. Dec. 5 193 V. Red River Lumber Co., 2 Cal. I. A. C. Dec. 864. . .550, 567, 568, 587, 694 Ruth V. Witherspoon-Engler Co., 98 Kan. 179, 157 Pac. 403 504, 519, 774 Ryalls V. Mechanics Mills, 150 Mass. 190, 22 N. B. 766, 5 L. R. A. 677 29 Ryan v. California Baking Co., 2 Cal. I. A. O. Dec. 190 516 V. Griswold & Davis, 1 Conn. Comp. Dec. 510 804 953 OASES CITED Scbaefler Page Byan v. Hartly, 5 B. W. 0. C. 407, 0. A 726 V. Metropolitan Chair Co., 1 Conn. Comp. Dec. 37 174 T. Tlpperary County Council, 5 B. W. C. C. 578, C. A 212 Saari v. Pacific Lumber Co., 2 Cal. I. A. 0. Dec. 182 451, 452, 453 Sabella v. Brazileiro, 86 N. J. Law, 505, 91 Atl. 1032, 6 N. C. O. A. 958 201, 203 V. Brazileiro, 87 N. J. Law, 710, 94 Atl. 1103 201 Sabre's Case, 86 Vt. 347, 85 Atl. 695, Ann. Cas. 1915C, 1269 72 Saccoccio v. Bradley Contracting Co., The Bulletin, N. Y., vol. 1, No. 5, p. 11 580 Sadowski v. Thomas Furnace Co., 157 Wis. 443, 146 N. W. 770 25 St. John V. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 376 400 St. Louis, I. M. & S. R. Co. v. Commercial Union Ins. Co., 139 U. S. 223, 235, 11 Sup. Ct. 554, 557, 35 L. Ed. 154 164 Sala V. MartoreUa & Giannesi, The Bulletin, N. T. Vol. 1, No. 6, p. 11 124 Salem Hospital v. Olcott, 67 Or. 448, 136 Pac. 341, 4 N. C C. A. 614 696 Salus V. Great Northern R. Co., 157 Wis. 546, 147 N. W. 1070. .100, 112, 114, 284 Salvatore v. Andreani & Gelormino, 1 Conn. Comp. Dec. 169 254, 260, 789 V. New England Casualty Co., 2 Cal. I. A. 0. Dec' 355. . .517, 520, 792, 810 Sampo V. Yellow Aster Min. & Mill. Co., 2 Cal. I. A. C. Dec. 539 613 Sams V. Komas & Dorros, 2 Cal. I. A. C. Dec. 285 702 Sandberg v. Kruse, 1 Cal. I. A. C. Dec. 441 39, 40, 41 V. San Pedro, Los Angeles & Salt Lake B. R. Co., 2 Cal. I. A., O. Dec. 694 53 Sanders, In re. Op. Sol. Dept. of L. 114 , 187 Sanderson v. Parkuison & Sons, 6 B. W. C. C. 648, C. A 752 V. Wright, 7 B. W. C. C. 141, C. A 391 Sanderson's Case, In re (Mass.) 113 N. E. 355 378, 420, 796, 824 Sanford v. Connecticut Co., 1 Conn. Comp. Dec. 485 561 San Francisco Stevedoring Co. v. Pillsbury, 2 Cal. I. A. C. Dec. 298, 170 Cal. 321, 149 Pac. 586, 9 N. O. C. A. 37 741 Sargent, In re. Op. Sol. Dept. of L. 275 292 Saudek v. Milwaukee Electric Ry. & Light Co. (Wis.) 157 N. W. 579 155 Saunders v. Oxnard Home Telephone, 1 Cal. I. A. O. Dec. 636 586, SOS Savage, In re, 222 Mass. 205, 110 N. E. 283 464, 465 Sayers v. Girard, 1 Cal. I. A. C. Dec. 352 180, 209 Sayles v. Foley (R. I.) 96 Atl. 340 58, 60, 64, 65, 66, 67, 69, 85, 88 Scales V. West Norfolk Farmers' Manure & Chemical Co., 6 B. W. 0. C. 188, C. A 308 Scanlan, In re, Op. Sol. Dept. of L. 724 464 SchaefCer v. De Grottola, 85 N. J. Law, 444, 89 Atl. 921, 4 N. C. C. A. 582 201, 585 Schatz OASES CITED 954 Page Schatz, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 60 254, 369 Schebrosky V. Morrison & O'Neil, 1 Cal. I. A. O. Dec. 401 664, S09 Schlechter, In re, Op. Sol. Dept. of L. 331 403 Schlegal v. Frankfort General Ins. Co., 2 Cal. I. A. C. Dec. 491 714 Schlosser, In re. Op. Sol. Dept. of L. 133 342 Schmidt v. Menominee Bay Shore Lumber Co., Rep. Wis. Indus. Com. 1914-15, p. 22 806 V. O. K. Baking Co., 1 tJonn. Comp. Dec. 683 305, 804 V. O. K. Baking Co., 90 Conn. 217, 96 Atl. 963 30, 751, 754 V. William Pfeifer Berlin Weiss Beer Brewing Co., Bulletin No. 1, 111., p. 118 137 Schmitt, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 81 379 Schmitz V. Appleton, Bui. Wis. Indus. Com. 1912-13, p. 31 177 SchmoU v. Weisbrod & Hess Brewing Co. (N. J. Sup.) 97 Atl. 723 439, 458, 505, 815 Schoenreiter v. Quincy Mining Co., Mich. Wk. Comp. Cases (1916) 2 674 Schofield V. Orrell Colliery Co., 2 B. W. C. C. 294, H. L., 301 C. A 242 Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. Ed. 95 44 Schrewe v. New York Cent. R. R. Co. (Mich.) 158 N. W. 337 819 Schroeb, Earl Wl, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 1.32 364 Schultz V. Pacific Electric R. Co., 2 Cal. I. A. C. Dec. 709 791 Schuman v. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 599 118 Schwab V. Emporium Forestry Co., 167 App. Dlv. 614, 153 N. Y. Supp. 234 620 Schwanz v. Wujek, 163 Mich. 492, 128 N. W. 731 229 Schwartz v. India Rubber, Gutta Percha & Telegraph Works Co., 5 B. W. O. C. 390, 2 K. B. 299 (1912) W. M. 98, 28 T. L. R. 331, 81 L. J. K. B. N. S. 780 (1912) W. C. R. E. P. 190, 106 L. T. N. S. 706 32 Schweitzer v. Hamburgh American Line, 149 App. Div. 900, 134 N. Y. Supp. 812 33 V. Hamburg American Line, 78 Misc. Rep. 448, 138 N. Y. Supp. 944 33, 37 Schwenlein, In re. Vol. 1, No. 7, Bui. Indus. Com. p. 136 353 Scott, In re. Op. Sol. Dept. of L. 595 249 V. .