'. JflWllllllWWIllWWlHtli i I I 1 Kf (Snrnell ffiaui grljnol ffiibranj Cornell University Library KF 3615.B79 1914 v.1 Bradbury's workmen's compensation and st 3 1924 019 313 554 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/cu31924019313554 BRADBURY'S WORKMEN'S COMPENSATION AND STATE INSURANCE LAW HARRY B. BRADBURY OF THE NEW YORK BAR. AUTHOR OP " BRADBURY'S RtTLES OF PLEADING ' AND VARIOUS WORKS ON PLEADING AND PRACTICE SECOND EDITION VOLUME I THE BANKS LAW PUBLISHING CO. NEW YORK 1914 a- U3n Copyright, 1912, bt THE BANKS LAW PUBLISHING COMPANY COPYRIGHT, 1914, BY THE BANKS LAW PUBLISHING COMPANY PREFACE TO SECOND EDITION Although the general plan of the first edition has been followed, this is an entirely new work. Some of the chapters have been rearranged and new titles have been given to them, for the purpose of facilitating the finding of the particular points in which the searcher is interested. The old decisions have been reexamined and an enormous amount of new material has been added. The new matter has not been merely tacked on to the old, however. The old and new decisions have been combined and harmonized as if the first edition had not been written. Much of the new material has been gathered at the cost of a good deal of time, money and patience. It consists not only of strictly judicial inter- pretation of the courts, but of decisions by the various accident boards, industrial commissions and other public officers whose duties are connected with the administration of the various compensation statutes. Many of the decisions are in manuscript form and may never be published. The author is under obligations to the various industrial commissions and accident boards for their invariable courtesy in assisting him in furnishing rulings of these various bodies. He is under special obligation in this respect to the unfailing and generous courtesy of the Mas- sachusetts Industrial Accident Board, the Michigan Indus- trial Accident Board, the Wisconsin Industrial Commission, the Ohio Industrial Commission, the California Industrial Accident Commission and the New Jersey Employers' Liability Commission. He also acknowledges many courte- sies at the hands of Hon. James B. Carroll, Chairman of the Massachusetts Industrial Accident Board, Hon. Wallace D. Yaple, Chairman of the Ohio Industrial Commission, Hon. Will J. French, of the California Industrial Accident Com- mission, Hon. Frederic M. Williams, one of the Connecticut iV PEEFACE TO SECOND EDITION Commissioners, the Industrial Insurance Commission of Washington, the Industrial Board of Illinois, the Iowa Industrial Commissioner, the Nevada Industrial Commis- sion, the Oregon State Industrial Accident Commission, the Rhode Island Commissioner of Industrial Statistics, the Texas Industrial Accident Board, the West Virginia Public Service Commission, Mr. Robert E. Granfield, Secretary of the Massachusetts Industrial Accident Board, Mr. P. J. Watrous, Secretary of the Wisconsin Industrial Commission, Mr. Richard L. Drake, Secretary of the Michigan Industrial Accident Board, and Mr. Ira B. Cross, Secretary of the California Industrial Accident Commission. If the author has succeeded in elucidating some of the problems which inevitably must arise from a somewhat sudden adoption of the more or less revolutionary compensa- tion principle in a number of States in quick succession, his success will be due, in a large measure, to the members of the boards and commissions whom he has mentioned above. In the present edition of this work has been included all the really important material having a bearing on the problem of workmen's compensation as it is to be solved in the United States. It has been deemed advisable to print the German Code, ac that statute was the basis of most of the compensation acts in all countries. The translation published by the United States Labor Department has been used. The British statute contains the basis of very many of the provisions to be found in American statutes. It therefore has been given a place as in the first edition. The Lloyd George National Insurance Act which has caused so much discussion in England and other parts of the world has been inserted, because, while not strictly a workmen's compensa- tion act, it has an important bearing on the larger question of social insurance of which the workmen's compensation act is a part There have also been added the compensation acts of the various Canadian provinces. All of these provinces have PREFACE TO SECOND EDITION V such acts, except Ontario, which has not yet adopted the compensation principle. The Federal Compensation Act relating to certain Govern- ment employe's, which was adopted in 1908 and has been extended by several amendments since then, is also printed in Chapter XXIII, with a digest of the rulings of the various departments which have the final determination of questions arising under that Act. Many other Federal departmental decisions have been included in the general discussion in others chapters in the book whenever they were of such a nature as to apply to the compensation principle generally. Under the Federal Act certain questions which are peculiar to that statute have been decided. Such decisions have been confined to the immediate discussion of the Federal statute. The complete acts of the twenty-two states which have adopted compensation laws will be found in Chapter XXIV. These laws as printed include all the amendments up to January 1, 1914, and in one or two instances amendments passed early in the year 1914 have been inserted. The taking effect of two of the compensation laws is left somewhat in doubt. Reference is made to Nebraska and Ohio. In Nebraska the Act was intended to become effective July 17, 1913. But a referendum petition was filed under the Law of Nebraska which postponed the taking effect of the Act until after there has been a vote under this referendum. The referendum vote will be taken at the general election in November, 1914, and the taking effect of the Act at all will depend upon that vote. In Ohio the amended law, according to its provisions, went into full effect on January 1, 1914. A referendum petition was filed under the law of Ohio, however, which, ordinarily, would have postponed the taking effect of the law until after there had been a vote on this petition. The Secretary of State, with whom the original petition was filed, held that the petition was fraudulent in that it did not contain the valid signatures of a sufficient number of citizens, and re- Vi PREFACE TO SECOND EDITION fused to order an election on the referendum. Subsequently additional signatures were filed, but the Secretary of State held that the original petition was void and could not be made valid by such an amendment. Proceedings were then taken to compel the Secretary of State to order an election. Such proceedings were pending undetermined when this edi- tion went to pres^. The Ohio Industrial Commission has taken the position that the law went into full effect on Jan- uary 1, 1914, and is acting accordingly. The Supreme Court of Ohio has met several times since the matter was submitted to it, but no decision has yet been rendered.. The Oregon law was originally intended to become effect- ive on July 1, 1913, but by reason of a referendum petition upon which a vote was taken in November, 1913, the taking effect of the law was postponed to July 1, 1914. The Kentucky law was enacted somewhat unexpectedly after stereotyped plates had been made of both volumes of this work. To make the book complete, however, the Ken- tucky act has been added at the end of Volume 1, beginning with page 1052a, and the entire act has been properly in- dexed in its regular place in the index at the end of Volume 2. The New York law was amended in the very closing hours of the session of the Legislature, late in March, 1914, after the stereotyped plates were made for that act as well. Cor- rections were made, however, and a number of the plates re- cast, so that the text of the New York act contains all the amendments up to the end of the Legislative session of 1914. Harry B. Bradbury. 141 Broadway, New York. April 10, 1914. TABLE OF CONTENTS VOLUME I CHAPTER I INTRODUCTION PAGE ARTICLE A — Synopsis of the Development or the Compensa- tion Pbinciple 1 1. Economic principles involved 1 2. Origin and nature of the so-called common-law defenses 3 3. Changes wrought by workmen's compensation laws 6 4. Exceptional cases in which compensation is denied 6 5. The British and GeTman Compensation Acts 7 6. Efforts to pass compensation acts in the United States 9 7. Elective laws and the constitutional question involved 11 8. Brief review of the American laws thus far passed 21 ARTICLE B — Two Fundamental Problems Especially Im- portant in America 34 1. Extra-territorial effect of compensation laws 34 2. Actuarial principles underlying State insurance laws 63 CHAPTER II abolition of defenses ARTICLE A— Introduction 69 1. Reason for abolishing the common-law defenses. .......... 69 ARTICLE B — Specific -Provisions of Various Statutes 71 Arizona 71 California , 74 Connecticut 78 Illinois 79 Iowa 81 Kansas 82 Maryland 86 vii yiii CONTENTS PAGE 87 Massachusetts °' Michigan ** Minnesota °® Nebraska 91 Nevada 92 New Hampshire ™ New Jersey " New York 96 Ohio * 97 Oregon 9 ° Rhode Island " Texas 10 ° Washington 101 West Virginia 102 Wisconsin 103 CHAPTER III TO WHOM ACTS APPLY ARTICLE A — How the Relation of Mastek and Sebvant is Created . m 106 1. Who is an "employ^" or a "workman" within the meaning of the compensation acts 106 2. Members of employer's family ■. 109 3. Relation between employer, who is also a workman, and other workmen 110 4. Workman temporarily in service of other than regular em- ployer 110 5. Joint employers of same workman 112 6. Teamsters 113 7. Workman employing assistant, or substitute 115 8. Conductor on railroad employing assistants; emergency 117 9. Apprentice serving without pay 117 10. Boarding mistress of construction crew 118 11. Student of manual training school employed on holiday. ... 118 12. Persons employed by charitable organization out of charity 119 13. Policeman injured while acting as fireman 120 14. National guardsmen 120 15. Actors 120 16. Partners ....'. 121 CONTENTS IX PAGE 17. Shareworkers on vessels 121 18. Drivers of taxi-cabs operated on shares 125 19. Independent contractors; sub-contractors 127 20. Securing position by false representations 133 21. Minor securing position by misrepresenting age 133 22. Workman injured before act takes effect but dies after statute effective 133 ARTICLE B — Specific Classes of Employes Excluded from Operation of Acts 134 1. Domestic servants 134 2. Casual employ^ 136 3. Farm laborers 142 4. Outworkers 142 5. "Usual course of the trade, business or profession" of the employer 143 6. Contracts exempting employers from the operation of the act 144 ARTICLE C — Specific Provisions of the Various Statutes 146 Arizona 146 California 150 Connecticut 151 Illinois 153 Iowa 156 Kansas 160 Maryland 164 Massachusetts 165 Michigan 167 Minnesota 171 Nebraska 172 Nevada 176 New Hampshire 176 New Jersey 177 New York 178 Ohio 184 Oregon 185 Rhode Island 189 Texas 190 Washington 192 West Virginia 197 Wisconsin 203 X CONTENTS CHAPTER IV MANNER OP ELECTING TO OPERATE UNDER, OR REJECTING, OR OF BRINGING EMPLOYERS AND EMPLOYES WITHIN, THE TERMS OP THE COMPENSATION , STATUTES PAGE ARTICLE A— Introduction 207 1. Classification of statutes 207 2. Acceptance of compensation principle as to part only of em- ployes. . . f. 210 ARTICLE B — Specific Provisions op Various Statutes 211 Arizona ....:. 211 California 213 Connecticut 216 Illinois 228 Iowa 233 Kansas 238 Maryland 241 Massachusetts 242 Michigan 245 Minnesota 251 Nebraska 255 Nevada 263 New Hampshire 268 New Jersey 269 New York 272 Ohio 275 Oregon 279 Rhode Island 286 Texas _ _ 290 Washington _ 293 West Virginia _ 295 Wisconsin 297 CHAPTER V ELECTION OP REMEDY BY WORKMEN AFTER INJURY ARTICLE A — Introduction 300 In general; right to elect irrespective of statutory provision. . 300 CONTENTS XI PAGE ARTICLE B — Specific Provisions op Various Statutes 305 Arizona 305 California , 305 Connecticut 307 Illinois 310 Iowa 311 Kansas 312 Maryland 311 Massachusetts 313 Michigan 315 Minnesota 316 Nebraska ; . . 316 Nevada 317 New Hampshire 319 New Jersey '. 320 New York 321 Ohio 322 Oregon 324 Rhode Island 326 Texas 326 Washington 327 West Virginia 329 Wisconsin 330 CHAPTER VI "injuries" which are the basis op a claim for compensation and when they "arise out of 7 ' and "in the course of" the employ- MENT ARTICLE A— Introduction; Scope op Chapter 333 1. Significance of terms employed 333 2. Obligation to the family of a workman in cases of intentional injuries or serious misconduct 334 3. Going to and from place of employment 338 4. Injuries by third persons 338 5. Employers' liability cases in point; how cited 339 x ii CONTENTS PAGE ARTICLE B— What is an " Injury " or an "Accidental Injury? ". 339 1. In general; distinction between the word "injury" and the term " accidental injury " as found in the various statutes . . 339 2. Injuries without external manifestation 350 3. "Bends" 351 4. Injuries due to gradual wearing or constant use of particular members ." ' ' '. 5. Germ or poison entering system through break in skin 352 6. Skin affections«£rom acids and other irritants 356 7. Contracting infectious and contagious diseases; anthrax; glanders • ■ 358 8. Diseases due to traumatism but without direct external in- fection or contagion; tuberculosis 359 9. Injuries from falls caused by fits, vertigo or other like causes 360 10. Apoplexy 363 11. Heart diseases 363 12. Sprains, strain^and ruptures 366 13. Inhalation of noxious gases 370 14. Pneumonia following exposure or traumatism 371 15. Lead poisoning 373 16. Copper poisoning 374 17. "Sun-stroke," "heat stroke" and "frostbite" 375 18. Drowning 380 19. Mental shock or fright and nervous troubles 380 20. Insanity 384 21. Suicide due to mental condition caused by accident 385 22. Acceleration or aggravation of pre-existing disease 385 23. Disability made more serious by illness or other contributory cause 391 24. Infections and other ailments contracted by reason of lowered vitality due to previous injuries 392 25. Condition due to medical treatment 394 26. Refusal^of workman to permit operation to be performed. . . 396 27. Vaccination by order of superior 397 28. Diseases contracted in hospital after accidental injury 397 29. Breaking artificial leg 397 30. Death not natural or probable consequence of injury 398 ARTICLE C — When does an Injury "arise out of" or "in the course of" the Employment? 398 1. In general; distinction between term "arising out of" and "in the course of " 398 CONTENTS Xlll PAGE 2. Going to and from place of employment 404 3. Seamen and mechanics getting on and off vessels 412 4. Workmen injured on employer's premises before work begins, after work ceases, or during cessation of work 419 5. Working after regular hours of employment 437 6. Servant living on master's premises suffocated in burning house 437 7. Entering employer's premises to apply for work 438 8. Returning to employer's premises to secure pay 438 9. Returning to employer's premises to secure tools 440 10. Unnecessarily going to a place of danger 440 11. Injuries at meal time 444 12. Getting drink of water 450 13. Attending to call of nature 451 14. Workmen whose duties take them away from the employer's premises 452 15. Volunteers; acting without scope of authority 456 16. Going to portions of employer's premises other than those necessarily used by the workman, for his own convenience or pleasure 475 17. Serious and wilful misconduct 480 18. Disobedience of specific orders 493 19. Acting on unauthorized orders 500 20. Acting in an emergency 501 21. Saving life of another 505 22. Assaults. Injuries caused by third persons 505 23. Playing practical jokes 511 24. Bite of animal 512 25. Sting of insect 514 26. Bite of snake 514 27. Foreign substance in eye 514 28. Seaman injured by explosion of gun 515 29. Lightning striking workman 515 30. Drawing inferences from unexplained injuries 516 ARTICLE D — Specific Provisions of Vabious Compensation Acts 518 Arizona 518 California 519 Connecticut 519 Illinois 520 xiV CONTENTS PAGE Iowa 520 Kansas 520 Maryland . . . ; - 521 Massachusetts 521 Michigan 521 Minnesota 522 Nebraska 522 Nevada 523 New Hampshire. . .♦. 523 New Jersey 523 New York 524 Ohio 524 Oregon 524 Rhode Island 525 Texas 525 Washington 526 West Virginia 526 Wisconsin 526 CHAPTER VII LIABILITY OF PRINCIPALS FOB INJURIES TO WORKMEN OF CONTRACTORS AND SUB-CONTRACTORS ARTICLE A— Introduction 527 1. Scope of chapter 527 2. Decisions under British Act 528 ARTICLE B — Specific Provisions of Various Statutes 532 Arizona 532 California 532 Connecticut 533 Illinois 534 Iowa 534 Kansas 535 Maryland 535 Massachusetts 537 Michigan 537 Minnesota 533 Nebraska 533 Nevada 539 CONTENTS XV PAGE New Hampshire 539 New Jersey 540 New York 540 Ohio 540 Oregon 540 Rhode Island 540 Texas ? 541 Washington 541 West Virginia 541 Wisconsin 541 CHAPTER VIII WAITING PERIOD ARTICLE A — Specific Provisions op Various Statutes 543 Arizona 543 California 543 Connecticut 544 Illinois 544 Iowa 544 Kansas 544 Maryland 544 Massachusetts 545 Michigan 545 Minnesota 545 Nebraska 545 Nevada 546 New Hampshire 546 New Jersey 546 New York 546 Ohio 547 Oregon 547 Rhode Island 547 Texas 547 Washington 547 West Virginia 548 Wisconsin 548 Xvi CONTENTS CHAPTER IX MEDICAL ATTENTION PAGE ARTICLE A— Specific Provisions of Various Statutes 549 Arizona 54 J California 549 Connecticut . . . . ^ 550 Illinois 551 Iowa ■ • ■ 551 Kansas 551 Massachusetts 552 Michigan 553 Minnesota 553 Nebraska 554 New Hampshire. . .- 554 New Jersey 554 New York 555 Ohio 555 Oregon 556 Rhode Island 556 Texas 556 Washington .- 557 West Virginia 557 Wisconsin 558 CHAPTER X FUNERAL EXPENSES ARTICLE A — Specific Provisions of Various Statutes 559 Arizona 559 California 559 Connecticut 560 Illinois 560 Iowa 560 Kansas 560 Maryland 560 Massachusetts 560 Michigan 561 Minnesota 561 CONTENTS XV11 PAGE Nebraska 561 Nevada 561 New Hampshire 561 New Jersey 561 New York 562 Ohio 562 Oregon 562 Rhode Island 562 Texas 562 Washington •. 562 West Virginia 563 Wisconsin , 563 CHAPTER XI DEATH BENEFITS ARTICLE A— Introduction 565 1. In general 565 2. Presumption of death from absence 566 3. When death occurs after compensation has been paid for a time 567 4. Estoppel by payment of compensation before death of right to deny liability therefor after death 567 ARTICLE B— Who are Dependents 567 1. Introduction 567 2. Definition of word "dependent" 571 3. Necessity of administering on estate of workman 574 4. Dependent of more than one workman 575 5. Partial and total dependents of same workman 575 6. Parents 575 7. Total dependency of mother on one son when other sons are living 576 8. Mother, whose husband is living, as dependent of son 576 9. Widow and children dependents of father when other children contribute to support of family - 577 10. Wife separated from husband before his death 577 11. Posthumous child 580 12. Illegitimate children 581 13. Posthumous illegitimate child 581 14. Parents of illegitimate children 581 xviii CONTENTS PAGE 15. Mother of illegitimate child as dependent of father of child. . 581 16. Inmate of workhouse 582 17. Aliens 582 18. Question of dependency is one of fact 583 19. Amount due partial dependent is a question of fact 583 20. Dependents receiving other income because of death of workman 583 * 21. Right of dependents independent of that of deceased 584 22. Claim by dependents when compensation to workman ter- minated before death .' 584 23. Claim for compensation by personal representative of de- ceased dependent 585 24. Orphan whose mother died prior to death of workman, com- pensation under Quebec act 586 ARTICLE C — Specific Pbovisions op Various Statutes, with Notes op Adjudicated Cases 587 Arizona 587 California 588 Connecticut 594 Illinois 596 Iowa 597 Kansas 599 Maryland 601 Massachusetts 602 Michigan 606 Minnesota 609 Nebraska 612 Nevada 616 New Hampshire 617 New Jersey 618 New York 621 Ohio 623 Oregon 625 Rhode Island 627 Texas 630 Washington 631 West Virginia 634 Wisconsin _ 636 CONTENTS • XIX CHAPTER XII DISABILITY BENEFITS PAGE ARTICLE A — Introduction 644 1. Classification of disability 644 2. Pain and suffering not compensated 645 3. Computing waiting period; consecutive or non-consecutive days 646 4. Deducting hospital fees from compensation 646 5. Infant, "probable earnings" 646 6. Sundays, holidays and shutdowns occurring in period for which compensation is due 647 7. Compensation for one day 647 8. Increased period of disability by failure to follow physicians' instructions 647 9. Voluntary idleness of workman as tending to prolong dis- ability 647 10. Reduced earnings owing to general fall in wages 648 11. Workmen not entitled to compensation while in prison 648 12. Dismissal for misconduct of workman suffering from partial permanent disability 648 13- Vocational diseases; contracted partly in the employment of two employers; apportioning compensation 649 14. Weekly payments required 649 15. Place of payment of compensation 650 16. State institution; compensation payments part of current ex- penses 650 17. Payment of less than statutory amount as basis of release . . 650 18. Divorced man paying alimony is "single" for compensation purposes 651 ARTICLE B— Permanent Total Disability 651 1. Total incapacity; refusal of former employers to supply work to injured employe 1 651 2. Incapacity to do regular work 651 3. Injuries amounting to permanent total disability 652 ARTICLE C— Permanent Partial Disability 653 1. Minimum amount payable in all cases of specific indemnity 653 2. Under schedule for specific indemnities two weeks' waiting period should not be deducted 653 XX • CONTENTS PAGE 3. Consecutive and not concurrent payment for temporary dis- ability and specific indemnity 654 4. Loss of several fingers; consecutive payments for each, or con- current payments for all 655 5. Amputation of finger when wound healing 655 6. Loss of use of fingers without amputation 656 7. Injuries to and losses of fingers not otherwise classified 656 8. Loss of toes 658 9. Loss of one eye 659 10. One eye so injured that both cannot be used 664 1 1 . Complete blindness caused to eye of which sight partially de- stroyed 664 12. Removal of eye already blind 665 13. Loss of hand when other hand already injured 665 14. Injuries to legs 666 ARTICLE D— Temporary Total Disability 667 1. Unsuccessful efforts to obtain employment 667 2. Waiting for opportunity to have operation performed at hospital 667 3. Heart trouble developing after injury 668 4. Workmen earning same wages as before the injury 668 5. Miscellaneous specific cases in which compensation was ' awarded 668 ARTICLE E— Temporary Partial Disability 670 1. Ability to do light work after accident; exaggeration of injury 670 2. Inability to obtain employment in district where workman lives 671 3. Wages and compensation after accident need not equal wages before injury 672 4. Workmen receiving same wages after as (or higher than) be- fore injury 672 5. Wages and compensation in excess of wages before accident 673 6. Clumsiness due to injury as ground of incapacity. . 674 7. Disability by disease accelerated by accident; basis of com- pensation 674 8. Disability made more serious by illness or other contributing cause _ 674 9. Re-current attacks of industrial disease 675 10. Miscellaneous injuries for which compensation awarded 675 CONTENTS XXI PAGE ARTICLE F — Miscellaneous Cases 676 1. Double compensation 676 2. Deducting insurance benefits to which employe* contribute 677 ARTICLE G — Specific Provisions op Various Statutes 678 Arizona 678 California 679 Connecticut 685 Illinois 687 Iowa 691 Kansas 694 Maryland 694 Massachusetts 695 Michigan 697 Minnesota 699 Nebraska 701 Nevada 704 New Hampshire 705 New Jersey 706 New York v 709 Ohio 712 Oregon 714 Rhode Island 718 Texas 720 Washington 721 West Virginia 723 Wisconsin 724 CHAPTER XIII WAGES WHICH ARE THE BASIS OP COMPENSATION ARTICLE A — Introduction 730 1. In general 730 2. Actual earnings not "usual" wages paid in that employment 730 3. Absence of agreement as to rate of wages 731 4. Basis of compensation when workman employed in different grades 731 5. Longshoremen employed by several employers 733 XX11 CONTENTS PAGE 6. Adding compensation from all sources, including rent, etc . . 735 7. "Tips" as part of earnings 738 8. Intermittent employment due to strikes and other causes .... 739 9. Employment for less than a week 742 10. Change in rate of wages during year 742 11. Father dependent of son; allowance for son's maintenance. . . 743 12. Compensation for previous injury not included in determin- ing basis of compensation for subsequent injury causing death. ... * 744 13. Deducting poor-law relief received by dependent 744 14. Deducting wages paid to an assistant in computing compen- sation 745 15. Wages paid seaman under shipping act taken into account in awarding compensation 745 ARTICLE B — Specific Provisions op Various Statutes, with Notes 746 Arizona 746 California 746 Connecticut 748 Illinois 748 Iowa 750 Kansas 751 Maryland 752 Massachusetts , 753 Michigan 754 Minnesota 756 Nebraska 757 Nevada , 757 New Hampshire 757 New Jersey 753 New York 759 ohio 760 Oregon 761 Rhode Island 7gl Texas yeo Washington , 700 West Virginia 7g* Wisconsin nQi CONTENTS XX11I CHAPTER XIV NOTICES OP INJURIES AND OF CLAIMS FOR COMPENSATION PAGE ARTICLE A— Introduction 766 1. In general 766 2. Decisions under the British statute 767 ARTICLE B — Specific Provisions of Various Statutes 769 Arizona ( 769 California 770 Connecticut 772 Illinois 773 Iowa 774 Kansas 774 Maryland 775 Massachusetts 775 Michigan 778 Minnesota 779 Nebraska •. . 779 Nevada 780 New Hampshire 780 New Jersey 781 New York 782 Ohio 783 Oregon 784 Rhode Island 784 Texas 785 Washington 787 West Virginia 787 Wisconsin 788 CHAPTER XV administration and procedure ARTICLE A — Introduction 791 1. Various methods of administration 791 2. Liberal rules as to procedure 795 3. Right of workman' to take out letters of administration on estate of deceased employer 795 4. Specifying amount when making claim for compensation . . . 795 XXIV CONTENTS PAGE 5. Necessity of appointment of guardian ad litem when interests of incompetent involved 795 6. Agreement to pay compensation is not a consent to submit to arbitration 796 7. Agreement for compensation bar to arbitration proceedings. 796 8. Effect of agreement to pay compensation " during incapacity" 797 9. Award "during total or partial incapacity" 797 10. Amending pleadings by arbitrator 797 11. Burden of proving the injury was caused by accident is on the workman 797 12. Inferences in the absence of direct proof 798 13. Burden of proof as to serious and wilful misconduct 800 14. Evidence 800 15. Physician's certificate as evidence 801 16. Sufficiency of finding of incapacity , 801 17. Finding on question of fact as to which there is any evidence to support 802 18. Suspensory award 804 19. Award to terminate at specified date in future 804 20. Admission in answer that compensation has been paid amounts to admission of claim made 804 21. Apportioning compensation among dependents; procedure. . 804 22. Enforcing payment of award; body execution 804 23. New trial; arbitrator cannot grant 805 24. Signing receipts by workmen 805 25. What amounts to "recovery" of compensation 805 26. Offset of overpayment of compensation 805 ARTICLE B — Digests op Various Statutes, with Notes and Forms 806 Arizona 806 California 806 Connecticut 814 Illinois 815 !°wa 834 Kansas 835 Maryland 836 Massachusetts 83g Michigan _ 842 Minnesota 856 Nebraska . 863 CONTENTS XXV PAGE Nevada 863 New Hampshire 867 New Jersey 867 New York 873 Ohio .874 Oregon 878 Rhode Island 878 Texas 879 Washington 881 West Virginia 881 Wisconsin 887 CHAPTER XVI APPEALS ARTICLE A— Introduction 892 1. In general 892 2. Points raised below only considered on appeal 893 3. Reviewing facts 893 4. Determining adequacy of lump sum paid under agreement . . 894 5. Order terminating weekly payments not appealed from is final 894 6. Dismissal of action and making decision in arbitration pro- ceedings 894 7. Award of costs 895 ARTICLE B — Specific Pbovisions of Vabious Statutes 895 Arizona 895 California 895 Connecticut 895 Illinois 896 Iowa 896 Kansas 897 Maryland 897 Massachusetts 897 Michigan 897 Minnesota 898 Nebraska 898 Nevada 898 New Hampshire 898 Xxvi CONTENTS PAGE New Jersey [J? New York • °™ Ohio ° 99 Oregon ™> Rhode Island • • ■ • 8 " Texas • 8 " Washington 900 West Virginia - 900 Wisconsin ». 90 ° CHAPTER XVII MODIFYING AWARDS OTHERWISE THAN BY APPEAL ARTICLE A— Introduction • 902 1. Circumstances must have changed to justify review 902 2. Res adjudicata ■ 903 3. New medical evidence on review to show changed circum- stances 904 4. Terms of application for review binding on applicant 904 5. Modifying award from a date earlier than the date of the application to modify 904 6. Terminating compensation payments 905 7. Question of recovery from injury is one of fact 906 8. Increasing age as affecting disability 907 9. Refusal to submit to surgical operation 907 10. Reducing payments by reason of ability to do light work. . 908 11. Inability to obtain light work 909 12. Offering suitable employment 910 13. Reducing payments after offer and refusal of light work 910 14. Failure of workman to get or attempt to get light work 911 15. Disability from disease following injury 911 16. Workman permanently injured but suffering increased dis- ability from disease 912 17. Rolling-mill hand able to work with glasses when vision im- paired 912 18. Disability due to idleness and softened muscles 913 19. Disability due to brooding over injury. .. 913 20. Inability to get employment due to slackness of work 914 21. Infant earning as much after as he did before accident 914 22. Probable earnings of infant in different grade 914 23. Profits of business enterprise as affecting right to reduce com- pensation. 915 CONTENTS XXV11 PAGE 24. Apportioning loss between employer and employe 1 915 25. Allowance for expenses when work furnished away from home 916 26. Diminishing payments; burden of proof 916 27. Keeping proceeding alive by payment of nominal sum 917 28. Recovering overpayments of compensation 918 29. Permanent partial disability; ability to earn same wages as before accident 918 30. Increased susceptibility to occupational disease 919 31. Inability to earn old wages in new occupation 919 32. Inability to do same work as before injury 920 33. Lack of evidence as to exact amount workman is able to earn 920 ARTICLE B — Specific Pkovisions op Various Statutes 921 Arizona 921 California 921 Connecticut 921 Illinois 921 Iowa 921 Kansas 921 Maryland 921 Massachusetts 922 Michigan '. 922 Minnesota 922 Nebraska 922 Nevada 922 New Hampshire 922 New Jersey 923 New York 923 Ohio 923 Oregon 923 Rhode Island 923 Texas 923 Washington 924 West Virginia 924 Wisconsin ." 924 CHAPTER XVIII PHYSICAL EXAMINATION OF CLAIMANTS FOR COMPENSATION ARTICLE A — Introduction 925 1. Demand that workman's attorney be present at medical examination , 925 XV1U CONTENTS PAGE 15. Mother of illegitimate child as dependent of father of child. . 581 16. Inmate of workhouse 582 17. Aliens 582 18. Question of dependency is one of fact 583 19. Amount due partial dependent is a question of fact 583 20. Dependents receiving other income because of death of workman 583 21. Right of dependents independent of that of deceased 584 22. Claim by dependents when compensation to workman ter- minated before death : 584 23. Claim for compensation by personal representative of de- ceased dependent 585 24. Orphan whose mother died prior to death of workman, com- pensation under Quebec act 586 ARTICLE C — Specific Provisions of Various Statutes, with Notes of Adjudicated Cases 587 Arizona 587 California 588 Connecticut 594 Illinois 596 Iowa 597 Kansas 599 Maryland 601 Massachusetts 602 Michigan 606 Minnesota 609 Nebraska 612 Nevada 616 New Hampshire 617 New Jersey 618 New York 621 Ohio 623 Oregon 625 Rhode Island 627 Texas 630 Washington 631 West Virginia 634 Wisconsin g3g CONTENTS • XIX CHAPTER XII DISABILITY BENEFITS PAGE ARTICLE A— Introduction 644 1. Classification of disability 644 2. Pain and suffering not compensated 645 3. Computing waiting period; consecutive or non-consecutive days 646 4. Deducting hospital fees from compensation 646 5. Infant, "probable earnings" 646 6. Sundays, holidays and shutdowns occurring in period for which compensation is due 647 7. Compensation for one day 647 8. Increased period of disability by failure to follow physicians' instructions 647 9. Voluntary idleness of workman as tending to prolong dis- ability 647 10. Reduced earnings owing to general fall in wages 648 11. Workmen not entitled to compensation while in prison 648 12. Dismissal for misconduct of workman suffering from partial permanent disability 648 13. Vocational diseases; contracted partly in the employment of two employers; apportioning compensation 649 14. Weekly payments required 649 15. Place of payment of compensation 650 16. State institution; compensation payments part of current ex- penses 650 17. Payment of less than statutory amount as basis of release . . 650 18. Divorced man paying alimony is "single" for compensation purposes 651 ARTICLE B— Permanent Total Disability 651 1. Total incapacity; refusal of former employers to supply work to injured employe 1 : 651 2. Incapacity to do regular work 651 3. Injuries amounting to permanent total disability 652 ARTICLE C— Permanent Partial Disability 653 1. Minimum amount payable in all cases of specific indemnity 653 2. Under schedule for specific indemnities two weeks' waiting period should not be deducted 653 XX • CONTENTS PAGE 3. Consecutive and not concurrent payment for temporary dis- ability and specific indemnity 654 4. Loss of several fingers; consecutive payments for each, or con- current payments for all 655 5. Amputation of finger when wound healing 655 6. Loss of use of fingers without amputation 656 7. Injuries to and losses of fingers not otherwise classified 656 8. Loss of toes .„ 658 9. Loss of one eye 659 10. One eye so injured that both cannot be used 664 1 1 . Complete blindness caused to eye of which sight partially de- stroyed 664 12. Removal of eye already blind 665 13. Loss of hand when other hand already injured 665 14. Injuries to legs 666 ARTICLE D— Temporary Total Disability 667 1. Unsuccessful efforts to obtain employment 667 2. Waiting for opportunity to have operation performed at hospital 667 3. Heart .trouble developing after injury 668 4. Workmen earning same wages as before the injury 668 5. Miscellaneous specific cases in which compensation was awarded 668 ARTICLE E — Temporary Partial Disability 670 1. Ability to do light work after accident; exaggeration of injury 670 2. Inability to obtain employment in district where workman "ves 671 3. Wages and compensation after accident need not equal wages before injury 672 4. Workmen receiving same wages after as (or higher than) be- fore injury 672 5. Wages and compensation in excess of wages before accident 673 6. Clumsiness due to injury as ground of incapacity. 674 7. Disability by disease accelerated by accident; basis of com- pensation 074 8. Disability made more serious by illness or other contributing cause 074 9. Re-current attacks of industrial disease 675 10. Miscellaneous injuries for which compensation awarded 675 CONTENTS XXI PAGE ARTICLE F — Miscellaneous Cases 676 1. Double compensation 676 2. Deducting insurance benefits to which employes contribute 677 ARTICLE G — Specific Provisions of Various Statutes 678 Arizona 678 California 679 Connecticut 685 Illinois 687 Iowa 691 Kansas 694 Maryland 694 Massachusetts 695 Michigan 697 Minnesota 699 Nebraska 701 Nevada 704 New Hampshire 705 New Jersey 706 New York v 709 Ohio 712 Oregon 714 Rhode Island 718 Texas 720 Washington 721 West Virginia 723 Wisconsin 724 CHAPTER XIII WAGES WHICH ARE THE BASIS OF COMPENSATION ARTICLE A— Introduction 730 1. In general 730 2. Actual earnings not "usual" wages paid in that employment 730 3. Absence of agreement as to rate of wages 731 4. Basis of compensation when workman employed in different grades 731 5. Longshoremen employed by several employers 733 XX11 CONTENTS PAGE 6. Adding compensation from all sources, including rent, etc . . 735 7. "Tips" as part of earnings 738 8. Intermittent employment due to strikes and other causes 739 9. Employment for less than a week 742 10. Change in rate of wages during year 742 11. Father dependent of son; allowance for son's maintenance. . 743 12. Compensation for previous injury not included in determin- ing basis of compensation for subsequent injury causing death. . . * 744 13. Deducting poor-law relief received by dependent 744 14. Deducting wages paid to an assistant in computing compen- sation 745 15. Wages paid seaman under shipping act taken into account in awarding compensation 745 ARTICLE B — Specific Provisions op Various Statutes, with Notes 746 Arizona 746 California 746 Connecticut 748 Illinois 748 Iowa 750 Kansas 751 Maryland 752 Massachusetts 753 Michigan 754 Minnesota 75g Nebraska 757 Nevada , 757 New Hampshire 757 New Jersey 75g New York 7gg otio 760 Oregon 761 Rhode Island 7gj Texas yen Washington *rg343, 373 Schroeder v. Barker & Stewart Lumber Co., Wis. Indus. Com., Nov. 20, 1912 636 Schultz, Frank, Re: Op. Sol. Dep. C. & L, p. 409 1011 Schwartz v. Indiarubber, Gutta- percha and Telegraph Works Co. (1912), 2 K. B. 299; 5 B. W. C. C. 390 35, 38 Schweitzer v. Hamburg Amer- ican Line, 3 Bradbury's PI. & Pr. Rep. 285; 78 Misc. 448; 138 Supp. 944 44, 61 Schweitzer v. Hamburg Amer- lxxiv TABLE OF CASES Volume 2 begins at page 1053 PAGE ican line, 149 App. Div. 900; 134Supp. 812 44 Scotstoun Estate Co. v. Jackson (1911), 48 Scotch L. R. 440; 4B. W. C. C. 381 802 Second Employers' Liability Cases, 223 U. S. 1; Brad- bury's Workmen's Compensa- tion and State Ins. L. (1st Ed.), p. 785. .18, 19, 29, 30, 47, 60 See v. Leidecker, 152 Ky. 724; 154 S.W. Rep. 10 115 Seiniski v. Wilmington Leather Co., 83 Atl. Rep.' 20;, 00 Del. Supr. 000 \ 457 Self v. Adel Lumber Co., 64 S. E. Rep. 112; 5 Ga. App. 846. .. . 408 Senior v. Fountains- & Burnley (1907), 23 T. L. R. 634; 9 W. C.C. 116 572, 573,577 Sexton v. Newark District Tele- graph Co., 00 N. J. Law, 000; 2 Bradbury's PI. and Pr. Rep. 221; 3 N. C. C. A. 569; 86 Atl. Rep. 451 12, 33, 40, 42 Seywald v. The Ford Motor Co., Cal. Indus. Ace. Bd., June 26, 1913 , 455 Shadoan's Adm'r v. Cincinnati, N. O. & T. P. R.-Co., 82 S. W. Rep. 567; 26 Ky. Law Rep. 828. 451 Shaffer, Laura M., Re: Claim No. 41, Ohio St. Lia. Bd. Awd., June 14, 1912. .580, 623, 784 Shappard, A. H., Re: Op. Sol. Dep. C. & L., p. 80. . . , 1000 Sharf v. Packard Motor Co., Mich. Indus. Ace. Bd., April, 1913 392 Sharman v. Holliday & Green- wood (1903), 90 L. T. 46; 6 W. C.C. 147 904 Sharp v. Johnson & Co. (1905), 92 L. T. 675; 7 W. C. C. 28 420, 427 PAGE Sharpe v. Midland Ry. Co. (1903), 88 L. T. 545; 5 W. C. C. 128, aff'd Midland Ry. Co. v. Sharpe (1904), 6 W. C. C. 119.. 737 Shaw v. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 81. .509, 512 Shea v. Westinghouse Electric & Mfg. Co., 147 App. Div. 660; 132 Supp. 612. . : 442 Sheeran v. F. & J. Clayton & Co. (1909), 44 Irish L. T. 52; 3B. W. C. C. 583 350 Sheeran, John, Re: 28 Op. Atty. Gen. 254; same case re- ported Op. Sol. Dep. C. & L., p. 169 342, 343, 372, 376 Ship "Victoria" v. Barlow (1911), 45 Ir. L. T. 260; 5 B. W. C. C. 570 125 Shirt v. The Calico Printers' Ass'n (1909), 100 L. T. 740; 2B. W. C. C. 342 395 Short v. Fort Dodge Light and Power Co., 128 N. W. Rep. 366; 149 Iowa, 303 472 Short, C. L., Re: Op. Sol. Dep. C. & L., p. 375 1022 Short v. Medberry, 29 Hun, 39 . . 1000 Simmons, Arnold, Re: Op. Sol. Dep. C. & L., p. 343 1025 Simmons v. Faulds (1901), 3 W. C.C. 169 128 Simmons v. The Heath Laundry Co. (1910), 102 L. T. R. 210; 3B. W. C. C. 200 738 Simmons v. White Bros. (1899), 80 L. T. 344; 1 W. C. C. 89 . . . 572 Simpson, H. G., Re: Op. Sol. Dep. C. & L., p. 251 436 Simpson v. Ebbw-Vale Steel, Iron & Coal Co. (1905), 92 L. T. 282; 7 W. C. C. 101 107 Sims v. Omaha, K. C. & E. Ry. Co., 89 Mo. App. 197 500 Sinclair v. Maritime Passengers. TABLE OF CASES lxxv Volume 2 begins at page 1053 PAGE Assur. Co., 30 L. J. Q. B. 77; 4L. T. 15 376 Sinclair v. Maritime Passengers Ins. Co., 3 Ellis & Ellis, 476 370 Singer Mfg. Co. v. Rahn, 132 U. S. 518 109 Skailes v. Blue Anchor Line (1910), 4 B. W. C. C. 16 736 Skates v. Jones & Co. (1910), 3B. W. C. C. 460 529 Skill, J. W., Re: Op. Sol. Dep. C. & L., p. 121 994 Sloss-Sheffield Steel & Iron Co. v. Bibb, 51 So. Rep. 345; 00 Ala. 000 129 Sloss-Sheffield Steel & Iron Co. v. Moore, 59 So. Rep. 311; 000 Ala. App. 000 459 Small, David, Re: Op. Sol. Dep. C.&L.,p. 128 992 Smith, G. H., Re: Op. Sol. Dep. C. &L., p. 148 1002 Smith, William, Re: Op. Sol. Dep. C. & L., pp. 307, 309 ... . 1018 Smith v. Coles (1905), 93 L. T. 754; 8 W. C. C. 116 142 Smith v. Cord Taton Colliery Co. (1900), 2 W. C. C. 121 394 Smith v. Hughes (1905), 8 W. C. C. 115 907 Smith v. Lancashire & Yorkshire Ry. Co. (1899), 79 L. T. 633; 1W.C.C.1 460 Smith v. Massachusetts Em- ployes Insurance Association, Mass. Indus. Ace. Bd 603 Smith v. Morrison (1911), 5 B. W. C. C. 161 456 Smith v. Munger Laundry Co., Cal. Indus. Ace. Bd., Nov. 19, 1913 351 Smith v. South Normanton Col- liery Co. (1902), 88 L. T. 5; 5 W. C. C. 14 405, 424 Smith v. Western & A. R. Co., PAGE 67 S. E. Rep. 818; 134 Georgia, 216 118 Sneddon and Others v. Green- field and Coal Brick Co. (1910), 47 Scotch L. R. 337; 3 B. W. C. C. 557 426 Snow v. Housatonic R. Co., 8 Allen (Mass.), 441 1007 Southall v. Cheshire County News Co. (1912), 5 B. W. C. C. 251 385 Southern Coal & Coke Co. v. Swinney, 42 So. Rep. 808; 00 Ala. 000. 431 Southern Railway Co. v. Bent- ley, 56 So. Rep. 249; 1 Ala. App. 359 478 Southern Ry. Co. v. Guyton, 25 So. Rep. 34; 122 Ala. 231 465, 469 Southern Ry. Co. in Kentucky v. Pope's Adm'r, 119 S. W. Rep. 237; 133 Ky. 835 500 Southern Ry. Co. v. West, 62 S. E. Rep. 141; 4 Ga. App. 672 409 Spence v. W. Baird & Co. (1912), 49 Sc. L. R. 278; 5 B. W. C. C. 542 390 Spiers v. Elderslie Steamship Co. (1909), 46 Scotch L. R. 893; 2 B. W. C. C. 205 530 Spooner v. Detroit Saturday Night Company, Michigan Industrial Accident Board, July, 1913 141 Spreckels Bros. Commercial Co. v. Moore, Cal. Indus. Ace. Bd., Oct. 8, 1913 683 Spreckels Bros. Commercial Co. v. Nelson, Cal. Indus. Ace. Bd., June 24, 1913 591 Stagg v. Edward Western Tea and Spice Co., 69 S. W. Rep. 391; 169 Mo. 489 457 Stallknecht v. Pennsylvania R. R. Co., 13 Hun, 451 46 lxxvi TABLE OF CASES Volume 2 begins at page 1053 PAGE Standing v. Eastwood & Co. (1912), 5 B. W. C. C. 268. . . . 125 Stapleton v. Dinnington Main Coal Co. (1912), 5 B. W. C. C. 602 352 Stark v. Port Blakely Mill Co., 87 Pac. Rep. 339; 44 Wash. 309 # 471 State v. Babcock, 30 N. J. Law, 29 39 State v. Clausen, 65 Wash. 156; 117 Pac. Rep. 1101; Brad- bury's Workmen's Compensa- tion and State Ins. L. (1st Ed.), p. 703; 3 N. C. C. A. 599 12, 29, 31 State ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 N. E. Rep. 602; Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 764; 1 N. C. C. A. 30 11, 29, 30, 31 Statham v. Galloways, Limited, 2W.C.C.149 500 Steel v. Cammell, Laird & Co. (1905), 7 W. C. C. 9 340, 349* 373 Stegman, Richard, v. Harley- Davidson Motor Co., Wis. Indus. Com., Apr. 22, 1913. . . 676 Stephens v. Dudbridge Iron- works Co. (1904), 6 W. C. C. 48 304 Sterling Laundry Company v. Smith, Cal. Indus. Ace. Bd., Dec. 22, 1913 683 Stevens v. Insoles (1911), 5 B. W.C. 164 767 Stevens v. Pacific Telephone and Telegraph Co., California In- dustrial Accident Board, Oct. 22, 1912 550 Stewart v. Wilsons & Clyde Company (1903), 5 Falc. 120, 368 St. Louis & S. F. Ry. Co. v. Bag- well, 124 Pac. Rep. 320; 33 Okla. 189 502 PAGE Stodden v. Anderson & Winter Mfg. Co., 116 N. W. Rep. 116; 138 Iowa, 398 466 Stoll v. Pacific Coast Steamship Co., 205 Fed. 169; Market , World and Chronicle of N. Y., May 24, 1913; 3 N. C. C. A. 606, note 12, 29 Stone Vi Boscawen Mills, 52 Atl. Rep. 119; 71 N. H. 288. . . 473 Stone v. Travelers Insurance Company, Mass. Indus. Ace. Bd 371 Stone- Webster Engineering Cor- poration v. Collins, 199 Fed. Rep. 581 409 Strayer, H. C, Re: Op. Sol. Dep. C.&L.,p.359 1021 Strong, Albert, Re: Op. Sol. Dep. C. & L., p. 104 995 Stuart v. Nixon & Bruce (1901), 3W.C.C.1 743 Sturgeon, James, Re: Op. Sol. Dep. C. & L., p. 535 1044 Sturgis v. Boyer, 24 How. 123 131 Sudell v. Blackburn Corporation (1910), 3 B. W. C. C. 227 120 Suleman v. Owners of the "Ben Lomond" (1909), 2 B. W. C. C. 499 646 Sullivan, Jos. L., Re: Op. Sol. Dep. C. & L., p. 492 1041 Sundine v. London Guarantee & Accident Co., Mass. Indus. Ace. Bd. (App. pending to the Sup. Judicial Ct.) 423, 424 Superior Terminal Elevator Co. v. F. A. Ball, Wis. Indus. Com., Feb. 24, 1913 670 Suttle v. Choctow, O. & G. Co., 144 Fed. Rep. 668 1024 Sutton v. Wabash R. Co., 152 HI. App. 138 476 Swinbank v. Bell Bros. (1911), 5B.W.C.C.48 355 TABLE OF CASES lxxvii Volume 2 begins at page 1053 PAGE Taff Vale Railway Co. v. Lane (1910), 3 B. W. C. C. 297. . . . 916 Tamworth Colliery Co. v. Hall (i911), 4 B. W. C. C. 313. . . . 744 Tanner, Jane, v. Milwaukee Gas Light Co., Wis. Indus. Com., Feb. 19, 1912 639 Taylor, W. H., Re: Op. SoL Dep. C.&L.,p.324 1030 Taylor v. Bolckow, Vaughan & Co. (1911), 5 B. W. C. C. 130 390 Taylor v. George W. Bush & Sons Co., 5 Pennywill, 378; 61 Atl.Rep.236 446 Taylor v. Grant Lumber Co., 127 S. W. Rep. 962; 94 Ark. 566 464 Taylor v. Jones (1907), 1 B. W. C. C. 3 427 Terlecki v. Strauss & Co. (Mer- cer Common Pleas, May 9, 1913), 36 N. J. Law J. 185. . . . 422 Terre Haute & I. R. Co. v. Fowler, 56 N. E. Rep. 228; 154 Ind. 682; 48 L. R. A. 531 475 Texas M. R. R. Co. v. Taylor, 44 S. W. Rep. 892; 00 Tex. Civ. App. 000 463 Thaokway v. Connelly and Sons (1909), 3 B. W. C. C. 37 798 Thennard, Joseph, Re: Op. Sol. Dep. C. & L., p. 131 991 Therricault v. England, 116 Pac. R. 581 ; 43 Mont. 376 443 Thoburn v. Bedlington Coal Co. (1911), 5 B. W. C.C. 128. .. . 393 Thomas v. Fairbairn, Lawson & Co. (1911), 4 B. W. C. C. 195 651, 675 Thomas v. Wisconsin Central Ry. Co., 122 N. W. Rep. 456; 108 Minn. 485 '. 444 Thompson, H. A., Re: Op. Sol. Dep. C. & L., p. 418 1004 PAGE Thompson, R. F., Re: Op. Sol. Dep, C. & L., p. 303 1008 Thompson, Samuel, Re: Op. Sol. Dep. C. & L. p. 129 992 Thompson v. Ashington Coal Co. (1901), 3 W. C. C. 21.354, 355 Thompson v. Nautilus Steam- ship Co., The Policyholder, July 10, 1912, p. 553 515 Thompson v. R. W. Gould & Co. (1910), A. C. 409; 103 L. T. 81; 3 B. W. C. C. 392. . . 795 Thompson v. Standard Oil Co., Cal. Indus. Ace. Bd., July 30, 1913 682 Thomson, W. B., Re: Op. Sol. Dep. C. & L., pp. 360, 361 ... . 1018 Thomson v. Flemington Coal Co. (1911), 48 Scotch L. R. 740; 4 B. W. C. C. 406 451 Thurber v. Harlem Bridge, etc., Rd., 60 N. Y. 326 1008 Tiernan, T. F., Re: Op. Sol. Dep. C. &L., p. 367 1017 Timmins v. Leeds Forge Co., 2W.C.C. 10 367 Timmins v. Leeds Forge Co., 16 T. L. R. 521 368 Tinkle v. St. Louis & S. F. R. Co., 110 S. W. Rep. 1086; 212 Mo. 445 118 Tischman v. Central R. R. Co., 00 N. J. Law, 000; 87 Atl. Rep. 144 619 Toledo, B. G. & F. Ry. Co. v. Pfisterer, 26 Ohio Cir. Ct. Rep. 669 471 Tomalin v. S. Pearson & Son (1909), 100 L. T. 685; 2 B. W. C. C. 1.... 35, 39 Tombs v. Bomford (1912), 5 B. W. C. C. 338 137 Torregrosso v. Universal Caster & Foundry Co., Essex Com- mon Pleas, Sept. 20, 1912; 000 N. J. Law J. 000 618 lxxviii TABLE OF CASES Volume 2 begins at page 1053 PAGE Torres, Ramon, Re: Op. Sol. Dep. C. & L., pp. 325, 326. . ..1029 Torvalson v. Minneapolis, St. Paul and Sault Ste. Marie R. R. Co., Dec. 2, 1912 205 Trahey, G. W., Re: Op. Sol. Dep. C. & L., p. 87 1000 Trammell, J. V., Re: £p. Sol. Dep. C. & L., p. 206 344, 352 Traviso, Pedro, Re: Op. Sol. Dep. C. &L., p. 124 992 Traynor v. Robert Addie & Sons (1910), 48 Scotch L. R. 820; 4B. W. C. C. 357 497 Treiman, John, Re: Op. Sol. Dep. C. & L., p. 166 342 Trodden v. J. McLennard & Sons (1911), 4 B. W. C. C. 190 413 Truesdale v. Employers' Lia- bility Assurance Corporation, Mass. Indus. Ace. Bd \ 488 Tucker v. Buffalo Cotton Mills, 57 S. E. Rep. 626, 76 S. C. 539 116 Tucker v. Oldbury Urban Dis- trict Council (1910), 5 B. W. C. C..296 801 Turner v. Brooks & Toxey (1909), 3 B. W. C. C. 22 383 Turner v. G. Bell and Sons (1910), 4 B. W. C. C. 63 893 Turner v. Miller and Richards (1910), 3 B.W. C. C. 305.... 575 Turner, Robert, Re: Op. Sol. Dep. C. & L., p. 319 1010 Turner's, Limited, v. Whitefield, 571 • Tutton v. Owners of Steamship "Majestic" (1909), 100 L. T. 644, 2£. W. C. C. 346 928 U Union Pacific Ry. Co. v. Mc- Donald, 152 U. S. 262 1008 United Collieries v. Hendry (1909), 101 L. T. 129; A. C. (H. L.) 383; 2 B. W. C. C. 308 585 PAGE United States Board & Paper Co. v. Landers, 93 N. E. Rep. 232; 47 Ind. App. 315 109 United States Cement Co. v. Koch, 85 N. E. Rep. 490; 42 Ind. App. 251 501 United States Mutual Accident Ins. Ass'n v. Barry (1888), 131 U. S. 100 368 United States v. Bevans, 3 Wheat. 336; 3 Dall. 320 58 Upper Forest and Western Steel and Tinplate Co. v. Thomas (1909), 2 B. W. C. C. 414. . . . 904 Upper Forest and Western Steel and Tinplate Co. v. Grey (1910), 3 B. W. C. C. 424 648 Vamplew and Others v. Park- gate Iron & Steel Co. (1903), 88 L. T. 756; 5 W. C. C. 114. . 128 Van Sittert, E. H., Re: Op. Sol. Dep. C. & L., p. 72 998 Van Sittert, E. H., Re: Op. Sol. Dep. C. & L., p. 132 991 Varesick v. British Columbia Copper Co. (1906), 12 B. C. 286; 1 B. W. C. C. 446 582 Vassar v. Atlantic Coast Line R. Co., 54 S. E. Rep. 849; 142 N. C. 68; 7 L. R. A. (N. S.) 950 117 Vaughan v. Booth, 13 Eng. L. & Eq. 351, 354 136 Veseth, J. A., Re: Op. Sol. Dep. C. &L. pi. 94 996 Veseth, J. A., Re: Op. Sol. Dep. C. & L., p. 147 1002 Vickers Sons and Maxim v. Evans (1910), 3 B. W. C. C. 403 915 Villafranca, Feliciano, Re: Op. Sol. Dep. C. & L., p. 542 1048 Villafranca, Feliciano, Re: Op. Sol. Dep. C. & L., p. 612 1048 TABLE OP CASES lxxix Volume 2 begins at page 1053 PAGE Villanueva, Enrique, Re: Op. Sol. Dep. C. & L., p. 615 1047 Villar v. Gilbey (1907), A. C. 139 580 Vincent v. Natomas Consoli- dated of California, Cal. Indus. Ace. Bd., Dec. 5, 1913 682 Voshefskey v. Hillside Coal & Iron Co., 21 App. Div. 168; 47 Supp. 386 46, 47 Vulicas, Marcus, Re: Op. Sol. Dep. C. & L., p. 45 999 W Wagen v. Minneapolis & St. L. R. Co., 82 N. W. Rep. 1107; 80 Minn. 92 117 Wagner, Charles, Re: Op. Sol. Dep. C. & L., p. 532 1048 Waiswell v. General Accident Assur. Corp., Mass. Indus. Ace. Bd 372 Waite v. Oakland California Towel Co., Cal. Indus. Ace. Bd., Oct. 10, 1913 591 Waites v. Franco-British Ex- hibition (Incorporated) (1909), 2B. W. C. C. 199 528 Wakefield v. State, 41 Texas, 556 135 Walker v. Crystal Palace Foot- ball Club (1909), 101 L. T. 645; 3 B. W. C. C. 53 107 Walker v. Hockney Brothers (1909), 2 B. W. C. C. 20. . .340, 352 Walker v. Lilleshall Coal Co. (1900), 81 L. T. 769; 2 W. C. C. 7 356 Walker v. Mullins (1908), 42 Irish L. T. 168; 1 B. W. C. C. 211 354 Walker v. Murrays (1911), 48 Sc. L. R. 741; 4 B. W. C. C. 409 368 Walsh, J. J., Re: Op. Sol. Dep. C.&L.,p. 193 375 PAGE Walsh v. Hayes (1909), 43 Irish L. T. 114; 2 B. W. C. C. 202 531 Walters v. Staveley Coal & Iron Co. (1911), 105 L. T. 119; 4 B. W. C. C. 303 405, 433 Walton, Re : 35 N. J. Law J. 184 758 Walton v. South Kirby 920 Warby v. Plaistowe & Co. (1910), 4 B. W. C. C. 67 926 Ward v. Chicago, St. P., M. & O. Ry. Co., 85 Wise. 601. . . .1013 Ward v. London and North West- ern Ry Co. (1901), 3 W. C. C. 192 674 Ward v. Miles (1911), 4 B. W. . C. C. 182 674 Warncken v. Richard More- land & Son (1908), 100 L. T. 12; 2 B. W. C. C. 350. . . .927, 928 Warner v. Couchman (1911), ■ 5 B. W. C. C. 177; aff'g 4 B. W. C. C. 32 377,379 Warner v. Couchman (1912), A. C. 35 402 Warwick Steamship Co. v. Cal- laghan (1912), 5 B. W. C. C. 283 918 Washington, N. C, Re: Op. Sol. Dep. C. &L., p. 143 1002 Waterhouse v. State, 21 Tex. App. 663; 2 S. W. Rep. 889. . 135 Watkins v. Guest, Keen & Nettlefolds (1912), 5 B. W. C. C. 307 410 Watson, T. H., Re: Op. Sol. Dep. C. & L., p. 596 1047 Watson v. Butterley Co. (1902), 5 W. C. C. 51 487 Watson v. Sherwood (1909), 2B. W. C. C. 462 436 Webber v. Kales Haskel Co., Dec. of Mich. Arbitration Committee, Dec. 19, 1912.. 657 Weigand, C. A., Re: Op. Sol. Dep. C. & L., p. 317 1009 lxxx TABLE OF CASES Volume 2 begins at page 1053 PAGE Weighill v. South Heaton Coal Co., (1911), 4 B. W. C. C. 141 485 Weil, P. C, Re; Op. Sol. Dep. C. & L., p. 543 366 Welch v. Ellis, 15 Can. L. T. 148 1000 Wells, O. P., Re: Op. Sol. Dep. C. & L., p. 421 1003 Wells v. Cardiff Steam Coal Collieries Co. (1909), 3 B. W. C. C. 104 803 Wells v. Kentucky Distilleries & Warehouse Co., 138 S. W. Rep. 278; 144 Ky. 438 116 Welsh v. Employers' Liability •Assurance Corporation, Mass. Indus. Ace. Bd 366 Wentworth v. Pacific-Wakefield Co., Cal. Indus. Ace. Bd., Feb. 24, 1913 589 Weston v. Crown Columbia Paper Co., Cal. Indus. Ace. Bd., Dec. 3, 1913 506 Westover v. Hoover, 129 N. W. Rep. 285; 88 Nebr. 201 110 Whatley v. Zenida Coal Co., 26 So. Rep. 124; 122 Ala. 118 423,424 Wharton, William, Re: Op. Sol. Dep. C. & L., p. 250 508 Wheeler, Ridley & Co. v. Daw- son (1912), 5 B. W. C. C. 645 395 Whelan v. Great Northern Steam Fishing Co. (1909), 100 L. T. 912; 2 B. W. C. C. 235 123 Whelan v. Moore (1909), 43 Irish L. T. 205; 2 B. W. C. C. 114 504 Whitbread v. Arnold (1908), 99 L. T. 103; 1 B. W. C. C. 317. . 407 White v. Sheepwash (1910), 3 B. W. C. C. 382 356 White v. Wiseman (1912), 5 B. W. C. C. 654 742 White, W. and Sons, v. Harris (1910), 4 B. W. C. C. 39. . . . 649 PAGE Whitecraft v. Pennsylvania R. R. Co., Camden Common Pleas (May 9, 1913), 36 N. J. Law J. 182 178 Whitehead v. Reader (1901), 3 W. C. C. 40 494 Whitehead v. Reader (1901), 2 K. B. 48.... 498 Whiteley Malleable Castings Co. v. Wishon, 85 N. E. Rep. 832; 000 Ind. App. 000 457 Whiteman, P. M., Re: Op. Sol. Dep. C. & L., p. 66 1000 Whitford v. Panama R. R. Co., 23 N. Y. 465 46, 57, 58, 59 Whitton v. South Carolina & G. R. Co., 32 S. E. Rep. 857; 106 Ga. 796 465 Wicks v. Dowell & Co., 2 K. B. 225 361 Wilken, Carl, v. Superior Steve- dore Co., Wis. Indus. Com . . 652 Wilkes, Andrew, Re: Op. Sol. Dep.C.&L.175 352 Wilkes (or Wicks) v. Dowell & Co. (1905), 2 K. B. 225; 7 W. C. C. 14 361 Wilkie v. Thomas Forman Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at p. 417 515 Williamette Falls Transp. Co. v. Remick, 1 Oreg. 169 1000 Williams, E. R., Re: Op. Sol. Dep. C. & L., p. 70 998 Williams, Frances R., Re: Claim No. 296, Ohio St. Lia. Bd. Awd., Nov. 15, 1912 624, 760 Williams, Francis, Re: Op. Sol. Dep. C. & L., p. 372 1022 Williams v. Choctaw, O. & G. R. Co., 149 Fed. Rep. 104....1028 Williams v. Duncan (1898) 1 W. C. C. 123 340,373 Williams v. Kansas City, S. & G. TABLE OF CASES lxxxi Volume 2 begins at page 1053 PAGE Ry. Co., 45 So. Rep. 924; 120 La. 870 113 Williams v. Ocean Coal Co. (1907), 97 L. T. 150; 9 W. C. C. 44 568, 570, 580 Williams v. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 65 462 Williams v. Wynnstay Collieries (1910), 3 B. W. C. C. 473. . . . 733 Williams v. State, 41 Texas, 649 135 Williams v. Vauxhall Colliery Co. (1907), 23 T. L. R. 591; 9W.C.C. 120 567 Williamson v. Berlin Mills Co., 190 Fed. Rep. 1 494 Williamson v. Standard Oil Co., Cal. Indus. Ace. Bd., June 26, 1913 680 Willoughby v. Great Western Ry. Co. (1904), 6 W. C. C. 28 . 385 Wilson v. Banner Lumber Co., 32 So. Rep. 460; 108 La. 590 412 Wilson v. Chesapeake & Ohio Ry. Co., 113 S. W. Rep. 101; 130 Ky. 182 449 Wilson v. Laing (1909), 46 Scotch L. R. 843; 2 B. W. C. C. 118. . 512 Windfelder, Frank A., v. City of Milwaukee, Wis. Indus. Com., December 21, 1911 ... . 640 Winn v. Cabot, 18 Pick. (Mass.) 553; Wheeler v. Randall, 6 Mete. (Mass.) 529; Common- wealth v. Carmalt, 2 Binn. (Perm.) 235 142 Winnicott v. Orman, 102 Pac. Rep. 570; 39 Montana, 339. . 129 Wise v. Lillie & Sugar Appara- tus Mfg. Co., 113 Pac. R. 403; 84 Kans. 86 110 Wite, J. S. K., Re: Op. Sol. Dep. C.&L.,p.l83 388 Wolfe v. Mosler Safe Co., 139 App. Div. 848; 124 Supp. 541 Ill PAGE Wood, James, Re: Op. Sol. Dep. C. & L., p. 349 1025 Wood v. Cobb, 3 Allen, 58 109 Wooden v. Western N. Y., etc., R. Co., 126 N. Y. 10 60 Wordsworth v. Dunnam, 98 Ala., 610 1013 Worthington, George, Re: Op. Sol. Dep. C. & L., p. 98 995 Wright v. Kerrigan (1911), 45 Irish L. T. 82; 4 B. W. C. C. 432 799,801 Wright v. Lindsay (1911), 49 Sc. L. R. 210; 5 B. W. C. C. 531 805 Wright v. Scott (1912), 5 B. W. C. C. 431 499 Wygant, G. W., Re: Op. Sol. Dep. C. & L., p. 90 996 Wyman v. Berry, 75 Atl. Rep. 123; 106 Me. 43 110 Yates v. South Kirby Feather- stone & Hemsworth Collieries (1910), 103 L. T. 170; 3 B. W. C. C. 418 380,381 Yazoo & M. V. R. Co. v. Kern, 138 S. W. Rep. 988; 000 Ark. 000 459 Yazoo & M. V. R. Co. v. Slaugh- ter, 45 So. Rep. 873; 92 Miss. 289 116 Yazoo & M. V. R. Co. v. Stans- berry, 53 So. Rep. 389; 97 Miss. 831 117 Yenne v. Standard Oil Co., Cal. Indus. Ace. Bd., July 28, 1913 387 Yohe v. Erie R. Co. (Hudson Common Pleas, March 31, 1913), 36 N. J. Law J. 154. . . 619 Yongue v. St. Louis & S. F. R. Co., 112 S. W. Rep. 985; 133 Mo. App. 141 501 Young v. Northern California lxxxii TABLE OP CASES Volume 2 begins at page 1053 PAGE Power Co., Cal. Indus. Ace. Bd., June 2, 1913 380 Ystradowen Colliery Co. v. Griffiths (1909), 100 L. T. 869; 2 B. W. C. C. 357 386 Z Zacias, L. T., Re: Op. Sol. Dep. C. &L., p. 44 999 PAGE Zeikus v. Florida East Coast Ry. Co., 153 App. Div. 345; 138 Supp. 478 60 Ziemer v. Crucible Steel Co., 99 App. Div. 169; 90 Supp. 962 47 Zupa, John, Re: Op. Sol. Dep. C. & L., p. 479 1039 BRADBURY'S WORKMEN'S COMPENSATION AND STATE INSURANCE LAW SECOND EDITION CHAPTER I INTRODUCTION ARTICLE A — Synopsis of sation acts in the the Development of the United States 9 Compensation Principle. . 1 7. Elective laws and the 1. Economic principles in- constitutional ques- volved 1 tion involved 11 2. Origin and nature of 8. Brief review of the the so-called common- american laws thus law defenses 3 far passed 21 3. Changes wrought by ARTICLE B — Two Fun- workmen's compensa- damental Problems Es- tion laws 6 pecially important in 4. Exceptional cases in America 34 which compensation 1. Extra-territorial effect is denied 6 0F compensation laws 34 5. The British and German 2. Actuarial principles un- compensation acts 7 derlying state insur- 6. Efforts to pass compen- ance laws 63 ARTICLE A— SYNOPSIS OF THE DEVELOPMENT OF THE COMPENSATION PRINCIPLE 1. Economic principles involved. It is difficult for American lawyers to reconcile themselves to the fundamental changes which workmen's compensation 1 1 2 bbadbuby's workmen's compensation law Economic principles involved laws accomplish in the principles underlying doctrines with which they have long been familiar. The declaration that an employer shall be responsible for injuries to his workmen, whether or not the master is at fault, has, until very recently, in most parts of the United States, met with almost in- stant opposition whenever it has been made. Neverthe- less, the compensation principle, when carefully analyzed, undoubtedly rests on sound economic, legal and moral foundations. Testimony from foreign countries and a rapidly increasing fund of evidence from many of the States in the Union, prove that it is not taking the employer's property without due process of law to compel him to pay compensation to an injured workman, when the in- jury is due to a risk which is necessarily incident to the business. An assertion to the contrary is an economic fallacy. The amount paid in compensation to injured work- men will be added to the cost of the article produced and in the readjustment, which is inevitable, the expense will be borne by the community generally. All experience proves this beyond question. It is believed by those who have given the most careful thought to the subject that this expense or burden on the community will be less, in the long run, when the compensation principle is put in operation, than it is at present, when inadequate provision is made, through public and private charity, for taking care of the injured workmen and the dependents of those who are killed. That the widows and young children of the workmen who are killed frequently are dependents upon the community there is no denying. The same is true, of course, as to the families of workmen who are seriously injured, and sometimes to a greater degree than if the workman had been killed. It is often more difficult for the family to get along while the father is seriously injured and requires medical and other attention, than it would be had the father been killed. The children who are left with a mother not able to care for them not infrequently grow up in bad surroundings and a good INTRODUCTION Origin and nature of the so-called common-law defenses many of them, a little later on, help to make bad surroundings for other children in the same situation. This condition of affairs is an expense to the community, not only directly but indirectly. Moreover, equitable compensation laws tend, to a very great extent, to make workmen more con- tented than they otherwise would be, with the knowledge that in any event they will not have to meet starvation for themselves and their families should they be the victims of one of the number of inevitable industrial accidents. This is an important factor in the efforts to secure the greatest industrial efficiency. 2. Origin and nature of the so-called common-law de- fenses. The doctrines of assumption of risk, contributory negli- gence and negligence of fellow servant have played an im- portant part in English and American law. Up to a very recent time the rule had long been established that a work- man assumed all the risks which were necessarily incident to his employment and also all the risks which were obvious and concerning which he had actual information, or should have had knowledge by reason of the fact that they were open and obvious. This doctrine of assumption of risk was carried to the extent that even though the employer was negligent and failed in many respects to perform his duty in safeguarding his workmen, nevertheless if an employe continued to work after these risks, due to the negligence of the employer, had become obvious and well known to the workman, he assumed such risk and could not recover if he was injured by reason of any of the dangers thus assumed. The doctrine of assumption of risk has received much legislative attention, irrespective of the workmen's compen- sation statutes. It has been modified, from time to time, by the courts. Probably the most radical judicial modifica- tion of recent times is to be found in the case of Fitzwater v. Warren, 206 N. Y. 355. The Court of Appeals squarely 4 Bradbury's workmen's compensation law Origin and nature of the so-called common-law defenses overruled the leading case of Knisley v. Pratt, 148 N. Y. 372, and held, in effect, that an employe" could not be held to have assumed the risks of his employment in relation to an injury which was caused by an employer's violation of a statutory safety regulation. It has also been the rule, even when the employer was negligent, that if^it could be demonstrated that the negli- gence of the employe contributed in any manner to the in- jury of which complaint was made, then the employer was discharged completely and the employe was entirely without remedy. This rule also has been modified by statutes other than workmen's compensation acts. The rule of "compara- tive negligence" and the doctrine of the "last clear chance" have been adopted in some jurisdictions. The rule of contrib- utory negligence in one form or another is still in force, how- ever, in most of the jurisdictions where compensation laws have not been adopted. The fellow-servant doctrine dates from 1837, when it was established in England in the case of Priestley v. Fowler, 3 M. & W. 1. In that case two butcher boys were on a wagon, being employed by the same master. One of them was injured by reason of the negligence of the other. The court decided that in such a case the master was not liable. The principle thus established was the germ from which the entire law, known generally as the fellow-servant doctrine, was developed. Five years later, in 1842, Chief Justice Shaw of Massachusetts, in the case of Farwell v. Boston, etc., R. Co., 4 Met. 49, followed the doctrine announced in the earlier English case. The same rule was subsequently promulgated and settled in the House of Lords in England in 1858, in the case of Bartonshill Coal Co. v. Reid, 3 Marq. H. L. Cas. 266. The same doctrine was thereafter followed by the courts of the various States of the Union. In England the doctrine was applied with great rigor. Employes of all grades of employment were held to be fellow servants with those in practically every other grade. Or- INTRODUCTION Origin and nature of the so-called common-law defenses dinary seamen were held to be fellow servants of the captain. Hedley v. Pinkney & Sons S. S. Co., 1 Q. B. 58; 61 L. J. Q. B. 179. General superintendents and general managers were held to be fellow servants of laborers. Conway v. Belfast & Northern R. R. Co., 11 Ir. L. R. 345. In this country the fellow^servant doctrine was not applied uniformly. In somewhat early cases the alter ego principle was applied by the courts. That is, if the master should employ a superintendent who, in the absence of the master, was clothed with essentially the same power and discretion which the master could exercise while present, he was held to be the alter ego of the master and not a fellow servant of the master's other employes. The master, therefore, was liable for the negligent acts of this alter ego. The vice- principal doctrine was another modification of the fellow- servant rule. This and other rules were greatly modified from time to time by statute in the various States, as well as by the National Legislature. The result was such a con- fusion that it would be impossible to deduce general rules of anything like universal application from the conflicting statutes and decisions of the courts of forty-eight States, the acts of Congress and the decisions of the Federal tribunals. On the question of the burden of proof there was also much confusion. Some of the States required the employe to prove by a fair preponderance of evidence, every fact upon which his cause of action depended. He must prove that his master was negligent; that he, the employe, was free from contrib- utory negligence; and that the injury was due exclusively to the negligence of the master. On the question of the defense of the assumption of risk and that the injury was due to the negligence of a fellow servant, varying rules as to the burden of proof have been announced in the different jurisdictions. If, however, there is any general rule which has for its support more than a majority of the cases, it doubtless is that assumption of risk and negligence of fellow servant are defenses which must 6 bradbury's workmen's compensation law Exceptional cases in which compensation is denied be proved affirmatively by the master. On the question of contributory negligence, however, the original rule, in most jurisdictions, was that the employe must show that he was himself free from fault. This rule was changed in many jurisdictions at an early date and doubtless the general, although not the universal, rule is now that contributory negligence is an ajfirmative defense, which must be pleaded and proved by the master. 3. Changes wrought by workmen's compensation laws. The compensation acts abolished all these burdens of proof by starting with the assumption, in all cases, that neither party was guilty of negligence and that the injury was the inevitable result of the occupation in which the em- ploye" was engaged. This being so, the law placed the burden on the employer of compensating injured workmen, or the dependents of those who were killed, according to a specific schedule of benefits, depending, as a rule, upon the amount which the workman was earning at the time of the injury. To this amount has been added, in certain instances, allow- ances for medical and surgical attention and funeral benefits. None of the American compensation acts cover all em- ployes. Probably the New Jersey statute is the broadest of any in this respect. It covers all except casual employes. Some of them include only the so-called extra-hazardous trades, while others exclude merely farm laborers and do- mestic servants. 4. Exceptional cases in which compensation is denied. Certain exceptions have been made in these laws, pro- viding that under particular circumstances compensation shall not be paid. These exceptions are, generally, that if the accident is due to the wilful act and, in some cases, to the intoxication of the employe, that then all compensa- tion is denied. There is an infinite variety of statutes on this subject. The British statute is remarkably liberal to the workmen in this respect. It provided that if the injury is intkA DUCTION The British and German Compensation Acts due to the "serious and wilful misconduct" of the employe that compensation shall not be paid unless the injury results in the death or "serious and permanent disablement" of the workman. This provision has been attacked very bitterly, but still remains a part of the British Compensation Act. It is the law of England, at the present time, that should a workman in a powder factory, for example, be instructed not to smoke or light a match within the works and this workman should become intoxicated, go into the works, strike a match to light his pipe, and then throw the match where it would cause an explosion, and the explosion should kill the workman together with the employer, the dependents of the workman would still have a claim for compensation against the estate of the employer. None of the acts of the American States have gone this far. The provision in some of them is that if the workman is guilty of serious and wilful misconduct he shall not have compen- sation, but the general provision is that compensation shall be denied only when the injury is due to the wilful intention of the workman to injure himself. 5. The British and German Compensation Acts. The British Compensation Act was not adopted without a struggle. Efforts were made on several occasions to pass such a statute, and they all failed, until 1897, when the first compensation act was passed by the British Parliament. This act was amended several times, notably in 1900, and again in 1906, after a thorough discussion and the considera- tion of the report of a committee appointed to investigate the subject. In Germany the first compensation law was enacted on July 6, 1884. This has been amended and extended from time to time until the year 1911 when all the provisions of the various acts were unified and codified 1 into an act which 1 The entire Code with an introduction and explanatory notes will be found in another part of this work. 8 bradbury's workmen's compensation law The British and German Compensation Acts was intended to take effect January 1, 1912. Owing to the administrative changes, involved in the consolidation of the various parts of the social insurance laws, the actual taking ef- fect of the Code of July 6, 1911, was postponed to January 1, 1913. Compensation acts of one sort or another have been passed in practically all the European countries. The German plan is considerably different from that of England and also is unlike the system adopted in any of the American States. In Germany the compensation laws are divided into three general divisions: They are the Sickness Insurance, the Accident Insurance, and the Disability In- surance. Contributions by the workmen themselves play an important part in the system. For example, for the first thirteen weeks of either sickness, or disability caused by accident, the workmen are cared for by what is known as the Sickness Fund, which is supported by the workmen con- tributing two-thirds and the employers one-third. As to all disability which lasts more than thirteen weeks the Accident Fund becomes responsible. The Disability Insurance takes care of superannuated workmen and covers other forms of disability which are not provided for in the other sub- divisions of the statute. Workmen contribute one-half of the money necessary to support the Disability Fund. All these insurance funds are managed by officers elected by workmen and employers. The Accident Fund is sup- ported entirely by contributions from the employers and is managed by them. The German law requires all employers to join the Acci- dent Insurance Fund of the trade in which he is engaged as a condition to his engaging in the trade. There is Govern- ment supervision of the entire system. In England the liability is purely a personal one on the employers, who usually carry the risk either by insuring in stock liabi lity companies or in mutual associations. 1 1 See the full text of the British Act in a subsequent portion of this work. INTRODUCTION Efforts to pass compensation acts in the United States 6. Efforts to pass compensation acts in the United States. In the United States a compensation act relating to miners only was passed in Maryland in 1902. It was declared to be unconstitutional by the lower courts of Maryland, from the decision of which no appeal was ever taken. The decision is not reported. A compensation act was also passed in Montana in 1909, applying to miners only, and this was likewise declared to be unconstitutional a short time after it became effective by its terms. Cunningham v. Northwestern Improvement Co., 44 Mont. 108; 119 Pac. 554. The decision of the Montana court was on very narrow grounds. Many of the principles underlying compensation statutes were sustained in the opinion handed down by the court. The statute was held to be unconstitutional solely on the ground that it permitted employes to elect, after an accident happened, whether they would claim compensation under the act or sue for damages under the common law as modified by statutes other than the compensation law. Congress passed a compensation act 1 in .1908 applicable to certain specified employes of the United States Govern- ment. (Act of May 30, 1908.) This has been extended from time to time to cover other employes but is not yet universal in its application. (Acts of March 4, 1911, and March 11, 1912.) New York passed a compulsory compensation act in 1910, which law was made Article 14a, of the Labor Law, being Chapter 674 of the Laws of 1910. This was a compul- sory workmen's compensation act applying to certain dan- gerous employments. This law was declared to be uncon- stitutional by the Court of Appeals in January, 1911, in the case of Ives v. South Buffalo Railway Co., 201 N. Y. 271; 94 N. E. Rep. 431. The particular point of that decision was that a law which imposed upon an employer who had not 1 The Federal Compensation Act with many notes of Departmental decisions will be found in another portion of this work. 10 Bradbury's workmen's compensation law Efforts to pass compensation acts in the United States been guilty of any fault, the obligation to pay compensation for injuries occurring by reason of a danger which was in- herent in and inseparable from a particular employment, resulted in the taking of property without due process of law under the Fourteenth Amendment to the Federal Constitu- tion and under § 6, Article I, of the State Constitution. 1 In the same year that the compulsory law, which was held to be unconstitutional, was passed, the Legislature of New York also adopted an elective compensation law. (L. 1910, c. 354; Labor Law, §§ 205-212.) This act has been a dead letter. After the decision in the Ives case the New York Legis- lature passed a constitutional amendment permitting the enactment of a compulsory law and the amendment was adopted by vote of the people at the election in 1913. In the same year the Legislature, which was then convened in Special Session, passed the Act found in other portions of this work. Undoubtedly the Ives case had a profound effect on all subsequent legislation in the United States on this subject. It did not, however, have the effect of entirely stopping the efforts to secure such legislation. New Jersey was the first to hit upon a plan of adopting an elective or optional workmen's compensation law. That is, employers were permitted to elect whether they would accept the principles of the compensation act and agree to pay their workmen the schedule of compensation provided in the law in all instances where they were injured or killed, or would elect to stand on their common-law rights, in which latter event the law pro- vided that all the common-law defenses of assumption of risk, contributory negligence and negligence of fellow servant should be denied to the employer. Other States followed rapidly in the footsteps of New Jersey until, at the present writing, there are compensation laws of various kinds in Ari- 1 See a discussion of the constitutional question, post, page 11. INTKODUCTION 11 "Elective" laws and constitutional question involved zona, California, Connecticut, Illinois, Iowa, Kansas, Mary- land, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New York, Ohio, Oregon, Rhode Island, Texas, Washington, West Virginia and Wisconsin, and in various other States the matter is under consideration. 7. " Elective " laws and the constitutional question in- volved. There is an important distinction between the New Jersey law and those of many of the other States, as to the man- ner in which the election is made. In New Jersey and some other States employers and employes are presumed to have elected to have adopted the compensation principle, unless they take some affirmative action indicating a contrary inten- tion. In other commonwealths employers must take some affirmative action in order to adopt the compensation principle. The distinction is important so far as the prac- tical operation of the acts is concerned. There is a con- stitutional question involved also. The United States Supreme Court has not yet passed upon the constitutional- ity of any of the workmen's compensation acts of the various States. Statutes which are elective in form, but under which the election must be indicated by an affirmative act on the part of the employer, have been sustained by the courts of last resort of Massachusetts, 1 Ohio 2 and Wisconsin. 3 The New Jersey act which contains the presumptive election 1 Opinions of Justices, 209 Mass. 607; 96 N. E. Rep. 308; Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 650; 1 N. C. C. A. 557. This decision was made in advance of the enactment of the law under a provision of the Massachusetts Constitution, which permits the Legislature to ask the advice of the court as to whether or not a proposed law is constitutional. 2 State ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 N. E. Rep. 602; Bradbury's Workmen's Compensation and State Ins. L. (1st Ed.), p. 764; 1 N. C. C. A. 30. 'Borgnis v. Folk Co., 147 Wis. 327; 133 N. W. Rep. 209; Bradbury's 12 beadbury's workmen's compensation law "Elective" laws and constitutional question involved feature, has been sustained by the Supreme Court 1 of that State, which is a court of intermediate appellate jurisdiction, and the case is now on appeal to the Court of Errors and Appeals, which is the court of last resort of that State. In the State of Washington a compulsory State insurance law, which is applicable to certain hazardous industries, has been sustained by the court of last resort of that State, 2 and by the United States District Court. 3 The question of the consti- tutionality of the New Jersey act has been discussed in two New York cases. 4 Opinions have differed among lawyers who have given close study to the question, whether there is any real distinc- tion, from a constitutional point of view, between a presump- tive election and one in which the election is indicated by an affirmative act. If the presumption was absolutely conclu- sive, without any possible escape, undoubtedly such a pro- vision would be invalid, assuming of course that the legis- lature has not the power to pass a compulsory compensation act. But in the statutes containing the presumptive feature, such as New Jersey for example, the employer can destroy the presumption by simply filing a notice to that effect with the proper authorities. Such a presumption is one with which we are entirely familiar. The right to a trial by jury is absolute, in actions at law as distinguished from suits in equity, except in a very limited class of cases. We see this Workmen's Compensation and State Ins. L. (1st Ed.), p. 656; 3 N. C. C. A. 649. 1 Sexton v. Newark District Telegraph Co., N. J. Law, ; 2 Brad- bury's PI. and Pr. Rep. 221 ; 3 N. C. C. A. 569; 86 Atl. Rep. 451. 2 State v. Clausen, 65 Wash. 156; 117 Pac. Rep. 1101; Bradbury's Work- men's Compensation and State Ins. L. (1st Ed.), p. 703; 3 N. C. C. A. 599. 3 Stoll v. Pacific Coast Steamship Co., 205 Fed. 169; Market World and Chronicle of N. Y., May 24, 1913; 3 N. C. C. A. 606, note. 4 Albanese v. Stewart, 2 Bradbury's PL and Pr. Rep. 189; Pensabene v. Auditore Co., 2 Bradbury's PL and Pr. Rep. 197; same case on appeal to Appellate Division, 2 Bradbury's PL & Pr. Rep. 212. INTRODUCTION 13 "Elective" laws and constitutional question involved right waived by presumption hundreds of times every day in Municipal Courts in New York City, in the courts of Justices of the Peace throughout the other portions of that State, and in many other tribunals throughout the country. The par- ties to an action in these courts usually are conclusively pre- sumed to have waived the right to a trial by jury unless they take some affirmative action before the case has progressed beyond a certain point. Many other important rights may be waived, presump- tively, by inaction. It has been urged, therefore, with a good deal of force that the manner of making the election — whether by affirmative action or by inaction — is of very little importance from a constitutional standpoint. Those who have urged that the election should be made by an affirmative act, have taken the position that there could be no doubt of the binding effect of an election by an employer to adopt the compensation principle, when this election was indicated by an affirmative act on the part of one who was free to do as he might choose. Those who use this argument, however, entirely neglect to take into consideration the fundamental moving cause of any such election. Further- more, with somewhat refreshing inconsistency, they proceed to make the election on the part of the workmen a presump- tive one, even in those statutes under which the employer must indicate his election to adopt the compensation prin- ciple by some affirmative action. Undoubtedly, if the presumptive election as applied to employers would make a compensation law unconstitutional, the statute would be just as invalid should this principle be applied to employes alone. If, therefore, there is any constitutional point in the distinction between a presumptive and an affirmative election it applies with full force to those statutes where the election of the employe" is presumed even though the employer must indicate his election by an affirm- ative act. 1 1 The rule of presumptive election when applied to both employers and 14 bradbury's workmen's compensation" law "Elective" laws and constitutional question involved But as indicated in the foregoing it is not believed that there is any real distinction. The important and funda- mental point for consideration is the right of the legislature to put in force that portion of the statute which compels or induces the employer to elect to adopt the compensation principle at all. This compulsion or inducement is plainly an expedient to a^void the effect of the decision of the Court of Appeals in the Ives case. The legal point involved as to the validity generally of the elective compensation acts is contained in this one question: May the Legislature entirely abolish the defenses of assumption of risk, contributory negli- gence and negligence of fellow servant? If it has power to do employes has at least the virtue of uniformity. Doubtless, therefore, such a rule would be easier to support, on constitutional grounds, than one which requires employers to take some affirmative action to indicate their election to adopt the compensation principle while the rule of presumptive election is invoked against employes alone. The most important con- sideration, from a practical standpoint, however, is the fact that under the presumptive rule the careless employer and the one who, in a state of mental doubt, does nothing, will both be brought under the compensation principle, while under the contrary rule they would still remain under the common law. This is especially true as to small employers. The accuracy of this prediction is amply demonstrated by the experience in New Jersey and other States. The compensation act of New Jersey applies to all except casual employes, including farm laborers and domestic servants. Notwithstanding this fact and in spite of the further fact that the law has been in operation longer than any other compensation statute in the United States, except the Federal act applying solely to certain Govern- ment employes, nevertheless only four employers in New Jersey have ever filed a notice of rejection of the compensation principle. This is considerably better than the record of any other State. In Massachusetts a very large majority of the employers have adopted compensation, and this is true also in Michigan, but in no other State can the record compare with that of New Jersey, in so far as the percentage of employers who have adopted the compensation principle is in proportion to all the em- ployers of the State is concerned. The Wisconsin law as first adopted required the employer to take some affirmative step to adopt the compensation principle. The Legislature saw the advantages of a presumptive election and by an amendment in 1913 the presumptive feature was adopted. INTRODUCTION" 15 "Elective" laws and constitutional question involved this, it would seem, without doubt, to have the power to make the abolition conditional upon the employer adopting the compensation principle. The Court of Appeals in the Ives case undoubtedly placed a limitation on the power of the Legislature to abolish one of these defenses. The court held that so far as the de- fenses based on "contributory negligence" and the so-called "fellow-servant doctrine" were concerned, they could be destroyed entirely by the courts as they were of judicial origin. As to the assumption-of-risk doctrine the court made a reservation, around which the whole question re- volves. In the course of his opinion Judge Werner, writing for the court, said: "We have said enough to show that the statutory modifi- cations of the 'fellow-servant' rule and the law of 'contrib- utory negligence' are clearly within the legislative power. These doctrines, for they are nothing more, may be regulated or even abolished. This is true to a limited extent as to the assumption or risk by the employed In the Labor Law and the Employers' Liability Act, which define the risks assumed by the employe, there are many provisions which cast upon the employer a great variety of duties and burdens unknown to the common law. These can doubtless be still further multiplied and extended to the point where they deprive the employer of rights guaranteed to him by our constitutions, and there, of course, they must stop, as we shall endeavor to demon- strate later on." Many careful readings of the decision in this case have failed to disclose that the Court drew any clear line of demarcation as to where the abolition of the defense of assumption of risk must stop. After brushing away the objections based on the contention that the Legislature did not have power to abolish the defenses of contributory negli- gence and that based on the fellow-servant doctrine, and after disposing adversely of the contention that there had been an unlawful classification of industries for the purposes 16 bradbtjry's workmen's compensation law "Elective" laws and constitutional question involved of the Act then under discussion, and then, after noting the Court's reservation of the question of whether or not the Act then under consideration unlawfully attempted to abolish the right of trial by jury, the Court continued the argument on the remaining point and remarked (in 201 N. Y. 271) at page 293: "When our Constitutions were adopted it was the law of the land that no man who was without fault or negligence could be held liable in damages for injuries sustained by another. That is still the law, except as to the employers enumerated in the new statute, and as to them it provides that they shall be liable to their em- ployes for personal injury by accident to any workman arising out of and in the course of the employment which is caused in whole or in part, or is contributed to, by a necessary risk or danger of the employment or one in- herent in the nature thereof, except that there shall be no liability in any case where the injury is caused in whole or in part by the serious and willful misconduct of the injured workman. It is conceded that this is a liability unknown to the common law and we think it plainly constitutes a deprivation of liberty and property under the Federal and State Constitutions, unless its imposition can be justified under the police power which will be discussed under a separate head. In arriving at this conclusion we do not overlook the cogent economic and sociological arguments which are urged in support of the statute. There can be no doubt as to the theory of this law. It is based upon the proposition that the inherent risks of an employment should in justice be placed upon the shoulders of the employer, who can protect himself against loss by insurance and by such an addition to the price of his wares as to cast the burden ultimately upon the consumer; that indemnity to an injured employe 1 should be as much a charge upon the INTRODUCTION 17 "Elective" laws and constitutional question involved business as the cost of replacing or repairing disabled or defective machinery, appliances or tools; that, under our present system, the loss falls immediately upon the employe who is almost invariably unable to bear it, and ultimately upon the community which is taxed for the support of the indigent; and that our present system is uncertain, unscientific and wasteful, and fosters a spirit of antagonism between employer and employe which it is to the interests of the state to remove. * * * The argument that the risk to an employe" should be borne by the employer because it is inherent in the employment, may be economically sound, but it is at war with the legal principle that no employer can be compelled to assume a risk which is inseparable from the work of the employe, and which may exist in spite of a degree of care by the employer far greater than may be exacted by the most drastic law. If it is competent to impose upon an employer, who has omitted no legal duty and has committed no wrong, a liability based solely upon a legislative fiat that his business is in- herently dangerous, it is equally competent to visit upon him a special tax for the support of hospitals and other charitable institutions, upon the theory that they are devoted largely to the alleviation of ills primarily due to his business. In its final and simple analysis that is taking the property of A and giving it to B, and that cannot be done under our Constitutions." In a subsequent portion of the opinion the court took up the question of whether or not the Act then under discussion could be sustained as an exercise of the police power and decided this question adversely. The whole trend of the principal decision is that the defense of assumption of risk is a common-law right, constituting property, which cannot be summarily taken away from an employer. While no workmen's compensation act has been passed 2 18 bradbury's workmen's compensation law "Elective" laws and constitutional question involved upon by the Federal Supreme Court, it is fortunate for those who are in favor of sustaining the validity of such acts, that that tribunal has squarely decided * almost the precise point involved in the Ives case, and that the decision of the Federal tribunal appears to be contrary to the determination reached by the New York Court of Appeals. The decision of the Federal Supreme Court was announced on January 15, 1912, while the Ives decision was handed down on March 24, 1911. The United States Supreme Court had under consideration the Federal Employers' Liability Act which is applicable to those engaged in interstate commerce. That act abolished entirely the defense based on the fellow-servant doctrine, abolished entirely the defense of contributory negligence and enacted the rule of comparative negligence, and abro- gated the defense of assumption of risk in all instances where the employer's violation of a statute enacted for the safety of his employes contributed to the injury. 2 In overruling the contention that the Act violated the Constitution the Court quoted with approval the rule stated below from a number of previous adjudications made by the same Court (223 U. S. 1, at page 50) : "A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the legislature, unless prevented by constitutional limita- tions. Indeed, the great office of statutes is to remedy 1 Second Employers' ■ Liability Cases, 223 U. S. 1; Bradbury's Work- men's Compensation and State Ins. L. (1st Ed.), p. 785. 2 The New York Court of Appeals has .since this decision was made abolished the defense of assumption of risk when the injury was due to a violation of a safety statute, without any action on the subject by the Legislature. Fitzwater v. Warren, 206 N. Y. 355; 99 N. E. Rep. 1042. INTRODUCTION 19 "Elective" laws and constitutional question involved defects in the common law as they are developed, and to adapt it to the changes of time and circumstances." The whole controversy as to whether or not elective laws are constitutional simmers down to the question whether the defense of assumption of risk, as applied to this class of cases, is a vested property right or merely a rule of the common law, or a rule of conduct prescribed by the common law, which can be changed at will. Upon the reasoning of the Supreme Court in the Second Employers' Liability Cases (223 U. S. 1), it would appear to be a rule which may be abolished. A distinction must be noted, how- ever, between the decision of the Court of Appeals in the Ives case and of the Federal Supreme Court in the Second Employers' Liability Cases. Under the Federal Employers' Liability Act the defense of assumption of risk is not com- pletely abolished, except in the cases where some fault may yet be predicated upon the act of the employer. It is only where the employer's violation of a statute, enacted for the safety of his employes, contributed to the injury, that the defense of assumption of risk is entirely abolished. Nevertheless the decision of the Federal Court is broad enough to cover the entire ground. It generalizes and treats all three defenses as intrinsically based on rules of the com- mon law which "may be changed at the will of the legisla- ture," and not property which cannot be taken without due process of law. A curious twist has been given to the law of New York as represented by the doctrine announced in the Ives case by more recent adjudications in that State. In the case of Fitz- water v. Warren, 206 N. Y. 355, the court specifically over- ruled the doctrine of the leading case of Knisley v. Pratt, 148 N. Y. 372, and held that as to injuries which were caused by the violation by the master of a statutory safety regula- tion, there could be no assumption of risk on the part of the employe, In a more recent case a Justice of the Supreme 20 bradbury's workmen's compensation law "Elective" laws and constitutional question involved Court has reached the conclusion that "the only logical result of the recent authorities would seem to be that what- ever was left of the defense of assumption of risk in master and servant cases for negligence has been done away with and that such a defense in such actions, whether brought at common law or under the statute, no longer exists." Rosasco v. Ideal Opening pie Co., 79 Misc. 507; 141 Supp. 23. In the last-mentioned case the Court points out that, of course, in all such cases, liability, must primarily depend upon the negligence of the defendant. If the employer has not been guilty of negligence there is no liability. The defense of assumption of risk is by way of confession and avoidance and necessarily presupposes that the defendant has been guilty of negligence. The Court then adds: "The defense of assumption of risk, so called, depends usually upon an implied agreement; in other words, the agreement is estab- lished by evidence from which the intention of the parties is implied. Where the employe knew of and appreciated the risk or danger and entered upon and continued in the em- ployment with such knowledge, or where the risk or danger was so manifestly apparent and obvious that if he exercised the care of a reasonable and prudent man he must have known it, and hence is assumed to have known it, the courts have held, as matter of law, that the employe had agreed to assume the risk of injury because in such cases, on such evidence, the Court would be bound to instruct the jury that they must find the fact that the employe* had agreed to assume the risk, or, if they found otherwise, set the verdict aside." The Court then cites Johnston v. Fargo, 184 N. Y. 379, in which it was held that an express agreement in writing by the employe to waive or assume the risk of an injury due to the negligence of the employer was in violation of public policy and void. The Court then cites the case of Fitzwater v. Warren, 206 N. Y. 355, in which it was held that no other or different principle from that announced in Johnston v. Fargo could be applied in the case of an implied agreement. INTRODUCTION 21 Brief review of the American laws thus far passed The Court then remarked that as the Court of Appeals had held that neither an express nor an implied agreement to assume the risk of employment could be sustained that the defense of assumption of risk was entirely abolished in all cases between master and servant for damages for injuries caused by negligence. An appeal was taken from the Rosasco case, but before it came on for argument the case was settled. These decisions would seem to remove any obstacles which may be found in the Ives case against upholding elective workmen's compensation laws. The discussion in the Ives case related to a compulsory law which made the employer liable without regard to his negligence or freedom therefrom. Of course under the com- mon law or employers' liability acts even though all the common-law defenses are abolished the workman must still prove that his employer was negligent in order to recover. Therefore the later decisions are not very persuasive on the question of whether or not compulsory workmen's com- pensation laws are valid in the absence of constitutional amendment specifically authorizing the enactment of such statutes. 8. Brief review of the American laws thus far passed. All the laws thus far passed, with the exception of those in Arizona, Washington, California and New York, are elective. In Ohio, also, a law has been passed to take effect, so far as the compulsory feature is concerned, on January 1, 1914. l Under a provision of the amended Constitution of that 1 The taking effect of the compulsory law in Ohio has been left in doubt by a referendum petition which is in litigation and had not been decided when this edition went to press. In ordinary course the referendum petition would have been decided at the election in the fall of 1913. Court proceedings were taken to test the validity of the referendum and these proceedings were pending undetermined when the election was held in 1913. The Ohio Industrial Commission takes the position that the com- pulsory lawtwent into full effect on Jan. 1, 1914. See note prefixed to text of Ohio law. 22 bradbury's workmen's compensation law Brief review of the American laws thus far passed State, the Legislature is empowered to enact a compulsory statute. The present law, which remains in effect so far as the compulsion is concerned, up to January 1, 1914, is an elective act. In other respects the amended law went into effect on June 17, 1913. In Washington, Oregon, West Virginia and Ohio the statutes are founded on the State insurance plan t® a greater or less extent. This does not mean that the State guarantees the payments, but merely that State officers supervise the State insurance fund which is authorized to be created. In none of these commonwealths where State insurance plans are in force, except in Ohio, can the employer adopt the workmen's compensation principle at all without also adopting the State insurance plan. In Ohio, under the amended law, employers are given the option in certain cases to carry the risk themselves or to become members of mutual associations. The State insurance stat- utes except the West Virginia Act and new one in Ohio apply to a limited number of occupations only. In the other States the laws either impose a personal liability on the employer, or on an insurance association or company in which the employer carries the risk incident to the workmen's compensation act, or on a State insurance fund, which the employer has the option of joining in a few commonwealths. In California, Connecticut, Michigan and New York the employer has the option of self-insurance, stock company insurance, joining a mutual association or a State insurance fund. In some of the States no assur- ance is required at all, the liability being carried by the em- ployer personally. Massachusetts has a law which, until very recently, was peculiar to that State. Texas has now adopted a stat- ute similar in many respects to the Massachusetts law. In Massachusetts the Act provides for the creation of a mutual insurance company, which, at first, was organized by directors appointed by the Governor. Subsequently the employers who became members elected the directors INTRODUCTION 23 Brief review of the American laws thus far passed and thereafter it became purely a private mutual insurance company. Other mutual associations authorized to do busi- ness under the laws of Massachusetts and also stock liability insurance companies authorized by the laws of Massachusetts to do business in that State stand on the same basis that the State company occupies. Claims for compensation are paid directly by any of the insurance companies carrying partic- ular risks. Employers are not permitted to adopt the com- pensation principle without showing that they have secured an insurance policy in a duly authorized company and when their insurance lapses they are deprived of the benefits of the limitations contained in the Compensation Act. As be- fore stated, the new Texas Act is constructed very much on the principles of the Massachusetts statute. In Michigan still another plan was adopted. There em- ployers are permitted to carry their own risks if they can demonstrate to the satisfaction of the proper authorities that they are financially responsible and able to carry such risks; or they may insure in mutual insurance associations created under the laws of the State of Michigan; or they may insure in stock liability insurance companies authorized to do busi- ness under the laws of the State of Michigan; or they may join a State insurance fund which is administered by the Commissioner of Insurance. The disputes over claims for compensation are decided by the Industrial Accident Board created by the Act with a right of review in the courts in certain cases. An employer cannot adopt the compensation principle without either taking one of the forms of insurance specified or demonstrate to the Commissioner of Insurance that he is financially able to carry the risk himself. Some- what similar statutes with important modifications have been passed in California and Connecticut. The New York Act is a combination of the Ohio and the Michigan statutes, also with important modifications. The requirement that an employer should insure is, of course, for the benefit of the workmen. The conditions under 24 bradbury's workmen's compensation law Brief review of the American laws thus far passed workmen's compensation acts are very different from those which exist under employers' liability statutes. Under the common-law or employers' liability acts the workman can bring an action and secure a judgment for a specified sum of money, which he can enforce for the entire sum immediately. Under workmen's compensation acts the payments are de- ferred and are distributed over a large number of weeks, months, or years in some instances. An employer who is per- fectly solvent when the award is made may be in bankruptcy before the end of the term during which compensation is payable. It is important, therefore, for the purpose of pro- tecting the workmen, to see that the deferred payments are assured in some way. There is a great variance in the different statutes as to the benefits which are paid. In the first place; practically all of the statutes allow a waiting period of from one to two weeks after the accident before any compensation is allowed. In some of them, compensation for the full period of disability is allowed if such disability continues more than a specified number of weeks. All of the statutes allow certain sums for medical attention during a period varying from two weeks, as in New Jersey, for example, to ninety days, as in the California law. The amount payable for medical attention is limited in some statutes and is entirely unlimited in others. The amount payable for temporary disability varies from 50% to 66%% of the wages of the man at the time of the injury or his average wages during a specific time, usually a year just prior to the injury. In certain rare instances even a larger percentage of wages is allowed. In cases of total permanent disability, such as the loss of two hands, two arms, two eyes, etc., some of the statutes allow compensation for the remainder of the life of the work- man. Most of them, however, limit the total compensation to be paid in such cases either by the number of weeks or by the total sum disbursed. INTRODUCTION 25 Brief review of the American laws thus far passed In cases of temporary or partial disability and in many statutes in cases of total disability the weekly payments are limited from $8 to $15 as a maximum and $4 to $5 as a minimum, except where the workman was earning less than the rninimum at the time of. the injury, in which event he receives full wages instead of any fraction thereof. In some of the statutes it is provided that in case of specific injuries, like the loss of one hand, or one arm, or one eye, a specific amount is allowed consisting of a percent- age of the workman's wages for a specified number of weeks. In some of the statutes this specific allowance is in addition to other compensation for disability and in others it is in lieu of all other compensation except for medical attention. There are an infinite variety of provisions in cases of death. Usually, compensation is allowed to certain specified de- pendents, amounting to from 15% to 66 2 / 3 % of the wages of the workman, with maximum limits of from $10 to $15 per week, and minimum limits of from $4 to $5 a week over a specified number of weeks. There is also a limitation on the total amount to be paid in death cases as well as in all cases of disability, except where such disability is permanent and total, ranging from $3,000 to $5,000. In death cases also where the percentage of the wages which are allowed would be less than $4 or $5 a week, as the case may be, full wages are allowed. In a few of the statutes the widow's compen- sation depends upon the continuance of widowhood. Com- pensation to children also ceases when they reach certain ages. The question of the proper schedule of compensation has been the subject of much discussion, some of it more or less heated. The workmen, naturally, have been in favor of a liberal schedule under which a very large percentage of the wages earned would be paid in case of disability. Nat- urally, also, employers have endeavored to keep the sched- ule within reasonable bounds. This subject is of much greater importance than is gen- 26 bradbury's workmen's compensation law Brief review of the American laws thus far passed erally supposed. There are natural limitations on the amount which may be paid which apply especially to the laws passed in the various States. There are other limita- tions which rest on expediency. International industrial competition prevents the em- ployers of the American States generally from paying com- pensation which ^proportionately higher than is paid in the industries of foreign countries, the products of which are sold in competition with the output of the American man- ufacturers. International competition is modified in many ways by methods of production, natural resources and tariff duties. Interstate competition plays a still more important part in this question. In relation to the competition between the States, the question of natural resources, methods of produc- tion and tariff duties are not of so much consequence. In some of the industries a supply of raw materials near the plant has an important bearing on the subject of cost of production. The methods in use also are important in this connection. But these are considerations which apply irre- spective of the compensation laws. Therefore, the industries of one State which are brought in direct competition with those of an adjoining State, where the natural conditions are approximately equal in the two commonwealths, cannot afford to carry a burden which will add to the cost of pro- duction a sum which is appreciably more than is borne by the industries in the sister commonwealth. Interstate competi- tion is often very much more keen than international com- petition. For this reason, therefore, it would be very unwise for one State to adopt a schedule of compensation which would throw on its industries a burden much greater than is borne by industries of a similar nature in an adjoining State. This is a law of trade which it will be foolhardy to disregard, however humanitarian might be the considerations inducing the adoption of a liberal schedule of compensation. For where the compensation rate is high as compared with that INTRODUCTION 27 Brief review of the American laws thus far passed of an adjoining State, the wages must be reduced or the em- ployers in the competitive industries will be compelled to move to the State where the lower compensation rate pre- vails, or go out of business. In comparing the schedule of the compensation laws of American States with those of foreign countries it should not be forgotten that in a number of the foreign laws where a liberal schedule is found that the workmen themselves con- tribute a considerable portion of the amount eventually paid. This is especially true in Germany where the workmen themselves pay two-thirds of the benefits distributed for injuries which do not cause disability lasting more than thirteen weeks. In America the principle of compelling workmen to contribute anything whatsoever has been frowned upon and has only been adopted in one or two instances, and then the contributions have been trivial. The encouragement to malinger which a liberal scale of compensation undoubtedly develops must be given serious consideration in deciding this question. This is especially true under the plans which have been denominated State Insurance in a few of the American commonwealths. In Germany, for example, both the workmen and the employers themselves administer the Associations which have charge of the operation of the compensation law. As the workmen are compelled to contribute to the funds distributed the associations formed by them naturally have a keen interest in ferreting out and preventing fraud and malingering. The same considerations apply to the operations of the purely accident associations which are supported and administered solely by the employers. Under the so-called State insurance plans, however, no such safeguards exist. There are neither workmen nor employers who have a personal interest in ferreting out and preventing fraud and malingering among the workmen in a particular establishment. That such fraud and malingering exist to a considerable extent, even in Germany with all its safeguards, has been shown by much 28 bradbury's workmen's compensation law Brief review of the American laws thus far passed testimony from officials and others in Germany. The same complaint has been made in England. The truth of it is that there are a few workmen in every community who would rather loaf on ten dollars a week than work for twenty dollars a week. This number increases when the, compensa- tion is made almost the same as the wages. This small class will always take advantage of excessive liberality in the scale of compensation and simulate disability where none exists, or exaggerate injuries which are really trivial. 