^Etna Life Ins. Co., 1 Cal. I. A. C. Dec. 343 689, 690, 692, 695, 705 V. Payne Bros., 85 N. J. Law, 446, 89 Atl. 927, 4 N. C. C. A. 682. . . .92, 104, 175, 201, 325, 347, S93, 397, 415, 437, 839 V. What Cheer Coal Co., Mich. Wk. Comp. Cases (1916) 1 282 Sczerbowicz v. New Britain, l^Conn. Comp. Dec. 671 527 Seaboard Air Line R. Co. v. Florida, 203 U. S. 261, 27 Sup. Ct. 109, 51 L. Ed. 175 780 V. Horton, 233 U. S. 501, 34 Sup. Ct. 638, 58 L. Ed. 1068, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475, 8 N. O. C. A. 834 52 ■955 CASES CITED Sheppard Page Searles V. Connecticut Co., 1 Conn. Comp. Dec. 97 702, 822 Sebestlni v. Fred T. Ley & Co., 1 Conn. Comp. Dec. 569 531 Sedlock V. Carr Coal Min. & Mfg. Co., 98 Kan. 680, 159 Pac. 9 369, 452 Sefton V. Midway Driller Pub. Co., 2 Cal. I. A. C. Dec. 987 498 Seiberllch v. Buckingham & Hecht, 1 Cal. I. A. C. Dec. 372 310 Sellos, In re, Op. Sol. Dept. of L. 387 595 Selsus V. J. I. Case Threshing Mach. Co., Rep. Wis. Indus. Com. 1914^15, p. 22 104 Semi V. Rolandi, 1 Cal. I. A. C. Dec. 184 582 Senter v. Klyce, 2 Cal. I. A. C. Dec. 704 484 Septimo, In re, 219 Mass. 430, 107 N. E. 63, 7 N. C. C. A 906. .607, 618, 822, 830 Sexton V. Massachusetts Bonding & Insurance Co., 1 Cal. I. A. 0. Dec. 48 241, 244, 253 V. Newark Dist. Tel. Co., 84 N. J. Law, 85, 86 Atl. 451, 3 N. C. C. A. 569, affirmed 86 N. J. .Law, 701, 91 Atl. 1070. .. .21, 31, 66, 67, 86, 88, 91, 92, 95, 108, 571 Shade v. Ash Grove Lime & Portland Cement Co., 92 Kan. 146, 139 Pac. 1193, Ann. Rep. Kan. B. of L. 1913, p. 184, 5 N. C. C. A. 763. . .101, 730 V. Ash Grove Xime & Portland Cement Co., 93 Kan. 257, 144 Pac. 249 11, 64, 65, 66, 67, 73, 83, 90, 99 Shafer v. Parke, Davis & Co., Mich. Wk. Comp. Cases (1916) 7 195, 748 Shaffer, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 7 228, 246, 252, 790 V. Southern California Hardwood Mfg. Co., 2 Cal. I. A. C. Dec. 891. . 218 Shanahan v. Monarch Engineering Co., 92 Misc. Rep. 466, 156 N. Y. Supp. 143 738 Shannessy v. Chicago, Bulletin No. 1, 111., p. 160 589 Shapiro v. New Haven Carriage Co., 1 Conn. Comp. Dec. 508 718 Sharman v. HoUiday & Greenwood, 6 B. W. C. C. 147, C. A 676 Sharp V. Johnson & Co., 7 W. C. C. 28, 30, C. A 360 Shaw V. Foley, 1 Cal. I. A. C. Dec. 629 168 V. Massachusetts Employees' Ins. Ass'n, 2 Mass. Wk. Comp. Cases, 501 715 V. Wigan Coal & Iron Co., 3 B. W. C. C. 81, C. A 435 Shay V. Christian Feigenspan Ctorp., 1 Conn. Comp. Dec. 232 413 Shea V. United States Casualty Co., 2 Mass. Wk. Comp. Cases, 481 568 V. Western Grain & Sugar Products Co., 2 Cal. I. A. C. Dec. 550 270, 312, 470 Sheehy v. Great Southern & W. R. Co., 6 B. W. C. C. 927, O. A 381 Sheeran, In re, 28 Op. Atty. Gen. 254 542 Sheerin v. F. & J. Clayton & Co., 2 Ir. R. 110, O. A 278, 300 V. F. & J. Clayton & Co., 3 B. W. C. C. 418 544 Sheldon v. Needham, 7 B. W. 0. C. 471, O. A 418, 422 Shepard v. Jacobs, 204 Mass. 110, 90 N. E. 392, 393, 26 L. R. A. (N. S.) 442, 134 Am. St. Rep. 648 122 Sheppard, In re, Op. Sol. Dept. of L. 98 187 Sheridan OASES CITED 956" Page Sheridan v. P. J. Grool Const. Co. (N. Y.) 112 N. E. 568, reversing (Sup.) 155 N. X. Supp. 859 331 Sheriff v. Wilson, 3 F. 661, Ct. of Sess 359 Sherlock v. Ailing, 93 tJ. S. 99, 23 L. Ed. 819 45 Sherwood v., Johnson, 5 B. W. C. C. 686, C. A 310 Shetler, In re, Op. Sol. Dept. of L. 108 186 Shevchenko v. Detroit United Ry. (Mich.) 155 N. W. 423 105, 827 Shields v. Miller, 2 Cal. 1. 1). Dec. 1032. 478 Shinnick v. Clover Farms Co., 169 App. Div. 236, 154 N. Y. Supp. 423, 9 N. C. C. A. 342 597, 636, 737, 73a V. Clover Farms Co., 90 Misc. Eep. 1, 152 N. Y. Supp. 649 737 Shipp V. Frodlngham Iron & Steel Co., 6 W. R. C. C. 1, 0. A 575 Shirt V. Calico Printers' Ass'n., 2 B. W. C. C. 342 518 Shmidt, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 21 34 Shouler v. Greenberg, 1 Cal. I. A. C. Dec. 146 , 204, 213, 618, 791 Shushke v. Vail & Vickers, 2 Cal. I. A. C. Dec. 182 61& Sickles V. Ballston Refrigerating Storage Co., 171 App. Div. 108, 150 N. Y. Supp. 864 334 Siemientkowski v. Berwind White Coal Mining Co. (N. J.) 92 Atl. 909 839 Sieplenska v. New York Cent. R. R., 4 N. Y. St. Dep. Rep. 395 412 Sigman v. Columbia Oil Producing Co., 3 Cal. I. A. C. Dec. 2 723 Silcock& Sonsv. Golightly, 8 B. W. C. C. 48, C. A ' 605 Sileg V. Southern California Edison Co., 2 Cal. I. A. C. Dec. 988 479' Silvkv. Common, 1 Cal. I. A. C. Dec. 644 790, 806 V. Kopperud, 2 Cal. I. A. C. Dec. 681 155, 158 V. Travelers' Ins. Co., 2 Mass. W!k. Comp. Cases 597 494 Silveria v. Connecticut Quarries Co., 1 Conn. Comp. Dec. 509 594 Silverman v. Zibulsky Bros., The Bulletin, N. Y. Vol. 1, No. 6, p. 13 316 Simmons V. Faulds, 3 W. C. C. 169, C. A. 212 v. Heath laundry Co., 3 B. W. C. C. 200, 179 V. White Bros., 80 L. T. 344, 1 W. C. C. 89 225 Slmonelli v. Sargent & Co., 1 Conn. Comp. Dec. 553 676. Simpson, In re, Op. Sol. Dept. of L. 316 373 In re. Op. Sol. Dept. of L. 319 387 In re. Op. Sol. Dept. of L. 675 316 V. Parafflne Paint Co., 1 Cal. I. A. C. Dec. 76 516, 690, 716 V. Shepard, 230 U. S. 352, 33 Sup. Ct. 729, 57 L. Ed. 1571, 48 L. R. A. (N. S.) 1151, Ann. Cas.*1916A, 18 45. Sinclair, Limited v. Carlton, 5 B. W. C. C. 937, Ct. of iSess 400 Sinner v. Colchester, 1 Conn. Comp. Dec. 286 123- Sinnes v. Daggett, 80 Wash. 673, 142 Pac. 5 612, 613, 616, 624, 818 Slnslgalll V. Suzlo, 1 Conn. Comp. Dec. 455 48& Sipe V. State, 86 Ohio St. 80, 87, 99 N.,B. 208, 210 28- Slrl V. Arata & Co., 2 Cal. I. A. C. Dec. 645 454 ■957 CASES CITED Smith Page Sirica v. ScovlU Mfg. Co., 1 Conn. Comp. Dec. 171. 519, 568, 703 Sittert, In re. Op. Sol. Dept. of L. 90 187 Skailes v. Blue Ajachor Line, 4 B. W. C. C. 16, O. A 574 Skates v. Jones & Co., 3 B. W. O. C. 461, O. A 127 Skidmore v. Brown, 2 Cal. I. A. C. Dec. 556 217 Skill, In re. Op. Sol. Dept. of L. 157 344 Skinner v. Connecticut School for Imbeciles, 1 Conn. Comp. Dec. 106. .171, 182 V. Stratton Fire Clay Co., Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 103. . ■%i' 110, 124, 390 Skoczylois v. Vincour, The Bulletin, N. X. Vol. 1, No. 6, p. 14 143 Skougstad v. Star Coal Co., Hep. Wis. Indus. Com. 1914^15, p. 31 428, 431 Slade V. Taylor, 8 B. W. C. C. 65, C. A 419, 423 Slater v. Blyth Shipbuilding & Dry Docks Co., 7 B. W. O. C. 193, O. A 677 V. New Britain Trap Rock Co., 1 Conn. Comp. Dec. 501 527 Slattery v. Ocean Accident & Guarantee Co., 2 Cal. I. A. C. Dec. 522 360, 424, 425 SlinglufC V. Weaver, 66 Ohio St. 621, 64 N. E. 574 29 Smale v. Wrought Washer Mfg. Co., 160 Wis. 331, 151 N. W. 803 730, 733 Small, In re, Op. Sol. Dept. of L. 164 344 V. Coles, 2 Kings Bench, 821 28 Smith, In re. Op. Sol. Dept. of L. 186 345 In re, Op. Sol. Dept. of L. 541 , 652 In re, Op. Sol. Dept. of L. 745 648 In re. Op. Sol. Dept. of L. 759 , 494 V. Atchison, T. & S. F. B. Co., 2 Cal. I. A. C. Dec. 851 385 V. Buxton, 8 B. W. C. C. 196, C. A 200 V. Christopher's Market, 2 Cal. I. A. C. Dec. 536 235 V. Cord Taton ColUery Co., 2 W. C. C. 121, C. A 530 V.Fife Coal Co., 7 B. W. C. C. 253, H. L 399, 404 V. Forscythe, 1 Conn. Comp. Dec. 190 107 •K. General Motor Cab Co. (1911) A. C. 188, 1 N. C. C. A. 576 179 V. Hardman, Limited, 6 B. W. C. O. 719 778 V. Hayashi Floral Store, 2 Cal. I. A. C. Dec. 526 205 V. Horlock, 6 B. W. C. C. 638, C. A 181 V. Industrial Ace. Commission of California, 2 Cal. I. A. C. Dec. 439, 26 Cal. App. 560, 147 Pac. 600, 601 51, 785, 822, 826, 833 V. Israel Bros., Bulletin No. 1, lU. p. 164 800, 805 V. Lancashire & Y. R. Co., 1 W. C. C. 1, C. A 401 V. McPhee Stevedoring Co., 1 Cal. I. A. C. D«c. 197 461, 490 V. Morrison, 5 B. W. C. 0. 162, C. A 449 V. National Sash & Door Co., 96 Kan. 816, 153 Pac. 533 234, 242 V. Price, 168 App. Div. 421, 153 N. Y. Supp. 221 26, 176, 329, 336, 352 V. South Normantown Colliery Co., 5 W. C. C. 14, C. A.. . 356, 367, 401 v. Stanton Ironworks Co. Collieries, 6 B. C. 0. 239, C. A. 474 Smith CASES CITED 958 Page Smith V. Western States Portland Cement Co., 94 Kan. 501, 146 Pae. 1026 734 Smith's Dock Co. v. Redhead & Sons, 5 B. W. C. C. 449 157 Smolensk! v. Eastern Coal Dock Co., 87 N. J. Law, 26, 93 Atl. 85, 9 N. O. C. A. 531 585, 595^ Smrakar v. Pacific Lumber Co., 2 Cal. I. A. C. Dec. 87 514, 680 Sneddon v. Addie & Sons' Collieries, 6 F. 992 246 V. Greenfield Coal & Brick Co., 3 B. W. C. C. 557, Ct. of Sess 406 Snell V. Bristol Corporation*7 B. W. C. C. 236, C. A 592 Snelling y. Norton Hill Colliery Co., 6 B. W. 0. C. 506, C. A 759^ Snow V. Harris, 2 Cal. I. A. C. Dec. 393 207 V. Winkler, 1 Conn. Comp. Dec. 76 211 Snyder v. Goodwin, 1 Cal. I. A. C. Dec. 433 799^ V. Pacific Tent & Awning Co., 3 Cal. I. A. C. Dec. 1 489, 513, 793 Socquet v. Connecticut Mills Co., 1 Conn. Comp. Dec. 653 381, 454 Soderstrom v. Hart-Wood Lumber Co., 2 Cal. I. A. C. Dec. 688 553 SoUe V. New York, N. H. & H. R. R., 4 N. Y. St. Dep. Rep. 393 448 Solloway v. Kopperud, .2 Cal. I. A. C. Dec. 187 615 ' Soloski V. Strickland, 1 Conn. Comp. Dec. 564 125 Sonsmith v. Pere Marquette R. Co. (Sonesmith's Case) 173 Mich. 57, 73, 138 N. W. 347, 356, 360 80, 81 Soon Ring's Case, 113 U. S. 703, 5 Sup. Ct. 731, 28 L. Ed. 1145 83 Sorensen v. Gate & Co., 6 B. W. C. 0. 