1 The foregoing are all important considerations which it would be the height of folly to ignore in fixing the schedule of compensation. While, therefore, it is easy and in fact a great satisfaction to say that we shall exercise the greatest liberality in this respect, such a proceeding has dangers which might in the end tend to discredit and perhaps destroy any plan of compensation. The procedure in determining claims for compensation is as varied in the different statutes as are all the other provi- sions. Usually, there must be some supervising authority to validate any settlement made between employers and employes. Attorneys' fees are limited and subject to approval. The compensation is usually paid in weekly in- stallments in the same manner that wages are paid, but there are provisions allowing, under special circumstances, that all compensation payments shall be commuted to a lump sum. In some instances disputed questions are determined by a board created under the act, and in others by the courts, in a summary manner. In those jurisdictions where State insurance funds are created the same board that collects the fund from the employers in a few instances disburses it to the employe's, and determines practically all the questions arising under the different acts. 1 In Germany a professional acrobat on the stage had been discovered drawing compensation for physical disability. In another case a man supposed to be disabled by reason of an injury to Ms elbow was found taking part in professional prize fights. INTRODUCTION 29 Brief review of the American laws thus far passed Notices of accidents and of claims for compensation are re- quired by most of the acts within particular periods of time, although these provisions are very liberal and generally de- void of technical requirements. > There are also provisions for the physical examination of claimants for compensation. Reports from various States where compensation acts are in force show that there has been scarcely any litigation over compensation claims between employers and work- men. Apparently, the American States have taken a long step in advance on this subject within the last two years and are still advancing rapidly. As before stated the elective law in Ohio was sustained by a decision of the Ohio court of last resort. State ex rel. Yaple v. Creamer, as Treasurer, 85 Ohio State, 349; 97 N. E. Rep. 602; 1 N. C. C. A. 30. The Washington law has also been sustained by the court of last resort of that common- wealth. State ex rel. Davis Smith Co. v. Clausen, 65 Wash- ington, 156; 117 Pac. Rep. 1101 ; 3 N. C. C. A. 599. Also by the United States District Court sitting in Washington. Stoll v. Pacific Coast Steamship Co., 205 Fed. 169. The last- mentioned decision was printed in full in Market World and Chronicle (N. Y.) , Mar. 24, 1913. Likewise the Wisconsin law has been sustained. Borgnis v. Falk Co., 147 Wis. 327; 133 N. W. Rep. 209; 3 N. C. C. A. 649. -In Massachusetts the Constitution permits the Legislature to submit proposed acts to the Supreme Judicial Court on the question of their con- stitutionality. In this way the Workmen's Compensation Act was submitted and declared to be constitutional. Opin- ions of Justices as to Constitutionality of House Bill 2154; Senate No. 615, 209 Mass. 607; 96 N. E. Rep. 308; 1 N. C. C. A. 557. The opinions of the courts of last resort of Massachusetts, Ohio, Washington and Wisconsin referred to above, as well as the opinion of the New York Court of Appeals in the Ives case, and of the United States Supreme Court in the Second 30 bradbury's workmen's compensation law Brief review of the American laws thus far passed Employers' Liability Cases, were printed in full in the first edition of this work. They are omitted from this edition for the reason that they are now easily obtainable in the regular reports and the space they occupied was badly needed for important new material. The Ives case and the Second Employers' Liability Cases have been discussed in the preceding pages. ^Digests of the decisions in Massachusetts, Ohio, Washington and Wisconsin are appended. Opinions of the Justices, 209 Mass. 607; 96 N. E. Rep. 308; Bradbury's Workmen's Compensation L., 1st Ed., p. 650; 1 N. C. C. A. 557. The principal points decided by the Court were the following: 1. The rules of law relating to contributory negligence and assumption of risk and the effect of negligence by a fellow servant were established by the courts,, not by the Constitution, and the legislature may change them or do away with them altogether, as defenses, as in its wisdom in the exercise of powers intrusted to it by the Constitution it deems will be best for the "good and welfare of this Common- wealth." 2. There is nothing unconstitutional in the provision of the Compensation Act that it shall not apply to domestic servants and farm laborers, nor in the provision that an employe shall be deemed to have waived his right of action at common law if he shall not have given notice to his em- ployer as in the act provided. 3. As the Compensation Act does not contain any legal compulsion to an acceptance by an employer or an employe of the provisions for compensation in lieu of damages, it is not in conflict with the Fourteenth Amendment of the Federal Constitution prohibiting the taking of property without due process of law, and constitutes a valid exercise of the power of the legislature of the Commonwealth of Massachusetts. State ex rel. Yaple v. Creamer, as Treasurer, 85 Ohio St. 349; 97 N. E. Rep. 602; Bradbury's Workmen's Compensa- INTRODUCTION 31 Brief review of the American laws thus far passed tion L., 1st Ed., p. 764; 1 N. C. C. A. 30. The Court de- cided that: 1. The , Workmen's Compensation Act providing for a classification of certain industries where five or more work- men are employed, establishing a State insurance fund by premiums to be paid at the rate of ninety per cent by the employers and ten per cent by the workmen and creating a State Liability Board of Awards to administer such fund and providing that as to employers who do not accept the com- pensation principle that certain common-law defenses shall be abolished in actions by their workmen, is a valid exercise of the police power of the Legislature and is not unconstitu- tional as taking private property without due process of law contrary to the Fourteenth Amendment of the Federal Constitution; nor is it invalid as violating the right contract the inequality and conflict almost entirely disappear. Moreover, there are many practical and apparently insurmountable difficulties in the way of working out the compensation problems equitably, should the rule established by the Massachusetts Court prevail generally. Suppose a Massachusetts employe, who is employed by a Massachusetts employer, is injured in Wisconsin and is relegated to the Wisconsin Compensation law for his remedy. How will he secure jurisdiction over the employer to enforce the Wisconsin statute? If it is answered that the Courts of Massachusetts would enforce the Wisconsin law as to Mas- sachusetts employers and employes, the reply is that there are serious obstacles in the way of such a procedure. This difficulty arises from the provisions of these various statutes as to the manner in which questions arising thereunder can be determined. Some of them provide for arbitration, others for a summary trial before a judge of a particular Court with- out a jury, while others give certain accident boards, or in- dustrial commissions, exclusive jurisdiction to hear and de- termine such controversies. Naturally, the Courts of neither Massachusetts nor New York, for example, could determine in the manner provided in the statute a case arising in a State where exclusive jurisdiction of such controversies was given to an Industrial Commission, as in Wisconsin, because there is no industrial commission in Massachusetts, 1 or in 1 There is an Industrial Accident Board in Massachusetts, and a Workmen's Compensation Commission in New York, which somewhat resemble the Industrial Commission of Wisconsin, but there are im- portant differences in the powers of these bodies. There is a much greater departure when it comes to questions of practice. The Wisconsin INTRODUCTION 53 Extra-territorial effect of compensation statutes New York, such as is created by the Wisconsin statute. In this connection the decision in a recent case in the New York Court of Appeals becomes very important. It was therein declared: " When the statute creating the right provides an exclusive remedy, to be enforced in a particular way, or before a special tribunal, the aggrieved party will be left to the remedy given by the statute which created the right." Loomis v. Lehigh Valley R. R. Co., 208 N. Y. 312, at page 332. The decision from which the above quotation was taken did not arise under a compensation act. The plaintiff sued the railroad company to recover the cost of fitting cars, provided by the company, so as to make them suitable for shipping grain and other products in bulk. The court held that as to intrastate shipments the plaintiff could recover, but that as to interstate shipments the remedy was under Federal laws and must be enforced in the manner and in the tribunals particularly specified in the Federal statutes. It was in that connection that the language quoted was used. The court itself italicized the words to emphasize their importance. A few of the compensation acts of the various States leave the determination of controversies arising thereunder to the courts. Many of them, however, either create a board, or a commission, to decide such questions, or specify a particular court or judge where they may be determined, in a summary manner, without a jury. In practically every instance, the procedure would be entirely different from that under the laws of adjoining States. These considerations apply to almost any two States which can be mentioned. This would Act provides that exclusive jurisdiction is conferred upon the Wisconsin Industrial Commission and, therefore, even if the jurisdiction and practice of that body were identical in relation to cases arising under the Wiscon- sin Act with the Massachusetts Industrial Accident Board in relation to cases arising under the Massachusetts Act, neither would have jurisdiction over cases arising in the other State in lieu of statutes conferring such jurisdiction. 54 bradbury's workmen's compensation law Extra-territorial effect of compensation statutes seem to be a very practical difficulty tending to the impossi- bility of the enforcement of the compensation act of one State in the courts of another State, under the doctrine of Loomis v. Lehigh Valley R. R. Co., supra. This is a very practical reason why the rights and remedies under a compensation law should be considered as resting upon contract. For should the employe, who is thus injured in Wisconsin, or Ohio, or Michigan, endeavor in the courts of Massachusetts to enforce his rights under the Wisconsin, the Ohio, or the Michigan Act, he will be met with the difficulty that Massa- chusetts has no legal machinery corresponding to that of Wisconsin, Ohio and Michigan, to enforce the law in the manner provided in the statutes of those several States. Moreover, often it will be a serious question whether or not the employer is subject to the provisions of the compen- sation act at all of a State foreign to that of his residence. This is particularly true in those instances where the em- ployer must take some affirmative action to indicate his adop- tion of the compensation principle. Suppose a Massachusetts employe is sent to Ohio, where he can claim compensation from the State Fund only, and then only when his employer either has contributed to the State Fund or is liable for such a contribution. If the law of the place where the accident happens applies exclusively, would such an employe 1 have a right to enforce all the drastic provisions of the Ohio law rela- tive to those who have failed to contribute to the State Insur- ance Fund, and enforce those drastic laws in the courts of Massachusetts, against a Massachusetts employer who had adopted the compensation law of his own State and had fully complied with its provisions, but who had not adopted the compensation provision of the Ohio law? There are many practical difficulties in the way of an em- ployer adopting the varying compensation provisions of a dozen, or two dozen, States, when he sends employes to one or more of them only occasionally. But whether the em- ployer has or has not adopted the laws of States other than INTRODUCTION ' 55 Extra-territorial effect of compensation statutes those of the residence of himself and his workmen, where the contracts of employment are made, there would in many cases, be great difficulty in enforcing the law of the State where the accident happened in the regular Courts of the State of the employer's residence when the respective laws of the two States provided entirely different methods of admin- istering their various statutes. The problem is one which of course, does not arise under the old employers' liability acts, for they were all enforced by the regular Courts, by a pro- cedure which was essentially the same (although differing in important details) in all the States. The difficulty under the compensation laws is somewhat the same as was experienced in attempting to give full faith and credit in one State to cer- tain equitable decrees of the Courts of another State. It was sometimes found that the Courts of the State wherein the decree in equity of another State was sought to be enforced did not have the judicial machinery to enforce the decree in the same manner provided in the State in which the decree was rendered. Equitable decrees therefore have never had the same standing under the full-faith-and-credit clause of the Constitution that judgments in actions at law have had. In Great Britain the conditions are entirely different from those existing in the American States, although the decisions hereinbefore cited arose in relation to accidents which hap- pened entirely outside the United Kingdom. True the accidents in one of the cases, at least, happened on a British vessel. Under the decisions in the cases of McDonald v. Mallory, 77 N. Y. 546, and Crapo v. Kelly, 16 WaU. 610, it might be that even the Massachusetts Act would be held to apply in similar circumstances. 1 In this respect the 1 The question of jurisdiction in cases in any way involving interstate or foreign commerce is always a very troublesome one. The Massa- chusetts Act was amended in 1913 so as to exclude masters and seamen on vessels engaged in interstate or foreign commerce. L. 1913, c. 568. The statement in the text is a general one based on the assumption that the question was not complicated by conflicting jurisdictions over the subjects of interstate and foreign commerce. 56 bradbury's workmen's compensation law Extra-territorial effect of compensation statutes British decisions are in conflict with adjudications of our Federal Supreme Court. But the principal difference in the conditions between Great Britian and the United States is that in the former the Compensation Act applies to the whole of the territory of the United Kingdom. Thus if an employer in London sends an employe to Scotland, Wales or Ireland and he is ther» injured, the Compensation Act applies. While under the doctrine of Gould v. Sturtevant, supra, if a Massachusetts employer should send a workman to New York the Massachusetts Act would have no application whatsoever and the employe* would have no claim whatsoever on his employer, unless he could base it on negligence. This, of course, would be assuming there was no compensation law in New York. Therefore, partially receding from the position taken in the first edition of this work, although that position has been sustained by eminent authority, it is believed that the doc- trine which must be established finally will be, in effect, that the law of the place where a contract of employment is made will govern the rights and liabilities of employes and employers to claim and to pay compensation. Sight has not been lost of the difficulties which the adoption of this doc- trine will entail in some instances. Thus suppose an em- ployer, in a State where there is no compensation act, employs workingmen in that State to go to a State where there is such an act; what law will then apply? Suppose, further, that the State to which the workmen are sent has a law, like that of New Jersey, where there is a pre- sumptive election to adopt the compensation feature of the statute? The answer seems to be that until the workmen reach the border of the State to which they are sent there is no contract between them and their employers, relating to compensation, but that the very moment the workmen pass the State line such a contract is created be- tween them, by presumption of law. It is freely admitted that this seems to be inconsistent with the theory that the INTRODUCTION 57 Extra-territorial effect of compensation statutes law of the place where the contract of employment is made is binding on the parties. But the difficulty arises from the fact that only a portion of the States have enacted compensa- tion laws. If they all had such statutes the difficulty would disappear, as a practical matter. At present, while there is a contract of employment between such employers and em- ployes, there is none relating to compensation, and the new contract relating to that subject, which is created by pre- sumption the moment the employe gets over the border, does not change the contract of employment, but adds a new one relating to a different subject. Just what view the different courts of forty-eight States will take of the rules applicable to a set of circumstances such as here suggested it is impos- sible to anticipate. Should proceedings be brought in a State where the accident happened, and in which a compensation act containing a presumptive election was in force, as to an employe who was employed under a contract made in another State, which had no compensation act, it is believed, in most cases, it would be held that the compensation law of the State where the accident happened applied. If, however, under the same circumstances, the proceeding should be brought in the State where the contract was made, but which had no com- pensation law, the result would be more doubtful. One New York Court has already held, in a somewhat similar case, that it would not enforce the New Jersey Compensation Act in default of a showing that the contract of employment was made in New Jersey. Pensabene v. Auditore Co., 2 Bradbury's PI. & Pr. Rep., p. 212; 155 App. Div. 368; 140 Supp.268. In the case of Whitford v. The Panama Railroad Co., 23 N. Y. 465, the Court said, at page 471 : "It is no doubt within the competency of the Legisla- ture to declare that any wrong which may be inflicted upon a citizen of New York abroad, may be redressed here according to the principles of our law, if the wrong- doer can be found here, so as to be subjected to the 58 bradbury's workmen's compensation law Extra-territorial effect of compensation statutes jurisdiction of our courts; but as we could not by any legislation of this kind put an end to the liability of the party to the lex loci, or divest the foreign government of its jurisdiction over the case, such a statute would rarely be just in its operation, and would be more likely to lead to confusion and oppression than to any bene- ficial results. *Hence, legislation of the kind suggested has not found any place in the statute books of modern nations, except in the case of laws respecting the army and navy, which, when operating abroad, must of course be governed by the laws enacted by the government of the country which sends them forth, and except also in regard to foreign commerce prosecuted in our own vessels. In such cases the fleets and armies, and ships of commerce carry with them the nationality which originally belonged to them. Prima facie all laws are coextensive, and only coextensive with the political jurisdiction of the law-making power. (Story's Confl. Laws, §§ 18-20; United States v. Bevans, 3 Wheat. 336, 386; 3 Dall. 320. Translations from Huberus; Bank of Augusta v. Earle,13 Pet. 519.) This limitation upon the operation of the laws of a country is quite consistent with the practice which universally prevails, by which the courts of one country entertain suits in relation to causes of action which arise in another country, when the parties come here so as to be made subject to their jurisdiction. Whatever liability the defendants in- curred by the laws of New Grenada, by the act men- tioned in the complaint, might well be enforced in the courts of this State; the defendant as a domestic cor- poration being readily compellable to answer here. But the rule of decision would still be the law of New Grenada, which the court and jury must be made ac- quainted with by the proof exhibited before them." Doubtless the above statement of the law from the Whit- INTRODUCTION 59 Extra-territorial effect of compensation statutes ford case would apply to-day, provided a claim under a compensation act is considered based upon a tort. If, on the other hand, it is based on a contract, there is no more reason why a contract made in New York should not be en- forced in New Jersey and vice versa, in relation to com- pensation for injuries, than there is why a promissory note or a contract for services made in one of these States should not be enforced in the other. II Coming to paragraph II of the questions stated at the beginning of this subdivision, that is, as to when the Courts of one State will enforce the compensation laws of another State, in relation to accidents which happen within the boundaries of the State the law of which it is sought to en- force, or within the boundaries of a third State, the few de- cisions thus far made are neither final nor satisfactory. For example, where an accident happens to an employe" in New Jersey when the contract of employment was made in that State, and both employer and employ e" were subject to the provisions of the law of that State, will the Courts of New York entertain jurisdiction of an action or proceeding by the employe based on the New Jersey Workmen's Compensation statute? Again, under subdivision (c) of question II, above, assume that both employer and employe" were residents of and sub- ject to the provisions of the New Jersey Workmen's Compen- sation Act, and that the employe" was sent to the State of Pennsylvania on the business of the employer, and there in- jured, would the Courts of New York entertain an action or proceeding by the employe" against the employer, to enforce the provisions of the New Jersey Workmen's Compensation Act? The New York Court of Appeals has recently said: "It is now recognized that the jurisdiction of State courts extends to the hearing and determination of any 60 Bradbury's workmen's compensation law Extra-territorial effect of compensation statutes civil and transitory cause of action created by a foreign statute, provided it is not of a character opposed to the public policy of the State in which the suit is brought. When the statute creating the right provides an exclusive remedy, to be enforced in a particular way, or before a special tribunal, the aggrieved party will be left to the remedy given by the statute which created the right." Loomis v. Lehigh Valley^R. R. Co., 208 N. Y. 312, at page 332. The italics were inserted by the Court. That case did not arise under a workmen's compensation act. The action was brought to enforce the common-law liability of a common carrier to furnish proper cars to transport the kind of freight which it agreed to transport. Certain of the shipments were interstate and certain others intrastate. The Court held that as to the intrastate shipments the liability could be en- forced, but as to the interstate shipments the matter was governed by the Federal law and the remedy of the plaintiff must be secured in the manner provided by the Federal statute. The words in italics are significant. The Court pointed out that the plaintiff must go to the Federal Courts to enforce the liability of the defendant in relation to inter- state shipments. The general principle to be found in the cases is that the courts of New York, for example, will enforce the laws re- lating to master and servant, by reason of accidents occurring in another State, if New York has laws which are similar, but not necessarily identical, with those of that former State, and such statutes are not opposed to public policy or to abstract justice or pure morals. Wooden v. Western N. Y., etc. R. Co., 126 N. Y. 10; Howlan v. New York & New Jersey Telephone Co., 131 App. Div. 443; 115 Supp. 316; Payne v. New York, Susquehanna & W. R. Co., 201 N. Y. 436; Zeikus v. Florida East Coast Ry. Co., 153 App. Div. 345; 138 Supp. 478; Second Employers' Liability Cases, 223 U. S. 1; Hutchinson v. Ward, 192 N. Y. 375, 381 ; Marshall v. Sherman, 148 N. Y. 9. The INTRODUCTION 61 Extra-territorial effect of compensation statutes same doctrine seems to be confirmed by the case of Loomis v. Lehigh Valley R. R. Co., supra. Several decisions in New York seem to indicate that the courts of that State at least will enforce the workmen's com- pensation act of other States, and even of foreign countries, although several important questions yet remain undeter- mined. In Albanese v. Stewart, 2 Bradbury's PI. & Pr. Rep., 189, it was held that in an action by an employe" against his employer, for injuries alleged to have been caused by the negligence of the defendant in New Jersey, that a defense, as a bar to the action, that the plaintiff's remedy was limited exclusively to the Workmen's Compensation Act of New Jersey was upheld. In Schweitzer v. Hamburg American Line, 3 Bradbury's PI. & Pr. Rep. 285; 78 Misc. 448; 138 Supp. 944, it was held that a defense based on the contention that the plaintiff's exclusive remedy was under the German Workmen's Com- pensation Act was upheld. It appeared that the plaintiff, a German subject, was employed in a German port, on a German vessel, for the trip between the German port and New York and return. The injury, of which complaint was made, was caused by the alleged negligence of the defendant while the ship was in New York Harbor. The same case was before the Appellate Division on an appeal from an earlier decision relating to a motion on the pleadings. 149 App. Div. 900; 134 Supp. 812. The Appellate Court specifically re- served the question of law involved and merely held that the plaintiff should be compelled to reply to the new matter set up in the answer, which new matter consisted of the defense that the plaintiff's sole remedy must be based on the German Workmen's Compensation Act. In the case of Pensabene v. Auditore Co., 2 Bradbury's PI. & Pr. Rep. 197, and the same case on appeal to the Appellate Division, 2 Bradbury's PL & Pr. Rep. 212, the plaintiff, as a dependent of a workman who had been killed in New Jersey, brought an action for compensation in the New York Courts 62 bradbtjry's workmen's compensation law Extra-territorial effect of compensation statutes based upon the provisions of the New Jersey Workmen's Compensation Act. The question was raised in this case on a demurrer to the complaint. In the lower Court it was held that the action could be maintained. The principal question was left undecided in the appellate court, it being held simply, that the complaint was insufficient, because no allegation was contained therein to the effect that the contract of employ- ment was made in New Jersey. None of the decisions cited, therefore, can be considered as final authorities. So far as the lower courts have gone they have held that an action can be maintained affirmatively to enforce the provisions of the New Jersey Workmen's Com- pensation Act, and also that when an action is brought in New York for common-law damages, that the plaintiff will be relegated to his remedy under the foreign workmen's compensation act. Under the Massachusetts Workmen's Compensation Act, requiring the giving of notice by an employe to an employer who has adopted the compensation principle by taking out liability insurance, it has been held that an employe* of such an employer sustaining an injury in Massachusetts may not sue in Rhode Island without alleging and proving the giving of a notice required by the statute. Pendar v. H. & B. American Mach. Co., Rhode Island ; 87 Atl. Rep. 1. The Kansas Act provides specifically that: "No action or proceeding provided for in this Act shall be brought or maintained outside of the State of Kansas, and notice thereof may be given by publication against non-residents of the State in the manner now provided by Article 7, of Chapter 95, General Statutes of Kansas 1909 so far as the same may be applicable, and by personal service of a true copy of the first publi- cation within twenty-one days after the date of the said first publication unless excused by the court upon proper showing that such service cannot be made." § 36. INTRODUCTION 63 Actuarial principles underlying State insurance laws From numerous adjudications of the United States Supreme Court and other tribunals it would appear that such service as is provided for in the section quoted above on non-residents of the State of Kansas would be of no avail so far as en- forcing the judgment in personam against the employer is concerned, unless the plaintiff could secure a lien on the de- fendant's property in Kansas by attachment or other similar process, and then only to the extent of the property seized. Whether the New York Courts would entertain an action or proceeding under the New Jersey Act, when the accident happened in Pennsylvania, would, of course, depend upon the ultimate detennination of the question discussed in paragraph I of this subdivision. Should it be held finally that the New Jersey Compensation Act creates a contractual relation between employer and employe, which governs an injury suffered while the employe is out of the State of New Jersey, then the further question of whether or not New York Courts would entertain jurisdiction of a proceeding under the New Jersey Act would not be affected by consider- ation of the place where the accident happened. If the con- trary doctrine is established the New York Courts might still entertain a proceeding under the New Jersey Act when the accident happened in New Jersey. 2. Actuarial principles underlying State insurance laws. The actuarial principles underlying the State insurance laws thus far enacted are of great importance to both em- ployers and employes. The problems they present in the United States are different from those found in any other country. This is due to the fact that a State insurance law can be effective only within the territorial limits of the com- monwealth in which it is enacted. Considerable danger lies in the fallacy which wrecked so many of the old mutual and fraternal Hfe and accident in- surance companies and associations. There is always a tendency to collect small premiums to pay for current losses 64 bbadbuby's wobkmen's compensation law Actuarial principles underlying State insurance laws only, and not accumulate sufficient reserves to pay deferred claims. So long as those old mutual companies and fraternal associations were increasing in size they were able to meet their liabilities. Just as soon, however, as they reached a point where there was little or no further increase in the membership, or when the membership began to fall off, then they invariably had trouble. One of the greatest prob- lems which the American States have had, in relation to insurance, has been to compel such associations to collect premiums large enough to keep them solvent. The public generally always has been attracted by low insurance rates and those who have taken policies have not always used wise discrimination to inquire whether or not there would be enough money to pay should a loss occur. The same spirit, to some extent, has animated the establish- ment of State insurance funds. Inasmuch as the insurance is now for the benefit of the workmen, although taken out by the employer, strict public supervision is essential. The tendency has been to collect just enough to pay current losses instead of having the premiums sufficient to capitalize deferred pay- ments. Of course, the stock liability insurance companies have been forced by law to do business on an entirely dif- ferent basis. They have been compelled to collect sufficient premiums to lay aside reserves to meet all the claims out- standing, so as to escape bankruptcy. The most important duty of the numerous insurance commissioners has been to watch the finances of the various companies to see that they did not become insolvent. 1 1 "As I have frequently said, I am no advocate of strict insurance super- vision as such. There should be just as little of it as we can possibly get along with. Insurance supervision, as I look at it, is not primarily intended for the strong, well-established companies at all. Its primary purpose is to shut out the frauds and cheats and fly-by-nights from trying to sell worthless insurance to credulous people. But, of course, it is impractical to draw any line of distinction between companies which might safely be allowed to paddle their own canoes and companies which have to be INTRODUCTION 65 Actuarial principles underlying State insurance laws It is the easiest thing in the world to start an insurance company, provided adequate reserve rules are not enforced. There is always a large present payment of cash in the treasury, and the losses are necessarily deferred. This is especially true in compensation cases where the losses are paid in weekly installments over a long period of years. Many who have not understood clearly the principle in- volved in such cases have been quick to advocate the establishment of a State insurance fund without adequate provisions for reserves to meet deferred claims, but only suffi- cient to meet current losses. Such a fund is insolvent from its inception, considered from an actuarial standpoint. As the deferred payments begin to mount up they are con- stantly added to by current losses and the sums which must be collected in premiums must, naturally, be greatly increased also. Those who advocate such a plan point to the fact that it has been established in Germany, and apparently has worked well. The truth of it is that many of those who have given close thought to the subject in Germany are yet fearful of the final outcome. Moreover, Germany has found it absolutely essential in some occupations, such as the building trades, for example, to abandon the old plan and collect premiums on a capitalized basis. But those who cite Germany as an example to be followed in the American States are very shortsighted. With the principle of absolutism which pre- vails over the entire country in the German Government watched closely. Any rules that are laid down must apply to all alike. For that reason, the strong companies should willingly undergo what sometimes may seem to them to be unnecessary exactions on the part of government. I am inclined to think that even the best managed com- panies find that the co-operation they get from the stronger State insur- ance departments in their efforts to solve the outstanding insurance problems which still await a settlement is of material assistance to them." From an address by Hon. William Temple Emmet, Superintendent of Insurance of the State of New York before the Insurance Society of New York, on Oct. 28, 1913. 5 66 BRADBURY'S WORKMEN'S COMPENSATION LAW Actuarial principles underlying State insurance laws that country is able to do many things in this direction which would be impossible of accomplishment in America, with our varied laws and conflicting jurisdictions due to State boun- daries. Germany can bring enough establishments engaged in a particular trade or occupation within the operations of a particular insurance association so as to produce a sound actuarial insurajice average. Any increase in subsequent years, due to insufficient premium collections in the earlier years, falls on the entire trade. Even in Germany there has been bitter complaint by employers who continued in busi- ness in being compelled to pay compensation to employes of concerns which have gone out of business. In America the conditions are radically different from those existing in Germany. There is such a small representa- tion of many trades in particular States that no sound actuarial insurance basis can be secured. For example, where there are only two or three industries in a State, which are classified together for industrial insurance purposes in a State insurance fund, it means that these two or three estab- lishments in that particular trade are, to all practicable pur- poses, carrying their own insurance. If premiums sufficient to pay current losses only are collected from these few estab- lishments the time will come, within a few years, when the premium rate will be so high that it will be almost imprac- ticable to create new establishments or for the old ones to continue in the same fine of business in that particular State. This is especially true if the same trades have been carried on in adjoining States under a plan whereby in the years gone by sufficient premiums have been collected to pay not only current losses but deferred claims as well, on the old-line insurance plan. That is, in the State where suffi- cient premiums have been collected in the past, so that there is, with slight variations, a level premium for the years gone by, as well as for the future years, the industries in such States will be in a much stronger position than in the com- monwealths where only sufficient has been collected to pay INTRODUCTION 67 Actuarial principles underlying State insurance laws current losses. In other words, in the States where a level premium has been maintained this premium at the end of ten or fifteen years will be very much less than it will be necessary to collect from the same industries in the States where only sufficient has been collected to pay current losses, leaving the accrued and accruing claims of employes injured while employed by employers who have died, gone out of business or become bankrupt to be paid by those who continue in the same line of business. The inevitable result of this condition of affairs is perfectly obvious. The indus- tries of those States where the current premium principle has been in force will find that their premiums for workmen's compensation protection will have increased in ten or fifteen years so that they will be utterly unable to compete with the industries in the States where a level premium on a capi- talized basis has been maintained. The industries in the States where the current loss premium principle has been invoked will find it necessary in ten or fifteen years to either go out of business or move to the States where the level premium principle has been in force. It will be no more possible to avoid the effect of this than it will be to escape from the penalty for a violation of one of Nature's laws. In those States where there are few establishments in a particular line one or two bad losses will bankrupt the State insurance fund as to that trade or industry if the fund is seg- regated for the payment of losses as well as the collection of premiums. If such a segregation is not made as to payment of losses then the other trades of which there may be a con- siderable number will be compelled to pay the losses of those occupations of which there are only a few establishments. All of which is merely another proof of difficulty of securing a proper or safe average in relation to workmen's compensation insurance within the limits of a single State of the Union. An attempt has been made to avoid the difficulty by classifying together those trades or occupations in which the premium rate is approximately the same irrespective 68 bradbury's workmen's compensation law Actuarial principles underlying State insurance laws of the natural relation of the trades thus brought together each to the others. Some such plan was absolutely necessary to obviate the difficulties suggested. The experiment will be watched with interest. CHAPTER II ABOLITION OF DEFENSES Page ARTICLE A— Introduction 69 1. Reason foe Abolishing the Common-law Defenses 69 ARTICLE B — Specific Provisions of Various Statutes 71 Page Page Arizona 71 Nevada 92 California 74, New Hampshire 93 Connecticut 78 New Jersey 94 Illinois 79 New York 96 Iowa 81 Ohio 97 Kansas 82 Oregon 98 Maryland 86 Rhode Island 99 Massachusetts 87 Texas 100 Michigan 88 Washington 101 Minnesota 89 West Virginia 102 Nebraska 91 Wisconsin 103 ARTICLE A— INTRODUCTION 1. Reason for abolishing the common-law defenses. Many of the so-called common-law defenses, the origin and development of which are fully discussed in Chapter I, were greatly modified, and, in some rare instances, entirely abolished, before the compensation statutes were enacted. The alternative abolition of these defenses in the compensa- tion acts was hit upon as a plan to escape the constitutional question raised in the case of Ives v. South Buffalo Ry. Co., 201 N. Y. 271. In that case it was held that a mandatory compensation law was unconstitutional. 1 The Legislature of New Jersey thereupon passed an optional compensation statute, under which if an employer failed to adopt the 1 See the discussion beginning ante, page 11. 69 70 bradbury's workmen's compensation law Reason for abolishing the common-law defenses compensation principle, the common-law defenses of as- sumption of risk and negligence of fellow servant were abolished and the defense of contributory negligence was greatly modified in actions by employes against him for personal injuries due to negligence. Many of the other States followed the example of New Jersey. Recently se-weral- Commonwealths have adopted consti- tutional amendments permitting the Legislature to enact compulsory workmen's compensation statutes. Where these constitutional amendments have been adopted, the Legis- lature may enact compulsory compensation laws and is not driven to the necessity of taking this means of com- pelling employers to adopt the compensation principle. Only a few States have adopted such constitutional amend- ments thus far. In many of them the expedient is still em- ployed of forcing employers to adopt the compensation principle by abolishing their common-law defenses. In some of the statutes the question whether or not the employe" has elected to accept or refuse compensation has a bearing on the subject. Some of the acts provide that if the employer elects to adopt the compensation principle and an employe 1 of such an employer refuses to accept compensation in lieu of damages, then in any action by such an employe the employer may have the benefit of the common-law de- fenses. The statutes are not uniform, however. In some of them the defenses are absolutely abolished. In such cases, if the statute is elective, the employe may elect to refuse compensation and sue for damages and still the employer is deprived of the privilege of interposing the common-law defenses. In the following pages the question is discussed under the title of each State, showing exactly what the law is in the several Commonwealths at the present time. While compensation is paid irrespective of the negligence of the employer there are still certain defenses which are applicable to the purely compensation features of the stat- ABOLITION OF DEFENSES 71 Arizona utes. Thus it is usually provided that compensation shall be refused when the injury is intentionally inflicted. The same result follows, according to some of the acts, if it was caused by intoxication or wilful misconduct. Such defenses are discussed in their appropriate places. The present chapter deals only with the abolition of the so-called common-law defenses in actions for damages when employers or employes are, for any reason, not bound by the compensa- tion features of the statute which governs their relations. ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA The workmen's compensation feature of the Arizona statute is compulsory in form. It is not necessary, therefore, to abolish the common-law defenses as an inducement to compel employers to adopt the compensation principle. The subject is complicated somewhat in Arizona, however, by the fact that there are two general statutes governing the relation of employers and employes which must necessarily be read together. The Workmen's Compensation Act proper, which is Chapter VII of the codification of the Laws of 1913, relat- ing to Employer and Employe, provides that employers in certain specified trades shall pay compensation to their em- ployes according to a schedule contained in that chapter. By Section 68 of Chapter VII, it is further provided that, "In case such employe 1 or his personal representative shall refuse to settle for such compensation (as provided in Section 8 of Article XVIII of the State Constitution), and chooses to retain the right to sue said employer (as provided in any law provided for in Section 7, Article XVIII of the State Con- stitution) he may so refuse to settle and may retain said right." Therefore, the above section gives the employ^ the right to elect, after the accident, whether he will claim under the compensation law or will sue for damages under the Em- 72 bradbury's workmen's compensation law Arizona ployers' Liability Act, which is Chapter VI of the revision of 1913. Of course, if he accepts compensation no question of common-law defenses arises. But by Chapter VI of the revision of 1913, relating to Employer and Employe^ the employe may sue the employer for unlimited damages in all cases where the employer is engaged in so-called hazardous occupations specified in this Chapter. The so-called hazard- ous occupations specified in Chapter VI are exactly the same hazardous occupations that are specified in Chapter VII, which latter chapter is the Compensation Act proper. According to the provisions of Chapter VI the right of action exists after a death or injury "caused by any accident due to a condition or conditions of such occupation, of any employe in the service of such employer in such hazardous occupation, in all cases in which such death or injury of such employe shall not have been caused from the negligence of the employe killed or injured." From the foregoing it appears that any employe may refuse to accept the compensation principle and sue under the Employers' Liability Act, and while the employer can set up the defenses of contributory negligence and assumption of risk these defenses are so strictly regulated in Section 61 of Chapter VI as to be of little value to the employer. The section provides: "In all actions hereafter brought against any such employer under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to any employe^ or where such injuries have resulted in his death, the question whether the employe" may have been guilty of contributory negligence, or has assumed the risk, shall be a question of fact and shall at all times, regardless of the state of the evidence relating thereto, be left to the jury, as provided in Sec. 5, of Article XVIII of the State Constitution; provided however, that in all actions brought against any employer, under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employ^, or where such injuries have resulted in his death, the- fact that the employe" ABOLITION OF DEFENSES 73 Arizona may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employeV' While the section last above quoted speaks of the question of whether or not the employe 1 "assumed the risk" there is nothing else in the statute that would indicate that assump- tion of risk is a defense in any case, although there is such a provision in the Constitution. 1 Section 57 of Chapter VI pro- vides that the employer shall pay damages in all cases except where the injury or death is caused by the negligence of the employe 1 killed or injured. It would seem, therefore, that the defense of contributory negligence is never a complete defense, but only operates to diminish the award of damages in such proportion as the jury may determine; that the defense of assumption of risk is left to the jury in all cases and that the defense of negligence of a fellow servant is completely abolished. These rules apply to all actions for damages for personal injuries caused by negligence by an employ^ against an employer whether or not the parties are engaged in the so-called hazardous em- ployments specified in Chapters VI and VII. Sections 4, 5, 6, 7 and 8 of Article XVIII of the Constitu- tion of Arizona provide as follows: "Sec. 4. The common-law doctrine of fellow servant, so far as it affects the liability of a master for injuries to his ser- vant resulting from the acts or omissions of any other servant or servants of the common master is forever abrogated. "Sec. 5. The defense of contributory negligence or of assump- tion of risk shall, in all cases whatsoever, be a question of fact and shall, at all times, be left to the jury. "Sec. 6. The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation. "Sec. 7. To protect the safety of employes in all hazardous 'See below. 74 bradbury's workmen's compensation law California occupations, in mining, smelting, manufacturing, railroad or street railway transportation, or any other industry the Legis- lature shall enact an Employer's Liability law, by the terms of which any employer, whether individual, association, or cor- poration shall be liable for the death or injury, caused by any accident due to a condition or conditions of such occupation, of any employ^ in the service of such employer in such hazard- ous occupation, in all cases in which such death or injury of such employe" shall not have been caused by the negligence of the employe killed or injured. "Sec. 8. The Legislature shall enact a Workmen's Com- pulsory Compensation law applicable to workmen engaged in manual or mechanical labor in such employments as the Legis- lature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such em- ployment personal injury to any such workman from any accident arising out of, and in the course of, such employ- ment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employe^ or employes, to exercise due care, or to comply with any law affecting such employment; Provided, that it shall be optional with said employe to settle for such compensation, or retain the right to sue said employer as provided by this Constitu- tion." CALIFORNIA The new compensation act (L. 1913, c. 176), becoming effective Jan. 1, 1914, is a compulsory workmen's compensa- tion law as to all employers and employes except those ex- cluded by § 14, and an elective law as to the occupations specified in § 14. The manner of electing to adopt the com- pensation principle by those in the excluded occupations is specified in § 87. Where both employer and employe* have adopted the com- pensation principle the right to demand compensation is ABOLITION OF DEFENSES 75 California exclusive except when the injury is caused under the cir- cumstances specified in § 12 (b) relating to gross negligence or willful misconduct on the part of the employer, in which case the employ! may "at his option, either claim compensa- tion under the act or maintain an action at law for damages." It is left somewhat uncertain, under the law as it now stands, whether the common-law defenses of the employer are abolished when an action is brought under § 12 (b), or by an employ! in the excepted classes specified in § 14 when the employer has failed to signify his election to adopt the compensation principle. This doubt arises from the uncertainty as to whether or not the Roseberry Act of 1911 is entirely repealed by the Act of 1913. There is nothing in the Act of 1913 relating to the abolition of common-law defenses. The Roseberry Act of 1911 was elective, but applied to all occupations and specified that such employers as failed to adopt the com- pensation principle should not be permitted to set up the common-law defenses in actions against them by their em- ployes. The Act of 1913, in § 90 thereof, provides that "All acts or parts of acts inconsistent with this Act are hereby repealed." As there is nothing in the new Act concerning the abolition of defenses in common-law actions it is not in all respects inconsistent with that portion of the Roseberry Act of 1911, which abolishes common-law defenses under certain circumstances. Following this reasoning the Cali- fornia Industrial Accident Board has held that an employer's common-law defenses are abolished as to both of these classes of employers. The Board holds that that portion of the Roseberry Act of 1911, which abolishes common-law defenses is still in force, as it is not "inconsistent" with the Act of 1913. If employers employing workmen in the ex- cepted classes specified in § 14 do not elect, under § 87, to adopt the compensation principle, they are deprived of their common-law defenses in actions by their workmen against them. 76 bradbury's workmen's compensation law California Actions under § 12 (b) rest on a somewhat different basis. Subdivision (c) of § 12 provides that "In all cases where the conditions of compensation do not concur, the liability of the employer shall be the same as if this Act had not been passed." It is to be assumed from the Ruling of the Board that when an employe" has a right to sue for dam- ages, under § 12*(b), that "the conditions of compensa- tion do not concur," and therefore the employe's rights revert back to so much of the Roseberry Act as have not been repealed by the Act of 1913. Under § 3 (3) of the Roseberry Act an employe might sue for damages in cases of the gross negligence of the employer and that section of the former Act specifically provided that in such actions the "preceding sections" of the Act should apply. Among the preceding sections were those abolishing the common- law defenses. As most of §§ 1, 2 and 3 of the Roseberry Act of 1913 are held by the Industrial Accident Board to be still in force they are printed below. ROSEBERRY ACT CHAPTER 399, LAWS 1911 [Approved April 8, 1911] "Section 1. In any action to recover damages for a personal injury sustained within this State by an employee while en- gaged in the line of his duty or the course of his employment as such, or for death resulting from personal injury so sustained, in which recovery is sought upon the ground of want of ordinary or reasonable care of the employer, or of any officer, agent or servant of the employer, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee, and it shall be conclusively presumed that such employee was not guilty of contributory negligence in any case where the viola- ABOLITION OF DEFENSES 77 California tion of any statute enacted for the safety of employees contri- buted to such employee's injury; and it shall not be a defense: "(1) That the employee either expressly or impliedly assumed the risk of the hazard complained of. " (2) That the injury or death was caused in whole or in part by the want of ordinary or reasonable care of a fellow servant. "Sec. 2. No contract, rule or regulation, shall exempt the employer from any of the provisions of the preceding section of this act. "Sec. 3. Liability for the compensation hereinafter pro- vided for, in lieu of any other liability whatsoever, shall, with- out regard to negligence, exist against an employer for any personal injury accidentally sustained by his employees, and for his death if the injury shall approximately cause death, in those cases where the following conditions of compensation concur: " (1) Where, at the time of the accident, both the employer and employee are subject to the provisions of this act accord- ing to the succeeding sections hereof. "(2) Where, at the time of the accident, the employee is performing service growing out of and incidental to his em- ployment and is acting within the line of his duty or course of his employment as such. " (3) Where the injury is approximately.caused by accident, either with or without negligence, and is not so caused by the wilful misconduct of the employee. "And where such conditions of compensation exist for any personal injury or death, the right to the recovery of such compensation pursuant to the provisions of this act, and acts amendatory thereof, shall be the exclusive remedy against the employer for such injury or death, except that when the injury was caused by the personal gross negligence or wilful personal misconduct of the employer, or by reason of his violation of any statute designed for the protection of employees from bodily injury, the employee may, at his option, either claim compensation under this act, or maintain an action for dam- ages therefor; in all other cases the liability of the employer shall be the same as if this and the succeeding sections of this 78 bradbury's workmen's compensation law Connecticut act had not been passed, but shall be subject to the provisions of the preceding sections of this act." CONNECTICUT Under the Connecticut Compensation Act, if the employer elects to accept the compensation principle and complies with Part B, § 30, he has the benefit of the common-law defenses, no matter what the employe may elect to do. If, however, the employer rejects the compensation principle or fails to comply with Part B, § 30 then his common-law defenses are abolished in any action which an employe may bring against him based on negligence causing personal injury. Part B, §§ 4, 42. Such defenses are not abolished, however, as to employers "having regularly less than five employes." Nor in relation to suits by casual employes or outworkers. Part A, § 2. The portion of the statute relating to this subject provides as follows: "Part A, Section 1. Defenses Abolished. In an action to recover damages for personal injury sustained by an employee arising out of and in the course of his employment, or for death resulting from injury so sustained, it shall not be a defense: (a) That the injured employee was negligent; (b) that the injury was caused by the negligence of a fellow employee; (c) that the injured employee had assumed the risk of the injury. "Sec. 2. Scope of Part A. The provisions of section one of part A of this act shall not apply to actions to recover damages for personal injuries sustained by employees of any employer having regularly less than five employees, by casual employees, or by outworkers; nor shall the same provisions apply to actions against any employer who shall have accepted part B of this act in the manner hereinafter prescribed." "Part B, Sec. 4. Effect of Non-Acceptance. Every em- ployer not accepting part B of this act shall be liable to action for damages on account of personal injury to his employees in accordance with the provisions of part A of this act, and ABOLITION OF DEFENSES 79 Illinois every employee not accepting part B of this act shall lose all rights and benefits of part A of this act with reference to any employer who continues to accept said part B." If an employer who has otherwise elected to adopt the compensation principle fails to effect proper insurance, or to satisfy the compensation commission of his financial ability to carry his own insurance, for the benefit of his employes relating to compensation payments, he is deprived of his right to interpose the common-law defenses, besides being subject to other penalties. Part B, § 42. ILLINOIS The Act approved June 28, 1913, which materially amends the original Act of June 10, 1911, which went into effect May 1, 1912, divides the employers of the State into two general classes. As to the employers specified in § 3 (6) of the Act, if they do not elect to adopt the compensation principle they are not permitted in actions against them by their employes to set up the defenses: "First, the employ6 assumed the risks of the employment; second, the injury or death was caused in whole or in part by the negligence of a fellow servant; or third, the injury or death was proximately caused by the contributory negligence of the employe." § 3 (a). As to all employers other than those specified in § 3 (6) they may or may not adopt the compensation principle as they please, and if they do not adopt it there is no penalty provided. That is, as to the second class of employers, even though they do not elect to adopt compensation they still have the right to set up the common-law defenses in actions by their employes against them. As to the first class of employers if they elect to adopt the compensation principle and any of their employe's refuse to accept compensation and stand on their common-law rights, 80 Bradbury's workmen's compensation law Illinois then as to such employes the employers may still set up the common-law defenses the same as if the compensation act had not been passed. § 1 (c). In Illinois it is very difficult to determine just which em- ployers come within the provisions of class One. Section 3 (6) specifies certain trades, the employers of which are in- cluded in class Ope, and then the following three paragraphs are added: "6. Any enterprise in which explosive materials are manu- factured, handled or used in dangerous quantities; "7. In any enterprise wherein molten metal, or explosive or injurious gases or vapors, or inflammable vapors or fluids, or corrosive acids, are manufactured, used, generated, stored or conveyed in dangerous quantities; "8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the em- ployes or the public therein; each of which occupations, en- terprises or businesses are hereby declared to be extra- hazardous." There are so many "enterprises" which are subject to statutory or municipal ordinance or regulation that it would be well nigh impossible to make a complete list thereof. Many employers, therefore, will always be in doubt whether they are in class One or class Two, under the Illinois Act, and will not know whether they will have the right to set up the common-law defenses or not, should they decide not to adopt the compensation principle. The author has made an effort to get together all the statutes of the State of I llin ois which might come within the provisions of § 3 (6) 8. But after using his own efforts and taking the advice of eminent local counsel he is still uncertain as to whether or not the list which he has made is complete. These statutes and regulations would make a good-sized volume. ABOLITION OF DEFENSES 81 Iowa "Any person whose employment is but casual or who is not engaged in the usual course of the trade, business, pro- fession or occupation of his employer" is excluded from the operation of the Act. § 5, subd. second. As to actions by such employes therefore the common-law defenses are not abolished. IOWA If an employe rejects the terms of the Act as to an em- ployer who has elected to pay compensation "the employer shall have the right to plead and rely upon any and all defenses including those at common-law, and the rules and defenses of contributory negligence, assumption of risk and fellow servant shall apply and be available to the employer as by statute authorized unless otherwise provided in this Act." See §3 (b). If both the employer and employe reject the Act the liability of the employer is the same as though the employ^ had not rejected it. § 5. If the employer fails to insure compensation claims he is liable under § 1 of the Act without the right to set up the common-law defenses. Part III, § 42. The Statute reads as follows: "§ 1. * * * (c) An employer having the right under the provisions of this act to elect to reject the terms, conditions and provisions thereof and in such cases exercises the right in the manner and form by this act provided, such employer shall not escape liability for personal injury sustained by an employ6 of such employer when the injury sustained arises out of and in the usual course of the employment because: "(1) The employe assumed the risks inherent in or inci- dental to or arising out of his or her employment; or the risks arising from the failure of the employer to provide and main- tain a reasonably safe place to work, or the risks arising from the failure of the employer to furnish reasonably safe tools or appliances, or because the employer exercised reasonable care 6 82 bradbuby's workmen's compensation law Kansas in selecting reasonably competent employes in the busi- ness: "(2) That the injury was caused by the negligence of a co-employe. " (3) That the employe was negligent unless and except it shall appear that such negligence was willful and with intent to cause the injury or the result of intoxication on the part of the injured* party. "(4) In actions by an employ^ against an employer for personal injury sustained arising out of and in the course of the employment where the employer has elected to reject the provisions of this act, it shall be presumed that the injury to the employ^ was the direct result and growing out of the negligence of the employer; and that such negligence was the proximate cause of the injury; and in such cases the burden of proof shall rest upon the employer to rebut the presump- tion of negligence." As the Act does not apply "to any household or do- mestic servant, farm or other laborer engaged in agricultural pursuits, nor persons whose employment is of a casual nature" [§ 1 (a)] the common-law defenses are not abolished in suits by such employes. KANSAS The Kansas Act applies primarily to the employers en- gaged in the occupations specified in § 6 who have em- ployed five or more workmen continuously for more than one month, at the time of the accident, and in the case of mining operations to all employers irrespective of the number of men employed. § 8. All other employers may adopt 1 the compensation prin- ciple. §8. As to the first class, if they do not adopt the compensation principle they will not be permitted in actions against them by their employes to set up the defenses: 1 But see excepted classes specified post, p. 83. ABOLITION OF DEFENSES 83 Kansas " (a) that the employe" either expressly or impliedly assumed the risk of the hazard complained of; " (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; "(c) that such employ6 was guilty of contributory negli- gence but such contributory negligence of said employe" shall be considered by the jury in assessing the amount of recovery." §46. If such employers in class One adopt the compensation principle and the employes refuse to accept compensation, then in actions against the employers they may set up the defenses: " (a) that the employe" either expressly or impliedly assumed the risk of the hazard complained of; " (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; "(c) that said employe" was guilty of contributory negli- gence; provided, however, that none of these defenses shall be available where the injury was caused by the willful or gross negligence of such employer, or of any managing officer, or managing agent of said employer, or where under the law existing at the time of the death or injury such defenses are not available." The Act is not entirely clear as to whether the abolition of defenses applies only to the employers engaged in the em- ployments specified in § 6 who have five or more employes and those engaged in mining operations irrespective of the number of employes, but this seems to be the reasonable construction of the various portions of the Act. This con- clusion is reached from the reading of § 8 in connection with §§ 46 and 47. Section 8 provides: "It is hereby determined that the necessity for this law and the reason for its enactment, exist only with regard to em- ployers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five or 84 beadbury's workmen's compensation law Kansas more workmen have been (employed) continuously for more than one month at the time of the accident; provided, how- ever, that employers having less than five workmen may elect to come within the provisions of this Act in which case his employes shall be included herein, as hereinafter provided; and, provided further that this act shall apply to mines with- out regard to number of workmen employed." ♦ Sections 46 and 47 read as follows: "§46. In any action to recover damages for a personal injury sustained within this State by an employe" (entitled to come within the provisions of this act) while engaged in the line of his duty as such or for death resulting from personal in- jury so sustained, in which recovery is sought upon the ground of want of due care of the employer or of any officer, agent or servant of the employer, where such employer is within the provisions hereof, it shall not be a defense to any employer (as herein in this act defined) who shall not have elected, as hereinbefore provided, to come within the provisions of this act: (a) That the employe either expressly or impliedly assumed the risk of the hazard complained of; (b) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; (c) that such employe" was guilty of contributory negligence but such contributory negligence of said employ6 shall be considered by the jury in assessing the amount of recovery. "§ 47. In an action to recover damages for a personal injury sustained within this State by an employe" (entitled to come within the provisions of this act) while engaged in the line of his duty as such or for death resulting from personal injury so sustained in which recovery is sought upon the ground of want of due care of the employer or of any officer, agent or servant of the employer, and where such employer has elected to come and is within the provisions of this act as hereinbefore provided, it shall be a defense for such employer in all cases where said employe has elected not to come within the provisions of this act: (a) That the employe" either ex- pressly or impliedly assumed the risk of the hazard complained ABOLITION OF DEFENSES 85 Kansas of; (6) that the injury or death was caused in whole or in part by the want of due care of a fellow servant; (c) that said employe was guilty of contributory negligence; provided, however, that none of these defenses shall be available where the injury was caused by the willful or gross negligence of such employer, or of any managing officer, or managing agent of said employer, or where under the law existing at the time of the death or injury such defenses are not available." While §§ 46 and 47 speak of employes "entitled to come within the provisions of the Act" it will be observed that these sections apply to employers only "where such employer is vnthin the provisions hereof." As § 8 specifically states that the Act "shall only apply to employers by whom five or more workmen have been employed" etc., it seems clear that the intention is to abrogate the common-law defenses only as to those engaged in mining without regard to the number of employes, and to those engaged in the occupations specified in § 6 of the Act when they employ more than five workmen. The provision of § 47 that even where the employer has elected to come within the provisions of the Compensa- tion Act and the employ^ has refused to do so, the employer may still be precluded from setting up the common-law defenses, when the injury is caused by the wilful or gross negligence of the employer "or any managing officer, or managing agent of said employer," leaves the door open for much speculation as to when the employer, in any given cases, may feel assured that his liability is measured by the compensation feature of the statute, or that he may save his common-law defenses by showing a willingness to pay com- pensation to his workmen. For example, when a case is brought to trial, at just what point does the employer learn, for the first time, that he will not be permitted to introduce evidence establishing the common-law defenses? Is this question decided in the first instance by the Court or by the jury? Does the Court say, after the plaintiff has put in his 86 bradbury's workmen's compensation law Maryland evidence, that the negligence of the master is wilful, or gross and, therefore, evidence of the common-law defenses will not be received? Obviously this practice would not do, as this would be trying and deciding this particular question on ex parte testimony. Must, then, the question be reserved until all the evidence is in? If so, who then decides it? Will the trial judge order the evidence of such defenses stricken out and direct the jury to disregard it, upon the judge's determi- nation that the negligence of the master was wilful or gross? Or will the trial judge instruct the jury that if they find the employer to have been wilfully or grossly negligent then they shall disregard the evidence of the common-law defenses in reaching their verdict? The latter seems to be the only alternative because the very right to recover at all as against an employer who has signified his intention to adopt the compensation principle, in such a case, is by proving that he has been guilty of gross or wilful negligence. Obviously this question cannot be determined until the entire case is before the jury — the evidence of the defendant as well as that of the plaintiff. "Agricultural pursuits and employments incident there- to are hereby declared to be non-hazardous and exempt from the provisions of this Act." § 6, last sentence. The term "workman" "does not include a person who is employed otherwise than for the purpose of the employer's trade or business." § 9, in part. As to suits by the two classes of employes above specified therefore the common-law defenses are not abrogated. MARYLAND The Maryland Act provides that employers and employes may enter into a contract for the payment and receipt of compensation according to a specific schedule in lieu of any other rights or liabilities for injuries suffered in the course of the employment. There is no penalty if either fails or refuses to enter into such a contract. The law is a dead letter. ABOLITION OF DEFENSES 87 Massachusetts MASSACHUSETTS The Massachusetts Act abolishes absolutely the three common-law defenses as to employers who do not elect to come under the compensation feature of the statute, except in actions "by domestic servants and farm laborers." See Part I, §§ 1, 2 and 3. The effect of this exception is that employers of domestic servants and farm laborers may either elect to pay compensation or not as they choose. But if they do not elect to adopt the compensation principle there is no penalty attached, as there is with other employers, namely, the abolition of the common-law defenses. The judges of the Supreme Court of Massachusetts have held that this ex- ception does not render the act unconstitutional. Opinion of Justices, 209 Mass 607; 96 N. E. Rep. 308; 1 N. C. C. A. 557. The judges, in the same opinion, also declared that, "We construe clauses 1 and 2 in their reference to negligence as meaning contributory negligence or negligence on the part of a fellow servant which falls short of the serious and wil- ful misconduct which under Part II, § 2, will deprive an employe of compensation. So construed we think that the section is constitutional. We neither express nor intimate any opinion whether it would be unconstitutional if other- wise construed. The rules of law relating to contributory negligence and assumption of the risk and the effect of negligence by a fellow servant were established by the courts, not by the constitution, and the legislature may change them or do away with them altogether as defenses (as it has to some extent in the employers ' liability act) as in its wis- dom in the exercise of powers intrusted to it by the consti- tution it deems will be best for the 'good and welfare of this Commonwealth.' See Missouri Pacific Railway v. Mackey, 127 U. S. 205; Minnesota Iron Co. v. Kline, 199 U. S. 593." It would seem therefore that serious and wilful misconduct on the part of an employe 1 would defeat his cause of action against an employer in a common-law action for damages, 88 bradbury's workmen's compensation law Michigan even though the employer should not elect to accept the compensation feature of the statute. As the Act does not apply to "one whose employment is but casual, or is not in the usual course of the trade, busi- ness or profession or occupation of his employer" nor to masters or seamen on vessels engaged in interstate or foreign commerce, (Pdh-t V, § 2) in actions by such employes the common-law defenses are not abolished. MICHIGAN Employers who fail to adopt the compensation principle are deprived of their common-law defenses except wilful negligence. As the portion of the Workman's Compensation Act that abolishes these defenses does not apply to em- ployers who have adopted the compensation principle it does not make any difference what action an employe takes. If an employer has adopted the compensation principle and an employ^ of such an employer has rejected it and sues the employer for damages, the employer may set up the common- law defenses, because the portion of the Act abohshing them does not apply to such an employer at all. The por- tions of the Act relating to this subject provide as follows: "Part I, § 1. In an 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 employe" was negligent, unless and except it shall appear that such negligence was wilful; "(6) That the injury was caused by the negligence of a fellow employe; " (c) That the employe had assumed the risks inherent 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. ABOLITION OF DEFENSES 89 Minnesota "Sec. 2. The provisions of section one shall not apply to actions to recover damages for personal injuries sustained by household domestic servants and farm laborers. "Sec. 3. The provisions of section one 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 industrial accident board hereinafter created, to pay compensation in the manner and to the extent hereinafter provided." "Household domestic servants and farm laborers" are specifically excluded from the provisions of the Act abolish- ing the common-law defenses. § 2. A person "whose em- ployment is but casual or is not in the usual course of the trade, business, profession or occupation of his employer" is entirely excluded from the operation of the statute. § 7, subd. 2. In actions by any of such classes of employes there- fore the common-law defenses are not abrogated. MINNESOTA If the employer elects not to operate under the compensa- tion statute, he loses the right to set up the defenses of assumption of risk, negligence of fellow servant and contrib- utory negligence of the plaintiff, but he may set up wilful negligence. If the employer agrees to adopt compensation and the employe refuses to be bound by the statute, then the employer may set up such defenses as are available at the time of the passage of the compensation statute. See Sec- tions quoted below: "Part I, § 1. When personal injury or death is caused to an employe' by accident arising out of and in the course of his employment, of which injury the actual or lawfully imputed negligence of the employer is the natural and proximate cause, he, or, in case of death, his personal representative, for the exclusive benefit of the surviving spouse and next of kin, 90 Bradbury's workmen's compensation law Minnesota shall receive compensation by way of damages therefor from his employer, provided the employe" was himself not wilfully negligent at the time of receiving such injury; and the question of whether the employe was wilfully negligent shall be one of fact to be submitted to the jury, subject to the usual powers of the court over verdicts rendered contrary to the evidence, or to law. "§ 2. In alt cases brought under Part 1 of this act it shall not be a defense (a) that the employe was negligent, unless and except it shall also appear that such negligence was wilful; (6) that the injury was caused by the negligence of a fellow employe 1 ; (c) that the employe had assumed the risks inherent in, or incidental to the work, or arising out of and in the course of his employment from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are hereby abolished except as provided in Section 4. "§ 3. If the employer elects not to come under Part 2 of this act, he loses the right to interpose the three defenses named in Section 2 in any action brought against him for per- sonal injury or death of an employe. "§ 4. If the employer becomes subject to Part 2 of this act and the employe does not, then the employer may set up such defenses as are available at the time of the passage of this act. i "§ 5. The provisions of Sections one, two, three and four shall apply to any claim for the death of an employe arising under Section 4503 of Chapter 84, Revised Laws of Minnesota 1905, and the acts or parts of acts amendatory thereof, con- cerning death by wrongful act. J "§ 6. In all actions at law brought pursuant to Part 1 of this act, the burden of proof to establish wilful negligence of the injured employe" shall be upon the defendant. The Act does not apply "to actions or proceedings to recover damages or compensation for personal injuries sus- 1 The statute to which reference is made is an enabling act permitting an action to be brought by the personal representatives of a deceased person whose death was caused by the wrongful act of the defendant; ABOLITION OF DEFENSES 91 Nebraska tained by domestic servants, farm laborers, or persons whose employment at the time of the injury is but casual and not in the usual course of the trade, business, profession or occu- pation of his employer." Part II, § 8. In actions by such employes, therefore, the common-law defenses are not abro- gated. NEBRASKA The defenses based on assumption of risk and the fellow- servant rule are abolished as to employers who fail to adopt the compensation principle. The defense of contributory negligence is greatly modified as to such employers. If however the employ! refuses to follow the employer in adopting the compensation principle the defenses are re- stored to the employe". The statute reads as follows: "Part I, § 2. In all cases brought under Part I of this Act it shall not be a defense (a) that the employe" was negli- gent, unless and except it shall also appear that such negligence was wilful, or that the employ6 was in a state of intoxication; (6) that the injury was caused by the negligence of a fellow em- ploye^ (c) that the employe had assumed the risks inherent in, or incidental to, or arising from the failure of the employer to provide and maintain safe premises and suitable appliances, which grounds of defense are hereby abolished, except as provided in Section 4. "§ 3. If an employer subject to the provisions of this Act as shown in Section 6 elects not to come under Part II hereof, he loses the right to interpose the three defenses above stated in any action brought against him for personal injury or death of an employ^. "§ 4. If an employer becomes subject to Part II of this Act, and the employe" does not, then the defenses existing under the laws for Nebraska other than the provisions of this Act at the time of the personal injury or death of the employe" shall be available to the employer in any action brought by the employe" or his dependents for personal injury or death. 92 bkadbtjry's workmen's compensation law Nevada "§ 5. The provisions of Sections 1, 2, 3 and 4 shall apply to any claim for the death of any employ6 arising under Chapter 21 of the Compiled Statutes of Nebraska, 1911, and the acts of parts of acts amendatory thereof, concerning death by wrongful act." 1 "The following are declared not to be hazardous occupa- tions and not within the provisions of this Act; employers of household domestic servants, employers of farm laborers and all employers employing less than five employes, in the regular trade, business, profession or vocation of such em- ployer. Railroad companies engaged in interstate or foreign commerce are declared subject to the powers of Congress and not within the provisions of this Act." § 6 (2). In actions by employes in the excepted classes above, therefore, the common-law defenses are not abrogated. NEVADA If the employer fails to adopt the compensation principle the defenses of assumption of risk, negligence of a fellow servant and contributory negligence are entirely abolished, although the employer may still plead that the negligence of the plaintiff was wilful and with intent to cause the injury, or that the injury was the result of intoxication on the part of the injured party. § 1. 1 The statute to which reference is made is an enabling act permitting a recovery for death "caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then, and in every such case the person who, or com- pany or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." The same chapter also provides that the action may be brought by the personal representatives of the deceased for the benefit of the widow, widower and next-of-kin of the deceased. ABOLITION OF DEFENSES 93 New Hampshire If the employer accepts the compensation principle and the employe" rejects it then the employer may set up any of the common-law defenses in an action brought by such employe. § 2 (6). If, however, the injury is due to a violation of a safety statute the defense of assumption of risk is not avail- able to the employer, even though the employe" rejects the compensation principle after his employer has adopted it. §2,(6). "Where the employer and employe" elect to reject the terms, conditions and provisions of this Act, the liability of the em- ployer shall be the same as though the employe 1 had not re- jected the terms, conditions and provisions thereof." § 5. If the employer has rejected the compensation principle, then in any action brought against him by an employe" for personal injuries "it shall be presumed that the injury to the employe was the first result and growing out of the negli- gence of the employer; and that such negligence was the proximate cause of the injury; and in such case the burden of proof shall rest upon the employer to rebut the presump- tion of negligence." § 1, (c) (4). The Nevada Act applies only where two or more employes, as defined in the Act, are employed in the same general employment and in the usual and ordinary transaction of the business. § 1 (a). It does not apply to domestic servants or farm laborers. § 43. Therefore, in actions by domestic servants or farm laborers, or an employe of an employer who does not have two or more employes the common-law de- fenses are not abrogated. NEW HAMPSHIRE The New Hampshire Act applies to a limited number of employments only. See § 1. As to employes in the occu- pation specified it is provided that "the workman shall not be held to have assumed the risk of any injury due to any 94 bradbury's workmen's compensation law New Jersey cause specified in this section; but there shall be no liability under this section for any injury to which it shall be made to appear by a preponderance of evidence that the negligence of the plaintiff contributed." § 2. By the same section the employer is made liable for injuries due to the negligence of a fellow servant. The foregoing provisions of § 2 do not apply to an employer who has duly elected to adopt the compensation feature of the statute by filing a declaration with the Com- missioner of Labor and furnishing the bond required by § 3. It is provided, however, "that the employer shall at the elec- tion of the workman, or his personal representative, be liable under the provisions of Section 2 of this Act for all injury caused in whole or in part by wilful failure of the employer to comply with any statute, or with any order made under authority of law." § 3. It would appear from this that the defenses which are abolished are assumption of risk and negligence of fellow servant should the employer fail to adopt the compensation principle in regard to the specific occupations specified in § 1 of the Act. By § 4 of the Act it is provided in effect that the work- men may elect after the accident to either claim compensation or sue for damages. If, however, the employer has elected to pay compensation and filed the bond required by § 3, it would appear that the employer would have the right to interpose any of the defenses which he might have interposed if the Compensation Act had not been passed. NEW JERSEY Under the New Jersey Act the defenses of assumption of risk and negligence of fellow servant are absolutely abolished. § 1 (2). The defense of contributory negligence is modified practically to the point of abolition. In its place there is provided a defense of wilful negligence, and "the question of whether the employe was wilfully negligent shall be one ABOLITION OF DEFENSES 95 New Jersey of fact to be submitted to the jury, subject to the usual superintending powers of a court to set aside a verdict ren- dered contrary to the evidence." §1 (1). "In all actions at law brought pursuant to § 1 of this Act, the burden of proof to establish wilful negligence in the injured employe 1 shall be upon the defendant." § 1 (5). "For the purposes of this act, wilful negligence shall consist of (1) deliberate act or deliberate failure to act; or (2) such conduct as evidences reckless indifference to safety; or (3) intoxication, operating as the proximate cause of injury." §3(23). While the New Jersey Act is elective both as to employers and to employes it does not make any difference, so far as the employes are concerned, as respects the abolition of defenses, whether they elect to accept or to refuse compensation. Even though the employes reject the compensation plan and elect to demand common-law damages as to such employers as have adopted the compensation principle the employers cannot set up any of the common-law defenses in such ac- tions. Of course, the employes must indicate a rejection before the accident happens or they will be bound by the purely compensation feature of the statute. "§ 1.4. Application of act in case of death. The provi- sions of paragraphs one, two and three shall apply to any claim for the death of an employe arising under an act en- titled 'An Act to provide for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default,' approved March third, eighteen hundred and forty-eight, 1 and the amendments thereof and supplements thereto." L. 1911, c. 95, as am'd by L. 1913, c. 174. 1 The statute referred to is the usual enabling act permitting an action to be brought by the personal representatives of a deceased person whose death was caused by the wrongful act of the defendant. 96 bradbury's workmen's compensation law New York It is left somewhat in doubt under the New Jersey Act whether or not in actions by casual employes the employer may take advantage of the common-law defenses. Section III, subd. 23 provides that "employe is synonymous with servant and includes all natural persons who perform serv- ice for another for financial considerations, exclusive of casual employments" By the provisions of § I, subds. 1 and 2, the defenses of negligence of fellow servant and assumption of risk are abolished entirely and that of contributory negligence is greatly modified in actions for damages for negligence, apparently in all cases where the parties have elected to reject the compensation principle. The provisions of subds. 1 and 2 of § I are very broad in this respect. Inasmuch as subd. 23 of § III provides, in effect, that the word employe 1 as used in the Act shall not apply to those in casual employments, it would seem that casual employe's are not affected by the Compensation Act in any manner whatsoever. If this is the correct interpretation, casual employes constitute the only class of employes in New Jersey at the present time as against whom employers may set up the common-law defenses, in any event, in actions for personal injuries due to negligence. NEW YORK The New York Act of 1913 is compulsory in form as to certain specified employments and has no effect whatso- ever on those engaged in employments other than those enumerated therein. There is no necessity, therefore, of abolishing the common-law defenses as to those engaged in either of these classes of employment. There are certain circumstances, however, under which the ordinary common- law defenses are abrogated as to employers. While all employers engaged in the enumerated employments are brought by compulsion under the Act, such employers must, nevertheless, take the further step of assuring the ABOLITION OF DEFENSES 97 Ohio compensation payments. If any of such employers fails to assure the compensation payments, as provided in § 50, then his employe 1 has a right to elect, after an accident, whether he will claim compensation or demand damages. Should such an employe elect to demand damages and bring suit therefor the employer would be deprived of the right to set up the common-law defenses in such an action. §11. OHIO The amended Ohio statute, which is compulsory in form, taking full effect on Jan. 1, 1914, applies to all employers who have in service "five or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express, or implied, oral or written." § 1465-60, subd. 2. Any employer who employs less than five workmen or operatives regularly in the same business, or in or about the same establishment, may also voluntarily adopt the com- pensation principle and be relieved from further liability. But there is no penalty attached if he does not do so. § 1465-71. If an employer of more than five workmen fails to pay into the State Insurance fund he is liable to his employes for damage suffered by reason of personal injuries, and in such a case the employer cannot avail himself of the three common law defenses. § 1465-73. In such a case the employe may, in lieu of bringing an action against his employer, make a claim against the State Insurance fund and the State In- dustrial Commission may determine such claim and make a summary order requiring the employer to pay the amount determined by the Commission and in case the employer fails to obey the order it becomes a liquidated claim for damages against such employer in the amount ascertained and fixed by the Commission, which, with an added penalty of fifty per centum, may be recovered in an action in the 7 98 Bradbury's workmen's compensation law Oregon name of the State for the benefit of the person or persons entitled to the same. §§ 1465-74 and 1465-75. Under certain conditions employers may carry their own insurance and if there is a compliance with the statute such employers have the same standing as those who join the State Insurance Fund, in respect to their common-law defenses. § 146^-69. The principal section of the Ohio Act abolishing common- law defenses provides as follows: " 1465-73. § 26. Employers mentioned in subdivision two of section thirteen (§§ 1465-60) hereof, who shall fail to com- ply with the provisions of section twenty-two (§ 1465-69) hereof, shall not be entitled to the benefits of this act dur- ing the period of such non-compliance, but shall be liable to their employes for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employes, and also to the per- sonal representatives of such employes where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common law defenses: "The defense of the fellow-servant rule, the defense of the assumption of risk or the defense of contributory negligence. "And such employers shall also be subject to the provisions of the two sections next (§§ 1465-74 and 1465-75) succeeding." Employes "whose employment is but casual, or not in the usual course of trade, business, profession or occupation of his employer" are excluded from the operation of the Act. § 1465-61, subd. 2; § 14 of Act of 1913, subd. 2. In actions by employes in the excepted classes, therefore, the common- law defenses are not abrogated. OREGON The Oregon law is an elective State insurance plan relating to certain specified hazardous employments, and is modeled, to a considerable extent, on the Washington law, except that ABOLITION OP DEFENSES 99 Rhode Island the latter is a compulsory statute. Unless any employer in the trades or occupations specified in the Act files a notice of election to contribute to the State insurance fund he is deprived of the common-law defenses, but may set up that the injury was due to the wilful act of the workman for the purpose of sustaining the injury. § 15. If the workman elects to reject the provisions of the com- pensation statute " such workman shall be in no wise be sub- ject to the provisions or entitled to any of the benefits hereof." § 18. If the workman elects to reject the statute and sues his employer, the employer may set up the common- law defenses. As to the non-hazardous employments the employer may elect to adopt the compensation principle or not as he pleases. There is no penalty if he fails to do so. The employe" has the same election. In such case the parties are subject to the laws of the State other than the Compensation Act. "Any employer and his workman engaged in works other than those defined in section 13 hereof may accept the pro- visions of this Act and become subject thereto and entitled to the benefits thereof by filing with the Commission their written election to that effect." § 31. This appears to re- quire joint action on the part of employers and workmen, but there does not appear to be any penalty as to either em- ployers or workmen, if they fail to elect to operate under the compensation principle when they are engaged in non- hazardous employments. RHODE ISLAND The Rhode Island statute does not apply to employers who employ five or a less number of workmen or operatives regularly in the same business "but such employers may, by complying with the provisions of section 5 of this Article be- come subject to the provisions of this Act." Article I, § 3. Nor does the Act apply to employe's engaged in domestic service or agriculture. 100 bradbury's workmen's compensation law Texas As to other employers and employes the three common- law defenses are abolished unless the employer adopts the compensation principle, in which case the employer retains such defenses, as to any employes who reject the compensa- tion feature of the statute. Sections 1 and 4 of Article I of the Rhode Island Statute read as follows: "Art. I, § 1. Removal of defenses. In an action to recover damages for personal injury sustained by accident by an em- ployfe arising out of and in the course of his employment, or for death resulting from personal injury so sustained, it shall not be a defense: (o) That the employ^ was negligent; (6) that the injury was caused by the negligence of a fellow employ^; (c) That the employe has assumed the risk of the injury." ******** "§ 4. Employer who elects to pay compensation. The pro- visions of section 1 of this Article shall not apply to actions to recover damages for personal injuries, or for death resulting from personal injuries, sustained by employes of an employer who has elected to become subject to the provisions of this Act, as provided in section 5 of this Article." TEXAS Employers subject to the Act who do not adopt the com- pensation principle are deprived entirely of the defenses founded on the fellow-servant rule and of assumption of risk. The doctrine of comparative negligence is substituted for that of contributory negligence. The employer may defend on the ground that the injury was intentionally inflicted. Part I, § 1 (1). The Act does not apply to domestic servants, farm la- borers, railroad employes, workmen engaged in cotton gins, nor to the employes of any employer having in his employ not more than five employes. Part I, § 2. The following are the principal provisions of the Texas Act: ABOLITION OF DEFENSES -v fl\. Washington V. "Part I, § 1. In an action to recover damages for personal injuries sustained by an employe in the course of his em- ployment, or for death resulting from personal injury so sus- tained, it shall not be a defense: "1. That the employee was guilty of contributory negli- gence; but in such event the damages shall be diminished in the proportion to the amount of negligence attributable to such employee, provided that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence where the violation by such employer of any statute enacted for the safety of the employees contributed to the injury or death of such employee; "2. That the injury was caused by the negligence of a fellow employee; "3. That the employee had assumed the risk of the injury incident to his employment; but such employer may defend in such action on the ground that the injury was caused by the wilful intention of the employee to bring about the injury. "4. Provided, however, in all such actions against an em- ployer who is not an (a) subscriber as defined hereafter in this Act, it shall be necessary to a recovery for the plaintiff to prove negligence of such employer or some agent or servant of such employer acting within the general scope of his employment." WASHINGTON The Washington Act applies to certain hazardous employ- ments. Should an employer engaged in any of the enumerated employments fail to pay his quota into the State Insurance Fund the employe" may elect whether to sue for damages under the law as it existed prior to the enactment of the State insurance statute, or to claim compensation from the State Insurance Fund. Should the employe" elect to sue for damages in such a case, or should the State sue the default- ing employer (as it may) after the employe has elected to take compensation, in "any suit brought upon such a cause of action the defense of fellow servant and assumption of 102 bradbury's workmen's compensation law West Virginia risk shall be inadmissible, and the doctrine of comparative negligence shall obtain." § 8. Employers and employes engaged in works which are not extra-hazardous may, by their joint election, filed with the Department, accept the provisions of the Act as to compen- sation, but there is no penalty if they fail to do this. § 19. WEST VIRGINIA The West Virginia Act is an elective State insurance plan applicable to all employes except domestic servants and farm laborers. Employers cannot adopt the compensation principle without contributing to the State Insurance Fund. "All employers subject to this act who shall not have elected to pay into the workmen's compensation fund the premiums provided by this act, or having so elected, shall be in default in the payment of same, shall be liable to their employes (within the meaning of this act) for damages suffered by reason of personal injuries sustained in the course of em- ployment caused by the wrongful act, neglect or default of their employer, or any of the employer's officers, agents or employes, and also to the personal representatives of such employes where death results from such injuries, and in any action by any such employe 1 or personal representative thereof such defendant shall not avail himself of the following common-law "The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; and further shall not avail himself of any defense that the negligence in question was that of someone whose duties are prescribed by statute." § 26. As those engaged in domestic service and farm labor are excepted from the provisions of the Act the common-law defenses in actions by such employes are not abrogated. ABOLITION OF DEFENSES 103 Wisconsin WISCONSIN As to employers who fail to adopt the compensation principle the defense of assumption of risk is abolished in actions by employes for damages. If such an employer has at the time of the accident "in a common employment four or more employes" it is not a defense "that the injury or death was caused in whole or in part by the want of ordinary care of a fellow servant;" nor "that the injury or death was caused in whole or in part by the want of ordinary care of the injured employe, where such want of ordinary care was not wilful." § 2394-1, in part, as am'd by L. 1913, c. 599. From the foregoing it appears that an employer who does not adopt the compensation principle cannot in any event set up the defense of assumption of risk. The other common- law defenses are abolished only as to such employers as have four or more employes in a common employment and who fail to adopt the compensation principle. If an employer has fewer than four employes he is deprived of the defense of assumption of risk, if he does not elect to pay compensa- tion, but not of the other common-law defenses. Should employes elect, as they may do under § 2394-8, not to adopt the compensation principle, then, of course, em- ployers may set up the common-law defenses in any action which such employes may bring against them, because the provisions abolishing the common-law defenses apply only to such employers as do not adopt the compensation principle. "Any person whose employment is but casual or is not in the usual course of the trade, business, profession, or occu- pation of his employer" is excepted from the operation of the Wisconsin Act. § 2394-7, subd. 2. In actions by. em- ployes in the excepted class, therefore, the common-law defenses are not abrogated. It will be observed that under the Wisconsin Act two dis- tinct classes are excluded by reason of the disjunctive con- junction "or," which is used between the two phrases. That 104 bradbury's workmen's compensation law Reason for abolishing the common-law defenses is, persons whose employment is casual are excluded, and also persons who are not employed in the usual course of the trade, business, profession or occupation of the employer. The British statute, from which the provision excluding casual employments is taken, contains the conjunctive con- junction "and" between these two phrases, so that to exclude an employe from the right to compensation his employment must not only have been casual but it must have been outside the usual course of the trade, business, profession or occupa- tion of the employer. In other words, a casual employe" whose work pertains to the trade, business, profession or occupation of the employer is entitled to compensation. But a casual employe" whose work does not pertain to the usual course of the trade, business, profession or occupation of the employer is not entitled to compensation. See a dis- cussion of this subject post, page 136. Switching crews on railroads are excluded unless they voluntarily adopt the Act. § 2394-8 (3). CHAPTER III 1 TO WHOM ACTS APPLY ARTICLE A. — How the Relation of Master and Servant Is Created 106 9. 10, Who is an "employe" or a "workman" within the meaning of the compensation acts. . . . 106 Members of employer's FAMILY 109 Relation between em- ployer, WHO IS ALSO A WORKMAN, and other workmen 110 Workman temporarily in service of other than regular em- PLOYEE 110 Joint employers of same WORKMAN 112 Teamsters 113 Workman employing as- sistant, OR SUBSTI- TUTE 115 Conductor on railroad employing assistants; emergency 117 Apprentice serving without pay 117 Boarding mistress of construction crew. . . 118 l See also Chapter VI. 11. Student of manual training school em- ployed on holiday. . . 118 12. Persons employed by charitable organiza- tion out of charity. . 119 13. Policeman injured while acting as fire- MAN 120 14. National guardsmen . . . 120 15. Actors 120 16. Partners 121 17. Shareworkers on ves- sels 121 .18. Drivers of taxi-cabs operated on shares. . 125 19. Independent contrac- tors; SUB-CONTRACTORS 127 20. Securing position by false representations 133 21 . Minor securing position by misrepresenting AGE 133 22. Workman injured be- fore ACT TAKES EFFECT BUT DIES AFTER STAT- UTE EFFECTIVE 133 105 106 bradbuby's workmen's compensation law Who is an "employ^" or a "workman," etc. ARTICLE B.— Specific Classes of Employes Excluded from Operation of Acts 134 1. Domestic servants 134 fession" of the em- 2. Casual employe 136 ployeh 143 3. Farm laborers 142 6. Contracts exempting em- 4. Outworkers . .*. 142 ployers from the oper- 5. "Usual course of the ation of the act 144 trade, business or pro- ARTICLE C. — Specific Provisions of the Various Statutes. . 146 Arizona 146 Nevada 176 California 150 New Hampshire 176 Connecticut 151 New Jersey. 177 Illinois 153 New York 178 Iowa 156 Ohio 184 Kansas 160 Oregon 185 Maryland 164 Rhode Island 189 Massachusetts 165 Texas 190 Michigan 167 Washington 192 Minnesota 171 West Virginia 197 Nebraska 172 Wisconsin 203 ARTICLE A.— HOW THE RELATION OF MASTER AND SERVANT IS CREATED 1- Who is an " employe " or a " workman " within the meaning of the compensation acts. Various questions have arisen between partners, share- workers, contractors, sub-contractors and others as to when a man is a "workman," or an "employe," so as to be entitled to compensation in case of injury. The old decisions on the question of when the relation of master and servant exists are, of course, to a certain extent, ap- plicable here. Whenever other than strictly workmen's compensation cases are cited in this chapter the letters TO WHOM ACTS APPLY 107 Who is an "employe 1 " or a "workman," etc. (E. L.) appear directly before the title to the case so there may be no confusion in applying the principles which they enunciate. 