279, Ct. of Sess 662 V. Menasha Paper Co., 56 Wis. 342, 14 N. W. 446 475 Sorge V. Aldebaran Co., 3 N. Y. St. Dep. Rep. 390 412 Southall V. Cheshire County News Co., 5 B. W. O. C. 251, C. A 509 Southerland v. Cowell Lime & Cement Co., 2 Cal. I. A. C. Dec. 994 72a Southern California Hardwood & Mfg. Co. v. Adams, 1 Cal. I. A. C. Dec. 406 554, 558 Southern Pac. Co. v. Pillsbury, 2 Cal. I. A. C. Dec. 443, 170 Cal. 782, 151 Pac. 277 51 Southwestern Surety Ins. Co. v. PUlsbury (Cal.) 158 Pac. 762 ,. 277, 278, 497, 799, 800, 822 Souza V. Stangland & Co., 2 Cal. I. A. C. Dec. 765 787 Spangler v. Philbin, 2 Cal. I. A. C. Dec. 158 513, 520 Spears v. Santa Monica, 2 Cal. I. A. C. Dec. 1016 132 Spence v. Baird & Co., 5 B. W. C. C. 542 308 Spencer, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. 179 237 V. Dowd, 1 Cal. I. A. C. Dec. 46 464 V. Gibson, 1 Cal. I. A. C. Dec. 565 609- V. Scanlon, 1 Conn. Comp. Dec. 280 566 Spiers v. Elderslie S. S. Co., 2 B. W. C. C. 205 124, 128 Spillane v. State of Connecticut, 1 Conn. Comp. Dec. 505 3&8 Sponatski, In re (Sponatski's Case) 220 Mass. 526, 527, 528, 108 N. B. 466, L. R. A. 1916A, 333 270, 326, 471, 483, 505, 508, 779, 822 959 CASES CITED State Page- Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N. W. 657, L. R. A. 1916A, 17, 9 N. C. C. A. 647 398, 402, 458, 839 V. Estate of P. D. Beckwith, 183 Mich. 323, 149 N. W. 971 729, 819, 825 Spottsville V. Western States Portland Cement Co., 94 Kan. 258, 146 Pac. 356 108, 112 Spratt V. Sweeney & Gray Co., 168 App. Div. 403, 153 N. T. Supp. 505, 9 N. C. C. A. 918 9, 26, 34, 38, 141 Spring V. J. G. Miller Co., 3 Cal. I. A. C. Dec. 4 710 Springer, In re, Op. Sol. Dept. of L. 267 306 Stachuse v. Fidelity & Casualty Co. of New York, 2 Wk. Comp. Cas. 324 617 StadtmuUer v. Travelers' Ins. Co., The Bulletin, N. T., vol. 1, No. 4, p. 9. . 776 Stagg V. Benjamin, 1 Conn. Comp. Dec. 405 168 Staley v. Illinois Cent. B. Co., 268 111. 356, 109 N. B. 342, L,. R. A. 1916A, 450 51 V. Illinois Cent. R. Co., 186 111. App. 593 662 Stampick v. American Steel & Wire Co., 1 Conn. Comp. Dec. 474 495, 778 Stanland v. North Eastern Steel Co., 2 K. B. 425, C. A 246 Stanley v. F. R. Wood & W. H. Dolson Co., The Bulletin, N. Y., vol. 1, No. 4, p. 10 491 Stanton v. Masterson, 2 Cal. I. A. C. Dec. 707 143, 189 Stapleton v. Dinnington Main Coal Co., 5 B. W. C. C. 602, C. A 300, 468 State V. Alderman, 81 N. J. Law, 549, 79 Atl. 283 231 V. Brown, 97 Minn. 402, 106 N. W. 477, 5 L. R. A. (N. S.) 827. . . .x . . . 82 V. Business Property Security Co., 87 Wash. 627, 152 Pac. 334 340 V. Chicago, M. & P. S. R. Co., 80 Wash. 435, 141 Pac. 897 341 V. Clausen, 63 Wash. 535, 116 Pac. 7 82 V. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466, 3 N. C. C. A. 599. . .7, 8, 10, 11, 19, 27, 58, 59, 62, 64, 65, 67, 68, 81, 82, 89, 95 V. Corbett, 57 Minn. 345, 59 N. W. 317, 24 L. B. A. 498 63, 82 V. Creamer, 85 Ohio St. 349, 386, 97 N. E. 602, 603, 39 L. B. A. (N. S.) 694, 1 N. C. C. A. 30 5, 8, 31, 64, 66, 70, 71, 83, 85, 86, 98 V. Fisher, 129 Wis. 57, 108 N. W. 206 827 V. Griffin, 69 N. H. 1, 39 Atl. 260, 41 L. R. A. 177, 76 Am. St. Rep. 130 65 V. Justus, 85 Minn. 279, 88 N. W. 759, 56 L. R. A. 757, 89 Am; St. Rep. 550 82 v; Losby, 115 Wis. 57, 90 N. W. 188 827 V. Mountain Timber Co., 75 Wash. 581, 135 Pac. 645, 5 N. C. C. A. 811 58, 64, 65, 67, 70, 96 V. Ohio Industrial Commission, 92 Ohio St. 434, 111 N. E. 299 4, 8, 12, 17, 29, 92, 254, 662, 786 T. Powers, 38 Ohio St. 63 80 V. Seattle, 73 Wash. 396, 132 Pac. 45 58, 59, 64, 66, 151, 152 V. Speyer, 207 Mo. 540, 106 S. W. 505, 14 X,. R. A. (N. S.) 836 735 state CASES CITED 960 Page State V. Standard Oil Co., Ill Minn. 85, 126 N. W. 527 82 V. Westfall, 85 Minn. 437, 89 N. W. 175, 57 L. R. A. 297, 89 Am. St. Rep. 571 82 V. Willcuts, 143 Wis. 449, 453, 128 N. W. 97 827 State Compensation Insurance Fund v. Breslow, 1 Cal. I. A. C. Dec. 194. . 260 V. Jacobsen, 1 Cal. I. A. C. Dec. 311 657 V. Lemon, 2 Cal. I. A. C. Dec. 507 363, 424, 786 State ex rel. Anseth v. District Court (Minn.) 158 N. W. 713 410, 436, 661, 712, 837 Beek v. Wagner, 77 Minn. 483, 80 N. W. 633, 778, 1134, 46 L. R. A. 442, 77 Am. St. Rep. 681 82 Carlsoii v. District Court, 131 Minn. 96, 154 N. W. 661, 11 N. C. C. A. 630 258 Casualty Co. of America v. District Court (Minn.) 158 N. W. 700.. 