1 Of course it does not necessarily follow that the compensa- tion principle applies to all cases where the relation of mas- ter and servant, or employer and employe^ exists. Some of the acts specifically exclude certain occupations such for example as farm laborers, domestic servants and casual employes. Others apply to certain hazardous occupations only leaving all others under the old employers' liability laws. The particular statute under which the question arises must first be consulted. There is a distinction between the word "workman" as used in the British Act and the word "employe" usually found in the statutes of the American States. Thus it is held in England that a certified manager of a colliery receiv- ing £400 a year with house rent free, who does no manual labor, is not a workman. Simpson v. Ebbw-Vale Steel, Iron & Coal Co. (1905), 92 L. T. 282; 7 W. C. C. 101. The same rule was applied as to a chemist whose duties were largely the making of laboratory experiments and who, in connec- tion therewith, did considerable manual labor. Bagnall v. Levinstein (1906), 96 L. T. 184; 9 W. C. C. 100. A law writer was injured in the street during the hour allowed for his lunch. It was held that a law writer was within the Act, but that the luncheon hour is not part of his period of employment, and therefore compensation was refused. McKrill v. Howard & Jones (1909), 2 B. W. C. C. 460. It has also been held that a professional football player was a workman within the meaning of § 13 of the British Act. Walker v. Crystal Palace Football Club (1909), 101 L.T.645;3B.W.C.C.53. The British Act, however, is limited to employes who are earning less than a specified sum, unless they are en- 1 Only the more recent illustrative employers' liability cases have been cited in this connection. 108 bradbury's workmen's compensation law Who is an " employ! " or a " workman," etc. gaged in manual labor, in which latter event the amount of their wages is of no importance. See § XIII. Such limitations are not found in many of the workmen's compen- sation statutes of the various American States. Usually the word "employe" is used, and the exceptions relate to those engaged in particular employments, without re- gard to the sum received as wages or salary. No distinc* tion is made between those engaged in manual and other kinds of labor. Thus in New York it is held that the su- perintendent of a knitting mill is an "employ^" within the meaning of the Employers' Liability Act, since it does not assume to make any distinction between different classes of employes. (E. L.) Aken v. Barnet & Aufsesser Knitting Co., 118 App. Div. 463; 103 Supp. 1078. Naturally in the great majority of cases the relation of master and servant is created by direct contract of employ- ment, either oral or written, express or implied, and no question is raised as to the existence of the relation when an accident happens. In our complex industrial life, however, numerous contractors and sub-contractors are employed. In the attempt to shift the burden of liability for heavy damages in consequence of personal injuries caused by negligence the courts have been called upon to determine the circumstances under which workmen may be said to be the employes of particular employers, when two or more employers, between whom contractual relations exist, are in- terested in the same enterprise. Not infrequently a series of contracts and sub-contracts have been entered into for the purpose of escaping or evading this very liability. Stat- utes have been passed to circumvent this practice, whereby principals have been held responsible for injuries to work- men of contractors and sub-contractors under certain cir- cumstances. In many of the compensation acts this prin- ciple has been adopted, as will be seen from consulting Chapter VII, of this volume. The present article, how- ever, treats of those cases where the question is open to TO WHOM ACTS APPLY 109 Members of employer's family debate whether or not the relation of master and servant exists under various sets of circumstances not governed by specific statutory provisions. In order to hold the master liable for personal injuries caused by negligence, it must appear that the servant was at the time of the injury engaged in the service of the mas- ter or going to or from such service. (E. L.) Lenk v. Kansas & T. Coal Co., 80 Mo. App. 374. It is sufficient to create the relation of master and servant if, at the time of the accident, the employe was in charge of the master's property by his assent and authority engaged in his business and under his control; it not being necessary that he be in his general employment or under a special contract, or that the servant received remuneration directly from his em- ployer. (E. L.) Rhatigan v. Brooklyn Union Gas Co., 136 App. Div. 727; 121 Supp. 481; (E. L.) Kimball v. Cushman, 103 Mass. 194; (E. L.) Wood v. Cobb, 3 Allen, 58. The test by which to determine whether a person is acting as a servant of another is to ascertain whether, at the time when the injury was inflicted, he was subject to such person's orders and control and was liable to be discharged for dis- obedience of orders or misconduct. (E. L.) United States Board & Paper Co. v. Landers, 93 N. E. Rep. 232; 47 Ind. App. 315. When the employment is covered by a written contract, the construction of such contract and the question as to what constitutes an independent employment thereunder is a question of law for the court. (E. L.) Singer Mfg. Co. v. Rahn, 132 U. S. 518. 2. Members of employer's family. A son, employed by his father, lived with him and paid him board and lodging. He was injured while absent for several weeks on his father's business. It was held that he was a member of his employer's family, dwelling in his house, and was therefore not a workman within the Act. 110 bradbury's workmen's compensation law Workman temporarily in service of other than regular employer M'Dougall v. M'Dougall (1911), 48 Scotch L. R. 315; 4 B. W. C. C. 373. 3. Relation between employer, who is also a workman, and other workmen. When one joint employer takes upon himself the func- tion of a worknian the relation of master and servant be- tween him and the employes continues to subsist. (E. L.) Rhoades v. Varney, 91 Maine, 222; 39 Atl. Rep. 552. 4. Workman temporarily in service of other than regular employer. A person who is in the general employ of one person may be temporarily in the service of another with respect to a particular transaction, so that the relation of master and servant arises between them, even though the general em- ployer may have an interest in the special work. (E. L.) Westover v. Hoover, 129 N. W. Rep. 285; 88 Nebr. 201. Thus where a servant is loaned by his own master to another, who puts him to work, the other owes him the duties due from a master to a servant. (E. L.) Wyman v. Berry, 75 Atl. Rep. 123; 106 Me. 43. In another instance the defendant con- tracted to place a machine in A's plant, with certain guar- antees as to the operation of the machine when installed. An expert was placed in charge of the work, and an em- ploye 1 of A was directed to take instructions from this ex- pert so that he could operate the plant when installed. While the work was in progress a boiler exploded and A's employe 1 was injured. It was held that such person, although directly employed by A, was employed by the defendant to the extent that he could recover from the defendant for his injuries thus received. (E. L.) Wise v. Lillie & Sugar Apparatus Mfg. Co., 113 Pac. R. 403; 84 Kans. 86. The seller of a bank safe and vault bound himself to deliver the same and supply a mechanic to take charge of the work of installation. An expert in the seller's employ took charge TO WHOM ACTS APPLY 111 Workman temporarily in service of other than regular employer of the work of installing the safe and vault and the bank turned over to him its servants and they were under the com- plete control of the expert in the work, although the bank paid for their services. It was held that the services were, for the time being, the services of the seller and he was liable for injuries negligently inflicted on them in the performance of the work. (E. L.) Wolfe v. Mosler Safe Co., 139 App. Div. 848; 124 Supp. 541. The seller of a stationary engine was in- stalling it and an employe of the buyer voluntarily became an employe of the seller. It was held that such employe had the right to hold the seller to the duty of competent superin- tendence. (E. L.) Bowie v. Coffin Valve Co., 86 N. E. Rep. 914; 200 Mass. 571. Where the defendant hired the plain- tiff and then directed him to work under the control of a contractor engaged in placing machinery in the defendant's mill, the defendant paying the plaintiff and charging his wages to the contractor, whose contract bound him to pay all expenses of putting in the machinery, it was held that the plaintiff could not recover of the defendant as his serv- ant, for injuries received owing to insufficient lighting of the mill. (E. L.) Dallas Mfg. Co. v. Townes, 41 So. Rep. 988; 148 Ala. 146. A servant who, while in a safe position doing his master's work, was requested by the engineer of an elevator company, which was engaged in an independent employment, at- tempted to loosen the elevator and while so doing was killed, was held not to be then in the service of his own employer and that his own employer was not liable for damages on account of his death. (E. L.) Longa v. Stanley Hod Elevator Co., 69 N. J. Law, 31; 54 Atl. Rep. 251. The services of an employe regularly employed by a corporation were loaned to one of the officers and directors thereof to perform temporary services in the private busi- ness of such director and officer. While performing such services he was away from his employer's premises and on the premises of such director and officer, and the work was 112 bradbury's workmen's compensation law Joint employers of same workman done under his direction and supervision. While perform- ing such services the employe 1 was injured. It was held that the injury was not received in the course of the em- ployment within the meaning of § 1465-59 of the Ohio Com- pensation Act. Re William A. Jones, Claim No. 4173, Ohio Industrial Accident Board, June 4, 1913. 5. Joint employers of same workman. Where the putting of a heater in a distillery was the joint undertaking of the distillery company and the makers of the heater, it was held that the distillery company was liable to one of its servants who assisted in the work by direction of its foreman, for an injury resulting from the breaking of a defective rope furnished for the work. (E. L.) Old Times Distillery Co. v. Zehnder, 52 S. W. Rep. 1051; 21 Ky. Law Rep. 753. Where a railway company, in con- sideration of a fixed rental, furnished a brewing company with a locomotive, for the exclusive use of the brewing company, in a yard containing tracks and switches the ties and rails of which were owned by the railway company and the real estate by the brewing company, and the engi- neer and fireman operating the locomotive were selected by the railway company and paid by the brewing company, it was held that the operation of the yards and locomotive was a joint enterprise of the two companies. (E. L.) Schoen v. Chicago, St. P., M. & 0. Ry. Co., 127 N. W. Rep. 433; 112 Minn. 38. A porter on a sleeping car owned jointly by the railroad company and the Pullman company was held to be an employ^ of the railroad company within the Federal Em- ployers' Liability Act, so that his personal representatives were not precluded from recovery for his death by a release in his contract of employment. (E. L.) Oliver v. Northern Pacific Ry. Co., 196 Fed. R. 432. For the purpose of having a continuous line, one rail- road company, by a traffic arrangement, operated the rail- roads of two other railroad companies, and the three roads TO WHOM ACTS APPLY 113 Teamsters divided the freight according to mileage. It was held that this was not a partnership or an agency, and that the em- ployes of the operating company were not the employes of the other two companies, and, therefore, had no right of action against them for injury resulting from the negligence of the operating company in the movement of its trains. (E. L.) Williams v. Kansas City, S. & G. By. Co., 45 So. Rep. 924; 120 La. 870. 6. Teamsters. When the plaintiff was employed to drive a team which his employer let to the defendant, at a certain price per day, and the defendant had control of the team, it was held that for this particular employment the plaintiff was the serv- ant of the defendant although remaining the general employe" of the owner of the team. (E. L.) Christiansen v. McLellan, 133 Pac. Rep. 434; 000 Wash. 000. Where a municipal corporation owned a water cart and contracted with a Mrs. Dean for a horse and driver, which driver was employed, and who was not under the control of the corporation other than that its inspector directed him what streets or portions of streets to water, it was held in an action by the owner of a carriage, which was injured by the negligent driving of a cart, that the driver of the water cart was the servant of Mrs. Dean and not of the municipal corporation. Jones v. Corporation of Liverpool, 14 Q. B. D. 890. An employer sent two horses and carts with one driver to work for the City of Springfield, in cleaning sweepings from the street. The plaintiff's intestate was also sent as a driver and his duties were to drive one of the horses and a cart to a dump while the other cart was being loaded, so that he was driving one or the other all of the time. The general instructions as to the place and the kind of work to be done were given by the superintendent of the city. But it was the duty of the employe to water the horses when he had a chance and to care for the horses from the time he took them from the 8 114 bkadbury's workmen's compensation law Teamsters barn until he brought them back again at night. Just be- fore twelve o'clock on the day of the injury the deceased told the man in charge of the street sweepers that he would take one horse and cart and go to dinner and on the way to dinner he would water the horse. The decedent's home was in the direction of the nearest watering trough, but a con- siderable distance beyond it. Before reaching the watering trough the decedent was fatally injured by the running away of the horse. It was contended that the deceased had no reason to go to his dinner as he carried grain for the horses and it was his duty to feed them during the noon hour. It was held that the retention of control included the care of the horses at least to the extent of seeing that they were given water and that during this time the deceased was in the em- ploy of the owner of the horses, and his dependents were therefore entitled to compensation from such owners. It was also held that the accident arose out of and in the course of the employment, as the deceased was on his way to perform his duty in watering the horse at the time of the injury, although he may have had, at the time of the injury, the purpose of doing something else not within the scope of his employment after watering the horse. Pigeon v. Em- players' Liability Assurance Corporation, 215 Mass. 000; 102 N. E. Rep. 932. A person driving his own team, although working for a coal dealer, was held to be an independent contractor and not entitled to compensation. Cheevers v. Fidelity & De- posit Company of Maryland, Mass. Indus. Ace. Bd., Rep. Cas., 1913, p. 365. (Appeal pending to Supreme Judicial 0010-1.) A man who had a carting business was employed to cart stones for a county council. He did the work as and when he pleased, but was not controlled by the council except that their surveyor told him where the stones were to be placed. He did not work continuously, but did other work when he wished. He was paid by the day while he worked. It was held that he was not an employe within the TO WHOM ACTS APPLY 115 Workman employing assistant or substitute meaning of the British Act and compensation was refused. Ryan v. County Council of Tipperary (S. R.) (1912), 48 Ir. L. T. 69; 5 B. W. C. C. 578. Where the plaintiff was em- ployed by the defendant to haul a boiler and the plaintiff was to furnish team, wagon and assistants, it was held that the plaintiff was an independent contractor, even though he was obeying the defendant's instructions while unload- ing. (E. L.) See v. Leidecker, 152 Ky. 724; 154 S. W. Rep. 10. A teamster owning his own horses and wagon was engaged in hauling dirt. He was under the order of the employer's foreman and was required to conform to regulations established by the employer. He did no other work with his team and wagon during the time he was em- ployed by the defendant. It was held that the teamster was an employe 1 and not a contractor. Rider v. C. H. Little Co., Michigan Industrial Accident Board, April, 1913. The plaintiff hired a coach at a public stand near a hotel, and directed the driver where to go. While crossing. a rail- road track the carriage was struck by the engine of a pass- ing train, and the plaintiff was injured. It was held that the relationship of master and servant did not exist between the plaintiff and the driver of the coach. (E. L.) Little v. Hackett, 116 U. S. 379. 7. Workman employing assistant or substitute. Where a master allows a servant to employ another to assist him the relationship of master and servant is created, although the person so employed may be compensated and be under the immediate control of the person employing him. (E. L.) Paducah Box & Basket Co. v. Parker, 136 S. W. Rep. 1012; 143 Ky. 607. In another instance the plain- tiff was employed frequently during a year preceding his injury by a foreman of the defendant railway company, and was paid a part of the time by the foreman personally and part of the time was placed on the pay-roll. It was held that he was in the employ of the railroad company so that 116 bbadbuey's workmen's compensation law Workman employing assistant or substitute it owed to him the duty of a master. (E. L.) Illinois Cent. R. Co. v. Timmons, 100 S. W. Rep. 337; 30 Ky. Law Rep. 1155. An employe" of the defendant railway company hav- ing charge of its pumping station and water tank, informed the superintendent that he had to go away on business and would leave his fourteen year old son in charge, and received the superintendent's permission so to do. It was held that the son was an employe" of the company. (E. L.) Yazoo & M. V. R. Co. v. Slaughter, 45 So. Rep. 873; 92 Miss. 289. Where the plaintiff, with the knowledge and consent of the defendant's superintendent in general charge of his factory, was employed by an engineer as a substitute during a tem- porary absence, it was held that the defendant was charged with knowledge of such employment, and with the same duty toward the plaintiff as to the other employes. (E. L.) Aga v. Harbach, 117 N. W. Rep. 669; 140 Iowa, 606. An injured man was engaged by another workman. The employer of such workman only authorized him to employ a boy. It was held that the employment of an old man, when the employer only authorized the engagement of a boy, prevented the applicant being held to be a workman under a contract of service with the respondent. M'CleUand v. Todd (1909), 43 Irish L. T. J. 75; 2 B. W. C. C. 472. Where an employe engages an infant who, by reason of his age and inexperience, is unable to avoid the danger in which he is placed by the employe who engages him, the employer may be liable even though the employe" who en- gaged the infant had no authority to employ hands. (E. L.) Wells v. Kentucky Distilleries & Warehouse Co., 138 S. W. Rep. 278; 144 Ky. 438. Where a stranger in a cotton mill, by permission of the employer, is requested by a section boss to procure oil from an oil pan, it makes the stranger an employ^. (E. L.) Tucker v. Buffalo Cotton Mills, 57 S. E. Rep. 626; 76 S. C. 539. A laborer hired merely to take care of a race horse was held to have no authority to employ a boy to ride it to water TO WHOM ACTS APPLY 117 Apprentice serving without pay so as to render the master liable to the boy for injuries he received while so doing. (E. L.) Corrigan v. Hunter, 122 S. W. Rep. 131; 139 Ky. 315; rehearing denied, 130 S. W. Rep. 798; 000 Ky. 000. 8. Conductor on railroad employing assistants; emergency. A conductor is not authorized to employ additional help when he has a full train crew and no emergency arises, and the railroad company is not liable where one employed by the conductor under such circumstances is injured while performing the work. (E. L.) Clarke v. Louisville & N. R. Co., Ill S. W. Rep. 344; 33 Ky. Law Rep. 797; (E. L.) Vassor v. Atlantic Coast Line R. Co., 54 S. E. Rep. 849; 142 N. C. 68; 7 L. R. A. (N. S.) 950; (E. L.) Yazoo & M. V. R.' Co. v. Stansberry, 53 So. Rep. 389; 97 Miss. 831. In the last-mentioned case the conductor, in the absence of any emergency, and without authority, agreed to permit the plaintiff's minor son to ride on a freight train in considera- tion of his services in assisting the train crew in loading and unloading freight, and it was held that the railroad company was not liable to the plaintiff for injuries sustained by the son resulting from his own negligence and unskilfulness. Evidence that plaintiff, an employe 1 of defendant railroad as baggageman at a station, on several occasions voluntarily assisted in handling baggage on special excursion trains, but did not do the work on the order of the conductors in charge of the trains, nor with their knowledge, and was at no time in the uniform of a train baggageman, is insufficient to create an implication of defendant's acceptance of plain- tiff's services as train baggageman, so as to render defendant liable for injuries received by plaintiff while acting in that capacity. (E. L.) Wagen v. Minneapolis & St. L. R. Co., 82 N. W. Rep. 1107; 80 Minn. 92. 9. Apprentice serving without pay. A person who, under authority from a railroad company, 118 bradbuey's workmen's_compensation law Student of manual training school employed on a holiday goes upon an engine to learn the duties of a fireman, per- forming the services to gain the experience, is a servant of the company, although he receives no pay during his ap- prenticeship. (E. L.) Smith v. Western & A. R. Co., 67 S. E. Rep. 818; 134 Georgia, 216. 10. Boarding mistress of construction crew. One employed by the foreman of a bridge crew of a rail- road company to board the men in cars furnished by the company under an agreement providing that each man should pay a specified sum per day for board, and, in case any of the men failed to pay, the company would deduct the same from their wages, is, in a sense, in the service of the company, in that what she was employed to do and was doing was for the convenience of the employe's of the com- pany. (E. L.) Tinkle v. St. Louis & S. F. R. Co., 110 S. W. Rep. 1086; 212 Mo. 445. Where the defendant railroad company employed the plaintiff's husband as manager for its outfit cars, requiring him to cook or else to furnish a cook, and permitted plaintiff to accompany him and cook for the outfit employes, it was held that the relation of master and servant existed between the plaintiff and the defendant, although the plaintiff was not entitled to any pay for her services from the defendant. (E. L.) Pugmire v. Oregon Short Line R. Co., 92 Pac. Rep. 762; 33 Utah, 27; 13 L. R. A. (N. S.) 565. 11. Student of manual training school employed on holiday. The applicant who was a boy of fifteen, injured his left hand on a circular saw in the manual training department of a high school. He was a student but was employed on a holiday by the principal, under authorization of the School Board. His wages were fourteen cents an hour. Compensa- tion in the sum of $1,000 was awarded by agreement of the parties and order of the Board. Schmitz v. City of Apphton, Wisconsin Industrial Accident Board, September 30, 1912. TO WHOM ACTS APPLY 119 Persons employed by charitable organization out of charity 12. Persons employed by charitable organization out of charity. A charitable institution which had instituted a labor yard, and which, in return for work done therein by persons out of employment, gave such persons their board and lodging and occasionally trifling sums of money, was held not to be employers as to one of the persons who had performed work under the rules stated, as the applicant had not proved a contract of service between himself and the institution. The question whether or not the institution carried on a trade or business was left open. Burns v. Manchester & Salford Wesleyan Mission (1908), 1 B. W. C. C. 305. A dis- tress committee, which provides temporary work for an applicant, is an employer within the meaning of the Work- men's Compensation Act and a person injured is entitled to compensation. Gilroy v. Mackie and Others (Leith Distress Committee) (1909), 46 Scotch L. R. 325; 2 B. W. C. C. 269. The Central Body under the Unemployed Workmen Act of 1905, are "employers" within the meaning of the Com- pensation Act, and when a workman employed by them is killed, his widow is entitled to compensation. Porton v. Central (Unemployed) Body for London (1908), 100 L. T. 102; 2 B. W. C. C. 296. A blind man was injured while employed in the industrial department of an institute for the blind. This department was supported partly by chari- table contributions received by the institute. The institute gave the man, in respect of his services, board, lodging, and 5 shillings a month, and received on his account charitable and parochial assistance which came to a few pounds less than the amount it expended on him. It was held that the man was a workman. MacGillivray v. The Northern Coun- ties Institute for the Blind (1911), 48 Scotch L. R. 811; 4 B. W. C. C. 429. A dispensary medical officer employed by Guardians of the Poor was held not to be a workman, as there was no contract of service between him and an employer within 120 bradbury's workmen's compensation law Actors the meaning of § 13 of the Compensation Act, and that therefore when such medical officer was killed, his dependents were not entitled to compensation. Murphy v. Enniscorthy Board of Guardians (1908), 42 Irish L. T. 246; 2 B. W. C. C. 291. The relation of master and servant does not exist between an inmate of a eharitable institution, even though the inmate does work about the building in which he has a home, and the institution receives a small sum each month under the agreement by which the institution cares for such person. Cunningham v. Sheltering Arms, 61 Misc. 501 ; 115 Supp. 576; aff 'd 135 App. Div. 178 ; 1 19 Supp. 1033. 13. Policeman injured while acting as fireman. Where a police constable was acting as a fireman under an Act of Parliament, it was held that he was acting as a mem- ber of a police force, and was not a workman within the meaning of § 13 of the Act. Sudell v. Blackburn Corporation (1910), 3 B. W. C. C. 227. 14. National guardsmen. Applicant was a member of a company of Infantry in the Wisconsin National Guard. While in the course of his duties in the annual encampment of his regiment he sus- tained injuries which caused hernia. The Attorney General of Wisconsin held that the applicant was an employe of the State and was entitled to compensation, and the Board sustained the opinion and granted compensation. Hanson v. State of Wisconsin, Wisconsin Industrial Accident Board, February 4, 1913. 15. Actors. "It is very doubtful whether actors and vaudeville artists are employes within the meaning of the Workmen's Compen- sation Act. Most of their employments would undoubtedly be outside the relation of master and servant, and be that TO WHOM ACTS APPLY 121 Shareworkers on vessels of independent contractors not covered by the Act. The status of employment in some classes of vaudeville might, however, be an exception, owing to the circumstances of service and to the direct control exercised by the employer over the performers." Massachusetts Industrial Accident Board, Bulletin No. 2, Jan., 1913, page 5. Of course the doctrine announced in the foregoing case would not apply to all actors as most of them are employed on a salary and doubtless would come within the meaning of the term employe. A more serious question arises as to the law which governs when actors are engaged in one State to travel in a dozen or more other States. See page 34. 16. Partners. When partners entered into an agreement that one of their number should act as a working foreman and he received 33s. a week for his services as such in addition to his share of the profits, it was held that his widow was not entitled to compensation from the other partners because of the death of such foreman partner by accident, as he was not a work- man within the meaning of the Act. Ellis v. Ellis & Co. (1905), 92 L. T. 718; 7 W. C. C. 97. 17. Shareworkers on vessels. Two decisions of the Court of Appeal in England in which different conclusions were reached by the same judges, have left in some doubt the question whether the master of a ship who sails the same on shares with the owners, is an employe 1 of the owners. In the case of Boon v. Quance, No. 1 (1909), 102 L. T. 443; 3 B. W. C. C. 106, the Court of Appeal of England held that the master was not the employe 1 of the owner. In that case the captain, who sailed a small vessel with a crew of three under the thirds or sharing system, was at liberty to take any cargoes to any place he pleased, the owner receiving one-third of the gross receipts and doing necessary repairs to the ship. The captain received the re- 122 Bradbury's workmen's compensation law Shareworkers on vessels maining two-thirds, and had to pay and feed the crew (whom he engaged) and also pay harbor dues. The vessel went down with all hands and the captain's dependents claimed com- pensation. It was held that there was no contract of service between the captain and the owners and consequently the dependents were not entitled to compensation. In the subsequent case of Jones v. Owners of the Ship "Alice and Eliza" (1910), 3 B. W. C. C. 495, the crew of a small schooner consisted of the captain, a mate and some- times a boy. The master, in returning to the schooner at night, fell from the dock and was drowned. The claimant's evidence was that the captain received two-thirds of the income from the operation of the vessel for his services. The owner did not submit any evidence, but contended that under the doctrine announced in the case of Boon v. Quance, No. 1, supra, there was no contract of hiring and that there- fore the captain's dependents could not maintain a right to compensation. The court awarded compensation never- theless, distinguishing the two cases. The line of demarca- tion between them seems to be that in the Boon case the evidence was that the captain had full control of the ship and paid to the owner one-third of the receipts. While in the Jones case the only evidence before the court was that the master was remunerated by the payment to him of two-thirds of the gross receipts. The court commented on the failure of the owner to give any evidence at the trial and said that under the testimony given there was a distinction between the two cases. In a later case the doctrine of the decision in Boon v. Quance is reaffirmed. Thus a vessel was sailed under the "sharing system." The captain had authority to trade be- tween any ports he pleased, the owner having no control over him in this matter. The owner received one-half of the gross receipts, after deducting port charges, etc., and the captain retained the remainder, out of which he paid the crew's wages. It was held that there was no contract TO WHOM ACTS APPLY 123 Shareworkers on vessels of service between the owner and the captain, and that the latter's widow was not entitled to compensation. Hughes v. PosOethwaite (1910), 4 B. W. C. C. 105. A firm of fish-curers engaged A to work a "flitboat" belonging to them, and authorized him to find another man to go along with him. A engaged B to work under him on the boat, which was not in any sense a fishing boat, but was used for carrying cargo between the curing stations and vessels lying off shore and landing goods from steamers. A and B were to be remunerated by one-third each of the gross earnings of the boat, the remaining third going to the owners. The boat was maintained by the owners, and both the men and the boat were subject to their orders. When not required by the owners he worked for other curers, such work being undertaken by A as skipper on behalf of the boat, and the rates charged being the same as those paid by the owners to the boat for similar work. When the men were not employed afloat, the owners, whenever possible, supplied them with work ashore. No part of the capital embarked was supplied by A or B, nor were they liable for any loss that might be incurred. In the course of his em- ployment as boatman, B was drowned, and it was held that he was not a partner but a workman in the sense of the Act, and therefore his dependents were entitled to compensation. Jamieson v. Clark (1908), 46 Scotch L. R. 73; 2 B. W. C. C. 228. A member of the crew of a trawler, which is worked on shares, and who is therefore a co-adventurer, is not entitled to compensation where he does some other act voluntarily which is in connection with his regular work. Whelan v. Great Northern Steam Fishing Co. (1909), 100 L. T. 912; 2 B. W. C. C. 235. A person who owned ten sixty-fourth shares of a trading schooner was employed as a master by the managing owner and met his death while in the course of his employment. It was held that in the absence of any proof of partnership 124 bradbtjby's workmen's compensation law Shareworkers on vessels or joint-adventure in a course of trading, the master was a workman and his dependents were entitled to recover com- pensation from the managing owner. Carswell v. Sharps and Others (1910), 47 Scotch L. R. 335; 3 B. W. C. C. 552. An engineer, on a steam fishing vessel, who was injured, was remunerated by 1/24 share of the net profits of a catch, with a guarantee, by the owners of the vessel, that should his profit fall short of 30s. a week, they would make it up to that amount. It was held that the workman was "re- munerated by a share," and therefore not entitled to com- pensation, as the word "solely" is not to be read into § 7 (2) of the Act. Admiral Fishing Co. v. Robinson (1910), 102 L. T.203;3B. W. C. C.247. Where one G, a member of a fishing vessel, was injured while the vessel was at sea and engaged in fishing, and it appeared that he was compensated by a share of the receipts from the trip, based as follows: From the gross price of the fish sold after any trip the owners of the vessel were entitled to deduct commission, discount, and other expenses per- taining to the trip, and the net balance remaining was then divided into fourteen shares, of which G received one-eighth share. While in port and employed in cleaning or making repairs he was paid a daily wage of 5s. It was held that G was remunerated by a share of the profits of the gross earn- ings of the working of the fishing vessel, and was not en- titled to a recovery of compensation under § 7 (2) of the Act. Aberdeen Steam Trawling & Fishing Co. v. Gill (1907), 45 Scotch L. R. 247 ; 1 B. W. C. C. 274. The mate of a coasting vessel, who is a co-adventurer in the enterprise is not entitled to compensation from the owners of the vessel. Hoare v. Barge "Cecil Rhodes" (1911), 5 B. W. C. C. 49. A vessel was worked on shares. Tonnage and pilotage expenses were deducted from gross freights, and the cap- tain took two-thirds of the residue, paying therefrom all other expenses. He made all contracts for freight and en- TO WHOM ACTS APPLY 125 Drivers of taxi-cabs operated on shares gaged a crew. He took the vessel where he wished. There was evidence to show that if the freight was not sufficient to pay the wages of the crew the owners paid them. The mate was drowned at sea. It was held that the mate was a workman employed by the owners, and that his depend- ents were therefore entitled to compensation. Ship "Vic- toria" v. Barlow (1911), 45 Ir. L. T. 260; 5 B. W. C. C. 570. Where a mate engaged by the captain of a barge was paid by the captain on the sharing system out of the profits of the voyage and met with an accident arising out of and in the course of his employment and received compensation from the owners for several months through an insurance company, and payments subsequently were stopped, it was held that the owners were not estopped from denying that the man was employed by them, and further compen- sation was refused. Standing v. Eastwood & Co. (1912), 5 B. W. C. C. 268. 18. Drivers of taxi-cabs operated on shares. A taxi-cab driver occasionally took a cab out for the day from the owners' yard. He paid the owners 75% of his receipts, and accepted certain conditions as to the use of a uniform and the purchase of petrol. There was little or no control exercised over him, although the words "serv- ant" and "dismissal" occurred on notices issued by the owners to the drivers and the public. It was held, by the House of Lords, that the question of whether or not he was a workman was one of fact and that there was evidence to support the finding of the County Court judge that the contract between the parties was not a contract of service and that the driver was accordingly not a workman within the Compensation Act. Bates-Smith v. General Motor Cab Co. (1911), A. C. 188; 4 B. W. C. C. 249, aff'g (1910), 3 B. W. C. C. 500. In the last-mentioned case it was remarked that it might well be that, as between third parties, the 126 bradbury's workmen's compensation law Drivers of taxi-cabs operated on shares driver was the agent of the proprietor, whereas between themselves the relation was that of a bailor and bailee. A taxi-cab driver took out a cab owned by the respond- ents from their yard each day. The contract between the parties was that the driver paid over to the respondents 75% of his daily takings, retaining 25% for himself, less the price of petrol which he purchased from the respondents. There was a considerable amount of evidence as to the re- lationship between the parties. The County Court judge held that the driver was employed by the respondents and that the contract was one of service. It was held that there was no evidence to justify this finding and compensation was denied by the Court of Appeal. Doggett v. Waterloo Taxi-Cab Co. (1910), 102 L. T. 874; 3 B. W. C. C. 371. In the last-mentioned case the court said: "The position of the driver of a taxi-cab is, in most respects, identical with the position of the driver of a horse-cab. It has been held by a series of authorities by which we are bound that the relation of a proprietor of a horse-cab and a driver is not in ordinary circumstances one of master and servant al- though as between a member of the public injured through the negligence of the driver the proprietor is liable. * * * The contract between the proprietor and the driver is for the day on which the taxi-cab is taken out, as the learned judge finds. The driver is not bound to come the next day, and if he does come the proprietor is not bound to let him have a taxi-cab. He is not paid anything as wages. He is accountable to the proprietor for 75% of the takings, his own remuneration being a sum equal to 25% of the takings. This mode of remuneration tends against, and not in favor of, the view that he is a servant. The proprietor exercises no control over the driver, who can go when and where he pleases. * * * I think that the relation was that of bailment, although it may possibly be contended that the parties were co-adventurers. In the above observa- tions I dealt only with the facts of this particular case. TO WHOM ACTS APPLY 127 Independent contractors; sub-contractors There may be cases in which the proprietor of a taxi-cab exercises such an amount of control over the driver as to justify the conclusion that the relation of master and serv- ant exists." The court further remarked that the case of Rex v. Solomons (1909), 2 K. B. 980, apparently furnished an instance of the exception. 19. Independent contractors; sub-contractors. "The judicial conception of an independent contractor is simply that of a person who, being in the exercise of a distinct and recognized trade, craft, or business, under- takes to do a certain work, without submitting himself to the control of the employer in respect of the details of that work." (E. L.) Linton v. Smith, 8 Gray (Mass.), 147. "Where a person is employed to perform a certain kind of work which requires the exercise of skill and judgment as a mechanic, the execution of which is, because of his superior skill, left to his discretion, without restriction upon the means to be employed in doing the work, and employs his own labor, which is subject alone to his own control and direction, the work being executed either according to his own ideas or in accordance with plans furnished him by the person for whom the work is done, such a person is not a servant under the control of a master, but an in- dependent contractor." (E. L.) Richmond v. Sitterding, 101 Va. 354; 99 Am. St. Rep. 879; 43 S. E. Rep. 562; 65 L. R. A. 445. Whether an employer is an independent contractor does not necessarily depend upon the contracts under which he operates, but may depend entirely upon the conduct of the parties. (E. L.) Anderson v. Foley Bros., 124 N. W. Rep. 987; 110 Minn. 151. Where one contracts to do and delivers certain work the manner of doing which, including the employment, payment and control of the labor is left entirely to him, he is an independent contractor for whose acts the other 128 bradbury's workmen's compensation law Independent contractors: sub-contractors contracting party is not liable. (E. L.) Robideaux v. Hebert, 43 So. Rep. 887; 118 La. 1089. Thus a person who agrees to whitewash a building for a certain specified sum is an independent contractor. (E. L.) Finkehtein v. Balkin, 103 Supp. 99. A mason employed to hire other men and to work ac- cording to the employer's plans at a sum stated per hour, is not an independent contractor, although the employer exercises no control, and a workman employed by such mason is a servant of the company for which the work was done. (E. L.) Madix v. Hotchgreve Brewing Co., 000 Wis. 000; 143 N. W. Rep. 189. A man who verbally agreed to break steel and clear cin- ders at so much per ton, and who employed five or six men to assist him and was paid weekly, was held to be an in- dependent contractor and not a workman within the mean- ing of the British Act. Vamplew and Others v. Parkgate Iron & Steel Co. (1903), 88 L. T. 756; 5 W. C. C. 114. A man was engaged by a firm of timber merchants to bring a horse belonging to him and drag logs of timber from the side of a ship which was being unloaded in the harbor to a place where the logs were stored. He received a certain sum per day for himself and his horse, and he might have received that sum had he employed some one else to drive the horse. He was under no obligation to come on any particular day and he was told not to come until he was wanted. It was held that he was not a workman in the sense of the Act, but an independent contractor and therefore not entitled to compensation. Chisholm v. Walker & Co. (1908), 46 Scotch L. R. 24; 2 B. W. C. C. 261. A person who contracts to do or get done work at a fixed price is not a workman within the meaning of the Act. Simmons v. Faulds (1901), 3 W. C. G. 169. A quarryman was employed under a written agreement that he should be paid a certain sum per ton of material worked, his employers supplying him with the necessary TO WHOM ACTS APPLY 129 Independent contractors; sub-contractors tools. He engaged and discharged men to work under him. He ended his employment, but resumed it again upon his employers assuring him that he should be compensated in case he was injured by accident. It was held that there was evidence that he was a workman within the meaning of the Act and not an independent contractor. Evans v. Penwyllt Dinas Silica Brick Co. (1901), 4 W. C. C. 101. A servant of an independent contractor, working a mine for the owner, is not the owner's servant. (E. L.) Sloss- Sheffield Steel & Iron Co. v. Bibb, 51 So. Rep. 345; 000 Ala. 000. An employe of a sub-contractor cannot recover from the contractor for injuries caused by his employer's negli- gence when the contractor has no control over the work. (E. L.) Winnicott v. Orman, 102 Pac. Rep. 570; 39 Montana, 339. The doctrine announced in the last-mentioned case has of course been modified by statute in many States even under the old employers' liability laws. It has been changed in many of the States under workmen's compensation statutes also. See Chapter VII. Unless an employe knows he is working for an independ- ent contractor while the contractor is installing machinery for the employer, no relation exists between the employe 1 and the contractor, since the employe 1 cannot be transferred from one employer to another without his consent. (E. L.) Bowie v. Coffin Valve Co., 86 N. E. Rep. 914; 200 Mass. 571. But an undisclosed principal, who succeeds to the ownership of property theretofore carried on by another member, is liable to the employes even though they do not have notice of change of ownership. (E. L.) McClure v. Detroit Southern B. Co.,. 109 N. W. Rep. 847; 146 Mich. 457. A company beginning the construction of a pier under a contract placed "S," its superintendent, in charge of the work and of the employes. After an employe was injured by reason of negligence the defendant contended that before the injury it had assigned its contract to "S" and that he was doing the work on his individual responsibility. It 9 130 bradbury's workmen's compensation law Independent contractors; sub-contractors appeared that no notice was ever given to the plaintiff of the change of employers; that there was no change in the work; that the time book and the time checks were the blank forms used by the company; that the workmen presented their vouchers on the printed forms of the com- pany to the office of the company, and there received their money. It was held that the defendant was liable, as "S" was its ostensible agent. (E. L.) Donnelly v. San Francisco Bridge Co., 117 Cal. 417; 49 Pac. Rep. 559. Where plaintiff was employed by certain miners to work as a shot firer in the mine, and was paid partly by defendant, the mine operator, and partly by the miners, it was held that the relation of master and servant existed between the plaintiff and defendant. (E. L.) Princeton Coal Mining Co. v. Downer, 93 N. E. Rep. 1009; 000 Ind. App. 000. But where a mine owner, giving another a contract to mine, reserved no rights to interfere with details of the work, but only required it to be done in conformity with the contract and the mining rules, it was held that he was an independent contractor and the relation of master and servant did not exist between an employe" of the contractor and the owner. (E. L.) Merriweather v. Sayre Mining & Mfg. Co., 49 So. Rep. 916; 000 Ala. One employed by defendants to squeeze boxes for them in their factory with their machinery, as and when directed by their foreman, who was paid by the box, with the right to hire and pay his own assistant, was held not to be an in- dependent contractor, and for his negligence in operating the machine, whereby his assistant was injured, the defendants were liable. (E. L.) Messmer v. Bell & Coggeshall Co., 117 S. W. Rep. 347; 000 Ky. 000. A lumber company hired a person with his mill and a fire- man, paying for the mill and fireman a stipulated price per month and also made the person thus hired foreman of the "lumber camp. This foreman hired decedent to act as fire- man of the boiler, which exploded and killed him. It was TO WHOM ACTS APPLY 131 Independent contractors; sub-contractors held that the foreman was not an independent contractor and the decedent was an employe of the defendant lumber company. (E. L.) Keen's Adm'r v. Keystone Crescent Lum- ber Co., 118 S. W. Rep. 355; 000 Ky. 000. A manufacturing company leasing a mill to a person under an agreement to pay him so much per thousand feet for logs shipped on board, with a guaranty that he would make a certain sum per month, was held not liable to an employe of the person with whom the contract was made for such person's negligence, in the absence of evidence that the company reserved general control over the operation of the mill. (E. L.) Midgette v. Branning Mfg. Co., 64 S. E. Rep. 5; 150 N. C. 333. A contractor rented from a third person a hod elevator and appliances. The elevator, from its installation in the building under construction, was run by the contractor and his own employes, except the engineer, who moved the elevator on signals from employes of the contractor. An employe of a sub-contractor was injured while in the cellar of the building, by the elevator coming down and striking him. There was no sign, guard, or warning at the elevator shaft or elsewhere in the cellar. There was no question of negligence in the operation of the elevator other than the failure to guard and warn. It was held that the third person who owned the elevator was not liable for the injuries. (E. L.) Anderson v. Pelham Hod Elevating Co., 129 App. Div. 639; 113 Supp. 989. Where a tug is employed to tow a vessel, the master and crew of the tug are employes of the owners of the tug and any claims for negligence must be made against the owners of the tug and not against the owners of the vessel being towed. (E. L.) Sturgis v. Boyer, 24 How. 123. Where the owner of a vessel employed the captain and chief engineer, and the captain employed the mate, who employed the sailors, and the charterer could not discharge the captain without the owner's consent, and if the expenses 132 bkadbtjry's workmen's compensation law Independent contractors; sub-contractors exceeded the receipts the owner paid the deficit, it was held that there was not such a surrender by the owner to the charterer as to relieve the owner from liability for injuries to a seaman by the mate's negligence. (E. L.) Nelson v. Western Steam Nav. Co., 100 Pac. Rep. 325; 52 Wash. 177. Where the defendant furnished all materials and employed H by the day to procure men and superintend the construc- tion of a building, H paying the workmen with money fur- nished by the defendant, on a statement from time to time showing the amount required, it was held that the workmen were the servants of the defendant. (E. L.) Rankel v. Buckstaff-Edwards Co., 120 N. W. Rep. 269; 138 Wise. 442; 20 L. R. A. (N. S.) 1180. A man having a contract to build laborers' cottages agreed with a mason for the latter to do the work. The contractor supplied the materials, and paid the mason by the day for the work he did. The mason had to do the work within the time allowed by the head contractor, and to the satisfaction of the surveyor under the head contractor. He was not bound to work continuously, and did not do so, butworked for other people during the time of building. The County Court Judge found that the mason was not under a contract of service with the contractor. It was held on appeal that there was evidence to support the finding. Byrne v. Baltin- glass Rural District Council & Kelly (1911), 45 Ir. L. T. 206; 5 B. W. C. C. 566. Where the plaintiff was employed to shovel gumbo from the ground upon cars and was paid according to the amount which he did, but had no control as to where the cars to be loaded should be placed, and the defendant owning the plant had control of the cars and general management of the entire work, including supervision, through a superintendent, over the plaintiff's work, it was held that the relation of master and servant existed and the plaintiff was not an independent contractor. (E. L.) Missouri, K. & T. Ry. Co. v. Romans, 114 S. W. Rep. 157; 00 Tex. Civ. App. 000. TO WHOM ACTS APPLY 133 Workman injured before act takes effect but dies after statute effective An independent contractor was building a bridge for a railroad company. The railroad company was doing the track laying on its own account, and while so engaged, a "tie jack" fell from one of its fiat cars over which the rail- road company had exclusive management and control, and struck and injured plaintiff, who was a servant of the con- tractor. It was held that the contractor was not liable. (E. L.) Gurdon & Ft. S. Ry. Co. v. Calhoun, 109 S. W. Rep. 1017; 86 Ark. 76. 20. Securing position by false representations. The fact that a brakeman falsely stated, in securing his position, that he had never had any litigation with the rail-: road company, while ground for the rescission of his contract of employment, does not render such contract absolutely void, or terminate the relation of master and servant exists ing at the time of the injury. (E. L.) Galveston H. & S. A. Ry. Co. v. Harris, 107 S. W. Rep. 108; 000 Tex. Civ. App. 00. 21. Minor securing position by misrepresenting age. Where a minor by knowingly misrepresenting his age was accepted by a railroad as a student fireman, though the rules of the company prohibited the accepting of minors for train service, it was held he was a trespasser, or, at most, a bare licensee, and not a servant, and the railroad was not liable for his death in a collision, since it would be liable only for injuries wilfully or wantonly inflicted upon him. (E. L.) Norfolk & W- Ry. Co. v. Bondurant's Adm'r, 59 S. E. Rep. 1091; 107 Va. 515. 22. Workman injured before act takes effect but dies after statute effective. A stereotyper in the employment of a newspaper, showed, early in 1907, symptoms of lead poisoning. He finally left the employment on June 22, 1907, and eventually died on September 14, 1907. The Act of 1906 came into operation 134 bradbury's workmen's compensation law Domestic servants on July 1, 1907. It was held that the provisions of the Act were not applicable, since the deceased was not at the date of the commencement of the Act in the employment of the respondents, or of any one else, and that accordingly his widow was not entitled to compensation. Greenhill v. The Daily Record, Glasgow (1909), 46 Scotch L. R. 483; 2 B. W. C. C. 244. « ARTICLE B.— SPECIFIC CLASSES OF EMPLOYES EXCLUDED FROM OPERATION OF ACTS 1. Domestic servants. Bouvier defines the word "domestics" as follows: "Those who reside in the same house with the master they serve. The term does not extend to workmen or la- borers employed out-of-doors. 5 Binn. Penn. 167; Merlin, Report. The act of Congress of April 30 1790, § 25, uses the word domestic in this sense. "Formerly this word was used to designate those who resided in the house of another, however exalted their sta- tion, and who performed services for him. Voltaire, in writing to the French Queen, in 1748, says, 'Deign to con- sider, madam, that I am one of the domestics of the king, and consequently yours, my companions, the gentlemen of the king,' etc.; but librarians, secretaries, and persons in such honorable employments would not probably be considered domestics, although they might reside in the houses of their respective employers. "Pothier, to point out the distinction between a domestic and a servant, gives the following example: — A literary man who lives and lodges with you, solely to be your com- panion, that you may profit by his conversation and learn- ing, is your domestic; for all who live in the same house and eat at the same table with the owner of the house are his domestics; but they are not servants. On the contrary, your valet-de-chambre, to whom you pay wages, and who sleeps out of your house, is not, properly speaking, your TO WHOM ACTS APPLY 135 Domestic servants domestic, but your servant. Pothier, Proc. Cr. sec. 2, art. 5, § 5; Pothier, Obi. 710, 828; 9 Toullier, n. 314; H. de Pansey, Des Justice de Paix, c. 30, n. 1." Domestic servants are included in the New Jersey Act, but are excluded from a large majority of the American compensation statutes. They are included in the British Compensation Act. There has been considerable doubt as to whether employes of hotels, such as chambermaids, cooks, etc., were domestic servants. The decisions on the subject are very meagre and unsatisfactory. An ordinary private chauffeur is a domestic servant. Ruling of Massachusetts Industrial Accident Board, Bul- letin No. 2, Jan. 13, page 7. A man who is hired for one day to do some work is not a domestic servant. Richardson v. State, 43 Tex. 456. The term "domestic servant" does not extend to workmen or laborers employed out of doors. Wakefield v. State, 41 Texas, 556. A farm hand who eats and sleeps outside the master's house is not a domestic servant. Waterhouse v. State, 21 Tex. App. 663; 2 S. W. Rep. 889. A person hired for an hour to carry wood is not a domestic servant. Williams v. State, 41 Texas, 649. Although servants or domestics have been declared to be those who receive wages and stay in the house of a person paying and employing them, such as valets, footmen, cooks, etc., the term does not include persons in such line of em- ployment in a public hotel or tavern. Cook v. Dodge, 6 La. Ann. 276. The Act of Congress (23 Stat. L. 332; U. S. Comp. Stat. 1901, p. 1290) prohibiting the immigration of aliens under contract except domestic servants, does not include one who is partially employed in the production of merchan- dise as fitting surplus dairy products for market. In re Cummings, 32 Fed. Rep. 75. Nor an under-coachman who boards with his employer's coachman and sleeps in a room over the coachhouse. In re Howard, 63 Fed. Rep. 263. In a will directing the testator's executor to pay each 136 bkadbury's workmen's compensation law Casual employ^ of his domestic servants who should be with him or in his service at the time of his decease, such sums of money as should be equivalent to two years of the annual amount of their respective wages, domestic servants can not be con- strued to include a servant who has charge of the garden at the mansion but who lives in a cottage in the garden and has an annual isum from his employer in addition to his employer's wages. Vaughan v. Booth, 13 Eng. L. & Eq. 351, 354. 2. Casual employe. The word "casual" is from the Latin casualis, meaning an accident; happening or coming to pass without design and without being foreseen or expected; coming without regularity. The word ' ' casualty ' ' has the same origin. The term "casual employe" as used in the various com- pensation acts has different meanings. In some of the statutes casual employes are excluded only when they are not engaged in the usual course of the trade or business of the employer. In other statutes all kinds of casual em- ployes are excluded from their operation. Section XIII of the British statute, from which the term was originally taken, provides that the word "workman" shall not include "a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the em- ployer's trade or business. * * * " Under the British statute, therefore, a casual employe" who is engaged in the course of the trade or business of the master is covered by the Compensation Act. Thus where a casual workman was employed to assist a slater in repairing the roof of a building used solely for the purposes of business, and was killed by falling from the roof, it was held that his dependents were entitled to com- pensation. Johnston v. Monasterevan General Store Co. (1908), 42 Irish L. T. 268; 2 B. W. C. C. 183. In the course of the opinion, in the last-mentioned case, it is said: "The TO WHOM ACTS APPLY 137 Casual employ^ Act of 1906 widened the liability of employers, and the scope of the Act was intended to include new classes of workmen in addition to those benefited by previous acts. Suppose the shutters of a shop got jammed and could not be opened, and a carpenter or locksmith was employed to open them, it is manifest that that would be for the pur- poses of the employer's business." In another case a farmer required some tiles put on the roof of his granary and em- ployed a bricklayer to put them on. During the work the bricklayer was injured and he afterward claimed compen- sation. It was held that although the work was of a casual nature it was for the purpose of the employer's trade or business, and therefore the workman was entitled to re- ceive compensation. Blyth v. Sewell (1909), 2 B. W. C. C. 476. A laborer owned a small garden surrounded by a hedge and land belonging to a farmer. He complained to the farmer that the hedge had grown so high that it cast shade across his garden, and requested him to cut it. The farmer, being too busy, told the man to cut it himself, for which he would pay him 10s. The long wood from the hedge was to be used for hop-poles for the farmer. The man injured his eye while cutting the hedge. The County Court Judge found that the employment was of a casual nature for the purposes of the farmer's trade or business, and awarded compensation. This decision was affirmed on appeal on the ground that there was evidence to support the finding. Tombs v. Bomford (1912), 5 B. W. C. C. 338. A retired physician conducted a farm for profit. The sway- ing of some trees shook the roots, and thereby injured the wall of a building on his property. He employed a man cafeually to trim the trees, and it was held that this employ- ment was for the purposes of the employer's trade or busi- ness, and that the man who was thus employed was entitled to compensation upon being injured. Cotter v. Johnson (1911), 45 Ir. L. T. 259; 5 B. W. C. C. 568. Some of the statutes of the American states follow the Brit- 138 bradbury's workmen's compensation law Casual employ^ ish statutes in this respect, while others exclude all casual employes, whether they are engaged in the general course of the business of the employer or otherwise. Thus, the Mas- sachusetts Act excepts from the operations thereof "one whose employment is but casual, or is not in the usual course of the trade, business, profession, or occupation of his em- ployer." Part V, § 2. The Massachusetts Act, by using the disjunctive conjunction makes the exclusion much broader than is effected by the British Act. The Illinois Act follows very much along the lines of the Massachusetts statute, although slightly different words are used. It provides (§ 5) that the term "employe" does not include "any person whose employment is but casual or who is not engaged in the usual course of the trade, business, profession, or occupation of his employer." The Connecticut statute excludes "casual employes." Part A, § 2. The term as used in the Connecticut statute, therefore, is just as broad as that contained in the Illinois and the Massachusetts acts. On the other hand,' the Minnesota statute follows the British Act and excludes "persons whose employment at the time of the injury is but casual and not in the usual course of the trade, business, profession or occupation of his employer." In determining, therefore, whether or not particular casual employes are included or excluded from a statute the specific provisions thereof on this subject must be examined. The employment of a window cleaner, at irregular inter- vals, to clean the windows of a dwelling house, although the same person may have been engaged, when required, for a period of some years, is casual employment only. Hill v. Begg (1908), 1 B. W. C. C. 320. A window cleaner had been for some years in the habit of cleaning, about once* a month, the windows of the respondent's private house. The respondent was a medical man, and used some part of his house for the purposes of the profession. No formal contract existed, but the window cleaner called at or about the expected periods and was admitted and did the work. TO WHOM ACTS APPLY 139 Casual employ! It was found, as a fact, that the respondent might at any time have engaged any other window cleaner, or refused admission to the window cleaner in question. It was held that the employment was of a casual nature and was not employment for the purposes of the employer's trade or business. Rennie v. Reid (1908), 45 Scotch L. R. 814; 1 B. W. C. C. 324. A laborer employed to do whitewashing and to be paid according to the amount of work done, the employer sup- plying the laborer with money to buy the necessary ma- terials, is a workman in whose favor compensation should be awarded. Bargewell v. Daniel (1907), 123 L. T. J. 487; 9 W. C. C. 142. A woman was employed to work at a particular house on Friday of every week and on Tuesdays in alternate weeks. She suffered personal injuries in the course of such employ- ment. It was held that the employment was not of a casual nature and that the woman was a workman within the meaning of the Act, and therefore entitled to compensation. Dewhurst v. Mather (1908), 1 B. W. C. C. 328. A carpenter was employed to do repairs in the private house of the respondent, and after these repairs were finished was engaged to cut down some trees in the grounds near the house. While engaged in the latter work he was killed, and it was held that the employment was of a casual nature and compensation was refused. ' M'Carthy v. Norcott (1908), 43 Irish L. T. 17; 2 B. W. C. C. 279. A laborer was engaged to perform certain services in moving furniture and other personal articles in the house and in cleaning the yard by a woman who kept a boarding house. On the day prior to the employment the workman had been engaged in selling wood for another person. He was engaged to come for a couple of hours and after he had been at work about three hours in moving the articles and cleaning the yard he went into the yard to attach a clothes line to the pole. He climbed up a clothes pole and while 140 bradbury's workmen's compensation law Casual employ^ coming down the pole gave way precipitating him to the ground and injuring him somewhat severely. It was held that the employment was of a casual nature under the New Jersey Workmen's Compensation Act. Hubbe v. Lynch (Essex Common Pleas, Jan. 23, 1913), 36 N. J. Law J. 87. In the last-mentioned case the court called attention to the difference in the**provisions of the New Jersey Act in relation to casual employes from the provisions on the same subject in the British Act. The New Jersey Act excludes all em- ployes of a casual nature whether they are engaged in the employer's trade or business or otherwise. See § III, subd. 23. This provision of the statute was not changed by the amendment contained in Chapter 174 of the Laws of 1913. A workman applying for work was asked if he understood the use of saws, to which he replied that he did, and he was put to work without any agreement as to the amount of wages which he was to receive. On the same day that he started to work he was injured by one of the saws. It was contended by the employer that there was no contract of employment on the ground that the workman had deceived him as to his representations that he understood the use of saws. The employer also contended that he was a mere casual employe 1 in any event. It was held that the workman was not a casual employe" and that he was entitled to com- pensation at at least the minimum amount specified in the statute of five dollars a week, for the number of weeks speci- fied in the Act for the loss of a thumb and the partial loss of the use of the first finger and the loss of the use of the fourth finger. Mueller v. Oelkers Mfg. Co. (Essex Common Pleas, February, 1913), 36 N. J. Law J. 117. By reason of a fire in the plant of the Detroit Saturday Night Company that Company made a contract with the Wynn & Hammond Company to use the latter's plant in getting out the former's periodical. The contract between the two companies provided that if the Saturday Night Company desired to use the plant after 5 p. m.. that it TO WHOM ACTS APPLY 141 Casual employ 6 should furnish a competent engineer to attend to the boilers and perform such other duties as usually fell to a man in that capacity. The engineer of the Wynn & Hammond Company was employed one night while the Saturday Night Company was getting out its paper and the employes of the Saturday Night Company, not being familiar with the building, they requested the engineer who was regularly employed by the Wynn & Hammond Company in the day time to run an elevator in the building. In doing this the engineer was killed. The engineer's dependents made a claim against the Saturday Night Company and the latter com- pany contended that the engineer was a purely casual em- ploye" and that he was really an employe" of the Wynn & Hammond Company. The Board, however, determined that he was an employe" within the protection of the Act and that the Detroit Saturday Night Company was liable for the compensation. Spooner v. Detroit Saturday Night Company, Michigan Industrial Accident Board, July, 1913. The provision of Sec. 7, subd. 2 of the Michigan Act that casual employes are not entitled to compensation does not apply to employes of the State or of any public institution. Agler v. Michigan Agricultural College, Michigan Industrial Accident Board, Nov. 3, 1913; The Indicator, Nov. 5, 1913, p. 442. Where an employe" when he was engaged was told that he "might get through to-night, you might not for a week, or two or three days" it was held that he was not a casual em- ploye. Grogan v. Frankfort General Ins. Co., Massachusetts Industrial Accident Board. A firm of caterers did not have any regular waiters in their employ, but engaged men who followed that occupa- tion regularly as the occasion arose. While serving in his usual capacity as waiter at a banquet an employe" received a personal injury from which he died. It was held that the employment was not casual and that the widow was entitled to compensation. Gaynor v. Standard Accident Ins. Co., 142 beadbuby's wobkmen's compensation law Outworkers Massachusetts Industrial Accident Board (appeal pending to Supreme Judicial Court). 3. Farm laborers. There is no logical reason why farm laborers should be excluded from the operations of a compensation act. They are included in New Jersey and in some of the other States but not generally. Almost all of the farm laborers are en- gaged for a brief period during a short portion of the season only and the burden, therefore, would be somewhat heavy in comparison with the amount of the wages paid. It is probable for this reason that they were excluded. An at- tempt has been made to amend the New Jersey compensa- tion act in this respect, but so far, without success. Very little attempt has been made to define farm laborers, or agricultural workers. In American law a farm means a portion of land used for agricultural purposes. Winn v. Cabot, 18 Pick. (Mass.) 553; Wheeler v. Randall, 6 Mete. (Mass.) 529; Commonwealth v. Carmalt, 2 Binn. (Penn.) 235. A skilled carpenter employed on a farm as handy man, doing fence-work, harvesting and rick-making, and for three or four months a year acting as game-keeper may be a work- man in agriculture. Smith v. Coles (1905), 93 L. T. 754; 8 W. C. C. 116. 4. Outworkers. It has been felt that employers should not be held liable for injuries to workmen who come to the employer's estab- lishment merely for the purpose of securing material upon which the work should be done and taking the same to the workman's own home or workrooms where the labor was performed. There are many reasons why the employer should not be held liable in such cases. He has no direction , over the operations of the workmen nor over the place in which the work is performed. Some of the statutes exclude TO WHOM ACTS APPLY 143 "Usual course of trade, business or profession" of employer outworkers from their operation but these provisions have not been interpreted by the courts or administrative com- missions. 5. " Usual course of the trade, business or profession " of the employer. Many, although not all, of the compensation acts con- tain provisions limiting the application thereof to workmen who are engaged in the course of the trade, business, profes- sion or occupation of the employer. Only a few, like that of New Jersey, apply generally to domestic servants and all other employe's, whether or not they are engaged about the master's trade or business. Some of them are either compulsory as to certain employes engaged in the master's trade, or business, or, if they are elective, they provide penalties against the master in relation to employes en- gaged in his trade or business, if he does not elect to adopt the compensation principle. Much confusion has resulted from the adoption of this phrase from the British Act with- out taking the entire sentence. The British Act excludes only such casual employes as are not engaged in the master's trade or business. § XIII. In some of the American acts all casual employes, as well as all those not engaged in the master's trade or business are excluded, by coupling the two phrases together with the word "or," instead of with the word ' ' and " as is done in the British Act. See discussion of casual employes, page 136. An ordinary private chauffeur is not covered by the Work- men's Compensation Act for the reason that he is either a domestic servant or is not employed in the usual course of the trade, business, profession or occupation of his employer. The chauffeur of a business concern is like any other em- ploy^ and is covered by the act. Ruling of Massachusetts Industrial Accident Board. See Bulletin No. 2, January 13, page 7. Employment in a refreshment room at a railway station 144 bradbury's workmen's compensation law Contracts exempting employers from operation of act is not employment on or in or about a railway. Milner v. Great Northern By. Co. (1900), 82 L. T. 187; 2 W. C. C. 51. Rebuilding stations is work "merely ancillary or inci- dental to and is no part of or process in the trade or business carried on by" a railway company. Pearce v. London and South Western By. (1900), 82 L. T. 487; 2 W. C. C. 47. 6. Contracts exempting employers from the operation of the act. The provisions of the various acts that no contract ex- empting the employer from the terms thereof are somewhat anomalous, especially in regard to those statutes in which it is provided that silence on the part of the employer and the employe^ raises a presumption that they have agreed in the contract of service to accept the compensation principle. In considering the power to annul the statutes by contract the intention of the legislature in each instance should be kept in mind constantly. The lawmaking bodies intended to compel employers to accept compensation by depriving them of their common-law defenses if they failed to do so. They also intended to compel employes to adopt compen- sation by enacting that the employer's common-law de- fenses should be restored as to all such employes as refuse to adopt the compensation principle. 1 Naturally this plan of coercion was adopted to overcome the constitutional difficulties in the way of enacting a compulsory compensa- tion law. So the legislatures said to the employers and employes alike: You may agree (impliedly) with each other not to adopt the compensation doctrine, but if you do, certain penalties will be inflicted. If the employer forces the agreement, by refusing to accept compensation, his common-law defenses shall be taken away. If, on the other hand, the employe forces the implied agreement by refusing 1 Not all of the compensation acts contain this penalty so far as the employes are concerned. But as a general rule they do so. TO WHOM ACTS APPLY 145 Contracts exempting employers from operation of act to accept compensation when his employer has already indicated his intention of embracing that doctrine then the employer of such employe 1 shall have restored to him his common-law defenses. The whole subject, as it is worked out in this series of implied agreements, made necessary by the constitutional difficulties in the way of an obligatory compensation law, has produced a condition which is both anomalous and confusing. Under the British Act it is held that an agreement with an employe" who had been injured, containing terms differ- ent from those specified in the Act, will not be upheld. British & South American Steam Navigation Co. v. Neil (1910), 3 B. W. C. C. 413. The term "contracting out" is frequently heard in some quarters in connection with compensation acts. It has a restricted meaning, however, and does not include the right generally to annul the Compensation Act by contract between employer and employe. The term merely refers to the right given under the statute of adopting some al- ternative scheme of compensation which will, in effect, be the same as that provided under the Act. In other words, the employer himself under certain conditions, or a number of employers co-operating, can provide a method of compen- sating his or their employes on a plan which may differ in detail from that provided in the statute, but which must be substantially the same in principle. Such plans must invariably have the approval of certain public officials before they become effective. Thus a scheme was certified under the British Workman's Compensation Act of 1897. Within six months, allowed for recertification under the Act of 1906, an infant who had contracted out of the Act met with an accident. The scale of compensation was not beneficial to the infant. It was held that the infant was not bound by the contract. Morter v. Great Eastern Ry. Co. (1908), 2 B. W. C. C. 480. 10 \146 bradbury's workmen's compensation law Arizona ARTICLE C— SPECIFIC PROVISIONS OF THE VARIOUS STATUTES ARIZONA 1 The "especially dangerous" employments covered by the compulsory portion of the Arizona Act are specified in § 67 below. Employers and employes in other occupations may elect to adopt the compensation principle. § 79. There are no special classes of employes, such as domestic servants and casual employes, excepted from the terms of the Arizona Act. There would be no object in making such exceptions as all employes have the constitutional right in Arizona to elect, after the accident, whether they will de- mand compensation or damages. The provision in many of the acts, therefore, that if employers in specific employments fail to adopt the compensation principle they shall not be permitted to interpose the common-law defenses is unim- portant in Arizona. While the common-law defenses are not entirely abrogated they are very greatly modified and the modification affects employers who come under the compensation feature of the statute as well as those who do not. The following are the principal features of the statute: L. 1912, 2d Sea "§ 66. Compulsory compensation shall be paid Art. 14, § 2. by his employer to any workman engaged in 1 In 1913 the State of Arizona codified its laws relating to employer and employe and re-enacted the workmen's compensation law as Chapter VII of that codification. The re-enactment was without substantial change in the old law, but such changes as were made are contained in the statute printed in the text. The original statute was cited as " Article 14, Section 1 Second Session, Laws of 1912, page 23." The re-enactment has new sec- tion numbers, beginning with Section 65, but in the body of the law fre- quent reference is made to the sections under the old section marks. This is very confusing and it has been necessary to insert the old section marks in the margin to understand the references in certain sections to provi- sions in other sections. TO WHOM ACTS APPLY 147 Arizona any employment declared and determined as in the next section hereof (as provided in § 8, of Article XVIII of the State Constitution) to be especially dangerous, whether said employer be a person, firm, association, company, or corporation, if in the course of the employment of said employe" personal injury thereto from any accident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employ^ or employes, to exercise due care, or to comply with any law affecting such employment." " § 67. The employments hereby declared and de- l. 1912, termined to be especially dangerous (as provided Art.u, $3. in § 8, of Article XVIII of the State Constitution) within the meaning of this chapter are as follows: " 1. The operation of steam railroads, electrical railroads, street railroads, by locomotives, engines, trains, motors, or cars of any kind propelled by a steam, electricity, cable or other mechanical power, including the construction, use or repair of ma- chinery, plants, tracks, switches, bridges, road- beds, upon, over, and by which such railway busi- ness is operated. "2. All work when making, using or necessi- tating dangerous proximity to gunpowder, blast- ing powder, dynamite, compressed air, or any other explosive. "3. The erection or demolition of any bridge, building, or structure in which there is, or in which the plans and specifications require, iron or steel frame work. "4. The operation of all elevators, elevating machinery or derricks or hoisting apparatus used within or on the outside of any bridge, building or other structure for conveying materials in connec- 148 BRADBURY'S WORKMEN'S COMPENSATION LAW Arizona tion with the erection or demolition of such bridge, building or structure. "5. All work on ladders or scaffolds of any kind elevated twenty (20) feet or more above the ground or floor beneath in the erection, construction, repair, painting or alteration of any building, bridge, structure or other work in which the same dire used. "6. All work of construction, operation, altera- tion or repair, where wires, cables, switchboards, or other apparatus or machinery are in use charged with electrical current. "7. All work in the construction, alteration or repair of pole lines for telegraph, telephone or other purposes. "8. All work in mines; and all work in quarries. "9. All work in the construction and repair of tunnels, sub-ways and viaducts. "10. All work in mills, shops, works, yards, plants, and factories where steam, electricity, or any other mechanical power is used to operate machinery and appliances in and about such premises. L - 1B1Z - " § 68. In case such employe or his personal Art. ii, § 4. representative shall refuse to settle for such com- pensation (as provided in § 8 of Article XVIII of the State Constitution),. and chooses to retain the right to sue said employer (as provided in any law provided for in § 7, Article XVIII of the State Constitution) he may so refuse to settle and may retain said right. L - 1912 > " § 69. It is hereby declared and determined Art. w, §5. *° ^ e contrary to public policy that any employer conducting any especially dangerous industry, through any of his or its officers, agents, or L -i9i2. employ^ or employes, shall fail to exercise due Art. ii', § 6. care > or ^ au t.° comply with any law affecting such employment, in such manner as to endanger the lives and safety of employes thereof, without as- TO WHOM ACTS APPLY 149 Arizona suming the burden of the financial loss through disability entailed upon such employes, or their dependents, through such failure; and it is further declared and determined to be contrary to public policy that the burden of the financial loss to em- ployes in such dangerous employments, or to their dependents, due to injuries to such employes re- ceived through such accidents as are hereinbefore mentioned shall be borne by said employes with- out due compensation paid to said employes, or their dependents, by the employer conducting such employment, owing to the inability of said employes to secure employment in said employ- ments under a free contract as to the conditions under which they will work. "§ 70. The common-law doctrine of no liability l. 1912, without fault is hereby declared and determined to be abrogated in Arizona as far as it shall be sought to be applied to the accidents hereinbefore mentioned. § 71. When, in the course of work in any of the employments described in . the third 1 sec- tion above, personal injury by accident arising out of and in the course of such labor, service, or employment, is caused to or suffered by any work- man engaged therein, by any risk or failure speci- fied in the second section hereof, then such em- ployer shall be liable to and must make and pay compensation to the workman injured, and his personal representative, when death ensues, for the benefit of the estate of the deceased, for such injury at the rates and in the manner hereinafter set out in this Chapter: "Provided, That the employer shall not be liable under this Chapter in respect of any injury which does not disable the workman for a period of at least two weeks after the date of the accident 2d Ses., Art. 14, § 7. 1 This refers to § 67 of the Act of 1913. It was § 3 in the Act of 1912. 150 bradbxjry's workmen's compensation law California from earning full wages at the work at which he was employed, at the time of the injury, and "Provided, Further, that the employer shall not be liable under this chapter in case the employe 1 refuses to settle for such compensation and retains his right to sue as provided in the fourth 1 section of this Chapter." l. i9i2, "§79. Any employer employing workmen to 2dSes»., perform labor or services of other kinds than Art. 14, { 15. , , . as denned in this Chapter, and such workmen and employes may, by agreement, at any time during the employment, accept and adopt the provisions of this Chapter as to liability for ac- cident, compensation, and the methods and means of paying and securing and enforcing the same. And in every such case the provisions of this Chap- ter shall be taken in law and fact to bind the par- ties as fully as if they were specifically mentioned and embraced in the provisions of this Chapter." CALIFORNIA The California Act in its compulsory feature includes all employers of labor. except "any person whose employment is both casual and not in the usual course of the trade, busi- ness, profession or occupation of his employer, and also ex- cluding any employe* engaged in farm, dairy, agricultural, viticultural or horticultural labor, in stock or poultry raising or in household domestic service." § 14, Act of 1913. Employers and employes not included in §§ 13 and 14 may by their joint election adopt the compensation principle. § 87. See Chapter IV for provisions as to manner of elect- ing to come under the Act. The provision of the Act of 1913, which specifies the em- ployers and employes who are brought within its terms, are contained in §§ 13 and 14 which read as follows: "§ 13. The term 'employer' as used in sections twelve 1 This refers to § 68 of the Act of 1913. It was § 4 in the Act of 1912. TO WHOM ACTS APPLY 151 Connecticut to thirty-five, inclusive, of this act shall be construed to mean : The state, and each county, city and county, city, school district and all public corporations therein, and every person, firm, voluntary association, and private corporation, (includ- ing any public service corporation) who has any person in service under any appointment or contract of hire, or ap- prenticeship, express or implied, oral or written, and the legal representatives of any deceased employer. "§14. The term 'employ^' as used in sections twelve to thirty-five, inclusive, of this act shall be construed to mean: Every person in the service of an employer as defined by sec- tion thirteen hereof under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens and also including minors, but excluding any person whose employment is both casual and not in the usual course of the trade, business, profession or occupation of his employer, and also excluding any employe engaged in farm, dairy, agricultural, viticultural or horticultural labor, in stock or poultry raising or in household domestic service." Under the Roseberry Act of 1911 it was held that em- ployes of the State were not protected as the Act did not apply to the State. Miller v. State of California, California Industrial Accident Board, March 6, 1912; aff'd by the Supreme Court of California; Miller v. Pillsbury, 000 Cal.000; 128 Pac. R. 327. The amended act, however, specifically includes public employes. As to who are casual employes see ante, page 136. The California Act follows the British Statute and excludes only such casual employes as are not engaged in the course of the employer's trade, business, profession or occupation. Casual employes who are engaged in the employer's trade, etc., are entitled to compensation. See ante, page 136. CONNECTICUT Prima, facie, all employers and all employes are brought within the terms of the Compensation Act by presumptive election. Part B, § 2. 152 bradbury's workmen's compensation law Connecticut Any employer or employe 1 may elect not to adopt the compensation principle by taking the proceedings which are specified in Chapter IV. Most of the compensation acts provide that certain classes of employes, such as domestic servants, farm laborers and casual employe's are not brought within the terms of such acts at all, excftpt in certain instances, by an affirmative election on the part of the employer or the employe, or both. The Connecticut Act differs in this respect from most of the other compensation statutes. All classes of employes of every nature whatsoever are brought within the compensa- tion principle unless the employer or the employ^ takes some affirmative steps to indicate his election to the contrary, or the contract of employment contains such a stipulation. As to certain classes of employers and employes penalties are at- tached if an election is made not to adopt the compensation principle, and as to certain other classes no penalty is at- tached, if either employer or employe so elects. This special exception applies to employers having regularly less than five employes, to casual employes and to outworkers. Part A, § 2. In other words, all employes are brought within the terms of the Act in the first instance. Then if employers having regu- larly less than five employes, or employers of casual em- ployes, or employers of outworkers, desire to elect not to adopt the compensation principle they must take the steps which are specified in Chapter IV to indicate such an election, unless the contract of employment specifically so stipulates. "When any principal employer procures any work to be done, wholly or in part for him, by a contractor, or through him by a sub-contractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on, or about prem- ises under his control, then such principal employer shall be liable to pay all compensation under this Act to the same ex- tent as if the work were done without the intervention of such contractor or subcontractor." Part B, § 5. TO WHOM ACTS APPLY 153 Illinois . It should be remembered that employers are not com- pletely under the Compensation Act, so as to be in a position to limit the recovery of their employes to the amounts speci- fied in the Act until they have complied with Part B, § 30, in relation to assuring compensation payments. Part B, §42. "This act shall not affect the liability of employers or employes engaged in interstate or foreign commerce, for death or injury in case the laws of the United States pro- vide for compensation or for liability for such death or in- jury." Part B, § 40. "Part B, §33. Obligations not to be Evaded. No con- tract, expressed or implied, no rule, regulation, or other devise, shall in any manner relieve any employer, in whole or in part, of any obligation created by this act, except as herein set forth." ILLINOIS Employments are classed as "extra hazardous" and "all other" employments. The definition as to the employ- ments which are extra hazardous is rather uncertain and unsatisfactory. The statute specifies certain particular oc- cupations which come within the terms thereof and then provides that it shall apply "In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protec- tion and safeguarding of the employes or the public therein; each of which occupations, enterprises or businesses are hereby declared to be extra-hazardous." § 3 (&) subd. 8. 1 1 Manifestly it would be impracticable to get together all the municipal ordinances or regulations of the various cities, towns and villages of Illi- nois which might be included in the section quoted in the text. This sec- tion of the Illinois law has introduced an element of uncertainty which is unfortunate. Many employers will never be able to determine in advance of litigation whether or not they are under the statute. 154 bradbury's workmen's compensation law Illinois Those outside the extra hazardous class may elect to adopt the compensation principle. The following are the statutory provisions: "§3. (a) In any action to recover damages against an employer, engaged in any of the occupations, enterprises or businesses enumerated in paragraph (jb) of this section, who shall elect not to provide and pay compensation to any em- ploy^, according to the provisions of this Act, it shall not be a defense, that: First, the employe" assumed the risks of the em- ployment; second, the injury or death was caused in whole or in part by the negligence of a fellow-servant; or third, the injury or death was proximately caused by the contributory negligence of the employe. " (b) The provisions of paragraph (a) of this section shall only apply to an employer engaged in any of the following occupations, enterprises or businesses, namely: "1. The building, maintaining, repairing or demolishing of any structure; " 2. Construction, excavating or electrical work; "3. Carriage by land or water and loading and unloading in connection therewith; " 4. The operation of any warehouse or general or terminal store houses; "5. Mining, surface mining or quarrying; "6. Any enterprise in which explosive materials are manu- factured, handled or used in dangerous quantities; "7. In any enterprise wherein molten metal, or explosive or injurious gases qr vapors, or inflammable vapors or fluids, or corrosive acids, are manufactured, used, generated, stored or conveyed in dangerous quantities; "8. In any enterprise in which statutory or municipal ordinance regulations are now or shall hereafter be imposed for the regulating, guarding, use or the placing of machinery or appliances, or for the protection and safeguarding of the em- ployes or the public therein; each of which occupations, enter- prises or businesses are hereby declared to be extra-hazardous. "§4. The term 'employer' as used in this Act shall be construed to be: TO WHOM ACTS APPLY 155 Illinois "First — The State and each county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein. "Second — Every person, firm, public or private corporation, including hospitals, public service, eleemosynary, religious, or charitable corporations or associations who has any person in service or under any contract for hire, express or implied, oral or written, and who, at or prior to the time of the ac- cident to the employe" for which compensation under this Act may be claimed, shall in the manner provided in this Act have elected to become subject to the provisions of this Act, and who shall not, prior to such accident, have effected a withdrawal of such election hi the manner provided in this Act. " § 5. The term ' employe^' as used in this Act shall be construed to mean: "First — Every person in the service of the State, county, city, town, township, incorporated village or school district, body politic, or municipal corporations therein, under ap- pointment, or contract of hire, express or implied, oral or written, except any official of the State, or of any county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein; and except any employe" thereof for whose accidental injury or death arising out of and in the course of his employment compen- sation or a pension shall be payable to him, his personal rep- resentative, beneficiaries or heirs, from any pension or benefit fund to which the State, or any county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein contributes in whole or in part: Provided that one employed by a contractor who has contracted with the State, or a county, city, town, township, incorporated village, school district, body politic, or municipal corporation therein, through its representatives, shall not be considered as an employe" of the State, county, city, town, township, in- corporated village, school district, body politic or municipal corporation which made the contract. "(Second— Every person in the service of another under any contract of hire, express or implied, oral or written, including 156 bradbury's workmen's compensation law Iowa aliens, and minors who are legally permitted to work under the laws of the State, who, for the purpose of this Act, shall be considered the same and have the same power to contract, receive payments and give quittances therefor, as adult em- ployes, but not including any person whose employment is but casual 1 or who is not engaged in the usual course of the trade, business, profession, or occupation of his employer: Provided, that employes shall not be included within the provisions of this Act when excluded by the laws of the United States re- lating to liability of employers to their employes for personal injuries where such laws are held to be exclusive." All employers specified in § 3 (6) quoted above are pre- sumed to have elected to adopt the compensation principle unless they take the steps specified in Chapter IV to indicate a contrary intention. The portion relating to contractors and subcontractors is found in § 31 of the Act. See Chapter VII. IOWA There is considerable confusion between Part I, § 1 (a) and Part I, § 17 (6) of the Iowa Act. According to Part I, § 1 (a) the Act does not apply to "any household or domestic servant, farm or other laborer engaged in agricultural pur- suits, nor persons whose employment is of a casual nature." According to Part I, § 17 (6) the word "workman" as used in the Act, means all employes generally "except a person whose employment is purely casual and not for the purpose of the employer's trade or business or those engaged in clerical work only, but clerical work shall not include one who may be subjected to the hazards of the business or one holding an official position or standing in a representa- tive capacity of the employer, or an official elected or ap- 1 See ante, page 136, for a discussion of who are "casual" employed. It will be seen that the Illinois statute is very broad and excludes all casual employes in addition to excluding all those (whether casual em- ployes or not) who are not " engaged in the usual course of the trade," etc. TO WHOM ACTS APPLY 157 Iowa pointed by the State, county, school district, municipal corporation, cities under special charter and commission form, of government. Provided, that one who sustains the relation of contractor with any person, firm, association, corporation -or the State, county, school district, municipal corporation, cities under special charter or commission form of government, shall not be considered an employe 1 thereof." It will be seen from the above that § 17 (6) contains an exception to an exception. In other words clerical employes who are not subjected to the hazards of the business do not come within the terms of the Act, and clerical employes who are subjected to the hazards of the business do come within its terms. It is very uncertain whether those holding official positions, those standing in a representative capacity of the employer, officials elected or appointed by the State, counties, school districts, municipal corporations, cities under special charter and commission form of government are within the terms of the Act. It is perhaps to be assumed that it was the intention of the Legislature to exclude such officials and officers. But the statute does not say so in anything like plain terms. The portions of § 17 (6), relating to such officials, might very well be governed by the sentence "but clerical work shall not include one who may be sub- jected to the hazards of the business." Of course, if the subsequent portions of the section are mere additions to the sentence set forth above, then those holding official positions are covered by the Act, because it is provided that they are not deemed to be engaged in clerical work. But if the pro- visions as to those holding official positions is assumed to be read as if it came immediately after the words "or those engaged in clerical work only," and the intervening words are to be entirely omitted, then appointed and elected of- ficials do not come within the terms of the Act. 1 1 To make the matter plain the statute is printed below: "Workman * * * means any person who has entered into a contract of employment * * * except a person * * * engaged in clerical work 158 bradbury's workmen's compensation law Iowa It is also to be noted that the definition of a workman, contained in Part I, § 17 (&) does not exclude domestic serv- ants or farm laborers, while such servants and laborers are excluded in Part I, § 1 (a). Again, the definition of casual employes, contained in Part I, § 1 (a) is entirely different from the definition con- tained in Part I,*§ 17 (6). In § 17 (fe) the provision is "ex- cept a person whose employment is purely casual and not for the purpose of the employer's trade or business." In § 1 (a) the provision is "nor persons whose employment is of a casual nature." The provision of § 1 (a) is very much broader than that contained in § 17 (6), because it excludes all casual employes while the provision of § 17 (6) excludes only casual employes whose employment is "not for the pur- pose of the employer's trade or business." Therefore, under § 17 (6) a casual employe 1 who was engaged for the purpose of the employor's trade or business would be covered by the Compensation Act. Section 17 (b) follows the British Com- pensation Act, while § 1 (a) follows the provisions of a few of the statutes adopted in the American states. The provi- sions of the statute relating to this subject are as follows: 'Parti, § 1, (a). Except as by this Act otherwise provided, it shall be conclusively presumed that every employer as de- fined by this act has elected to provide, secure and pay com- pensation according to the terms, conditions, and provisions of this Act for any and all personal injuries sustained by an employe 1 arising out of and in the course of the employment; and in such cases the employer shall be relieved from other liability fo r recovery of damages or other compensation for only, * * * or one holding an official position or standing in a representa- tive capacity of the employer, or an official elected or appointed by the State, County, School District, Municipal Corporation, Cities under Special Charter, and Commission form of Government." If the statute read as above the meaning would be clear. Now read Part I, § 17, (6) on page 159, with the words "but clerical work shall not include one who may be subjected to the hazards of the business" inserted in place of the last elision and it will be seen that the meaning is much less clear. TO WHOM ACTS APPLY 159 Iowa such personal injury, unless by the terms of this Act other- wise provided; but this Act shall not apply to any household or domestic servant, farm or other laborer engaged in agri- cultural pursuits, nor persons whose employment is of a casual nature. "(b) Where the state, county, municipal corporation, school district, cities under special charter and commission form of government is the employer, the terms, conditions and provisions of this act for the payment of compensation and amount thereof for such injury sustained by an employe 1 of such employer shall be exclusive, compulsory and oblig- atory upon both employer and employed" "Part I, § 17. In this act unless the context otherwise requires: "(a) 'Employer' includes and applies to any person, firm, association or corporation, and includes State, Counties, Municipal Corporation, Cities und£r special Charter and under Commission form of Government and shall include school districts and the legal representatives of a deceased employer. Whenever necessary to give effect to section seven of this act, it includes a principal or intermediate contractor. "(b) 'Workman' is used synonymous with 'employe^ and means any person who has entered into the employment of, or works under contract of service, express or implied, or apprenticeship for an employer, except a person whose em- ployment is purely casual and not for the purpose of the em- ployer's trade or business or those engaged in clerical work only, but clerical work shall not include one who may be sub- jected to the hazards of the business or one holding an official position or standing in a representative capacity of the em- ployer, or an official elected or appointed by the State, County, School District, Municipal Corporation, Cities under special Charter and Commission form of Government. Provided, that one who sustains the relation of contractor with any person, firm, association, corporation or the State, County, School District, Municipal Corporation, Cities under special Charter or Commission form of Government, shall not be considered an employe" thereof. 160 BRADBURY'S WORKMEN'S COMPENSATION LAW Kansas "The term 'Workman' shall include the singular and plural of both sexes. Any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents as herein defined, legal represen- tatives or where the workman is a minor or incompetent to his guardian or next friend." "Part I, § 22. The provisions of this act shall apply to employers antl employes as defined in this Act engaged in intra-state commerce and also those engaged in inter-state or foreign commerce for whom a rule or method of compen- sation has been or may be established by the Congress of the United States, only to the extent that their mutual con- nection with intra-state work or foreign commerce shall be clearly separable and distinguishable from inter-State or foreign commerce; provided that any such employer and workman of such employer working only in this State may, subject to the approval of the Iowa Industrial Commissioner, and so far as not forbidden by any Act of Congress or per- mitted, voluntarily by written agreement, accept and become bound by the provisions of this Act in like manner and with the same force and effect in every respect as by this Act pro- vided for other employers and employes." " § 8. No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this act except as herein pro- vided." "§ 13. The compensation herein provided shall be the meas- ure of the responsibility which the employer has assumed for injuries or death that may occur to employe's in his employ- ment subject to the provisions of this act, and it shall not be in anywise reduced by contribution from employes." KANSAS The Kansas Act applies to certain hazardous employ- ments only. It specifically excludes agricultural pursuits and employments incident thereto, and employers who hav.e not employed continuously for more than a month prior to an accident five or more workmen, except that workmen TO WHOM ACTS APPLY 161 Kansas in mines are included irrespective of the number. It only includes such employes as are engaged in the course of the employer's trade or business. This, of course, would ex- clude domestic servants. The provisions of the Act in this subject are as follows: "§6. Application of tlie act. This act shall apply only to employment in the course of the employer's trade Or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous ex- plosive or inflammable materials is carried on, which is con- ducted for the purpose of business, trade or gain; each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workman engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen. This act shall not apply in any case where the accident occurred before this act takes effect, and all rights which have accrued, by reason of any such accident, at the time of the publication of this act, shall be saved the remedies now existing therefor, and the court shall have the same power as to them as if this act had not been enacted. Agricultural pursuits and em- ployments incident thereto are hereby declared to be non- hazardous and exempt from the provisions of this act. (As am'd by L. WIS, c. 216, approved March 10, WIS, in effect March 12, WIS.) "§8. It is hereby determined that the necessity for this law and the reason for its enactment, exist only with re- gard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five or more workmen have been (employed) contin- uously for more than one month at the time of the accident; provided, however, that employers having less than five workmen may elect to come within the provisions of this act 11 182 bradbury's workmen's compensation law Kansas in which case his employes shall be included herein, as here- inafter provided; and, provided further that this act shall apply to mines without regard to number of workmen em- ployed." (As am'd by L. 1918, c. 216, approved March 10, 1918, in effect March 12, 1913.) " § 9. Definitions. In this act, unless the context other- wise requires, (a) 'Railway' includes street railways and interurbans; and 'employment on railways' includes work in depots, power houses, roundhouses, machine shops, yards, and upon the right of way, and in the operation of its engines, cars and trains, and to employes of express companies while running on railroad trains. (6) 'Factory' means any premises wherein power is used in manufacturing, making, altering, adapting, ornamenting, finishing, repairing or reno- vating any article or articles for the purpose of trade or gain or of the business carried on therein, including expressly any brickyard, meat-packing house, foundry, smelter, oil refinery, lime burning plant, steam heating plant, electric lighting plant, electric power plant and water power plant, powder plant, blast furnace, paper mill, printing plant, flour mill, glass factory, cement plant, artificial gas plant, machine or repair shop, salt plant, and chemical manufacturing plant, (c) 'Mine' means any opening in the earth for the purpose of extracting any minerals, and all underground workings, slopes, shafts, galleries, and tunnels, and other ways, cuts and openings connected therewith, including those in the course of being opened, sunk or driven; and includes all the appurtenant structures at or about the openings of the mine, and any adjoining adjacent work place where the material from a mine is prepared for use or shipment, (d) 'Quarry' means any place, not a mine, where stone, slate, clay, sand, gravel or other solid material is dug or otherwise extracted from the earth for the purpose of trade or bargain or of the employer's trade or business, (e) 'Electrical work' means any kind of work in or directly connected with the construc- tion, installation, operation, alteration, removal, or repair of wires, cables, switchboards or apparatus, used for the transmission of electrical current. (f) 'Building work' means any work in the erection, construction, extension, decoration, TO WHOM ACTS APPLY 163 Kansas alteration, repair or demolition of any building or structural appurtenances. ( 144 Kv - 19 - 8. Returning to employer's premises to secure pay. A workman will be held to be acting in the course of his employment, when, having ceased actual work, he returns to the premises to obtain his pay. Riley v. W. Holland & Sons (1911), 1 K. B. 1029; 4 B. W. C. C. 155. Even though on such ceasing of actual work the relation of master and servant is terminated. Riley v. W. Holland & Sons (1911), supra; Molloy v. South Wales Anthracite Colliery Co. (1910), 4 B. W. C. C. 65. A workman, engaged as a laborer on the public roads, was required to go for his pay to the tramway depot, situated in a public road some distance away. The workman was paid for the time occupied in going to and going from the pay place. When returning to his work, after receiving his wages, he mounted a tram car, but finding that it did not travel to the place where his work was situated, he got off and was struck by a passing cart and injured. It was held by the Court of Appeal in England that the injury was one arising out of and in the course of the man's employment. Nelson v. Belfast Corporation (1908), 42 Irish L. T. 223; 1 B. W. C. C. 158. A mill-hand, whose employment had ended, attended at the employer's mill to receive her wages a few days later, in accordance with the usage of the trade. She met with an accident while leaving. It was held that the accident arose out of and in the course of the employment. Riley v. W. Holland & Sons (1911), 104 L. T. 371; 4 B. W. C. C. 155. An employe" after completing his day's work and while still on his employer's premises was injured while going from INJURIES ARISING OUT OF EMPLOYMENT 439 Returning to employer's premises to secure pay the locality where he was doing his work 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 for- bidden by the rules or directions of the employer, and the injury not being purposely self-inflicted, it was held that the injury was sustained in the course of the employment and the injured employe 1 was entitled to compensation. Re R. B. Phillips, Claim No. 3514, Ohio Indus. Ace. Bd., May 5, 1913. A miner who left off work at 5 a. m. on Saturday morning, but would have resumed work on the Sunday night following, went to the works at 12:30 mid-day on Saturday, to receive his wages, and while proceeding on his employers' premises with this purpose he was injured by a railway engine, which ran through the employers' premises. It was held that the accident arose out of and in the course of his employment. Lowry v. Sheffield Coal Co. (1907), 24 T. L. R. 142; 1 B. W. C. C. 1. A collier received his pay-note on Saturday. Being dis- satisfied with the amount, he spoke to the manager, who referred him to the under-manager. The latter could not be seen until Monday. The collier came on Monday at mid- day, not intending to resume work unless the dispute was settled in his favor, and saw the under-manager, who did not give in. The collier then proceeded to leave, but was knocked down by a coal wagon and killed. It was held that the acci- dent did not arise out of, nor in the course of the employment. Phillips v. Williams (1911), 4 B. W. C. C. 143. A farm laborer had at the end of his day's work to go about two miles to his employer's farm to receive his pay and instructions for the next day's work. A fellow-workman happened to be going the same way with a cart, and invited him to ride therein. The workman did so, and was thrown . out and injured by the horse suddenly starting. It was held that the accident did not arise out of the employment and compensation was refused. Parker v. Pont (1911), 5 B. W. C. C. 45. 