611, 612 City of Duluth v. District Court (Minn.) 158 N. W. 790, 791 183, 663 City of Northfleld v. District Court, 131 Minn. 352, 155 N. W. 103, 11 N. C. C. A. 366 25, 749 Coffey V. Chittenden, 112 Wis. 569, 88 N. W. 587 264 Crookston Lumber Co. v. District Court, 131 Minn. 27, 154 N. W. 509 239, 251, 642 Crookston Lumber Co. v. District Court (Minn.) 156 N. W. 278. . .749, 750 Duluth Brewing & Malting Co. v. District Court, 129 Minn. 176, 151 N. W. 912 17, 25, 321, 326, 397, 429, 445, 447 Duluth Diamond Drilling Co. v. District Court, 129 Minn. 423, 152 N. W. 838, 9 N. O. C. A. 1119 726, 749, 764, 814, 843 Garvin v. District Court, 129 Minn. 156, 151 N. W. 810, 8 N. C. C. A. 1052 28, 621 Gaylord Farmer's Co-op. Creamery Ass'n v. District Court, 128 Minn. 486, 151 N. W. 182, 9 N. C. C. A. 86 578, 637, 642 Globe Indemnity Co. v. District Court (Minn.) 156 N. W. 120 256, 258, 642, 835, 838 Hayden v. District Court (Minn.) 158 N. W. 792 642 Kennedy v. District Court, 129 Minn. 91, 151 N. W. 930, 8 N. C. C. A. 478 630 Klemer t. District Court (Minn.) 158 N. W. 825. 816 London & Lancashire Guarantee & Accident Co. of Canada v. District Court (Minn.) 158 N. W. 515 814 Maryland Casualty Co. v. District Court (Minn.) 158 N. W. 798. .24, 30, 243 Nelson-Spelliscy Co. v. District Court, 128 Minn. 221," 150 N. W. 623 31, 64, 66, 835, 839 People's Coab& Ice Co. v. District Court, 129 Minn. 502, 153 N. W. 119, L. R. A. 1916A, 344, 9 N. O. C. A. 129 325, 409, 418, 429 Splady V. District Court, 128 Minn. 338, 151 N. W. 123 25, 238 Varchmin v. District Court (Minn.) 158 N. W. 250 242 961 CASES CITED Stonghton Page State ex rel. Virginia & Kalny Lake Co. v. District Court, 128 Minn. 43, 150 N. W. 211, 7 N. C. C. A. 1076 25, 168, 169, 170 State Journal Co., In re, 161 Ky. 562, 170 S. W. 437, 1166, L. K. A. 1916A, 389, Ann. Cas. 1916B, 1273 , 95, 103 V. Workmen's Compensation Board, 162 Ky. 387, 172 S. W. 674, L. R. A. 1916A, 402, affirming 161 Ky. 562, 170 S. W. 1166, L. R. A. 1916A, 389, Ann. Cas. 1916B, 1273 103 State Workmen's Compensation Commission, In re (Dale v. Saunders Bros.) 218 N. Y. 59, 112 N. E. 571, affirming 171 App. Dlv. 528, 157 N. Y. Supp. 1062 17, 175, 336,. 337, 823, 826 Steel V. Cammell, Laird & Co., 2 K. B. p. 238 279 V. Cammell, Laird & Co., 2 K. B. p. 232 '. 539 Steers v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007, 4 N. C. C. A. 676. .312, 472 Steiman v. Sfard, 2 Cal. I. A. C. Dec. 1018 177 Steinat v. German General Benev. Soc, 1 Cal. I. A. C. Dec. 280 502 Stephens v. Clarke, 2 Cal. I. A. C. Dec. 135 522, 768 Stephenson v. Plscataqua Fire & Marine Ins. C^., 54 Me. 55 72 > V. RossaU Steam Fishing Co., 8 W. B. C. C. 209, C. A. 171 Sterling v. Inderredlan Cd., 2 Cal. I. A. C. Dec. 172 380, 420, 421 Stertz V. Industrial Insurance Commission of Washington (Wash.) 158 Pac. 256 19, 29, 67, 275, 326, 340, 375, 743 Stetz V. F. Mayer Boot & Shoe Co. (Wis.) 156 N. W. 971 683 Stevens v. HlUman's Department Store, Bulletin No. 1, lU. p. 17 331 V. Insoles, limited, 5 B. W. C. C. 164, C. A 750, 756,760 V. Tittle, 2 Cal. I. A. C. Dec. 146 217, 808, 834 Stevenson v. Illinois Watch Case Co., 186 111. App. 418 257, 636 V. Union Metallic Cartridge Co., 1 Conn. Comp. Dec. 621 398,410 Stewart v. Pacific Mall S. S. Co., 2 Cal. I. A. C. Dec. 583 754 V. Wilsons & Clyde Coal Co., 5 F. 122, Ct. of Sess 277, 281 Stickley, In re, 219 Mass. 513, 107 N. E. 350 837 Stlnton V. Brandon Gas Co., 5 B. W. C. C. 426, C. A 756 Stites V. Universal Film Mfg. Co., 2 Cal. I. A. C. Dec. 670 219, 554, 589 Stith, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 67 522 Stockwell V. Waymlre, 1 Cal. I. A. C. Dec. 225 701,800 Stoll V. Ocean Shore B. Co., 2 Cal. I. A. C. Dec. 81 765, 792 V. Pacific Coast S. S. Co. (D. C.) 205 Fed. 169 48, 58, 65, 67 StoUery v. Cicero & Proviso St. R. Co., 243 111. 290, 90 N. E. 709 774 Stonaker v. Jones & Delaney, 2 Cal. I- A. C. Dec. 834 : 218 Stone V. Old Colony St. Ry., 212 Mass. 459-464, 99 N. E. 218 33 V. Travelers' Ins. Co., 2 Mass. Wk. Comp. Oases, 715 236 Stopyra v. United States Coal Co., decided August 14, 1914 390 V. United States Coal Co., Vol. X, No. 7, Bui. Ohio Indus. Com. p. 92. . 555 Stormont v. Bakersfield Laundry Co., 1 Cal. I. A. C. Dec. 533 518, 664 Stoughton Wagon Co. v. Myre (Wis.) 157 N. W.. 522 628 HON.COMP. — 61 Strayer CASES CITED 962 Page Strayer, In re, Op. Sol. Dept. of L. 446 572 Strom V. Postal Telegraph-Cable Co., 271 111. 