440 bkadbury's workmen's compensation law Unnecessarily going to a place of danger 9. Returning to employer's premises to secure tools. The plaintiff had been employed by the defendant as a laborer. He had gone home several days before the date of the accident on account of illness. When he returned he saw the foreman of the defendant. According to the foreman's testimony he told, the plaintiff that there was no work for him. The plaintiff declared that the foreman told him he would find something for him to do assisting the electrician. The plaintiff then asked for a shovel belonging to himself which had been left on the work when he had gone home ill a few days before. Someone started to the basement to look for it and the plaintiff himself started also to hunt for the shovel. While doing this the plaintiff fell in an unpro- tected hole in the floor and was seriously injured. The plaintiff recovered a verdict which was affirmed by the New York Court of Appeals. (E. L.) Lynch v. Pierce, 1 Brad- bury's PI. & Pr. Rep., 594. A workman a few days after leaving his work obtained leave to go down into the mine to bring up his tools, and while there for that purpose met with an accident. The County Court judge found that the accident arose out of and in the course of the man's employment with the colliery owners, and awarded him compensation. The Court of Appeal affirmed the judgment, on the ground that the appel- late court had no jurisdiction to interfere with the findings of fact of the County Court. Molloy v. South Wales Anthra- cite Colliery Co. (1910), 4 B. W. C. C. 65. A coal mining company was held liable for injuries to an employe, received while going to a place other than that in which he was at work to get tools at the direction of a vice principal. (E. L.) Broadway Coal Mining Co. v. Robinson, 150 S. W. Rep. 1000; 150 Ky. 707. 10. Unnecessarily going to a place of danger. 1 Where an employ^ voluntarily puts himself in a place of 1 See paragraph 16, post, 475. INJURIES ARISING OUT OF EMPLOYMENT 441 Unnecessarily going to a place of danger danger where he is not required to go, the employer is in no way responsible for the resulting injury. (E. L.) George Fowler, Sons & Co. v. Brooks, 70 Pac. Rep. 600; 65 Kans. 861. The duty of a master to furnish his employe" a safe place to work has no reference to places at or about which the em- ploye" has no business to be. (E. L.) Montgomery Cotton Mills v. Bowdoin, 58 S. Rep. 732; 000 Ala. App. 000. The mere fact that an employe 1 engaged to do safe work at a safe place is in- jured while attempting to do a dangerous act not connected with his usual employment, does not, in the absence of evi- dence that he was directed to do it by someone in authority raise any question of liability on the part of the employer. (E. L.) Pfeffer v. Stein, 26 App. Div. 535; 50 Supp. 516. An employe left a moving train, entered a liquor store, secured several bottles of beer and then attempted to get on the train. He was injured while so doing, and it was held that the injury did not occur in the course of the employ- ment. Ruling of Washington Industrial Commission. A railroad employe" was killed at a switch, by the de- railment of an engine, on which he was riding, without the knowledge of the conductor. The caboose was the proper place for him to ride, and people riding therein escaped in- jury. It was difficult to get into the caboose at the point where he boarded the engine, and he had ridden on the en- gine habitually. The engine, on this occasion, was running at a dangerous speed toward the switch, and it appeared that the bolt and pin which held the switch had been felon- iously removed, causing the engine to jump the track. It was held that such employe" was a trespasser on the engine and could not recover. (E. L.) Martin v. Kansas City, M. & B. R. Co., 27 So. Rep. 646; 77 Miss. 720. Where in an action for the death of a servant by the caving in of a railroad gravel pit, there was no proof that it was necessary or proper, in the performance of the duties of the deceased, to have placed himself between the steam shovel 442 bradbuey's workmen's compensation law Unnecessarily going to a place of danger and the wall of the pit where he was killed, it was held that the defendant was not liable therefor. (E. L.) Baker's Adm 'r v. Lexington & E. By. Co. 89 S. W. Rep. 149; 28 Ky. Law Rep. 140. Water had accumulated at the pit bottom of a mine to the depth of about eighteen inches at the cage, gradually shallowing back fbr about thirty feet. Only one cage was available for carrying eight men to the surface and there were about 200 men to be raised. Each was eager to as- cend and all of them waded in the water and stood in it for from thirty to forty-five minutes. The traffic near the pit bottom had ceased and the men could, with safety, have waited on the dry ground, until their turn came to ascend. One workman suffered deafness caused by a chill arising from the exposure of standing in the water, and applied for com- pensation. The court held that the workman had failed to prove that his incapacity was due to accident, or that it arose out of his employment, and compensation was refused. Alexander M'Luckie, v. John Watson (Edinburgh Court of Sessions, First Division, June 12, 1913.) See "Market World and Chronicle," July 12, 1913, p. 56. An employe of a contractor to electrify the lines of a rail- road company was not required to perform work on tracks enclosed by fences used by express trains, but only alongside such tracks. There were several crossings within a short distance from where he worked. It was held that the con- tractor was not liable for injuries sustained by the employe in consequence of his entering on the tracks and being struck by the train. As to the railroad company it was held, he was a trespasser. (E. L.) Shea v. Westinghouse Electric & Mfg. Co., 147 App. Div. 660.; 132 Supp. 612. A servant knowing of the defective condition of an ele- vator voluntarily took passage thereon for his own purpose and not in obedience to any direction from any superior. He was injured through a fall of the elevator in consequence of its defective condition. It was held that the master was INJURIES ARISING OUT OF EMPLOYMENT 443 Unnecessarily going to a place of danger not liable. (E. L.) Lax-Fos Co. v. BowUtt, 139 S. W. Rep. 836; 144 Ky. 690. Where an employ^, at the time of an injury, was not en- gaged in the discharge of his duty, but he had placed him- self in a known situation of danger, and but for so doing, he would not have been injured, it was held that he could not recover. (E. L.) Therriault v. England, 116 Pac. R. 581; 43 Mont. 376. ' An employe" left his place of work when the machinery stopped and went to a place known to him to be dangerous and to which he was not called by his work. While there he was injured by the machinery being started and it was held he could not recover. (E. L.) Schmnoske v. Asphalt Ready Roofing Co., 129 App. Div. 500; 114 Supp. 87. A miner fell while crossing a chute in the mine. A few minutes later he was demonstrating to a fellow workman how he fell and while so demonstrating he fell again. It was con- tended that the second fall caused the injury and that there- fore it was not received in the course of the employment. There was some dispute as to the conversation which the workman had after his fall, as it was held in the workman's native language. Compensation was awarded. Mileta v. Newport Mining Co., Mich. Indus. Ace. Bd., July, 1913. A section hand was injured by being struck by an engine while crossing the tracks in the yards. It was held that if it was reasonably necessary for him to cross the tracks at a time and place where his presence could have been reasonably anticipated, the master owed him the duty of looking out for him and giving timely signals by whistle or bell, and his right to recover would not depend upon whether or not the tracks at the point where crossed were used by the public. (E. L.) Cincinnati N. 0. & T. P. Ry. Co. v. Troxell, 137 S. W. Rep. 543; 143 Ky. 765. In an action by a servant for personal injuries from being squeezed between a door and the frame of an elevator while crossing an elevator shaft covered by trapdoors, where it 444 bradbury's workmen's compensation law Injuries at mealtime was so generally used by the employes as a passageway as to become known to the officers and superintendent of defend- ant, though an adequate passage had been provided else- where, it was held that the defendant was chargeable with negligence, having acquiesced in the general use of the trap door by its employes. (E. L.) Reynolds v. Seneca Falls Mfg. Co., 137 App. DivM46; 122 Supp. 797. 11. Injuries at mealtime. Where an employer provides a place for his employees to eat, or directs or permits them to go to a place for that pur- pose, he owes to them the same duty of protection from danger there that he does at the place where such employes work. (E. L.) Heldmaier v. Cobbs, 96 111. App. 315; aff'd 62 N. E. Rep. 853; 195 111. 172. A corporation permitting its servants to use a building on the premises, as a place in which to eat their dinner, owes to them the duty not to injure them by its negligence while they are using the building in the usual manner, and it is liable for such injuries although the building is used for other purposes and the servant would not have been injured had he remained at his usual place of work. (E. L.) Carnegie Steel Co. v. Rowan, 39 Ohio Cir. Ct. 202. The relation of master and servant, in so far as it in- volves the obligation of master to protect the servant is not suspended during the noon hour, where the master expressly, or by fair implication, invites his servants to remain on the premises in the immediate vicinity of the work. (E. L.) Thomas v. Wisconsin Central Ry. Co., 122 N. W. Rep. 456; 108 Minn. 485. Where, in a manufacturing establishment, it was impracticable for the employes to leave the building for their noonday meal, and the master allowed only thirty minutes for their luncheon, and it was contemplated that they should remain in the building where they worked to eat it, it was held that the relation of master and servant continued during the thirty minutes allowed for luncheon. (E. L.) Riley v. Cudahy Packing Co., 117 N. W. Rep. 765; INJURIES ARISING OUT OF EMPLOYMENT 445 Injuries at mealtime 82 Neb. 319. Where a servant, who was paid by the hour, was injured through the negligence of the master while eat- ing his lunch at the noon hour, a contention that he was not at the time of the injury engaged in the work or business of the master was held to be without merit. (E. L.) Heldmaier v. Cobbs, 96 111. App. 315; aff'd 62 N. E. Rep. 853; 195 111. 172. In the last mentioned case the servant while employed on excavating work, was told to leave his dinner pail in a boiler house maintained by the master, and while there eating his luncheon, he was injured by an explosion of dynamite caps negligently left in the boiler house by the master. In an action against a railway company for injuries received by one employe on a construction train, a demurrer to a para- graph setting up that the injury was done during the noon hour, was held to be properly overruled, for the plaintiff was not out of the line of his duty simply because he remained on the car during the noon hour, which may have been necessary in order that he might be ready for duty when the hour ex- pired. (E. L.) Evansville R. R. Co. v. Maddux, 134 Ind. 571; 33 N. E. Rep. 345. A brakeman on a switch engine was sitting on the footboard at noon, eating his luncheon. Another engine backed up on the track and hit the engine on which the brakeman was sitting, causing him to fall to the track where he was killed. It was held that the relation of master and servant still continued, and that the defendant was liable. (E. L.) Adams v. Southern Ry. Co., 51 So. Rep. 987; 000 Ala. 000. A workman who was killed while descending from the top of a building on which he was working, in a material hoist, after the noon hour had come, to eat his dinner, was held to be in the employ of the contractor when the accident happened. (E. L.) Boyh v. Columbian Fire Proofing Co., 182 Mass. 93; 64 N. E. Rep. 726; (E. L.) Murphy v. Colum- bian Fire Proofing Co., Id.; (E. L.) Duncan v. Columbian Fire Proofing Co., Id. A day laborer who is permitted to carry his dinner to his 446 bbadbury's workmen's compensation law Injuries at mealtime work, and to eat it on his employer's premises during the noon hour, and to leave his pail on the premises until the day's work is done, still occupies the relation of employe* on going to get his pail at the close of the day, although his day's work is then done and he has received his day's pay. (E. L.) Taylor v. George W- Bush & Sons Co. 5 Pennywill, 378; 61 Atl. Rep. 236* The claimant; an employe* of the Government, was in the flag loft of the Mare Island Navy Yard during the noon hour. She was looking out of the window and then walked backward from the window and tripped over an electric wire attached to a sewing machine and fell to the floor. It was held that the injury was received in the course of the employment and that she was entitled to compensation; In re Mrs. R. Hawes, Op. Sol. Dep. C. & L., page 220. The claimant was walking hurriedly down a railroad track to dinner when he stumbled and fell on a cross tie. The accident occurred on the premises under the control of the Isthmian Canal Commission, and under the peculiar circumstances of the case and under the rule established in the case of Joseph Chambers, it was held that compensation should be awarded. Re John Joseph, Op. Sol. Dep. C. & L., page 229. An employe* had just finished his lunch on his employer's premises, where he was permitted to remain while eating luncheon, and was in the act of stepping down from the stool upon which he was sitting when he fell. It was held that he was entitled to compensation. Crouch v. Massachusetts Employes Insurance Association, Mass. Indus. Ace. Bd. An employer sent two horses and carts with, one driver to work for the City of Springfield, in cleaning sweepings from the street. The plaintiff's intestate was also sent as a driver. His duties were to drive one of the horses and a cart to a dump while the other cart was being loaded, so that he was driving one or the other all of the time. The general instructions as to the place and the kind of work to be done INJURIES ARISING OUT OF EMPLOYMENT 447 Injuries at mealtime were given by the superintendent of the City. But it was the duty of the employe" to water the horses when he had a chance and to care for the horses from the time he took them from the barn until he brought them back again at night. Just before twelve o'clock on the day of the injury the de- ceased told the man in charge of the street sweepers that he would take one horse and cart and go to dinner and on the way to dinner he would water the horses. The decedent's home was in the direction of the nearest watering trough, but a considerable distance beyond it. Before reaching the watering trough the decedent was fatally injured by the min- ing away of the horse. It was contended that the deceased had no reason to go to his dinner as he carried grain for the horses and it was his duty to feed them during the noon hour. It was held that the retention of control included the care of the horses at least to the extent of seeing that they were given water and that during this .time the deceased was in the employ of the owner of the horses, and his dependents were therefore entitled to compensation from such owners. It was also held that the accident arose out of and in the course of the employment, as the deceased was on his way to perform his duty in watering the horses at the time of the in- jury, although he may have had, at the time of the injury, the purpose of doing something else not within the scope of his employment after watering the horses. Pigeon v. Employers ' Liability Assurance Corporation, 215 Mass. 000; 102 N. E. Rep. 932. A workman when employed during the night shift took his supper, for the sake of warmth, seated on a tank in the pump room. His employers provided a dining room for their workmen, but they were not bound to take their meals there. In getting off the tank the workman fell through a hole in the tank, was scalded and received injuries from which he died. The workman was not expressly prohibited from going on to the tank, but the evidence was that he had no right to be there, and if found there he would have been 448 bradbury's workmen's compensation law Injuries at mealtime dismissed. It was held that the accident did not arise out of the employment. Brice v. Edward Lloyd (1909), 2 K. B. 804; 2 B. W. C. C. 26. The court distinguished the case of Blovelt v. Sawyer (1904), 1 K. B. 271; 6 W. C, C. 16. In the last mentioned case the accident happened to a bricklayer during the dinner hour. It appeared that there was no absolute rule as |o the workmen going, or staying in the building, during the dinner hour, so that they were at liberty to stay there and eat their dinner if they so desired. At the dinner hour the workman employed on the building under course of erection, remained in the building and sat down under a wall to eat his dinner. The wall fell on him while he was sitting there and caused the injury for which he claimed compensation. It was held that he was entitled to compen- sation, as the accident arose out of and in the course of the man's employment. Where, by an arrangement between a railway company and certain employes, they were allowed to go to a cabin on the railway company's premises for certain meals, and one of such employes was returning from the cabin after haying a meal there, and was knocked down by a car which was being shunted on one of the company's tracks, it was held that the injury arose out of and in the course of the employment. Earnshaw v. Lancashire & Yorkshire Ry. Co. (1903), 5 W. C. C. 28. A night watchman who left his box and went into a shanty where tools were kept to cook and eat his food and was in- jured by the falling of the shanty was held to have been in- jured by accident arising out of and in the course of his em- ployment. Morris v. Lambeth Borough Council (1905), 8 W. C. C. 1. Where employes had twenty-five minutes from twelve o'clock noon for eating lunch, and five minutes after the whistle blew, at 12.25, within which to go to their place of work and begin work at 12.30, it was held that the relation of master and servant existed when an employe" was injured INJURIES ARISING OUT OF EMPLOYMENT 449 Injuries at mealtime at 12.27 while going to his place of work. (E. L.) A. Bentley & Sons Co., v. Bryant, 147 S. W. Rep. 402; 148 Ky. 634. A law writer was injured in the street during the lun- cheon hour. It was held that the luncheon hour was not part of the period of his employment and compensation was refused. McKrill v. Howard & Jones (1909), 2 B. W. C. C. 460. Where an employe was eating his dinner during the noon hour at a place of his own selection off the employer's pre- mises, and was injured by a stone thrown from a blast, it was held that the relationship of master and servant did not exist at the time of the injury. (E. L.) Moronen v. McDon- nell, 000 Mich. 000; 143 N. W. Rep. 8. Where an employe at a roundhouse left his work for a res- taurant outside of the railroad yard, but on the railroad prop- erty, and was injured while crossing the tracks in the yard, by stepping in hot water collected in a pool, by reason of a leak- age in a pipe used to carry steam from the engine room to passenger cars in the yard, it was held that the railroad company was not, at the time of the accident, under any duty to guard the employe 1 against any dangers he might encounter and the employe 1 must suffer the consequences of the acci- dent. (E. L.) Wilson v. Chesapeake & Ohio Ry..Co., 113 S. W. Rep. 101; 130 Ky. 182. The plaintiff, a planerman in the defendant's mill, work- ing at night, was about to eat his luncheon, while the mill was shut down for that purpose, when the watchman told him there was a much more comfortable place to eat his luncheon in the dry kiln, and offered to take him to it. This he did, and on returning alone, the plaintiff, while walking along certain platforms, failed to note the exact dimensions of the connecting walk, or missed the walk entirely, and fell to the ground and was injured. It was held that since the watchman had no power or authority to direct the plaintiff's movements, the invitation to the plaintiff to eat his luncheon in another place was not a command of the master, and the 29 450 bbadbtjry's workmen's compensation law Getting drink of water defendant was therefore not liable. (E. L.) Allen v. Chehalis Lumber Co. 112 Pac. R. 338; 000 Wash. 000. A telephone lineman while going to luncheon slipped on wet steps and was injured. It was held that the injury did not occur in the course of the employment. Ruling of Wash- ington Industrial^Jommissian. An employer (who is allowed to come under the Washing- ton Act) was injured while going to supper down a log chute and it was held that this was not in the course of employ- ment. Ruling of Washington Industrial Commission. 12. Getting drink of water. A servant employed on a railroad in repairing the track, does not cease to be a servant, nor is he out of the line of his duty, when, for a few minutes, he actually quits work in order to obtain a drink of water. (E. L.) Jarvis v. Hitch, 000 Ind. App. 000; 65 N. E. Rep. 608. An employe" has a right to pass over the ways provided for his master, in going to and from a place where he can obtain water to quench his thirst, and has a right to the same protection he is entitled to without actually working, whether the water is provided by the employer or the servant. (E. L.) Birmingham Roll- ing Mill Co. v. Rockhold, 42 So. Rep. 96; 143 Ala. 115. While the mere act of getting water is not a part of the duties of the employe, yet it is a physical necessity which must be attended to while the employe 1 is engaged in his duties, and he is entitled to the same protection in the interval when he leaves his work to get water as. when he is actually at work, and whether the water is provided by the employer or by himself the employe 1 has a right to pass over the ways provided by the employer, in going to and from the place where his thirst is slaked. (E. L.) Re Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115; 42 So. Rep. 96. Where a brakeman on a freight train went into the cab of a locomotive of another train to secure a drink of water, INJURIES ARISING OUT OF EMPLOYMENT 451 Attending to call of nature and while there for that purpose the two trains collided, and he was killed, it was held that there could be no recovery, although the collision was due to the negligence of the rail- road company's servants, as the deceased was not in the discharge of any duty to the master. (E. L.) Shadoan's Adm'r v. Cincinnati N. 0. & T. P. R. Co., 82 S. W. Rep. 567; 26 Ky. Law Rep. 828. 13. Attending to call of nature. Where toilet conveniences for employes were provided by the master in the boiler room, it was held that an employe" going there to use them, was still in the employ of the master. (E. L.) Neice v. Farmers' Co-operative Creamery & Supply Co., 133 N. W. Rep. 878; 000 Nebr. 000. When a railroad company had not provided any convenient closet for the use of its employes, it was held that a section foreman was not a trespasser in passing over a side track, on which he was struck and injured, on returning from answering a call of nature. (E. L.) Houston & T. C. R. Co. v. Turner, 91 S. W. Rep. 562; 99 Tex. 547. During the dinner hour a man met with an accident when returning from a place where he had gone to relieve nature and it was held that the accident arose out of and in the course of the employment. Elliott v. Rex (1904), 6 W. C. C. 27. In the last-mentioned case the court refused to follow the decision in the case of Pearce v. London & South Western Ry. Co. (1899), 2 W. C. C. 152, where it was held that when a man was injured when going to relieve nature during the breakfast hour that the accident did not arise out of the employment. A workman instead of going to the proper place for a neces- sary purpose went into a confined space underneath a table engine and stepped into boiling water, in a cistern which was sunk into the ground to receive the escaping hot water from the engine. It was held that the accident did not arise out of and in the course of employment. Thomson v. Flem- ington Coal Co. (1911), 48 Scotch L. R. 740; 4 B. W. C. C. 406. 452 BRADBURY'S WORKMEN'S COMPENSATION LAW Workmen whose duties take them away from the employer's premises Where a train dispatcher, although having the right to cross the tracks of a railway company by which he was em- ployed, to reach a closet provided by the company for its employes, went between the cars at another place, for his own convenience, and not in the discharge of any duty, it was held that the company did not owe him any duty except to avoid injuring*him after discovering his peril. (E. L.) Louisville & N. R. Co. v. Hocker, 64 S. W. Rep. 638; 111 Ky. 707; same case, 65 S. W. Rep. 119; 111 Ky. 707. 14. Workmen whose duties take them away from the em- ployer's premises. An agent who is making a house-to-house collection of premiums and meets with accidental injury is entitled to compensation. Refuge Assurance Co. v. Millar, 49 Scotch L. R. 67. An injury occurring to a salesman while he was on his way to the home of a prospective customer, was held to arise out of and in the course of his employment. Gaffney v. Travelers Insurance Co., Mass. Indus. Ace. Bd. As a rule, commercial travelers may be regarded as acting in the - course of their employment so long as they are traveling on their employer's business, including the whole period of time between their starting from and returning to their place of business or home. Dickinson v. Barmak (1908), 124 L. T. Newspaper, 403. An employe's duty was to drive a light delivery wagon drawn by a horse which was used in making deliveries, obtaining supplies, etc., and when not so employed to work in the shop of his employer. It was also a part of his duty to take care of the horse, which he drove, and in so doing to take the horse and wagon to his home in the suburbs, on Saturday afternoons, in order to give the horse Sunday pas- ture, and to drive it back to the city on Monday mornings. He was injured on a Monday morning while caring for the horse preparatory to driving to the city. It was held that the injury was received in the course of the employment. INJURIES ARISING OUT OF EMPLOYMENT 453 Workmen whose duties take them away from the employer's premises ' Re James L. Chase, Jr., Claim No. 3493, Ohio Indus. Ace. Bd., May 19, 1913. A chief engineer having supervision of several plants where his duties consisted in overseeing the installation, was en- gaged much of his time in traveling from one plant to another. On the day he received the injury, which resulted in his death, he slipped and fell in attempting to board a street car and sustained a fracture of the skull. The following day he spent the greater part of his time at the office of the company, but complained of a severe headache. Symptoms of brain pressure became evident and he subsequently died. It was held that the accident arose out of and in the course of the employment of the deceased. Hopkins v. Michigan Sugar Co., Mich. Indus. Ace. Bd., June, 1913. A canvasser and collector, employed to go round calling on customers, usually went on his bicycle. This was not necessary, but his employers who knew of the practice, neither ordered him to do so, nor forbade him to do it. While traveling on a bicycle he collided with a tramcar and was killed. It was held that the accident arose out of the employment. Pierce v. The Provident Clothing and Supply Co. (1911), 104 L. T. 473; 4 B. W. C. C. 242. A salesman and collector while riding in a street upon a bicycle, in the course of his employment, was kicked on the knee by a passing horse and injured. It was held that the accident arose out of the employment. M ' Neice v. Singer Sewing Machine Company (1911), 48 Scotch L. R. 15; 4 B. W. C. C. 351. A railway policeman, apart of whose duties it was to take cash boxes and deposit the contents in a bank in the town, was returning from such a trip when he was crossing a rail- way track over a way which was sometimes used by the em- ploye's. An engine being shunted down these tracks hit and killed the policeman. It was held that the accident arose out of and in the course of the employment and that his depend- ents were entitled to compensation. Grant v. Glasgow and 454 bradbury's workmen's compensation law Workmen whose duties take them away from the employer's premises South Western Railway Co. (1907), 45 Scotch L. R. 128; 1 B. W. C. C. 17. A workman in an iron works went from his furnace to the blacksmith's shop, the route running along a canal bank. Not returning, he was sought for and some hours later he was found drowned in the canal. The County Court judge, in the absence of Hirect evidence as to how the man came to be in the canal, inferred that the accident arose out of the employment and awarded compensation. This award was affirmed on appeal. One of the justices stated that suicide being a crime, could not be inferred. Furnivall v. Johnson's Iron and Steel Co. (1911), 5 B. W. C. C. 43. A servant for whom his master was obliged to provide lodging, was directed by the master to go to a town, on a dark night, and to go through a field, out of which there was no road. The servant took direct route to the town and was injured by falling into a hole dug by the master, and it was held that the injury was received in the course of the employ- ment. (E. L.) Indiana Pipe-Line & Refining Co. v. Neus- baum, 52 N. E. Rep. 471; 21 Ind. App. 361. Claimant was on his way from the cut, where he was at work to the field office, for the purpose of securing a commis- sary book. His route lay parallel between two railroad tracks. Just before reaching a point where the two tracks were joined by a switch, it became necessary for him to cross one of the tracks, which lay between him and the field office. While doing this cinders were blown into his eyes from a train which was on the other track, momentarily blinding him. At this moment a train, going in the opposite direction, at about ten miles an hour, came along. The engineer blew the whistle, which was heard by the claimant, but before he could recover his composure and get out of the way he was struck by the engine, resulting in the loss of his right foot. It was held that the injury occurred in the course of the em- ployment and that the claimant was entitled to compensa- tion. Re Popanx Papius, Op. Sol. Dep. C. & L., p. 249. INJURIES ARISING OUT OF EMPLOYMENT 455 Workmen whose duties take them away from the employer's premises A surveyor, employed by the United States, was in a sur- veying party using the United States steamer "Mars," the quarterboat "Illinois," and a fuel barge, which party was en- gaged in work along the Mississippi River. In the perform- ance of this work it was necessary for the entire party to occupy the boats furnished by the United States Govern- ment for living quarters, taking their meals and sleeping thereon. After supper, on November 9, 1909, while the fleet was moored in the river, the decedent left the boat and pro- ceeded to a nearby town, for the purpose of getting his pay check cashed and making some purchases. Upon return- ing to the boat he was met at the gangplank by the watch- man with a lantern. He passed across the bow of the fuel barge, and in attempting to pass around a person who had stopped on the gangplank, he lost his balance, fell overboard and was drowned. It was held that the accident arose in the course of the employment, and that the mother of the decedent who was dependent upon him for support, should be allowed compensation. Re C. E. Hott, Op. Sol. Dep. C. & L., p. 237. Applicant claimed that he was injured while riding on the footboard of- an automobile owned by the defendant and in the course of his employment. Defendant protested the claim on the ground that the accident happened outside of his employment. Held that compensation was payable applicant, because the evidence showed that he and others were accustomed to leaving the warehouse owned by de- fendant and proceeding in an automobile to the office some distance away in order to ascertain whether overtime work would be required, and that on the night of the accident, applicant and others, including the foreman, left the ware- house several minutes before quitting time. Compensation was awarded to the amount of $88 for disability indemnity and for medical and surgical treatment. Seywald v. The Ford Motor Co., Cal. Indus. Ace. Bd., June 26, 1913. A workman, sometimes employed as a messenger, was 456 bradbury's workmen's compensation law Volunteers; acting without scope of authority sent to a branch station to get a postal order. He failed to get it there, so went to the General Post Office half a mile further on. Here he slipped on a banana skin and injured himself. The County Court judge held that as the man had exceeded his duty the accident did not arise out of and in the course of his employment and compensation was refused. Smith v. Morrison #911), 5 B, W. C. C. 161. The foregoing appears to be a hard case and is scarcely in consonance with most of the decisions in which somewhat similar circum- stances were present. A school janitor was sent on a message on a very hot day. He fainted in the street from the heat, and fell backwards, striking his head on the pavement, subsequently dying from the effects of the injury. It was held that the accident did not arise out of the employment. Rodger v. Paisley School Board (1912), 49 Sc. L. R. 413; 5 B. W. C. C. 547. The services of an employe regularly employed by a cor- poration were loaned to one of the officers and directqrs thereof to perform temporary services in the private business of such director and officer. While performing such services he was away from his employer's premises and on the prem- ises of such director and officer, and the work was done under his direction and supervision. While performing such serv- ices the employe 1 was injured.- It was held that the injury was not received in the course of the employment within the meaning of § 1465-59 of the Ohio statute. Re William A. Jones, Claim No. 4173, Ohio Indus. Ace. Bd., June 4, 1913. 15. Volunteers; acting without scope of authority. Page (a) Cases in which damages or compensation refused 456 (b) Cases in which damages or compensation awarded 466 (a) Cases in which damages or compensation refused. A volunteer is one who introduces himself into matters which do not concern him, and does, or undertakes to do, something which he is not bound to do, or which is not in INJURIES ARISING OUT OF EMPLOYMENT 457 Volunteers; acting without scope of authority pursuance or protection of any interest of the master, and which is undertaken in the absence of any peril requiring him to act as on an emergency. (E. L.) Kelly v. Tyra, 115 N. W. Rep. 636; 000 Minn. 000; aff'g 114 N. W. Rep. 750; 103 Minn. 176. A master is not liable for injuries to nis servant unless the master was, at the time, in the performance of some duty for which he was employed. (E. L.) Stagg v. Edward Westen Tea & Spice. Co., 69 S. W. Rep. 391 ; 169 Mo. 489; (E. L.) Chamlee v. Planters Hotel Co., 134 S. W. Rep. 123; 000 Mo. App. 000. If a servant undertakes work of his own motion outside the scope of his employment, without the authority of the mas- ter, or his superintendent, he acts as a mere volunteer and cannot recover for an injury resulting therefrom. (E. L.) Lewis v. Coupe, 85 N. E. Rep. 1053; 200 Mass. 182. (E. L.) Punkosski v. New Castle Leather Co., 57 Atl. Rep. 559; 4 Pennewill (Del. Super.) 544; (E. L.) Seiniski v. Wilming- ton Leather Co., 83 Atl. R. 20; 0000 Del. Supr. 000; (E. L.) Whiteley Malleable Castings Co. v. Wishon, 85 N. E. Rep. 832; 000 Ind. App. 000; (E. L.) Columbia Creosoting Co. v. Beard, 99 N. E. Rep. 823 ; 000 Ind. 000. Unless he is an emer- gency employe. (E. L.) Central Kentucky Traction Co. v. Miller, 143 S. W. R. 750; 147 Ky. 110. And the master is not chargeable with negligence for failing to warn him of his danger. (E. L.) Marshall v. Burt & Mitchell Co., 69 Atl. Rep. 183; 000 N. J. L. 000. One who volunteers to assist the servant of another in the performance of his duties can only recover for an injury suffered by showing a wilful or wanton injury, and this notwithstanding such volunteer was a minor of the age of about twelve years. (E. L.) Belt By. Co. of Chicago v. Charters, 123 111. App. 322. Where a stranger, at the request of a servant, without authority to employ other servants, voluntarily undertakes to perform services for the master, he is a mere volunteer and the master owes him no duty, except the duty he would owe to a trespasser, not to injure him 458 bradbury's workmen's compensation law Volunteers; acting without scope of authority wilfully or wantonly after his peril is discovered. (E. L.) Central of Georgia By. Co. v. Mullins, 66 S. E. Rep. 1028; 7 Ga. App. 381. Applicant had his left thumb very severely lacerated, amounting almost to amputation and resulting in a stiffen- ing of the first or distal joint for life. He was a youth whose work did not require him to use a saw, but he had received some instruction in sawing incense cedar block slats as raw material for making lead pencils. It was stated that his work was not satisfactory and he was assigned other duties. Taking advantage of the absence of the experienced sawyer, unfortunately he attempted to experiment and met with a serious injury. Held that at the time of the accident the employe 1 was not acting within the line of his duty and con- sequently compensation was denied. At the same time the defendant was criticised for not maintaining a higher meas- ure of precaution and discipline in the operation of its plant, especially where immature lads were employed. Mederos v. Essex Lumber Co., Cal. Indus. Ace. Bd., May 13, 1913. Where decedent, having often been directed not to ride on a freight train, and knowing that the rules forbade it, volun- tarily undertook to operate a brake, when he was injured while riding on the train, with the knowledge of the other employes, it was held that he was not an employe^ but a mere volunteer, even if the engineer had requested him to operate the brake. (E. L.) Derrickson's Adm 'r v. Swann-Day Lumber Co., 115 S. W. Rep. 191; 000 Ky. 000. Where the plaintiff was injured while he was assisting the conductor to repair a car-brake, and the conductor had no express authority to employ plaintiff, and there was no sudden emergency ne- cessitating the plaintiff's employment, it was held that the plaintiff could not recover on the theory that he was acting as defendant's servant. (E. L.) Hendrickson v. Wisconsin Cent. Ry. Co., 122 N. W. Rep. 758; 000 Wis. 000. Where a servant voluntarily and without direction from the master, and without his acquiescence, goes into hazard- INJXJKIES AEISING OUT OF EMPLOYMENT 459 Volunteers; acting without scope of authority ous work outside of his contract of hiring, he puts himself beyond the protection of his master's implied undertaking, and if he is injured he must suffer the consequences. (E. L.) Pittsburg C. & St. L. R. Co. v. Adams, 105 Ind. 151; 5 N. E. Rep. 187. (E. L.) Chielinsky v. Hoopes & Townsend Co., 40 Atl. Rep. 1127; 1 Marv. (Del. Super.) 273. Where a servant is employed to do certain service and is injured in the performance of a different service voluntarily undertaken, the master is not liable. (E. L.) Shss-Sheffield Steel & Iron Co. v. Moore, 59 So. 311; 000 Ala.App. 000. Where one works as a volunteer and not under an authorized contract of employment the master owes him no duty save the nega- tive one of not injuring him after discovering his peril. (E. L.) Yazoo & M. V. R. Co. v. Kern, 138 S. W. Rep. 988; 000 Ark. 000. If a servant voluntarily assumes, without any order, to remedy a defect in a machine, such not being part of his em- ployment, his master owes him no duty while he is engaged in such act. (E. L.) Horn v. Arnold Schwinn & Co., 150 111. App. 559. (E. L.) Meller v. Merchants' Mfg. Co., 150 Mass. 362; 23 N. E. Rep. 100. (E. L.) McCue v. National Starch Mfg. Co., 142 N. Y. 106. A servant cannot recover for injuries received while acting outside the scope of his em- ployment without the master's order, although the machin- ery or appliances, may have been defective and dangerous. (E. L.) Boyd v. Blumenthal, 52 Atl. Rep. 330; 3 Pennewill (Del.) 564. Where an employe 1 , without request or direction by the superintendent, volunteered to assist in ascertaining the cause of the defective condition of the machine which the employe 1 operated, and while so doing she was caught in the machine, it was held that the negligence of the defendant in allowing the plaintiff's hand to remain caught in the ma- chine did not give the plaintiff a right of action, since she had placed herself in a dangerous position without defendant's fault, and he was not under any legal obligation to use care and diligence in releasing her. (E. L.) Allen v. Hixson, 36 S. E. 460 bradbtjry's workmen's compensation law Volunteers; acting without scope of authority Rep. 810; 111 Ga. 460. In the last-mentioned case it was further held that the plaintiff was a mere volunteer in that she was acting outside of the scope of her employment. Recovery was refused where a workman had used a cir- cular saw instead of attending to his duties as a laborer. (E. L.) Brown v. Byroads, 47 Ind. 435. An employe injured while performing* work on the roof of his employer's mill, which is not within the scope of his employment, is a mere volunteer and cannot recover. (E. L.) Ehmett v. Mitchell- Tranter Co., 80 S. W. Rep. 1148; 26 Ky. Law Rep. 303. One employed to stand at the air-tight doors across a shaft of a coal mine and to open them for and to close them after a train going in or out, and whose duty it is to keep himself supplied with lamp oil and matches, cannot recover of his employer where his lamp is blown out as he opens the doors, and having neglected to supply himself with matches, he climbs on to the rear of an outgoing train to get a match from the driver and while passing along the tops of the cars, falls between them. (E. L.) Hollingsworth v. Pineville Coal Co., 74 S. W. Rep. 205; 24 Ky. Law Rep. 2437. A boy four- teen years of age was employed as a bobbin boy, at a spin- ning mill. His duty was to take off the bobbins. He had been fully instructed for the work and while the machine was in motion put on some weights which had fallen off, and was injured. The duty to put on the weights belonged to men employed for that purpose. It was held that the master was not liable for the injuries received. (E. L.) Michael v. Henry, 58 Atl. Rep. 125; '209 Pa. St. 213. An accident which occurs to a workman while doing some- thing for his own pleasure, foreign to his duty and his employ- er's interest, does not arise out of and in the course of the em- ployment. Smith v. Lancashire & Yorkshire Ry. Co. (1899), 79 L. T. 633; 1W.C.C.1. A railroad conductor on an ex- cursion train, when the train was run, with permission, by the employes, for their own pleasure, was held not to have been injured in the course of his employment and compensa- INJURIES ARISING OUT OP EMPLOYMENT 461 Volunteers; acting without scope of authority tion was denied. Re C. C. Fitzpatrick, Op. Sol. Dep. C. & L., p. 241. A boy employed in a spinning mill injured himself while cleaning machinery in motion. The judge found, as a fact, that he was not employed to clean the machinery. It was held that the accident did not arise out of the ^employment. Naylor v. Musgrave Spinning Co. (1911), 4 B. W. C. C. 286. A workwoman, employed solely to work one machine, scratched her hand on a machine of another sort. It was not explained how she came to be at the other machine. Blood poisoning followed, and she died. It was held that the County Court judge was not justified in inferring that the accident arose out of the employment. Cronin v. Silver (1911), 4 B. W. C. C. 221. An engine driver left his engine when it was standing at rest, and crossed the line in order to communicate with the fireman of another engine on business of his own not in any way concerning his work or his employers. On his way back to his engine he was knocked down by a truck and was killed. It was held that the accident did not arise out of or in the course of the man's employment within § 1 (1) of the Act of 1897. (House of Lords), Reed v. Great Western Ry. Co. (1908), 99 L. T. 781 ; 2 B. W. C. C. 109. A workman going home to dinner through his employers' docks, attempted to climb on a car of a rail- way which traversed a portion of the docks, and in doing so he fell and received permanent injuries. The arbitrator found that he did not attempt to climb on the car for any object of his employers, but for his own pleasure, and it was held that the accident did not arise out of the employment. Morrison v. Clyde Navigation Trustees (1908), 46 Scotch L. R. 38; 2 B. W. C. C. 99. A domestic servant, who was out- side the door of her employer's house drying her hair, re- turned in response to an order, to the house to take charge of a baby in a cradle within a couple of feet of the fire. She con- tinued the operation of drying her hair; her sleeve was loose and caught fire and from the injuries she died. No one witnessed the accident, but according to a statement made 462 bradbuby's workmen's compensation law Volunteers; acting without scope of authority by the girl herself after the happening of the occurrence, her clothes caught fire while she was drying her hair. It was held that the accident did not arise out of and in the course of her employment. Clifford v. Joy (1909), 43 Irish L. T. 193; 2 B. W. C. C. 32. A boy who had charge of the handle of a machine, lifted off the cover over some pinion wheels and played with ^hem, with the result that his hand was caught in the wheels and the end of one of his fingers was torn off. He had orders not to lift the cover or touch the pinion wheels. It was held that the -accident did not arise out of the employment. Furniss v. Gartside & Co. (1910), 3 B. W. C. C. 411. A stoker on a locomotive engine received by mistake the wages of another man. He left his engine and went over to an engine on which the other man was working, in order to give him these wages. This engine was traveling about five miles an hour. The workman attempted to board the engine by grasping the rails at the side of the doorway, missed the step and sustained personal injuries by the wheels of the engine passing over his foot. It was held that the attempt to board the engine while in motion was obviously dangerous and wholly unnecessary, and that the accident did not arise out of the employment. Williams v. The Wigan Coal and Iron Co. (1909), 3 B. W. C. C. 65. A workman sent on an errand loitered on the way back and wasted time with friends, so that he took two hours to go about a half a mile, at the end of which he suffered an acci- dent, and it was held that it did not arise out of the employ- ment. Bates v. Dairies' Executors (1909), 2 B. W. C. C. 459. A laborer in a mine was, without instructions, acting as a collier and was injured, and it was held that the accident did not arise out of the employment. Edwards v. Inter- national Coal Co. (1899), 5 W. C. C. 21. A girl, eighteen years of age, acting as she thought in her master's interest, left her work to start an engine, which was in charge of a person who was not present. Several of her companions warned her that she ought not to touch it. She was injured INJURIES ARISING OUT OF EMPLOYMENT 463 Volunteers; acting without scope of authority in starting the engine, and it was held that the accident did not arise out of the employment. Losh v. Evans & Co. (1902), 5 W. C. C. 17. A boy who was injured while playing with a machine on which he was not at work, cannot recover for injuries thus received. (E. L.) Rock v. Indiana Orchard Mills, 142 Mass. 522; 8 N. E. Rep. 401. Where a fireman was killed while leaning out of the cab of the engine to deliver a postal card to another employ^, it was held to be error, in an action for his death, to admit evidence of a custom of the employes to thus deliver mail to each other, it not being within the scope of their employ- ment. (E. L.) Texas M. R. R. v. Taylor, 44 S. W. Rep. 892; 000 Tex. Civ. App. 000. A servant engaged in blasting, who volunteered to go after powder, when the foreman was about to send another man cannot complain that he was injured by falling rock while going under a hill where blasting had been done. (E. L.) A. H. Jacoby Co. v. Williams, 65 S. E. Rep. 491; 110 Va. 55. Where a workman acted as a fireman without his master's acquiescence, recovery was refused. (E. L.) Alabama Great Southern Ry. Co. v. Hall, 105 Ala. 599; 17 S. Rep. 176. A maid in the defendant's employ was sent to New York City to prepare a city house for the arrival of his family. She arrived in the evening. The night watchman saw her and rang the bell for her. He had no duty to perform inside the house and had no key with which to enter it. The house- keeper, not answering the bell, the watchman, without any request or suggestion from the maid, went across the street to find plaintiff, who was hired by the day to clean the house. She had been there that day and the watchman thought she might have a key. She came across the street and told the watchman that he might get in through a window, which she had been cleaning and had left unlocked. He went to the main entrance, requesting the plaintiff, as he claimed, to follow him and open the gate. As they passed in the plaintiff 464 bradbtjry's workmen's compensation law Volunteers; acting without scope of authority- fell over a board, which had been placed in a position to prevent the gate from being forced in, and was injured. It was held that the plaintiff could not recover, as both she and the watchman were acting as volunteers in aiding the maid to obtain entrance to the house, and that what the plaintiff did was not within the scope of her employment. (E. L.) Ryan v. Phipps, 146 App. Div. 642; 131 Supp. 438. Where an employe* in a planing mill is injured while operat- ing, for his own purpose, a machine not a part of the machin- ery of the mill, but under the control of a third person who got his power from the mill, it was held that the proprietor of the mill was not liable for resulting injuries. (E. L.) Gross v. Fischer Lumber & Mfg. Co., 43 So. Rep. 1006; 119 La. 201. An infirmary received a present of an X-ray apparatus. Nobody knew the time for necessary exposure for treatment of ringworm, but a house-surgeon volunteered to have an experimental exposure on his own arm. The result of this was a serious burn. It was held that the accident did not arise out of the employment, as the house-sUrgeon volun- teered to have the experiment made and it related to no part of his duties. Compensation was refused. Curtis v. Talbot and Kidderminster Infirmary Committee (1911), 5 B. W. C.C. 41. Plaintiff's intestate employed as defendant's mill fore- man, voluntarily and without orders, boarded defendant's logging train to accompany defendant's manager on a visit to a sick mule, and while riding in a dangerous place on the train one of the cars was derailed and intestate was fatally injured. It was held that the defendant was not liable, as the intestate was not acting in the course of his employment. (E. L.) Taylor v. Grant Lumber Co., 127 S. W. Rep. 962; 94 Ark. 566. When a railway conductor, in the absence of any emer- gency, places himself in a position of danger by going out- side of the line of his duty and is injured by the moving of INJURIES ARISING OUT OF EMPLOYMENT 465 Volunteers; acting without scope of authority the train, he cannot hold the company liable, though the engineer moved the train without ringing the bell, in viola- tion of a rule of the company. (E. L.) Central of Georgia Ry. Co. v. McWhorter, 42 S. E. Rep. 82; 115 Ga. 476. Where, under the rules of a railroad company, no duty was imposed on the conductor to examine or repair any appliance connec- ted with the operation of the train, but the plaintiff, a con- ductor, went between the engine and the cars to examine the airbrake, without any pressing emergency, it was held that he could not recover damages for injuries sustained. (E. L.) Central of Georgia Ry. Co. v. McWhorter, 42 S. E. Rep. 82; 115 Ga. 476. Where a conductor in charge of a railroad train voluntarily and in the absence of any emergency, went between two cars and uncoupled them, which was outside of his duties, and was injured through the negligence of the company, it was held that he could not recover. (E. L.) Whitton v. South Carolina & G. R. Co., 32 S. E. Rep. 857; 106 Ga. 796. Where an engine is derailed while run by a conductor not shown to have run an engine before, nor to be licensed to run an engine, there can be no recovery against the employer in consequence of injuries to the conductor. (E. L.) Gibson v. New Orleans Terminal Co., 58 So. R. 1015; 131 La. 10. An employe, injured in loading fails on a moving car, can- not recover where the injuries were caused by his attempting to straighten a rail after it was put on the car, which was a duty not required of him by his employer. (E. L.) Cleve- land, C. C. & St. L. Ry. Co. v. Carr, 95 111. App. 576. A section hand belonging to a gang under one foreman, who is injured while engaged voluntarily and without orders from the foreman in assisting another gang under another fore- man, is not within the scope of his employment and cannot recover. (E. L.) Southern Ry. Co. v. Guyton, 25 So. Rep. 34; 122 Ala. 231. Where a section foreman and his subordinate in the employ of a railway company, were in the habit of carrying a gun on a handcar, without the knowledge of their 30 466 Bradbury's workmen's compensation law Volunteers; acting without scope of authority superiors, for the purpose of shooting game, and through an accident or carelessness of the foreman his assistant was in- jured by the discharge of said gun, it was held that there could be no recovery against the railway company for such injury, the act not being authorized or done in the discharge of any duty. (E. L.) Chicago, R. I. & P. By. Co. v. Smith, 63 Pac. Rep. 29#; 10 Kans. App. 162. Where the plaintiff was engaged to perform service which was not dangerous, without any request or direction from the foreman, and so far as proved, without his knowledge, attempted to operate a mincemeat pressing machine during the temporary absence from the room of the operator of the machine, and was injured in so doing, it was held that her employer was not liable therefor. (E. L.) Duvall v. Armour Packing Co., 95 S. W. Rep. 978; 119 Mo. App. 150. Where the plaintiff, a boy of sixteen, employed to remove material from a planing machine, volunteered, without sug- gestion or leave from anyone, to oil the machine, and he had been warned that it was dangerous to do so, it was held that the master was not liable to him for an injury received while thus engaged. (E. L.) Floyd v. Kentucky Lumber Co., 66 S. W. Rep. 501 ; 23 Ky. Law Rep. 1914. The duty of a master to safeguard machinery is owing to such employe's only as in the course of their employment are required to use it. (E. L.) Stodden v. Anderson & Winter Mfg. Co., 116 N. W. Rep. 116; 138 Iowa, 398. (6) Cases in which damages or compensation awarded. Whatever a workman does under competent authority for the comfort and covenience of his fellow workmen is pre- sumed to be for his employer's benefit, where such work is not so foreign to his employment that he would be justified in refusing to do it. (E. L.) Broderick v. Detroit Union R. Station & Depot Co., 22 N. W. Rep. 802; 56 Mich. 261. It is not always essential that an employe actually be engaged in performing specific duties, in order to make applicable rules INJURIES ARISING OUT OF EMPLOYMENT 467 Volunteers; acting without scope of authority of law determining his rights and his employer's liabilities, when he is injured while actually engaged in the performance of his duties. (E. L.) Louisville & N. R. Co. v. Chamblee, 54 So. R. 681; 000 Ala. 000. The scope of a servant's duties is determined by what he was employed to do and what he actually did with his employers' knowledge and consent, and an employe* who was performing the same services he was in the habit of performing when he was injured, is not a volunteer in performing such duties. (E. L.) Dixon v. Chi- quola Mfg. Co., 68 S. E. Rep. 643; 86 S. C. 435. A workman who, under orders of his superior, engages in some other than his regular employment, is not, on that ground, deemed to be a volunteer, to whom the duty of exercising reasonable care is not owing. (E. L.) Laragay v. East Jersey Pipe Co., 72 Atl. Rep. 57; 000 N. J. Law 000; rev'g, 68 Atl. Rep. 1073; 000 ~NL J. Law 000. Where the servant acts in obedience to an express order of the master, the master cannot escape liability for the consequences of the servant's acts, on the ground that they were outside the duty for which he was employed. (E. L.) Rimmer v. Wilson, 93 Pac. Rep. 1110; 000 Col. 000. An employe* who obeys the order of the man- ager of his employer and does necessary work in defendant's service, cannot be considered in a legal sense as one engaged in work beyond the scope of his employment. (E. L.) Bonnin v. Town of Crowley, 36 So. Rep. 842; 112 La. 1025. An injury received by a servant in attempting to procure a tool necessary in his work, is in the line of his employment. (E. L.) Conley v. Lincoln Foundry Co., 14 Pa. Sup. Ct. 626. An "employe engaged at a planer in a saw mill was held to be in the discharge of his duty when the machine was stopped by a board and he stepped to one side of it to ascertain the cause of the difficulty and stepped into a hole in the floor. (E. L.) Baker v. Duwamish Mill Co., 86 Pac. Rep. 167; 43 Wash. 149. The applicant was employed under a contract as a civil engineer for an incorporated city. He used an office in com- 468 bradbury's workmen's compensation law Volunteers; acting without scope of authority mon with other city officials. While assisting the City clerk to scrub the office floor he slipped and sustained injuries which disabled him for eight weeks. It was held that the injuries were received while the applicant was performing services growing out of and in the course of his employment and he was therefore entitled to compensation. Paradise v. City of Rice Lake, Wis. Indus. Ace. Bd. An employer cannot escape liability for death of an em- ploye 1 on the ground that he was a volunteer, because the work in which he was engaged at the time of his death was not his regular work, where it appears that the employ6 was sent to do the work by the employer's authorized repre- sentative. (E. L.) Krueger v. Bartholomay Brewing Co., 182 N. Y. 544; aff' g 94 App. Div. 58; 87 Supp. 1054. Where an employe 1 under the direction of his foreman, assisted in fight- ing a fire which broke out on the master's premises, and he was killed, it was held in the lower court that he was acting within the scope of his employment, but on appeal a judg- ment in favor of the representatives of the deceased work- man was reversed on the ground that the workman assumed all the risks incident to such an employment. (E. L.) Maltbie v. Belden, 167 N. Y. 307; rev'g 45 App. Div. 384; 60 Supp. 824. A common factory laborer is acting within his employ- ment in undertaking to clean a punching machine by the order of the machinery operator under whose direction he has been placed by the foreman. (E. L.) American Car and Foundry Co. v. Adams, 99 N. E. Rep. 993; 178 Ind. 607. A servant hired by the day for certain work was instructed by the foreman to look after the belts operating a machine near which the servant was working, and in so doing was injured by the breaking of the belts. It was held that he was doing work within the scope of his employment and the master was liable. (E. L.) Mathews v. Kerlin, 48 So. Rep. 123; 122 La. 606. Where an employe 1 was directed by his section boss to repair a private track not owned by the railroad company, but connected with its lines, the company was held INJURIES ARISING OUT OF EMPLOYMENT 469 Volunteers; acting without scope of authority liable as the employ^ had a right, under such circumstances, to assume that he was working within the line of his duty. (E. L.) Brown v. Toledo & 0. C. Ry. Co., 19 Ohio Cir. Ct. Rep. 510. Where the yardmaster of a transfer railroad ordered the foreman of a switching crew to go with his crew to the plant of a manufacturer and find a car there and take it out, it was held that the order was tantamount to a com- mand to go to any place in the plant where the car might be located, and a switchman under the control of the foreman was in the line of his duty in going to the place where the car was found. (E. L.) Liston v. St. Louis Transfer Ry. Co., 130 S. W. 381; 000 Mo. App. 000. Two gangs of section hands were working at a wreck, and one foreman, under instructions of the superintendent in charge of the work ordered one of his men to assist the gang under the other foreman in doing a particular piece of work. Such man was held to be working within the scope of his employment. (E. L.) Southern Ry. Co. v. Guyton, 25 So. Rep. 34; 122 Ala. 231. A boy sixteen years of age, was ordered by the fore- man to change a gear of a machine, although he had never done such work before, and it was held that he was not work- ing without the scope of his duties when he was injured in complying with the foreman's order. (E. L.) Morrisett v. Elizabeth City Cotton Mills, 65 S. E. Rep. 514; 151 N. C. 31. Where a boy twelve and a half years old, employed as a cash boy, was requested to go to the warehouse to work, and the president of the company saw him there rendering services, it was held that the employer was liable for injuries inflicted while the boy was in the warehouse. (E. L.) Jenson v. Will & Finck Co., 89 Pac. Rep. 113; 150 Cal. 398. Where a person employed an immature and inexperienced person for a dangerous service, the fact that he explains to him the incidental dangers and how to avoid them does not relieve the employer from liability to the servant, if the work required of him was not within the scope of his employment and such as should not have been required of a person of his 470 bradbuby's workmen's compensation law Volunteers; acting without scope of authority capacity. (E. L.) Hayes v. Colchester Mills, 37 Atl. Rep. 269; 69 Vt. 1. A servant, inexperienced and under age, was injured while at work on the double-board of a derrick. The foreman saw him go up the derrick to work on the double-board, and knew his inexperience, but did not in- struct or warn him of danger, but permitted him to work there. It was hefd that he was not a volunteer, but must be regarded as having been put to work by the foreman. (E. L.) Producers' Oil Co. v. Barnes, 120 S. W. Rep. 1023; 000 Tex. Civ. App. 000. A boy aged nineteen was employed as one of a crew to shackle and kill hogs'. He did not under- stand English and had been instructed by his foreman by means of motions and signs. During the absence of other members of the crew the applicant shackled a hog and at- tempted to kill it. In the process he cut his right hand. Ordinarily, the killing was done by one employe^ known as the butcher, while the separating and shackling was done by two or three other employes, including the applicant. It was held under the wording of the Wisconsin Workmen's Compensation Act, which allows compensation for injuries occurring while a workman is performing services growing out of and incidental to his employment, that the applicant was entitled to compensation. Mike Magda v. Plonkington Packing Co., Wis. Indus. Ace. Bd., April 23, 1913. The voluntary offer of a willing servant to make himself useful in a matter not covered by any express command, does not, as a matter of law, put him outside the limits of his em- ployment, where the proffered service is accepted by his superior, though not by an approval expressed in words. (E. L.) Miner v. Franklin County Telephone Co., 75 Atl. R. 653; 83 Vt. 311. Where an employ^ is not engaged for any particular work but is employed to do what may be required of him, his acts under the direction of a vice principal are within the scope of his employment. (E. L.) Mericle v. Acme Cement Plaster Co., 136 N. W. Rep. 916 ; 155 Iowa, 692. Where the agent of the defendant's saw mill company, on the even- INJURIES ARISING OUT OF EMPLOYMENT 471 Volunteers; acting without scope of authority ing before plaintiff's injury, directed him to "get in and do anything that he saw to be done," it was held that such a di- rection was sufficient to include the coupling of cars. (E. L.) Stark v. Port Blakely Mill Co., 87 Pac. Rep. 339; 44 Wash. 309. Where a master divided his business into departments and required employes idle in their own departments to help in some other department, and the foreman of a department received an employe 1 of another department and accepted his services and directed him, it was held that the employe was not a volunteer, but was engaged in the performance of his duties. (E. L.) Hugo, Schmeltzer & Co. v. Paiz, 128 S. W. Rep. 912; 000 Tex. Civ. App. 000. A section hand who, while being transported to his place of employment, was injured in attempting to replace a trolley which had slipped from the wire, was held to be not a mere volunteer, where it appeared that the work had been done by the section men on former occasions with the knowl- edge and consent of the officers of the company. (E. L.) Toledo, B. G. & F. Ry. Co., v. Pfisterer, 26 Ohio Cir. Ct. Rep. 669. A street railroad company cannot avoid liability for death of a conductor caused at night by coming in contact with a broken trolley wire lying on the ground, on the theory that he was a mere volunteer in leaving his car to investigate the break. (E. L.) Martin v. North Jersey Street Ry. Co. 80 Atl. R. 477; 000 N. J. Law 000. A woman, part of whose work was to clean certain ma- chinery in a factory, finding the guard removed from another part of the machinery which it was not her duty to touch, proceeded to clean it. While she was cleaning it the ma- chinery started, and she was injured. It was held that the accident arose out of the employment and compensation was awarded. Greer v. Lindsay Thompson (1912), 46 Ir. L. T. 89; 5 B. W. C. C. 586. A "barrow-man" changed places with a "tipper" in the work of unloading a ship and met with an accident after 472 bradbury's workmen's compensation law Volunteers; acting without scope of authority making such change. It was the practice of the men to ex- change work and the practice was known to and not for- bidden by the employer. It was held that the accident arose out of and in the course of the employment and compensation was awarded. Henneberry v. Doyle (1911), 46 Ir. L. T. 70; 5 B. W. C. C. 580. Where an employe assigned to certain duties has been intthe habit of changing places with another employe, and this custom is known to the employers, and such employe was injured while doing the work of the other employ^, he was not a mere volunteer and the employer is responsible for injuries which he receives under such cir- cumstances. (E. L.) Belton Oil Co. v. Duncan, 127 S. W. Rep. 884; Tex. Civ. App. Two boys employed in threshing, exchanged positions with the knowledge of the foreman in charge, and one of them was injured. It was held that such injury occurred during the course of the boy's employment. Cambrook v. George (1903), 5 W. C. C. 26. Where an employe of a lumber company, operating a railroad from its mill to a railroad station, was employed as engineer of its train, with power to hire and discharge the train crew and had full charge of the train, it was held that he did not act outside the scope of his employment, while acting as switchman, on his becoming dissatisfied with the manner in which the reg- ular switchman did his work. (E. L.) Blackburn v. Cherokee Lumber Co., 67 S. E. Rep. 915; 152 N. C. 361. Where a serv- ant called on to do various kinds of work in an electric light and power plant, went with the superintendent of the plant to another room to remedy a defect in the lines therein, and there was no objection to his presence in the room or to any activity on his part, it was held that it was not outside of the scope of his employment while in the room and at work attempting to remedy the defect. (E. L.) Short v. Fort Dodge Light & Power Co., 128 N. W. Rep. 366; 149 Iowa, 303. An operator of a freight elevator is not without the scope of his employment in going to the fifth floor of the building to see what has stopped his elevator, although generally he had no INJURIES ARISING OUT OP EMPLOYMENT 473 Volunteers; acting without scope of authority duties above the third floor. (E. L.) Stone v. Boscawen Mills, 52 Atl. Rep. 119; 1% N. H. 288. In the last-mentioned case it was further held that the freight operator was not without the scope of his employment in removing a slight obstruction which had stopped the progress of the elevator, such removal not being such as to involve any hazard under ordinary conditions, although the instructions of the oper- ator were to report to the mechanic in charge when his elevator would not run or needed fixing. If an elevator operator was authorized to request plain- tiff, a passenger, to go upon the roof of the car in order to replace a screen to prevent objects from falling upon him- self and passengers, plaintiff was not a trespasser while doing so, but was a servant of the owner for the time being. (E. L.) Baynes v. Billings, 73 Atl. 625; 30 R. I. 53. . If a pumper employed by a railroad company, whose duties required him to ride between pumping stations, believed, and was justified in believing that he had a right to ride in the engine with the engineer's and the conductor's permission, it was held that he was in the line of his duties, although he voluntarily or by request, performed the duties of fireman for the engineer. (E. L.) Kunza v. Chicago & N. W. Ry. Co., 123 N. W. Rep. 403; 140 Wise. 440. Where a hostler was directed by his foreman to place cer- tain engines on a particular switch, it was held to be within the course of his duty to throw the switch so as to permit the engines to be run thereon. (E. L.) Gray v. Northern Pac. Ry. Co., 121 N. W. Rep. 142; 139 Wise. 419. A delivery clerk, whose duty it was to see that bales of cotton were delivered to the proper person, became sus- picious that certain bales of cotton were being stolen, as they had been before, and threw down bales which were piled on each other, as he thought, for the purpose of creating a "blind", and in so doing he injured a longshoreman, who was working among the cotton bales. It was held that the delivery clerk was within the scope of his employment, even 474 bradbury's workmen's compensation law Volunteers; acting without scope of authority though a watchman was employed to prevent thieves from stealing the cotton, and for the injuries thereby caused the employer was responsible. (E. L.) Courtney v. Baker, 70 N. Y. 1. Where an agent having sole charge of the preparation and exhibition of cumbersome and complicated machinery calls to his assistance one who in good faith enters upon such work, the person so employed is not a volunteer or tres- passer, but for the time being assumes the relation of master and servant; (E. L.) Maxson v. J. I. Case Threshing Ma- chine Co., 116 N. W. Rep. 281; 81 Nebr. 546. Where blasting could not be safely done in a mine while mining was in progress, and it was the custom, when a miner left before quitting time, for his mate to fire off his blast, it was held that the plaintiff was not a volunteer in firing the blast of his fellow miner, according to such custom. (E. L.) McHenry Coal Co. v. Render, 104 S. W. Rep. 996; 31 Ky. Law Rep. 1274. A minor who is directed to assist the operator of a trip hammer is not a mere volunteer in assisting the operator to remove a die. (E. L.) B. F. Avery & Sons v. Cottrill's Guardian, 107 S. W. Rep. 332; 32 Ky. Law Rep. 914. A person employed by a purchaser of motors to inspect them before acceptance, who assisted the seller's employe 1 in making a test, was not a mere volunteer. (E. L.) Johnson v. E. C. Clark Motor Co., 139 N. W. Rep. 30; 173 Mich. 277. A freight conductor, on reaching, late at night, a station situated one mile from a trestle, was informed by the road superintendent that, owing to a heavy rain, it was likely that two culverts would be in a dangerous condition, one of which was half-way between .the station and the trestle, and the other beyond the trestle, but nothing was said about the trestle. The conductor detached the engine and with the engineer, fireman, one brakeman and the road superintendent, started to examine the culverts. The first was found to be all right, when they proceeded to the second, INJURIES ARISING OUT OF EMPLOYMENT 475 Unnecessarily going to other portion of employer's premises and on attempting to cross the trestle, it gave way, and the conductor was killed. It was held that considering the emer- gency and that the conductor was exercising such ordinary care as was necessary for the safe movement of the train, he was acting within the scope of his employment. (E. L.) Terre Haute & I. R. Co. v. Fowler, 56 N. E. Rep. 228; 154 Ind. 682; 48 L. R. A. 531. The Factory Act of Kansas (Laws 1903, ch. 356, § 4), providing that every person owning or operating any manu- facturing establishment in which machinery is used, shall furnish and supply for use therein certain specified safeguards for machinery and appliances, is not limited in application to workmen engaged in their ordinary duties, but is designated to protect persons employed in manufacturing establishments while in the performance of any duty, whether ordinary and general, or exceptional and occasional. (E. L.) Caspar v. Lewin, 109 Pac. R. 657; 82 Kans. 604. Where a logging company also ran a railroad, and the plaintiff, an employe* of the company, was directed to act as a brakeman on the railroad, it was held that he was an employe of both the railroad and the logging company, as respects injuries he received while acting as such brakeman. (E. L.) Barrow v. B. R. Lewis Lumber Co., 95 Pac. Rep. 682; 14 Idaho, 698. 16. Going to portions of employer's premises other than those necessarily used by the workman, for his own convenience or pleasure. 1 A master's duty to furnish his servant a safe place for work extends to such parts of his premises only as he has prepared for their occupancy while doing his work, and to such other parts as he knows, or ought to know, they are accustomed to use while doing it, and when a servant goes to some other part for his own convenience, the general rule is that he is regarded as a licensee merely. (E. L.) Connell v. 1 See paragraphs 4 and 10, ante, in this Article. 476 bradbury's workmen's compensation Law Unnecessarily going to other portion of employer's premises New York Central & H. R. R. Co., 144 App. Div. 664; 129 Supp. 666. Where a servant is injured in a place where he has no right to be, or if he goes out of his employment for some private purpose, and not on his employer's business, he has no cause of action against the employer for injuries. (E. L.) Pioneer Mining & Mfg. Co. v. Talley, 43 So. Rep. 800; 000 Ala. 000. *The rule that the master owes a duty to furnish his servant with a reasonably safe place to perform his work can have no application where the servant, when injured, has completed the work and, for his own conven- ience, goes to a place where his work does not call him, to seek a place of shelter. (E. L.) Sutton v. Wabash R. Co., 152 111. App. 138. An employe* after quitting his day's work, instead of leav- ing his employer's premises by the usual means of egress, remained upon the premises and went to a part thereof remote from the part where he was employed, for the pur- pose of seeing an employe of another department of his em- ployer, on some personal matter of interest to himself, and while so doing was injured. It was held that the injury did not occur in the course of the employment. Re J.. V. Mit- chell, Claim No. 3834, Ohio State Lia. Bd. Awd., June 2, 1913. Where a servant voluntarily and without any necessity growing out of his work, and for his own convenience, goes to a position or some place where it is not necessary or proper that he should be, either in going to or returning from his services, he thereby suspends the relation of master and serv- ant as between his master and himself. (E. L.) Lynch v. Texas & P. Ry. Co., 133 S. W. Rep. 522; 000 Tex. Civ. App. 000. In the last mentioned case the plaintiff was. in the de- fendant's employ as a hostler, his duties being to watch for the arrival of engines in the yard, and be at the place where they stopped to take charge and control of them when they were disconnected from the train, and operate them to the turn table or round house. On the night he was injured a INJURIES ARISING OUT OF EMPLOYMENT 477 Unnecessarily going to other portion of employer's premises long freight train came into the yard and the plaintiff at- tempted to climb to the top of one of the cars to walk for- ward to the train toward the engine, so as to be near it when it stopped. In this position he was crushed between the car and a box standing on an adjacent track. Hostlers some- times got on to the cars to traverse the yard to the point where the engine stopped. The yard master knew of this habit and had forbidden it. It was held that the plaintiff was a mere licensee and could not recover. An employe' who was killed on a freight elevator, was on the elevator at the time not as an employe of the defendant discharging duties within the scope of his employment, but at best under an implied license for his own pleasure and convenience, and he was familiar with its construction and operation. It was held that the only duty that such use could impose on the defendant would be to operate it with ordinary care in view of such use. (E. L.) O'Brien v. Western Steel Co., 13 S. W. Rep. 402; 100 Mo. 182. Although a servant's regular duties required him to go upon the roof of a mill in which he worked, yet if, at the time he was injured by the falling of the roof, he was on the roof not in the discharge of a duty within the scope of his employ- ment, the master is not liable although he was negligent in permitting the roof to be defective. (E. L.) Mitchell-Tranter Co. v. Ehmett, 65 S. W. Rep. 805; 23 Ky. Law Rep. 1788; 55 L. R. A. 710. A stevedore worked on a lighter which was reached by pass- ing from a rear hatch of a ship through a port-hole in the side. He went from the hatch to the fore part of the ship and left his coat, which could have been left at some other place more convenient to his place of employment. In the evening he got his coat and without attempting to reach the rear hatch, he fell into an unguarded hatchway lying entirely outside of the direct line between the rear hatch and the port-hole. It was held that his employer was not liable as the workman's duties did not require him to be where he 478 bradbury's workmen's compensation law Unnecessarily going to other portion cf employer's premises was when he was injured. (E. L.) Kennedy v. Chase, 52 Pac. Rep. 33; 119 Cal. 637. A coal mine employe* who left the part of the mine in which he was hired to work and went to another part of the mine to get a tool, which he had loaned to another employe^ was struck while returning, by a piece of slate which fell from the roof, and it was heM that he could not recover for his injury, as the master's duty to furnish a safe place for work did not apply while the employe was outside of the place of his em- ployment and in a place where he was neither invited nor expected to go. (E. L.) Brown v. Shirley Hill Coal Co., 94 N. E. Rep. 574; 47 Ind. App. 354. The deceased employe* had gone to another part of the mine in which he was employed to visit a fellow laborer, dur- ing the noon hour. When returning he stopped on two occasions to pick slate from the roof of the mine and while so doing he came in contact with a live wire and was killed. It was held that he was not engaged in the business of his employer at the time of the injury, while returning from a visit undertaken upon his own volition, outside the part of the mine in which he was employed, and that therefore he could not recover from his employer. (E. L.) Ellsworth v. Metheny, 104 Fed. Rep. 119. The plaintiff was employed in unloading a gondola car and when the engine started to take the car to a switch, the plaintiff, who was then on the ground, jumped from the ground to ride down to the switch and back, although there was no work for him to do at the switch, and he merely rode down there to pass away the time until the car was returned. He was knocked off the car while it was in motion, by an overhanging tree limb. It was held that the plaintiff was not acting within the line of his employment when injured and that therefore the company was not liable. (E. L.) Southern Railway Co. v. Bentley, 56 So. R. 249; 1 Ala. App. 359. The plaintiff's intestate, who was a bridge foreman on the defendant's railroad, living at the time in an outfit car on INJURIES ARISING OUT OF EMPLOYMENT 479 Unnecessarily going to other portion of employer's premises a siding, went with his family on a velocipede car one after- noon to a spur track some two and a half miles distant, near which his father-in-law resided. The car was returned and in the evening, at about 7 o'clock, some of the men, by his direction, came after him with a hand car. He was then at his father-in-law's house, where he had been visiting since 5 o'clock, by which time his business for the defendant at the spur, if any, had been finished. At about 8:30 o'clock he started back with the men, having no light on the car, and while on the way was killed in a collision with a special train. It was held that at the time he was engaged in his own private affairs, and the relation of master and servant did not exist between him and the defendant, so as to make the defendant liable for injuries to their employes through the negligence of fellow servants. (E. L.) Russell v. Oregon Short Line R. Co., 155 Fed. Rep. 22. While resting, under a rule permitting him to do so, an employe may not needlessly wander from the proper sphere of his work into other departments of the establishment and be within the scope of his employment. But if no resting place is prescribed and no boundaries fixed, he may use his discretion in selecting a place to rest and may with due cir- cumspection occupy any of the vacant places near his ma- chine and in touch with his work. (E. L.) Pittsburg Vitrified Pav. & Build. Brick Co. v. Fisher, 100 Pac. Rep. 507; 79 Kan. 576. Where in an action for the death of a miner by the fall of a part of the roof, there was evidence that the injury occurred not in a passageway, but in a dangerous portion of the mine where decedent had no right to be, the court properly charged that if the accident did not occur in the passageway, but in a chamber where he was not required to be, that the defend- ant was not bound to keep such place reasonably safe, and plaintiff could not recover. (E. L.) Northern Coal & Coke Co. v. Altera, 104 Pac. Rep. 197; 46 Colo. 224. In the last men- tioned case it was further held that a coal miner being killed 480 Bradbury's workmen's compensation law Serious and wilful misconduct; intoxication while needlessly loitering, through curiosity or otherwise, in the room, the roof of which was momentarily expected to fall as a result of the shock of a blast, there could be no re- covery for his death. An action cannot be maintained under the Employers' Liability Act (Revised Laws, Chap. 106, § 73) for a wrong- ful death unless the decedent was acting in the service of the defendant at the time of the accident. (E. L.) Gooch v. Citizens Electric St. Ry. Co., 88 N. E. Rep. 591; 202 Mass. 254. In the last-mentioned case the decedent was employed by defendant as a regular motorman to operate a car during certain hours each day. He wished to be relieved from duty during one day and he was promised that he could have such relief if he could find a substitute. While trying to find such a substitute he was killed, apparently by an electric shock, in the telephone booth in the defendant's waiting room. It was held that the defendant could not recover, as the de- cedent was not in the defendant's service at the time of the accident. A coal miner, who, during the noon hour, while not en- gaged in work, goes to a different part of the mine for the pur- pose of visiting with another miner, is not, while so absent, engaged in the line of his duty so as to impose upon the em- ployer the duty of a master to see that the entry through which he passes to the part of the mine where he is employed, is kept in a safe condition for his passage. (E. L.) Ellsworth v. Metheney, 104 Fed. 119;" 51 L. R. A. 389. 17. Serious and wilful misconduct; intoxication. 1 The provision in many of the compensation acts to the effect that benefits shall be denied if the injury is due to the serious and wilful misconduct of the workman, has been the subject of a good deal of discussion. There are certain cir- 1 See next succeeding numbered paragraph. See also specific provisions of the compensation statutes of the various American States in Article D, in this Chapter. INJURIES ARISING OUT OF EMPLOYMENT 481 Serious and wilful misconduct; intoxication cumstances under which it seems, at first thought, the height of injustice to compel employers to pay compensation for injuries received by the workmen. When, for example, an employer gives specific and plain instructions to a workman, which are fully understood by the latter, not to do a par- ticular thing or to refrain from interfering with or touching a specific machine and the workman disobeys the order, it is not easy to understand why the employer should suffer the consequences by being compelled to pay compensation to the workman for the injury. Yet all of the compensation acts do not contain this provision. Some of them deny com- pensation only when the injury is wilfully or intentionally inflicted. Various other terms are found in the different statutes. No doubt the British Act has had considerable influence on the subject, as have also the reasons which impelled the adoption of the British rule. There compensa- tion is denied if the injury is caused by serious and wilful misconduct, unless it results in serious and permanent dis- ablement or death. The British rule was undoubtedly adopted out of a tender regard for the hardships of the workman's family in such cases and has been retained in spite of a good deal of very harsh criticism. 1 Disobedience of orders is misconduct but it is not always serious and wilful miscon- duct within the decisions under the compensation acts. Under some of the statutes compensation is denied when an accident is caused by the employees intoxication. The specific provisions of the various statutes in the American States will be found collated at the end of this subdivision. Where a workman knowingly breaks a rule made by the employer in the interests of the safety of the workmen and for their own protection and that of the public, such act on his part is evidence of serious and wilful misconduct within the meaning of the Act. Bist v. London & South Western By. Co. 1 See discussion of this subject at page 6. 31 482 beadbury's workmen's compensation law Serious and wilful misconduct; intoxication (1907), 96 L. T. 750; 9 W. C. C. 19. The last-mentioned case was decided by the House of Lords. The accident oc- curred on March 4, 1905, prior to, the enactment of the pres- ent Compensation Law. In that case an engine-driver was killed by being hit by a bridge over the track. He had climbed back on the tender, for the purpose, it was contended, of getting a better* quality of coal, to make the engine steam better so lost time could be made up. The company had issued a rule forbidding the driver or fireman to leave the running board while the engine was in motion. The court held that the violation of this rule was such serious and wil- ful misconduct as precluded the dependents of the driver from recovering compensation. The section of the British Compensation Act under which this decision, was made was amended in the revision of 1906, § J, (2) (c) by adding the words in italics in the paragraph below, making it read as follows: "If it is proved that the injury to a workman is attrib- utable to the serious and wilful misconduct of the workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed." A workman was employed to oil machinery and was strictly forbidden to oil it when it was in motion. He had been seen to do so, and warned against the practice. He did so again and received injuries from which he died. It was held that the accident arose out of the employment and com- pensation was awarded. Mawdsley v. West Leigh Colliery Co. (1911) 5 B. W. C. C. 80. The decision in the last-mentioned case was on the ground that, as the accident resulted in death, the provisions of the amended British Act relating to serious and wilful misconduct did not apply. "Whether or not misconduct is serious is to be determined from its nature, and not from its consequences. Johnson v. Marshall Sons & Co., 22 T. L. R. 565. Misconduct is not serious merely because the actual con- INJURIES ARISING OUT OF EMPLOYMENT 483 Serious and wilful misconduct; intoxication sequences in the particular case are serious; the misconduct must be serious in itself. Any neglect is serious within the meaning- of the British Compensation Act, which in the view of reasonable persons in a position to judge, expose anybody, including the person guilty of it, to the risk of serious injury. Or if the injury to be feared is of such a character that it may be described as serious, then the case is within the language of the Act. Hill v. Granby Consoli- dated Mines (1906), 12 B. C. 118; 1 B. W. C. C. 436. In the expression "serious and wilful misconduct," the word "serious" applies to the misconduct itself and not to the actual consequence of it; and the word "wilful" imports that the conduct was deliberate and not merely a thoughtless act on the spur of the moment. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. Proof of negligence merely is not sufficient to maintain a charge of serious and wilful misconduct. Rees v. Powell Duffnjn Steam Coal Co. (1900), 4 W. C. C. 17. A boy work- ing at a machine used for cutting screws leaned over a cir- cular saw which was in motion, to pick up an uncut screw which had fallen from its place and in doing so injured his finger. He had been told frequently not to put his hand across the saw. It was held that there was evidence of neg- ligence, but not of serious or wilful misconduct which would preclude the boy from recovering compensation. Reeks v. Kynoch (1901), 4 W. C. C. 14. Whether an employer would be justified in dismissing a workman without notice is a test of whether or not mis- conduct is serious and wilful. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. It is not every breach of a rule that will constitute serious and wilful misconduct. The question is one purely of fact to be determined by the arbitrator in each case. (House of Lords) George v. Glasgow Coal Co. (1908), 99 L. T. 782; 2 B. W. C. C. 125. A bare breach of regulation from which no injury could reasonably be anticipated is not serious mis- 484 bradbury's workmen's compensation law Serious and wilful misconduct; intoxication conduct. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. If a workman unnecessarily breaks an express and em- phasized order made solely for his own protection, and which he fully understands and appreciates, he is guilty of seripus and wilful misconduct. Jones v. London & South Western Ry. Co. (4901), 3 W. C. C. 46. Deliberate and in- tentional disobedience on the part of a workman to an oft- repeated order whereby he and his fellow workmen are placed in danger, is serious and wilful misconduct. It is no answer to this defense that the workman believed the course he was adopting when disobeying his instructions was not a dangerous one. Brooker v. Warren (1907), 23 T. L. R. 201; 9 W. C. C. 26. In the last-mentioned case a fatal accident was caused by the act of the deceased in re- moving a guard from a circular saw. Compensation was re- fused. A workman was cautioned by a foreman not to use a freight elevator until he was acquainted with it. He, never- theless, attempted to use it and later in the day was found dead, jammed between the side of the elevator and the floor. There was no evidence that he had not been instructed in the use of the elevator and that he had not had an oppor- tunity of becoming acquainted with it. It was held that the employers had not discharged the onus resting upon them to show that the deceased had been guilty of serious and wil- ful misconduct, and therefore compensation was awarded. Granick v. British Columbia Sugar Refinery Co. (1910), 15 B. C. R. 193; 4 B. W. C. C. 452, rev'g (1909), 14 B. C. R. 251; 2 B. W. C. C. 511. A collier ordered to cut a road in the colliery left his work and went to cut coal in a part of the mine where it was for- bidden by special rule to cut any, and he thereby undermined some props, and caused a fall, which killed him. It was held that the accident did not arise out of nor in the course of the employment. The court said: "If a workman is doing INJURIES ARISING OUT OP EMPLOYMENT 485 Serious and wilful misconduct; intoxication something outside the scope of his employment, the proof of serious and wilful misconduct does not bring the accident within the scope of the employment." Weighill v. South Heaton Coal Co. (1911), 4 B. W. C. C. 141. A servant girl was forbidden to stand on the ledge of a glass frame to hang out clothes in the garden. She did stand on it and slipped, breaking one of her ribs. It was held that the applicant was guilty of serious and wilful mis- conduct, and she was not entitled to compensation. Beale v. Fox (1909), 2 B. W. C. C. 467. The owners of a factory posted a notice near an elevator reading as follows : " No one is allowed to use this hoist except in eharge of a load." A workman just before mealtime got in the lift alone and a few moments later was found injured so he died shortly afterwards from being caught between the floor of the elevator and the top of the door. It was shown that the employes frequently violated the rule contained in the notice, but it appeared that this was unknown to the employers. The employers offered no evidence as to any danger in using the lift in violation of the notice, but rested merely on the disobedience to defeat the dependent's claim for compensation, on the ground of serious and wilful mis- conduct. The House of Lords held that the employers had not sustained the burden of showing such serious and wil- ful misconduct as would defeat the right to compensation. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. An applicant while employed in taking lumber away from a band saw attempted to adjust the rolls and lost the index and second fingers of his left hand. The employer asserted that the accident occurred by reason of wilful mis- conduct, that the applicant was not performing his duty, and that he had been warned repeatedly not to tamper with the machine. It appeared that the applicant was instructed in English, which he did not inderstand, and the Board held that he was performing services growing out of and incidental 486 bradbury's workmen's compensation law Serious and wilful misconduct; intoxication to his employment and that there was no wilful misconduct, and he was therefore entitled to compensation. Adomitas v. Simmons Mfg. Co., Wis. Indus. Ace. Bd., Jan. 31, 1912. The special rules of a mine imposed upon the miner work- ing at the coal seam bottom of the mid-working the duty of keeping the gate which fenced the working from the shaft closed until the cage had been brought to the level of the working and brought to a standstill, so that it might be safely entered from the working. The miner opened the gate be- fore he had ascertained that the cage had been brought to the level of the working and to a standstill. He then, assuming the cage was there, pushed a hutch forward, which fell down the shaft and the miner fell also and was injured. It was found that the injury would not lead to serious and permanent disablement, and that the miner was guilty of serious and wilful misconduct, and therefore he was not en- titled to compensation. George v. Glasgow Coal Co. (1908), 45 Scotch L. R. 687; 1 B. W. C. C. 239. A special rule appli- cable to a mine pit provided that "a workman shall not per- mit a naked light to remain * * * in such a position that it could ignite the explosive." A miner was injured by the explosion of gunpowder. The arbitrator held that the miner "having permitted his naked light to remain in such a posi- tion that it ignited the gunpowder, and having failed to es- tablish any circumstances justifying his doing so committed a breach of said special rule, and that therefore his injuries were attributable to his serious wilful misconduct," and compensation was denied. The Court of Sessions of Scot- land, on appeal, held that this was a finding on a question of fact and affirmed the ruling. Donnachie v. United Col- lieries (1910), 47 Scotch L. R. 412. A boy, in disobedience of orders, was cleaning a machine in motion, and his right hand was drawn into the machine and the top joint of the first and third fingers torn off. The County Court judge held that the injury was attributable to the serious and wilful misconduct of the workman, but INJURIES ARISING OUT OF EMPLOYMENT 487 Serious and wilful misconduct; intoxication that it resulted in serious and permanent disablement, and he therefore awarded compensation. It was held on appeal that the injury resulted in permanent disablement and that there was evidence on which the County Court judge could find that the disablement was serious. Hopwood v. Olive 6 Partington (1910), 3 B. W. C. C. 357. It is serious and wilful misconduct for a workman to deliberately meddle with new and unfamiliar machinery con- trary to an express order given immediately before. Forster v. Pierson (1906), 8 W. C. C. 19. Disobedience to an order of a deputy amounting to a breach of a general rule of a mine is serious and wilful mis- conduct. Watson v. Butterley Co. (1902), 5 W. C. C. 51. Where a miner was injured in crossing the shaft bottom, which was regarded as notoriously dangerous, although there was no special rule prohibiting miners from crossing it, it was held that he had been guilty of wilful and serious misconduct and was not entitled to compensation. Leishman v. William Dixon (1910), 47 Scotch L. R. 410; 3 B. W. C. C. 560. A boy removed a safety roller attached to a wringing machine and was injured in consequence. He had been in the habit of removing the roller and working without it although cautioned not to do so. There was some rather weak evidence that the uses of the roller had been explained to him. It was held that the injury was not attributable to serious and wilful misconduct. Darbon v. Gigg (1904), 7 W, C. C. 32. A miner while on his way out of the mine was advised to enter a manhole to allow a "journey" of cars to pass him. He disregarded the advice and was overtaken and killed by the cars. It was held that he was guilty of serious and wilful misconduct. John v. Albion Coal Co. (1901), 4 W. C. C. 15. The above entitled case was decided before the en- actment of the Compensation Law of 1906. The proper and safe way to proceed from a lower to a higher level of a mine was by a ladder, although the miners 488 BRADBURY'S WORKMEN'S COMPENSATION LAW Serious and wilful misconduct; intoxication habitually used a sump shaft provided for raising metals. At the time of the accident a miner was leaving by way of the sump shaft. It was held that the accident arose out of and in the course of the employment, and was not due to serious and wilful misconduct. Douglas v. United Mineral Mining Co. (1900), 2 W. C. C. 15. Drunkenness when it occasions the injury may amount to serious and wilful misconduct. Bradley v. Salt Union (1906), 122 L. T. J. 302; 9 W. C. C. 31. Mounting a lad- der while drunk, with a long piece of timber on one shoulder, and out of bravado, was held to be serious and wilful mis- conduct. Burrell v. Avis (1898), 1 W. C. C. 129. An injury to an employe was caused by his intoxicated condition and by his attempting to step around on the roof, in an endeavor to show to his employer that he was not intoxicated, and it was held that he was not entitled to compensation, as this was serious and wilful misconduct within the meaning of the Massachusetts Act. Lee v. Fidelity & Casualty Co., Mass. Indus. Ace. Bd. It was found that the employe" was in-. tOxicated at the time of the injury and as a result of this intoxication he was lacking in control of and ability to man- age himself, and that he would not have fallen and been fatally injured except for this intoxicated condition, and it was held that his widow was not entitled to compensation. Truesdale v. Employers' Liability Assurance Corporation, Mass. Indus. Ace. Bd. An infant made a false representation to the effect that he was of full age in order to secure employment. It did not appear that the accident in question was attributable solely to such misrepresentation. Subsequently having been in- jured in the course of his employment so obtained, he signed a release, but later tendered repayment of the money paid to him on signing the release, and started proceedings under the Act. It was held that the infant was not guilty of serious and wilful misconduct, and that the release was not a bar to the recovery of compensation. Darnley v. INJURIES ARISING OUT OF EMPLOYMENT 489 Serious and wilful misconduct; intoxication Canadian Pacific Ry. Co., 14 B. C. R. 15; 2 B. W. C. C. 505. Failure to use goggles in accordance with a printed rule, which was posted in an inconspicuous place, said rule not being universally enforced, was held not to constitute such serious and wilful misconduct as precluded a claim for com- pensation. McClelland v. Massachusetts Employed Insur- ance Association, Mass. Indus. Ace. Bd. Where an employe 1 failed to make use of certain steel guys, while at work on a steel tower, and by reason of a sudden and unexpected gust of wind the tower collapsed and he was injured, it was held that this was not serious and wilful mis- conduct as required the denial of compensation. Cochran v. Contractors Mutual Liability Ins. Co., Mass. Indus. Ace. Bd. A carpenter employed on the roof of a building was asked by the foreman to descend and have some hot coffee. It was customary to serve coffee to the men so engaged to coun- teract the effects of the cold. The carpenter started to come down from the roof by a rope used in hoisting materials, in- stead of using the ladder. He lost his hold, fell to the ground and was killed. Liability was denied by the employer, on the ground that the deceased did not meet his death while in the regular course of his employment, and that injury was due to his intentional and wilful misconduct. It was held that the workman's manner of getting off the roof did not make his act without the course of his regular employment. It appearing that it was not unusual for fellow employes to descend from the roof in the same manner that the deceased had descended, it was held that this was not intentional or wilful misconduct within the meaning of the act and that compensation should be awarded. Clem v. Chalmers Motor Car Co., Mich. Indus. Ace. Bd., March, 1913. A workman applying for work was asked if he understood the use of saws, to which he replied that he did. He was put to work without any agreement as to the amount of wages which he was to receive. On the same day that he started 490 bradbury's workmen's compensation law Serious and wilful misconduct; intoxication to work he was injured by one of the saws. It was contended by the employer that there was no contract of employment, on the ground that the workman had deceived him as to his representations that he understood the use of saws. It was held that the workman had not been guilty of such wilful and false representations as would make void the contract of employment, that he was not a casual employe and that he was entitled to compensation at at least the minimum amount specified in the statute of $5 a week, for the number of weeks specified in the act for the loss of a thumb and the partial loss of the use of the first finger and the loss of the use of the fourth finger. Mueller v. Oelkers Mfg. Co., Essex Common Pleas, February, 1913; 36 N. J. Law J. 117. The deceased employe was working on a carding machine. His hand was caught in the cylinder and the gear connected with it and badly lacerated, necessitating the amputation of three fingers. The other injuries to the hand above the fingers were dressed and treated, an effort being made to save as much of the hand as possible. The workman was taken to the hospital and while there gangrene set in and he died. It appeared in the evidence that on each of the card- ing machines there was one or more signs reading "Hands Off", and also that there were signs throughout the factory and in the carding room to the effect that "cleaning machi- nery while in motion is strictly forbidden." It appeared that the deceased was in the act of picking off some of the cotton, which had collected on the card cylinder near the gear, when he received the injury, and that such act con- stituted a violation of the above rules. It appeared that the signs were put on the machines because they worked auto- matically and if there was any interference with them that there would be a defect in the work produced; and that the signs "Hands Off" were placed on the machines by the manufacturers thereof. It also appeared that it was neces- sary in the operation of the machines to pick off accumula- tions of cotton, while the machinery was in motion and that injuries arising out of employment 491 Serious and wilful misconduct; intoxication the employes were expected to do this; that if they did not do it there would be an uneveimess in the work, which im- paired its quality. It was held, therefore, that the employe 1 was not guilty of wilful and intentional misconduct and compensation was awarded. Dr. Denton Sleeping Garment Co. v. Redfield, Mich. Indus. Ace. Bd., Nov. 3, 1913; The In- dicator, Nov. 5, 1913, page 442. An applicant lost the tips of the thumb, index and second fingers, which were removed below the first joints, as a result of an explosion of a dynamite cap from which he was en- deavoring to pick the contents, for the purpose of forming a nipple for his mine lamp. The employer denied liability on the ground that nipples were supplied to the men at a nominal cost, that the applicant had no right to have a dynamite cap in his possession, and that the act constituted wilful misconduct. The board, however, held in favor of the workman and granted compensation for ninety-two and one- half weeks. Macieza v. Mass Consolidated Mining Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, page 417. The decedent became jammed between a tow line and the corner of the cabin on a tug of the respondent, the injuries proving fatal. The employer denied liability, on the ground that decedent had been ordered away from the place where he was hurt, and that he had disobeyed orders, it being con- tended that such disobedience constituted wilful misconduct. The Board decided in favor of the workman and awarded compensation. Bedore v. General Ice Delivery Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, October 20, 1913, at page 417. . When the whistle blew a workman started on a run for the time clock, a distance of about 150 feet. After proceeding about 30 feet he collided with a fellow employe, fracturing or injuring one or more of his ribs. The employer contended that the death was not the result of the accident and that the workman was guilty of intentional and wilful miscon- 492 bradbury's workmen's compensation law Serious and wilful misconduct; intoxication duct. The Board ruled that the accident was the proxi- mate cause of the workman's death and that, under the circumstances, the deceased was acting in the course of his employment when he received the injury. On this point the Board said: "He was required to proceed from his bench to the tjme clock and to punch the time clock be- fore leaving the room in which he was working. This was a duty imposed upon him by his employer, and he was in the act of performing that duty at the time he received the injury. We are also of the opinion that the injury arose out of his employment, within the meaning of Act 10, Public Acts of 1912. The evidence fairly shows that it was custom- ary for the men to run for the time clock when the whistle blew and crowding and collisions resulted and were likely to result. Did the action of deceased in running toward the time clock amount to intentional and wilful misconduct within the meaning of the compensation Law? The evidence shows that respondent had forbidden such running by rule, but it was also shown that such rule was not enforced. Rayner's immediate foreman acknowledged that the rule against running was not enforced. The mere fact that a rule was made forbidding running to the time clock is not controlling when its general violation is acquiesced in by the employer. The action of Mr. Rayner in running to the clock did not differ materially from the action of the considerable number of other employes. It did not amount to intentional and wilful misconduct." Rayner v. Sligh Furniture Co., Mich. Indus. Ace. Bd., June, 1913. A workman was injured while oiling machinery, by placing his hand on certain gears. A large piece of flesh was removed from the third finger of the left hand. The employer ob- jected to paying compensation on the ground that there had been a violation of shop rules and also on the ground of wilful negligence of the employe 1 . Compensation was awarded. Goble v. Continental Motor Car Co., Dec. of Mich. Arbitration Committee, Dec. 18, 1912. INJURIES AKISING OUT OF EMPLOYMENT 493 Disobedience of specific orders C. L. Belknap was killed on November 27, 1912. Death claim of $5,000 in weekly payments of $32.05 was disputed by defendant on the ground of deceased's wilful misconduct in violation of orders. Amount named awarded widow. The claim of wilful misconduct was based on the ground that deceased was the foreman who had charge of the work of unloading piles from a railroad car, and used his discretion in unloading without the use of ropes which were ordered by employer. The evidence showed that this condition had prevailed for between one and two weeks prior to the em- ployees death, and while the superintendent was in the vicinity of the work. Held that orders issued must be enforced and that the fatality was not caused by wilful misconduct. Belknap v. Mervy-Elwell Co., Cal. Indus. Ace. Bd., May 27, 1913. A finding of serious and wilful misconduct is a finding of fact not of law. Donnachie v. United Collieries (1910), 47 Scotch L. R. 412. The finding of the Industrial Commis- sion under the Wisconsin Workmen's Compensation Act that the death of an employe 1 was not caused by his wilful misconduct is conclusive where, under the evidence, it might have found that he did not intentionally become dangerously or helplessly intoxicated. Nekoosa-Edwards Paper Co. v. Industrial Commission, 000 Wis. 000; 141 N. W. Rep. 1013. 18. Disobedience of specific orders. 1 This subdivision is closely related to the preceding one. Disobedience of specific orders may amount to serious and wilful misconduct. That phase of the subject is discussed in the preceding paragraph. Again such disobedience may so remove the workman from the sphere of his duties that it may be said that he is not performing any of the duties for which he was employed, if an injury occurs while the dis- obedience continues. This latter phase of the subject is discussed in the present subdivision. It seems that a work- 1 See next preceding numbered paragraph. 494 bradbury's workmen's compensation law Disobedience of specific orders man who is injured while doing something which he has been absolutely forbidden to do cannot be said to be injured while in the course of his employment. Whitehead v. Reader (1901), 3 W. C. C. 40. Compensation was awarded in the last-mentioned case, however, it being held that the facts did not bring it within the rule stated. A workman, who was sharpening tftols on a grindstone, which was run by steam power, attempted to replace a belt, which had come off. In doing this he was injured. It was contended that he had been instructed not to interfere with the machinery in any way, his duties being merely to sharpen tools. It was held, however, that this was not such a breach of his orders as to remove the workman from the sphere of his employment. A servant, although in a place where his duty requires him to be, may, nevertheless, so conduct himself at the time of the injury as to be outside the scope of his employment, so as to relieve the master from liability. (E. L.) Williamson v. Berlin Mills Co., 190 Fed. R. 1. Thus a shop boy, whose duty it was to turn a lever on a punching machine and to perform other such minor services, one day, while the punch- ing machine was not running, attempted to turn the lever, or handle, on a rolling machine, with which he had nothing to do, and while making the attempt his left foot slipped be- tween the rollers and he was badly injured. It appeared from the testimony that the claimant had been ordered on a number of occasions not to turn the lever on the rolling machine and that it was no part of his duty to do anything in connection with the rolling machine at all. It was held that the injury did not arise out of the employment and compensation was refused. Re Victorino Morales, Op. Sol. Dep. C. & L., page 230. A railroad flagman who goes to sleep on the track is not in the discharge of his duty and is, in effect, a trespasser, and the company owes him no duty other than not to run over him after discovering his peril. (E. L.) Louisville & N. R. Co. v. Holland, 51 So. Rep. 365; 000 Ala. 000. INJURIES ARISING OUT OF EMPLOYMENT 495 Disobedience of specific orders Applicant's husband, a street car conductor, was killed by falling from the front platform and under the wheels. He had been prohibited from taking the motorman's place by instructions and by the company's rules, which had been enforced rigidly, by disciplining those who disregarded the rules. The evidence showed that the deceased, after the trolley had been changed at the end of the run, took the motorman's place, ran the car several hundred feet and, upon striking a curve, the car left the rails and the conductor was thrown from the platform and under the car. It was held that the conductor, at the time of the accident, was not performing services growing out of and incidental to his employment and his dependents were therefore not entitled to compensation. Neumann v. Milwaukee Railway and Light Co., Wis. Indus. Ace. Bd., May 2, 1912. A workman was expressly forbidden to go into a trench eleven feet deep. To take shelter from the rain and to get more flints, for which he was paid according to the number of flints dug out, he went into the trench and was smothered by a fall of earth. It was held that the accident did not arise out of and in the course of. the employment and com- pensation was refused. Parker v. Hambrook (1912), 5 B. W. C. C. 608. . A miner going from one part of a mine to another rode on the coupling between two cars, in breach of the rules of the colliery. His head was -knocked against the roof and he died from the injuries received. It was held that the accident did not arise out of the employment and compensation was re- fused. Powellv. Bryndu Colliery Co. (1911), 5 B. W. C. C. 124. A baker in a steam bakery required to have an engine started in order to mix the dough he had prepared. The man in charge of the engine being absent, the baker started the engine himself. He had often done so before, although he had been forbidden to do so. Being caught in the ma- chinery he was killed. It was held that the baker was not employed to touch the engine at all and that the accident 496 bradbxjry's workmen's compensation law Disobedience of specific orders did not arise out of the employment, and consequently compensation should be refused. Marriott v. Brett & Beney (1911), 5 B. W. C. C. 145. A brakeman whose duty it was to walk behind cars ready to apply the brakes when directed to do so by the driver, rode on the car beside the driver in disobedience of a rule of which he was ftilly aware. In jumping off to apply the brakes he fell and was injured. It was held that the accident did not arise out of the employment and compensation was refused. Revie v. Cumming (1911), 5 B. W. C. C. 483. A miner who was riding in a tub against the rules of the colliery, was killed by his head coming in contact with the roof. It appeared that the miners often did so ride, but they knew that such action was forbidden and they never did so when any one in authority could see them. There was no evidence that the employer had ever permitted or "winked at" the practice. It was held that the accident did not arise out of the employment and compensation was refused. (House of Lords) Barnes v. Nunnery Colliery Co. (1911), 5 B. W. C. C. 195, aff'g (1910), 4 B. W. C. C. 43. A brusher in a mine, who had finished his work for the day, jumped on a hutch in order to ride to the pit bottom. On the way he was knocked off the hutch by his head coming in contact with two crowns which were below the ordinary pit level, and was injured. A special rule, of which the in- jured man was cognizant, forbade miners from riding on the hutches. It was held that the accident did not arise out of the employment. Kane v. Merry & Cuninghame (1911), 48 Scotch L. R. 430; 4 B. W. C. C. 379. The rules of a pit provided that explosives capable only of being fired by deto- nators should be used; that the detonators should be se- curely kept and issued only to shot-firers; and that every shot should be fired by a competent person appointed in writing to perform the duty. On the occasion in question, after the shot-firer had left the pit, a miner, who had a det- onator in his possession which however, he had not re- INJURIES ARISING OtTT OF EMPLOYMENT 497 Disobedience of specific orders ceived from the shot-firer, started to fire a shot. This was not his duty and was in direct opposition to orders. In the course of the operation an explosion occurred whereby he was killed. It was held that the accident did not arise out of and in the course of the employment. Kerr v. William Baird & Co. (1911), 48 Scotch L. R. 646; 4B.WC. C. 397. A message boy, who was employed in delivering fish at a kitchen situated on the third floor of an infirmary, was in- jured while making his way from the ground floor by means of a hoist. There was a notice at the side of the hoist to the effect that it was only to be used by servants of the insti- tution, and worked only by those specially anthorized by the directors, but it was not proved that the boy had read the notice, or had his attention directed to it, though it was proved that he had been cautioned against using the hoist. It was held that the accident did not arise out of and in the course of his employment. M'Daid v. Steel (1911), 48 Scotch L. R. 765; 4 B. W. C. C. 412. A miner was warned by a fireman not to remain at work at a certain place, as blasting operations were about to commence. He left the place and went to work some distance away. Here he re- mained at least an hour. Blasting operations commenced and subsequently the workman was found dead among the debris. There was no evidence as to how he got there. The arbitrator found that the injury did not arise in the course of his employment. It was held that there was evidence to support the finding. Traynor v. Robert Addie & Sons (1910), 48 Scotch L. R. 820; 4 B. W. C. C. 357. ' A workman in a power house dusted the switchboard. It was no part of his duty, and he was expressly forbidden to do so. In doing this he fell against the live gear, and sustained injuries. It was held that the accident did not arise out of the employment. Jenkinson v. Harrison, Ainslie & Co. (1911), 4 B. W. C. C. 194. A boy was employed to hand balls of clay in molds to a molder, and was told not to touch the machinery. Having nothing to do for the moment, he at- 32 498 bradbury's workmen's compensation law Disobedience of specific orders tempted to clean the machinery and was thereby injured. It was held that the accident did not arise out of the employ- ment. Lowe v. Pearson (1899), 79 L. T. 654; 1 W. C. C. 5. A workman employed in a coal mine as a drawer, was working in a level from which an "upset" was being driven. On the day of the accident the fireman discovered an out- break of gas in the "upset", and accordingly placed a board across the entrance, chalking upon it, "No road up here." Such a board or fence was the usual mode of warning per- sons that it was dangerous to enter the place so fenced. The workman understood what the putting up of the board meant, and that it was dangerous to work in the "upset." He required a pick, and knowing that one had been left in the upset, he went to get it and passed over or under the fence with a naked light in his cap. An explosion took place and he was killed. It was held that the accident arose out of the employment. Conway and another v. Pumpherston Oil Co. (1911), 48 Scotch L. R. 632; 4 B. W. C. C. 392. The court followed the case of Whitehead v. Reader (1901), 2 K. B. 48, where the following rule is laid down: "I agree in what has already been pointed out, that it is not every breach of a master's orders that would have the effect of terminating the servant's employment so. as to excuse the master from the consequences of the breach of his orders. We have to get back to the orders emanating from the master to see what is the sphere of employment of the workman, and it must be competent to the master to limit that sphere. If the servant acting within the sphere of his employment violates the order of his master, the latter is responsible. It is, however, obvious that a workman cannot travel out of the sphere of his employment without the order of his employer to do so; and if he does travel out of the sphere of his em- ployment without such an order, his acts do not make the master liable either to the workman under the Workmen's Compensation Act, 1897, or to third persons at common law." A collier was sent to drill a hole from above into a seam, INJURIES ARISING OUT OF EMPLOYMENT 499 Disobedience of specific orders in order to draw off gases and render the seam safe. The seam itself was marked off as forbidden meanwhile. The man asked if he might go into the seam to see if the drill was running straight, and was told that he must not. He, never- theless, went and was suffocated. It was held that there was evidence to support the finding of the County Court judge, that the accident arose out of and in the course of the em- ployment. Harding v. Brynddu Colliery Co. (1911), 2 K. B. 747; 4 B. W. C. C. 269. A ship's engineer in an intensely cold place rigged up a temporary stove to warm his cabin. He was seen using it in the daytime by a superior officer, who told him that it was dangerous and warned him not to use it at night. He did use it at night, and was asphyxiated. The County Court judge found that some heating was reasonably necessary, and that the accident arose out of the employment and awarded compenstion. It was held on appeal that there was evidence to support the finding. Edmunds v. S. S. "Peterston" (1911), 5 B. W. C. C. 157. A quarryman was ramming a cartridge preparatory to blasting. The cartridge exploded prematurely and injured him. The employers contended that the workman was acting outside the scope of his employment, in breach of certain special rules as to shot firing. The rules, in fact, only related to the firing of shots, and not to loading. The explosion occurred while loading. It was held that the ac- cident arose out of the employment and compensation was awarded. Joyce v. Wellingborough Iron Co. (1911), 5 B. W. C. C. 126. A groom was thrown from a horse which he was exercising. There was some evidence that he had been told to lead but not to ride the horse. The horse threw him and he lost the sight of one eye and suffered other injuries. It was held that the accident arose out of and in the course of the employment and compensation was awarded. Wright v. Scott (1912), 5 B. W. C. C. 431. 500 bradbury's workmen's compensation law Acting on unauthorized orders 19. Acting on unauthorized orders. An accident which occurs while a man is complying with an order which, although he knows or ought to know he need not obey, because it is against the rules, but which is given to him by one from whom he received his orders, may, nevertheless, be an accident arising out of and in the course of the employment Statham v. Galloways Limited, 2 W. C. C. 149. A boy thirteen years of age, whose duty was to do all sorts of things under the direction of a foreman, was untruthfully told by another man that the foreman said he was to do cer- tain work, and the boy did it, in the course of which he was injured, and it was held that the accident arose out of and in the course of his employment. Brown v. Scott (1899), 1 W. C. C, 11. A cinder pit man, who was acting as hostler's helper in running a yard engine, falsely stated to decedent, his co- employe 1 , that the general foreman told him to direct decedent to act in his place while he took charge of the engine. This representation was untrue, as no such direction had been given. It was held that responsibility for the death of the decedent could not be attached to the railroad company because the decedent had acted on such statement. (E. L.) Southern Ry. Co. in Kentucky v. Pope's Adm'r, 119 S. W. Rep. 237; 133 Ky. 835. Where a servant is injured in obeying his superintendent's orders and it does not appear that the servant knew that the service was intended for the superintendent's personal benefit, an instruction relieving the master from liability, on the ground that plaintiff's injury occurred while not engaged about the master's business, is properly refused. (E. L.) Sims v. Omaha K. C. & E. Ry. Co., 89 Mo. App. 197. A minor, employed by the proprietor of a newspaper as a carrier, worked under the foreman of the distribution de- partment, who had nothing to do with the machinery. The foreman ordered the minor to remove papers from a folding INJURIES ARISING OUT OF EMPLOYMENT 501 Acting in an emergency- machine, in doing which he was injured. It was held he was a volunteer and the master was not liable. (E. L.) Hatfieldv. Adams, 96 S. W. Rep. 583; 29 Ky. Law Rep. 880. 20. Acting in an emergency. Where one renders aid to the servant of another at the request of the servant and under circumstances which create a necessity for aid, the person rendering aid becomes an emergency employe of the servant's master. (E. L.) Cannon v. Fargo, 138 App. Div. 20; 122 Supp. 576; (E. L») Marks v. Rochester By. Co., 41 App. Div. 66; 58 Supp. 210; (E. L.) Geibel v. Elwell, 19 App. Div. 285; 46 Supp. 76. There is, however, a good deal of conflict on this point in the various States. See 26 Cyc. 1287. It is an employe's implied duty to exercise reasonable care to preserve from injury his employer's property, and in an effort to that end he is not a mere volunteer. (E. L.) United States Cement Co. v. Koch, 85 N. E. Rep. 490; 42 Ind. App, 251. Where a freight train approached a down-grade, and it was necessary for some member of the crew to ride on the cars so as to control their speed, and the brakeman, when ordered to do so, refused, it was held that an emergency arose, which compelled the conductor to undertake the task himself, and he was not acting outside the line of his duty when so doing, where it entailed no neglect of his duties as conductor. (E. L.) Yongue v. St. Louis & S. F. R. Co., 112 S. W. Rep. 985; 133 Mo. App. 141. A foreman over a gang of men digging a trench for a sewer, after a severe thunder shower, went to inspect an electric light wire, which had broken and dropped on the crane and other portions of the apparatus being used in the work of excavation. He walked toward the pole to trace the wire along the street to find out whether or not it was a live wire. He stopped near the pole, staggered and fell over dead. It was found that his death was due to an electric shock. It was held that his death was due to an injury arising out of and in the course of his em- 502 bradbury's workmen's compensation law Acting in an emergency ployment and compensation was awarded to his widow. Houghton v. W. G. Root Construction Co., 35 N. L. Law J., 332. Where the plaintiff, a minor, employed to drive an en- try in a mine, was injured while assisting a co-employe in propping a dangerous portion of the roof which the defend- ants, although notified, had failed to prop, and such pre- caution was immediately necessary in order that the work which the plaintiff was employed to do might be continued, it was held that the plaintiff was acting within the scope of his employment at the time of his injury. (E. L.) Ballou v. Potter, 106 S. W. Rep. 1178; 32 Ky. Law Rep. 779. One who, at the request of a conductor of a freight train, in an emergency, temporarily assists in the work of unlock- ing a safe, is for the time being, a servant of the railroad company and entitled to the same protection as any other servant. (E. L.) St. Louis & S. F. Ry. Co. v. Bagwell, 124 Pac. R. 320; 33 Okla. 189. Where a driver of a delivery wagon, being unfamiliar with the route, asked a boy to go with him and show him the way, it was held that the boy became an emergency servant and a fellow-servant of the driver. (E. L.) Gunderson v. Eastern Brewing Co., 71 Misc. 519; 130 Supp. 785. The claimant was employed as a fireman in the Fire De- partment of the civil administration under the Isthmian Canal Commission, and while assisting as a pipe man in an effort to extinguish a fire which had broken out in a building situated in Colon, he was injured. It was conceded that the man when injured was without the limits of the Canal Zone. It was held, that the man had been employed in an emergency and the fact that the injury occurred outside the territory under the control of the United States, in view of the cir- cumstances stated, was not sufficient to exclude him from the operation of the Act, and compensation was awarded. Re James Nellis, Op. Sol. Dep. C. & L. page 221. A boy was employed to grease the wheels and axles of railway trucks. While waiting for trucks to come up he INJURIES ARISING OUT OF EMPLOYMENT 503 Acting in an emergency thought the switch was against the engine, and began to pull the lever in order to open it and was injured. It was held that there was evidence of an accident arising out of and in the course of his employment. Harrison v. Whitaker Bros., 2 W. C. C. 12. A workman was employed by a lion tamer to look after the baggage, clean out lion cages, and generally make himself useful, but it was no part of his duty to feed lions. One afternoon the workman was left in sole charge of the cages of lions, with orders to see that no harm came to them, or to anyone else, by reason of their fierceness. One of the lions got out of a cage and into a dressing room, but there was no evidence to show how it happened. The workman went into the dressing room and tried to drive the lion back into the cage, when the lion turned on him and killed him. It was held that as the deceased had been left in charge, it was his duty to get the lion back into the cage, and that as he was killed in the discharge of his duty, the accident arose out of and in the course of his employment. Hapelman v. Poole (1908), 25 T, L. R. 155; 2 B. W. C. C. 48. Authority for a servant to act on an emergency in his master's interest may be implied. Where a workman was injured in attempting to stop his master's runaway horse, it was held that the accident arose out of and in the course of the employment, although his work was wholly uncon- nected with the horses. Rees v. Thomas (1899), 80 L. T. 578; 1 W. C. C. 9. A man employed by the owner of a canal boat, as driver, who was forbidden by his employer to take part in the steer- ing or management of the boat, was drowned while engaged in steering. A boatman, who had been temporarily in charge of the horse, had deserted a short time before the accident, and the other boatman, who was also master of the boat, then decided to drive, telling the deceased at the same time to steer. It was held that no emergency had arisen which justified the deceased in violating the orders of his employer 504 bradbury's workmen's compensation law Acting in an emergency in steering the boat, and that therefore the accident did not arise out of and in the course of the employment. Whelan v. Moore (1909), 43 Irish L. T. 205; 2 B. W. C. C. 114. Where a conductor was injured while operating a car on which he was not the conductor, and he was operating the car merely for th^motorman's accommodation, it was held that he was not an emergency employe and could not recover for injuries received. (E. L.) Central Kentucky Traction Co. v. Miller, 153 S. W. Rep. 750; 147 Ky. 110. An employe left a place of employment, which was not dangerous, to stop a runaway car passing on a side track, and in doing so, closed a switch, which had been left open to prevent cars running on to the main track, and while in pursuit of the car on the main track he was injured by a second runaway car. He had no duty to perform about such car, or its operation, and acted without request or di- rection. It was held that no recovery could be had, although the car ran away because of a defective track, as the prox- imate cause of the injury was the servant's voluntary act. (E. L.) McGill v. Maine & N. H. Granitg Co., 46 Atl. Rep. 684; 70 N. H. 125. Intestate's brother was employed by the defendant rail- road company to operate a pumping station, but during such employment procured voluntary assistance of intestate, who aided the brother, with defendant's knowledge and consent, and during the performance of such work the in- testate was killed. It was held that in the absence of proof of an emergency or a necessity for the intestate's employment or that his brother had any authority to engage an assistant, the relation of master and servant did not exist between the defendant and the intestate. (E. L.) Grissom v. Atlanta & B. Air Line Ry., 44 So. Rep. 661; 152 Ala. 110. Where one of two butcher boys on a wagon fell off and was injured, a stranger who witnessed the accident volunteered to get on the wagon and take care of the boy while he was being carried home. She accordingly got on the wagon and INJURIES ARISING OUT OF EMPLOYMENT 505 Assaults. Injuries caused by third persons while it was being driven to the boy's home she fell off and was injured. An attempt was made to hold the master liable for the act of the volunteer, on the ground that the other employe 1 had implied authority to hire this volunteer in this emergency. The court, however, held that there was no such implied authority and denied compensation. Hough- ton v. Pilkington, 107 L. T. Rep. 235; The Policyholder, Nov. 16, 1912, page 768. 21. Saving life of another. An accident occurring while an employe 1 was making an attempt to save the life of a fellow workman was held to arise out of and in the course of the employment. Matthews v. Bedworth (1899), 1 W. C. C. 124. 22. Assaults. Injuries caused by third persons. Cases of assault have not been decided uniformly. The authorities are cited below, but no "general rules of anything like universal applications can be deduced from them. On principle, the better rule seems to be that an assault which has no connection with the work in which the employe is engaged does not entitle the workman to compensation. On the other hand justice appears clearly to have been ac- complished in awarding compensation in those cases where robbery was the motive of the assault, or where it was com- mitted to prevent an employe 1 from performing his duties. Thus a cashier employed regularly to carry wages by train to a colliery was shot by a stranger in the course of the journey and the wages were stolen. It was held that his death was caused by an accident and that the accident arose out of and in the course of his employment. Nisbet v. Rayne & Burn (1910), 2 K. B. 689; 3 B. W. C. C. 507. A night watchman on the premises of his employer, who while in the discharge of his duties was shot by a burglar, from the effects of which he died, was held to have been killed in the course of his employment and that.his dependents were entitled to 506 bradbury's workmen's compensation law Assaults. Injuries caused by third persons compensation. Re Margaret Evans, Claim No. 4204, Ohio Indus. Ace. Bd., May 29th, 1913. A street car conductor injured by the assault of a disorderly passenger while the conductor is attempting to compel the passenger to obey the company's rules, is entitled to compensation, as the in- jury arises out of^the employment. Ruling of Washington Industrial Commission, First Annual Rep., page 476. Applicant was conducting a hotel at Floriston, California. Late one evening he ejected two intoxicated men who desired entry to the hotel. Force was used and applicant broke the long bone of the middle finger of his right hand, dislocated certain joints of the other fingers, and strained or otherwise lamed his left hand, with the result that his right hand is rather seriously crippled. Held that the applicant clearly established the fact that he was injured while performing a service growing out of and incidental to his employment, but that he failed to establish as a fact, that in striking one of the intruders for the use of an abusive epithet he was acting within the line of his duty to his employer, and con- sequently compensation was denied. It was further held that it was applicant's duty to use no more force than was necessary to accomplish the end desired. Weston v. Crown Columbia Paper Co., Cal. Indus. Ace. Bd., Dec. 3, 1913. A gamekeeper, while in the discharge of his duties, was attacked by poachers and injured. It was held that this was a personal injury by accident. Anderson v. Balfour (1910), 44 Irish L. T. 168; 3 B. W. C. C. 588. In Massachusetts it has been held that an assault by a drunken co-efnploy6, " who was in the habit of drinking to intoxication, and when intoxicated was quarrelsome and dangerous, and unsafe to be permitted to work with his fellow employes, all of which was known to the superintend- ent " of the employer, was an injury arising out of and in the course of the claimant's employment when the assault was committed while the claimant was working at his regular duties. McNichol v. Patterson, Wilde & Co, and Employers' INJURIES ARISING OUT OF EMPLOYMENT 507 Assaults. Injuries caused by third persons ■Liability Assur. Corp. Lim., 215 Mass. 000; 102 N. E. Rep. 697. The Massachusetts Act does not contain the word "accident" so it was unnecessary to determine whether or not it Was an "accidental" injury. The Massachusetts Industrial Accident Board has held that a bartender, who was stabbed by an irate customer, because of the bartender's refusal to serve him with any more drinks, was entitled to compensation. (The decision is not reported.) An injury to an engine driver in being hit by a stone thrown by boys from an overhead bridge is an accident arising out of the employment. Challis v. London & South Western Ry. Co. (1905), 7 W. C. C. 23. A recent newspaper report states that the Washington Commission awarded compensation to an employe" who was shot in the eye by a boy with an air gun. An employe 1 while at work as a journeyman carpenter was killed by the fall of a bar ofmetal from an upper story, caused by a workman of an independent contractor on the same building, and it was held that the death arose out of and in the course of the employment within the meaning of the New Jersey Workmen's Compensation Act. Bryant v. Fissell, 000 N. J. Law 000; 86 Atl. Rep. 458. A workman was employed to assist in loading and un- loading wagons and also to assist in and about the care of the wagons. He was requested by his employer to grease a wheel of one of the wagons. While complying with this request and standing in front of the employer's store the wagon on which he was engaged was struck by a truck driven by the employe of a third person, and the employe" received injuries which disabled him for ten weeks. Sub- sequently he made a claim against the employer owning the truck and that claim was settled. He then made a claim against his immediate employer for compensation.. It was held that the injury arose out of the employment and also that the settlement with a third person did not bar the 508 bradbury's workmen's compensation law Assaults. Injuries caused by third persons claim for compensation. Perlsburg v. Mutter, Essex Common Pleas, 35 N. J. Law J. 202. The fact that an injury is caused by a fellow workman who has violated the Factory Act, and upon whom a fine has been inflicted because of such violation, is no reason for denying compensation to the employe" who has been injured. Gibson v. Dunkerky Brothers (1910), 3 B. W. C. C- 345. An employe" who, without negligence or misconduct on his part, is struck by his foreman in a fit of anger, and had his arm broken, is injured in the course of his employment. Re Cornelius Flemmings, Op. Sol. Dep. C. & L., p. 187. In the last mentioned case it was pointed out that under the English act which requires that the injury must arise out of and in the course of the employment, assault of this kind would not be covered, but the Solicitor distinguished the English statute from the Federal Compensation Act, stat- ing that the latter injury shall be caused "in the course of the employment" and that it need not necessarily "arise out of" the employment. A foreman whose duty it was to enforce discipline was in- jured while going to stop a fight between two of his men and it was held that the injury occurred in the course of the employment and he was entitled to compensation. Re William Wharton, Op. Sol. Dep. C. & L., p. 250. A shovel engineer and a negro brakeman became involved in an altercation, and the negro attacked the engineer with an iron bar and finally struck him on the head. The claimant seeing the engineer's life in danger, got down from the shovel to defend him and when he struck the negro in the teeth with his fist the back of his hand was badly bruised and lacerated and shortly thereafter became infected. It was held that no service of the master was being performed and it might be said that for the time being the relation of master and serv- ant had been severed; that the claimant had got out of the scope of his employment in taking part in the fight and he INJURIES ARISING OUT OF EMPLOYMENT 509 Assaults. Injuries caused by third persons assumed the risks incidental thereto and therefore compensa- tion was denied. Re G. M. Armstead, Op. Sol. Dep. C. & L., p. 240. A workman who is injured as the result of an encounter with another workman, following a quarrel, is not entitled to compensation, as the injury does not arise out of and in the course of the employment. Gorman v. Fidelity & Casualty Co., Mass. Indus. Ace. Bd. One employe 1 for no apparent reason pushed another against a moving rope. The latter involuntarily swung up one hand in which he held a hammer, to prevent falling, and hit the workman, who had shoved him, over the eye and injured him so badly that he lost the sight of the eye. Compensation was refused on the ground that the injury did not arise out of the employment. Shaw v. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 81. A workman was struck in the eye by a piece of iron mali- ciously thrown by another workman at a third employe, and it was held that the accident did not arise out of the employ- ment. Armitage v. Lancashire & Yorkshire By. Co. (1902), 86 L. T. 883; 4 W. C. C. 5. One of two boys was injured in avoiding a handful of rubbish which was thrown at him by another boy, and it was held that the accident did not arise out of the employ- ment. William Baird Co. v. Burley (1908), 45 Scotch L. R. 416; 1 B. W. C. C. 7. Where a customer in a hotel went into the kitchen, where he had no business to be and made a rush at the cook, who, in trying to avoid him, put her arm through a glass door and was seriously hurt, it was held that this was not an accident to the cook arising out of the employment. Murphy v. Berwick (1909), 43 Irish L. T. 126; 2 B. W. C. C. 103. Strikebreakers who are employed during a strike, and who are assaulted by striking workmen and injured are not entitled to compensation, as this is not an accident within the meaning of the compensation act, nor does the injury 510 bradbury's workmen's compensation law Assaults. Injuries caused by third persons arise out of the employment. Murray v. Denholm & Co. (1911), 48 Sc. L. R. 896; 5 B. W. C. C. 496. In the last- mentioned' case it was said that the act of assaulting the strikebreakers was a crime and not an accident. A storekeeper agreed with his employers to work as a carter during a strike of carters and drivers, and the em- ployers agreed to^ compensate him for any injury he might receive from the strikers. On going home to lunch he was assaulted, injured and incapacitated by the strikers. Upon making a claim for compensation it was held that although the agreement gave him a good cause of action at common law, it did not enlarge his rights under the compensation action so as to cover the time after he left off work, and that therefore the accident did not arise out of the employment. Poulton v. Kelsall (1912), 5 B. W. C. C. 318. An errand boy while at work was attacked with a hatchet by his employer who was subject to fits of melancholia and had been in an asylum. It was held that this was not an accident and it did not arise out of the employment and com- pensation was refused. Blake v. Head (1912), 5 B. W. C: C. 303. In the last-mentioned case, Buckley, L. J., remarked: "A felonious act done by the employer cannot by any pos- sible straining of language be called an accident arising out of and in the course of the employment." A recent newspaper account states that the Washington Commission denied compensation to an employ^ who was assaulted by his employer. A steamship was lying in the Harbor of Pernambuco, Brazil, on September 30, 1911, while a revolution was in progress in the town. By reason of the disturbance and the difficulty in discharging the cargo the stay of the steamship was very- much prolonged. A member of the crew was on the deck on watch at night, while firing was going on in the town, and he was hit by a stray bullet. It was held that the connection between the accident and the employment was too remote to come within the Act, and that the injury did INJURIES ARISING OUT OF EMPLOYMENT 51 1 Playing practical jokes not arise out of the employment. McShane v. Harrison, The Policy Holder, April 10, 1913, p. 296. 23. Playing practical jokes. A driver's helper, whose duty it was to take care of the horses was tramped upon by the horses in the stable and so badly injured that he subsequently died. There were con- flicting reports as to how the accident happened. One re- port stated that the injured employe and another "were having a friendly tussle" in the stall of the horses and were pushing each other when Craig (the injured employ^) slipped and fell under the horse. The horse then stepped on him, injuring him. Upon investigation, however, by the Board, the man who had made the above statement could not be found, and it appeared from other testimony that the injured man was alone in the stall when the horse tramped upon him. The Board, in awarding compensation said: "If we were thoroughly convinced of the truthfulness of the first statement made by Frey (the witness who disappeared), we would consider it our duty to deny compensation, for the reason that if employes engaged in a common employment temporarily suspend their regular work for the purpose of engaging in "a friendly tussle" and thereby sustain injury, such injury cannot be said to be incurred in the course of employment. But we can understand how the injury might easily have occurred while the injured workman was engaged in his employment, and without any fault on his part, though it might have been occasioned by the pranks of Frederick Frey." Re Eva Isabelle Craig, Claim No. 2208, Ohio In- dus. Ace. Bd., Mar. 21, 1913. A boy, set to clean a machine at rest, was larking with another boy, and accidentally started the machine, thereby injuring himself. It was held that the accident did not arise out of the employment. Cole v. Evans, Son, Lescher & Webb (1911), 4 B. W. C. C. 138; following Furniss v. Gartside & Co. (1910), 3 B. W. C. C. 411. A domestic servant while en- 512 bradbtjry's workmen's compensation law Bite of animal' gaged in the performance of her duties was struck on the eye by a child's ball playfully thrown at her by a fellow- servant, the child's nurse, with the result that she almost completely lost the sight of the eye. It was held that the accident did not arise out of the employment within the meaning of § 1 (1) of the Act of 1906. Wilson v. Laing (1909), 46 Scotch L. R. 843; 2 B. W. C. C. 118. Some work- men, as a practical joke, put the hook of their employers' crane, which they were working, through the neckcloth of a fellow workman who was at the time engaged in his work on his employers' wharf, and commenced to draw him up through the warehouse. The man held the chains with his hands as long as he could, but eventually had to let go his hold, and fell a considerable distance and was seriously in- jured. It was held that the injury did not arise out of the employment. Fitzgerald v. Clarke & Son (1908), 99 L. T. 101; 1 B. W. C. C. 197. Where one workman, in the spirit of horseplay had placed another in a very dangerous situa- tion, and a third workman going to his rescue, was seriously injured, it was held that the workman who took the risk, was not injured while performing any of the duty owing to his employers and that therefore the injury did not arise out of and in the course of the employment. Mullen v. D. Y. Stewart & Co. (1908), 45 Scotch L. R. 729; 1 B. W. C. C. 204. The applicant for compensation, one Shaw, had for no apparent reason pushed another workman named Dilworth against a moving rope. Dilworth involuntarily swung up one hand, in which he held a hammer, to prevent falling over the moving rope, and this hammer hit the applicant over the eye and injured him so badly that he lost the sight of the eye. It was held that the accident did not arise out of the employment. Shaw v. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 81. 24. Bite of animal. A workman has been held to have suffered an accidental INJURIES ARISING OUT OF EMPLOYMENT 513 Bite of animal injury which entitled him to compensation by the bite or attack of an animal. Hapelman v. Poole (1908), 25 T. L. R. 155; 2 B. W. C. C. 48. A workman was taking his mid-day meal in his employer's stable, when he was bitten by one of the stable cats. The bite resulted in blood poisdhing and it became necessary to amputate some of the fingers. It was held that the accident arose out of and in the course of the employment. Rowland v. Wright (1908), 1 B. W. C. C. 192. The claimant was in a canal cut attending to the duties of his position as powder foreman, when a mad dog came running through the cut and bit him on the calf of the leg. It was held that the injury occurred in the course of the em- ployment and that the claimant was entitled to compensa- tion. Re E. E. Bailey, Op. Sol. Dep. C. & L., p. 232. A workman was engaged in delivering beer to the cus- tomers of his employer, and the place of residence of one of the employers was located in a portion of the city which was partially submerged by the high waters then prevalent, the cellar of the premises being flooded. When the employe 1 called at these premises he was told of the flooded condi- tions of the cellar and was requested to deliver the beer at the back yard, which he did, and while so doing he was bitten by a bulldog. The attending physician's report stated that the employe" "reached through a hole in a gate to unhook fasten- ing and was bitten by a bulldog which he was unable to see, as the fence was too high to look over." It was held that the injury occurred in the course of his employment and that the workman was entitled to compensation. Re William Miller, Claim No. 3483, Ohio State Lia. Bd. Awd., April 18, 19i3. A claimant was bitten in the right leg by a mad dog while returning to work from dinner and it was held that the injury did not arise out of the employment and compensation was refused. Re Alexander Green, Op. Sol. Dep. C. & L., p. 223. 33 514 bradbury's workmen's compensation law Foreign substance in eye 25. Sting of insect. A workman in charge of a threshing machine in a field was stung by a wasp and died from the effect of the sting. It was held that the accident did not arise out of the employ- ment and compensation was refused. Amys v. Barton (1911), 5 B. W. C. C. 117. A lady's maid* in the course of her employment, was sew- ing at an open window, through which an insect flew into her face. To defend her eyes she quickly put up her hand, which accidentally struck and permanently injured her eye. It was held that the injury was not a personal injury by accident arising out of the employment. Craske v. Wigan (1909), 100 L. T. 8; 2 B. W. C. C. 35. 26. Bite of snake. The Washington Commission granted compensation to a workman doing road work who was bitten by a rattlesnake. Rept. 1913, p. 65. 27. Foreign substance in eye. While a dock laborer was unloading a cargo of bran, some of the bran blew into his eye. There was grit in the bran, and this, by his constantly rubbing his eye, produced an abra- sion of the cornea. This resulted in the necessity of removing the eye. It was held that this was an accident arising out of and in the course of the employment and that the workman was entitled to compensation. Adams v. Thompson (1911), 5B.W. C. C. 19. While engaged in chipping the burs from a steel plate with a cold chisel a workman was injured by a piece of the steel so chipped off, striking him in the eye and destroying his sight. It was held that this was an accident within the meaning of the British Compensation Act. Neville v. Kelly Bros. & Mitchell (1907), 13 B. C. 125; 1 B. W. C. C. 432. It appeared that the applicant for compensation had sore eyes when he went to work on April 7, 1913. A few days later he alleged he got dust in his eyes from a machine. INJURIES ARISING OUT OF EMPLOYMENT 515 Lightning striking workman Nothing was said about the accident until June 12 following, when the applicant demanded compensation. The applica- tion was denied. Wilkie v. Thomas Forman Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at p. 417. 28. Seaman injured by explosion of gun. The third officer of a steamship was injured by the pre- mature explosion of a gun which had been placed on the deck to be used against robbers, who were in the habit of boarding the ship and stealing therefrom, and it was held that the acci- dent arose out of and in the course of the officer's employ- ment, under the British Compensation Act. Thompson v. Nautilus Steamship Co., The Policyholder, July 10, 1912, p. 553. 29. Lightning striking workman. A workman whose duty was to clean out the gullets at the side of a road during a storm, to prevent the water flooding the road, was struck by lightning. It was held that the death was not occasioned by accident arising out of the employ- ment. Kelly v. Kerry County Council (1908), 42 Irish L. T. 23; 1 B. W. C. C. 194. But see Andrew v. Failsworth Indus- trial Soc. (1904), 90 L. T. 611; 6 W. C. C. 11, where a brick- layer on a scaffold, twenty-three feet from the ground, was struck by lightning and it was held that this was an accident. The last-mentioned case was decided by the Court of Appeal of England. The case was not decided squarely on the ground that in all cases where a workman was killed by lightning his dependents would be entitled to compensation. The judgment of the court below was adopted to the effect that this particular workman was in a more than ordinarily dangerous position as to Hghtning. It is not enough for a workman to assert that an accident which has caused personal injury to him would not have happened if he had not been in the particular place where it 516 bbadbury's workmen's compensation law Drawing inferences from unexplained injuries occurred. But it must be shown that the accident arose because of something he was doing in the course of his em- ployment, or because it placed him in a position of peculiar danger, and the risk incurred was therefore incidental to his employment. Craske v. Wigan (1909), 100 L. T. 8; 2 B. W. C. C. 35. ■* 30. Drawing inferences from unexplained injuries. A ship's fireman in the tropics, unused to the work, and working longer hours than usual owing to the ship being short- handed, disappeared. It was the custom for firemen to come up on deck" for fresh air and this man was seen to come on the deck for water shortly before he was last seen in the stokehole. The inference that the accident arose out of the employment was sustained and compensation was awarded to the dependents. Lee v. Stag Line (1912), 5 B. W. C. C. 660. A ship's cook disappeared unexplainedly at sea. He was last seen in the galley, where there was no possibility of fall- ing overboard. The weather was rough, and he was last seen to go on deck to reach the toilet. The County Court judge inferred that the accident arose out of the employment, but it was held on appeal that there was no evidence to sup- port the inference and compensation was denied. Burwash v. F. Leyland & Co. (1912), 5 B. W. C. C. 663. An engineer who was employed on board a small steam tug, was last seen asleep in his bunk at 5 a.m. An hour afterward he had disappeared, leaving his working clothes lying at the side of his bunk. The tug was to commence towing at 7 a. m. that morning and steam had been ordered to be got up for that hour. The deck was a place where between five and seven a. m. he was entitled to be. Two days afterward his body, clad in his ordinary sleeping clothes, was found in the water near the place where the tug had been moored on the morning in question. The examining phy- sician testified that the man's death was due to drowning. INJURIES ARISING OUT OF EMPLOYMENT 517 Drawing inferences from unexplained injuries It appeared in evidence that he was unable to swim, but there was no direct testimony as to how the deceased had met with his death. It was held that the arbitrator was entitled to draw the inference of fact that the workman had accidentally fallen overboard and been drowned, and that the accident arose out of and in the course of the man's employ- ment. Mackinnon v. Miller (1909), 46 Scotch L. R. 299- 2 B. W. C. C. 64. An engine driver, over sixty years old, was working about the engine at a railway station. He was next seen lying be- tween the engine and the platform with his two legs doubled up, exhibiting signs of agony, and he died a few minutes later. There was no evidence to show how he got into this position, but there was evidence to show that on at least three previous occasions when the train was at a station, the deceased had collapsed in a faint, and had lain unconscious for some minutes. A few days before the occurrence the deceased was examined by the physician of the company and was presumably passed as physically fit for his position. The County Court judge held that the accident arose out of and in the course of his employment. It was held that there was sufficient evidence to justify the finding. Fennah v. Midland & Great Western Railway of Ireland (1911), 45 Irish L. T. 192; 4 B. W. C. C. 440. In this case the court said: "The judge is entitled to draw an inference, but he cannot arrive at it by guess or conjecture; and the onus is, in the first instance, on the .applicant to furnish evidence from which an inference in the applicant's favor can be legitimately drawn." A train of three cars pushed by an engine overtook another train on the same tracks, and the two trains ran buffer to buffer as if coupled. The brakeman of the rear train tried to get on the front train but slipped between the buffers and was killed. There was no direct evidence as to his reasons for trying to board the front train, but there was evidence that he would shortly have had to alight to shift 518 BRADBtTKY's WOBKMEn's C0MJ?£ttSA i ie presumed as to a widow who was living with her husband at the time of his decease, and children under the age of eighteen years; stepchildren and illegitimate children shall be presumed to be dependent when they were a part of decedent's household at the time of his death. Every pro- vision of this act applying to one class shall be equally ap- plicable to the other. Should any dependent of a deceased employe 1 die during the period covered by such weekly pay- ments, or should the widow of a deceased employe" remarry during such period, the right of such dependent or of such widow to compensation under this section shall cease. "Order of distribution. Compensation shall be computed upon the foregoing basis. Distribution shall be made among dependents, if more than one, according to the order of the judge of the court of common pleas, who shall, when applied to for that purpose, determine, upon the facts being presented to him, the proportion to be paid to or on behalf of each de- pendent according to the relative dependency. Payment on behalf of infants shall be made to the surviving parent, if any. " (2) No dependents. by which an order was made filing the decree of adoption nunc pro tunc as of a date when the same was signed by the surrogate. It was held that under such circumstances the child was entitled to compensation. Stepchildren who are brought into the workman's household and are supported toy him are dependents under the New Jersey Workmen's Compensation Act. Klotz v. Newark Paving Co., 36 N. J. Law, 271. Where an injury is due to the act of a third person the settlement by the employe, or his dependents in case he is killed, with the person who caused such injury does not merge the right to claim compensation from the employer. Klotz v. Newark Paving Co., 36 N. J. Law J. 271 ; Perlsburg v. Muller, 35 N. J. Law J. 202; Houghton v. Root Construction Co., 35 N. J. Law J. 332. DEATH BENEFITS 621 Xew York "Sickness and burial. Expenses of last sickness and burial, the cost of burial, however, not to exceed one hundred dol- lars. "Orphans and minors. Proviso. In computing compensa- tion to orphans or other children, only those under eighteen years of age shall be included, and only during the period in which they are under that age, at which time payment on account of such child shall cease; provided, however, that pay- ments to such physically or mentally deficient children as are for such reason dependent shall continue during the full term of compensation payment. "Weekly compensation. Proviso. Duration. The com- pensation in case of death shall be subject to a maximum compensation of ten dollars per week and a minimum of five dollars per week; provided, that if at the time of injury the employe received wages of less than five dollars per week, then the compensation shall be the full amount of such wages per week. This compensation shall be paid during three hundred weeks. "Aliens excepted. Compensation under this schedule shall not apply to alien dependents not residents of the United States." When compensation payments are consecutive and not concurrent, including compensation for death, see § II, 14 (c), added by L. 1913, c. 174, in effect April 1, 1913. NEW YORK "§16. Death benefits. If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following: "1. Reasonable funeral expenses, not exceeding one hun- dred dollars; "2. If there be a surviving wife (or dependent husband) and no child of the deceased under the age of eighteen years, to such wife (or dependent husband) thirty per centum of the 622 bradbuey's workmen's compensation Iaw New York average wages of the deceased during widowhood (or depend- ent widowerhood) with two years' compensation in one sum, upon remarriage; and if there be surviving child or children of the deceased under the age of eighteen years, the additional amount of ten per centum of such wages for each such child until of the age of eighteen years; in case of the subsequent death of such surviving wife (or dependent husband) any sur- viving child of the deceased employ6, at the time under eight- een years of age, shall have his compensation increased to fifteen per centum of such wages, and the same shall be pay- able until he shall reach the age of eighteen years; provided that the total amount payable shall in no case exceed sixty-six and two-thirds per centum of such wages." "3. (Provides 15% of wages for each child, not exceeding 66% to all, where no wife or dependent husband.) "4. If the amount payable to surviving wife (or dependent husband) and to children under the age of eighteen years shall be less in the aggregate than sixty-six and two-thirds per centum of the average wages of the deceased, then for the support of grandchildren or brothers and sisters under the age of eighteen years, if dependent upon the deceased at the time of the accident, fifteen per centum of such wages for the support of each such person until of the age of eighteen years; and for the support of each parent, or grandparent, of the deceased if dependent upon him at the time of the accident, fifteen per centum of such wages during such dependency. But in no case shall the aggregate amount payable under this subdivision exceed the difference between sixty-six and two- thirds per centum of such wages, and the amount payable as hereinbefore provided to surviving wife (or dependent hus- band) or for the support of surviving child or children. "Any excess of wages over one hundred dollars a month shall not be taken into account in computing compensation under this section. All questions of dependency shall be determined as of the time of the accident. "§ 17. Aliens. Compensation under this chapter to aliens not residents (or about to become nonresidents) of the United States or Canada, shall be the same in amount as provided for residents, except that the commission may, at its option, DEATH BENEFITS 623 Ohio or, upon the application of the insurance carrier, shall, com- mute all future installments of compensation to be paid to such aliens, by paying or causing to be paid to them one-half of the commuted amount of such future installments of com- pensation as determined by the commission." Under the New York statute there is a presumption of dependency in favor of widows and of children under the age of eighteen. All others must prove dependency. It is to be noted that it does not matter whether or not a woman was living with her husband at the time of the accident causing his death, so far as her right to compensation is con- cerned. She must merely establish the relation of husband and wife. Having done this she is entitled to compensation for life, or until her remarriage. The payment to dependent parents and grandparents is also for life, if the dependency continues that long. OHIO "§ 1465-82. § 35, Act of 1913. In case the injury causes death within the period of two years, the benefits shall be in the amounts and to the persons following: 1 '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 and income of their own, are wholly dependent upon such deceased workman for support at the time of his death and are entitled to compensation as such dependents. Re Elida A. Baird, Claim No. 504, Ohio St. Lia. Bd. Awd., Nov. 11, 1912. In a case of the death of a workman leaving a widow and minor child, it was held not necessary for the application for compensation to be filed by the administrator or executor of the deceased; that the minor child being under disability of infancy and in the custody of her mother that part of the compensation apportioned to such child will be made payable to the mother for the use of the child. Re Laura M. Shaffer, Claim No. 4 1 , Ohio St. Lia. Bd. Awd., June 14, 1912. An employ^ was killed in the course of his employment leaving surviving a widow and a son 35 years of age, the latter being mentally and physically deficient, but who, for a number of years prior to and at the time of the 624 bradbury's workmen's compensation law Ohio "1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof. "2. If there are wholly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent, of the average weekly wages, and to continue for the remainder of the period between the date of the death, and six years after the date^rf the injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars. "3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent. of the average weekly wages, and to continue for all or such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars. "4. The following persons shall be presumed to be wholly dependent for support upon a deceased employed "(a) A wife upon a husband with whom she lives at the time of his death. " (o) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from death of his father was employed at a weekly wage of $7.50. The employe who was killed had not been employed for a considerable time prior to taking the employment in the position in which he was killed, which em- ployment he entered upon the day preceding the day he received the injury resulting in his death. It was held that the widow was wholly dependent upon him for support and that the son was neither wholly, nor partially, dependent upon him for support. Re Francis R. Williams, Claim No. 296, Ohio St. Lia. Bd. Awd., November 15, 1912. Where a father, mother and grown son constitute a family, and both father and son are wage earners and both contributed 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. Re Emma Hoffman, Claim No. 2293, Ohio St. Lia. Bd. Awd., March, 1913. Whether a woman whose husband is living is dependent in any degree for support upon her grown son is a question of fact and there is no pre- sumption in favor of such dependency. Re Emma Hoffman, Claim No. 2293, Ohio St. Lia. Bd. Awd., March, 1913. DEATH BENEFITS 625 Oregon earning) upon the parent with whom he is living at the time of the death of such parent. " In all other cases, question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employ^, but no person shall be considered as dependent unless a member of the family of the deceased employe, or bears to him the relation of husband or widow, lineal descendant, ancestor or brother or sister. The word "child" as used in this act, shall include a posthumous child, and a child legally adopted prior to the injury. § 1465-83. § 36, Act of 1913. The benefits in case of death, shall be paid to such one or more of the dependents of the decedent, for the benefit of all the dependents as may be de-r termined by the board, which may apportion the benefits among the dependents in such manner as it may deem just and equitable. Payment to a dependent subsequent in right may be made, if the board deems it proper, and shall operate to discharge all other claims therefor. The dependent or person to whom benefits are paid shall apply the same to the use of the several beneficiaries thereof according to their respective claims upon the decedent for support, in com- pliance with the finding and direction of the board. "In all cases of death where the dependents are a widow and one or more minor children, it shall be sufficient for the widow to make application to the board on behalf of herself and minor children;, and in cases where all of the dependents are minors, the application shall be made by the guardian or next friend of such minor dependents." OREGON " § 21. If any workman while he is subject to this Act and in the service of an employer who is thus bound to contribute to the Industrial Accident Fund shall sustain a personal injury by accident arising out of and ;n the course of his em- ployment caused by violent or external means he, or his beneficiaries or dependents, if the injury result in death, 40 626 Bradbury's workmen's compensation law Oregon shall receive compensation according to the following sched- ule: " (a) Where death results from the injury and expenses of burial shall be paid in all cases not to exceed one hundred dollars ($100) in any case, and "1. If the workman leaves a widow or invalid widower, a monthly payment of thirty dollars ($30) shall be paid through- out the life of the surviving spouse, to cease at the end of the month in which remarriage shall occur; and the surviving spouse shall also receive six dollars ($6) per month for each child of the deceased under the age of sixteen years at the time of the occurrence of the injury until such minor shall reach the age of sixteen years, but the total monthly payment under this paragraph (1) shall not exceed fifty dollars ($50). Upon remarriage of a widow she shall receive once for all a lump sum equal to ten times her monthly allowance, viz. : the sum of three hundred dollars ($300), but the monthly pay- ments for the child or children shall continue as before. " (2) If the workman leaves no wife or husband but a child or children under the age of sixteen years, a monthly pay- ment of fifteen dollars ($15.00) shall be made to each child until such child shall reach the age of sixteen years; 'provided, however, that if any child is under the age of sixteen years and over the age of fifteen years, he shall be entitled to re- cover such payments for a period of one year, but the total monthly payment shall not exceed fifty dollars ($50), and any deficit shall be deducted proportionately among the bene- ficiaries. "(3) If the workman leaves no widow, widower, or child under the age of sixteen years, but leaves a dependent or de- pendents, a monthly payment shall be made to each depend- ent equal to 50 per cent of the average monthly support ac- tually received by such dependent from the workman during the twelve months next preceding the occurrence of the in- jury, but the total payment to all dependents in any case, shall not exceed thirty dollars ($30) per month. If any de- pendent is under the age of 16 years at the time of the occur- rence of the injury, the payment to such dependent shall cease when such dependent shall reach the age of 16 years, DEATH BENEFITS 627 Rhode Island excepting a daughter, the payment to whom shall cease when she shall have reached the age of eighteen years. Provided, however, that if any child is under the age of sixteen years and over the age of fifteen years, he shall be entitled to re- cover such payments for a period of one year. The payment to any dependent shall cease if, and when, under the same circumstances, the necessity creating the dependency would have ceased if the injury had not happened. " If the workman is under the age of 21 years and unmarried at the time of his death, the parents or parent of the work- man shall receive twenty-five dollars ($25) per month for each month after his death until the time at which he would have arrived at the age of 21 years, provided, however, that such parents shall be entitled thereafter to compensation as dependents under the provisions of the first clause of this paragraph three. "(4) In the event a surviving spouse receiving monthly payments shall die leaving a child or children under the age of 16 years, the sum he or she shall be receiving on account of such child or children shall thereafter, until such child shall arrive at the age of 16 years, be paid to the child increased to fifteen dollars per month; provided, however, that if any such child is under the age of sixteen years and over the age of fifteen years he shall be entitled to recover such payments for a period of one year, but the total to all children shall not exceed the sum of fifty dollars ($50) per month. "§ 21. * * * (J) A husband or wife of an injured work- man, who has deserted said injured workman for more than one year prior to the time of the injury or subsequently shall not be a beneficiary under this act." RHODE ISLAND "Art. II, § 6. If death results from the injury, the em- ployer shall pay the dependents of the employe wholly de- pendent upon his earnings for support at the time of his in- jury a weekly payment equal to one-half his average weekly wages, earnings or salary, but not more than ten dollars nor less than four dollars a week, for a period of three hundred 628 bradbuky's wobkmen's compensation law Rhode Island weeks from the date of the injury: Provided, however, that, if the dependent of the employ^ to whom the compensation shall be payable upon his death is the widow of such employe^ upon her death the compensation thereafter payable under this act shall be paid to the child or children of the deceased employe^ including adopted and stepchildren, under the age of eighteen years, or over said age, but physically or men- tally incapacitated, from earning, dependent upon the widow at the time of her death. In case there is more than one child thus dependent, the compensation shall be divided equally among them. If the employe leaves dependents only partly dependent upon his earnings for support at the time of his injury, the employer shall pay such dependents for a period of three hundred weeks from the date of the injury a weekly compensation equal to the same proportion of the weekly pay- ments herein provided for the benefit of persons wholly de- pendent as the amount contributed annually by the employe to such partial dependents bears to the annual earnings of the deceased at the time of injury. When weekly payments have been made to an injured employe 1 before his death, the compensation to dependents shall begin from the date of the last of such payments, but shall not continue more than three hundred weeks from the date of the injury: Provided, however, that, if the deceased leaves no dependents at the time of the injury, the employer shall not be liable to pay compensation under this act except as specifically provided in section 9 of this Article." "Art. II, § 7. Dependents. The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employed — " (a) A wife upon a husband with whom she lives or upon whom she is dependent at the time of his death. " (6) A husband upon a wife with whom he lives or upon whom he is dependent at the time of her death. " (c) A child or children, including adopted and step- children, under the age of eighteen years, or over said age, but physically or mentally incapacitated from earning, upon the parent with whom he is or they are living or upon whom he or they are dependent at the time of the death of such DEATH BENEFITS 629 Rhode Island parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the compensa- tion hereunder shall be divided equally among them. "In all other cases questions of entire or partial dependency shall be determined in accordance with the fact as the fact may have been at the time of the injury. In such other cases, if there is more than one person wholly dependent, the com- pensation shall be divided equally among them, and persons partly dependent, if any, shall receive no part thereof during the period in which compensation is paid to persons wholly dependent. If there is no one wholly dependent and more than one person partly dependent, the compensation shall be di- vided among them according to the relative extent of their dependency. "§ 8. Dependents — how determined. No person shall be con- sidered a dependent unless he is a member of the employees family or next of kin, wholly or partly dependent upon the wages, earnings or salary of the employe" for support at the time of the injury." "Art. II, § 14. Deductions from compensation. No savings or insurance of the injured employ^, independent of this act, shall be taken into consideration in determining the com- pensation to be paid hereunder, nor shall benefits derived from any other source than the employer be considered in fixing the compensation under this act * * * } "Art. II, § 15. Compensation — to whom paid. The com- pensation payable under this act in case of the death of the injured employe" shall be paid to his legal representatives; or, if he has no legal representative, to his dependents entitled thereto, or, if he leaves no such dependents, to the person to whom the expenses for the burial and last sickness are due. If the payment is made to the legal representative of the de- ceased employ^, it shall be paid by him to the dependents or other persons entitled thereto under this act. All payments of compensation under this act shall cease upon the death of 1 The remainder of the section contains provisions inflicting a penalty for deducting any such insurance benefit from the compensation due under this act, as am'd by L. 1913, c. 936 and 937. 630 bradbury's workmen's compensation law Texas the employe from a cause other than or not induced by the injury for which he is receiving compensation." "Art. II, § 16. Minors and mentally incompetent. In case an injured employe" is mentally incompetent, or, where death results from the injury, in case any of his dependents entitled to compensation hereunder are mentally incompetent or minors at the tkne when any right, privilege or election accrues to him or them under this act, his conservator, guardian, or next friend may, in his behalf, claim and exercise such right, privilege, or election, and no limitation of time in this act provided shall run so long as such incompetent or minor has no conservator or guardian." TEXAS "Part I, § 8. If death should result from the injury, the association hereinafter created, shall pay to the legal bene- ficiary of the deceased employ6 a weekly payment equal to 60 per cent of his average weekly wages, but not more than fifteen dollars nor less than five dollars a week, for a period of three hundred and sixty weeks from the date of injury; pro- vided, that the compensation herein provided for shall be distributed according to the law providing for the distribu- tion of other property of deceased. "§ 9. If the deceased employe' leaves no legal beneficiaries, or creditors, the association shall pay all expenses incident to his last sickness, and in addition a funeral benefit not to exceed one hundred dollars; provided, where the deceased leaves no beneficiaries as provided herein, but leaves creditors, the association shall be liable to such creditors, for an amount not exceeding the amount that would otherwise have been due beneficiaries, which amount paid shall not exceed amount due such creditor or creditors." "§ 16. In all cases of injury resulting in death, where such injury was received in the course of employment, cause of action shall survive." DEATH BENEFITS 631 Washington WASHINGTON "§ 5. Each workman who shall be injured whether upon the premises or at the plant or, he being in the course of his em- ployment, away from the plant of his employer, or his family or dependents in case of death of the workman, shall receive out of the accident fund compensation in accordance with the following schedule, and, except as in this act otherwise pro- vided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever. " (a) Where death results from the injury the expenses of burial shall be paid in all cases, not to exceed seventy-five dollars ($75) in any case, and " (1) If the workman leaves a widow or invalid widower, a monthly payment of twenty dollars ($20) shall be made throughout the life of the surviving spouse, to cease at the end of the month in which remarriage shall occur; and the surviving spouse shall also receive five dollars ($5) per month for each child of the deceased under the age of sixteen years at time of the occurrence of the injury until such minor child shall reach the age of sixteen years, but the total monthly payment under this paragraph (1) of subdivision (a) shall not exceed thirty-five dollars ($35). Upon remarriage of a widow she shall receive, once and for all, a lump sum equal to twelve times her monthly allowance, viz. : the sum of two hun- dred forty dollars ($240) but the monthly payment for the child or children shall continue as before. "(2) If the workman leaves no wife or husband, but a child or children under the age of sixteen years, a monthly payment of ten dollars ($10) shall be made to each such child until such child shall reach the age of sixteen years, but the total monthly payment shall not exceed thirty-five dollars ($35), and any deficit shall be deducted proportionately among the beneficiaries. "(3) If the workman leaves no widow, widower, or child under the age of sixteen years, but leaves a dependent or de- pendents, a monthly payment shall be made to each depend- ent equal to fifty per cent of the average monthly support 632 bradbury's workmen's compensation law 1 Washington actually received by such dependent from the workman dur- ing the twelve months next preceding the occurrence of the injury, but the total payment to all dependents in any case shall not exceed twenty dollars ($20) per month. If any de- pendent is under the age of sixteen years at the time of the occurrence of the injury, the payment to such dependent shall cease when s^ch dependent shall reach the age of sixteen years. The payment to any dependent shall cease, if and when, under the same circumstances, the necessity creating the dependency would have ceased if the injury had not happened. 1 " If the workman is under the age of twenty-one years and unmarried at the time of his death, the parents or parent of the workman shall receive twenty dollars ($20) per month, for each month after his death, until the time at which he would have arrived at the age of twenty-one years. "(4) In the event a surviving spouse receiving monthly payments shall die, leaving a child or children under the age of sixteen years, the sum he or she shall be receiving on account of such child or children shall be thereafter, until such child shall arrive at the age of sixteen years, paid to the child increased 100 per cent., but the total to all children shall not exceed the sum of thirty-five dollars ($35) per month. (Subdivisions (b), (c), (d), (/), (g) and (h) relate to disability benefits. See Chapter XII. Subdivision (/) relates to reserves. See Chapter XXVIII.) " (£) A husband or wife of an injured workman, living in a state of abandonment for more than one year at the time of the injury or subsequently, shall not be a beneficiary under this act. 1 Under Section 5, Subd. 3 of the Washington Workmen's Compensa- tion Act, awarding to a dependent a monthly payment not exceeding $20 a month, and providing that if the workman is under age and unmarried his parent shall receive that sum each month until he would have reached the age of twenty-one years, it was held that a dependent mother of an employee nineteen years of age when killed, was entitled to $20 a month so long as her dependent condition continued. Boyd v. Pratt, 72 Wash. 306; 130 Pac. Rep. 371. DEATH BENEFITS 633 Washington " (j) If a beneficiary shall reside or remove out of the state the department may, in its discretion, convert any monthly payments provided for such case into a lump sum payment (not in any case to exceed four thousand dollars ($4,000) upon the theory, according to the expectancy of life as fixed by the American Mortality Table, that a monthly payment of twenty dollars ($20) to a person thirty years of age is worth four thousand dollars ($4,000), or, with the consent of the bene- ficiary, for a smaller sum. , " (k) Any court review under this section shall be initiated in the county where the workman resides or resided at the time of the injury, or in which the injury occurred." (As am'd by L. 1918, c. 148, approved and in effect March 21, 1918.) " § 3- * * * Dependent means any of the following named relatives of a workman whose death results from any injury and who leaves surviving no widow, widower, or child under the age of sixteen years, viz.: invalid child over the age of six- teen years, daughter, between sixteen and eighteen years of age, father, mother, grandfather, grandmother, step-father, step-mother, grandson, granddaughter, step-son, step-daugh- ter, brother, sister, half-sister, half-brother, niece, nephew, who, at the time of the accident, are dependent, in whole or in part, for their support upon the earnings of the workman. Except where otherwise provided by treaty, aliens, other than father or mother, not residing within the United States at the time of the accident, are not included. "Beneficiary means a husband, wife, child or dependent of a workman; in whom shall vest a right to receive payment under this act. "Invalid means one who is physically or mentally incapaci- tated from earning." "The word 'child,' as used in this act, includes a post- humous child, a child legally adopted prior to the injury, and an illegitimate child legitimated prior to the injury." 634 bbadbury's workmen's compensation law West Virginia WEST VIRGINIA " § 33. In case the injury causes death within the period of ninety days, the benefits shall be in the amounts and to the persons following: " (1) If there be no parent or dependents, the disbursement from the workmen's compensation fund shall be limited to the expense provided for in sections twenty-seven and twenty- nine. " (2) If the deceased employe" be under the age of twenty- one and unmarried and leave a dependent father or mother, the father, or if there be no father, the mother shall be en- titled to a payment of fifty per cent of the average weekly wage, not exceeding six dollars per week, to continue until the employe" would have been twenty-one years of age. " (3) Dependent, as used in this act, means a widow, in- valid widower, child under the age at which he or she may be lawfully employed in any industry, invalid child over such age, father, mother, grandfather or grandmother, who at the time of the injury causing death is dependent in whole or in part for his or her support upon the earnings of the employe. "(4) If the deceased employe" leave a widow or invalid widower the payment shall be twenty dollars per month until the death or remarriage of such widow or widower; and in addition five dollars per month for each child under the age at which he or she may be lawfully employed in any in- dustry, to be paid until such child reaches such age; pro- vided, that the total payment shall not exceed thirty-five dollars per month. " (5) If the deceased employe" be an adult and there be no widow, widower or child under the age at which he or she may be lawfully employed in any industry, but there are wholly dependent persons at the time of death, the payment shall (except in the case named in clause two of this section) be fifty per cent of the average monthly support actually re- ceived from the employe during the preceding twelve months, and to continue for the remainder of the period between the date of death and six years after the date of injury, and not DEATH BENEFITS 635 West Virginia to amount to more than a maximum of twenty dollars per month. " (6) If there be no widow, widower, or child under the age at which he or she may be lawfully employed in any industry, or dependent persons, but there are partly dependent persons at the time of death, the payment shall be fifty per cent of the average monthly support actually received from the em- ploye during the preceding twelve months, and to continue for such portion of the period of six years after the date of injury as the commission in case may determine, and not to amount to more than a maximum of twenty dollars per month. "§34. The benefits, in case of death, shall be paid to such one or more dependents of the decedent, or to such other per- son, for the benefit of all of the dependents, as may be deter- mined by the commission which may apportion the benefits among the dependents in such manner as it may deem just and equitable. Payment to a dependent subsequent in right may be made if the commission deem proper, and shall oper- ate to discharge all other claims therefor. " §-35. The dependent or person to whom benefits are paid shall apply the same to the use of the several beneficiaries thereof according to their respective claims upon the de- cedent for support, in compliance with the finding and direc- tion of the commission. "§ 36. Notwithstanding anything herein contained, no sum shall be paid to a widow or widower who shall have been living separate and apart from, or have been abandoned by the employ^ for twelve months next preceding the injury, and who shall not have been supported by him or her during such time. But in the event a chancery suit or other action be pending concerning the relations of said widow, or widower to said employ^, then payment shall be made subject to the final adjudication of said suit or action." " § 39. * * * No person shall be excluded as a dependent by reason of being a non-resident alien, and non-resident aliens may be officially represented by the consular officers of the country of which such aliens may be citizens or subjects." 636 bbadbury's workmen's compensation law Wisconsin WISCONSIN 1 "§2394-9. (3) Where death proximately results from the injury and the deceased leaves a person or persons wholly 1 See Wisconsin cases cited in Article B of this Chapter. The husband of the applicant was employed as a night fireman in a saw mill, his duty being to fire a set of four boilers. In an adjoining room there were three boilers tended by one Beckman. Sometime after one o'clock on a rainy morning Beckman missed the deceased and started a search for him. Twenty feet from the boiler room door he found the de- ceased lying on the wet ground at the foot of the platform on which was an electric transformer. An iron poker nine feet long, used for stoking fires, was twisted in the electric wires fourteen feet above the body. The deceased lay at the end of the poker and it was admitted, that he met death by electrocution. There was nothing in the evidence to show any duty required the presence of the deceased at the spot where he met death. It was contended by the employer that death was not proximately caused by accident and that at the time of the death of the deceased he was not performing the duties incidental to his employment. The commission refused compensation on the ground that "compensation is rightly charged against the employer — the industry where the employee is injured by reason of some hazard incidental to his employment. True, the purpose of the law is to relieve not only the injured employee but the family — those dependent upon the employee — and also to prevent a burden falling upon the public. But the law now here indicates that this burden should be placed upon the employer, representing the industry, except where the in- dustry is in some degree responsible for the injury." Anna Schroeder v. Barker & Stewart Lumber Co., Wis. Indus. Com., Nov. 20, 1912. The husband of the applicant was an engineer at the almshouse. He was found dead in a manhole where he had been sent by the chief en- gineer, with instructions to turn off a valve in a steam pipe. His body was found with the chin and both hands resting upon a conduit and electric wires heavily charged with electricity, indicating that he was electrocuted. The employer alleged that the workman had been guilty of wilful mis- conduct. The Commission decided, from the testimony, that the acci- dent proximately caused death, and that there was no wilful misconduct. As the deceased was earning more than $750 a year at the time of his death, compensation was awarded in the sum of $3,000 to be paid in weekly instalments. Mary Hunt v. Milwaukee County, Wis. Indus. Com., Oct. 21, 1912. DEATH BENEFITS 637 Wisconsin dependent upon him for support, the death benefit shall be as follows: " (a) In case the injured employee was permanently totally disabled, a sum equal to four times his average annual earn- ings, but which, when added to the disability indemnity paid and due at the time of death, shall not exceed six times his average annual earnings. "(b) In case the injured employee was not permanently totally disabled, such sum which, when added to the dis- ability indemnity paid and due at the time of his death, shall equal four times his average annual earnings. " (4) If death occurs to an injured employee other than as a proximate result of the accident, before disability indemnity ceases, death benefit shall be as follows: "(a) Where the accident proximately causes permanent total disability, it shall be the same as if the accident had caused death. "(b) Where the accident proximately causes permanent partial disability, liability shall exist for such benefit as shall fairly represent the proportionate extent of the impairment of earning capacity in the employment in which the deceased was working at the time of the accident or other suitable em- ployment, caused by such disability. " (c) In case the deceased employee leaves no one wholly dependent upon him for support, but one or more persons partially dependent therefor, the death benefit shall not exceed four times the amount devoted by deceased, during the year immediately preceding his death, to the support of such de- pendents and shall be apportioned according to the percentage that the amount devoted by the deceased to the support of such person or persons, for the year immediately prior to the accident, bears to the average annual earnings of the de- ceased. " (d) If the deceased employee leaves no person dependent upon him for support, and the accident proximately causes death, the death benefit shall consist of the reasonable ex- pense of his burial, not exceeding one hundred dollars. "(e) Death benefit shall be paid in weekly instalments corresponding in amount to sixty-five per cent of the weekly 638 bbadbtjry's workmen's compensation law Wisconsin earnings of the employee, until otherwise ordered by the com- mission. "§2394-10, subd. 3. The following shall be conclusively presumed to be solely and wholly dependent for support upon a deceased employee: " (a) A wife upon a husband with whom she is living at the time of his death. 1 1 A workman was killed by a car which was accidentally dumped upon him by fellow employees. The widow and son lived in Hungary. The employer contended that the applicant was not living with her husband within the meaning of the compensation act. It appeared that the de- ceased came to this country about 33^ years before his death. He did not return to his wife but kept up a desultory correspondence through friends, neither being able to write. He also sent her money. It appeared that he sent her $21 shortly before his death. It was held that the hus- band and wife were to be considered as living together even though they might be separated by a great distance; that they were living together and not living apart when there was neither legal nor actual separation in the bonds of matrimony. The Commission, therefore, awarded the widow four times the annual earnings of the deceased to be paid in monthly in- stalments. Jelena Nevadjic v. Northwestern Iron Co., Dec. Wis. Indus. Com., June 14, 1912; aff'd by the Supreme Court of Wisconsin; North- western Iron Co. v. Industrial Commission of Wis., 000 Wis. 000; 142 N. W. Rep. 271. The respondent's husband was killed. The widow resided in Hun- gary. Under a stipulation it was directed that the employer pay $2100 in monthly instalments corresponding to the monthly wages of the de- ceased. Marthias Mueller v. Milwaukee Electric Ry. Co., Wis. Indus. Com., Feb. 15, 1913. The husband of the applicant was employed as an electrician's helper. He fell through a hole in a floor and was killed. He left a widow and two children. His average annual wage exceeded $750. Under a stipulation the employer was directed to pay $3,000 in instalments of $31.25 every two weeks. Christine Race v. Mitchell Lewis Motor Co., Wis. Indus. Com., Nov. 25, 1912. The applicant's husband was killed while employed as a miner under a stipulation. The employer was directed to pay $2566. in monthly instal- ments corresponding to the monthly wages of the deceased. Sofia Cokrala v. Montreal Mining Co., Wis. Indus. Com., Jan 30, 1913. The husband of an applicant fell from a purifying box and died from his injuries. Without dispute the employer consented to an order to pay DEATH BENEFITS 639 Wisconsin " (b) A husband upon a wife with whom he is living at the time of her death. " (c) A child or children under the age of eighteen years (or over said age, but physically or mentally incapacitated from earning), upon the parent with whom he or they are living at the time of the death of such parent, there being no surviving dependent parent. In case there is more than one child thus dependent, the death benefit shall be divided between such dependents in such proportion as may be determined by the commission after considering the ages of such dependents and other facts bearing on such dependency. "In all other cases questions of entire or partial dependency shall be determined in accordance with the fact, 1 as the fact $3,000 in semi-monthly payments of $31.25. Jane Tanner v. Milwaukee Gas Light Co., Wis. Indus. Com., Feb. 19, 1912. The applicant's husband while building a barn fell from the roof and was killed. The only question involved related to the annual wage, which the evidence showed as amounting to $525. The employer was therefore directed to pay to the widow the sum of $2115, in quarterly payments. Millie Nelson v. LaCrosse County, Wis. Indus. Com., Feb. 13, 1912. In the case of another employee killed in the same accident it was found that his annual earnings were $650, and an award of $2600 in quarterly payments was made. Katherine G. Machey v. LaCrosse County, Wis. Indus. Com., Feb. 13, 1912. 1 The applicant's son, a forest ranger, was killed by a falling tree. It was shown that the applicant owned considerable property, conducted a little curio store and received a Government pension of $12. a month. It was customary for her son to turn over to her his monthly salary of $75. Her annual income from all other sources was $259. a year. The Com- mission determined that it cost the applicant $500 a year to live and that the son's contribution to this cost was the difference between $500 and $259 or in other words, the sum of $241. The award was that the em- ployer pay $960 in monthly instalments. Alvina Dougherty v. State of Wisconsin, Wis. Indus. Com., June 14, 1912. The applicant's son, who was twenty years of age at the time of his death, was killed by a falling tree. He had been employed as a sawyer at $30 a month and board. It appeared that the father, who was an ap- plicant for compensation, owned a farm and that of the sum of $550 a year earned by the deceased, he had contributed $100 a year to the ap- plicant's support. The Commission made an award that the employer should pay four times $100 in weekly instalments of $10.58 and an addi- 640 bkadbuby's workmen's compensation law Wisconsin may be at the time of the accident to the employee; and in such other cases, if there is more than one person wholly de- pendent, the death benefit shall be divided equally among them, and persons partially dependent, if any, shall receive no part thereof; and if there is more than one person partially dependent, the death benefit shall be divided among them according to the relative extent of their dependency. "4. No person shall be considered a dependent unless a member of the family of the deceased employee, or one who bears to him the relation of husband or widow, or lineal de- scendant, or ancestor, or brother, or sister. "5. Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the accident to the employee, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change in conditions; and the death benefit shall be directly recoverable by and payable to the dependent or dependents entitled thereto or their legal guardians or trustees; provided that in case of the death of a dependent whose right to a death benefit has thus become fixed, so much of the same as is then unpaid shall be recoverable by and payable to his tional sum of $5 for medical expenses. Fetts Pliska v. Hatton Lumber Co., Wis. Indus. Com., June 14, 1912. In the last mentioned case the term "support" was defined to mean necessary food, shelter, clothes, etc. to meet daily necessities of the dependent, the extent of the support to be determined by the amount devoted to those purposes during the year preceding the death of the employee; ■ A son of the applicantwas-empHsyed on a steam shovel crew and suf- fered injuries which caused" death! -His average annual wages amounted to $525. It was found that the Applicant was partially dependent upon the deceased to the extent of $282;84 a year. The employer was directed to pay four times the sum of the annual wages, in weekly instalments of $10.10. Dojak v. St. Paul Minneapolis, & Savlt. Ste. Marie Ry^ Wis. Indus. Com., Jan 24, 1913. The applicants son fell from a bridge upon which he was working and was killed. It was held that the applicant who was the father of the de^ ceased workman was not dependent upon his son's earnings and the em- ployer was ordered to pay funeral expenses of $100. and a doctor's bill of $2.00. Frank A. Wind/elder v. City of Milwaukee, Wis. Indus. Com., December 21, 1911. death benefits 641 Wisconsin personal representatives in gross. No person shall be excluded as a dependent who is a non-resident alien. "6. No dependent of an injured employee shall be deemed, during the life of such employee, a party in interest to any proceeding by him for the enforcement or collection of any claim for compensation, nor as respects the compromise thereof by such employee. 41 CHAPTER XII DISABILITY BENEFITS Page ARTICLE A— Introduction 644 Page 1. Classification of dis- ability 644 2. Pain and suffering not compensated 645 3. Computing waiting pe- riod; CONSECUTIVE OR non-consecutive days 646 4. Deducting hospital fees from compensation. . . 646 5. Infant, " probable earn- ings" 646 6. Sundays, holidays and shutdowns occurring in period for which compensation is due . . 647 7. Compensation for one day 647 8. Increased period of dis- ability by failure to follow physicians' in- structions 647 9. Voluntary idleness of workman as tending to prolong disability . 647 10. Reduced earnings owing to general fall in WAGES 648 11. Workmen not entitled to com pensation while in prison 648 12. Dismissal for miscon- duct OF WORKMAN SUF- fering from partial permanent disability 648 13. Vocational diseases; contracted partly in the employment of two employers; APPOR- tioning compensation 649 14. Weekly payments re- quired 649 15. Place of payment of compensation 650 16. State institution; com- pensation PAYMENTS PART OF CURRENT EX- PENSES 650 17. Payment of less than statutory amount as basis of release 650 18. Divorced man paying al- imony is "single" for compensation p u r- POSES 651 ARTICLE B— Permanent Total Disability 651 Page 1. Total incapacity; re- 2. Incapacity to do regular fusal of former em- work 651 ployers to supply work 3. injuries amounting to to injured employe . . . 651 permanent total disa- BILITY 652 642 DISABILITY BENEFITS 643 Contents of chapter Page ARTICLE C — Permanent Partial Disability 653 Page 1. Minimum amount pay- 6. Loss of use of fingers able in all cases of without amputation . . 656 specific indemnity 653 7. injuries to and losses of 2. Under schedule for spe- fingers not other- cific indemnities two wise classified . 656 weeks waiting period 8. loss of toes 658 should not be de- 9. loss of one eye 659 ducted 653 10. One eye so injured that 3. Consecutive and not both cannot be used . 664 concurrent payment 11. complete blindness for temporary disa- caused to eye of bility and specific in- which sight partially demnity 654 destroyed 664 4. loss of several fingers; 12. removal of eye already consecutive payments blind 665 for each, or concur- 13. loss of hand when rent payments for all 655 other hand already 5. Amputation of finger injured 665 when wound healing . 655 14. Injuries to legs 666- ARTICLE D— Temporary Total Disability 667 Page 1. Unsuccessful efforts to 4. Workmen earning same obtain employment. . . 667 wages as before the 2. Waiting for opportune- injury 668 ty to have operation 5. Miscellaneous specific performed at hospital 667 cases in which compen- 3. Heart trouble develop- sation was awarded . . 668 ing after injury 668 ARTICLE E— Temporary Partial Disability 670 Page 1. Ability to do light work after accident need after accident; ex- not equal wages be- aggeration of injury 670 fore injury 672 2. Inability to obtain em- 4. Workmen receiving ployment in district same wages after as where workman lives 671 (or higher than) be- 3. Wages and compensation fore injury 672 644 bradbury's workmen's compensation law Classification of disability Page Page 5. Wages and compensa- 8. Disability made mobe tion in excess of wa- sehious bt illness or ges before accident . . 673 other contributing 6. Clumsiness due to in- cause 674 JURY AS GROUND OF IN- 9. Re-CURRENT ATTACKS OF capacity 674 industrial disease . . . 675 7. Disability by ^disease 10. Miscellaneous injuries accelerated by acci- for which compensa- dent; basis of com- tion awarded 675 pensation 674 ARTICLE F — Miscellaneous Cases 676 Page 1. Double compensation . . 676 benefits to which em- 2. Deducting insurance ployes contribute . . . 677 ARTICLE G — Specific provisions of Various Statutes 678 Page Arizona 678 California. . ; 679 Connecticut 685 Illinois 687 Iowa 691 Kansas 694 Maryland 694 Massachusetts 695 Michigan . . 697 Minnesota 699 Nebraska 701 Nevada 704 New Hampshire 705 New Jersey 706 New York 709 Ohio 712 Oregon , 714 Rhode Island 718 Texas...: , 720 Washington 721 West Virginia 723 Wisconsin 724 ARTICLE A— INTRODUCTION 1. Classification of disability. Disability, or incapacity, may be permanent total, per- manent partial, temporary total, or temporary partial. Very few of the acts attempt to define all the degrees of incapacity or disability. In some of the statutes permanent total disability is defined to mean the loss of both legs or both arms, or both eyes, or any two thereof, such as one DISABILITY BENEFITS 645 Fain and suffering not compensated leg and one arm, etc., or paralysis or other condition per- manently incapacitating the workman from performing any work at any gainful occupation. Some of the statutes provide for payments of specific sums for the loss of a mem- ber. Others leave the question of compensation to depend entirely upon the degree of disability or incapacity in any particular case. Speaking generally in cases of partial disability the com- pensation is based on loss of earning power. Most of the statutes contain some limitation in respect to payments for disability. They usually limit the total amount to be paid in any event as well as the number of weeks, months or years for which the master is liable for compensation in any case of disability. This is not the universal rule, however. The most frequent exceptions are found in cases of total permanent disability. A number of the statutes allow compensation for life when a workman is totally and permanently disabled. 2. Pain and suffering not compensated. The Act does not give compensation in respect of pain and suffering. Where a workman is in receipt of the same amount of wages as he earned before the accident, he cannot recover any compensation until such time as he may become in- capable of earning that amount. Irons v. Davis & Timmins (1899), 80 L. T. 673; 1 W. C. C. 26. An employe 1 employed at a yearly salary, who sustains an injury resulting in temporary disability only, is not entitled to compensation where, in accordance with the terms of his contract, no reduction of salary is made on account of his loss of time. Re A. Costello, Claim No. 4268, Ohio St. Lia. Bd. Awd., May 19, 1913. In the last-mentioned case the Board said: "As the injury to the applicant did not result in any embarrassment of his earning capacity, and as the Act does not contemplate compensation on account of the injury itself or the pain or suffering therefrom, we do not 646 BRADBURY'S WORKMEN'S COMPENSATION LAW Infant, "probable earnings" think the applicant is entitled to an award and his claim will therefore be denied." 3. Computing waiting period; consecutive or non-consec- utive days. The incapacity for two weeks for which compensation is not paid includes either consecutive or non-consecutive days. See Bulletin No. 2, Mass. Indus. Ace. Board, Jan. 1913, p. 9. 4. Deducting hospital fees from compensation. 1 An injured workman was treated at a hospital where the fees were paid by the employers, who claimed that they were entitled to a deduction for the fees so paid. It was held that the payment was clearly a benefit to the workman within the meaning of Schedule I (3), of the British Act and the em- ployers could therefore deduct the fees so paid from the compensation. Suleman v. Owners of the "Ben Lomond" (1909), 2 B. W. C. C. 499. 5. Infant, " probable earnings." Where a minor is injured compensation may be awarded on the theory that he would "probably be earning" higher wages if it were not for the injury. Edwards v. The Alyn Steel Tinplate Co. (1910), 3 B. W. C. C. 141. If a boy eight- een or nineteen years of age, who had recently begun work, and was earning only five or six dollars a week, should lose an arm, it would be a manifest injustice to compensate him on the basis of his present wages, because the loss to him would be much more serious, than it would to a man of fifty. Some of the statutes therefore contain specific pro- 1 Such a question usually could not arise under the statutes of the various States, as they require the employer to furnish medical attention to a limited amount. Of course if the medical fees exceeded the statutory limitation in any case the principle of the case in the text might apply, but this is doubtful. The British Act does not have any provision for medical attention. DISABILITY BENEFITS 647 Voluntary idleness of workman as tending to prolong disability visions on this subject. It is doubtful how far the doctrine of "probable earnings" can be applied without specific statutory authority. 6. Sundays, holidays and shutdowns occurring in period for which compensation is due. The Massachusetts Industrial Accident Board has ruled that compensation should not be deducted for Sundays, holidays or shutdowns which intervene between the fifteenth day after the injury and the time incapacity ceases. Bul- letin No. 2, Mass. Indus. Ace. Bd., Jan. 1913, page 8. 7. Compensation for one day. Where compensation to injured employes is to be paid for a single day the payment shall be computed on the basis of one-sixth of the weekly earnings of such employe. Ruling of Mich. Indus. Ace. Bd., January, 1913. 8. Increased period of disability by failure to follow physi- cians' instructions. 1 Where an emplpye" suffered from eczema caused by acids in the goods which he was required to handle, and refused to follow the instructions of a physician and it appeared that he could have been cured in all probability at a period con- siderably earlier than he actually was cured if he had followed such instructions, it was held that he was entitled to compen- sation only for the period during which he would have been disabled had he followed such instructions. Riker y. Lion- dale Bleach Dye and Print Works, 36 N. J, Law J. 305. 9. Voluntary idleness of workman as tending to prolong disability. The judge, who sat with a medical assessor, came to the conclusion that if the workman had taken proper steps to 1 See Chapter VI, Art. B, paragraph 26, for cases of refusal of work- man to undergo surgical operation. 648 bbadbury's workmen's compensation law Dismissal for misconduct obtain exercise which he ought to have taken more than a year before the hearing, he would have recovered from any disability, and that his present state was due only to want of condition arising from long-continued and unnecessary idleness. Compensation, therefore, was denied. The deci- sion of the County Court judge was sustained on appeal. Upper Forest and Worcester Steel and Tinplate Co. v. Grey (1910), 3 B. W. C. C. 424. 10. Reduced earnings owing to general fall in wages. A workman, who in the course of his employment, met with an accident necessitating the amputation of his right hand, subsequently accepted employment in a different capacity, receiving the same wages he had earned before the accident. Some time later his wages were reduced owing to a general fall in wages, and upon his claim for compensation, it was held that the change in his wages was not attributable to any change in his capacity to earn wages, and therefore he was not entitled to compensation. Merry & Cuninghame v. Black (1909), 46 Scotch L. R. 812; 2 B. W. C. C. 372. 11. Workman not entitled to compensation while in prison. A workman receiving compensation who is sentenced to prison is not entitled to such compensation while in prison. Clayton and Shuttleworth v. Dobbs (1908), 2 B. W. C. C. 488. 12. Dismissal for misconduct of workman suffering from partial permanent disability. By an, accident a workman lost the use of his left eye. His employers, under a registered agreement, made him a weekly payment during incapacity. He resumed work at his former rate of wages, but was subsequently dismissed for alleged misconduct. Gn application by the employers to review the agreement, the County Court judge reduced the weekly payments to one penny, on the ground that the DISABILITY BENEFITS 649 Weekly payments required workman had brought about his own dismissal. On appeal to the Court of Appeal it was held, that although, when a workman employed at an adequate rate of wages, vacates his position by reason of his own misconduct, he is not entitled at once to call upon his employers for compensation, yet one act of misconduct does not necessarily deprive him forever of the right to compensation. W. White and Sons v. Harris (1910), 4 B. W. C. C. 39. A workman who was partially incapacitated by an accident which caused an injury of a permanent nature was employed in another capacity where his wages were higher than they had been before the accident. From this employment he was dismissed by reason of his own misconduct. On pro- ceedings for compensation under the Act it was held that the workman's incapacity was due to his own misconduct and he was not entitled to a substantial award. Upon the con- sent of the employer an award was made of one penny a week for the purpose of allowing the proceedings to stand without being entirely terminated. Hill v. Ocean Coal Co. (1909), 3 B. W. C. C. 29. 13. Vocational diseases; contracted partly in the employ- ment of two employers; apportioning compensation. Where an industrial disease is contracted by a gradual process, and during the twelve months previous to the in- capacity the workman has been employed by two employers in the absence of any special risk or degree of the poison in either employment, the period of employment by each em- ployer is the basis for calculating the proportion of the com- pensation which should be paid by each. Lees v. Waring & Gillow (Ferguson, third party), (1909), 2 B. W. C. C. 474. 14. Weekly payments required. Compensation payments must be made weekly and may not be made biweekly instead of in weekly instalments. Ruling of Mich. Indus. Ace. Bd., October, 1912. 650 bradbury's workmen's compensation law Payment of less than statutory amount as basis of release 15. Place of payment of compensation. The place of payment of compensation is at the place where the person entitled to receive payments resides. The payee must endorse the voucher and sign the receipts attached before the same can be cashed, and the genuine- ness of such signatures is in most cases guaranteed by local banks and business men through whose hands the vouchers pass. Ruling of Mich. Indus. Ace. Bd., January, 1913. A few of the statutes have specific provisions on this sub- ject. 16. State institution; compensation payments part of cur- rent expenses. Where an employe of a State institution is injured in the course of his duties his claim for damages must be paid out of the funds of the Institution by which he is employed, and such disbursement should be included as part of the current expenses of the maintenance of such Institution. Opinion of Attorney General of Michigan, on the application of the Board of State Auditors, in re Michigan School for the Blind, January 22, 1913. 