544, 111 N. E. 555 85 Strong, In re. Op. Sol. Dept. of L. 132 342 Stronge v. Hazlett, Limited, 3 B. W. 0. C. 581, C. A 758 Stuart V. Nixon & Bruce, 2 W. C. C. 101, 104, C. A 119 Sturbridge y. Franklin, 160 Mass. 149, 35 N. E. 669 263 Sturdivant v. Pillsbury (Cal.) 158 Pac. 222 788 Sturgeon, In re. Op. Sol. Dept. of L. 669 770 Sudell V. Blackburn Corp., 3 B. W. C. C. 227, O. A 223 Sugar V. Atlas Taxicab Co., 1 Cal. I. A. C. Dec. 34 555 Suhr & Co. V. State Compensation Ins. Fund, 2 Cal. I. A. C. Dec. 725 788 Sullivan, In re, 218 Mass. 141, 105 N. E. 463, L. B. A. 1916A, 378, 5 N. O. C. A. 735 25, 599, 600, 601 In re, Op. Sol. Dept. of L. 609 250 V. American Mut. Liability Ins. Co., 2 Mass. Wk. Comp. Oases, M35, C. A„ affirmed 218 Mass. 141, 105 N. E. 463, L. R. A. 1916A, 378. . 600 V. Chicago, M. & St. P. R. Co. (Wis.) 158 N. W. 321 571 T. Industrial Engineering Co. (Sup.) 158 N. X. Supp. 970 512,830 Summers v. National Tent & Awning Co., 2 Cal. I. A. 0. Dec. 968 570 Summerville v. DeBella & Co., 2 Cal. I. A. C. Dec. 122 568 Sundine v. London Guarantee & Accident Co., 2 Mass. Wk. Comp. Cases, 833, affirmed 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318 370, 453 Sundine, In re (Sundine's Case) 218 Mass. 1, 105 N. E. 433, L. R. A. 1916A, 318, 5 N. C. C. A. 616 136, 142, 379, 380, 396 Supreme Council v. Frosinger, 125 Ind. 52, 25 N. E. 129, 9 L. R. A. 501, 21 Am. St. Rep. 196 72 Susznik v. Alger Logging Co., 76 Or. 189, 147 Pac. 922 179 Sutter, In re, Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 147 864 Sutton V. Wurster Const. Co., 2 Cal. I. A. C. Dec. 705 807 Swain v. Pacific Telephone & Telegraph Co., 2 Cal. I. A. C. Dec. 360 704 Swank t. Chanslor-Oanfield Midway Oil Co., 2 Cal. I. A, O. Dec. 330. .547, 557 Swansea Vale, The, v. Rice, 4 B. W. C. C. 298, H. L 462, 471, 746 Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433 622, 647, 650, 714 Sweeney v. Pumpherston Oil Co., 5 F. 972, Ct. of Sess 528 Swickard v. Arrow Motor Cartage Co., Bulletin No. 1, lU. p. 172 681 Symmonds v. King, 8 B. W. C. C. 189, C. A 423 Synkus v. Big Muddy Coal & Iron Co., 190 111. App. 602 106, 107, 109, 111 Taddei v. Schmitz' Estate, 2 Cal. I. A. C. Dec. 592 485 Tallman v. Chippewa Sugar Co., 155 Wis. 36, 143 N. W. 1054 28 V. Hart Const. Co., 1 Cal. I. A. C. Dec. 568 134 Tarr v. Stockton State Hospital, 2 Cal. I. A. 0. Dec. 591 517 963 CASES CITED Timdall Page Tarter v. Associated Oil Co., 2 Cal. I. A. 0. Dec. 848 756 Tatta V. Capitol City Lumber Co., 1 Conn. Comp. Dec. 161 674 Taylor, In re, Op. Sol. Dept. of L. 411 572 In re, Op. Sol. Dept. of L. 542 651 V. London & N. W. Ky. (1912) A. C. 242, 245 675 V. New York Supply Co., 1 Conn. Comp. Dec. 182 177 V. Nicholson & Son, 8 B. W. O. C. 114, C. A 759 V. Seabrook, 87 N. J. Law, 407, 94 Atl. 399, 11 N. C. C. A. 710 252, 268, 545, 571, 686,722 V. Spreckels, 2 Cal. I. A. C. Dec. 62 535, 623, 707, 789 Y. Sulzberger & Sons Co., 98 Kan. 169, 157 Pac. 435 232 Taylorson v. Framewellgate Coal & Coke Co., 6 B. W. C. C. 56, C. A 492 Telford v. Healy-Tlbbitts Const. Co., 3 Cal. I. A. C. Dec. 41 521, 704, 754, 755,760 Tennant v. Broxburn Oil Co. (1907) S. C. 581, Ot. of Sess 546 V. Ives, 2 Cal. L A. C. Dec. 169 708 V. Ives, 2 Cal. I. A. C. Dec. 862 358, 704 Terleckl v. Strauss, 85 N. J. Law, 454, 89 Atl. 1023, 4 N. C. C. A. 584, affirmed 86 N. J. Law, 708, 92 Atl. 1087 324, 361, 365, 458 Thackway v. Connelly & Sons, 3 B. W. C. C. 37, C. A 308, 473 Thayer, In re. Op. Sol. Dept of L. 266 291 Thayne v. Gray & Co., 8 B. W. C. C. 17, C. A 608 Thennard, In re. Op. Sol. Dept. of L. 167 344 Theroux v. Shore Line Electric E. Co., 1 Conn. Comp. Dec. 667 480 Thobum v. Bedlington Coal Co., 5 B. W. 0. C. 128, C. A 490, 508 Thomas v. Fairbairn, Lawson & Co., 4 B. W. C. C. 195 * 676 Thompson, In re, Op. Sol. Dept. of L. 165 344 V. Employers' Liability Assur. Corp., 2 Mass. Wk. Comp. Cases, 145. . 386, 445 V. Gould & Co., 2 B. W. C. C. 166, C. A 762 V. Gould & Co., 3 B. W. 0. C. 392, H. L 762 V. North Eastern Marine Engineering Co., 7 B. W. C. C. 49, 0. A 752 V. Thompson, 53 Wis. 153, 10 N. W. 166 266 V. Twiss, 90 Conn. 444, 97 Atl. 328. . . .199, 200, 203, 204, 208, 211, 213, 832 Thompson & Sons v. North Eastern Marine Engineering Co., 5 W. C. 0. 71 157 Thomson v. Flemington Coal Co., 4 B. W. C. O. 406, 408, Gt. of Sess.. . .372, 455 Thorn v. Humm & Co., S B. W. C. C. 190, C. A 434 Throop V. Tangdon, 40 Mich. 673 222 Tibbs V. Watts, Blake, Bearne & Co., 2 B. W. C. C. 164, C. A 731 Tlczkus V. Standard Office Co., Bulletin No. 1, 111., p. 176 675 Tiedman v. Chelsea Fibre Mills, The Bulletin, N. T., vol. 1, No. 10, p. 16. . . 482 Tillman v. Sperry Engineering Co., 1 Conn. Comp. Dec. 408 496 Tindall v. Great Northern Steam Fishing Co., 5 B. W. C. C. 667, C. A 171 v. Great Northern Steam Fishing Co., 6 B. W. 0. C. 480, H. L. 171 Tirro OASES CITED 964 Page Tirre v. Bush Terminal Co., 172 App. Div. 386, 158 N. Y. Supp. 883 224, 233, 257, 722, 823, 820 Tischman v. Central R. Co., 84 N. J. Law, 527, 87 Atl. 144,-4 N. C. C. A. 736 643 Tobin V. JEtna Life Ins. Co., 2 Mass. Wk. Comp. Cases, 612 670 V. Hearn, 2 Ir. R. 639, C. A 391 Todd V. Caledonian R. Co., 1 F. 1047, Ct. of Sess 367, 390, 551 Toennes v. Milwaukee Electric Ry. & Light Co., Rep. Wis. Indus. Com. 1914^-15, p. 26 ! 314 Tomalin v. Pearson & Son, 2 B. W. C. C. 1, 2 K. B. 61, 7 L. J. K. B. N. S. 863, 100 L. T. N. S. 685, 25 Times L. R. 477 32 Tomasi v. Mazzotti & Butini, 2 Cal. I. A. C. Dec. 936 259 Tomassi v. Christensen, 171 App. Div. 284, 156 N. X. Supp. 905 329, 339 Tombs V. Bomford, 5 B. W. C. C. 338, C. A 191 Tomlinson v. Garratt's, Limited, 6 B. W. C. C. 489, 0. A 400 Toney v. Williams, 1 Cal. I. A. C. Dec. 348 499, 502 Tong V. Great Northern R. Co., 4 W. C. C. 40, K. B. D 155 Toole V. Robert D. Daly Co., 1 Conn. Comp. Dec. 651 477 Topping V. ElUs, 2 Cal. I. A. C. Dec. 382 198, 789 Towle, In re. Op. Sol. Dept. of L. 565 254 Toy V. Maryland Casualty Co., 2 Mass. Wk. Comp. Cases, 147 478 Trahey, In re. Op. Sol. Dept. of L. 105 187 Trammell, In re. Op. Sol. Dept. of L. 244 307 Travelers' Ins. Co., In re, 223 Mass. 273, 111 N. E. 792 620 V. Hallauer, 131 Wis. 371, 111 N. W. 527 266, 821 V. Spaulding & Bros., 1 Cal. I. A. C. Dec. 575 354, 693 Travis v. Hobbs, WaU & Co., 2 Cal. I. A. G. Dec. 506 213, 218 Traviso, In re, Op. Sol. Dept. of L. 161 345 Traynor v. Addle & Sons, 4 B. W. C. C. 357, Ct. of Sess 473 Treadwell v. Marks, 3 Cal. I. A. C. Dec. 3 417, 436 Treiber v. Weibel Brewing Co., 1 Conn. Comp. Dec. 547 727 Tremblay v. Travelers' Ins. Co., 2 Mass. Wk. Comp. Cases, 156 604 Trenholm v. Hough, 1 Cal. I. A. C. Dec. 260 206 Trim Joint District School v. Kelly (1914) App. Cas. 667 11, 437 V. KeUy, 6 B. W. C. C. 921, 0. A.. 276, 283 V. Kelly, 7 B. W. C. C. 274, H. L. 276, 283, 417, 434 Trobltz V. Cameron, 1 Cal. I. A. C. Dec. 550 355 Trodden v. McLennard & Sons, 4 B. W. C. C. 190, C. A 306 Troth V. MilWlle Bottle Works (N. J.) 98 Atl. 435, affirming 86 N. J. Law, 558, 91 Atl. 1031 62, 66, 103, 750 Trueblood v. Los Angeles County, 2 Cal. I. A. C. Dec. 998 700 Trumbull v. Trumbull Motor Car Co., 1 Conn. Comp. Dec. 304 727 Tucker, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 86 357 Turgeon v. Fox Co., 1 Cal. I. A. C. Dec. 68 355, 650 Turley v. Bible Institute Bldg. Co., 1 Cal. I, A. O. Dec. 472 227 965 CASES CITED TItlere* Pago TurnbuU v. Lambton Collieries, Limited, 2 W. C. O. 84, 0. A 129 V. Vickers, limited, 7 B. W. C. C. 396, C. A. 760 Turner, In re, Op. Sol. Dept. of L. 406 573- V. Bell & Sons, 4 B. W. C. C. 63 828 V. Brooks & Doxey, 8 B. W. C. C. 22, 0. A 603 V. Miller & Richards, 3 B. W. C. C. 305, C. A 24& V. on Pumping & Gasoline Co., 2 Cal. I. A. C. Dec. 496 144, 168, 21* V. Port of London Authority, 6 B. W. O. O. 23, C. A 584 V. Santa Cruz, 2 Cal. I. A. C. Dec. 991 303, 618, 651, 668, 766, 794 Tumquist v. Hannon, 219 Mass. 560, 107 N. E. 443 155, 159, 160, 739 Tuttle V. Embury-Martin Lumber Co. (Mich.) 158 N. W. 875 118, 209, 214 Tutton V. Majestic, The, 100 L. T. 644, 2 B. W. 0. C. 346, C. A 526, 528, 529 Tutton's Case, 2 K. B. 54 ; 526 Twoomey v. Royal Indemnity Co., 2 Mass. Wk. Comp. Cases, 540 506 Tynron, The, v. Morgan, 2 B. W. C. O. 406 675 V. Morgan, 2 K. B. 66 675 Tyrrell, In re, Op. SoL Dept of L. 546 652. u Udell V. Wagner, Peterson & Wilson, 2 Cal. I. A. C. Dec. 113 60S- Udey V. Winfield, 97 Kan. 279, 155 Pac. 43 183^ Uhl V. Hartwood Club, The Bulletin, N. Y. Tol. 1, No. 11, p. 11 33X' Underwood v. McDuffee, 15 Mich. 361, 93 Am. Dec. 194. 71! Ungar v. Howell, 7 B. W. C. C. 36, C. A 758 Union Pac. R. Co. v. U. S., 99 U. S. 700, 25 L. Ed. 496 63 United Collieries v. Hendry, 1 B. W. C. C. 289, Ct. of Sess 255 V. Hendry, 2 B. W. C. C. 308, H. L 255 v. McGhie, 6 F. 808, 810 562, 564 U. S. V. Kie, Fed. 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A 181 Viglione v. Montgomery Garage Co., 2 Cal. I. A. C. Dec. 87 623, 691 Viita V. Dolan (Minn.) 155 N. W. 1077 683 Villafranca, In re, Op. Sol. Dept. of L. 676 811 In re, Op. Sol. Dept. of L. 762 782 Village of Kiel v. Industrial Commission of Wisconsin (Wis.) 158 N. W. 68 7, 25, 223 Village of West Salem v. Industrial Commission, 162 Wis. 57, 155 N. W. 929 591 Villanueva, In re. Op. Sol. Dept. of L. 765 782 Vincent v. Louis, 2 Cal. I. A. C. Dec. 130. '. 