17. Payment of less than statutory amount as basis of release. The ends of two fingers of a workman had been removed and compensation was paid for a certain length of time, after which the insurance company took a general release from the workman who was a foreigner and did not understand the English language although he could write his name and did sign the general release. It appeared that the workman was entitled to greater benefits under the provisions for specific amounts in case of permanent partial disability. It was held that the release had been secured without the workman understanding that it was a release, and therefore was not binding on him, but the court did not determine the question of whether or not the release would have been good DISABILITY BENEFITS 651 Incapacity to do regular work had there been no fraud or misunderstanding. Pabisiz v. Newark Spring Mattress Co., Essex Common Pleas, Feb. 1913; 36 N. J. Law. J. 114. 18. Divorced man paying alimony is " single " for com- pensation purposes. A divorced man paying alimony is construed to be a single man and entitled to benefits as such. First Annual Report Washington Industrial Commission, page 487, based on Ruling of Atty. Gen'l of Washington, May 16, 1912. ARTICLE B— PERMANENT TOTAL DISABILITY 1. Total incapacity; refusal of former employers to sup- ply work to injured employe. A workman with an injury to his knee recovered suffi- ciently to be able to resume work, but his knee was liable to break down at any time, and did in fact break down. After a considerable time, during which he did not receive compensation, he took proceedings, and the County Court judge, on the assumption that his former employers were going to find him work, awarded one penny per week. The former employers refused to find him work and he was un- able to obtain any from anyone else owing to his having had an accident, and to the chance of his breaking down. It was held that he was entitled to full compensation. Thomas v. Fairbairn, Lawson & Co. (1911), 4 B. W. C. C. 195. 2. Incapacity to do regular work. The claim of a seaman for compensation was referred to a oedical referee for report. He certified that the man was fit for light work if he wore a truss, but not fit for work as a seaman, or for lifting. On this certificate the County Court judge awarded compensation on the basis of total incapacity, and this decision was affirmed by the Court of Appeal. Hendricksen v. Owners of Steamship " Swanhilda" (1911), 4 B. W. C. C. 233. 652 bradbuby's workmen's compensation law Injuries amounting to permanent total disability An engine driver in a colliery met with an accident which caused the first finger of his left hand to become permanently stiff. He was paid compensation during the total inca- pacity. Payment was stopped and he brought proceedings resulting in an award* of 7s. 6d. a week on the ground that although his foijiier employment was too dangerous for him to resume, he could do some light work. He tried to obtain light work but failed, and applied to have his com- pensation increased. Compensation was awarded at the rate of £1 a week. His employers then offered him different work but at his old wages. The workman refused this un- less the employers would guarantee him his old wages for whatever work they might put him to. They refused to do this and applied to have the payments terminated on the ground that the man could do his full old work. It was held that the man could do his old work but that it would be dangerous for him to do it and that it was not suitable em- ployment. The court refused to reduce the compensation. Dinnington Main Coal Co. v. Bruins (1912), 5 B. W. C. C. 367. A workman lost two fingers of the right hand while un- loading a vessel and claimed compensation for permanent disability. The evidence showed that no permanent dis- ability as a common laborer could result from the injury and the employer was directed to pay the medical expenses and $7.50 a week for 18 weeks, making $135 in all. Carl Wilken v. Superior Stevedore Co., Wis. Indus. Com. 3. Injuries amounting to permanent total disability. The applicant was a domestic in an insane asylum. While operating an electric power-driven clothes wringer, her hand was caught in the machinery and the arm was broken between the elbow and shoulder, the muscles lacerated and the nerves severed. The arm was left in a stiff condition so that it would not flex more than twenty per cent. She had wrist drop because the nerves controlling the extensor DISABILITY BENEFITS 653 Waiting period not deducted from specific indemnities muscles were severed. At the time of the injury she was earning $18 a month and board, which was less than $375, the minimum considered under the law. The employer had paid $104 as compensation up to the time of the hearing. An award was made that the sum of $1396 be paid in weekly instalments of $4.69. Julia McGill v. Dunn County, Wis. Indus. Com., Oct. 4, 1912. The applicant received injuries which resulted in the amputation of his left leg above the knee and the little finger of his left hand, while the second and third fingers of the left hand were left stiffened. He had been in the employ of the respondent for twelve months and during that time had earned $468. The award, on stipulation was that $400 be paid within ten days, for the purpose of permitting the workman to purchase an artificial leg and that the sum of $5.85 per week be paid until the sum of $1787.73 was paid in all. Nic Oklobezcka v. Northwestern Iron Co., Wis. Indus. Com., Dec. 19, 1912. ARTICLE C— PERMANENT PARTIAL DISABILITY 1. Minimum amount payable in all cases of specific in- demnity. The minimum amount payable under the New Jersey Act is $5 a week in all cases. Therefore, where a workman lost one phalange of a finger and the Act provided that the amount payable for such a loss should be one-half of the amount payable for a finger, the minimum compensation should be $5 a week. Banistar v. Kriger, 36 N. J. Law J., 307; 00 N. J. Law, 000; 85 Atl. Rep. 1027. 2. Under schedule for specific indemnities two weeks waiting period should not be deducted. Under the schedule allowing specific indemnities for cer- tain losses, the first two weeks for which no compensation is allowed except for medical attention should not be deducted from the total number of specific weeks for which compensa- 654 bradbury's workmen's compensation law Consecutive and not concurrent payment tion is allowed. Banistar v. Kriger, 36 N. J. Law J., 307; 00 N. J. Law 000; 85 Atl. Rep. 1027. 3. Consecutive and not concurrent payment for tem- porary disability and specific indemnity. Where a teamster, by reason of the sudden starting of a team, suffered a Bott's fracture of the ankle and it appeared that there would be permanent partial disability, it was held that he was entitled to compensation for the temporary disability for the period of 76 weeks and further compensa- tion for 25 weeks by reason of partial permanent disability. Loughman v. Home Brewing Co., Essex Common Pleas, , 1913; 36 N. J. Law J. 113. An employe had his fingers smashed and some of them were amputated. The injuries produced a temporary dis- ability, partly due to an infection preventing his going to work, and it was held under the New Jersey Act, that com- pensation was properly allowed both under clause (a) con- cerning temporary disability and clause (c) providing for specific amounts in case of permanent partial disability, even though damages would exceed the maximum recover- able under clause (6) of paragraph 11 of § 2 of the Act. Nitram Co. v. Creagh, 00 N. J. Law, 000; 80 Atl. Rep. 435. (Creagh v. Nitram Co., Essex Common Pleas, Sept. 27, 1912, 35 N, J. Law J. 328.) Where a workman receives a specific injury, such as the loss of a foot, entitling him to compensation for 125 weeks and also other injuries, he is entitled to compensation during the time of total disability, and when the total disability ceases to compensation for 125 weeks as a specific indemnity for'the loss of a foot. Limron v. Peremarquette E. Co., Mich. Indus. Ace. Bd., July, 1913. Where an employ^ lost a leg by reason of an accidental injury it was'held that he was entitled to compensation for the time he was actually disabled and also to the specific indemnity for 175 weeks provided for in the statute. DISABILITY BENEFITS 655 Amputation of finger when wound healing Bonalfii v. Hamburg American Line, 36 N. J. Law J., 302. 4. Loss of several fingers ; consecutive payments for each, or concurrent payments for all. Where a workman received injuries to several fingers in the same accident, the total award must be the added amounts for an injury to each finger, as fixed by the statute, not to exceed the amount provided for the loss of a hand, and the weekly payments in such a case do not run con- currently. George W. Helme Co. v. Middlesex Common Pleas, 00 N. J. Law, 000; 87 Atl. Rep. 72. "The Industrial Accident Board has considered the ques- tion as to the manner of payment in case where three fingers are lost by an accident to an employe. The conclusion reached by the Board is that the rate of payment in such a case shall be one-half of the weekly wages of such employe, and that the number of weeks for which such weekly pay- ments shall continue is to be determined by the number of fingers and the schedule of compensation for the particular fingers lost. There is no provision of law by which more than ten dollars per week could be paid. This fact would make unworkable the theory that weekly payments for each finger should be made each week, continuing until the claims for the less valuable fingers drop-out of the account and until the most valuable is finally paid for. The same rule would apply in cases of toes or other digits or members." Ruling of Mich. Indus. Ace. Bd., October, 1912. 5. Amputation of finger when wound healing. A workman received compensation for temporary total disability for a number of weeks when he had the finger which was injured amputated. The employer denied lia- bility on the ground that the finger was healing and the amputation was not necessary. The board granted the work- man $10 a week for 29 weeks. Beech v. Packard Motor Co., 656 BRADBURY'S WORKMEN'S COMPENSATION ]^AW Injuries to and losses of fingers not otherwise classified Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at page 418. 6. Loss of use of fingers without amputation. An employe sustained injuries resulting in total disability for ten weeks and as a result of the injury two fingers became permanently stiffened. It was held that such injury had caused a loss to the workman of one-half the use of such fingers and was equivalent to the loss of such fingers whether amputated or not. It was further held that the real test was not the question of whether or not the surgeon cut off the finger, but whether or not the injured person was de- prived permanently of the use of the finger, even though it was not amputated. Compensation was therefore awarded at the same rate allowed for the loss of one-half of each of the fingers. Rider v. C. H. Little Co., Mich. Indus. Ace. Bd., April, 1913. A workman while operating a saw injured the second finger of his right hand by reason of which he lost the per- manent use of the first phalange, although amputation was not necessary. It was held that the loss of the use of the phalange amounted to loss of that portion of the finger as if it had been amputated, and compensation was awarded amounting to fifty per cent of the workman's average weekly wages for a period of fifteen weeks. Saleska v. Rikard Lum- ber Co., Dec. of Mich. Arbitration Committee, Jan. 6, 1913. 7. Injuries to and losses of fingers not otherwise classified. A workman's little finger was caught by a chain while fastening the chain around a load at the plant of his em- ployer. The finger was amputated at the first joint. Com- pensation was awarded at the rate of fifty per cent of the average weekly wages for the period of 17J^ weeks. Radic v. American Car and Foundry Co., Dec. of Mich. Arbitra- tion Committee, December 18, 1912. The applicant for compensation was operating a punch DISABILITY BENEFITS 657 Injuries to and losses of fingers not otherwise classified press. The employer alleged that the workman neglected to remove his hands from the work he had placed in the press before putting his foot upon the trip. The end of the index finger on the right hand and the end of the thumb on the same hand were crushed at about the middle of the first joint. Compensation was awarded at fifty per cent of the workman's average weekly wages for a period of 13 weeks. Webber v. Kales Haskel Co., Dec. of Mich. Arbitration Com- mittee, Dec. 19, 1912. The applicant sustained injury on a punch press which necessitated amputation of the right index finger between the first and second joints. At the time of the injury his wages amounted to $12 a week and he was totally disabled for five weeks. The testimony showed that he might have returned to work at the end of that time without loss of earning power. The employer had furnished medical attendance and had paid $62.40 as compensation. The application for further compensation, however, was dis- missed. John O'Hare v. Badger Brass Mfg. Co., Wis. Indus. Com., Jan. 23, 1913. The applicant who was employed as a general helper held a team of horses during the owner's absence. One of the horses kicked his left hand, necessitating the amputation of the little finger. Prior to the date of hearing the employer had paid $105 as compensation and $130 as medical expenses. It was held that the employer should be compelled to pay $88.40 as additional compensation to the date of the hear- ing. Allen Harris v. City of Milwaukee, Wis. Indus. Com., Sept. 14, 1912. A workman lost three fingers of the right hand while employed as a fireman and oiler at annual wages of $612. He was totally disabled for nine weeks when he returned to work at the same wages. The employer had paid compensa- tion and medical expenses. The workman claimed per- manent partial disability. The commission dismissed the application without further compensation. Harry Lewan- 42 658 bbadbury's wobkmen's compensation law Loss of toes dowski v. Illinois Steel Co., Wis. Indus. Com., Oct. 2, 1912. An applicant lost the tips of the thumb, index and second fingers, which were removed below the first joints, as a result of an explosion of a dynamite cap from which he was en- deavoring to pick the contents for the purpose of forming a nipple for his mine lamp. The employer denied liability on the ground that nipples were supplied to the men at a nominal cost, that the applicant had no right to have a dynamite cap in his possession, and that the act constituted wilful misconduct. The board, however, held in favor of the workman and granted compensation for 92J^ weeks. Mac- ieza v. Mass Consolidated Mining Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, page 417. A workman applying for work was asked if he understood the use of saws, to which he replied that he did, and he was put to work without any agreement as to the amount of wages which he was to receive. On the same day that he started to work he was injured by one of the saws. It was held that the workman was entitled to compensation of at least the minimum amount specified in the statute of $5 a week, for the number of weeks specified in the act for the loss of a thumb and the partial loss of the use of the first finger and the loss of the use of the fourth finger. Mueller v. Oelkers Mfg. Co., (Essex Common Pleas, February, 1913) ; 36 N. J. Law J. 117. 8. Loss of toes. A workman received injuries to his right foot when a man- hole cover slipped from his hands. As a result of the injury it was necessary to amputate the great toe at the proximal joint and the second toe at the distal joint. The Commission found that the workman would be totally disabled for twenty- four weeks. At the time of the accident he was earning $2 a day. The award was that the employer pay $7.50 a week for eight weeks in addition to the medical expense which the employer had paid for sixteen weeks. Reinhold DISABILITY BENEFITS 659 Loss of one eye Klalt v. Milwaukee Electric By. & Light Co., Wis. Indus. Com., April 22, 1913. 9. Loss of one eye. The employer of a workman who had lost an eye, and who had been in receipt, first of full, and subsequently of partial compensation, having proposed to terminate the weekly payments, a mutual submission was made to a medical referee under Schedule I (15). The medical referee having reported that the workman was "as fit as any other one-eyed man" to resume work underground, his employers applied to end the compensation as from the date of the medical referee's report. It was held that the miner should be permitted to present proof showing that his wage-earning capacity was not as great in his present condition as it would have been if he had the use of both eyes. Arnott v. Fife Coal Co. (1911), 48 Scotch L. R. 828; 4 B. W. C. C. 361. A miner lost one eye by an accident. The medical referee to whom the matter had been referred, reported that he was fit for work. The employer thereupon made application to have the compensation ended or diminished. At the hearing the workman maintained that since the date of the referee's examination he had lost the use of his other eye owing to the accident, and that he was unfit for his work. The arbitrator found that the miner was totally incapacitated, but that it was not proved that his blindness in the second eye was due to the effects of the accident, and held that the onus of prov- ing that the supervening incapacity was due to the accident lay upon the miner. The arbitrator diminished the pay- ments. It was held that the onus was upon the miner and had not been discharged. M'Ghee v. Summerlee Iron Co. (1911), 48 Scotch L. R. 807; 4 B. W. C. C. 424. Where a miner in the course of his employment received an injury which made his right eye almost useless and his left eye was already of little use by reason of a disease com- mon to miners. The court below held that the miner had 660 bradbury's workmen's compensation law Loss of one eye recovered, so far as he ever would without an operation, and that his present incapacity was not due to the accident. The appellate court reversed the judgment and remitted the case for the assessment of compensation. Lee v. William Baird& Co. (1908), 45 Scotch L. R. 717; 1 B. W. C. C. 34. A workman lost the sight of one eye. After the wound healed work of a^somewhat different nature was offered to him by his employers, which work he refused, on the ground that it involved risk to the remaining eye. There was evi- dence that the work involved no more risk to a one-eyed man than to a two-eyed man. It was held that the work offered was suitable and compensation was refused. Elliott v. Curry & Dodd (1912) 46 Ir. L. T. 72; 5 B. W. C. C. 584. A boiler maker lost his eye by accident, and upon the healing of the wound he returned to work with his old em- ployers, at the same rate of wages. Subsequently he was discharged, on the ground of misconduct, it being alleged that he was asleep at work. The man tried to get similar employment elsewhere but failed. At the time of his return to work an award of nominal compensation was made. Upon an application to have the award increased, it was found that the man was, by the loss of his eye, unable to obtain work as a boiler maker and was put in the position of a casual laborer, and that therefore he was entitled to com- pensation. Brown v. /. /. Thornycroft & Co. (1912), 5 B. W. C. C. 386. As a result of an accident years ago a workman was blind in one eye, but to all appearances had two good eyes. His employer did not know of his infirmity. He was fully capable of work. As a result of a new accident the blind eye had to be removed and he could no longer conceal his infirmity. On recovery from the effects of the operation he was unable, owing to his now patent infirmity, to obtain work either from the old employers or from anyone else. It was held by the House of Lords that "incapacity for work" includes inability to get work; that although after the second DISABILITY BENEFITS 661 Loss of one eye accident the workman was physically as well able to do his old work as before, the disfigurement caused by the accident preventing him from obtaining such work, was incapacity for work within the meaning of the Act. Ball v. William Hunt & Sons (1912), 5 B. W. C. C. 459. The term "partial disability" as used in § 8, subd. 2 (b) of the Roseberry (Cal.) Act was held not to be restricted to physical incapacity merely, but included such injuries as circumscribed the area of employment and lessened his wage earning capacity. Christ v. Pacific Telephone and Telegraph Co., Cal. Indus. Ace. Bd., April 25, 1912. In the last- mentioned case a laborer lost an eye and it was held that this circumscribed his area of employment and lessened his wage earning capacity so as to constitute a permanent disability, within the meaning of the Act, and compensation was awarded for the period of total disability and the further sum of 65% of the man's probable weekly loss of wages, computed at $2 a week, for the full period of fifteen years limited by the Act. Christ v. Pacific Telephone and Telegraph Co., Cal. Indus. Ace. Bd., April 25, 1912. It is held that an insurer does not have the right to post- pone the payment of the additional compensation provided for in Part III, § 11 of the Massachusetts Act pending the result of an operation for the restoration of vision to an in- jured eye, and compensation was ordered paid in accordance with this section for a period of fifty weeks, dating from the day of the injury. Bronzetti v. Employers Liability Assur- ance Corporation, Mass. Indus. Ace. Bd. A workman while engaged in shoveling sand in the defend- ant's plant, from an alleyway, in order to avoid an approach- ing team, stepped into a doorway, the door of which swung into the alleyway. The hub of the wagon caught the door and closed it, catching the workman's head between the door and the jamb and inflicting injuries which resulted in partial paralysis and loss of one eye. Compensation was awarded at the rate of five dollars a week for the period of 662 bradbury's workmen's compensation law Loss of one eye one hundred weeks. Megrigian v. Michigan Malleable Iron Co., Dec. of Mich. Arbitration Committee, Jan. 17, 1913. A workman sustained injury which resulted in the loss of his left eye. His average annual earnings were $600. After an exhaustive inquiry the commission decided that the loss of one eye impaired earning capacity to the extent of 15%. An award was therefore made of $150, as compensation for total disability for the period of twenty weeks, and the sum of $30.51 for a period of partial disability and the sum of $1.13 a week thereafter until the expiration of fifteen years from the date of the award. Charles Kuschmann v. Fuller- Warren Co., Wis. Indus. Com., Feb. 27, 1913. Since the above decision was rendered the Wisconsin Act has been amended allowing specific indemnities for injuries of a per- manent character. The applicant lost the left eye as a result of an injury caused by a steel chip which lodged in it while he was em- ployed on a drill press. At the time of the accident he was earning $750 a year. The Commission found that the work- man had suffered a loss of earning power to the extent of 15% and awarded compensation of $58.42 up to the time of the hearing, in addition to $100.75 which had already been paid besides medical attention, and that the employer should thereafter pay the sum of $1.41 a week until the expiration of fifteen years. E. Koenig v. International Harvester Co., Wis. Indus. Com., March 6, 1913. Applicant lost his left eye as the result of an industrial accident while in the employ of the defendant. All nec- essary medical and surgical treatment was furnished by the employer. A glass eye was fitted in and after two weeks he was able to perform physical labor, although it was thought it would take from six months to a year for the remaining eye to adjust itself to the work of both eyes. Applicant's claim for compensation for a permanent partial disability was resisted by the defendant on the ground that he was able to do the same work that he did before the accident, DISABILITY BENEFITS 663 Loss of one eye and that therefore it could not be said that he had suffered a permanent disability within the meaning of the Act. Held that it was a permanent disability within the terms of the law, and that the employer's willingness to give employment at the same wage as earned before the accident does not change the general rule. The sum of $20.80 was awarded for the period of total disability, and the sum of $1.56 per week was awarded for the fifteen-year period fixed by the Act. Subsequently the applicant took an appeal to the Superior Court of Kern County, California, believing that he was entitled to a larger award than that granted by the Industrial Accident Board. The review in the higher Court is still pending. Legee v. Lacy Manufacturing Co., Cal. Indus. Ace. Bd., July 28, 1913. Applicant was injured by the explosion of dynamite caps while in the employ of defendant. Particles of metal were driven into his flesh, and the sight of his right eye destroyed. Medical and surgical attention was furnished by the defend- ant, and full compensation paid for eleven months after the accident. Held that defendant should have notified the applicant of the proposed discontinuance of the monthly payments, in justice to him, and that his claim for another month's full payment was justified by his physical condition. In addition applicant was allowed six months' temporary partial disability, amounting to $3.75 a week, in order to give him a reasonable time during which to train his remain- ing eye to do the work of both eyes, and also because of the blood-shot appearance of the sightless eye, and the effect it would have in obtaining employment, permanent disability would amount to 15% of the daily wage which he was re- ceiving at the time of his injury, and applicant was awarded the sum of $1.83 for 702 consecutive weeks. The total amount of benefit, outside of the medical and surgical atten- tion, will amount to $2,015.91. The decision declared that in earlier cases it was believed the estimates were lower than justice warranted and that it was not considered that pre- 664 bradbury's workmen's compensation law Complete blindness caused to eye of which sight partially destroyed cedents should be unchangeable where equity demanded an increase. Linnell v. North Star Mines Co., Cal. Indus. Ace. Bd., Dec. 11, 1913. Applicant injured his right eye. He had received com- pensation and hospital and medical attention had been fur- nished. His employer required a release from all further liability as a condition precedent to paying $28.20 to the ap- plicant. Held that this release was a receipt and the appli- cant was awarded $28.14 additional compensation. Cianti v. ML Whitney Power Electric Co., Cal. Indus. Ace. Bd., Feb. 7, 1913. 10. One eye so injured that both cannot be used. By reason of an injury to an eye causing the removal of the lens the vision became so blurred and the image so out of alignment with the uninjured eye, that the employe's vision was no better when wearing glasses in the injured eye, than if he were not wearing them. As to the injured eye alone a correcting lens gave him four-tenths of normal vision, but without the correcting lens the vision was only three two- hundredths of normal. It appeared that the use of the two eyes together was impossible even with the correcting lens by reason of the variation in alignment and the additional vision caused by the correcting lens was only available should the employe 1 lose the sound eye. It was held that the employe had only three two-hundredths of normal vision and was entitled to additional compensation provided in • Par£ II, § 11 (b) of the Act. Latak v. Employers Liability Assurance Corporation, Mass. Indus. Ace. Bd. 11. Complete blindness caused to eye of which sight partially destroyed. A workman had received an injury to his eye ten years before, so that sight was partially destroyed, but he had some use of his eye. While in this condition he was struck in the eye by a horse's tail and inflammation set in. The eye was DISABILITY BENEFITS 665 Loss of hand when other hand already injured removed in the hospital. Compensation was awarded on the ground that incapacity for work was caused by the second injury. Martin v. Barnett (1910), 3 B. W. C. C. 146. 12. Removal of eye already blind. As a result of an accident years ago a workman was blind in one eye, but the infirmity was unknown to his employer and he was fully able to work. As a result of a new accident the blind eye had to be removed and the workman could no longer conceal his infirmity. On recovering from the effects of the operation he was entirely unable, owing to the deformity which was now obvious, to obtain work either from his old employer or from anyone else. He claimed that the accident had thus, in effect, incapacitated him for work. The County Court judge held that any incapacity was due to the accident which had blinded the eye years ago and de- cided that the workman was not entitled to compensation. This decision was affirmed by the Court of Appeal. Ball v. William Hunt & Sons (1911), 104 L. T. 327; 4 B. W. C. C. 225. This case was reversed in the House of Lords, but is not yet reported. It was remanded to the County Court to determine the disability. 13. Loss of hand when other hand already injured. Applicant had his right hand torn off above the wrist while in the employ of the defendant. Several months were spent in unprofitable negotiations looking toward a settle- ment. The only questions at issue were the average annual earnings and the probable loss of earning power. Applicant had previously lost the middle fingers of the other hand and suffered the permanent: stiffening of the joints of the remain- ing fingers. Held that it was well settled law that whoever takes a crippled employe into his employ takes him subject to his crippled condition. The compensation awarded was $272.76 for the temporary total and permanent partial disability during recovery from the injury, and that this 666 beadbury's workmen's compensation law Injuries to legs was to be followed by the payment of $9.50 weekly for 238.3 consecutive weeks, and that the injured man was entitled to a sum equal to three times his average annual earnings, amounting to $2,536.50. In addition there was allowed $100 for medical and surgical treatment. Krznarich v. Crown Columbia Paper Co. and The Employers' Liability Assurance Corporation, Ltft., Cal. Indus. Ace. Bd., Nov. 7, 1913. 14. Injuries to legs. Applicant broke both bones of his left leg. The fracture was a bad one, though not compound, and the bones were reset by manipulation, with the result that, while the ends of the fibula united properly, those of the tibia lapped by. Compensation was paid in full for the medical and surgical benefit and compensation up to the time when the defendant offered applicant a position at a lower wage and 65% of the difference between the lower wage and the amount he was receiving at the, time of the injury. This proposition was refused by the applicant. Held that applicant was entitled to compensation as of the time of the injury, and he was awarded a disability indemnity of 20% impairment of the physical machine, based on 10% for impairment and 10% for inability to compete with well men. The total amount awarded was $50.60 in addition to $474.26 already paid, together with the sum of $2.28 per week for 734 consecutive weeks. Gildea v. Natomas Consolidated of California, CaL Indus. Ace. Bd., Nov. 21, 1913. Applicant had been paid the sum of $45.00 as compensa- tion, together with the expense of hospital and medical attendance. He claimed additional compensation for injury to the ligaments and muscles of legs and bruised ankles, sustained during the employment. Held, after examination by medical referees, that applicant was entitled to additional compensation in ths sum of $19.29. Butler v. Pacific Wake- field Co., et al, Cal. Indus. Ace. Bd., Sept. 6, 1913. Applicant fell and fractured his left leg. A dispute arose DISABILITY BENEFITS 667 Waiting for opportunity to have operation performed at hospital over the amount and duration of compensation payable. Held that applicant was entitled to $212.40, less such sum as defendant had paid, said amount to be paid in weekly in- stallments of $7.08, and in addition pay $4.26 a week for sixteen consecutive weeks, until April 30, 1914, at which date, unless ordered by the Industrial Accident Board, all disability indemnities on account of said injury shall cease. Pietrovosky v. Western Meat Co., Cal. Indus. Ace. Bd., Dec. 22, 1913. Applicant lost left foot, between the knee and the ankle. He was engaged in a seasonable occupation, i. e., for a period of time less than a year. The employer had paid the expense of medical attendance and the hospital expenses, together with compensation in the sum of $45.50. Held that appli- cant was entitled to additional compensation of $146.25, accrued to the date of the award and the additional sum of $2700.00, payable in weekly installments of $3.75 each, until the further order of the Board. The controversy was friendly and was started for the purpose of obtaining a ruling as to the exact amount due applicant. Brousset v. Fresno Flume and Lumber Co., Cal. Indus. Ace. Bd., Oct. 9, 1913. ARTICLE D— TEMPORARY TOTAL DISABILITY 1. Unsuccessful efforts to obtain employment. If a man has unsuccessfully made reasonable bona fide efforts to obtain employment at work which he is physically capable of performing he is not able to earn anything. Clark v. Gas Light & Coke Co. (1905), 7 W. C. C. 119; Ball v. Wil- liam Hunt & Sons (1912), 5 B. W. C. C. 459. 2. Waiting for opportunity to have operation performed at hospital. Where a miner ruptured himself, and on the advice of a doctor did no work while he was waiting for an opportunity to have an operation performed in the hospital, it was held bbadbury's workmen's compensation law Miscellaneous specific cases in which compensation was awarded that he was entitled to compensation during the time he was waiting for a bed, as his conduct in this respect was reason- able, and was based upon the advice of his physician. Evans v. Cory Bros. & Co. (1912), 5 B. W. C. C. 272. 3. Heart trouble developing after injury. A common laborer received a small fracture of the right ninth rib when caught between a wall and a wagon which he and several others were pushing. He continued working until the end of the day, which was about four hours. After disability of six weeks he was discharged as cured of the injury, the treatment having been given by the workmen's physician. Compensation in the amount of $55.62 was also paid. During the workman's disability he developed heart trouble (myro carditis) and he claimed that this was caused by the accident. The Commission found that heart trouble was not the proximate result of the accident and refused further compensation. Simon Derbeck v. Pfister & Vogel Leather Co., Wis. Indus. Com., May 18, 1912. 4. Workmen earning same wages as before the injury. An applicant had sustained a fracture of the right leg, the left wrist and the small bone in the right shoulder. He re- ceived compensation at the rate of $10 per week until he returned to work. When the compensation was discontinued he applied for specific indemnity, on the ground that he was permanently crippled. The application was denied, on the ground that the workman was now receiving the same wages as he did before the accident. Payne v. Riverside Scrap Iron and Metal Co., Mich. Indus. Ace. Bd., October 15, 1913; The Indicator, October 20, 1913, at page 417. 6. Miscellaneous specific cases in which compensation was awarded. A workman sustained a hernia while lifting a heavy piece of iron off a lathe. Compensation was awarded of $7.46 per DISABILITY BENEFITS 669 Miscellaneous specific cases in which compensation was awarded week for the period of total disability not to exceed five hundred weeks. Capitol Brass Works v. Holle, Dec. of Mich. Arbitration Committee, February 1, 1913. While moving an old sewer pipe a workman cut the ten- dons of his left arm just above the wrist. He resumed work at the same wages after the actual disability ceased. The employer was directed to pay $91.91, being 65% of the wages for 14 weeks, and also medical expenses amounting to $25.75. Anton Bier v. City of Janesville, Wis. Indus. Com., Feb. 15, 1912. A workman engaged in a gravel pit suffered disability through a slide of gravel. Compensation was awarded for seventeen weeks, amounting to $95.54, together with $193.58 as medical expenses. George Edminster v. Waupaca County, Wis. Indus. Com., May 4, 1912. Another workman was injured in the same accident and it appeared that his earnings had been reduced by one-half for four, weeks. Compensation was awarded to him in the sum of $67.12, and the sum of $47. for medical expenses. August Popke v. Waupaca County, Wis. Indus. Com., May 4, 1912. A workman stepped on a hot bar of iron and received in- juries which caused disability for twenty-seven weeks, when he resumed work at his former wages. His weekly wages before the accident were $13.67. The employer paid all medical expenses and full compensation under the act for the time of the disability. The workman claimed continued disability and demanded further compensation. Two sur- geons testified that he had entirely recovered. The Com- mission awarded further compensation in the sum of $17.78, as 65% of the weekly wages for two additional weeks. Brzotek v. Illinois Steel Co., Wis. Indus. Com., July 22, 1912. The applicant sustained injuries to his foot and was dis- abled for twenty weeks and five days. His average weekly wages amounted to $14.42. The charges for medical atten- tion were paid and compensation for 13 weeks. The em- 670 bradbuky's workmen's compensation law Ability to do light work after accident; exaggeration of injury ployer was directed to pay additional compensation amount- ing to $74.96. Superior Terminal Elevator Co. v. F. A. Ball, Wis. Indus. Com., Feb. 24, 1913. A workman fell down a stairway and sustained injuries which resulted in an immediate attack of appendicitis. Dis- interested physicians testified as to the possibility of such an attack following an injury. The workman's average weekly wages amounted to $13.81. He incurred expenses of $186.80 for medical and surgieal treatment and a hospital bill of $36.80. The Commission directed that the employer pay the medical expenses and compensation in the sum of $71.84 for the period of disability. Harry Harris v. Milwaukee Dustless Brush Co., Wis. Indus. Com., March 12, 1913. ARTICLE E— TEMPORARY PARTIAL DISABILITY 1. Ability to do light work after accident; exaggeration of injury. A workman was injured in a colliery and drew compensa- tion for about four years. It was then alleged he was fit for light work, but he said he could not do it on account of pain. The arbitrator found, as a fact, that the workman was exaggerating and that he could do light work. It was held that there was evidence upon which the arbitrator could so find. Price v. Burnyeat, Brown & Co. (1907), 2 B. W. C. C. 337. Applicant injured his right leg while in the employ of defendant. X-ray plates failed to show any injury to the bone and that there was no abrasion of the skin, although the flesh was considerably bruised. At no time was applicant forced to take to his bed or to use a crutch or cane in loco- motion. Three weeks after the injury he was offered light work, but refused. While the law considers the accident as of the time of disability, yet it was considered proper to take into consideration the declination to work in determining the amount of compensation due. Applicant pretended that DISABILITY BENEFITS 671 Inability to obtain employemnt in district where workman lives he was seriously injured and despite expert medical testi- mony. Held that the case belongs to that class of malinger- ing or simulation which causes very great suffering to those who are skeptical in regards to the merits of compensation as a system for dealing with industrial injuries. Further held that such cases are to compensation what arson is to fire insurance and fraud to life insurance. The award for applicant for temporary injury was $24.43, but defendant had paid $38.10, and consequently applicant received noth- ing in addition to the amount already paid. Goncalves v. Standard Oil Co., Cal. Indus. Ace. Bd., May 29, 1913. Applicant was employed as a common laborer on the docks at Superior. While he was storing bags of wool in the hold of the boat, he was struck by one of the bags weighing 330 pounds. Through a misunderstanding he was not examined by a physician until three weeks after the accident when it was found that he had a fever and some affection of the left lung. After this examination he tried to return to his former work but was unable to stand it and later he secured employ- ment picking cranberries at $2.25 a day. He continued this work to the time of the hearing. A medical examination initiated by the commission showed the workman to be suffering from pleurisy and that he could not continue the work of a stevedore. At the time of the accident the appli- cant was earning $14.42 a week. He was totally disabled for five weeks and it appeared from the evidence that partial disability would continue for twenty weeks. His weekly loss of earning capacity amounted to $1.44. The award was the sum of $65.65. John Maki v. Superior Stevedore Co., Wis. Indus. Com., Dec. 10, 1912. 2. Inability to obtain employment in district where work- man lives. Employers of a workman who was partially incapacitated by accident, gave him light work to do, and under an agree- ment received certain compensation. Eighteen months later 672 bradbury's workmen's compensation law Workman receiving same wages after as (or higher than)before injury the workman was dismissed with others, owing to a reduction of force. The man was unable, on account of his partial incapacity to find work in the district and applied for a review of the award of compensation. It was held by the House of Lords that as "incapacity for work" includes in- ability to obtain employment in the district where the work- man lives, and Itfie occurrence of this inability to obtain work was such a change of circumstances that it entitled the work- man to a review. McDonald or Duris v. Wilson's & Clyde Coal Co. (1912) 5 B. W. C. C. 478. 3. Wages and compensation after accident need not equal wages before injury. An injured workman who had previously earned 32s. 6d. per week, earned 25s. per week after the accident. He claimed 7s. Gd. per week, and the judge awarded him 3s. 9d. He appealed. It was held that there was no misdirection and the judge was not compelled to give the full difference between the earnings before and after the accident. Hum- phreys v. City of London Electric Lighting Co. (1911), 4 B. W. C. C.275. 4. Workman receiving same wages after as (or higher than) before injury. If a workman earns after the accident the same amount of wages as he had previously earned, he is not at that time entitled to receive compensation. In such a case the work- man is entitled to an award fixing the employer with lia- bility, but the assessment of compensation may be ad- journed until such time as the workman suffers loss through disability. Chandler v. Smith & Son (1899), 1 W. C. C. 19. Where a workman is able to earn a greater sum after the injury than he was before it happened, no compensation should be awarded. In such a case it is proper to record a declaration of liability should the injury result at a later date in causing disability. Hains & Strange v. Corbet (1912), 5 B. W. C. C. 372. DISABILITY BENEFITS 673 Wages and compensation in excess of wages before accident The purpose of the workmen's compensation act being to compensate an injured employe 1 for the impairment of his earning capacity and not to compensate him for pain, suffering, disfigurement, etc., a workman who receives an injury in the course of his employment resulting in tempor- ary disability, and who enters other employment 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 com- pensation after engaging in such latter employment, even though he was not at that time able to resume the employ- ment in which he was engaged at the time of his injury. Re David Burns, Claim No. 3, Ohio Indus. Ace. Bd., May 22, 1912. An unskilled workman who is able to do other work than that which he was doing before he was injured, is not en- titled to compensation merely because he is unable to do such former work. Cammell, Laird & Co. v. Piatt (1908), 2 B. W. C. C. 368. ' The Wisconsin Act, granting to an employe partially disabled a percentage of his weekly earnings, representing the proportionate impairment of earning capacity in the employment in which he was engaged when injured, was held to authorize an allowance of the statutory amount without deduction of such sums as the employe might be able to earn in other employments. Mellen Lumber Co. v. Indus. Com. of Wis., 000 Wis. 000; 142 N. W. Rep. 187. The statute was amended in 1913 so as to award compensation only when the employ^ was disabled for work in any employ- ment. 5. Wages and compensation in excess of wages before accident. Where an injured workman to whom compensation is being paid secures other employment whereby his wages and compensation exceed his wages before the injury the compensation should be reduced so he shares the loss with 43 674 Bradbury's Workmen's compensation law Disability made more serious by illness or other contributing cause his employer. Anley's Executors v. Neale (1907), 9 W. C. C. 34. 6. Clumsiness due to injury as ground of incapacity. A waitress had an injury to her finger, which, becoming stiff, prevented her from working as efficiently as before. She received compensation for some time, and then returned to her old work at her old wages. She could not work as well as she did before, and her employers complained of her clumsiness. She left this work of her own accord, and, with- out any attempt to find other work, claimed compensation. The County Court judge found that she could not work as well as before, and that she was therefore partially incapac- itated, and he awarded her compensation. It was held on appeal that there was evidence to support this finding. Ward v. Miles (1911), 4 B. W. C. C. 182. 7. Disability by disease accelerated by accident; basis of compensation. Where it is proved that apart from accident a disease would have caused incapacity for work on a given day in the future, and that an accident has accelerated the progress of the disease so as to cause present incapacity, the award should limit the time during which compensation is to be paid to the period during which incapacity is caused by the acceleration of the progress of the disease. Ward v. London and North Western Ry. Co. (1901), 3 W. C. C. 192. 8. Disability made more serious by illness or other con- tributing cause. Where the accidental injury causes disability the injured employe 1 is entitled to compensation even though the dis- ability is made more serious by reason of illness or other contributing cause, but the compensation awarded is to be measured by the disability directly traceable to the accident and when such disability ceases the compensation terminates, DISABILITY BENEFITS 675 Miscellaneous injuries for which compensation awarded although the injured person may be still disabled by the illness or some other cause wholly unrelated to the accident. Mack v. Pacific Telephone and Telegraph Co., Cal. Indus. Ace. Bd. 9. Re-current attacks of industrial disease. Where a workman had had two attacks of an industrial disease but after recovery from the second one his employers refused to continue the employment on account of a likeli- hood of an occurrence of the disease, it was found that there was no evidence that the man's tendency to the disease was due to his previous attacks as opposed to his natural tend- ency to this disease, and that therefore there was no evi- dence that his incapacity resulted from having had the attack of disease when at work, and compensation was refused. Jones v. New Brynmally Colliery Co. (1912), 5 B. W. C. C. 375. In the last mentioned case the court distinguished the case of Thomas v. Fairbairn, Lawson & Co. (1911), 4 B. W. C. C. 195. 10. Miscellaneous injuries for which compensation awarded. A workman was injured on a punch press and lost the index finger of his right hand at the distal joint. The com- mission found that the applicant had been totally disabled for four weeks and partially disabled thereafter for six weeks, and that at the end of this period he was able to resume work without decrease of wages. Compensation was awarded in the sum of $30 for total disability and $22.50 for partial disability. William Dvorak v. Stamping & Tool Co., Wis. Indus. Com., March 5, 1913. Compensation was granted where it appeared that the workman had suffered "severe straining of lumbar muscles and bruising of the third and fourth vertebrae." Gross v. Marshall Butters Lumber Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at page 417. 676 Bradbury's workmen's compensation law Double compensation The applicant, a metal polisher, received injuries to the back of his right hand by coming in contact with an emery wheel. A physician named by the Commission to make an examination reported that the workman could resume work 22 weeks after the date of the accident. The employer had paid compensation for a period of 7 weeks, when the work- man resumed work in another department of the employer's plant. At the time of the accident he was earning $3.80 a day, while in the new employment he earned $3 a day. The commission held that the employer should pay to the appli- cant $3.12 a week until the period of partial disability ended, the amount being based upon 65% of the loss of earnings. Richard Stegman v. Harley-Davidson Motor Co., Wis. Indus. Com., Apr. 22, 1913. The applicant sustained injury while operating a punch press, necessitating disability period of twenty-two weeks and permanent partial disability thereafter. At the time of the accident his average annual wages were $750. Compen- sation was awarded by stipulation, amounting to $581.80 besides medical expenses. Re John Liggett v. Thomas B. Jvjfery Co., Dec. Wis. Indus. Com., Jan. 23, 1913. ARTICLE F— MISCELLANEOUS CASES 1. Double compensation. Where an employe was injured by reason of serious and wilful misconduct of a person exercising superintendence in that the employe was required to operate a machine which was known to be in a dangerous condition, it was held that this was such wilful misconduct on the part of the em- ployer as entitled the employe to double compensation within the meaning of Part II, § 3, of the Massachusetts Act. Allen v. Globe Indemnity Co., Mass. Indus. Ace. Bd. An employe was injured by reason of a cave-in. The evidence showed that the upper crust of the sand bank where the employe* was working was cut at regular intervals, this being the only practical way to prevent a cave-in. It DISABILITY BENEFITS 677 Deducting insurance benefits to which employes contribute appeared that it was customary to have men on hand whose duty it was to perform this work and that only through an error in human calculation was the overhanging crust allowed to remain for a sufficient time to cause the injury. It was held that the injury was not due to the serious and wilful misconduct on the part of the employer within the meaning of Part II, § 3 of the Massachusetts Act, and the employe" was not entitled to double compensation. Devine v. Contractors Mutual Liability Ins. Co., Mass. Indus. Ace. Bd. 2. Deducting insurance benefits to which employes con- tribute. In reply to a question whether, if a mutual insurance association was maintained in an establishment to which the employes contributed a certain percentage, what benefits would accrue to the employes under the Compensation Act, the Board replied as follows: "It is the present opinion of the Industrial Accident Board that the employes would be entitled to the full benefit under the compensation law in addition to all they may receive through a mutual company. Part II, § 13. 'No savings or insurance of the injured em- ploy^, nor any contribution made by him to any benefit fund or protective association independent of this act shall be taken into consideration in determining the compensation to be paid hereinunder, nor shall benefits derived through any other source than those paid by the employer as herein provided be considered in fixing the compensation under this act.'" Mich. Indus. Ace. Bd. Many of the statutes contain specific provisions that no such deductions shall be made. 678 Bradbury's workmen's compensation law Arizona ARTICLE G— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA "§ 72. When an injury is received by a workman engaged in any labor or service specified in the third l section of this chapter, and for which the employer is made liable as specified l. i9i2,2dSes.,in the seventh 2 section hereof, then the measure Art. u, § 8. anc i amount of compensation to be made by the employer to such workman or his personal representative for such injuries, shall be as follows: "§ 1. If the injury' by accident does not result in death within six months from the date of the accident, but does produce or result in total incapacity of the workman for work at any gainful employment for more than two (2) weeks after the accident then the compensation to be made to such work- man by this employer shall be a semi-monthly payment com- mencing from .the date of the accident, and continuing during such total incapacity, of a sum equal to fifty (50) per centum of the workman's average semi-monthly earnings when at work on full time during the preceding year, if he shall have been in the employment of such employer for such length of time; but if not for a full year, then fifty (50) per centum of the average wages, whether semi-monthly, weekly, or daily, being earned by such workman during the time he was at work for his employer before and at the time of the accident. "§ 2. In case (1) the accident does not wholly incapacitate the workman from the same or other gainful employment; or (2) in case the workman, being at first wholly incapacitated, thereafter recovers so as to be able to engage at labor in the same or other gainful employment, thereby earning wages, then in each case the amount of the semi-monthly payment shall be one-half of the difference between the average earn- ings of the workmen at the time of the accident determined as above provided, and the average amount he is earning, or 1 This refers to § 67 of the Act of 1913. It was § 3 of the Act of 1912. 2 This is § 67 of the Act of 1913. It is § 7 of the Act of 1912. DISABILITY BENEFITS 679 California is capable of earning, thereafter, semi-monthly in the same or other employment — it being the intent and purpose of this chapter, that the semi-monthly payments shall not exceed, but equal, from time to time one-half the difference between the amount of average earnings ascertained as aforesaid at the time of the accident, and the average amount which the workman is earning, or is capable of earning, in the same or other employment or otherwise, after the accident and at the time of such semi-monthly payment. Such payments shall cease upon the workman recovering and earning, or being capable of earning, in the same or other gainful employment or otherwise, wages equal to the amount being earned at the time of the accident. "Provided, however, that the payments shall continue to be made as herein determined to the workman so long as incapacity to earn wages in the same or other employment continues, but in no case shall the total amount of such pay- ments as provided in sub-sections 1 and 2 of this section ex- ceed four thousand ($4000.00) Dollars. CALIFORNIA * "§ 15. Where liability for compensation under this act exists such compensation shall be furnished or paid by the employer and be as provided in the following schedule: 1 A number of California cases will be found under their proper classi- fications in the preceding pages. Those which follow arose under special provisions of the California statute or were such as were determined on their peculiar facts and could not well be classified topically. Applicant not subject to the compensation provisions of the law of 1911 because employer had not accepted compensation for thirty days prior to the injury to Brackrog's right eye. Expenses of medical treat- ment were paid by employer. Brackrog v. Macaulay Foundry Co., Cal. Indus. Ace. Bd., Sept. 4, 1913. Applicant was lifting slabs of marble off the ground and injured his 2 The omitted portion refers to medical attention and the waiting period. See Chapters VIII and IX. 680 bradbury's workmen's compensation law California "2. The disability indemnity payable shall be as follows: " (1) If the accident causes temporary total disability, sixty- five per cent of the average weekly earnings during the period of such disability; back. This happened on April 1, 1913. He laid off for twelve days. He then returned to wc$k and continued until May 12, 1913, when he re- linquished his employment as a result of disagreement over wages. On July 19, 1913, he filed his application for unpaid compensation. Held that applicant was entitled to medical and surgical relief, and to com- pensation according to law, for the injury, because it was clearly shown that the employer knew the reason for the lay-off, and had neglected to comply with the provisions of the law after electing so to do. The amount awarded was $6.02, and the costs and expenses of medical treatment and supplies reasonably necessary to cure and relieve applicant from the in- jury. Elli v. Vermont Marble Co., Cal. Indus. Ace. Bd., Aug. 8, 1913. Applicant was a laborer who badly strained his left ankle while in the employ of the defendant. He received prompt treatment and compen- sation for several weeks after the injury. He was then given lighter work. Without presenting any well-defined reason he left the employment. Nearly a year afterward he returned to defendant's employ. A claim was presented for compensation for this period of nearly one year. It was stipulated by both parties that the Industrial Accident Board should determine the nature and extent of any partial disability that might be found to exist for the period named. It was also stipulated that further proceedings be suspended for six months without prejudice to renewal thereof. Held that defendant should pay the sum of $150.68 for 44 5 / 7 ths weeks' partial disability. At the same time emphasis was laid on the fact that compensation does not contemplate or aim at a making-good for all loss sustained by reason of an. injury. Williamson v. Standard Oil Co., Cal. Indus. Ace. Bd., June 26, 1913. In this case applicant had been paid far in excess of the schedule pro- vided by the law for an injury sustained in employment. Full wages had been paid, instead of a 65% rate, and the medical and surgical benefit, amounting to nearly four times the maximum of $100 required under the Act. There was evidently a misunderstanding on the part of the applicant and his attorney as to the law and it was believed that defend- ant was liable in excess of the schedule. Held that there was no ground for the claim, inasmuch as the defendant was paying compensation ac- cording to the law and the disability had not ceased. Freitas v. Alameda Sugar Co., Cal. Indus. Ace. Bd., Nov. 5, 1913. Applicant was injured by the explosion of a dynamite charge, which DISABILITY BENEFITS 681 California "(2) If the accident causes temporary partial disability, sixty-five per cent of the weekly loss in wages during the period of such disability; " (3) If the temporary disability caused by the accident is injured the right leg, five teeth were knocked out and the lower lip badly cut. The employer paid $46.75 for disability indemnity and $166.25 for medical and surgical treatment, whereas there was only due, according to the letter of the law, $20.62 for disability indemnity and $100 for medi- cal and surgical treatment. Applicant asked for $1,200 for permanent in- jury sustained. Held that there was no interference with earning power, and that applicant was not entitled to additional compensation, inas- much as his injuries were slight, according to expert medical testimony. Baker v. ML Shasta Power Co., Cal. Indus. Ace. Bd., May 28, 1913. Applicant was injured in a runaway accident while in the course of employment. He was paid $181.20, but defendant refused further pay- ments because of a claim that disability had ceased. Held that the earn- ing power had been immaterially lessened and could not be taken into consideration, but that defendant had erred in deducting $10.00 per month hospital dues for the three months during which compensation payments were made, unless with the expressed consent of applicant. An additional amount of $30.30 was awarded in compensation payments, making a total of $211.50. Dwyer v. General Petroleum Co., Cal. Indus. Ace, Bd., June 24, 1913. Applicant claimed compensation for an injury alleged to have been sustained during the employment. Held that there was no evidence to justify the claim, for applicant worked several months after the alleged injury, without making any report to the employer, and the evidence showed that the navel hernia of which he complained was very probably due to some other cause than an accident sustained in the employment. Augusto v. Standard Lumber Co., Cal. Indus. Ace. Bd., July 3, 1913. Applicant broke bones of right hand by a fall in a shirt and overall fac- tory. Held that she was entitled to the sum of $15.60 as disability in- demnity for three weeks, and the reasonable costs and expenses incurred by the applicant to cure and relieve her from the effects of the injury. The only point at issue was the nature and extent of the injury, and the decision was reached after the opinion of the medical referee had been secured. Bess v. Broymstein Louis Co., Cal. Indus. Ace. Bd., Sept. 2, 1913. Applicant ran splinters into his hands and broke his nose by running into an electrician's conduit pipe. Defendant denied liability for com- pensation. Held that the applicant was entitled to an award because the 682 bradbtjry's workmen's compensation law California at times total and at times partial, the weekly disability indemnity during the periods of each such total or partial disability shall be in accordance with paragraphs (1) and (2) of this subdivision respectively; accident happened during the employment and was not caused by the wilful misconduct on the applicant's part. The medical and hospital charges amounted to $85, and $26.51 for 1*/, weeks for disability in- demnity. Field v. MacDonald & Kahn, Cal. Indus. Ace. Bd., Dec. 10, 1913. Applicant asked for additional compensation for injury resulting in permanent disability. Full compensation, together with expenses of medical attendance, had been paid for the period of disability, amounting to $554.94. Held that full compensation had been paid the applicant as contemplated by law, and the application was denied, for the reason that the injury to the left thumb was not sufficient to interfere with ap- plicant's earning power. Brady v. Standard Oil Co., Cal. Indus. Ace. Bd., Aug. 4, 1913. This case was dismissed without prejudice, prior to any hearing. The issue involved the question as to whether the applicant was injured while in the course of her employment. She slipped while going down stairs in a house where she was employed as cook arid housekeeper, and the compromise noted above resulted before the Industrial Accident Board was asked to adjudicate the controversy. Thompson v. Standard Oil Co., Cal. Indus. Ace. Bd., July 30, 1913. This case did not come to final hearing because the State Supreme Court decided that the State, Counties and Cities did not come under the compensation provisions of the 1911 law unless they so elected. Nihill v. Board of Supervisors of Santa Clara County, California, Cal. Indus. Ace. Bd. Same ruling. Hannon v. San Francisco Board of Education, Cal. Indus. Acci Bd. This case was dismissed without prejudice, it having been withdrawn by consent. Applicant broke his right arm while in the employ of the defendant and his recovery was very slow. A dispute arose as to the duration of the disability and an additional amount asked for medical and surgical attention, but the compromise noted above was reached. Carter v. Great Western Power Co., Cal. Indus. Ace. Bd., Jan. 13, 1913. This case was dismissed for cause prior to any hearing, the applicant having compromised his claim with the defendant. The controversy arose over the duration of the period of disability for which compensa- tion was due. Vincent v. Natomas Consolidated of California, Cal. Indus. Ace. Bd., Dec. 5, 1913. DISABILITY BENEFITS 683 California " (4) Paragraphs (1), (2) and (3) of this subdivision shall be limited as follows: aggregate disability indemnity for a single injury causing temporary disability shall not exceed three times the average annual earnings of the employee, nor shall the aggregate disability period for such temporary dis- Applicant in this case was the employer who desired to have the lia- bility to defendant specified by the Industrial Accident Board. There was no question about the medical attention, but there was a dispute concerning the amount and duration of compensation payable. De- fendant was poorly advised by a lawyer. Held that he had been paid the Sull compensation for the period of disability and that the loss of the ends and the nails of the little and fourth toes of the left foot would not inter- fere with his earning capacity. Spreckels Bros. Commercial Co. v. Moore, Cal. Indus. Ace. Bd., Oct. 8, 1913. Applicant was the employer and was anxious to have determined by the Industrial Accident Board the issue of probable permanent loss of earning power consequent upon an injury sustained in employment. Unfortunately defendant was badly advised and refused to file an answer or make any appearance before the Board. The accident resulted in the loss of the right arm at the shoulder. Held that his probable earnings after this accident would be half wages. The amount awarded was $196.77, less a nearly equal sum paid by the applicant, for 21 weeks' tem- porary total disability, to be followed by the payment of $4.69 for 437.7 consecutive weeks. The total amount would equal $2,250. The applicant furnished full medical and surgical treatment in excess of the $100 maxi- mum. Mountain Copper Co. v. Bassignani, Cal. Indus. Ace. Bd., Oct. 29, 1913. This is one of the few cases in which an employer filed an application to determine liability. Defendant injured her left hand in the rollers of a mangle. There was no doubt about the permanent nature of the injury, and the only question at issue was the amount of compensation due. There had been paid the defendant for disability indemnity the sum of $470. Held that applicant was liable to the amount of $1,404, less $470 paid on account, and that the weekly payments of $2.92>£ per week for 319.32 consecutive weeks, beginning with August 24, 1914, and to be continued until the balance of $934 has been paid. The attorney for the defendant has filed suit in the Superior Court of the City and County of San Francisco for the sum of $20,000, and has announced his in- tention to test the constitutionality of the Compensation Law of 1911. Sterling Laundry Company v. Smith, Cal. Indus. Ace. Bd,, Dec. 22, 1913. 684 bradbury's workmen's compensation law California ability in any event extend beyond two hundred forty weeks from the date of the accident. " (5) If the accident causes permanent disability, the per- centage of disability to total disability shall be determined and the disability indemnity computed and allowed as fol- lows: for a ten per cent disability, sixty-five per cent of the average weekly earnings for a period of forty weeks; for a twenty per cent disability, sixty-five per cent of the average weekly earnings for a period of eighty weeks; for a thirty per cent disability, sixty-five per cent of the average weekly earnings for a period of one hundred twenty weeks; for a forty per cent disability, sixty-five per cent of the average weekly earnings for a period of one hundred sixty weeks; for a fifty per cent disability, sixty-five per cent or the average weekly earnings for a period of two hundred weeks; for a sixty per cent disability, sixty-five per cent of the average weekly earnings for a period of two hundred forty weeks; for a seventy per cent disability, sixty-five per cent of the average weekly earnings for a period of two hundred forty weeks, and thereafter ten per cent of such weekly earnings during the remainder of life; for an eighty per cent disability, sixty-five per cent of the average weekly earnings for a period of two hundred forty weeks, and thereafter twenty per cent of such weekly earnings during the remainder of life; for a ninety per cent disability, sixty-five per cent of the average weekly earnings for a period of two hundred forty weeks and there- after thirty per cent of such weekly earnings during the re- mainder of life; for a hundred per cent disability, sixty-five per cent of the average weekly earnings for a period of two hundred forty weeks and thereafter forty per cent of such weekly earnings during the remainder of life. " (6) The indemnity for permanent disabilities intermediate to those fixed by the foregoing schedule shall be computed and allowed as follows: if under seventy per cent, sixty- five per cent of the average weekly earnings for four weeks for each one per cent of disability; if seventy per cent or over, sixty-five per cent of the average weekly earnings for two hundred forty weeks and thereafter one per cent of such weekly earnings f cv each one per cent of disability in DISABILITY BENEFITS 685 Connecticut ' excess of sixty per cent to be paid during the remainder of life. "(7) In determining the percentages of permanent dis- ability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured em- ployee and his age at the time of such injury. " (8) Nothing contained in the foregoing schedule of per- manent disability indemnity shall be held to limit the amount of compensation recoverable for any such permanent injury during any period of total incapacity due to illness resulting from that injury, but any sum so received shall be deducted from the compensation payable in accordance with the said schedule. " (9) The following permanent disabilities shall be con- clusively presumed to be total in character: Loss of both eyes or the sight thereof; loss of both hands or the use thereof; an injury resulting in a practically total paralysis; an injury to the brain resulting in incurable imbecility or insanity. In all other cases, permanent total disability shall be determined in accordance with the fact. "3. The death of the injured employee shall not affect the liability of the employer under subsections (a) and (b) of this section, so far as such liability has accrued and become pay- able at the date of the death, and any accrued and unpaid compensation shall be paid to the dependents, if any, without administration, or if there are no dependents, to the personal representatives of the deceased employee or other person entitled thereto, but such death shall be deemed to be the termination of the disability." CONNECTICUT "Part B. § 11. Compensation for Total Incapacity. In case the injury results in total incapacity to perform work of any character, there shall be paid to the injured employee a weekly compensation equal to half of his average weekly earnings at the time of the injury; but the compensation shall in no case be more than ten dollars or less than five dollars weekly; and such compensation shall not continue longer 686 • bradbtjry's workmen's compensation law Connecticut •i than the period of total incapacity, or in any event longer than five hundred and twenty weeks. The following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (a) Total and permanent loss of sight in both eyes; (6) the loss of both feet at or above the ankle; (c) the loss of both hands at or above the wrist; (d) the loss of one foot at or above the ankle and one hand at or above the wrist; (e) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (/) any injury resulting in incurable imbecility or insanity. . " § 12. Compensation, for Partial Incapacity. In case the injury results in partial incapacity, there shall be paid to the injured employee a weekly compensation equal to half the difference between his average weekly earnings before the injury and what he is able to earn thereafter. This compensa- tion shall in no case be more than ten dollars weekly and shall continue during the period of partial incapacity, but not longer than three hundred and .twelve weeks. If the employer procures for an injured employee employment suitable to his capacity the wages offered in such employment shall be taken as the earning capacity of the injured employee. In case of the following injuries the compensation, in lieu of all other payments, shall be half of the previous average weekly earnings of the injured employee for the terms respectively indicated: (a) for the loss of one arm at or above the elbow, or the complete and permanent loss of the use of one arm, two hundred and eight weeks; (6) for the loss of one hand at or above the wrist, or the complete and permanent loss of the use of one hand, one hundred and fifty-six weeks; (c) for the loss of one leg at or above the knee, or the complete and permanent loss of the use of one leg, one hundred and eighty- two weeks; (d) for the loss of one foot at or above the ankle, or the complete and permanent loss of the use of one foot, one hundred and thirty weeks; (e) for the complete and per- manent loss of hearing in both ears, one hundred and fifty-six weeks; (/) for the complete and permanent loss of hearing in one ear, fifty-two weeks; (g) for the complete and permanent loss of sight of one eye, one hundred and four weeks; (h) for DISABILITY BENEFITS 687 Illinois the loss of a thumb, thirty-eight weeks; (i) for the loss of a first finger or a great toe, thirty-eight weeks; (j) for the loss of a second finger, thirty weeks; a third finger, twenty-five weeks; a fourth finger, twenty weeks; (k) for the loss of any toe except the great toe, thirteen weeks. The loss of one phalange of a thumb or two phalanges of a finger shall be considered half the loss of a thumb or finger respectively, and shall be compensated accordingly." For allowance when advance payments are made see Part B, § 14. ILLINOIS " § 8. The amount of compensation which shall be paid to the employee for an injury not resulting in death shall be: * * * * * * * * * * * i " (6) If the period of temporary total incapacity for work lasts for more than six working days, compensation equal to one-half the earnings, but not less than $5.00 nor more than $12.00 per week, beginning on the eighth day of such tem- porary total incapacity, and continuing as long as the tem- porary total incapacity lasts, but not after the amount of compensation paid equals the amount which would have been payable as a death benefit under paragraph (a), section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving as provided in said paragraph (a), section 7. "(c) For any serious and permanent disfigurement to the hands, head or face, the employee shall be entitled to com- pensation for such disfigurement, the amount to be fixed by agreement or by arbitration in accordance with the provi- sions of this Act, which amount shall not exceed one-quarter of the amount of the compensation which would have been payable as a death benefit under paragraph (a), section 7, if the employee had died as a result of the injury at the time 1 Subdivision (a) relates to medical attention. See Chapter IX. 688 bkadbury's workmen's compensation law Illinois thereof, leaving heirs surviving, as provided in said para- graph (a), section 7, provided that no compensation shall be payable under this paragraph where compensation is payable under paragraphs (d), (e), or (/) of this section. " (d) If, after the injury has been sustained, the employee as a result thereof becomes partially, though permanently incapacitated from pursuing his usual and customary line of employment, £e shall, except in the cases covered by the specific schedule set forth in paragraph (e) of this section, receive compensation, subject to the limitations as to time and maximum amounts fixed in paragraphs (6) and (h) of this section, equal to one-half of the difference between the aver- age amount which he earned before the accident, and the average amount which he is earning or is able to earn in some suitable employment or business after the accident. In the event the employee returns to the employment of the em- ployer in whose service he was injured, the employee shall not be barred from asserting a claim for compensation under this Act, provided notice of such claim is filed with the in- dustrial board within eighteen months after he returns to such employment, and the said board shall immediately send to the employer, by registered mail, a copy of such notice. "(e) For injuries in the following schedule, the employee shall receive in addition to compensation during the period of temporary total incapacity for work resulting from such in- jury, in accordance with the provisions of paragraphs (a) and (6) of this section, compensation, for a further period, subject to the limitations as to time and amounts fixed in paragraphs (b) and (h) of this section, for the specific loss herein mentioned, as follows, but shall not receive any com- pensation under any other provision of this Act. "For the loss of a thumb, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during sixty weeks. "For the loss of a first finger, commonly called the index finger, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during thirty-five weeks. "For the loss of a second finger, or the permanent and com- DISABILITY BENEFITS 689 Illinois plete loss of its use, fifty per centum of the average weekly wages during thirty weeks. " For the loss of a third finger, or the permanent and com- plete loss of its use, fifty per centum of the average weekly wage during twenty weeks. "For the loss of a fourth finger, commonly called the little finger, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during fifteen weeks. "The loss of the first phalange of the thumb, or of any finger, shall be considered to be equal to the loss of one-half of such thumb, or finger, and compensation shall be one-half the amounts above specified. " The loss jof more than one phalange shall be considered as the loss of the entire finger or thumb: Provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. "For the loss of a great toe, fifty per centum of the average weekly wage during thirty weeks. "For the loss of one or more of the toes other than the great toe, fifty per centum of the average weekly wage during ten weeks. "The loss of the first phalange of any toe shall be considered to be equal to the loss of one-half of such toe, and compensa- tion shall be one-half of the amount above specified. "The loss of more than one phalange shall be considered as the loss of the entire toe. "For the loss of a hand, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during one hundred and fifty weeks. "For the loss of an arm, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during two hundred weeks. "For the loss of a foot, or the permanent and complete loss of its use, fifty per centum of the average weekly wage during one hundred and twenty-five weeks. "For the loss of a leg, or the permanent and. complete loss of its use, fifty per centum of the average weekly wage during one hundred and seventy-five weeks. 44 690 beadbuky's workmen's compensation law Illinois "For the loss of the sight of an eye, fifty per centum of the average weekly wage during one hundred weeks. "The loss of both hands or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability, to be compensated according to the compensation fixed by paragraph (/) of this section, pro- vided that these specific cases of total and permanent dis- ability shall not be construed as excluding other cases. "(f) In the case of complete disability which renders the employee wholly and permanently incapable of work, com- pensation equal to 50 per cent of his earnings, but not less than $5.00, nor more than $12.00 per week, commencing on the day after the injury and continuing until the amount paid equals the amount which would have been payable as a death benefit under paragraph (a), section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving, as provided in said paragraph (a), section 7, and thereafter a pension during life annually equal to 8 per cent of the amount which would have been payable as a death benefit under paragraph (a), section 7, if the employee had died as a result of the injury at the time thereof, leaving heirs surviving, as provided in said paragraph (a), section 7. Such pension shall not be less than $10.00 per month and shall be payable monthly. " (g) In case death occurs as a result of the injury before the total of the payments made equals the amount payable as a death benefit, then in case the employee leaves any widow, child or children, parents, grandparents or other lineal heirs, entitled to compensation under section 7, the difference be- tween the compensation for death and the sum of the pay- ments made to the employee shall be paid, at the option of the employer, either to the personal representative or the bene- ficiaries of the deceased employee and distributed, as pro- vided in paragraph (/) of section 7, but in no case shall the amount payable under this paragraph be less than $500.00. " Qi) In no event shall the compensation to be paid exceed fifty per centum of the average weekly wage or exceed twelve dollars per week in amount; nor, except in cases of complete disability as defined above, shall any payments extend over a DISABILITY BENEFITS 691 Iowa period of more than eight years from the date of the accident. In case an injured employee shall be incompetent at the time when any right or privilege accrues to him under the provi- sions of this Act, a conservator or guardian may be appointed pursuant to law, and may, on behalf of such incompetent, claim and exercise any such right or privilege with the same force and effect as if the employee himself had been compe- tent and had claimed or exercised said right or privilege; and no limitations of time by this Act provided shall run so long as said incompetent employee is without a conservator or guardian. " (i) All compensation provided for in paragraphs (6), (c), (d), (e) and (J) of this section, other than cases of pension for life, shall be paid in installments, at the same intervals at which the wages or earnings of the employee were paid at the time of the injury, or if this shall not be feasible, then the in- stallments shall be paid weekly." IOWA "§10. * * * (h) For injury producing temporary dis- ability, fifty (50%) per cent of the average weekly wages re- ceived at the time of injury, subject to a maximum compensa- tion of ten ($10.00) dollars and a minimum of five ($5.00) dollars per week; provided, that if at the time of injury the employe receives wages less than five ($5.00) dollars per week, then he shall receive the full amount of wages per week. This compensation shall be paid during the period of such disability, not, however, beyond three hundred (300) weeks. "(i) For disability total in character and permanent in quality fifty (50%) per cent of the average weekly wages re- ceived at the time of the injury, subject to a maximum com- pensation of ten ($10.00) dollars per week, and a minimum of five ($5.00) dollars per week; provided that if at the time of injury, the employe - receives wages less than five ($5.00) dollars per. week, then he shall receive the full amount of wages per week. This compensation shall be paid during the period of such disability, not however, beyond four hundred (400) weeks. 692 bradbury's workmen's compensation iaw Iowa "(J) For disability partial in character and permanent in quality the compensation shall be based upon the extent of such disability. "For all cases included in the following schedule compensa- tion shall be paid as follows, to wit: " (1) For the loss of a thumb fifty per cent (50%) of daily wages during forty weeks. "(2) For the loss of a first finger, commonly called the index finger, fifty per cent (50%) of daily wages during thirty (30) weeks. " (3) For the loss of a second finger, fifty per cent (50%) of daily wages during twenty-five (25) weeks. " (4) For the loss of a third finger, fifty per cent (50%) of daily wages during twenty (20) weeks. " (5) For the loss of a fourth finger, commonly called the little finger, fifty per cent (50%) of daily wages for fifteen (15) weeks. " (6) For the loss of the first phalange of the thumb or of any finger shall be considered to be equal to the loss of one- half of such thumb or finger and compensation shall be one- half of the amounts above specified. " (7) The loss of more than one phalange shall be considered as the loss of the entire finger or thumb; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. " (8) For the loss of a great toe, fifty per cent (50%) of daily wages during twenty-five (25) weeks. " (9) For the loss of one of the toes other than the great toe, fifty per cent (50%) of daily wages during fifteen (15) weeks. "(10) For the loss of the first phalange of any toe, shall be considered to be equal to the loss of one-half of such toe and the compensation shall be one-half of the amount above specified. "(11) The loss of more than one phalange shall be con- sidered as the loss of the entire toe. " (12) For the loss of a hand fifty per cent (50%) of daily wages during one hundred fifty (150) weeks. DISABILITY BENEFITS 693 Iowa " (13) For the loss of an arm fifty per cent (50%) of daily wages during two hundred (200) weeks. " (14) For the loss of a foot fifty per cent (50%) of daily wages during one hundred twenty-five (125) weeks. " (15) For the loss of a leg, fifty per cent (50%) of daily wages during one hundred seventy-five (175) weeks. " (16) For the loss of an eye, fifty per cent (50%) of daily wages during one hundred (100) weeks. "(17) For the loss of both arms, or both hands, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability to be compensated according to provisions of Clause "I" Section Ten, Part One hereof. " (18) In all other cases in this, Clause "J" the compensa- tion shall bear such relation to the amount stated in the above schedule as the disability bears to those produced by the injuries named in the schedule. Should the employe and em- ployer be unable to agree upon the amount of compensation to be paid in cases not specifically covered by the schedule, the amount of compensation shall be settled according to provisions of this act as in other cases of disagreement. "(19) The amounts specified in this, Clause "J" and sub- divisions thereof shall be subject to the same limitations as to maximum and minimum weekly payments as are stated in Clause "H," section ten hereof. "§ 11. Where an employe" is entitled to compensation under this Act for an injury received and death ensues from any cause not resulting from the injury for which he was entitled to the compensation, payments of the unpaid balance for such injury shall cease and all liability therefor shall ter- minate." The amount of compensation cannot be waived. Part I, §18. 694 bradbury's workmen's compensation law Maryland KANSAS " § 11. Amount of compensation. The amount of compensa- tion under this Act shall be: * * * 1 (p) Where total in- capacity for work results from injury, periodical payments during such incapacity, commencing at the end of the second week, equal to fifty per cent of his average weekly earnings computed as provided in section 12 but in no case less than six dollars per week or more than fifteen dollars per week, (c) When partial incapacity for work results from injury, periodical payments during such incapacity, commencing at the end of the second week, shall not be less than twenty-five per cent, nor exceed fifty per cent, based upon the average weekly earnings computed as provided in section 12, but in no case less than three dollars per week or more than twelve dollars per week; provided, however, that if the workman is under twenty-one years of age at the date of the accident and the average weekly earnings are less than $10.00 his compen- sation shall not be less than seventy-five per cent of his aver- age earnings. No such payment for total or partial disability shall extend over a period exceeding eight years." (As am'd by L. 1918, c. 216, approved March 10, 1913, in effect March 12, 1918.) "§ 13. Payments to the injured workman. The payments shall be made at the same time, place, and in the same manner as the wages of the workman were payable at the time of the accident, but a judge of any district court having jurisdiction upon the application of either party may modify such regula- tion in a particular case as to him may seem just." MARYLAND " § 5, (c) (II) In case of injury not resulting in death, where total disability results from the injury, a weekly payment during the period of such disability shall be paid to the in- sured, which shall not be less than fifty per cent, of his aver- age weekly wages during the previous twelve months, if he 1 The omitted part relates to death benefits. DISABILITY BENEFITS 695 Massachusetts has been so long employed by the contracting employer; if not, then a weekly benefit during such shorter period as he has been in the employment of said employer. " (III) In case of injury not resulting in death, where par- tial disability results, such weekly payments shall be made during the period of such partial disability as is equal to the difference between the weekly benefit payments during the period of total disability and the average amount which the injured person is able to earn after the accident. "Loss by actual separation at or above the wrist or ankles of both hands or both feet, or of one hand and one foot, or the irrevocable loss of both eyes, shall be deemed to be equal to total disability. "The loss by actual separation at or above the wrist or ankle of one hand or one foot shall be equal to one-half of total disability, and the loss of one eye shall be equal to one- fifth of total disability. Total disability shall be deemed to mean inability to carry on any gainful occupation." MASSACHUSETTS > " Part II, § 9. While the incapacity for work resulting from the injury is total, the association shall pay the injured employe 1 a weekly compensation equal to one-half his average weekly wages, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor the amount more than three thousand dollars." "§ 10. While the incapacity for work resulting from the injury is partial, the association shall pay the injured em- ploye 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 ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury." 1 A number of Massachusetts cases will be found cited in the discussion under topical headings preceding the specific statutory provisions in this chapter. 696 bradbury's workmen's compensation law Massachusetts "§11. In case of the following specified injuries the amounts hereinafter named shall be paid in addition to all other com- pensation: (a) For the loss by severance of both hands at or above the wrist, or both feet at or above the ankle, or the loss of one hand and one foot, or the reduction to one-tenth of nor- mal vision in feoth eyes with glasses, one-half of the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of one hundred weeks. (6) For the loss by severance of either hand at or above the wrist, or either foot at or above the ankle, or the reduction to one-tenth of normal vision in either eye with glasses, one- half the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of fifty weeks. (c) For the loss by severance at or above the second joint of two or more fingers, including thumbs, or toes, one-half the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of twenty-five weeks. (d) For the loss by severance of at least one phalange of a finger, thumb, or toe, one-half the average weekly wages of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of twelve weeks. (e) The additional amounts provided for in this section in case of the loss of a hand, foot, thumb, finger or toe shall also be paid for the number of weeks above specified, in case the injury is such that the hand, foot, thumb, finger or toe is not lost but is so injured as to be permanently incapable of use. (As am'd by section 2 of chapter 571, Acts of 1912, and by section 1 of chapter 445, Acts of 1913, and by section 1 of chapter 696, Acts of 1913.) § 12. No savings or insurance of the injured employe, independent of this act, shall be taken into consideration in determining the compensation to be paid hereunder, nor shall benefits derived from any other source than the association be considered in fixing the compensation under this act. DISABILITY BENEFITS 697 Michigan MICHIGAN » " Part II, § 9. While the incapacity for work resulting from the injury is total, the employer shall pay, or cause to be paid as hereinafter provided, to the injured employe a weekly compensation- equal to one-half his average weekly wages, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks, nor shall the total amount of all compensation exceed four thousand dollars." "§ 10. While the incapacity for work resulting from the injury is partial, the employer shall pay or cause to be paid as hereinafter provided, to the injured employe - 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 ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury. In cases included by the following schedule the disability in each such case shall be deemed to continue for the period specified, and the compensa- tion so paid for such injury shall be as specified therein, to-wit: "For the loss of a thumb, fifty per centum of the average weekly wages during sixty weeks; "For the loss of a first finger, commonly called index finger, fifty per centum of average weekly wages during thirty-five weeks; "For the loss of a second finger, fifty per centum of average weekly wages during thirty weeks; "For the loss of a third finger, fifty per centum of average weekly wages during twenty weeks; "For the loss of a fourth finger, commonly called little finger, fifty per centum of average weekly wages during fifteen weeks; 1 A number of Michigan cases will be found cited in the discussion under topical headings preceding the specific statutory provisions in this chapter. 698 bbadbury's workmen's compensation law Michigan "The loss of the first phalange of the thumb, or of any finger, shall be considered to be equal to the loss of one-half of such thumb, or finger, and compensation shall be one-half the amounts above specified; "The loss of more than one phalange shall be considered as the loss of the entire finger or thumb: Provided, however, That in no case shall the amount received" for more than one finger exceed the amount provided in this schedule for the loss of a hand; "For the loss of a great toe, fifty per centum of average weekly wages during thirty weeks; "For the loss of one of the toes other than a great toe, fifty per centum of average weekly wages during ten weeks; "The loss of the first phalange of any toe shall be consid- ered to be equal to the loss of one-half of such toe, and com- pensation shall be one-half of the amount above specified; "The loss of more than one phalange shall be considered as the loss of the entire toe; "For the loss of a hand, fifty per centum of average weekly wages during one hundred and fifty weeks; "For the loss of an arm, fifty per centum of average weekly wages during two hundred weeks; "For the loss of a foot, fifty per centum of average weekly wages during one hundred and twenty-five weeks; "For the loss of a leg, fifty per centum of average weekly wages during one hundred and seventy-five weeks; "For the loss of an eye, fifty per centum of average weekly wages during one hundred weeks; "The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of section nine. "The amounts specified in this clause are all subject to the same limitations as to maximum and minimum as above stated." DISABILITY BENEFITS 699 Minnesota MINNESOTA "Part II. §13. Schedule of compensation allowed under act. — Following is the schedule of compensation: (a) For in- jury producing temporary total disability, fifty per centum of the wages received at the time of injury, subject to a maxi- mum compensation of ten dollars ($10.00) per week and a minimum of six dollars ($6.00) per week; provided, that if at the time of injury the employe - receives wages of less than six dollars ($6.00) per week, then he shall receive the full amount of such wages per week. This compensation shall be paid during the period of such disability, not, however, beyond three hundred weeks. Payments to be made at the intervals when the wage was payable, as nearly as may be. "(6) In all cases of temporary partial disability the com- pensation shall be fifty per cent of the difference between the wage of the workman at the time of the injury, and the wage he is able to earn in his partially disabled condition. This compensation shall be paid during the period of such dis- ability, not however beyond three hundred weeks, payment to be made at the intervals when the wage was payable as nearly as may be and subject to the same maximum and minimum as stated in (a). "(c) For permanent partial disability, the compensation shall be based upon the extent of such disability. In cases included by the following schedule the compensation shall be that named in the schedule, to-wit: "For the loss of a thumb, fifty per centum of daily wages during sixty (60) weeks. "For the loss of a first finger, commonly called index finger, fifty per centum of daily wages during thirty-five (35) weeks. "For the loss of a second finger, fifty per centum of daily wages during thirty (30) weeks. "For the loss of a third finger, fifty per centum of daily wages during twenty (20) weeks. "For the loss of a fourth finger, commonly called little finger, fifty per centum of daily wages during fifteen weeks.. "The loss of the first phalange of the thumb, or of any 700 bradbury's workmen's compensation law Minnesota , a finger, shall be considered equal to the loss of one-half of such thumb, or finger, and compensation shall be one-half the amounts specified above for such thumb or finger. "The loss of more than one phalange shall be considered as the loss of the entire finger or thumb; providing, however, that in no case shall the amount received for more than one finger exceed *the amount provided in this schedule for the loss of a hand. " For the loss of a great toe, fifty per centum of daily wages during thirty (30) weeks. "For the loss of one of the toes other than a great toe, fifty per centum of daily wages during ten (10) weeks. "The loss of the first phalange of any toe shall be con- sidered to be equal to the loss of one-half of such toe, and com- pensation shall be one-half of the amount above specified. "The loss of more than one phalange shall be considered as the loss of the entire toe. "For the loss of a hand, fifty per centum of daily wages during one hundred and fifty (150) weeks. "For the loss of an arm, fifty per centum of daily wages during two hundred (200) weeks. "For the loss of a foot, fifty per centum of daily wages dur- ing one hundred and twenty-five (125) weeks. "For the loss of a leg, fifty per centum of daily wages dur- ing one hundred and seventy-five (175) weeks. "For the loss of an eye, fifty per centum of daily wages during one hundred (100) weeks. "In all other cases of permanent partial disability, not above enumerated, the compensation shall be fifty per centum of the difference between the wage of the workman at the time of the injury and the wage he is able to earn in his par- tially disabled condition. Compensation shall continue dur- ing disability, not however, beyond three hundred (300) weeks. "In all cases of permanent partial disability within the foregoing schedule, it shall be considered that the permanent loss of the use of a member shall be equivalent to and draw the same compensation as the loss of that member; but the compensation in and by said schedule provided, shall be in lieu of all other compensation in such cases. DISABILITY BENEFITS 701 Nebraska "Should the employer and employe be unable to agree. upon the amount of compensation to be paid, the amount of compensation shall be determined according to the provisions of Section 30 hereof. The compensations provided in clause (c) are all subject to the same limitations as to maximum and minimum as are stated in clause (a). "(d) For permanent total disability, fifty per centum of the wages received at the time of injury, subject to a maximum compensation of ten dollars ($10.00) per week and a minimum of six dollars ($6.00) per week; provided, that if at the time of injury the employe receives wages of less than six dollars ($6.00) per week, then he shall receive the full amount of wages per week. This compensation shall be paid during the period of such disability, not, however, beyond four hundred (400) weeks; payment to be made at the intervals when the wage was payable, as nearly as may be. "(e) The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, or a total loss of mental faculties, or complete paralysis of both legs or both arms, shall constitute permanent total disability." "Part II, § 15. Injury increasing disability. — If an em- ploye - receive an injury, which, of itself, would only cause permanent partial disability, but which, combined with a previous disability, does in fact cause permanent total dis- ability, the employer shall only be liable for the permanent partial disability caused by the subsequent injury." For provision when there are joint employers see § 16. NEBRASKA "Part II, § 21. The following schedule of compensation is hereby established for injuries resulting in disability; "(1) For the first three hundred weeks of total disability the compensation shall be fifty per centum of the wages re- ceived at the time of injury, but such compensation shall not be more than ten dollars per week or less than five dollars per 702 bkadbury's workmen's compensation law Nebraska week; Provided, that, if at the time of injury the employe receives wages of less than five dollars per week, then he shall receive the full amount of such wages per week as compensa- tion. After the first three hundred weeks of total disability, for the remainder of the life of the employe, he shall receive forty per centum of the wages received at the time of the in- jury, but the compensation shall not be more than eight dollars per week nor less than four dollars per week; Pro- vided, that, if at the time of the injury the employe receives wages of less than four dollars per week, then he shall receive the full amount of such wages as compensation. Nothing in this subdivision shall require the payment of compensation after disability shall cease. Should partial disability be fol- lowed by total disability, the period of three hundred weeks mentioned in this subdivision of this section shall be reduced by the number of weeks during which compensation was paid for such partial disability. "(2) For disability partial in character (except the par- ticular cases mentioned in subdivision 3 of this section), the compensation shall be fifty per centum of the difference between the wages received at the time of injury and the earning power of the employe thereafter; but such compensa- tion shall not be more than ten dollars per week. This com- pensation shall be paid during the period of such partial dis- ability; not, however, beyond three hundred weeks after the date of the accident causing the disability. Should total disability be followed by partial disability, the period of three hundred weeks mentioned in this subdivision shall be reduced by the number of weeks during which compensation was paid for such total disability. " (3) For all disability resulting from permanent injury of the following classes, the compensation shall be exclusively as follows: "For the loss of a hand, fifty per centum of the wages dur- ing one hundred and seventy-five weeks; "For the loss of an arm, fifty per centum of wages during two hundred and fifteen weeks; " For the loss of a foot, fifty per centum of wages during one hundred and fifty weeks; DISABILITY BENEFITS 703 Nebraska " For the loss of a leg, fifty per centum of wages during two hundred and fifteen weeks; "For the loss of an eye, fifty per centum of wages during one hundred and twenty-five weeks; " For the loss of any two or more of such members, not con- stituting total disability, fifty per centum of wages during the aggregate of the periods specified for each. "The loss of both hands or both arms, or both feet, or both legs, or both eyes shall constitute total disability, to be com- pensated according to the provisions of subdivision 1 of this section. "Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand, and ampu- tation between the knee and the ankle shall be considered as the equivalent of the loss of a foot. Amputation at or above the elbow shall be considered as the loss of an arm, and ampu- tation at or above the knee shall be considered as the loss of a leg. Permanent loss of the use of a hand, arm, foot, leg or eye shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye. "Compensation under this subdivision shall not be more than ten dollars per week nor less than five dollars per week; Provided, that, if at the time of injury the employe 1 received wages of less than five dollars per week, then he shall receive the full amount of such wages per week as compensation." " Part II, § 28. (Injury increasing disability) If an employe" receives an injury, which, of itself, would only cause partial disability, but which, combined with a previous disability, does in fact cause total disability, the employer shall only be liable as for the partial disability, so far as the subsequent injury is concerned." "Part II, §30. (Contributions by employ^) No savings or insurance of the injured employ^, or any contribution made by him to any benefit fund or protective association independ- ent of this Act shall be taken into consideration in determining the compensation to be paid hereunder, nor shall benefits derived from any other source than those paid or caused to be paid by the employer as herein provided, be considered in fixing the compensation under this Act." 704 bradburt's workmen's compensation law Nevada NEVADA " § 25. * * * (c) For complete disability, compensation fifty per cent of the average monthly wages, but not more than $60, nor less than $20 per month for one hundred months; total amount»not to exceed $5,000. " (d) For partial disability, one-half the difference between the wages earned before injury and wages which injured is able to earn thereafter but not more than $40 a month for a period not to exceed sixty months. "Specific payments of injuries as per the following schedule, subject to a maximum of $60.00 and a minimum of $20.00 per month; "For the loss of a thumb, fifty per cent of the average monthly wages during fifteen months. "For the loss of a first finger, commonly called the index finger, fifty per cent [ of the average monthly wages during nine months. " For the loss of a second finger, fifty per cent of. the average monthly wages during seven months. "For the loss of a third finger, fifty per cent of the average monthly wages during five months. "For the loss of a fourth finger, commonly called the little finger, fifty per cent of the average wages during four months. "The loss of more than one phalange shall be considered as the loss of the entire finger or thumb; provided, however, that in no case shall the ampunt received for more than one finger exceed the amount provided in this schedule for the loss of a hand "For the loss of a great toe, fifty per cent of the average monthly wages during seven months. "For the loss of one of the other toes other than great toe, fifty per cent of the average monthly wages during two months and one-half. However, the loss of the first phalange of any toe shall be considered to be equal to the loss of one-half of such toe, and compensation shall be one-half of the amount above specified. DISABILITY BENEFITS 705 New Hampshire " The loss of more than one phalange shall be considered as the loss of the entire toe. "For the loss of a hand, fifty per cent of the average monthly wages during forty months. "For the loss of an arm, fifty per cent of the average monthly wages during fifty months. "For the loss of a foot, fifty per cent of the average monthly wages during thirty-five months. "For the loss of a leg, fifty per cent of the average monthly wages during forty-five months. "For the loss of an eye, fifty per cent of the average monthly wages during twenty-five months. "However, the loss of both hands, or both arms, or both legs, or both eyes, or any part thereof, shall constitute total and permanent disability to be compensated according to the provisions of section 25, subdivision 'C.'" NEW HAMPSHIRE " § 6. (2) Where total or partial incapacity for work at any gainful employment results to the workman from the injury, a weekly payment commencing at the end of the second week after the injury and continuing during such incapacity, subject as herein provided, not exceeding fifty per centum of his average weekly earnings when at work on full time during the preceding year during which he shall have been in the employment of the same employer, or if he shall have been in the employment of the same employer for less than a year, then a weekly payment of not exceeding one-half the average weekly earnings on full time for such less period. In fixing the amount of the weekly payment, regard shall be had to the difference between the amount of the average earnings of the workman before the accident and the average amount he is able to earn thereafter as wages in the same employment or otherwise. In fixing the amount of the weekly payment, regard shall be had .to any payment, allowance or benefit which the workman may have received from the employer during the period of his incapacity, and 45 706 bradbury's workmen's compensation law New Jersey in the case of partial incapacity the weekly payment shall in no case exceed the difference between the amount of the average weekly earnings of the workman before the accident and the average weekly amount which he is earning or is able to earn in the same employment or otherwise, after the accident, but shall amount to one-half of such difference. In no event shall^any compensation paid under this act exceed the damage suffered, nor shall any weekly payment payable under this act in any event exceed ten dollars a week or ex- tend over more than three hundred weeks from the date of the accident. Such payment shall continue for such period of three hundred weeks provided total or partial disability continue during such period. No such payment shall be due or payable for any time prior to the giving of the notice re- quired by Sec. 5 of this act." NEW JERSEY x "§ II. 11. Following is the schedule of compensation: " (a) Schedule of payments. Temporary disability. Proviso. For injury producing temporary disability, fifty per centum of the wages received at the time of injury, subject to a maxi- mum compensation of ten dollars per week and a minimum of five dollars per week; provided, that if at the time of injury the employe" receives wages of less than five dollars per week, then he shall receive the full amount of such wages per week. This compensation shall be paid during the period of such disability, not, however, beyond three hundred weeks. "(b) Complete disability. Proviso. For disability total in character and permanent in quality, fifty per centum of the wages received at the time of injury, subject to a maximum compensation of ten dollars per week and a minimum of five dollars per week; provided, that if at the time of injury the employe" receives wages of less than five dollars per week, then he shall receive the full amount of wages per week. This 1 A number of New Jersey cases will be found cited in the discussion under topical headings preceding the specific statutory provisions in this Chapter. DISABILITY BENEFITS 707 New Jersey compensation shall be paid during the period of such disa- bility, not, however, beyond four hundred weeks. "(c) Partial disability. For disability partial in character but permanent in quality, the compensation shall be based upon the extent of such disability. In cases included by the following schedule the compensation shall be that named in the schedule, to wit: " Thumb. For the loss of a thumb, fifty per centum of daily wages during sixty weeks. "First finger. For the loss of a first finger, commonly called .index finger, fifty per centum of daily wages during thirty-five weeks. "Second finger. For the loss of a second finger, fifty per centum of daily wages during thirty weeks. " Third finger. For the loss of a third finger, fifty per centum of daily wages during twenty weeks. "Fourth finger. For the loss of a fourth finger, commonly called little finger, fifty per centum of daily wages during fifteen weeks. "Phalange. The loss of the first phalange of the thumb, or of any finger, shall be considered to be equal to the loss of one-half of such thumb, or finger, and compensation shall be for one-half of the periods of time above specified, and com- pensation for the loss of one-half of the first phalange shall be for one-fourth of the periods of time above specified. "More than one phalange. Proviso. The loss of more than one phalange shall be considered as the loss of the entire finger or thumb; providing, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. "Great toe. For the loss of a great toe, fifty per centum of daily wages during thirty weeks. "Other toes. For the loss of one of the toes other than a great toe, fifty per centum of daily wages during ten weeks. "Phalange of toe. For the loss of the first phalange of any toe shall be considered to be equal to the loss of one-half of such toe, and compensation shall be one-half of the amount above specified. 708 bradbury's workmen's compensation law New Jersey "More than one phalange. The loss of more than one phalange shall be considered as the loss of the entire toe. "Hand. For the loss of a hand, fifty per centum of daily wages during one hundred and fifty weeks. "Arm. For the loss of an arm, fifty per centum of daily wages during two hundred weeks. "Foot. For the loss of a foot, fifty per centum of daily wages during one hundred and twenty-five weeks. "Leg. For the loss of a leg, fifty per centum of daily wages during one hundred and seventy-five weeks. "Eye. For the loss of an eye, fifty per centum of daily wages during one hundred weeks. "Both hands, etc. The loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof, shall constitute total and permanent disability, to be compen- sated according to the provisions of clause (6). "In other cases. In all other cases in this class, or where the usefulness of a member or any physical function, is per- manently impaired, the compensation shall bear such relation to the amounts stated in the above schedule as the disabilities bear to those produced by the injuries named in the schedule. Should the employer and employ6 be unable to agree upon the amount of compensation to be paid in cases not covered by the schedule, the amount of compensation shall be settled according to the provisions of paragraph twenty hereof. "Maximum and minimum amounts. The amounts specified in this clause are all subject to the same limitations as to maximum and minimum as are stated in clause (a). "In case of death during period of payments. In case of the death of a person from any cause other than the accident, during the period of payments for permanent injury, the remaining payments shall be paid to his or her dependents, according to the provisions of paragraph twelve of this act, or, if no dependents, the remaining amount due but not ex- ceeding one hundred dollars, shall be paid in a lump sum to the proper person for funeral expenses. (As amended by L. 1913, c. 174, effective April 1, 1913.) "§ II, 14a. Compensation consecutive, not concurrent. Maxi- mum number of payments. Compensation shall run consecu- DISABILITY BENEFITS 709 New York tively and not concurrently, as follows: First two weeks, medical and hospital services and medicines, as provided in paragraph fourteen. After the first two weeks, compensation during temporary disability. Following both, either or none of the above, compensation consecutively for each permanent injury. Following any or all or none of the above, if death results from the accident, expenses of last sickness and burial. Following which compensation to dependents, if any. In no case shall the total number of weekly payments be more than four hundred." (Added by L. 1913, c. 174, effective April 1, 1913). "§ III, 23. * * * As to amputation. Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand, and amputation between the knee and the ankle shall be considered as the equivalent of the loss of afoot." NEW YORK " § 15. Schedule in case of disability. The following sched- ule of compensation is hereby established: "1. Total permanent disability. In case of total disability adjudged to be permanent sixty-six and two-thirds per cen- tum of the average weekly wages shall be paid to the employee during the continuance of such total disability. Loss of both hands, or both arms, or both feet, or both legs, or both eyes, or of any two thereof shall, in the absence of conclusive proof to the contrary, constitute permanent total disability. In all other cases permanent total disability shall be determined in accordance with the facts. "2. Temporary total disability. In case of temporary total disability, sixty-six and two-thirds per centum of the average weekly wages shall be paid to the employee during the con- tinuance thereof, but not in excess of three thousand five hundred dollars, except as otherwise provided in this chapter. "3. Permanent partial disability. In case of disability partial in character but permanent in quality the compensa- tion shall be sixty-six and two-thirds per centum of the aver- 710 bradbury's workmen's compensation law New York age weekly wages and shall be paid to the employee for the period named in the schedule as follows: " Thumb. For the loss of a thumb, sixty weeks. - " First finger. For the loss of a first finger, commonly called index finger, forty-six weeks. "Second finger. For the loss of a second finger, thirty weeks. * " Third finger. For the loss of a third finger, twenty-five weeks. "Fourth finger. For the loss of a fourth finger, commonly called the little finger, fifteen weeks. "Phalange of thumb or finger. The loss of the first phalange of the thumb or finger shall be considered to be equal to the loss of one-half of such thumb or finger, and compensation shall be one-half of the amount above specified. The loss of more than one phalange shall be considered as the loss of the entire thumb or finger; provided, however, that in no case shall the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. "Great toe. For the loss of a great toe, thirty-eight weeks. "Other toes. For the loss of one of the toes other than the great toe, sixteen weeks. "Phalange of toe. The loss of the first phalange of any toe shall be considered to be equal to the loss of one-half of said toe, and the compensation shall be one-half of the amount specified. The loss of more than one phalange shall be con- sidered as the loss of the entire toe. "Hand. The loss of a hand, two hundred and forty-four weeks. "Arm. For the loss of an arm, three hundred and twelve weeks. "Foot. For the loss of a foot, two hundred and five weeks. "Leg. For the loss of a leg, two hundred and eighty-eight weeks. "Eye. For the loss of an eye, one hundred and twenty- eight weeks. "Loss of use. Permanent loss of the use of a hand, arm, foot, leg or eye shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye. DISABILITY BENEFITS 711 New York "Amputations. Amputation between the elbow and the wrist shall be considered as the equivalent of the loss of a hand. Amputation between the knee and the ankle shall be considered as the equivalent of the loss of a foot. Amputa- tion at or above the elbow shall be considered as the loss of an arm. Amputation at or above the knee shall be con- sidered as the loss of the leg. "The compensation for the foregoing specific injuries shall be in lieu of all other compensation, except the benefits pro- vided in section thirteen of this chapter. 1 "Other cases. In all other cases in this class of disability, the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the commission on its own motion or upon application of any party in interest. "4. Temporary partial disability. In case of temporary partial disability, except the particular cases mentioned in subdivision three of this section, an injured employee shall receive sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage earning capacity thereafter in the same employment or otherwise during the continuance of such partial disability, but not in excess of three thousand five hundred dollars, except as other- wise provided in this chapter. "5. Limitation. The compensation payment under sub- divisions one, two and four and under subdivision three except in case of the loss of a hand, arm, foot, leg, or eye, shall not exceed fifteen dollars per week nor be less than five dollars per week; the compensation payment under subdivision three in case of the loss of a hand, arm, foot, leg or eye, shall not 1 Section 13 provides for medical and hospital attention. Some of the acts notably those of New Jersey and Massachusetts, allow specific in- demnities for the loss of a foot, hand, etc., in addition to benefits for actual disability due to the injury. But the schedules in those acts are con- siderably lower than that contained in the New York statute. 712 Bradbury's workmen's compensation law Ohio exceed twenty dollars per week nor be less than five dollars a week; provided, however, that if the employee's wages at the time of injury are less than five dollars per week he shall •receive his full weekly wages. "6. Previous disability. The fact that an employee has suffered previous disability or received compensation there- for shall not nreclude him from compensation for a later in- jury nor preclude compensation for death resulting there- from; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury." OHIO 1 "1465-79; §32, Act of 1913. In case of temporary dis- ability, the employe shall receive sixty-six and two-thirds per cent, of his average weekly wages so long as such disability is total, not to exceed a maximum of twelve dollars per week, and not less than a minimum of five dollars per. week, unless the employe's wages shall be less than five dollars per week, in which event he shall receive compensation equal to his full wages; but in no case to continue for more than six years from the date of the injury, or to exceed three thousand, seven hundred and fifty dollars. " 1465-80; § 33, Act of 1913. In case of injury resulting in partial disability, the employe" shall receive sixty-six and two-thirds per cent, of the impairment of his earning ca- pacity during the continuance thereof, not to exceed a maxi- mum of twelve dollars per week, or a greater sum in the aggregate than thirty-seven hundred and fifty dollars. In cases included in the following schedule, the disability in each case shall be deemed to continue for the period specified and the compensation so paid for such injury shall be as specified herein, to wit: 1 A number of Ohio cases will be found cited in the discussion under topical headings preceding the specific statutory provisions in this chapter. DISABILITY BENEFITS 713 Ohio "For the loss of a thumb, 66 2 / 3 % of the average weekly wages during sixty weeks. " For the loss of a first finger, commonly called index finger, 66 2 / 3 % of the average weekly wages during thirty-five weeks. "For the loss of a second finger. 66 2 / 3 % of the average weekly wages during thirty weeks. "For the loss of a third finger, 66 2 / 3 % of the average weekly wages during twenty weeks. "For the loss of a fourth finger, commonly known as the little finger, 66 2 / 3 % of the average weekly wages during fifteen weeks. "The loss of the second, or distal phalange, of the thumb shall be considered to be equal to the loss of one-half of such thumb; the loss of more than one-half of such thumb shall be considered to be equal to the loss of the'whole thumb. "The loss of the third, or distal phalange, of any finger shall be considered to be equal to the loss of one-third of such finger. "The loss of the middle, or second phalange, of any finger shall be considered to be equal to the loss of two-thirds of such finger. "The loss of more than the middle and distal phalanges of any finger shall be considered to be equal to the loss of the whole finger; provided, however, that in no case will the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. "For the loss of the metacarpal bone (bones of palm) for the corresponding thumb, finger, or fingers as above, add ten weeks to the number of weeks as above. "For ankylosis (total stiffness of) or contractures (due to scars or injuries) which makes the fingers more than useless, the same number of weeks apply to such finger or fingers (not thumb) as given above. "For the loss of a hand, 66 2 / 3 % of the average weekly wages during one hundred and fifty weeks. "For the loss of an arm, 66 2 / 3 % of the average weekly wages during two hundred weeks. "For the loss of a great toe, 66 2 / 3 % of the average weekly wages during thirty weeks. 714 bradbtjky's workmen's compensation law Oregon "For the loss of one of the toes other than the great toe, 66 2 / 3 % of the average weekly wages during ten weeks. " The loss of more than two-thirds of any toe shall be con- sidered to be equal to the loss of the whole toe. "The loss of less than two-thirds of any toe shall be con- sidered to be no loss; "For the loss of a foot, 66 2 / 3 % of the average weekly wages during one hundred and twenty-five weeks. "For the loss of a leg, 66 2 / 3 % of the average weekly wages during one hundred and seventy-five weeks. "For the loss of an eye, 66 2 / 3 % of the average weekly wages during one hundred weeks. "The amounts specified in this clause are all subject to the limitation as to the maximum weekly amount payable as hereinbefore specified in this section. " 1466-81 ; § 34, Act of 1913. In cases of permanent total disability, the award shall be sixty-six and two-thirds per cent, of the average weekly wages, and shall continue until the death of such person so totally disabled, but not to exceed a maximum of twelve dollars per week and not less than a minimum of five dollars per week, unless the employe's average weekly wages are less than five dollars per week at the time of the injury, in which event he shall receive compensation in an amount equal to his average weekly wages. "The loss of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, shall prima facie constitute total and permanent disability, to be compensated according to the provisions of this section." OREGON "§21. * * * (6) Permanent total disability means the loss of both legs or both arms, or one leg and one arm, total loss of eyesight, paralysis, or other condition permanently incapacitating the workman from performing any work at any gainful occupation. DISABILITY BENEFITS 715 Oregon "When permanent total disability results from the injury, the workman shall receive monthly during the period of such disability: "(1) If unmarried at the time of the injury the sum of thirty dollars ($30). " (2) If the workman have a wife or invalid husband, but no child under the age of 16 years, the sum of thirty-five dollars ($35). If the husband is not an invalid the monthly payment of thirty-five dollars ($35) shall be reduced to thirty dollars ($30). " (3) If the workman have a wife or husband and a child or children under the age of 16 years, or being a widow or widower, have any such child or children, the monthly pay- ment provided in the preceding paragraph shall be increased by six dollars ($6) for each such child until such child shall arrive at the age of 16 years, but the total monthly payment shall not exceed fifty dollars ($50). " (c) If the injured workman die during such period of total disability, whatever the cause of death, leaving a widow, invalid widower, or child under the age of 16 years, the sur- viving widow, or invalid widower, shall receive thirty dollars ($30) per month until death or remarriage, to be increased six dollars ($6) per month for each child under the age of 16 years until such child shall arrive at the age of 16 years; but if such child is, or shall be, without father or mother, such child shall receive fifteen dollars ($15) per month until ar- riving at the age of 16 years, provided, however, that if any child is under the age of 16 years and over the age of 15 years, he shall be entitled to recover such payment for the period of one year. The total combined monthly payment under this paragraph shall in no case exceed fifty dollars ($50). Upon remarriage, the payments on account of a child or children shall continue as before to the child or children. "(d) When the total disability is only temporary the schedule of payments contained in paragraphs 1, 2 and 3 of the foregoing subdivision b, shall apply so long as the total dis- ability shall continue, increased 50 per cent for the first six months of such continuance, but in no case shall the increase operate to make the monthly payment exceed 60 per cent of 716 bradbury's workmen's compensation law Oregon the monthly wage (the daily wage multiplied by 26) the work- man was receiving at the time of his injury. " (e) When the disability is or becomes partial only and is temporary in character, the workman shall receive for a period not exceeding two years that proportion of the pay- ments provided for total disability which his earning power at any kind c^f work bears to that existing at the time of the occurrence of the injury. "(f) Permanent partial disability means the loss of either one arm, one hand, one foot, loss of hearing in one or both ears, loss of one eye, one or more fingers, any dislocation where ligaments are severed, or any other injury known in surgery to be permanent partial disability. Where permanent partial disability shall result from any injury, the workman shall receive the sum of twenty-five dollars ($25) a month for the period stated against such injury, respectively as follows: "In case of the loss by separation of one arm at or above the elbow joint, or the permanent and complete loss of the use of one arm, ninety-six (96) months. "The loss by separation of one hand at or above the wrist joint, or the permanent and complete loss of the use of one hand, seventy-six (76) months. "The loss by separation of one leg, at or above the knee joint, or the permanent and complete loss of the use of one leg, eighty-eight (88) months. "The loss by separation of one foot at or above the ankle joint, or the permanent and complete loss of the use of one foot, sixty-four (64) months. "The permanent and complete loss of hearing in both ears, ninety-six (96) months. "The permanent and complete loss of hearing in one ear, forty-eight (48) months, or, at the option of the workman, nine hundred dollars ($900) in a lump sum. "The permanent and complete loss of the sight of one eye forty (40) months, or, at the option of the workman, -eight hundred and fifty dollars ($850) in a lump sum. "The loss by separation of a thumb twenty-four (24) months, or, at the option of the workman, six hundred dollars ($600) in a lump sum. DISABILITY BENEFITS 717 Oregon "The loss by separation of a first finger, sixteen (16) months, or, at the option of the workman, three hundred fifty dollars ($350) in a lump sum; the second finger nine (9) months, or, at the option of the workman, two hundred dollars ($200) in a lump sum; a third finger, eight (8) months, or, at the option of the workman, one hundred and seventy-five dollars ($175) in a lump sum; a fourth finger, six (6) months, or, at the option of the workman, one hundred and fifty dollars ($150) in a lump sum. "The loss of one phalange of the thumb shall be considered equal to the loss of one-half a thumb; the loss of one phalange of a finger, equal to the loss of one-third of a finger, and the loss of two phalanges of a finger, equal to the loss of one-half a finger, and the compensation for the respective proportions of the above period or in the respective proportions of the above lump sum shall be payable. The loss of more than one phalange of a thumb, or more than two phalanges of a finger shall be considered as the loss of an entire thumb or finger. "The loss by separation of a great toe, ten (10) months, or, at the option of the workman, two hundred and fifty dollars ($250) in a lump sum; any other toe, four (4) months, or, at the option of the workman, one hundred dollars ($100) in a lump sum. "In all other cases of injury resulting in permanent partial disability, the compensation shall bear such relation to the periods stated in this clause as the disabilities bear to those produced by the injuries named in this schedule, and pay- ments shall be made for proportionate periods, not exceeding, however, ninety-six (96) months, and in all such cases where the period of payment shall not exceed twelve (12) months, but in none other, shall the workman be entitled to a lump sum equal to the present value of such monthly payments computed at an interest rate of four per cent per an- num. "If any workman entitled to compensation on account of a permanent disability shall have received compensation for either temporary total disability or temporary partial dis- ability by reason of the same injury which shall entitle him 718 bradbury's workmen's compensation law Rhode Island to compensation for permanent partial disability, the number of months during which he shall be entitled to payments for such permanent partial disability shall be reduced by the number of monthly payments which he shall have received on account of such temporary total disability or temporary partial disability." RHODE ISLAND "Art. II, § 10. Total incapacity. While the incapacity for work resulting from the injury is total, the employer shall pay the injured employ^ a weekly compensation equal to one-half his average weekly wages, earnings or salary, but not more than ten dollars nor less than four dollars a week; and in no case shall the period covered by such compensation be greater than five hundred weeks from the date of the in- jury. In the following cases it shall, for the purposes of this section, be conclusively presumed that the injury resulted in permanent total disability, to wit: The total and irrecoverable loss of sight in both eyes, the loss of both feet at or above the ankle, the loss of both hands at or above the wrist, the loss of one hand and one foot, an injury to the spine resulting in permanent and complete paralysis of the legs or arms, and an injury to the skull resulting in incurable imbecility or insanity." "§ 11. Partial incapacity. While the incapacity for work resulting from the injury is partial, the employer shall pay the injured employe a weekly compensation equal to one-half the difference between his average weekly wages, earnings, or salary, before the injury and the average weekly wages, earn- ings or salary which he is able to earn thereafter, but not more than ten dollars a week; and in no case shall the period covered by such compensation be greater than three hundred weeks from the date of the injury." "§ 12. Specific injuries. In case of the following specified injuries the amounts named in this section shall be paid in addition to all other compensation provided for in this act: " (a) For the loss by severance of both hands at or above DISABILITY BENEFITS 719 Rhode Island the wrist, or both feet at or above the ankle, or the loss of one hand and one foot, or the entire and irrecoverable loss of the sight of both eyes, one-half of the average weekly wages, earnings, or salary of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of one hundred weeks. " (b) For the loss by severance of either hand at or above the wrist, or either foot at or above the ankle, or the entire and irrecoverable loss of the sight of either eye, one-half the average weekly wages, earnings or salary of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of fifty weeks. " (c) For the loss by severance at or above the second joint of two or more fingers, including thumbs, or toes, one-half the average weekly wages, earnings or salary of the injured person but not more than ten dollars nor less than four dollars a week, for a period of twenty-five weeks. "(d) For the loss by severance of at least one phalange of a finger, thumb, or toe, one-half the average weekly wages, earnings or salary of the injured person, but not more than ten dollars nor less than four dollars a week, for a period of twelve weeks." "§ 14. No savings or insurance of the injured employ^, independent of this act, shall be taken into consideration in determining the compensation to be paid hereunder, nor shall benefits derived from any other source than the employer be considered in fixing the compensation under this act. Any employer who shall refuse or delay payment under this act on account of the receipt by any injured employe 1 of such sav- ings, insurance or benefits, shall be deemed guilty of a mis- demeanor, and on conviction thereof shall be liable to a fine of not less than one hundred dollars nor more than five hun- dred dollars, or imprisonment not exceeding one year or both." (As am'd by L. 1913, approved April 29, 1913, in effect same date.) 720 bradbury's workmen's compensation law Texas TEXAS "Part I, § 10. While the incapacity for work resulting from the injury is total, the association shall pay the injured em- ployee a compensation equal to 60 per cent of his average weekly wages but not more than fifteen dollars, nor less than $5.00 a week, and in no case shall the period covered by such compensation be greater than four hundred weeks. "§ 11. While the incapacity for work resulting from the injury is partial, the association shall pay the injured em- ployee a weekly compensation equal to 60 per cent of the difference between his average weekly wages before the injury and the average weekly wages he is able to earn thereafter, but in no case to be more than $15 a week; and the period covered by such compensation to be in no case greater than three hundred weeks. " § 12. In case of the following specified injuries the amounts hereinafter named shall be paid by the association in addition to all other compensation: " (a) For the loss by severance of both hands, at or above the wrists, or of both feet at or above the ankle, or the loss of one hand and one foot, or the reduction of one-tenth of the normal vision in both eyes, 60 per cent of the average weekly wages of the injured employee, but not more than fifteen dollars nor less than five dollars a week for a period of one hundred weeks, (b) For the loss by severance of either hand at or above the wrist, or either foot above the ankle, or the reduction to one-tenth of normal vision in either eye, 60 per cent of the average weekly wages of the injured em- ployee, but not more than $15 nor less than $5 a week, for a period of fifty weeks, (c) For the loss by severance at or above the second joint of two or more fingers, including thumbs and toes, 60 per cent of the average weekly wages of the injured employee, but not more than $15 nor less than $5.00 a week, for a period of twenty-five weeks, (d) For the loss by severance of at least one joint of a finger, thumb or toe, 60 per cent of the average weekly wages of the injured DISABILITY BENEFITS 721 Washington employee, but not more than fifteen' dollars nor less than five dollars a week, for a period of twelve weeks. WASHINGTON " § 5. * * * (6) Permanent total disability means the loss of both legs or both arms, or one leg and one arm, total loss of eyesight, paralysis or other conditions permanently incapacitating the workman from performing any work at any gainful occupation. "When permanent total disability results from the injury the workman shall receive monthly during the period of such disability: " (1) If unmarried at the time of the injury, the sum of twenty dollars ($20). " (2) If the workman have a wife or invalid husband, but no child under the age of sixteen years, the sum of twenty- five dollars ($25). If the husband is not an invalid, the monthly payment of twenty-five dollars ($25) shall be reduced to fifteen dollars ($15). " (3) If the workman have a wife or husband and a child or children under the age of sixteen years, or, being a widow or widower, have any such child or children, the monthly payment provided in the preceding paragraph shall be in- creased by five dollars ($5) for each such child until such child shall arrive at the age of sixteen years, but the total monthly payment shall not exceed thirty-five dollars ($35). "(c) If the injured workman die during the period of permanent total disability, whatever the cause of death, leaving a widow, invalid widower or child under the age of sixteen years, the surviving widow or invalid widower shall receive twenty dollars ($20) per month until death or re- marriage, to be increased five dollars per month for each child under the age of sixteen years until such child shall arrive at the age of sixteen years; but if such child is or shall be without father or mother, such child shall receive ten dollars ($10) per month until arriving at the age of sixteen years. The total combined monthly payment under this paragraph 46 722 bradbury's workmen's compensation law Washington shall in no case exceed thirty-five dollars ($35). Upon remar- riage the payments on aocount of a child or children shall con- tinue as before to the child or children. "(d) When the total disability is only temporary, the schedule of payment contained in paragraphs (1), (2), and (3), of the foregoing subdivision (b) shall apply so long as the total disability shall continue, increased fifty per cent, for the first sfx months of such continuance, but in no case shall the increase operate to make the monthly payment exceed sixty per cent, of the monthly wage (the daily wage multiplied by twenty-six) the workman was receiving at the time of his injury. As soon as recovery is so complete that the present earning power of the workman, at any kind of work, is restored to that existing at the time of the occur- rence of the injury the payments shall cease. If and so long as the present earning power is only partially restored the payments shall continue in the proportion which the new earning power shall bear to the old. No compensation shall be payable out of the accident fund unless the loss of earning power shall exceed five per cent." (Subdivision "E" relates to reserves. See Chapter XXVIII.) " (f) Permanent partial disability means the loss of either one foot, one leg, one hand, one arm, one eye, one or more fingers, one or more toes, any dislocation where ligaments are severed, or any other injury known in surgery to be permanent partial disability. For any permanent partial disability resulting from an injury the workman shall re- ceive compensation in a lump sum in an amount equal to the extent of the injury, to be decided in the first instance by the department, but not in any case to exceed the sum of fifteen hundred dollars ($1500). The loss of one major arm at or above the elbow shall be deemed the maximum permanent partial disability. Compensation for any other permanent partial disability shall be in the proportion which the extent of such disability shall bear to the said maximum. If the injured workman be under the age of twenty-one years and unmarried, the parents or parent shall also receive a lump sum payment equal to ten per cent, of the amount awarded the minor workman. DISABILITY BENEFITS 723 West Virginia "(g) Should a further accident occur to a workman al- ready receiving a monthly payment under this section for a temporary disability, or who has been previously the re- cipient of a lump sum payment under this act, his future compensation shall be adjusted according to the other pro- visions of this section and with regard to the combined effect of his injuries, and his past receipt of money under this act. "(h) If aggravation, diminution, or termination of dis- ability takes place or be discovered after the rate of compen- sation shall have been established or compensation termi- nated in any case the department may, upon the application of the beneficiary or upon its own motion, readjust for future application the rate of compensation in accordance with the rules in this section, provided for the same, or in a proper case terminate the payments." (As am'd by L. 1913, c — ,' approved and in effect March 21, 1913.) WEST VIRGINIA "§31. In case of temporary or partial disability, the employe shall receive during the continuance thereof fifty per cent of the impairment of his earning capacity, not to exceed a maximum of eight dollars per week, nor to be less than a minimum of four dollars per week, for not to exceed a period of twenty-six weeks; provided, that if such partial disability consist of the loss of an arm or leg at or above the wrist in one case or the ankle in the other, or the loss of an eye, the period for which compensation shall be paid may be, but shall not exceed, one hundred and fifty-six weeks. " § 32. In case of permanent total disability the award shall be fifty per cent of the average weekly wage, and shall continue until the death of such person so totally disabled, but not to exceed a maximum of six dollars per week nor to be less than a minimum of three dollars per week." "§ 38. Payments may be made in such periodical install- ments as may seem best to the commission in each case. Notwithstanding anything herein contained, the commission may direct the repayment of and pay out of any installment 724 bradbury's workmen's compensation law Wisconsin any advances for necessaries that may have been made by any person pending the payment of such installment." WISCONSIN * "§ 2394-9.* Where liability for compensation under sec- tions 2394-3 to 2394-31, inclusive, exists, the same shall be as provided in the following schedule: " (1) Such medical, surgical and hospital treatment, medi- cines, medical and surgical supplies, crutches, and apparatus, as may be reasonably required at the time of the injury and thereafter during the disability, but not exceeding ninety days, to cure and relieve from the effects of the injury, the same to be provided by the employer; and in case of his neg- lect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the em- ployee, in providing the same. " (2) If the accident causes disability, and indemnity which shall be payable as wages on the eighth day after the injured employee leaves work as the result of the injury, and weekly thereafter, which weekly indemnity shall be as follows: "(a) If the accident causes total disability, sixty-five per cent of the average weekly earnings during the period of such total disability; provided that, if the disability is such as not only to render the injured employee entirely incapable of work, but also so helpless as to require the assistance of a nurse, the weekly indemnity during the period of such assist- ance after the first ninety days shall be increased to one hun- dred per cent of the average weekly earnings. "(b) If the accident causes partial disability, sixty-five per cent of the weekly loss in wages during the period of such partial disability. "(c) If the disability caused by the accident is at times total and at times partial, the weekly indemnity during the 1 A number of Wisconsin cases will be found cited in the discussion under topical headings preceding the specific statutory provisions in this chapter. DISABILITY BENEFITS 725 Wisconsin periods of each such total or partial disability shall be in ac- cordance with said subdivisions (a) and (b), respectively. "(d) Said subdivisions (a), (b) and (c) shall be subject to the following limitations: "In case of temporary or partial disability aggregate in- demnity for injury to a single employee caused by a single accident shall not exceed four times the average annual earn- ings of such employee, and in case of permanent total dis- ability aggregate indemnity for injury to a single employee caused by a single accident shall not exceed six times the average annual earnings of such employee. "Total blindness of both eyes, or the loss of both arms at or near the shoulder, or of both legs at or near the hip, or of one arm at the shoulder and one leg at the hip, shall constitute per- manent total disability. This enumeration shall not be ex- clusive but in other cases the commission shall find the facts. "The aggregate disability period shall not, in any event, extend beyond fifteen years from the date of the accident. "The weekly indemnity due on the eighth day after the employee leaves work as the result of the injury may be withheld until the twenty-ninth day after he so leaves work; if recovery from the disability shall then have occurred, such first weekly indemnity shall not be recoverable; if the dis- ability still continues, it shall be added to the weekly indem- nity due on said twenty-ninth day and be paid therewith. " If the period of disability does not last more than one week from the day the employee leaves work as the result of the in- jury, no indemnity whatever shall be recoverable. " (5) In cases included by the following schedule, the com- pensation to be paid, subject to the provisions of this act for maximum and minimum payments, shall be sixty-five per cent of the average weekly earnings of the employee for the periods named in the schedule, to wit: "The loss of one arm at or near the shoulder, 240 weeks; "The loss of an arm at the elbow, 200 weeks; "The loss of a forearm at the lower half thereof, 160 weeks; "The loss of a hand, 160 weeks; "The loss of a palm where the thumb remains, 80 weeks; 726 bradbury's workmen's compensation law Wisconsin "The loss of a thumb and the metacarpal bone thereof, 60 weeks; "The loss of a thumb at the proximal joint, 40 weeks; "The loss of a thumb at the second or distal joint, 20 weeks; "The loss of an index finger and the metacarpal bone thereof, 30 weeks; "The loss of an index finger at the proximal joint, 20 weeks; "The loss of an index finger at the second joint, 15 weeks; "The loss of an index finger at the distal joint, 10 weeks; "The loss of a second finger and the metacarpal bone thereof, 20 weeks; "The loss of a middle finger at the proximal joint, 15 weeks; "The loss of a middle finger at the second joint, 10 weeks; "The loss of a middle finger at the distal joint, 5 weeks; "The loss of a third or ring finger and the metacarpal bone thereof, 12 weeks; "The loss of a ring finger at the proximal joint, 8 weeks; "The loss of a ring finger at the second joint, 6 weeks; "The loss of a ring finger at the distal joint, 4 weeks; "The loss of a little finger and the metacarpal bone thereof, 15 weeks; "The loss of a little finger at the proximal joint, 10 weeks; "The loss of a little finger at the second joint, 8 weeks; "The loss of a little finger at the distal joint, 4 weeks; " The loss of all the fingers of one hand where the thumb and palm remain, 60 weeks; "The loss of a leg at the hip joint, or so near thereto as to preclude the use of an artificial limb, 240 weeks; "The loss of a leg at or above the knee, where stump re- mains sufficient to permit the use of an artificial limb, 160 weeks; "The loss of a foot at the ankle, 120 weeks; "The loss of a great toe with the metatarsal bone thereof, 30 weeks; "The loss of a great toe at the proximal joint, 20 weeks; "The loss of a great toe at the second joint, 10 weeks; "The loss of any other toe with the metatarsal bone thereof 12 weeks; DISABILITY BENEFITS 727 Wisconsin "The loss of any other toe at the proximal joint, 4 weeks; "The loss of any other toe at the second or distal joint, 4 weeks; "The loss of all the toes of one foot, 40 weeks; "The loss of an eye by enucleation, 160 weeks; "The loss of the second eye, by enucleation, 320 weeks; "Total blindness of one eye, 120 weeks; "Total blindness of the second eye, 240 weeks; "Total deafness of both ears, 160 weeks; "Total deafness of one ear, 40 weeks; " Total deafness of the second ear, 120 weeks. "When by reason of infection or other cause not due to the neglect or misconduct of the injured employee, he is actually disabled longer than the time specified in the foregoing sched- ule from earning a wage, compensation shall be paid such em- ployee for such loss of wage within the limits otherwise pro- vided. "For the purposes of this schedule permanent and com- plete paralysis of any member shall be deemed equivalent to the loss thereof. "Whenever an amputation is made between any two joints mentioned in this schedule (except amputations between the knee and hip joint) the resultant loss shall be estimated as if the amputation had been made at the joint nearest thereto. " In all other cases in this class 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. " If an employee is seriously permanently disfigured about the face or head, the commission may allow such sum for compensation on account thereof, as it may deem just, not exceeding $750. "In case of permanent injury to an employee who is over fifty-five years of age, the compensation herein shall be re- duced by 5 per cent; in case he is over sixty years of age, by 10 per cent; in case he is over sixty-five years of age, by 15 per cent. " (a) Where injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of 728 bbadbuky's workmen's compensation law Wisconsin the industrial commission, compensation as provided in sec- tions 2394-3 to 2394-31, inclusive, shall be increased fifteen per cent. "(6) Where injury is caused by the wilful failure of the employee to use safety devices where provided by the em- ployer, or " (c) WhereJnjury results from the employee's wilful failure to obey any reasonable rule adopted by the employer for the safety of the employee, or " (d) Where injury results from the intoxication of the em- ployee, the compensation provided herein shall be reduced fifteen per cent." For compensation where an employe has suffered a pre- vious injury see § 2394-10 subd. 1, (d). CHAPTER XIII WAGES WHICH ARE THE BASIS OF COMPENSA- TION ARTICLE A— Introduction Page 1. In genekal 730 2. Actual earnings not "usual" wages paid in that employment. 3. Absence of agreement as to rate of wages. 4. Basis of compensation when workman em- ployed in different GRADES 5. Longshoremen employed by several employers 733 6. Adding compensation from all sources, in- cluding rent, etc . . . 735 7. "Tips" as part of earn- ings 738 8. Intermittent employ- ment due to strikes and other causes. . . . 739 9. Employment for less than a week 742 Page . 730 730 731 731 10. Change in rate op wages during year 742 11. Father dependent of son; allowance for son's maintenance . . . 743 12. Compensation for pre- vious injury not in- cluded in determining basis of compensation for subsequent injury causing death 744 13. Deducting poor-law be- lief RECEIVED BY DE- PENDENT 744 14. Deducting wages paid to an assistant in computing compensa- tion 745 15. Wages paid seaman un- der shipping act tak- en INTO ACCOUNT IN AWARDING COMPENSA- TION 745 Article B — Specific Provisions of Various Statutes, with Notes 746 Page Arizona 746 California 746 Connecticut 748 Illinois 748 Iowa 750 Kansas 751 Maryland 752 Massachusetts 753 Michigan 754 Minnesota 756 729 730 bbadbuky's workmen's compensation law Actual earnings not "usual" wages paid in that employment Page Page Nebraska 757 Oregon 761 Nevada 757 Rhode Island 761 New Hampshire 757 Texas 763 New Jersey 758 Washington 763 New York 759 West Virginia 763 Ohio 760 Wisconsin 764 ARTICLE A— INTRODUCTION 1. In general. Some of the statutes contain minute directions as to the manner of arriving at the "average" wages or earn- ings, which are to form the basis of the compensation pay- ments. Others contain no specifications whatsoever on this point. It is obvious that the different provisions of the various acts afford much opportunity for judicial construction and interpretation. The cases cited hereinafter show the general rules of construction which have been adopted by the courts in the decisions thus far made. Further de- cisions will be found in the notes to the particular statutory provisions in Article B of this Chapter. 2. Actual earnings not " usual " wages paid in that em- ployment. 1 The weekly earnings of an injured workman are what he has earned in that employment and not the ordinary standard weekly wage earned by others engaged in a similar occupation. Bartlett v. Tutton & Sons (1901), 85 L. T. 531; 4 W. C. C. 133. An arbitrator found that casual ship- wrights (though the standard union rate of wages for both permanent and casual shipwrights is the same per day), are not in the same grade as regular shipwrights, and that the average earnings of the former are much less than the 1 See cases cited in note under titles Massachusetts and Ohio in Article B of this Chapter. WAGES WHICH ARE THE BASIS OF COMPENSATION 731 . Basis of compensation when workman employed in different grades latter. He further found that the weekly earnings of a casual shipwright at the place in question, had for the past twelve months, averaged 30s. and gave compensation to the dependents of a casual shipwright on this basis. This ruling was sustained on appeal. Cain v. Leyland & Co. (1906), 1 B. W. C. C. 368. Where a workman was paid by the hour and earned £1, 18s. Qd. from December 13 to December 20, and £1, 4s. Qd. from December 20 to Decem- ber 27 (Christmas week) it was held that the average of the two weeks must be taken in arriving at the basis of compensation. Faircloth v. Waring & Gillow (1906), 8 W. C. C. 99. 3. Absence of agreement as to rate of wages. Where no rate of wages has been expressly stipulated for and no payment made, an agreement may be implied for the usual rate of wages for that particular class of work, in that locality at that time. Jones v. Walker (1899), 1 W. C. C. 142. Under the New Jersey Act it has been held that where a man worked only one day and there was no agreement as to wages that he was entitled to the niinimum, at least, of $5 a week, as compensation. Mueller v. Oelkers Mfg. Co., (Essex Common Pleas, Feb. 1913), 36 N. J. Law J. 117. 4. Basis of compensation when workman employed in different grades. A workman was employed by the same employer for some time as a boilermaker and for some time as a laborer, and he met with an accident when employed as a laborer. The arbitrator, in calculating his average weekly earnings took into account the amount which the workman had earned as a boilermaker and awarded him compensation on the average wage thus ascertained. It was held that the compensation must be based on the wages the work- man was earning in the grade of employment in which he 732 bradbury's workmen's compensation law" Basis of compensation when workman employed in different grades • met with the accident and that it was error for the arbi- trator to reckon the man's wages as a boilermaker. Babcock & Wilcox v. Young (1911), 48 Scotch L. R. 298; 4. B. W. C. C. 367. Same principle, Perry v. Wright (1908), 98 L. T. 327; 1 B. W. C. C. 351. In the last-mentioned case the principle was established where a man changes from one grade of \«>rk to another that "any step up or step down from one grade to another is to be regarded as com- mencing a fresh employment," in computing the wages upon which compensation is to be based. 1 An arbitrator found that no definite grades existed among casual dock laborers, but that the men formed themselves into grades of good and bad workmen, the good earning about 30s. a week and the bad about 15s. a week, and that the workman whose compensation was in question be- longed to the latter class. On appeal it was held that this was a misdirection as to the meaning of the word "grade." It was held that the word does not involve or depend upon individual characteristics, and that good and bad work- men are not two grades. The case was remitted to an ar- bitrator to determine whether casual dock laborers form a distinct grade in the hierarchy of labor, and if so what are the average wages of the grade. Perry v. Wright; Cain v. Leyland & Co.; Bailey v. Kenworthy; Gough v. Crawshay Brothers (1907), 98 L. T. 327; 1 B. W. C. C. 351. A workman, after injury for which he was paid com- pensation, resumed work in a different department, at a lower wage. He was killed in this latter employment, and the compensation was assessed on the wages of the employment in which he was engaged when he was killed. The Court of Appeal held that the question was one of fact for the County Court judge, and as there was evi- dence to support it, the court could not interfere with the decision. The decision was made on the ground that 1 See cases cited in note under title Massachusetts in Article B of this Chapter, page 753. WAGES WHICH ARE THE BASIS OF COMPENSATION 733 Longshoremen employed by several employers there had been a break in the continuity of the employ- ment of the workman and compensation was therefore assessed upon the basis of the earnings of the man in the second employment. Williams v. The Wynnstay Collieries (1910), 3. B. W. C. C. 473. 5. Longshoremen employed by several employers. Where a longshoreman was employed by various em- ployers and was injured, it was held that the average weekly wages should be determined by adding the amount received from all employers during the week and not merely the amount received from the employer for whom he was working while injured. Gillen v. Ocean Accident & Guar- antee Corporation, 1 Mass. ; 102 N. E. Rep. 346. 1 In the case cited in the text the court said : Rtjgg, C. J. This is an appeal under the Workmen's Compensation Act. St. 1911, c. 751. The employe^ a longshoreman, was injured in the course of his employment by the Canada, Atlantic and Plant Steam- ship Company, which was insured under the act with the insurer. The facts are that the steamship company operates a line between Boston and Halifax, one boat in winter and two boats in summer, arriving at and leaving Boston each week. The longshoremen in its employ work on an average for fifteen to twenty hours weekly, and receive from it not more than $8 a week. The employe^ like other longshoremen, worked for other employers during a day or group of days, and earned by the year by his services an average weekly wage of $13, which was the average weekly wage earned by other longshoremen in the same class of employment in the same district. The insurer contends that the employe was not a regular employe' of the steamship company, and that his average weekly wages must be the average amount per week 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. If this conten- tion is sound, the employ^ would be entitled to $4 per week. The em- ploy6 contends, however, that, inasmuch as he worked continually at his occupation as longshoreman for different employers according to the custom of his craft, he is entitled to receive $6.50, being one-half his average weekly earnings as longshoreman from all sources. "The decision depends upon the meaning of 'average weekly wages' and the method of their ascertainment as set out in Part V, § 2 of the act. 'Average weekly wages' are there denned to mean 'earnings of the 734 bbadbury's workmen's compensation law Longshoremen employed by several employers See also the case of Bonaldi v. Hamburg Am. Line, 36 N. J. Law J. 302, cited in a note to the New Jersey statute in Article B of this Chapter. injured employe 1 during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured em- ploye 1 lost more thaw two weeks' time during such period then the earnings for the remainder of such twelve calendar months shall be divided by the number of weeks remaining after the time so lost has been deducted.' It is apparent both from its phrase and its context that this sentence ap- plies to a continuous employment throughout the year. While the lan- guage is not amplified, it refers to substantially uninterrupted work in a particular employment from which the wages of the employe 1 are derived. The basis is the earning capacity of the workman as shown by such em- ployment. The next clause of the section is, 'Where, by reason of the shortness of the time during which the employe 1 has been in the employ- ment of his employer, or the nature or terms of the employment, it is im- practicable to compute the average weekly wages, as above defined, regard may be had to the average weekly 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.' This clause provides a method for the determination of average weekly wages where the employe 1 for the reasons stated has not been in the service for a year, by reference to the wages of others whose employment is substantially continuous. It affords a guide by which to estimate the compensation to be paid to the employ6 where there are those in the service of the same employer continuously employed in the same grade at the same kind of work. It is apparent that this clause does not cover the employe's case, because there is no substantially continuous employment of longshoremen by this steamship company during the year. It is obvious from the broad scope of the act and its comprehensive dealing with the whole sub- ject that it was intended to provide for the employe 1 as compensation within the limits specified therein a definite proportion of the amount which he earned weekly. It cannot be presumed that the Legislature intended to offer a scheme of accident insurance which would be illusory or barren to large numbers of workmen. 'Weekly wages' as used in the first sentence quoted above plainly means all the wages which the employe 1 receives in the course of a permanent employment, which are all the wages he receives. Where words are used in one part of a statute in a definite sense it may be presumed, in the absence of a plain intent to the contrary, that they are used in the same sense in other places in the same act. There- fore, we reach the conclusion that average weekly wages as used in the WAGES WHICH ARE THE BASIS OF COMPENSATION 735 Adding compensation from all sources, including rent, etc. 6. Adding compensation from all sources, including rent, etc. 1 A stoker on a merchant vessel was also a stoker in the Naval Reserve and his position in the Naval Reserve en- clause of the act last quoted was not intended to apply to recurrent periods of brief service at regular intervals, in cases where the entire time of the workmen is devoted to like employment for other employers in the same general kind of business. The final clause of the paragraph defining aver- age weekly wages is as follows: 'or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district.' This clause affords reference to a general average of like employment in the neighborhood as a standard to be considered. It does not restrict consideration of the matter to the same employer. It applies to a case like the present, where the custom of the employment is for continuous work of a specified kind for different employers. " While the language of the definition is not so clear as might be desired, it seems to us to be intended to include in abridged form parts of (1) (6) and (2) (a) and (6) of the first schedule of the English Workmen's Compen- sation Act, 6 Edw. VII (1906), c. 58. It is true that (2) (6) of the English schedule covers a case like the present in express language. But the Eng- lish act is more minute in many of its provisions, and our act resembles the present English act far more closely than it does the earlier one of St. 60 & 61 Vict., c. 37. Although not stated in precise words, we think that the general import of the act is to base the remuneration to be paid upon the normal return received by workmen for the grade of work in which the particular workman may be classified. This is the case where it is 'im- practicable' to reach a result which shall be fair to the workman to the extent intended by the act of giving him compensation for average weekly earnings in any other way than by following the course pointed out in the final clause of the definition. See Ferry v. Wright (1908), 1 K. B. 441; Anslow v. Cannock, Chase Colliery Co. (1909), 1 K. B. 352; S. G. (1909) A. C. 435. "This is not a case where the usual employment of the employe' is only two br three days in the week as pointed out in White v. Wiseman (1912), 3 K. B. 352, 359, but a case where the condition of the workman is con- tinuous labor in regular employment with different employers. The loss 1 See note to title Massachusetts, in Article B of this Chapter, at page 753. "" Pensions from the U. S. Government are not considered. Re Harriet H. Horn, Claim No. 1013, Ohio St. Lia. Bd. Awd. Dec. 23, 1912. 736 bradbury's workmen's compensation law Adding compensation from all sources, including rent, etc. titled him to draw £6 a year. He met with an accident which disabled him from work, and it was held that in estimating the average weekly earnings, the sum which he received as stoker in the Naval Reserve must be added to the wages received by him as a stoker in the merchant service. Brandy v. Owners of S. S. "Raphael" (1910), 4 B. W. C. C*6, aff'd by House of Lords (1911), 4 B. W. C. C. 307. The remuneration of a ship's steward who was drowned was found by the County Court judge to be £232. He was entitled, in addition, to "extra wages," which, how- ever, only became payable on the happening of certain events, which had in fact happened, and also to profits on the sale of whiskey. The employers contended that such extra payments should be taken into consideration and that if they amounted to more than £18 the total remuneration would exceed £250, in which case the de- pendents would be excluded from the benefits of the Act. The County Court judge declined to take such sums into consideration and awarded compensation. It was held on appeal to the Court of Appeal of England that such extra payments must be taken into consideration and that the case must go back to the County Court judge to ascertain, the best way he could, their value. Skailes v. Blue Anchor Line (1910), 4. B. W. C. C. 16. In estimating the compensation to which the dependents of a workman killed by accident are entitled when such workman has worked continuously for three years for the same employer, no account can be taken of the wages earned by him under concurrent contracts with other em- ployers. Buckley v. London & India Docks (1909), 127 L. T. J. 521; 2 B. W. C. C. 327. The value of clothing received as part of the emolu- of his capacity to earn, as demonstrated by his conduct in such regular employment, is the basis upon which his compensation should be based. Decree affirmed." WAGES WHICH ARE THE BASIS OF COMPENSATION 737 Adding compensation from all sources, including rent, etc. ments of service is part of the workman's (railway guard) earnings. Great Northern Ry. Co. v. Dawson (1905), 92 L. T. 145; 7 W. C. C. 114. Where a seaman in claiming compensation added the amount of his wages to the amount it would cost him for food and lodging, and his employers contended that the food did actually cost considerably less than the amount claimed by the seaman, it was held in upholding an award of the County Court judge that the proper amount in this case was the wages plus the actual cost to the employer of the food and lodging. It was stated further that the cost of food and lodging to the employer is not in every case the test of the value of the same to the workman, where compensation is claimed. Rosenquist v. Bowing & Co. (1908), 98 L. T. 773; 1 B. W. C. C. 395. Where a seaman receives wages and food as part of his remuneration, the test in ascertaining the amount of his average wages is not what he saved by receiving the food, but what was the actual worth to him of the reason- able food supplied by the employers. Dothie v. MacAndrew & Co. (1908), 98 L. T. 495; 1 B. W. C. C. 308. Deductions from wages for articles supplied which are part of the necessary equipment of a workman form part of his earn- ings. Abram Coal Co. v. Southern (1903), 5 W. C. C. 125. Occasional and fixed allowances for board and lodging, when away from home, are included in earnings. Sharpe v. Midland Ry. Co. (1903), 88 L. T. 545; 5 W. C. C. 128, aff'd, Midland Ry. Co. v. Sharpe (1904), 6 W. C. C. 119. Deductions from wages for things supplied to a workman necessary for the performance of his work, for example, lamp oil supplied to a miner, do not reduce the amount of his earnings. Houghton v. Sutton Heath and Lea Green Collieries Co. (1900), 3 W. C. C. 173. The rent of a cottage belonging to the employer and occupied by the workman, may properly be deducted from the amount of compensation awarded under an agree- ment between the employer and employed Brown v. The 47 738 bradbury's workmen's compensation law "Tips" as part of earnings South Eastern & Chatham Railway Co.'s Managing Com- mittee (1910), 3 B. W. C. C. 428. Regular employment at a fixed wage on two fixed nights in each week is continuous employment for the purpose of determining the number of weeks for which the weekly earnings are to be averaged. If, in addition to such fixed wage, other \jjages are earned from the same employer for irregular and uncertain employment, these wages are not to be taken into account in calculating the average weekly earnings. Hathaway v. Argus Printing Co. (1900), 3 W. C. C. 177. An applicant was injured at a laundry where she earned 7s. a week. She also received from another person 3s. a week for teaching children to play the piano at their own home, where she went for that purpose every Saturday. The County Court judge found that the applicant's ar- rangement for teaching the piano was not a "contract of service," and that therefore the applicant had not entered into concurrent contracts of service within the meaning of Schedule I (2) (b), and he awarded the applicant compen- sation on the basis of 7s. a week received for work at the laundry. It was held on appeal that the question whether the applicant, in her arrangement for teaching the piano, was a workman under a contract of service was a ques- tion of fact. There is a dictum in the same case that an usher in a private school, or a teacher, or a nursery gov- erness, would, under ordinary circumstances, be entitled to claim the benefit of the Act. Simmons v. The Heath Laundry Co. (1910), 102 L. T. R. 210; 3 B. W. C. C. 200. 7. " Tips " as part of earnings. In calculating a workman's average weekly earnings, where the evidence is that he habitually received certain tips to the knowledge of his employers it was held that the court was entitled to take these tips into considera- tion, although they were given for services outside his WAGES WHICH AKE THE BASIS OF COMPENSATION 739 Intermittent employment due to strikes and other causes ordinary employment. Knott v. Tingle Jacobs & Co. (1910), 4 B. W. C. C. 55. A man in respect of whose death compensation was claimed, had been employed as a waiter on a dining car. In addition to his pay and meals he received from the railway company gratuities or tips from passengers aver- aging from 10s. to 12s. a week. It was held that the tips were part of the earnings of the deceased. Penn v. Spiers & Pond (1908), 1 B. W. C. C. 401. 8. Intermittent employment due to strikes and other causes. 1 Intervals from work not amounting to a break in the employment should not be excluded in calculating average weekly earnings. If a man has been employed for twelve months, but has taken odd weeks off, the total amount of his earnings should be divided by fifty-two in order to calculate his average weekly earnings. Keast v. The Barrow Haematite Steel Co. (1899), 1 W. C. C. 99. If there has been a break in the employment, for example, a strike, during the previous twelve months, the period of calcula- tion in assessing the average weekly earnings is the period of the new employment. The test of whether there has been a break in the employment is whether the relation- ship of master and servant has been continuous or not; a mere interval in the time the contract of service or work is running is not sufficient. Jones v. Ocean Coal Co. (1899), 80 L. T. 582; 1 W. C. C. 94. Where there is a break in the employment, which amounts to a determination of the old employment, the period over which the average weekly earnings should be assessed is that immediately preceding the injury. Appleby v. The Horseley Co. & Lovatt (1899), 80 L. T. 853; 1 W. C. C. 103. If a man is away from work for eleven weeks and returns without 1 See notes under titles Massachusetts, Michigan, New Jersey and Ohio in Article B in this Chapter. 740 bradbury's workmen's compensation law Intermittent employment due to strikes and other causes any fresh engagement, having left his tools on the job, there is evidence of a break in the employment. Hewlett v. Hepburn, 2 W. C. C. 123. Where during the twelve months prior to the accident the mills, in which the appli- cant worked, had been on short time owing to slackness of trade, and the applicant had not always worked a full week, it was lield that she was entitled to the average weekly earnings which she had actually earned during the preceding twelve months. Kelly v. York Street Flax Spin- ning Co. (1909), 43 Irish L. T. J. 81; 2 B. W. C. C. 493. In the last-mentioned case it appeared that in previous years the applicant had worked and earned more than she had during the last twelve months, but the larger earnings were not taken into consideration in fixing the compen- sation. In ascertaining the average weekly earnings of a work- man, the recognized and known incidents of his employ- ment must be taken into consideration. Therefore where the injured workman was retained in the employment during the whole year, but owing to the fact that the work was discontinuous, he could not have worked for more than thirty-six weeks during the twelve months preceding the accident, fourteen weeks having been taken up by stoppages in the ordinary course of work, and two weeks being recognized holidays, and he did not in fact work for more than thirty-three weeks, it was held that the basis of the compensation was 33/52 of his earnings during the thirty-three weeks he had actually worked. (House of Lords), Anshw v. Cannock Chase Colliery Co. (1909), 100 L. T. 786; 2 B. W. C. C. 365. As to the method of arriving at the average weekly earnings of a workman, Motjlton, L. J., said in the case of -Perry v. Wright (1907), 98 L. T. 327; 1 B. W. C. C. 351, at page 356 of the last-mentioned report: "The object of the schedule is to arrive at a fair esti- mate of what the workman was earning at the date of the accident. But to regard this as rigidly determined by the I WAGES WHICH ARE THE BASIS OF COMPENSATION 741 Intermittent employment due to strikes and other causes rate at which he was earning remuneration at the precise moment of the accident would be to adopt a principle which would often lead to unfair results. The remunera- tion which the workman was earning at that particular moment might be abnormally exaggerated or diminished by reason of temporary and exceptional causes which would make it an inaccurate measure of the workman's normal earnings. The legislature, therefore, by the use of the word 'average' indicates that the rate of remuneration is to be arrived at by taking into consideration the earnings during an adequate length of time previous and up to the time of the accident for the purpose of obtaining the average remuneration during that period, rightly deem- ing that this will more fairly represent the rate of remuner- ation which the workman was then receiving than would any method of estimating the rate of remuneration solely based on the state of circumstances prevailing at the pre- cise moment of the accident." The learned judge then discusses the provisions of the British Compensation Act which are not entirely the same as those found in the acts of the different States, and lays down the principle that where a certain length of time is taken in computing the average wage that the weeks when there was an enforced idleness by reason of holidays or breakage in machinery, ought to be considered as part of the time employed even though the workman did not receive anything for that time and the average wage reduced accordingly. An employe had worked for the same employer more than twelve months. The total of his wages for the twelve months before the accident were £83, 2s., Id., but during the year there had been stoppages: 1st. In consequence of a canal having burst; 2d. During the wake week; 3d. By reason of accidents to machinery; 4th. On bank holidays. The arbitrator divided the total sum earned by fifty- 742 Bradbury's workmen's compensation law Change in rate of wages during year two for the purpose of arriving at the average weekly earn- ings of the workman in question. It was held on appeal that this was error and that the same should have been divided by the number of weeks or parts of weeks actually worked. Bailey v. Kenworthy (1906), 1 B. W. C. C. 371. In ascertaining the average weekly earnings of an in- jured workmaifcregard must be had to those weeks in which the workman has not been able to earn full wages owing to the slackness of trade, as this was an incident of the employment. White v. Wiseman (1912), 5 B. W. C. C. 654. 9. Employment for less than a week. Where a workman has worked less than one week he is only entitled to a moiety of what he has actually earned. Peers v. Asttey and TyldesUy Collieries Co. (1901), 3 W. C. C. 185. Where a workman has worked for less than one week he is entitled to a moiety of what he would have earned if he had continued to work for the whole week. Greaves v. Mulliners (1901), 3 W. C. C. 189. Where a man worked eleven hours one day at the rate of Qd. per hour, and then was injured it was held that the basis of compensation was the actual amount earned and he was awarded one-half of 5s. Qd., or 2s. 9d. per week. Case v. Colonial Wharves (1905), 8 W. C. C. 114. 10. Change in rate of wages during year. The period of employment for assessing average weekly earnings is not affected by a change in the character of the employment and a consequent change in the rate of wages. When during employment for twelve months there has been a change in the rate of wages, the average must be taken on the earnings for the whole twelve months, and not on the earnings at the time of the accident. Price v. Marsden & Sons (1899), 80 L. T. 15; 1 W. C. C. 108. WAGES WHICH ARE THE BASIS OF COMPENSATION 743 Father dependent of son; allowance for son's maintenance The word "average" in the expression "average weekly earnings" is only applicable where the weekly earnings differ in amount. Lysons v. Andrew Knowles & Sons, Stuart v. Nixon & Bruce (1901), 3 W. C. C. 1. Fluctua- tions in the value of labor should be taken into considera- tion in determining the amount of compensation. James v. Ocean Coal Co. (1904), 6 W. C. C. 128. Where a workman had earned £3 for five weeks as a grinder and £2 as a day laborer for two weeks, it was held that the wages for the total employment should be con- sidered in arriving at the average weekly wages. Dobson v. British Oil and Cake Mills (1912), 5 B. W. C. C. 405. Where by reason of the Eight Hours Act which had come into effect since the accident, the rate of a work- man's wages would be reduced, it was held that the court should take this fact into consideration in assessing com- pensation. Bevan v. Energlyn Colliery Co. (1911), 5 B. W. C. C. 169. 11. Father dependent of son; allowance for son's main- tenance. The applicant was the father of a workman who met with a fatal accident. At the time of his death the work- man was aged fourteen years. His wages were 6s. lid. per week, which were given to his father and helped to maintain the family. The father worked at a colliery, and supplemented his earnings by carrying on the trade of a barber on certain evenings and part of Saturday. The deceased used to assist his father as a barber, and the father estimated his services as worth 6s. per week. The County Court judge held that the father was not a de- pendent or partial dependent, inasmuch as the 6s. lid. was not more than sufficient to maintain the deceased. The decision of the County Court judge was reversed by the Court of Appeal, holding that in case of partial de- 744 bradbury's workmen ; s compensation law Deducting poor-law relief received by dependent pendency; it was not legitimate to have regard to the amount which the maintenance of the deceased would have cost. Hall v. Tamworth Colliery Co. (1910), 4 B. W. C. C. 107. The decision of the Court of Appeal was reversed by the House of Lords, however, where it was held that in determining the question of fact as to the father's de- pendency on Hhe son, the County Court judge should consider both the cost of the maintenance of the son and the value to the father of the son's services in the barber business. Tamworth Colliery Co. v. Hall (1911), 4 B. W. C. C. 313. 12. Compensation for previous injury not included in de- termining basis of compensation for subsequent in- jury causing death. A workman who had been a- collier in the respondents' mine was, at the time of his death, employed at light work. He had previously met with an accident in the same em- ployment, and was at the time of the second accident, which proved fatal, receiving some compensation in addition to the wages for the light work. It was held that the com- pensation which the deceased workman was receiving could not be taken into account in estimating his earnings as a basis of compensation to his dependents for his death. Gough v. Crawshay Brothers, 1 B. W. C. C. 374. 13. Deducting poor-law relief received by dependent. The mother of a deceased workman earning £1 weekly claimed compensation as a partial dependent. She was, before and after her son's death, in receipt of poor-law relief of 2 shillings weekly, and received 14 shillings weekly from deceased. It was held that the method of calculating the sum was to award three years' earnings, and then to deduct from that three years at 2 shillings weekly, for the space of three years. Byles v. Pool and another (1909), 2 B. W. C. C. 484. WAGES WHICH ARE THE BASIS OF COMPENSATION 745 Wages paid seaman under shipping act 14. Deducting wages paid to an assistant in computing compensation. Where a miner was killed it was held that the portion of his wages which he paid to an assistant should be de- ducted in computing the compensation, but that the cost of the explosives bought by him in the prosecution of the work, should not, under § 2, subsection (d) be deducted, in computing such compensation. M'Kee v. John S. Stein & Co. (1909), 47 Scotch L. R. 39; 3 B. W. C. C. 544. 15. Wages paid seaman under shipping act taken into account in awarding compensation. 1 A seaman was injured at sea, and eight days later was placed in a hospital at New York, and discharged from the ship. In pursuance of the Merchant Shipping Acts, the shipowners paid him wages in respect of the eight days, maintained him in the hospital, and brought him back to England on his recovery. He claimed compensa- tion from the date of his return to England. The em- ployers asked that accounts should be taken of the wages for the eight days as a payment made by them to the work- man during incapacity. The County Court judge held that these wages being paid under a statutory liability, could not be so taken into account. The Court of Appeal reversed its decision. The House of Lords reversed the decision of the Court of Appeal, and held that the wages paid for eight days must be taken into account in fixing the amount of the weekly payments. McDermott v. Owners of S. S. Tintoretto (1911), A. C. 35; 4 B. W. C. C. 123. 1 Pensions from the United States government should not be con- sidered in arriving at wages. See note to title Ohio in Article B, in this Chapter. 746 bradbury's workmen's compensation law California ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES, WITH NOTES ARIZONA "A sum equal to fifty (50) per centum of the workman's average semi-fcionthly earnings when at work on full time during the preceding year, if he shall have been in the em- ployment of such employer for such length of time; but if not for a full year, then fifty (50) per centum of the average wages, whether semi-monthly, weekly, or daily, being earned by such workman during the time he was at work for his employer before and at the time of the accident." § 72, Subd. 1. CALIFORNIA 1 " § 17. (a) The average weekly earnings referred to in section fifteen hereof shall be one fifty-second of the average annual earnings of the employe; in computing such earnings his average annual earnings shall be taken at not less than three hundred and thirty-three dollars and thirty-three cents, nor at more than one thousand six hundred and sixty- six dollars and sixty-six cents and between said limits shall be arrived at as follows: " (1) If the injured employ6 has worked in the same em- ployment, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily earnings, wage or salary which he earned as such employe" during the days when so employed. 1 Applicant applied for a decision on the rate of wage payment for an injury sustained while in. defendant's employ. The issue was as to con- tract work. Held that applicant, even though working on a contract basis, was an employe 1 of the defendant and should receive compensation on his average wage while so employed and not on his average wage while working on a day's pay basis. There was only two weeks' compensation involved. Hart v. Mammoth Copper Mining Co., Cal. Indus. Ace. Bd., May 15, 1913. WAGES WHICH ARE THE BASIS OF COMPENSATION 747 California "(2) If the injured employe 1 has not so worked in such employment during substantially the whole of such im- mediately preceding year, his average annual earnings shall consist of three hundred times the average daily earnings, wage or salary which an employe" of the same class, working substantially the whole of such immediately preceding year, in the same or a similar kind of employment, in the same or a neighboring place, earned during the days when so employed. "(3) In every case where for any reason the foregoing methods of arriving at the average annual earnings of the injured employe" cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employ^, and of other employes of the same or most similar class, working in the same or most similar employment, in the same or neighboring locality, shall reasonably represent the average annual earning capacity of the injured employ^ at the time of the injury in the kind of employment in which he was then working, or in any employment similar thereto. "(b) In determining such average weekly earnings, there shall be included the market value of board, lodging, fuel and other advantages received by the injured employ^, as part of his remuneration and which can be estimated in money, but such average weekly earnings shall not include any sum which the employer paid to the injured employe" to cover any special expenses entailed on him by the nature of his employment. " (c) If the injured employe" is a minor, and his incapacity, whether total or partial, is permanent, his average weekly earnings shall be deemed, within the limits fixed, to be the weekly sum, that under ordinary circumstances he would probably be able to earn after obtaining the age of twenty- one years, in the occupation in which he was employed at the time of the injury, if he had not been injured." When an employe receives two injuries at different times the wages on which the compensation is to be based are those received at the time of the later injury. See § 16 (/) in Chapter XII. 748 bradbury's workmen's compensation law Illinois CONNECTICUT "Part B, § 13. Average Weekly Earnings. For the pur- pose of this act, the average weekly wage shall be ascertained by dividing the total wages received by the injured work- man from the employer in whose service he is injured during the twenty-sik calendar weeks immediately preceding that during which he was injured, by the number of said calendar weeks during which, or any portion of which, said workman was actually employed by said employer, provided in making such computation absence for seven consecutive calendar days, although not in the same calendar week, shall be con- sidered as absence for a calendar week. Where the em- ployment commenced other than at the beginning of a calendar week, such calendar week and the wages earned during such week, shall be excluded in making the above computation. Where the employment previous to injury as provided above is computed to be less than a net period of two calendar weeks, then his weekly wage shall be con- sidered to be equivalent to the average weekly wage pre- vailing in the same or similar employment in the same locality at the time of injury." ILLINOIS "§ 10. The basis for computing the compensation pro- vided for in sections 7 and 8 of the Act shall be as follows: " (a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury. "(b) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employe was employed at the time of the acci- dent, uninterrupted by absence from work due to illness or any other unavoidable cause. "(c) If the injured person has not been engaged in the WAGES WHICH ABB THE BASIS OP COMPENSATION 749 Illinois employment of the same employer for the full year immedi- ately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same loca- tion, (or if that be impracticable, of neighboring employ- ments of the same kind) have earned during such period. "(d) As to employes in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as 300 times the average daily earnings in such computation. "(e) As to employes in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, provided the minimum number of days which shall be so used for the basis of. the year's work shall be not less than 200. "(/) In the case of injured employes who earn either no wage or less than the earnings of adult day laborers in the same line of employment in that locality, the yearly wage shall be reckoned according to the average annual earnings of adults of the same class in the same (or if that is imprac- ticable, then of neighboring) employments. "(g) Earnings, for the purpose of this section, shall be based on the earnings for the number of hours commonly regarded as a day's work for that employment, and shall exclude overtime earnings. The earnings shall not include any sum which the employer has been accustomed to pay the employe to cover any special expense entailed on him by the nature of his employment. "(h) In computing the compensation to be paid to any employ^, who, before the accident for which he claims com- pensation, was disabled and drawing compensation under the terms of this Act, the compensation for each subsequent injury shall be apportioned according to the proportion of incapacity and disability caused by the respective injuries which he may have suffered. "(i) To determine t>he amount of compensation for each 750 bradbury's workmen's compensation law Iowa installment period, the amount per annum shall be ascer- tained pursuant hereto, and such amount divided by the number of installment periods per annum." IOWA "§ 16. The basis for computing compensation provided for in this act shall be as follows: "(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings in the employment of the same employer during the year next preceding the injury. "(b) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employ6 was employed at the time of the acci- dent, uninterrupted by absence from work due to illness or any other unavoidable cause. "(c) The annual earnings, if not otherwise determinable, shall be regarded as three hundred (300) times the average daily earnings in such computation. "(d) If the injured person has not been engaged in the employment for a full year immediately preceding the acci- dent, the compensation shall be computed according to the annual earnings which persons of the same class in the same or in neighboring employments of the same kind have earned during such period. And if this basis of computation is impossible, or should appear to be unreasonable, three hundred (300) times the amount which the injured person earned on an average of those days when he was working during the year next preceding the accident, shall be used as a basis for the computation. " (e) In case of injured employes who earn either no wages or less than three hundred (300) times the usual daily wage or earnings of the adult day laborer in the same line of in- dustry of that locality the yearly wage shall be reckoned as three hundred (300) times the average daily local wages of the average wage earned in that particular kind or class of work; or if information of that class is not obtainable, WAGES WHICH. ARE THE BASIS OF COMPENSATION 751 Kansas then of the class or kindred or similarity in the same general employment in the same neighborhood. "(f) As to employes in employments in which it is the custom to operate for a part of the whole number of work- ing days in each year such number shall be used instead of three hundred (300) as a basis for computing the annual earnings, provided, the minimum number of days which shall be used for the basis of the year's work shall not be less than two hundred (200). "(g) Earnings, for the purpose of this section, shall be based on the earnings for the number of hours commonly regarded as a day's work for that employment, and shall exclude overtime earnings. The earnings shall not include any sum which the employer has been accustomed to pay the employ^ to cover any special expense entailed on him by the nature of his employment. "(h) In computing the compensation to be paid to any employe 1 who, before the accident for which he claims com- pensation, was disabled and drawing compensation under the terms of this act, the compensation for each subsequent injury shall be apportioned according to the proportion of incapacity and disability caused by the respective injuries which he may have suffered. KANSAS "§ 12. Rule for compensation. For the purposes of the provisions of this act relating to 'earnings' and 'average earnings' of a workman, the following rules shall be observed: (a) 'Average earnings' shall be computed in such manner as is best calculated to give the average rate per week at which the workman was being remunerated for the 52 weeks prior to the accident. Provided, that where by reason of the shortness of time during which the workman has been in the employment of his employer, or the casual nature or the terms of the employment, it is impracticable to com- pute the rate of remuneration, regard shall be had to the average weekly amount which, during the twelve months 752 bradbury's workmen's compensation law -• Maryland previous to the accident, 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 employed, by a person in the same grade employed in the same class of employment and in the same district, (b) Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his 'earnings' and his 'average earnings' shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident, (c) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the workman was employed at the time of the accident, uninterrupted by his absence of work due to illness or any other unavoid- able cause, (d) Where the employer has been accustomed to pay to the workman a sum to cover any special expenses entailed upon him by the nature of his employment, the sum so paid shall not be reckoned as part of the earnings, (e) In fixing the amount of the payment, allowance shall be made for any payment or benefit which the workman may receive from the employer during his period of in- capacity. (/) In the case of partial incapacity the pay- ments shall be computed to equal, as closely as possible, fifty per cent of the difference between the amount of the 'average earnings' of the workman before the accident, to be computed as herein provided, and the average amount which he is most probably able to earn in some suitable employment or business after the accident, subject, how- ever, to the limitations hereinbefore provided." MARYLAND See § 5, (a) and (b) for the manner of computing the wages in death cases and § 5 (II) and (III) for provisions on this subject relating to disability payments. WAGES WHICH AEE THE BASIS OF COMPENSATION 753 Massachusetts MASSACHUSETTS * "Part V, § 2. * * * 'Average weekly wages' shall mean the earnings of the injured employe during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employe 1 The Massachusetts Industrial Accident Board has announced the following formula in determining the average weekly wages of injured employes: hours constitute one week, Wages are paid on (give date of week). For week ending (give day of week). Total amount received by injured employe during the year ending (give day of injury) $ Number of "short-time" weeks Full time for above number of weeks hours Number of hours employed during "short-time " period hours. Time lost during "short-time" period hours. Full year, 52 weeks. Time lost weeks. Left after "time-lost" is deducted weeks. Total amount earned: I Divided by weeks gives average weekly wage $ Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 10. Where an employe was engaged as an elevator attendant during the first six of twelve months preceding his death and as a watchman at an increased wage during the last six months, it was held that the average weekly wage of the employe during the last six months controlled, as this was the last grade of employment. See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 9. In short time disability cases the Board will approve claims for compen- sation made with employes in which the weekly wage received at the time of the injury, as shown in the accident report, is accepted as the average weekly wage under the authority of Part III, § 4 of the Act. Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 9. In determining the average weekly wages under the statute the value of board, clothing, gratuities, etc., must be taken into consideration and if a man is engaged by more than one employer, that is to say, in the case of a longshoreman, and who works for one employer part of the day or week and for another or several employers the balance of the day or week, he is entitled to compensation based upon one-half of the average weekly 48 754 bradbury's workmen's compensation law Michigan 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 weeks remaining after the time so lost has been deducted. Where, by reason of the shortness of the time during which the employe 1 has been in the employment of his employer, or the nature or terms of the emplojjment, it is impracticable to compute the aver- age weekly wages, as above defined, regard may be had to the average weekly 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 em- ployer; or, if there is no person so employed, by a person in the same grade employed in the same class of employment and in the same district." MICHIGAN 1 / "Part II, § 11. The term 'average weekly wages' as used in this act is defined to be one fifty-second part of the aver- age annual earnings of the employed If the injured em- ploy^ has not worked in the employment in which he was wages of longshoremen employed in the same class of work in the same dis- trict. See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 9. Overtime earnings in continuous or regular employments should not be charged off against lost time in computing the average weekly wages. See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 8. The average weekly wages of the employe were determined by obtaining a statement of the wages earned by a fellow employe equally competent, who was employed by the same employer in the same grade, and it was held that this was necessary on account of the shortness of time during which the claimant had been working for her employer. Regan v. Travelers Ins. Co., Mass. Indus. Ace. Bd. 1 "The term 'average weekly wages' is defined in section 11, part 2, of Act 10, Public Acts 1912, and the method of computing and determining such 'average weekly wages' of an injured employ^, is set forth in said section with considerable detail. Where the employ^ receives a weekly salary or has been steadily employed throughout the year, the determina- tion of the question is a simple matter, and in cases where the employe 1 has been working substantially full time, but for a period substantially less than one year, the method of computation seems to be clearly covered WAGES WHICH ARE THE BASIS OF COMPENSATION 755 Michigan working at the time of the accident, whether for the employer or not, during substantially the whole of the year immedi- ately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. If the injured employe" has not worked in such employment during substantially the whole of such immediately preceding year, his average by the statute. In the case of steady employment throughout one or more years, the average annual earning of the employe" for the last preceding year is determined and the aggregate thereof, when divided by 52, gives the 'average weekly wages.' In the case of steady employment for a period substantially less than one year, the 'average weekly wages' is determined by multiplying the average daily wage of the employ^ by 300 and dividing by 52. "In the case under consideration, where it appears that the employ^ continues to work throughout the year, but is engaged less than full time, the rule for determining the average weekly wages becomes less obvious, and possibly such rule in some instances must bend to conditions and cir- cumstances. However, from a careful examination of the provisions of section 11, part 2, of the act, and similar provisions in the compensation laws of other states and the construction put upon the same by the courts, the board is of the opinion that the general rule in this class of cases is to determine the average weekly wages by multiplying the daily wage by 300 and dividing by 52. "We recognize that there are some classes of employment where, from the nature of business, the employment is limited to certain days weekly, and in these and other cases the workmen are employed more or less by others during the time not spent in the service of the employer for whom they were working when injured. It is obvious that a different rule would apply in some case arising out of the last mentioned classes of employ- ment, and that such cases would have to be determined upon the particu- lar facts and circumstances found to exist. These could be determined by the board only when they came before it in due course for hearing and adjustment." Ruling of Michigan Industrial Accident 'Board, November, 1912. A miner was actually at work 131 days in a mine which was operated 148 days during the entire year. It was held that in determining his daily wage the amount which he actually earned should be divided by the num- ber of days he actually worked. Anna AndrewjesM v. Wolverine Coal Co., Mich. Indus. Ace. Bd., March, 1913. 756 bradbury's workmen's compensation law Minnesota annual earnings shall consist of three hundred times the average daily wage or salary which an employe of the same class working substantially the whole of such immediately preceding year in the same or a similar employment in the same or a neighboring place, shall have earned in such em- ployment during the days when so employed. In cases where the foregoing methods of arriving at the average annual earnings of the injured employe" cannot reasonably and fairly be applied, such annual earnings shall be taken at such sum as, having regard to the previous earnings of the injured employ^, and of other employes of the same or most similar class, working in the same or most similar employ- ment, in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured em- ploye" at the time of the accident in the employment in which he was working at such time. The fact that an employe" has suffered a previous disability, or received compensation therefor, shall not preclude compensation for a later injury, or for death, but in determining compensation for the later injury, or death, his average annual earnings shall be such sum as will reasonably represent his annual earning capacity at the time of the later injury in the employment in which he was working at such time, and shall be arrived at accord- ing to and subject to the limitations of the provisions of this section. The weekly loss in wages referred to in this act shall consist of such percentage of the average weekly earnings of the injured employ^, computed according to the provisions of this section, as shall fairly represent the pro- portionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, the same to be fixed as of the time of the acci- dent, but to be determined in view of the nature and extent of the injury." MINNESOTA The computation is based on the wages the employe receives at the time of the injury. Part II, § 13. "WAGES WHICH ARE THE BASIS OF COMPENSATION 757 New Hampshire NEBRASKA "Part II, §26. Wherever in this Act the term 'wages' is used, it shall be construed to mean the money rate at ■which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others, nor shall it include board, lodging or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring. In occupations involving seasonal employment or employments dependent upon the weather, the employees weekly wages shall be taken to be one-fiftieth of the total wages which he has earned from all occupations during the year immediately preceding the accident, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not ascertain fairly the earnings of the employe, in which case the period for calcu- lation shall be extended so far as to give a basis for the fair ascertainment of his average weekly earnings. In continu- ous employments, if immediately prior to the accident the rate of wages was fixed by the day or hour, or by the out^ put of the employ^, his weekly wages shall be taken to be five and one-half times his average earnings at such rate for a working day of ordinary length, excluding earnings from overtime and using as the basis of calculation his earn- ings during so much of the preceding six months as he worked for the same employer." NEVADA The act provides for payment of certain percentages of the workmen's "average monthly earnings," but this term is not denned. See § 25. NEW HAMPSHIRE The term average wages is not specially denned in the New Hampshire Act. See § 6. 758 bradbury's workmen's compensation law New Jersey NEW JERSEY J "§ III, 23. * * * 'Wages' defined. Wages fixed by out- put. Wherever in section two of this act the term 'wages' is used, it shall be construed to mean the money rate at which the service rendered is recompensed under the con- tract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others. nor shall jt include board, lodging or similar advantages received from the employer, unless the money value of such advantages shall have been fixed by the parties at the time of hiring. Where prior to the accident the rate of wages is fixed by the output of the employe^ his weekly wages shall be taken to be six times his average daily earn- ings for a working day of ordinary length, excluding over- time. This rate of weekly wages shall be calculated by dividing the total value of the employe's output during the actual number of full working days during the preceding 1 Where, by reason of inclement weather the workman was not employed regularly, but the highest amount earned in one week was $15.75, and the lowest $2.40, it was held that the amount earned during the entire period should be taken and divided by the number of weeks employed to deter- mine the wages upon which the compensation should be based. Re Wal- ton; (Mercer Common Pleas, May 10th, 1912); 35 N. J. Law J. 184. Where a longshoreman worked irregular hours, it was held that in de- termining the amount of his wages the amount earned for night work should be added to the amount earned in the day time, and this rule was not changed by the fact that for the night work he received extra compen- sation. Bonaldi v. Hamburg Am. Line, 36 N. J. Law J. 302. A workman applying for work was asked if he understood the use of saws, to which he replied that he did, and he was put to work without any agreement as to the amount of wages which he was to receive. On the same day that he started to work he was injured by one of the saws. It was held that the workman was entitled to compensation of at least the minimum amount specified in the statute of $5 a week, for the number of weeks specified in the act for the loss of a thumb and the partial loss of the use of the first finger and the loss of the use of the fourth finger. Mueller v. Oelkers Mfg. Co., (Essex Common Pleas, February, 1913); 36 N. J. Law 117. WAGES WHICH ARE THE BASIS OF COMPENSATION 759 New York six months, by the number of days the workman was actually employed. All parts of this calculation shall refer to employ- ment by the same employer." NEW YORK "§3, subd. 9. 'Wages' means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer." "§ 14. Weekly wages basis of compensation. Except as otherwise provided in this chapter, the average weekly wages of the injured employe at the time of the injury shall be taken as the basis upon which to compute compensation or death benefits, and shall be determined as follows: "1. If the injured employe shall have worked in the employment in which he was working at the time of the accident, whether for the same employer or not, during sub- stantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed; "2. If the injured employe shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employe of the same class working substantially the whole of such immediately preceding year in the same or in a similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed; "3. If either of the foregoing methods of arriving at the annual average earnings of an injured employe 1 cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employe and of other employe's of the same or most similar class, working in the same or most similar 760 bradbury's workmen's compensation law Ohio employment in the same or neighboring locality, shall reason- ably represent the annual earning capacity of the injured employe 1 in the employment in which he was working at the time of the accident; "4. The average weekly wages of an employe" shall be one-fifty-second part of his average annual earnings; "5. If it be established that the injured employe" was a minor whe» injured, and that under normal conditions his wages would be expected to increase, the fact may be considered in arriving at his average weekly wages." OHIO 1 "§ 1465-84; § 37, Act of 1913. The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute, the benefits. "§ 1465-85; § 38,> Act of 1913. If it is established that 1 An employe having been regularly employed by the same employer for a period longer than one year the average weekly wage is determined by dividing the aggregate amount of his earnings preceding his death by 52. Re Anna King, Claim No. 1645, Ohio St. Lia. Bd. Awd., Jan. 29, 1913. In the last-mentioned case it appeared that during the last year the work- man's earnings had fluctuated from $4 to $12 a week, and that during the entire year he had earned $507. The Board held that the sum of $507 should be divided by 52, which made an average weekly wage of $9.75, on the basis of which compensation was awarded. An employe received an injury the day after he began work from which he died. Prior to this time he had not been employed at all for a consider- able portion of time. The contract of employment was at the rate of $9.44 a week, which was the usual wages paid in the locality for the kind of work in which he was engaged. It was held that where the period of employment has been so short as to furnish no basis for determining the average weekly wage that the rate of wages received by the workman at the time of receiving the injury, and the wages usually paid in the vicinity, for the same class of work, must be taken into consideration in determin- ing the average weekly wage. The Board therefore held that compensa- tion should be paid on the basis of $9.44 as the average weekly wage of the deceased employed Re Frances R. Williams, Claim No. 296, Ohio St. Lia. Bd. Awd., Nov. 15, 1912. Where an employe has been continuously employed for a considerable WAGES WHICH ARE THE BASIS OF COMPENSATION 761 Rhode Island the injured employe - was of such age and experience when injured as that under natural conditions his wages would be expected to increase, the fact may be considered in arriv- ing at his average weekly wage." OREGON The Oregon Act contains no provision on this subject, as specific amounts are allowed as compensation irrespective of the wages earned by the employe. RHODE ISLAND "§ 13. The 'average weekly wages, earnings, or salary' of an injured employe shall be computed as follows: "(a) If the injured employe 1 has worked in the same em- ployment in which he was working at the time of the acci- dent, whether for the same employer or not, during sub- period of time, his average weekly wage is determined by dividing the aggregate amount of his earnings by the number of weeks he was em- ployed. Re Elida A. Baird, Claim No. 504, Ohio St. Lia. Bd. Awd., Nov. 11, 1912. In the last-mentioned case the deceased workman was employed at the weekly wage of $13.50. As a matter of fact he earned more, for while he occasionally lost time he more than made it up by working over- time, for which he was paid in addition to the $13.50. It appeared that during the 39 weeks preceding the injury he had earned $586.51, which made an average of $15.04 per week. The original claim was based on the average weekly wage of $13.50, and the Board ruled that "the claimants having made their claim for compensation based upon an average weekly wage of $13.50, an award will be made on that basis, and the claim will be continued indefinitely, so that should additional information be fur- nished showing the wages earned by the deceased for one full year preced- ing his death, and it should appear that his actual earning capacity ex- ceeded that amount, the finding now made may be modified accordingly." A pension from the United States Government on account of services rendered in the Army or Navy, or on account of disability incurred in the Military or Naval service, will not be considered in determining the aver- age weekly wage, or in determining the amount of compensation. Re Harriet H. Horn, Claim No. 1013, Ohio St. Lia. Bd. Awd., Dec. 23, 1912. 762 bradbury's workmen's compensation law Rhode Island stantially the whole of the year immediately preceding his injury, his 'average weekly wages' shall be three hundred times the average daily wages, earnings, or salary, which he has earned in such employment during the days when so employed and working the number of hours constituting a full working day in such employment, divided by fifty- two. But where the employe - is employed concurrently by two or mo^e employers, for one of whom he works at one time and for another of whom he works at another time, his 'average weekly wages' shall be computed as if the wages, earnings, or salary received by him from all such employers were wages, earnings, or salary earned in the employment of the employer for whom he was working at the time of the accident. "(b) If the injured employe - has not so worked in such employment during substantially the whole of such im- mediately preceding year, his 'average weekly wages' shall be three hundred times the average daily wages, earnings, or salary which an employe - of the same class working sub- stantially the whole of such immediately preceding year in the same or a similar employment, in the same or a neighbor- ing place, has earned in such employment during the days when so employed and working the number of hours con- stituting a full working day in such employment divided by fifty-two. "(c) In cases where the foregoing methods of arriving at the 'average weekly wages, earnings, or salary' of the injured employe" cannot reasonably and fairly be applied, such 'average weekly wages, earnings, or salary' shall be taken at such sum as, having regard to the previous wages, earnings or salary of the injured employe^ and of other employe's of the same or most similar class, working in the same or most similar employment in the same or a neighbor- ing locality, shall reasonably represent the weekly earning capacity of the injured employe - at the time of the accident in the employment in which he was working at such time. "(d) Where the employer has been accustomed to pay to the employe - a sum to cover any special expense incurred by said employe by the nature of his employment, the sum WAGES WHICH ARE THE BASIS OF COMPENSATION 763 West Virginia so paid shall not be reckoned as part of the employees wages, earnings or salary. "(e) The fact that an employe has suffered a previous injury, or received compensation therefor, shall not pre- clude compensation for a later injury or for death; but in determining the compensation for the later injury or death, his 'average weekly wages' shall be such sum as will reason- ably represent his weekly earning capacity at the time of the later injury, in the employment in which he was working at such time, and shall be arrived at according to, and sub- ject to the limitations of, the previous provisions of this ' section." TEXAS "Part IV, § 1. * * * 'Average Weekly Wages' shall mean the earnings of the injured employe" during the period of twelve calendar months immediately preceding the date of injury, divided by fifty-two; but if the injured employe" lost more than two weeks during such period, then the earnings for the remainder of the twelve calendar months shall be divided by the number of weeks remaining after time lost has been deducted. When, by reason of the short- ness of the time of the employment of the employ^, it is impracticable to compute the average weekly wages as above defined, it shall be computed by the Industrial Acci- dent Board in any manner which may seem just and fair to both parties." WASHINGTON There is nothing relating to this subject in the Washington Act, as the payments are of specific amounts irrespective of the wages of the employed WEST VIRGINIA "§ 37. The average weekly wage or earnings of the in- jured person at the time of injury shall be taken as the basis upon which to compute the benefits. The time of injury 764 bradbury's workmen's compensation law Wisconsin within the meaning of this act shall be such reasonable time prior to the injury as shall enable the commission to make a fair award, taking into consideration both the rate of wage or earning of such person prior to his entering the service in which he was injured may be taken into consideration." WISCONSIN "§ 2394-10. 