193 Vindicator, etc., Mining Co. v. Firstbrook, 36 Colo. 498, 86 Pac. 313, 10 Ann. Cas. 1108 85 Viotti V. De Bisschop, 1 Conn. Comp. Dec. 195 240, 789 Visser v. Michigan Cabinet Co., Op. Mich. Indus. Aee. Bd., Bui. No. 3, p. 24 294 Vitale V. Fidelity & Deposit Co. of Maryland, 2 Mass. Wk. Comp. Cases 425 523, 543 Vittorio V. California Pottery Co., 3 Cal. I. A. C. Dec. 26 442 Voelz V. Industrial Commission, 161 Wis. 240, 152 N. W. 830. .298, 472, 795, 796 Vogler V. M. Carpenter Baking Co., Bep. Wis. Indus. 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Dept. of L. 315 352 Warwick S. S, Co. v. Callagban, 5 B. W. C. C. 283, C. A 602 Washington, In re. Op. Sol. Dept. of L. 181 345 Washington, Opinion of Attorney General Sept. 8, 1911 148 Sept. 20, 1911 117 Dec. 12, 1911 664 Jan. 9, 1912 152, 644 Feb. 1, 1912 146 May 16, 1912 264 Sept. 17, 1913 '. 174, 182 Washington, Eulings of Industrial Accident Insurance Commission, p. 3 328, 436, 736 p. 4 340, 341 p. 5 39, 117, 164, 239, 242, 245, 435, 673 p. 6 241, 264, 271, 438, 673, 773 p. 7 148 p. 9 149, 150, 151 p. 10 147, 148, 151 p. 11 148 p. 12 55, 148, 174 p. 13 146, 148, 149, 151 p. 14 20, 152, 823 p. 16 149, 153, 173, 242, 610, 644 p. 17 581, 626, 673 p. 18 147, 253, 654, 673 p. 19 104, 108, 110, 115, 146, 682 p. 20 56, 474, 609, 685 p. 21 '. 56, 609 p. 22 151 p. 23 55, 152, 183 p. 24 833 969 OASES CITED Wentworth Page Washington, Eullngs of Industrial Accident Insurance Oommisslon, p. 25 . . 21 p. 27 55, m p. 28 21 Wasilewski v. Warner Sugar Refining Co., 87 Misc. Eep. 156, 149 N. Y. 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New York Cent. & H. R. R. Co., 168 App. Div. 351, 153 N. Y. Supp. 499 26, 49, 139, 140 Winn, In re. Op. Sol. Dept. of L. 389 649 V. Small, 1 Cal. I. A. O. Dec. 5 604 Winter v. Atkinson-FrizeUe Co., 88 N. J. Law, 401, 96 Atl. 360 839 V. Johnson-Pollock Lumber Co., 1 Cal. I. A. C. Dec. 387 395, 556, 558 V. Peter Doelger Brewing Co., 95 Misc. Rep. 150, 159 N. Y. Supp. 113 1 737, 738 Winters v. Mellen Lumber Co., Bui. Wis. Indus. Com. vol. 1, p. 89 327, 598, 772, 797 V. New York Herald, 155 N. Y. Supp. 1149 512 Wisconsin, Report Industrial Commission, 1914r-15, p. 2 12 Withey v. Bloem, 163 Mich. 419, 128 N. W. 913, 35 L. R. A. (N. S.) 628. . 81 Withy, In re. Op. Sol. Dept. of L. 273 299 Witt V. Pacific Lumber Co., 2 CaL I. A. C. Dec. 861 773 Wolf CASES CITED 972 Page^ Wolf V. Scripps, 1 Cal. I. A. C. Dec. 509 192 Wolff V. Levison & Zellerbach, 1 Cal. I. A. 0. Dec. 347 582- Wood V. Camden Iron Works (D. C.) 221 Fed. 1010 121 V. Chico Const. Co., 1 Cal. I. A. C. Dec. 89 409' V. Detroit (Mich.) 155 N. W. 592, L. R. A. 1916C, 388 63, 66, 85, 98 V. Humphrey, 114 Mass. 185. 71 Woodcock V. London & N. W. R. Co., 6 B. W. C. C. 471, K. B. D 15& V. Walker, 170 App. Dly?4, 155 N. Y. Supp. 702 252, 253 Wooden v. Western New York & P. R. Co., 126 N. Y. 10, 26 N. E. 1050, 13 L. B. A. 458, 22 Am. St. Rep. 803 33 Woodhouse v. Midland R. Co., 7 B. W. C. C. 690, C. A, 60& Woodruff V. Peterson, 1 Cal. I. A. C. Dec. 516 197, 514, 571 Woods V. Wilson & Sons Co., 6 B. W. C. C. 750, C. A. 482 V. Wilson & Sons Co., 8 B. W. C. C. 288, H. L 482 Woodward v. E. W. Conklin & Sons, 171 App. Divl 736, 157 N. Y. Supp. 948 683 Woolsey v. Pethick Bros., 1 Butterworth, 411 776 Worden v. Commonwealth Power Co., 20 Det. Leg. News No. 39 421 V. Commonwealth Power Co., Mich. Wk. Comp. Cases, 14 423 Wowinski v. Vito, 1 Conn. Comp. Dec. 629 208, 211 Wray v. Panamt^-Pacific International Exposition, 3 Cal. I. A. C. Dec. 6. . 665 V. Taylor Bros. & Co., 6 B. W. C. C. 529, C. A 179 Wright V. 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Com. 1912-13, p. 29 658 Zavella v. Naughton, 2 Cal. I. A. C. Dec. 956 493 ZMnden v. Union Oil Co. of California, 2 Cal. I. A. C. Dec. 616 362, 370 Zelavzmi, In re. Vol. 1, No. 7, Bui. Ohio Indus. Com. p. 87 399 Zilch V. Bomgardner, 91 Ohio St. 205, 110 N. E. 459 739, 740 Zillwood v. Winch, 7 B. W. C. C. 60, C. A 752 Zobel V. Godlevski, Rep. Wis. Indus. Com. 1914^15, p. 12 31, 104, 212 Zorcic V. Adams Exp. Co., Bulletin No. 1, 111., p. 55 102, 831 Zugg V. J. & J. Cunningham, Limited, 1 B. W. C. C. 257, Ct. of Sess 127 [End op Volume 1] KF 3615 H77 Author Honnold, Arthur Vol. Title Workmen's Compensation Copy Date Borrower's Name ^;^;i:.h•:;r:■,';:a;.;4^;;^i;«s®fe