1. The average weekly earnings referred to in section 2394-9 shall be one fifty-second of the average annual earnings of the employ^. The average annual earnings for employes operating, running, riding upon, or switching passenger, freight or other trains, engines or cars for a railroad company operating a steam railroad as a common carrier, shall be taken at not less than $500 nor more than $1250 per annum; and for all other employes such average annual earnings shall be taken at not less than $375 nor more than $750. Between said limits such average annual earnings shall be determined as follows: "(a) If the injured employe 1 has worked in the employ- ment in which he was working at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he has earned in such employment during the days when so employed. "(b) If the injured employe" has not so worked in such employment during substantially the whole of such im- mediately preceding year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employ^ of the same class working substan- tially the whole of such immediately preceding year in the same or a similar employment in the same or a neighbor- ing place shall have earned in such employment during the days when so employed. " (c) In cases where the foregoing methods of arriving at the average annual earnings of the injured employe 1 cannot WAGES WHICH ARE THE BASIS OF COMPENSATION 765 Wisconsin reasonably and fairly be applied, such average annual earn- ings shall be taken at such sum as, having regard to the previous earnings of the injured employ^, and of other em- ployes of the same or most similar class, working in the same or most similar employment, in the same or a neighbor- ing locality, shall reasonably represent the average annual earning capacity of the injured employ^ at the time of the accident in the employment in which he was working at such time. "If an employ^ is a minor and is permanently disabled, his weekly earnings shall be determined on the basis of the earnings that such minor, if not disabled, probably would earn after attaining the age of twenty-one years. "(d) The fact that an employ^ has suffered a previous disability, or received compensation therefor, shall not preclude compensation for a later injury, or for death, but in determining compensation for the later injury, or death, his average annual earnings shall be such sum as will reason- ably represent his average annual earning capacity at the time of the later injury, in the employment in which he was working at such time, and shall be arrived at according to, and subject to the limitations of the previous provisions of this section. "2. The weekly loss in wages referred to in section 2394-9 shall consist of such percentage of the average weekly earn- ings of the injured employe, computed according to the provisions of this section, as shall fairly represent the pro- portionate extent of the impairment of his earning capacity in the employment in which he was working at the time of the accident, and other suitable employments, the same to be fixed as of the time of the accident, but to be deter- mined in view of the nature and extent of the injury." CHAPTER XIV NOTICES OF INJURIES AND OF CLAIMS FOR COMPENSATION Page ARTICLE A— Inteoduction 766 Page 1. In general 766 2. Decisions under the Brit- ish statute 767 ARTICLE B — Specific Provisions op Various Statutes 769 Page Arizona 769 Nevada 780 California 770 New Hampshire 780 Connecticut 772 New Jersey 781 Illinois 773 New York 782 Iowa 774 Ohio 783 Kansas 774 Oregon 784 Maryland 775 Rhode Island 784 Massachusetts 775 Texas 785 Michigan 778 Washington 787 Minnesota 779 West Virginia 787 Nebraska 779 Wisconsin 788 ARTICLE A— INTRODUCTION 1. In general. Many of the American compensation acts were founded on the British statute, as will be discovered by consulting § II of that statute in Chapter XXXVI. As a general rule the compensation acts are much less stringent as to notice than were the old employers' liability acts. Never- theless it is important that there should be a reasonable enforcement of the provisions for notice, because laxity in this respect opens the door to fraudulent claims and malingering. Most of the act's contain provisions relieving employes from the effect of mistakes in giving notice, or 766 CLAIMS FOB COMPENSATION 767 Decisions under the British statute in failing to give any notice whatever, under certain cir- cumstances. 2. Decisions under the British statute. A plea that a workman does not know of the Compensa- tion Act is not such a mistake as will excuse the making of a claim for compensation within the statutory period. Judd v. Metropolitan Asylums Board (1912), 5 B. W. C. C. 420. Whether or not a particular state of facts constitutes reasonable cause for failure to give notice is a question of law. Moore v. Naval Colliery Co. (1911), 5 B. W. C. C. 87. Where the effect of an injury is latent and the em- ployer has not been prejudiced the workman will be re- lieved from the failure to give notice even though the notice is given nine months after the accident. Fry v. Cheltenham Corporation (1911), 5 B. W. C. C. 162. Where the notice was given to a foreman, and he wrote the particulars thereof in a book supplied by the employers for the purpose, it was held that this was written notice within the meaning of the act. Stevens v. Insoles (1911), 5 B. W. C. C. 164. A waitress was injured by accident in June, 1910. She told her employer the same day. No effects of the accident were apparent until she became ill in August and she did not know until November that the illness was caused by the accident. Notice was given in November or December, 1910 and it was held that the employers were not prejudiced by the delay and com- pensation was awarded. Eaton v. Evans (1911), 5 B. W. C. C. 82. A saleswoman in a retail store received a shock from a fire which burned up the store. Thinking she was suffering from a temporary nervous derangement only, she did not give any notice of the accident until six months later, when she discovered that she had been suffering from a serious nervous disease. The court found that the delay was due to a reasonable cause and that the em- ployers were not prejudiced by the delay. Compensation 768 bradbury's workmen's compensation law Decisions under the British statute was therefore awarded. Hoare v. Arding and Hobbs (1911), 5 B. W. C. C. 36. An insurance agent, employed to col- lect premiums from door to door, slipped on some stairs while on his rounds, and injured himself. He gave verbal notice of the accident to the employers' manager a day or two later aqd again a month later. He gave no formal notice, thinking that his injuries were only slight. Seven weeks after the accident he left his employers' service, and formal notice was only given eleven weeks after that. It was held that the accident arose out of the employment and that there was reasonable cause for the delay in giving - the notice. Refuge Assurance Co. v. Millar (1911), 49 Sc. L. R. 67; 5 B. W. C. C. 5,22. An elderly cripple met with an accident. He gave no notice to his employers, not knowing that he had perma- nently overstrained his diseased heart, and fearing that if he obtained compensation the insurance company would prevent his being taken back to work on recovery, and intending not to claim compensation if he recovered quickly. Four months after the accident, he learned for the first time that he was incapacitated for life, and he thereupon gave notice and brought proceedings. It was held that the delay in giving notice was due to a reasonable cause and compensation was awarded. Breakwell v. Clee Hill Granite Co. (1911), 5 B. W. C. C. 133. A workman who was injured spoke to a sub-contractor about it and stated that he supposed the sub-contractor would inform the principal contractor. The principal, how- ever, did not learn of the injury until nearly five months later, and on a claim being made for compensation, it was held that the principal had been prejudiced and there was no evidence of mistake or other reasonable cause for the delay in giving notice and compensation was refused. Griffiths v. Atkinson (1912), 5 B. W. C. C. 345. A workman was temporarily employed as a laborer when he slipped and fell, striking his left breast with the CLAIMS FOR COMPENSATION 769 Arizona handle of his pick. He remained away from work for a few days and then went to work for another employer. He stated that the breast had given him pain on and off for twelve months after the accident. Six months after the accident he noticed a swelling in the breast, which he attributed to the injury; a month later a tubercular abscess formed, which burst after some weeks, and he was then admitted to a hospital. Two months later he made a claim for compensation. It was held that there was not any mistake or reasonable cause for the delay in giving notice and compensation was refused. Egerton v. Moore (1912), 5 B. W. C. C. 284. ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA FORM Notice of injury 1 (§74) To Name and address of employer. Please take notice that pursuant to § 74 of Chapter 7 of the Laws of Arizona of 1913, relating to Employers and Employes, com- monly known as the Workmen's Compensation Act, that the un- dersigned was injured while in your service at the time and place and with the result hereinafter stated: % 1. The injury occurred on the day of , 19.., at 2. The cause of said injury was as follows: . » The above notice must be served on the employer or his representative within two weeks after the injury, unless the injury is fatal or renders the workman incompetent to give the notice. A copy must also be sent by mail to the Attorney General. § 74. See the Same section for further particulars relating to the service of the notice. 49 770 bradbtjry's workmen's compensation law California 3. The nature and degree of the injury sustained were as fol- lows: You will further take notice that the undersigned. claims com- pensation by reason of said injury in accordance with the provi- sions of said statute. Dated the day of , 19. .. Name of employe Address of employe CALIFORNIA FORM Notice of injury ' (§20) To Name and address of employer Please take notice that pursuant to Chapter 176 of the Laws of California of 1913, commonly known as the Workmen's Compen- sation Act, that whose address 1 The above notice must be served on the employer within thirty days after the occurrence of the accident. § 20, which see for further particulars as to requirements of notice. Actual knowledge of the injury is equivalent to notice. § 20. Applicant was working on electric lines during a wind storm. One of the cross arms was blown around and struck him on the shin bones of both legs. A week later the left shin had become quite troublesome, in- flammation set in, and applicant /limped badly. He- did not leave work until sixteen days after the cross-arm struck his legs. An operation re- sulted and ten days later applicant was ready to resume work. Payment of compensation was resisted by defendant on the ground that the disabil- ity was caused by disease and not by accident and that notice of the injury was not given within the time prescribed by the Act. Held that the evidence established the fact of injury as alleged by the applicant and that the only grounds afforded for apprehension that the disability might- have chiefly arisen from a -former disorder was applicant's own fear that such might prove to be the case. Further held that there was no intention to mislead the employer, for a report had been made to his superior, the CLAIMS FOR COMPENSATION 771 California is (was) was injured while in your service at the time and place and with the result hereinafter stated: 1. The injury occurred on the. day of , 19, . . at 2. The cause of said injury was as follows: . 3. The nature and degree of the injury sustained were as fol- lows: (and such injury resulted in death on the day of ,19...)- You will further take notice that the undersigned claims com- pensation by reason of said injury (death) in accordance with the provisions of said statute. Dated the day of , 19. .. Name of Employe (or dependent.) Address of Employe (or dependent.) foreman, fifteen days after the injury, and therefore it was immaterial that a written notice, as required by law, was not given. The sum of $43.27 was awarded for 2 5 / 7 ths weeks, and in addition the failure ofthe defendant to furnish medical and surgical attention made it liable for the amount expended, namely, $69.15. Merrill v. General Construction Company. Cal. Indus. Ace. Bd. Under § 10 of the Roseberry Act of 1911 it was held that if failure to serve notice within thirty days after the accident was not due to any in- tent to mislead the employer, and if he was not in fact misled, the claimant was not barred from recovery under the act. McAvin v. City Electric Co., Cal. Indus. Ace. Bd., March 8, 1912; aff'd by Superior Court. 772 BRADBUBY*S WORKMEN'S COMPENSATION LAW Connecticut CONNECTICUT Form No. 9 Notice of Injury « (Part B, § 21) To of : Name of employer Address of employer Notice is hereby given that the undersigned, while in your em- ploy at on the day of , 191 . . , sustained injuries arising out of and in the course of his employment as follows: (state nature of injury in ordinary language). Compensation is claimed in the interest of Dated at , Connecticut, this day of , 19... Signature of injured employe 1 . Address. By Agent, Attorney. This line to be used in case notice is signed by a person other than the injured. Witnessed by Two witnesses should sign. 1 The above notice must be served on the employer as soon as prac- ticable after the injury but not later than thirty days after the happening of the accident and during the continuance of incapacity. Part B, § 21. The above form was prepared by the Compensation Commission of Connecticut. v CLAIMS FOR COMPENSATION 773 Illinois ILLINOIS FORM Notice of injury > (§24) To Name and address of employer. Please take notice that the undersigned claims compensation pursuant to the provisions of the Workmen's Compensation Act of the State of Illinois approved June 28, 1913, by reason of the injuries specified below occurring in your service to whose address is (was) 1. Said injury occurred on the .day of , 19.., at 2. The cause of said injury was as follows: Compensation is claimed at the rate of ($ ) dollars per week, beginning on the day of , 19 . . , until disability ceases, (in the case of specific injuries or death the number of weeks specified in the statute) together with medical, surgical and hospital attention as provided in said Act. Dated the day of , 19. .. Name of workman. Address of workman. 1 The above notice must be given as soon as practicable after the acci- dent but not later than thirty days after the accident. In cases of mental incapacity of the employe the notice must be given within six months after the accident. It may be served personally or by registered mail addressed to the employer at his last known residence or place of business. § 24. The claim for compensation must be made within six months after the accident. § 24. In death cases see § 7 (f) as to who can claim compensa- tion. 774 bkadbuey's workmen's compensation law Kansas IOWA FORM .Notice of injury 1 (§9) To * You are hereby notified that on or about the day of ,19. ., personal injury was sustained by while in your employ at (Give name of place employed and point where located when injury occurred and that compensation will be claimed therefor.) Signed. . KANSAS FORM Notice of accident 2 To Name and address of employer. Please take notice that r whose address is (was) was injured while 1 The foregoing form of notice is contained in § 9 of the Iowa statute. The notice must be given within fifteen days after the injury either by the employe or someone on his behalf, or by the dependents or someone on their behalf. § 9. Under certain circumstances it may be given within ninety days after the accident. § 9. The statute provides that no special form of notice shall be required, but may substantially conform to the notice given above. The notice must be served in the same way that orig- inal notices may be served in civil cases and the service may be made by any person over sixteen years of age. § 9. 2 The above notice must be given within ten days after the accident and the claim for compensation must be made within three months after the accident, or in case of death, within six months from the date thereof. The notice must be served personally or may be served by registered mail. If the injury causes death the notice should be sent by the person claiming compensation and it should be stated therein that the injuries caused death to the workman whose name is specified. § 22. CLAIMS FOR COMPENSATION 775 Massachusetts in your service on the day of , 19. ., at That the cause of said injury was as follows: That the nature of said injury is as follows: (and resulted in death on the day of , 19 . . ) and that compensation is demanded pursuant to Chapter 218 of the Laws of 1911, and amendments, commonly known as the Workmen's Compensation Act. Dated the day of , 19. . . Name of workman (or person claiming compensation). Address. MARYLAND "§ 7. The contract may provide that upon penalty of forfeiture of the benefits of the insurance, the employe shall give reasonable and timely notice to his employer, to be fixed by the terms of this contract, of any accident which may entitle him to the benefit of such insurance." MASSACHUSETTS FORM Notice of injury 1 (Part II, §§ 15, 16 and 17) This is to notify you . Name of employer, or insurance association or company. that on the day of , 19. . , at about . . . o'clock, ,1 received personal injury while in your employ a.m. or p.m. i The above form was prescribed by the Industrial Accident Board of Massachusetts. The notice must be given to the employer or to the insur- ance company insuring the employer as soon as practicable after the happening of the accident. Part II, §§ 15,. 16 and 17. 776 bradbury's workmen's compensation law Massachusetts in the city (town) of in the Name or description of building or place of employment. and that the accident was caused to me by reason of . . . ■. Describe cause of injury. Name of employe. City or town. Address Street and number- Claim for compensation for injury 1 (Part II, §§ 15 and 23) This is to notify you Name or association or company with which employer is insured. that I claim compensation from you under the workmen's compen- sation act, chapter 751, Acts of 1911, and amendments thereto, for personal injury sustained while in the employ of Name of employer. Of , Street and number. City or town. The time of my injury was Here state date and time of day as near as possible. The place of injury was State name or description of building, or place, where injury was sustained. 1 The above form of claim was prescribed by the Massachusetts Indus- trial Accident Board. The original claim should be filed with the Indus- trial Accident Board and may be sent by mail. At the time of filing, a copy thereof should also be sent by the employe to the insurance company in which his employer is insured. The claim should be made within six months after the injury. Part II, §§ 15 and 23. If a claim for serious and wilful misconduct of the employer, or of any person regularly entrusted or exercising the powers of superintendence is made, such a claim should be stated in the foregoing notice, CLAIMS FOB COMPENSATION 777 Massachusetts The cause of my injury was . 'Describe cause of injury. The nature of my injury is as follows: Describe injury with such exactness as possible. Signature of injured employe. Street and number. City or Town. Date of making this claim. "An employ^ making a claim for compensation under this act shall furnish the association or insurance company against whom said claim is made with a copy thereof by mail or otherwise forthwith, upon the filing of the same with the Industrial Accident Board. This rule shall be without prejudice to any rights acquired by the filing of said claim with the Board under the provisions of Part II, section 23, chapter 751 of the Acts of 1911, and amend- ments thereto, or by other provisions of said act." Rule No. 4, Mass. Indus. Ace. Bd. 778 bradbury's workmen's compensation law Michigan MICHIGAN FORM Notice to employer of claim for injury l (Under Act No 10 of Public Acts Extra Session 1912) (Employers' Liability and Workmen's Compensation Law) (Part II, §§ 15, 16, 17 and 18) To :; Write name of employer plainly on above line. Write address of employer plainly on above line. You will take notice that according to the provisions of Act No. 10 of Public Acts, Extra Session 1912 hereby makes claim for compensation for injury received by ... , while in your employ. Name of employe" Poetomce address The accident occurred the day of , 191 , at , Michigan. The nature of the injury is as follows: Signature . Address. . . Dated at this day of , 191 1 The foregoing form of notice was prepared by the Michigan Industrial Accident Board. It should be made out in duplicate and one should be served personally or sent by mail to the employer and the other copy should be sent to the Industrial Accident Board, Lansing, Michigan, within thirty days after the accident. Part II, §§ 15, 16, 17 and 18. CLAIMS FOB COMPENSATION 779 Nebraska MINNESOTA FORM Notice ' (§§ 19 and 20) " You are hereby notified that an injury was received by (Name) who was in your employ at (Place) while engaged as (kind of work) on or about the day of , 19 . . , and who is now located at (give town, street and number) that so far as now known, the nature of the injury was and that compensation may be claimed therefor. (Signed) Giving address. Dated , 19. .." NEBRASKA FORM Notice of injury 2 (Part II, § 33) To Name and address of employer. Please take notice that whose address is (was) ....:: was injured 1 The foregoing form is contained in the statute. It should be served within fourteen days after the occurrence of the injury, but may be served within ninety days under certain circumstances. Part II, § 19. The no- tice may be served personally or by registered mail. § 20. 2 The above notice must be given as soon as practicable after the hap- pening of an accident and must be given within six months after the occurrence, except in the case of the death of the employe, or his physical or mental incapacity, in which event it must be given within six months after the death or the removal of such physical or mental incapacity. § 33. The notice may be served personally or by leaving it at the residence or place of business of the employer or sending it by registered mail. § 33. Claims for compensation must be made within one year after the accident. §38. 780 bradbury's workmen's compensation law New Hampshire while in your service on the day of 19 ,at and the cause of said injury was as follows: If the injury caused death, ao state. Notice of said injury (or death) is hereby given pursuant to the statute known as Ihe Workmen's Compensation Act of the State of Nebraska. Dated the day of. , 191 {Signature and address of person injured or of a person in his behalf or in the event of his death, by his legal representative or a person in his behalf.) NEVADA The application for compensation must be filed with the Department within one year after the day upon which the injury occurred, or the right to compensation accrued. § 34 (d). Blanks are furnished by the Department for all applications for compensation against the said fund. NEW HAMPSHIRE FORM Notice of accident 1 To Name and address of employer. Please take notice that whose address is (was) was injured while employed by you on the day of , 19. . at (■■••) (and said injuries resulted in death on the day of 1 The above notice should be given as soon as practicable after the hap- pening of the accident and before the workman voluntarily leaves the em- ployment in which he was engaged when the injury occurred and during his disability. .§ 5. The claim for compensation should be made within six months from the occurrence of the accident but may be made at a later date under certain circumstances specified in the statute. It may be served personally or by registered mail. § 5. CLAIMS FOR COMPENSATION 78 J. New Jersey , 19. .) and claim is hereby made for compensation by reason of said injury (death) pursuant to the Act of the Legis- lature of New Hampshire known as the Workmen's Compensation Act. Dated the day of , 19. . Name of workman, or in case of death name of person making claim. Address of claimant. NEW JERSEY FORM Notice of injury * (§ 2, subd. 15 and 16) To (name of employer) : You are hereby notified that a personal injury was received by (name of employe 1 injured), who was in your employ at (place) while engaged as (nature of employment), on or about the ( ) day of ( ), nineteen hundred and ( ), and that compensation will be claimqd therefor. Signed, ( )• 1 The foregoing form is set forth in the statute itself. § 2, subd. 16. The notice should be given within fourteen days of the occurrence of the injury, but may be given at a later date as specified in the statute. § 2, subd. 15. The notice may be served personally on the employer or upon any agent of the employer upon whom a summons may be served in a civil action or by sending through the mail. Sec. § 2, subd. 16. A workman who was carrying a heavy article fell on June 24, 1912, and the foreman in charge of the work had knowledge of the fall. Disability did not result, however, and the man continued at work. On February 4, 1913, he sent notice to his employer of disability alleged to have been the result of the fall. It was held that inasmuch as the foreman had knowl- edge of the injury the notice was sufficient under the statute, but compen- sation was denied on the ground that the disability was not due to any injury received from the fall. Bergemann v. Schwarzenbach Huber & Co. (Morris Common Pleas), 36 N. J. Law J., 209. 782 bradbury's workmen's compensation law New York NEW YORK FORM Notice of injury * (§ 18) To...., % Name and address of employer. To the Workmen's Compensation Commission, Albany, N. Y. Notice is hereby given, pursuant to the Workmen's Com- pensation Law of New York of the injury (and death) of an employ^ of on the date, at the place and under the circumstances hereinafter stated. (1) The name and address of said employe 1 is (2) He was injured on the day of , 19. . (and said injury resulted in his death on the day of , 19..) (3) The nature of said injury was as follows: (4) The cause of said injury was as follows: Dated the day of , 19. . Name of person giving notice. ' Address of person giving notice. 1 The above notice must be given to the Commission and to the em- ployer within ten days "after disability" and in case of death of the em- ploye resulting from such injury within thirty days after such death. The notice may be given by any person claiming to be entitled to compen- sation or by someone in his behalf. It may be sent to the Commission by registered mail. It must be served on the employer by delivering it to him personally or by sending it by registered mail addressed to the em- ployer at his or its last known place of residence, but if the employer is a partnership the notice may be given to any one of the partners, and if the employer is a corporation it may be given to any agent or officers thereof upon whom legal process may be served, or to any agent in charge of the business in the place where the injury occurred. "The failure to CLAIMS FOR COMPENSATION 783 Ohio OHIO The Act provides that the Industrial Commission shall prescribe the notices and the forms thereof which shall be given in all cases of accident, etc. § 1465-44; § 8 of Act of 1911, which remains unrepealed by the Act of 1913. By § 1465-74 of the Act as renumbered and which is § 27 of the Act of 1913, it is provided that in cases where the em- ployer carries his own risks that the Industrial Commission shall prescribe the notices to be given. By Rule 13 of the Rules of the Industrial Commission relating to the ascer- tainment of the amount of compensation, etc., it is provided : "The Commission will prepare and furnish free of charge all proper forms required by these rules and the provisions of the Compensation Act and require such forms to be used in all instances where prescribed." 1 give such notice, unless excused by the Commission, either on the ground that notice for some sufficient reason could not have been given, or on the ground that the State Fund, insurance company, or employer, as the case may be, has not been prejudiced thereby, shall be a bar to any claim under this chapter." § 18. 1 By Rules 4 and 5 of the State Liability Board of Awards (now In- dustrial Commission) it was provided as follows: "Rule 4- — Injury not resulting in death, notice of. An employe who has been injured in the course of his employment and who contemplates filing an application for an award, shall, within one week from receiving such injury, notify or cause notice to be given the Board of the time, place and nature of his injury and the name of his employer. Forms of such notices can be obtained from the employer. Such notices should be mailed to 'State Liability Board of Awards, Columbus, Ohio.' "Upon receiving such notice the Board forthwith will mail to the in- jured employe proper forms and blanks for his use in perfecting his claim, and notify the employer thereof. Unless such notice is given, no applica- tion for an award will be considered by the Board." "Rule 5. — Injury resulting in death, notice of. When death results from an injury received by an employd in the course of his employment, the provisions of Rule 4 shall apply, except that notice of death must be given, by the attending physician, undertaker, employer, executor, administrator, or a beneficiary, within one week from the time of death." 784 Bradbury's workmen's compensation law Rhode Island By Rule 9 of the Industrial Commission it is provided that if the employer and employe^ or dependents, fail to arrive at an agreement as to the amount of compensation payable, within thirty days after the injury or death, one party may file an application with the Commission to have the question determined, of which application the other party shall receive notice. 1 OREGON Claim for compensation must be made on blanks fur- nished by the commission and the form of said blanks is entirely within the jurisdiction of the commission. RHODE ISLAND FORM Notice of injury = (Art. 2, §§ 17, 18, 19, and 20) To , Name and address of employer. Please take notice that a claim for compensation is hereby made 1 In a case of the death of a workman leaving a widow and minor child, it was held not necessary for the application for compensation to be filed by the administrator or executor of the deceased; that the minor child being under disability of infancy and in the custody of her mother that part of the compensation apportioned to such child would be made payable to the mother for the use of the child. Re Laura M. Shaffer, Claim No. 41, Ohio St. Lia. Bd. Awd., June 14, 1912. 2 The notice must be given within thirty days after the happening of the injury and the claim for compensation must be made within one year after the injury, or in case of death of the employe, or his physical or mental incapacity, within one year after death or the removal of such physical or mental incapacity. Art. II, § 17. The notice must be signed by the person injured or by a person in his behalf or in the event of his death, the legal representative or by a dependent or by a person in behalf of either. Art. II, § 181 The notice must be served by mail as stated in Art. II, § 19. Notice may be dispensed with in certain instances. See §20. CLAIMS FOR COMPENSATION 785 Texas pursuant to the law of Rhode Island of 1912, known as the Work- men's Compensation Act, by the employe* who was injured in your service as hereinafter specified. (1) Said injury occurred on the day of , 19... (2) The cause of said injury was as follows: (3) The nature of said injury was as follows: (4) The name and address of the person injured was as follows: Dated the day of . . . , 19 . . Name of claimant. Address of claimant. TEXAS FORM Notice of injury (Part II, § 4a) This is to notify you . Name of employer, or insurance association or company. that on the day of , 19. ., at about .o'clock, ,'. ., I received personal injury while in your em- a.m. or p.m. ploy in the of in the City town county and that the accident Name or description of building or place of employment. 1 The foregoing form was prescribed by the Industrial Accident Board of Texas. See Part 2, § 4 (a). The notice must be given as soon as prac- ticable after the injury. Part 2, § 4 (a). 50 786 bradbury's workmen's COMPENSATION LAW Texas was caused to me by reason of Describe cause of injury. Name of employe. Address City or town. Street and number. FORM Claim for compensation for injury ' (Part II, § 4 a) This is to notify you Name of employer or the association or company with which employer is insured. that I claim compensation from you under the Employers' Liabil- ity Act for personal injury sustained while in the employ of , of Name of employer. Street and number. The time of my injury was City or town. Here state date and time of day as near as possible. The place of injury was State name or description of building, or place, where injury was sustained. 1 The foregoing form was prescribed by the Industrial Accident Board of Texas. The original claim should be filed with the Industrial Accident Board and may be sent by mail to the Board at Austin, Texas. At the same time of filing a copy should be served on the employer or on the insurance company which insures the compensation payments of the em- ployer. The claim must be made within six months after the occurrence of the injury or in case of the. death of the employe. or his physical or mental incapacity within six months after death or the removal of such physical or mental incapacity. Part 2, § 4 (a). If it is contended that the injury was caused by the violation by the employer of any statute enacted for the safety of employes the facts should be stated in the foregoing notice. CLAIMS FOR COMPENSATION 787 West Virginia The cause of my injury was Describe cause of injury. The nature of my injury is as follows: Describe injury with such exactness as possible. Signature of injured employ^. Street and number. City or town. Date of making this claim. WASHINGTON Claims for compensation against the State Fund must be made on blanks furnished by the Department. See § 12. WEST VIRGINIA The application for compensation must be made on forms prescribed by the Department to the State Insur- ance Fund. See § 39. 788 BRADBURY'S WORKMEN'S COMPENSATION LAW Wisconsin WISCONSIN FORM Notice to employer of claim for injury under Workmen's Compensation Act 1 (§ 2394-11) To'. Write name of employer plainly on above line. Write address of employer plainly on above line. You will take notice that according to the provisions of the Workmen's Compensation Act, Laws of Wisconsin hereby makes claim for compen- sation for injury received by while in your employ. Name of employe' Post Office Address . . . . : The accident occurred the day of , 191 . , at Wisconsin. 1 This notice should be filled out by injured employe or some one in his behalf. In case of death of the employe the notice is to be filled out by the dependent. The notice should be served within 30 days of accident on the employer by delivering a copy of the above notice to the employer personally or by registered mail. Fill out in duplicate. Hand or mail one copy to the employer; mail the other copy to the Industrial Commission, Madison, Wis. The foregoing is a note to the blank as furnished by the Industrial Commission. The notice must be served within thirty days after the accident unless excused as provided in § 2394-11. A workman employed to assist in unloading bridge iron had his ankle bruised by a falling beam. He did not claim compensation until four months later when he claimed permanent disability for six weeks. The employer, being a municipal corporation, defended the claim on the ground, among others, that it was not made within thirty days. The Com- mission held that the delay in making the claim was not because the work- man intended to defraud and mislead and that the employer had not in fact been misled and compensation was granted in the amount of $33.14 for six weeks' disability. Thomas J. Brown, v. City of Mauston, Wis. Indus. Com., Feb. 29, 1912. CLAIMS FOR COMPENSATION 789 Wisconsin The nature of the injury is as follows: Signature . Address. . Dated at this day of CHAPTER XV ADMINISTRATION AND PROCEDURE Page ARTICLE A— Introduction 791 Page 1. Various methods of ad- ministration 791 2. Liberal rules as to procedure 795 3. Right of workman to take out letters of administration on es- tate of deceased em- ployer 795 4. Specifying amount when making claim for com- pensation 795 5. Necessity of appoint- ment OF GUARDIAN AD litem when interests of incompetent in- volved 795 6. Agreement to pay com- pensation IS NOT A CON- sent to submit to arbitration 796 7. Agreement for compen- sation BAR TO ARBITRA- TION proceedings 796 8. Effect of agreement to pay compensation "during incapacity". 797 9. Award "during total or partial incapacity".. 797 10. Amending pleadings by arbitrator 797 11. Burden of proving the 790 injury was caused by accident IS ON the workman 797 12. Inferences in the ab- sence of direct proof . 798 13. Burden of proof as to serious and wilful misconduct 800 14. Evidence 800 15. Physician's certificate as evidence 801 16. Sufficiency of finding of incapacity 801 17. Finding on question of fact as to which there is any evidence to support 802 18. Suspensory award 804 19. Award to terminate at specified date in fu- TURE 804 20. Admission in answer that compensation has been paid amounts to admission of claim MADE 804 21. Apportioning compensa- t i o n among depend- ents; PROCEDURE 804 22. Enforcing payment of award; body execu- tion 804 ADMINISTRATION AND PROCEDURE 791 Various methods of administration Page Page 23. New trial; arbitrator 25. What amounts to "re- CANNOT grant 805 covery" of compensa- 24. Signing receipts by tion 805 workmen 805 26. Offset of overpayment of compensation 805 ARTICLE B — Digests of Various Statutes, with Notes and Forms 806 Page Arizona 806 Nevada 863 California 806 New Hampshire 867 Connecticut 814 New Jersey 867 Illinois 815 New York 873 Iowa 834 Ohio 874 Kansas 835 Oregon 878 Maryland 836 Rhode Island 878 Massachusetts 836 Texas 879 Michigan 842 Washington 881 Minnesota 856 West Virginia 881 Nebraska 863 Wisconsin 887 ARTICLE A— INTRODUCTION 1. Various methods of administration. The administration and procedure under no two of the compensation acts of the American States are exactly alike. The contrast in many instances is very great. In fact, the revolution wrought by the adoption of the compensation principle is nowhere more strongly emphasized than in the manner in which controversies growing out of claims for compensation are determined. A very strong tendency has developed to abolish entirely trial by jury in all such dis- putes. Moreover, in some cases, the ordinary courts have been abolished as well, so far as such controversies are con- cerned. A very long step has been taken in this direction, with a suddenness which must cause a shock to all those who have been educated to the belief that the jury system was the principal remaining safeguard to the rights of the 792 bradbuby's workmen's compensation law Various methods of administration average citizen, as against the encroachment of so-called special privilege. Arguments which might, without exaggeration, be termed a hue and cry, have been advanced in condemnation of judges and judge-made law and have been coupled with the demand that both judges and judicial decisions shall be subject to recall by popular vote. The most remarkable part of the present movement is, that heretofore employers and lawyers defending master and servant negligence cases invariably have been more fearful of the verdict of a jury than of the decision of any court or judge. It has become a common-place remark, in such litigations, that if the case went to the jury a judgment would be rendered in favor of the employed Yet in this class of cases alone trial by jury has been abolished. To take its place new courts (although they are not called courts) have been created with ap- pointed judges and with powers more extensive than ever before have been possessed by executives, administrative officers or bodies, or judicial tribunals in America. Ob- viously, this is a big step. Whether it is in advance or back- wards time only can tell. Curiously enough, New York, which is the most important State in the Union as regards population, manufacture and wealth, has taken the longest step on this heretofore un- trodden path. Acting, apparently, on the authority given by the people themselves, in the Constitutional amendment of 1913, the Legislature has created a body called a Work- men's Compensation Commission, with important executive, administrative, judicial, and even legislative functions. As to each of these functions its decision is made supreme and absolutely final, on all questions of fact, and on many questions of law. It may create deputies, without limit as to number, whose decisions, when approved by their creator, are equally final. (§§ 61 and 64.) In exercising such vast powers these Commissioners "shall not be bound by the common law pi statutory rules of evidence or formal rules ADMINISTKATION AND PROCEDURE 793 Various methods of administration of procedure, except as provided by this Chapter." (§ 68.) The Commission may make rules which will have the effect of statutes so long merely as they are "not inconsistent with this chapter;" relating to nine specified matters, in- cluding "The nature and extent of the proofs and evidence, and the method of taking and furnishing the same, to establish the right to compensation;" the "method of making investi- gations, physical examinations and inspections;" "the con- duct of hearings, investigations and inquiries, " and "carrying into effect the provisions of this chapter." (§ 67.) And the decisions of the Commission made under the Act proper, and under rules having the force of statutes made by the Commis- sion itself, "shall be final on all questions of fact." (§ 20). Moreover, it not only enacts the law, in many important par- ticulars, but it is at once client, judge and jury, and in this triple capacity decides questions of fact in controversies to which it is itself a party and makes determinations which no power on earth can question, so far as the facts are concerned. This Commission also collects a State insurance fund. It determines the premiums to be charged and the reserves necessary to pay losses. It appoints all assistants. When a claim is made against it, as the administrator of the fund, it hears and determines all questions arising on such a con- troversy, under rules of a statutory nature made by itself and which can be changed at will, and here again, its de- cisions on all questions of fact are absolutely final. It is a highly political institution, because it will distribute more patronage, probably, than any other body in the State. It has power to create an army of public officers and fix their remuneration and tenure of office. The Commission has many more important powers and duties which it is unnec- essary to here enumerate. So while abolishing trial by jury and taking away from the regular courts of record all jurisdiction over compensation cases, a new court has been created, the workings of which will be watched with very great interest. 794 bradbury's workmen's compensation law Various methods of administration Many constitutional questions are involved in this new movement which it would not be profitable to discuss in this place. Many of the other States have established industrial boards or commissions, with more or less extensive powers, but in none of the States has the legislature gone so far as it has in New York*n this direction. Doubtless, it is necessary, or at least advisable, that any compensation law should be supervised by some public body. It has been complained in New Jersey, for example, that this was the one weakness of that statute. That is, that there was no one whose duty it was to see that the compensation payments were properly made. Commissioner Bryant of the Labor Department of New Jersey has stated that in investigations which his Department conducted a number of cases were found in which inadequate payments were made. The remedy, however, under the New Jersey law, for cases of this character seems to be entirely adequate. If the em- ployer has failed to make the payments which the law re- quires, any receipt or release which has been taken is of no avail in a proceeding brought by the employe to have the compensation determined. The employe' does not have to show that fraud has been practiced, but merely that pay- ments have not been made as required by the statute. So far as the disclosures made up to the present time are con- cerned, the evil which is to be met, does not seem to justify the elaborate and expensive system which has been estab- lished in New York to meet it. As employes become more and more familiar with the law, cases of inadequate pay- ment will be found to be very rare, under the rule in New Jersey where any agreement can be examined and set aside on the ground merely that the payments were not as great as the statute required. In a few of the States, as already indicated, controversies are determined by judges of the local courts without a jury. The proceeding is considered as one in equity and is deter- ADMINISTRATION AND PROCEDURE 795 Guardian when interests of incompetent involved mined expeditiously and without unnecessary technicality. The same procedure prevails under the British and Canadian acts. In Article B in this Chapter will be found an outline of the practice in each State. In the remainder of this Article is discussed certain general principles relating to procedure which are applicable in the absence of special statutory provisions to the contrary. 2. Liberal rules as to procedure. Documents in arbitration proceedings under the Act should not be treated with the nicety and strictness of plead- ings in judicial proceedings in the higher court. Lowe v. Myers & Sons (1906), 2 K. B. 265; 8 W. C. C. 22. 3. Right of workman to take Out letters of administration on estate of deceased employer. Where an employer against whom compensation had been awarded died, and his next of kin refused to take out letters of administration, it was held that the workman who was entitled to compensation could apply to have such letters taken out. Matter of William Byrne, Deceased (1910), 44 Irish L. T. 98; 3 B. W. C. C. 591. 4. Specifying amount when making claim for compensa- tion. It is unnecessary, in making a claim under the Work- men's Compensation Act, to specify the amount claimed. Thompson v. fl. W. Gould & Co. (1910), A. C. 409; 103 L. T. 81;3B.W.C. C.392. 5. Necessity of appointment of guardian ad litem when in- terests of incompetent involved. Proceedings under the Workmen's Compensation Act in respect of the death of a workman, were brought on behalf of A, a daughter, who had been residing with him and acting as his housekeeper, and B, his wife, who was then, and had 796 bhadbuey's workmen's compensation law Agreement for compensation bar to arbitration proceedings been for many years, an inmate of the district lunatic asylum. The matter was settled as between the employer and A by the employer agreeing to pay £100, which was lodged in court. No guardian ad litem to B having been appointed, an application was made by the resident medical superintendent of the asylum of which B was an inmate, to have the said sum of £100 apportioned between A and B, on the bases of both of them being dependents of the deceased. It was held on appeal that as no guardian ad litem had been ap- pointed for the lunatic neither the respondent nor the lunatic were before the court and there was no jurisdiction to make any order. Kerr v. Stewart (1909), 43 Irish L. T. 119; 2 B. W. C. C. 454. 6. Agreement to pay compensation is not a consent to sub- mit to arbitration. On an application to register a memorandum of agree- ment to pay compensation the judge has no power to alter the amount and treat that agreement as a submission by the employer to pay any sum the judge thinks reasonable. Hall v. Furness, Withy & Co. (1909), 3 B. W. C. C. 72. When a memorandum of agreement has been presented to be re- corded, the judge has no power to do more than declare whether or not the memorandum is one which ought to be recorded and he has no power to make any substantive order dealing with the whole matter, or to treat the agreement as a submission by the employer to pay any sum which the judge under the circumstances may think just and proper. Mortimer v. Seeretan (1909), 100 L. T. 721; 2 B. W. C. C. 446. 7. Agreement for compensation bar to arbitration proceed- ings. An implied agreement for compensation is a bar to pro- ceedings in arbitration. Busby v. Richardson (1901), 3 W. C. C. 54. ADMINISTRATION AND PROCEDURE 797 Burden of proving injury caused by accident is on the workman 8. Effect of agreement to pay compensation " during in- capacity." Where an agreement has been entered into, whereby the employers agree to pay compensation "during the time of the incapacity of the workman," and the employers thereafter cease payments, the employers may show in any proceeding by the workman to recover compensation for the period subsequent to the time of suspension of payments, that the incapacity ceased when the payments were dis- continued. Ibrahim Said v. J. H. Welsford & Co. (1910), 3 B. W. C. C. 233. 9. Award " during total or partial incapacity." It is improper to make an award "to continue during total or partial incapacity" as it is improper to attempt to give at the same time compensation both for the "ascertained total incapacity and the unascertained future partial in- capacity." Higgins v. Poulson (1912), 5 B. W. C. C. 340. 10. Amending pleadings by arbitrator. Under the British Columbia Compensation Act of 1902 an arbitrator has the same power to amend pleadings in the proceeding as a judge has in a civil action. Moore v. Crow's Nest Pass Coal Company (1910), 15 Br. C. R. 391; 4 B. W. C. C. 451. 11. Burden of proving the injury was caused by accident is on the workman. A collier died of apoplexy during work hours in a mine. The majority of the doctors said that his arteries were in a very diseased condition, and that apoplexy might have come upon him when asleep in bed, or when walking about, or when over-exerting himself. There was no evidence that the apoplexy came upon him when he was incurring a strain. It was held that as the evidence as to the cause of death was equally consistent with an accident, and with no accident, 798 bbadbury's workmen's compensation law Inferences in the absence of direct proof the applicants for compensation had not discharged the onus of proving it, which was upon them. Barnabas v. Bersham Colliery Co. (1910), 102 L. T. R. 621; 3 B. W. C. C. 216. Where a bus driver fell from the bus and there was conflicting medical evidence as to the cause of death, it was held that the burden was on the dependent to prove that death was caused by accident, and as this burden had not been sus- tained compensation was refused. Thackway v. Connelly and Sons (1909), 3 B. W. C. C. 37. In the last-mentioned case the court laid down the rule, citing several other decisions that it is incumbent upon the plaintiff to make out that the accident in respect of which compensation is claimed, arose out of and in the course of the injured man's employment, not upon the employer to prove the contrary. 12. Inferences in the absence of direct proof. Even though there is no direct evidence that an injury to a workman arose out of and in the course of his employ- ment an inference to this effect may be drawn where the known facts are more consistent with the theory that the injury did so arise than with the theory that the accident occurred in some other manner. Mitchell v. Glamorgan Coal Co. (1907), 23 T. L. R. 588; 9 W. C. C. 16. In the case last cited the workman, a miner, returned home in his work- ing clothes, with one finger crushed. The applicant for compensation dressed the wound and the workman returned to work for a few days when blood poisoning set in and he died. The court held that while it was possible that the work- man was injured on his way home the court would be justified on the facts stated to draw the inference that the workman was injured in the course of his employment. A man of seventy was employed at an undertaker's, part of his duty being to lift coffins. He went to work one day apparently well, and on his return home complained to his wife of having been hurt that day; there were marks upon his side and chest, and his leg was swollen. He died ADMINISTRATION AND PROCEDURE 799 Inferences in the absence of direct proof about a week afterward, from pneumonia supervening on pleurisy caused by injury. There was no direct evidence showing that an accident had been sustained by the deceased in the course of his employment. It was held that there was evidence to support the inference that the man died from accident. Wright v. Kerrigan (1911), 45 Irish L. 1 T. 82; 4 B. W. C. C. 432. In this case one of the judges said as to the admissibility of statements made by a deceased to his doctor, with regard to his bodily injuries and their immediate cause: "Such statements are invariably admitted on various grounds, the chief of which is that there is no other possible evidence. Those statements made, not necessarily to a doctor, but to any person, as to bodily injuries, are ad- missible." The chief officer of a steam vessel fell overboard be- tween 7 and 8 a. m. on a fine morning, at a time when he was on duty and in charge of the vessel on deck. No one saw him fall overboard. Before 7 a. m. and during his watch, which commenced at 4 a. m., he had gone below com- plaining of a headache and giddiness, and had taken a dose of castor oil, but had returned to his duty on deck. The County Court judge, in the absence of direct evidence as to how the accident happened, inferred that it arose out of, as well as in the course of the employment. It was held that the judge was justified by the balance of the probability in drawing this inference. Owners of Steamship "Swansea Vale" v. Rice (1911), 104 L. T. 658; 4 B. W. C. C. 298. The fact of a seaman's disappearance from his vessel, and his unexplained drowning, does not raise a prima facie inference that he met with an accident arising out of as well as in the course of his employment. A sailor having gone on deck from his cabin in the course of his employment on a hot night for the purpose of getting some fresh air, disappeared, and the next day his body was found in the tidal basin close to the ship. It was held that the applicant had not complied with the onus resting upon her of proving that the accident 800 bradbury's workmen's compensation law Evidence arose out of as well as in the course of the employment, and she was not entitled to compensation. Marshall v. Owners of Ship "Wild Rose" (1909), 100 L. T. 739; 2 B. W. C. C. 76. A workman received an injury in the course of his employ- ment, which necessitated the amputation of one of his fingers. He was put under anaesthetics and the finger was amputated. As he was recovering from the effects of the anaesthetics the surgeons decided to remove a bad tooth of which the workman had complained; further anaesthetics were ad- ministered, and an unsuccessful attempt was made to re- move the tooth. The workman shortly afterwards died. It was held that it was as probable that death resulted from a spasm induced by an attempt to swallow oozing blood in his mouth, as that it resulted from the anaesthetic for the first operation, and consequently that the widow had not discharged the onus which rested upon her of proving that the workman's death resulted from his injury by the accident. Charles v. Walker (1909), 25 T. L. R. 609; 2 B. W. C. C. 5. A sailor on board ship in a harbor went on deck late at night to get some fresh air. He was found dead in the water in the morning. It was held that the mere fact of a seaman disappearing from his ship and being found drowned along- side is not sufficient to discharge the onus of proving that the accident arose out of the employment. (House of Lords) , Marshall v. Owners of Ship "Wild Rose" (1910), 3 B. W. C. C. 514. 13. Burden of proof as to serious and wilful misconduct. The burden of proving that the workman has been guilty of serious and wilful misconduct is on the employer who sets it up as a reason for refusing compensation. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. C. 10. 14. Evidence. The statement made by an employe" in the absence of his employer, by a deceased man, as to his bodily or mental Administration and procedure 801 Sufficiency of finding of incapacity feelings, are admissible in evidence, but those made as to the cause of his illness are not admissible in evidence and where there is no other evidence of an accident arising out of and in the course of the employment than statements made by a deceased employe in the absence of his employer, an award cannot be sustained. Gilbey v. The Great Western Railway Co. (1910), 102 L. T. 202; 3 B. W. C. C. 135. A statement made by a deceased workman to a fellow workman as to the cause of the injury he received, is not admissible in evidence. Perm v. Spiers & Pond (1908), 1 B. W. C. C. 401. But see Wright v. Kerrigan (1911), 45 Irish L. T. 82; 4 B. W. C. C. 432. Statements of a deceased man to his physician as to the cause of an accident are not admissible in evidence. Amys v. Barton, (1911), 5 B. W. C. C. 117. Where a workman died from blood poisoning and the claim for compensation was made by his dependents, it was held that statements made by the workman to the effect that he had not met with an accident, could not be received in evi- dence against the dependents, it being held that the right of the dependent was entirely separate and apart from the right of the workman and could not be held to be a declara- tion against interest in such a case. Tucker v. Oldbury Urban District Council (1912), 5 B. W. C. C. 296. 15. Physicians' certificates as evidence. Physicians' certificates are not competent evidence of the cause of an injury in a proceeding under a claim for com- pensation. Richards v. Sanders & Sons (1912), 5 B. W. C. C. 352. 16. Sufficiency of finding of incapacity. A finding that a workman was incapacitated "for work at his trade of stone breaking by the loss of an eye" was held to be in effect a finding that he was incapacitated "for work." Boyd v. Doharty (1908), 46 Scotch L. R. 7V, 2 B.-W, C. C. 257. 51 §02 bradbUry's WOrkMkn's compensation Law Finding on question of fact as to which there is evidence to support 17. Finding on question of fact as to which there is any evidence to support. A workman while engaged in carrying joists for a house, fainted, and subsequently died. Medical witnesses for the workman gave it as their opinion that death was due to rupture of the heart caused by the work, while medical witnesses for tjje employers gave it as their opinion that death was due to heart disease. The arbitrator, in conse- quence of this evidence, submitted the matter to a medical referee to report. The medical referee reported that the workman died from disease of the heart. The arbitrator found that the workman died from a rupture of the heart, caused by the strain of the work and awarded compensation. It was held that the arbitrator was not bound to accept the medical referee's report as conclusive, and that, as there was some evidence to justify the award, it must stand. Scotstoun Estate Co. v. Jackson (1911), 48 Scotch L. R. 440; 4 B. W. C. C. 381 . In the last-mentioned case the court said : ' ' There is nothing in the statute that in any way absolves the ar- bitrator from his duty as arbitrator. It is only a report that he gets from the medical referee, and therefore I think it would be impossible to affirm that the arbitrator was bound to accept the medical referee's report or opinion, that is to say, to accept it as conclusive of the whole matter. He gets a report, and must weigh that report just as he weighs the rest of the evidence." A collier was injured in 1903, and after five months' absence returned to work; some of the work he then did was heavier than his work before the accident. He was dis- missed in 1909, and claimed compensation on the ground that the consequences of his injury prevented him from ob- taining work. The medical evidence was conflicting, and the case was referred to a medical referee, who reported that the man was fit for full work, but more liable to strains than before the accident. On this report the County Court judge made an award of one penny a week. It was held on appeal ADMINISTRATION AND PROCEDURE 803 Finding on question of fact as to which there is evidence to support that the matter was a pure question of fact and that there was evidence to justify the County Court judge's award. Wells v. Cardiff Steam Coal Collieries Co. (1909), 3 B. W. C. C. 104. A workman while engaged in laying drain pipes, was struck on the back by a stone and was injured. A day or two afterwards he was seen by a doctor, who diagnosed pneumonia, and sent him to a hospital, where he remained for three days, when he insisted on being taken home. He was accordingly assisted home, a distance of some ten min- utes' walk, by some neighbors. This was done in spite of warning by the doctor in attendance at the hospital that such a course was dangerous to life. He died two days after- ward. Upon an application by his widow for compensation the arbitrator found that death resulted from the accident. It was held that there was evidence to support the finding. Dunnigan v. Cavan & Lind (1911), 48 Scotch L. R. 459; 4 B. W. C. C. 386. An injured workman was paid compensation for sixty- one weeks by his employers. Subsequently the employers offered the workman light work, which he refused, without attempting to do it. The County Court judge held that the workman had acted unreasonably in refusing to go and see what the work offered was, and that, if he had accepted the offer and returned to work, by the date of the arbitration he would have been under no disability. He therefore stopped compensation, but made a declaration of liability. It was held on appeal that the decision was on a ques- tion of fact, and that there was evidence to support it. Furness, Withy & Co. v. Bennett (1910), 3 B. W. C. C. 195. Where the County Court judge holds that the workman is shamming, and there is evidence to support the decision, this is a question of fact with which the Court of Appeal will not interfere. Roberts v. Benham (1910), 3 B. W. C. C. 430. 804 BRADBUKY'S WORKMEN'S COMPENSATION I/AW Enforcing payment of award; body execution 18. Suspensory award. A suspensory award should be made where, although the man can work, yet the bad effects of the accident still re- main. So held, where a seaman was ruptured and a medical referee reported that he was fit for his full work but must wear a truss. Griga v. Owners of Ship "Harelda" (1910), 26 T. L. R. 272? 3 B. W. C. C. 116. 19. Award to terminate at specified date in future. The judge has no power to make an award which shall continue for a certain length of time and then terminate on a date mentioned in the future. Baker v. Jewell (1910), 3B7W.C. C.503. 20. Admission in answer that compensation has been paid amounts to admission of claim made. A statement in an answer that compensation has been paid is an admission of fact and evidence that a claim has been made. Lowe v. Myers & Son (1906), 95 L. T. 35; 8 W. C. C. 22. 21. Apportioning compensation among dependents; pro- cedure. Where an employer has agreed with dependents as to the amount of compensation, arbitration under the Act, naming the employer as respondent, is not necessary to enable such amount to be apportioned among the dependents of the deceased, but the sum should be brought in and lodged in the County Court to the credit of the applicants and re- spondents. Harland & Wolff v. Radcliffe (1909), 43 Irish L. T. 166; 2 B. W. C. C. 374; Rhodes v. Soothill Wood Colliery Co. (1908), 100 L. T. 15; 2 B. W. C. C. 377. 22. Enforcing payment of award; body execution. A committal order on a judgment summons can be made in order to enforce an award. Johnson v. Adshead, 2 W. C. ADMINISTRATION AND PROCEDURE 805 Offset of overpayment of compensation C. 158. An award for compensation may be enforced by a committal order under the Debtor's Act. Bailey v. Plant (1900), 3 W. C. C. 209. 23. New trial; arbitrator cannot grant. An arbitrator has no power to grant a rehearing in the nature of a new trial of an action after he has made his award, as he sits as an arbitrator and not as a judge. Moun- tain v. Parr (1899), 80 L. T. 342; 1 W. C. C. 110. 24. Signing receipts by workman. A workman was incapacitated by accident. His em- ployers tendered full compensation but asked him to sign a receipt for the payments to the effect that each payment involved no admission of liability to pay any compensation thereafter. The workman refused to sign the receipt, and brought proceedings for arbitration. The Sheriff-Substitute dismissed the proceedings on the ground that no question had arisen. It was held on appeal that there was a question as to the duration of compensation, and the proceedings were competent. Freeland v. Summerlee Iron Co. (1912), 49 Sc. L. R. 841; 5 B. W. C. C. 598. 25. What amounts to " recovery " of compensation. A workman was injured by the negligence of third parties. He received compensation from his employers expressly re- serving his rights against the third parties. It was under- stood that if he succeeded against the third parties he would repay his employers the compensation he had received from them. He brought an action against the third parties. It was held that the workman had not "recovered" compensa- tion and the action was not barred. Wright v. Lindsay (1911), 49 Sc. L. R. 210; 5 B. W. C. C. 531. 26. Offset of overpayment of compensation. When compensation at an agreed rate has been paid to a certain period, and it appears that the workman was not 806 bradbury's workmen's compensation law California entitled to as much compensation as has been actually paid, the court, nevertheless, will not offset the over-payment under the agreement so as to credit compensation due at a subsequent period. Doyle v. Cork Steam Packet Co. (1912), 5 B. W. C. C. 350. ARTICLE B— DIGESTS OF VARIOUS STATUTES WITH NOTES AND FORMS 1 ARIZONA No special body is appointed to administer the law in Arizona. The parties agree upon the compensation payable and reduce their agreement to writing. If they cannot agree they can settle it by arbitration or by submission to the Attorney General of the State. If either party refuses to enter into an arbitration, or to submit the case to the Attor- ney General, then the workman can bring an action in any of the courts of the State which would have jurisdiction of an action between the parties. § 75. CALIFORNIA 2 The Act of 1913, which took effect on January 1, 1914, created an Industrial Accident Commission composed of 1 Manifestly it would be out of the question to repeat in this place the lengthy provisions of the various acts on the questions of adminis- tration and procedure. Enough has been included to give an indication of the plan under each act, with references to the sections of the acts where the details can be found, in the texts of the acts in Chapter XXIV. A number of essential forms have also been given, together with the rules of the various boards and commissions which administer the statutes., Most of these boards require that blanks shall be used which they furnish without cost. Some of the commissions administering State insurance funds require that such blanks be used in all instances. It would mean mere padding therefore to reproduce them in this place. 2 The provisions of the act are to be liberally construed with a view to effect its objects and to promote justice. Christ v. Pacific Telephone and Telegraph Co., Cal. Indus. Ace. Bd., April 25, 1912. Until the workman makes a demand on the employer and the employer ADMINISTRATION AND PROCEDURE 807 California three members. This Commission has complete charge of the administration of the Act with power to create a safety bureau, and a department to administer the State insurance fund. §§ 3 to 11 inclusive. Any dispute in relation to compensation is brought be- fore the Commission by notice and the matter is heard with- out pleadings. §§ 22, 23 and 24. After the Commission has made its finding, any party may file a certified copy of the findings and award with the Clerk of the Superior Court and judgment must be entered by the Clerk in conformity therewith. § 26. The decision of the Commission is subject to review by the courts as provided in §§ 27, 84 and 85 of the Act. refuses or neglects to pay compensation there can be no dispute or con- troversy concerning compensation which gives jurisdiction to the In- dustrial Accident Board. Christy v. Standard Oil Co., Cal. Indus. Ace. Bd., May 10, 1912. The administration of the act demands the utmost good faith on those who come under its terms. In many instances the only available evidence of the nature and extent of the injury is the testimony of the injured workman and if the workman's testimony be discredited and it clearly appears that he lacks good faith and that he has made a deliberate at- tempt to capitalize an old injury the entire claim' should be viewed with doubt and suspicion. Christy v. Standard Oil Co., Cal. Indus. Ace. Bd., May 10, 1912. The burden of proof is upon the person claiming compensation to show that both employer and employe 1 are subject to the compensation provisions of the act, that the employ^, at the time of the accident, was performing service within the scope growing out of and incidental to his employment, and that the accidental injury was caused by accident. McAvin v. City Electric Co., Cal. Indus. Ace. Bd., March 8, 1912; aff'd by Superior Court. Also to prove the nature and extent of his disability and also the probable loss of earning capacity resulting therefrom. Christ v. Pacific Telephone & Telegraph Co., Cal. Indus. Ace. Bd., April 25, 1912. The allowance of an amendment to a pleading rests within the discre- tion of the Board and amendments should be permitted whenever the purposes of the act will be forwarded by so doing. Christy v. Standard Oil Co., Cal. Indus. Ace. Bd., May 10, 1912, 808 bradbury's workmen's compensation law California FORM NO. 10 APPLICATION FOR ADJUSTMENT OF CLAIM INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA Applicant . . , vs. CLAIM NO. Defendant. . . The petition of the above-named applicant respectfully shows to your honorable Commission as follows, to wit: I That on the day of , 191., was (Name of persop injured.) (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 (If applicant is a dependent, state relationship.) person injured. 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 demanded, 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. ADMINISTRATION AND PROCEDURE 809 California III That the following is a statement of particulars relative to this application: 1. Name of injured employe* Address Occupation 2. Name of employer Address Place of business Business address 3. Name and address of all other parties to this application, and reason such parties are joined 4. Place of accident 5. Nature of work on which injured person was engaged at time of accident 6. Description of accident and cause of injury 7. State whether or not medical and surgical, etc., treatment re- quired, and whether furnished by employer or not 8. Name of attending physician Address 9. Nature of injury 10. Has injured person fully recovered? If so, when? 1 1 . Particulars of disability, whether total or partial, and estimated duration thereof. If death resulted, so state, giving date of death , 12. Average earnings of employe 1 prior to accident, including over- time: $ per week; $ per month; $ per year. 810 bradbuey's workmen's; compensation law California 13. Amount injured person 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 during period of disability: $ account medical care and at- tendance; $ per week for weeks' total dis- ability; $ per week for weeks' partial disabil- ity. 15. Additional amount claimed as compensation: $ account medical care and attendance; $ per week for weeks' total disability; $ per week for weeks' partial disability. 16. Date of service on the employer of notice of accident 17. If notice not served within thirty days, reason for omission to serve same 18. If application is filed to adjust claim for death, state name, address and relationship of all dependents. If to adjust claim for medical attendance or funeral expenses, state name and address of all other such creditors and amount of claims, if known: Name , Address. .......; Name , Address ; Name , Address ; Name , Address IV (Here state any further facts that may be desired) Wherefore your petitioner prays, That the above-named respondent. . be required 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 Hon- orable Commission granting such relief as the said applicant . . may be entitled to in the premises. Dated at (Signed) this day of , 191 . . Address NOTE. — When application ia completed and signed by the applicant, the original, together with one copy for each respondent, should be filed with or mailed to the Industrial Accident Commission, Either party may be represented io person, by attorney or other agent, ADMINISTRATION AND PROCEDURE 811 California FORM NO. 11 NOTICE OF FILING OF APPLICATION INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA CLAIM NO. . . Applicant . . , vs. Defendant. .. To the above-named defendant You are hereby notified that the application of entitled as above to adjust a claim for compensation arising out of injuries sustained by the death of (a copy of which is. attached hereto) has been filed in the office of the Industrial Accident Commission of the State of California, Street, , California. In the event that you desire to make any answer to the said application your attention is called to the following rules adopted by this Board, relative to the same, to wit: " Rule VII — Answer. When any defendant desires to disclaim any interest in the subject-matter of the claim in controversy, or considers that the application is in any respect inaccurate or in- complete or desires to bring any fact, paper or document to the attention of the Board as a defense to the claim or otherwise, he must, within ten days after the service of the application, file with or mail to the Board his answer, setting forth the particulars in which the application is inaccurate or incomplete and the facts upon which he intends to rely. A copy thereof must likewise be served upon each party to the proceedings. Any material allega- 812 bbadbttry's workmen's compensation law California tion contained in the application and not controverted in the an- swer will be deemed to be admitted." "Rule VIII — Service. Where a pleading or document is served by mail, it shall, unless the contrary be proved, be deemed to have been served, at the time when the letter containing the same would have been delivered in the ordinary course pf post. Proof of such maiUng shall be prima facie proof of service." And you are further hereby notified that unless you appear and answer within ten days after the service on you of this notice, said Applicant. . will apply to the Board for the relief prayed for. Witness: Industrial Accident Commission Of the State of California, . this day of , 191.. Member — Secretary. State of California, City and County of , being duly sworn, deposes and says: That he is, and was at the times of the service of the papers herein referred to, a citizen of the United States, over the age of eighteen years, and not a party to the within-entitled proceeding; that he personally served the within notice on the hereinafter-named defendants, by delivering to and leaving with each of said defendants personally, in the City and County of , State of California, at the times set opposite their respective names, a copy of said notice attached to a copy of the complaint referred to in said notice. Names of Defendants Served: Date of Service: Subscribed and sworn to before me this day of , A. D. 191 . . Industrial Accident Board Of the State of California. ADMINISTRATION AND PROCEDURE 813 California FORM NO. 12 NOTICE OF HEARING INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA Claim No. . . Applicant. ., vs. Defendant ... The People of the State of California Send Greeting to: Defendant . . , You are hereby notified that the application of entitled as above, to adjust a claim for compensation arising out of injuries sustained by the death of has been set for hearing and will be heard at on the day of , 191., at o'clock . . .M., and you are hereby further notified that in default of your at- tendance at the time and place above mentioned, the Industrial Accident Commission of the State of California will proceed to hear and dispose of the said application in the manner provided by law. Witness: Industbial Accident Commission Of the State of California. By Member — Secretary. Dated at San Francisco, California, this day of.. ..■■■■, 191.. 814 bradbury's workmen's compensation law Connecticut CONNECTICUT The administration of the Act is vested in five Commis- sioners, one for each Congressional district. All communi- cations relating to the administration of the Act should be addressed to the Compensation Commissioner of the dis- trict in which the controversy arises. The names and addresses of the Commissioners are as follows: Fiest District (Hartford County). Commissioner, George B. Chandler, 209 Pearl Street, Hartford. Second District (Tolland, Windham, New London and Middlesex Counties). Commissioner, Dr. James J. Donohue, 748 Main Street, Willimantic. Third District (All of New Haven County, except the towns of Southbury, Middlebury, Waterbury, Wolcott, Oxford, Nauga- tuck, Prospect, Beacon Falls, Seymour, Ansonia and Derby). Commissioner, Talcott H. Russell, 42 Church Street, New Haven. Fourth District (Fairfield County). Commissioner, Edward T. Buckingham, 1024 Main Street, Bridgeport. Fifth District (All of Litchfield County and the following towns in New Haven County; Southbury, Middlebury, Waterbury, Wolcott, Oxford, Naugatuck, Prospect, Beacon Falls, Ansonia, Seymour and Derby). Commissioner, Frederic M. Williams, Lilley Building, Waterbury. Forms for the administration of the Act are distributed to the town clerks of the various towns throughout the State from whom any party in interest may secure the same. Form No. 11 is an agreement in regard to compensation between the employer and the employe. Form No. 12 is an agreement in case injuries result in death. Form No. 13 is a notice from the employer of a failure to agree in regard to compensation which must be served on the Commis- sioner. Form No. 14 is a notice from the employe 1 of failure to agree in regard to compensation which must be served on the commissioner. The proceedings before a commissioner on a disputed claim are as specified in Part B, §§ 17 to 27 inclusive. ADMINISTRATION AND PROCEDURE 815 Illinois The commission has not issued any rules and states the reason therefor (in Bulletin No. 1) is that as the Act contem- plates an informal procedure, without technical pleadings, the commissioners do not deem it wise at the present time to issue rules of procedure which in most cases would be mere paraphrases of the Act. ILLINOIS l Under the Act of 1913 an industrial board consisting of three members is created. §§ 13, 14, 15 and 16. All questions arising under the Act, if not settled by agree- ment of the parties, are determined by the Industrial Board. § 19. Upon notice being given to the Industrial Board that parties have failed to reach an agreement notice is sent .to 1 The rules of the Illinois Industrial Board were received too late to put all of thent in their proper places and therefore they are inserted below: Rules for Reporting Accidents All accidents which result in disability continuing for more than six working days shall be reported to the Board. All accidents involving the loss of a member shall be so reported. All accidents causing disfigurement or death shall be reported to this Board. Rule 2. Reports of non-fatal accidents, as provided in Rule 1, must be made to this Board within fifteen days after the date the accident occurs. Rule 8. Fatal accidents must be reported to the Board immediately. Rule 4. Reports of accidents shall be made on blank form 45 of the Illinois Industrial Board. Rule 5. When the disability of the injured employ^ terminates and also when the payments of compensation for the loss of a member, or disfigure- ment, or for death, has been fully made, final receipt, form 42, showing the date disability terminated and the total amount of compensation paid, signed by the employ^, or his dependents in the case of death, shall be filed with this Board. Rule 6. In cases of permanent. disability reports of compensation paid accompanied by. receipts therefor on form 43 signed by the injured em- 816 Bradbury's workmen's compensation law Illinois the parties to appoint arbitrators and if either party fails to appoint an arbitrator within seven days, the Board fills the vacancy. § 19a. Hearings are then held and the deci- sion of the Arbitration Committee is filed with the Industrial Board. § 19b. Unless a petition for review is filed by either party within fifteen days after receipt of a copy of the de- ploye must be filed*with this Board between the 15th and 25th of each month. Rules of Procedure Rule 7. Notice of Disputed Claim, form 9, accompanied by Application for Adjustment of Claim, form 10 (10 to be in duplicate), mast be filed with this Board. Application should set forth with reasonable detail and certainty the general nature of the claim in controversy, giving such in- formation as will enable the respondent to know what the subject of the matter in dispute is. Rule 8. Upon receipt of Notice of Disputed Claim and Application for Adjustment this Board will notify both parties to appoint their respective representatives on a committee of arbitration, and will send to the re- spondent a copy of the Application for Adjustment of Claim. .The Board will appoint an agent as chairman of the arbitration committee, and in the event of failure of either party to appoint such representative on said committee within seven days after notice the Board will select a suitable person to fill the vacancy and notify the party for whom such appoint- ment is made to that effect, as provided in Section 19, paragraph (a). Rule 9. No person financially interested in the outcome of an arbitra- tion case will be permitted to act as arbitrator. This includes the agents, officers and attorneys of the persons so interested. Rule 10. The hearings of the committee will be had in the vicinity where the injury occurred after proper notice of the time and place of such hear- ing shall have been given to each of the parties. Postponements of such hearings will not be granted. It is therefore essential that parties have their witnesses ready at the time and place set for arbitration so as to make their proofs complete. In the event of either party failing to appear at the time and place set such evidence as may be introduced by the other party will be admitted and the award will be en- tered accordingly. Ride 11. Hearings before the committee of arbitration shall be simple and informal and proof will be necessary only on the particular subject in dispute as set forth in the Application for Adjustment of Claim, pro- vided, that if in the judgment of the chairman of the committee of arbitra- ADMINISTRATION AND PROCEDURE 817 Illinois cision the decision of the Arbitration Committee is entered as the decision of the Industrial Board. The decision of the Board is conclusive but the Supreme Court has power to review questions of law involved in any such decision. § 19 (f). Upon presentation of a certified copy of the decision of the Board to the Circuit Court of the County in which the accident occurred the court must render judgment in ac- cordance with the Board's decision. § 19 (g). The forms for all procedure under the Act are furnished by the Illinois Industrial Board at Chicago. The more im- portant forms are inserted below. In most instances, how- ever, the forms provided by the Board must be used. The form numbers given are those adopted by the Board for the forms supplied by the Board. tion it is necessary to hear evidence on other matters for the purpose of arriving at a proper decision such evidence may be admitted. Rule 12. Petitions for lump sum settlement of compensation must be filed with the Industrial Board. Petitions must be signed by both parties and set forth the nature and extent of the injury, or if death occurred must so state. Petitions should also show the weekly, monthly or annual wage, and total amount of com- pensation due, and such sum reduced to its present value with annual rests. The Board will make such investigation as is necessary and set a date for hearing. Petitions must show the post office address of both parties, or their agents. January 24, 1914. 52 818 bradbury's workmen's compensation law Illinois FORM NO. 10 Application for Adjustment of Claim State of Illinois Industrial Board - • * ; Applicant . vs. Respondent . . . The petition of the above-named applicant. . respectfully shows to your Honorable Board as follows, to-wit: I That on the day of , 19. ., . was by reason of an accident arising (Name of person injured.) (Killed or injured.) 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 demanded, 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.) Ill That the following is a statement of particulars relative to this application: ADMINISTRATION AND PROCEDURE 819 Illinois 1. Name of injured employe - Address Occupation 2. Name of employer Address Place of business Business address 3. Names and addresses of all other parties to this application, and reason such parties are joined 4. Place of accident 5. Nature of work on which injured person was engaged at time of accident 6. Description of accident and cause of injury 7. State whether or not medical and surgical, etc., treatment re- quired, and whether furnished by employer or not 8. Name of Attending Physician Address 9. Nature of injury 10. Has injured person fully recovered? If so, when? 11. Particulars of disability, whether total or partial, and estimated duration thereof. If death resulted, so state, giving date of death 12. Average earnings of employe prior to accident, excluding over- time: $ per week; $ per month; $ per year. 13. Amount injured person is earning, or is able to earn in some suitable employment or business after the accident: $ per week; $ per month. 820 bradbtjry's workmen's compensation law Illinois __ / 14. Payment, allowance or benefit received from employer during period of disability: $ account medical care and at- tendance; $ per week for weeks' total dis- ability; $. per week for weeks' partial dis- ability. 15. Additional amount claimed as compensation: $ ac- count medictd care and attendance; $ per week for weeks' total disability; $ per week for weeks' partial disability. 16. Date of service on the employer on notice of accident 17. If notice not served within thirty days, reason for omission to serve same 18. If application is filed to adjust claim for death, state name, address and relationship of all dependents: Name ; Address If to adjust claim for medical attendance or funeral expenses, state name and address of all other such creditors and amount of claims, if known: Name , Address ; Name , Address IV (Here state any further facts that may be desired.) Wherefore your petitioner prays, That the above named re- spondent be required 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 Board granting such relief as the said applicant may be entitled to in the premises. Dated at this day of , 19. .. (Signed) Address ADMINISTRATION AND PROCEDURE 821 Illinois FORM NO. 9 Notice of Disputed Claim To the Industrial Board, Chicago, Illinois: Take notice, that of (Insert name of employer.) and (Insert name of employe.) have failed to reach an agreement between themselves with ref- erence to a claim for compensation under the Workmen's Com- pensation Act of the State of Illinois (Illinois Laws, 1913, page 335) arising out of an alleged accidental injury on the day of , 19. . , and the undersigned therefore requests that said claim may be arbitrated in accordance with the provisions of said Act, and that your Honorable Board may take the requisite steps in accordance with the provisions of said Act for the appointment of a Committee of Arbitration to hear and determine said claim. Dated this day of 19. . . (Employer or employe, as the case may be.) Address FORM NO. 11 Request for Appointment of Arbitrators State of Illinois, ss .County, Applicant, vs. Respondent. To BEFORE THE INDUSTRIAL BOARD Chicago, Illinois. You are hereby Notified to appoint a representative on a Committee of Arbitration, to arbitrate the above matter, and to file your notice of such appointment with the Industrial Board, Chicago, Illinois, within seven (7) days after the receipt of this 822 bradbtjry's workmen's compensation law Illinois notice, in default of which said Industrial Board will appoint a suitable person to act for you as a member of said Committee of Arbitration, for the purpose of hearing and determining all ques- tions in dispute between the parties in the above entitled matter. Dated this day of 19. . . Industrial Board of Illinois, (seal) By Secretary. FORM NO. 20 Petition for Review of Decision of Committee of Arbitration State of Illinois Industrial Board State of Illinois, County of ss. Petitioner, vs. Respondent. Now comes of and respectfully petitions the Honorable Industrial Board of the State of Illinois as follows: The said Board shall review the decision of the Committee of Arbitration, duly appointed according to law, in the matter of vs which decision of said Committee of Arbitration was filed with the Industrial Board on>the day of , 19. . . Petitioner presents herewith an agreed statement of the facts, as presented to said Committee of Arbitration upon the hearing hereof (or stenographic report of proceedings, as the case may be). Petitioner represents that the grounds upon which he presents this petition for review are that the disability of the applicant herein has recurred (increased, diminished, or ended, as the case may be). Petitioner further represents that said decision of the Committee of Arbitration should be reviewed by the Industrial Board, for the ADMINISTRATION AND PROCEDURE 823 Illinois following ground for additional review, in reasons, to wit: (set accordance with Sec. up any XIX). other proper Petitioner therefore prays that proper notice in accordance with the statute may be given to the parties interested herein, and that a date may be set by the Honorable Industrial Board for a hearing upon this petition for review, and that upon such hearing said Board may modify or vacate the order and decision of the Com- mittee of Arbitration, as in the opinion of said Board the facts and circumstances shall warrant. And your petitioner will ever pray. (Employer or employ^, as the case may be.) Attorney for Petitioner. FORM NO. 24 Petition for Review of Agreement or Award State of Illinois Industrial Board Petitioner, vs. Respondent. Petitioner of respectfully represents/that on the day of , 19 . . at Illinois, an agreement (or award, as the case may be) was duly made in the above-entitled matter of com- pensation due from growing out of an accidental injury arising out of and in the course of the employment of as an employ^ of Petitioner further represents that said agreement (or award, as the case may be) should be reviewed by your Honorable Industrial Board upon the ground that the disability of has, subsequent to the date of said agreement (or award, as the case 824 bradbury's workmen's compensation law Illinois may be), recurred (increased, diminished, or ended, as the case may be). (Allege what compensation has been paid, if any, and any other facts and circumstances proper for the Board to consider under the statute upon petition for review.) Petitioner therefore prays that proper notices may be given to all parties interested under this petition for review, and that this petition may be set down for hearing at some date to be fixed by your Honorable Industrial Board, and that upon such hearing upon review, said compensation payments as fixed in said agree- ment (or award, as the case may be) may be re-established (in- creased, diminished or ended, as the case may be). And your petitioner will ever pray. Petitioner. Attorney for Petitioner. FORM NO. 28 Employer's or Beneficiary's Petition for Lump Sum State of Illinois, l ss. . County, Petitioner, vs. BEFORE THE INDUSTRIAL BOARD Chicago, Illinois. Respondent. Now, comes petitioner herein, and respect- fully represents that he is (or, in death cases, say the deceased em- ploye was) and was on the day of , 19. . , an employ^ in the service of an em- ployer at Illinois; that both said employer and petitioner (or, in death cases, say said deceased employ^) were working under and subject to the provisions of the Workmen's Compensation Act (Laws of Illinois, 1913, page 335), and that on, to-wit: the day of , 19. ., peti- tioner (or, in death cases, say said deceased employ6) was acci- ADMINISTRATION AND PROCEDURE 825 Illinois dentally injured (and, in death cases, add: "as a result of which, said employ^ died"). Petitioner further shows that said employer has paid compensa- tion on account of said injury (or death) as follows: (State what has been paid, and in what installments; and if no compensation has been paid, so state.) (In death cases add: Petitioner further shows that . .he is a de- pendent of said employe, in this, that . . he is the surviving widow (child, children, as the case may be) with whom said employe lived at the time of his death, and whom he was under legal obligations to support; or in case of parents, grandparents or other lineal heirs, state that said employe contributed to petitioner's support within four years previous to the time of said injury; if the petition is presented by an administrator or executor, allege that petitioner is the duly qualified and acting administrator or executor, as the case may be, of said deceased employe.) Petitioner further shows that . . he believes it to the best inter- est of the parties that compensation now due and to become due be paid in a lump sum, for the following reasons: (Set them out, showing necessity for such payment, and proper anticipated use of the money, etc.) Petitioner therefore respectfully prays that proper notices may be given to the interested parties, and particularly to said employer at Illinois, and that a hearing may be had at some day to be fixed by your Honor- able Board, and that upon such hearing said Board may order the commutation of the compensation to an equivalent lump sum, equal to the total sum of the probable future payments capitalized at their present value upon a three per cent basis, with annual rests, in accordance with the provisions of said Workmen's Com- pensation Act. And your petitioner will ever pray. Petitioner. P. 0. Address Attorney for Petitioner. 826 bradbury's workmen's compensation law Illinois FORM NO. 29 Petition for Lump Sum Answer of Respondent State of Illinois, County, ss. Petitioner, vs. Respondent. BEFORE THE INDUSTRIAL BOARD Chicago, Illinois. Now comes Respondent herein, and for answer to the petition of herein, praying for a lump sum, settlement of claim for compensation arising out of the alleged ac- cidental injury sustained by on the day of , says: (Admit such facts as are not controverted and deny those allegations which are controverted.) Respondent further answering, says that believes that it is not for the best interests of the parties' that the compensation, if any, which is now due or which is to become due on account of said alleged accidental injury to be paid in a lump sum, for the following reasons, to-wit: (Set out reasons, showing no necessity for such payment, liability to waste, etc.) Respondent therefore prays that said alleged compensation now due and to become due be not ordered paid in a lump sum, and that said petition may be dismissed. Respondent. Post Office Address Attorney for Respondent. ADMINISTRATION AND PROCEDURE 827 Illinois FORM NO. 36 Demand for Security for Payment of Compensation State of Illinois Industrial Board Chicago, Illinois, ,19.. To Demand is hereby made upon you under the authority given the Industrial Board by Section XXVI of an Act, entitled: "An Act to promote the general welfare of the people of this State by pro- viding compensation for accidental injuries or death suffered in the course of employment within this State; providing for the en- forcement and administering thereof, and a penalty for its viola- tion, and repealing an Act entitled, ' An Act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment, approved June 10, 1911, in force May 1, 1912.' " That within ten days of the receipt by you of this written notice, you either: 1. File with the Industrial Board a sworn statement, showing your financial ability to pay compensation provided for in said Act, normally required to be paid; or, 2. Furnish security, indemnity or a bond guaranteeing the pay- ment by you of the compensation provided for in said Act, nor- mally required to be paid; or, 3. Furnish the Board with satisfactory evidence that you have insured to a reasonable amount your normal ability to pay such compensation in some corporation, association or organization au- thorized, licensed or permitted to do such insurance business in this State; or, 4. Make some other provision for the securing of. the payment of compensation provided for in said act, normally required to be paid. You are further notified that you are required by the provisions of said act to furnish the Industrial Board at Chicago, Illinois, within twenty days of the receipt of this written demand and no- 828 Bradbury's workmen's compensation law Illinois tice, evidence of your compliance with one of the above four al- ternatives, and that the steps taken by you pursuant to this notice and demand for compliance with the requirements of said Act as above stated, shall be subject to the approval of the Industrial Board. You are further notified that if one or more of the above named four alternatives are not complied with by you within ten days of the receipt of tms demand and notice, or if such compliance on your part shall not be approved by the Industrial Board, and you fail to properly comply with this written demand, within ten days after the receipt by you of written notice of non-approval, then and in such case you shall be liable for compensation to any injured employe, or his personal representative, according to the terms of said Act, or for damages in the same manner as if you had elected not to accept this act, at the option of such employe or his personal representative. Prompt compliance with the above demand is respectfully urged. Dated at Chicago, Illinois, this day of A. D. 19... Industrial Board, (seal) By Member of Board. FORM NO. 39 Notice by Employe of Exercise of Option to Proceed for Compensa- tion, or for Damage State op Illinois Industrial Board To You are hereby notified that by reason of your failure to comply with the demand of the Industrial Board of the State of Illinois, under Section 26 of the Workmen's Compensation Act (Laws of Illinois 1913, p. 335), that you furnish sworn statement of financial ADMINISTRATION AND PROCEDURE 829 Illinois ability, or security, indemnity or bond, or sufficient amount of insurance, or other satisfactory provision for securing the payment of compensation provided by said Act, I, The undersigned, hereby exercise the option given to me by the provisions of said act to proceed against you for (compensation or damages, as the employe shall elect,) and that I have accordingly filed proceedings therefor on this date in at on account of accidental injuries sustained by me while in your employment on the day of A. D. 19. .. Dated at Illinois, this day of ,19.-. (Signed) FORM NO. 40 Notice of Employe of Accidental Injury and Claim for Compensation Therefor State of Illinois Industrial Board To (Write name of employer here.) (Write address of employer here.) You will take notice that the undersigned was on the day of A. D. 19. ., injured by an accident arising out of and in the course of his employment, while employed by you at Illinois. Name of Employe Post Office Address . . , Relationship to claimant (State whether notice given by injured person or by dependent.) Claim for compensation is for Cause of the accident * Nature of the injury is as follows 830 bbadbury's workmen's compensation law Illinois FORM NO. 41 Notice of Claim for Partial Permanent Disability after Return to Work To The Industrial Board, Chicago, Illinois. Take notice, that the undersigned, an employe in the service of , an employer engaged in this business of at Illinois, was accidentally injured in the course of such employment, on the day of , 19 . . , at the of said employer, at Illinois; that the cause of said accident was and the nature of the injury is on account of which the undersigned employe is partially though permanently incapacitated from pursuing his usual and customary- line of employment; that on the day of , 19 . . , the undersigned employe" returned to the employment of said employer. , in whose service he was injured as aforesaid. Further take notice, that the undersigned employe" hereby makes formal claim for compensation against said employer ,for $ being weeks days, at $ per week or .day, on account of said accidental injury, of , 19. . , and the Industrial Board is hereby requested to immediately send a copy of this notice by registered mail to said employer at as provided by Section 8 (d) of the Workmen's Compensation Act, Laws of Illinois 1913, page 335. Dated ,19... (EmployS) P. 0. Address ADMINISTBATION AND PROCEDURE 831 Illinois FORM NO. 42 Settlement Receipt Received of (Name of employer.) the sum of dollars and cents, making in all, with weekly payments already received by me, the total sum of dollars cents, in settlement of compensation under the Illinois Workmen's Compensation Law, for all injuries received by me on or about the day of , 19. ., while in the employ of . (Name of employer, city or town, street and number.) subject to review by the Industrial Board. Witness my hand this day of , 19. .. Witness, '. (Name of employe.) Address (Street and number.) (City or town.) FORM NO. 43 Receipt on Account of Compensation Received of (Name of employer.) the sum of dollars and cents, being the proportion of my weekly wages from the day of , 19. ., to the day of , 19.., under the Illinois Workmen's Compensation Act, subject to' review by the Industrial Board, said accident occurring on the day of , 19. ., while in the employ of / (Name of employe.) (Street and number.) Date. 832 bradbury's workmen's compensation law Illinois FORM NO. 44 General Release Know all men by these phesents, That I, , of in the County of in the State of Illinois have received of the the sum of dollabs ($ ) in full payment, satisfaction, compensation and indemnity, for all injuries, loss or damage by me sustained or suf- fered, in mind, body or estate, having especial reference to the injuries hereinafter described, but hereby expressly including all other loss, incapacities or injuries by me suffered, claimed to have been occasioned by an accident which occurred on the day of A. D. 19. . at (Where accident occurred.) in the town of in the County of and State of Illinois, by which I sustained the following injury: and by which I was otherwise hurt and injured. And in consideration of the prompt payment of said sum of money and the further consideration of the compromise and settle- ment, without suit or proceedings of any kind, of my claim, by me made against said I, the said for myself, my heirs, executors and administrators, do hereby for- ever release and hold harmless the said of and from any and all rights of action, claims of compensation for disability, incapacity, disfigurement, and medical, surgical and hospital service and expense in connection with said injury, and all other claims, demands or liability in any way arising out of, or which in any manner hereafter may arise out of or result from, said accident for injuries occasioned, loss of time, loss of service, loss of property, loss of earning capacity, moneys expended, or liability incurred, and any and all claims, demands or liability, of whatever nature, for or on account of any act or thing done or omitted to be done by said officers, agents, servants or employes, or any one of them, in its behalf; including all claims or demands due or which may or might ADMINISTRATION AND PROCEDURE 833 Illinois become due under the Workmen's Compensation Act, 1913. (Laws 111., 1913, p. 335.) I further represent and covenant that at the time of receiving said payment and signing and sealing this Release, I am of lawful age and legally competent to execute it, and that before signing and sealing the same, I have fully informed myself of its contents and executed it with full knWledge thereof, including the knowl- edge that I sign away all right to begin any suit, proceeding or action arising by reason of injuries sustained in said accident, whether such injuries exist now or shall develop hereafter. Witness my hand and seal this day of A. D. 19... [seal] Witnesses: State op Illinois, County of Personally appeared before me this day of ... . A. D. 19 , to me known to be the person who executed the within Release, and acknowledged the same to be his free act and deed; and I certify that before the execution thereof, the foregoing Release was read over and fully explained to the same person by me, and that he declared before execution thereof that he fully understood the same. Notary Public. TRANSLATION CERTIFICATE I ; , do hereby certify that I have translated the foregoing Release from the English to the language, to the within named , and that he signed the same with a full understanding of its con- tents and legal effect. 53 834 bradbuey's workmen's compensation law Iowa FORM NO. 46 Report of Permanent Disability State of Illinois — Industrial Board The undersigiwd hereby reports accidental injury in which per- manent disability has resulted to the employe 1 as follows: Employer's name Business Main Office: Street and No City or Town City or town in which accident happened Employees name Street and No City or Town Sex Age Married or Single American or foreign born Occupation when injured (machinist, carpenter, laborer, etc.) .... Wages Date of accident o'clock M. Direct cause of injury Nature of accident (describe fully) . If non-fatal, the length of disability: Permanent disability of employe* resulted or will result on. ... 19. . Attending physician, surgeon or hospital Amount paid By whom Has compensation been paid? To whom Amount Date of report Made out by IOWA The administration of the Iowa Act is under the super- vision of a single officer known as the Iowa Industrial Com- missioner who may appoint necessary assistants. Part II, ADMINISTRATION AND PROCEDURE 835 Kansas § 24. All agreements as to compensation must be reduced to writing and filed with the Commissioner and unless he disapproves the same within twenty days they stand ap- proved. Part II, § 26. If there is a failure to agree an arbitration committee is formed and the Industrial Commissioner is the chairman of every such committee. Part II, § 27. The finding of the arbitration committee is filed with the Industrial Commis- sioner. Part II, § 30. If a claim for review is filed from the decision of the arbitration committee it is heard by the Industrial Commissioner alone who may revise the decision of the committee in whole or in part and may refer the matter back to the committee for further findings of fact. Part II, § 33. Any party in interest may present a certified copy of the decision of the Industrial Commissioner or the de- cision of the Committee of Arbitration from which no claim of review has been filed, or a memorandum of agreement approved by the Commissioner, in the District Court in the County in which the injury occurred, whereupon the court shall render a decree in accordance therewith and notify the parties. Part II, § 34. KANSAS There is no special officer appointed under the Kansas law to administer the Act or supervise proceedings there- under. Questions in relation to compensation may be settled by agreement. § 23. If an agreement cannot be reached disputes may be settled by arbitration. §§ 24 to 30 inclusive. Upon the filing of an award under an arbitration a judgment may be entered in the District Court. § 31. If the parties cannot agree upon the compensation, or refuse to arbitrate their differences, the workman's right to compensation may be determined in an action in any court of competent jurisdiction. § 30. 836 bbadbury's workmen's compensation law Massachusetts MARYLAND Questions relating to compensation may be settled by agreement or by arbitration. § 13. MASSACHUSETTS The Act is administered by an Industrial Accident Board consisting of five members with its principal office in Boston. Questions relating to compensation may be settled by agree- ment, but these agreements are not binding until they are approved by the Board. Part III, § 4. If the parties do not agree on the compensation they may call upon the Board to form an arbitration committee. Part III, §§ 5 and 6. The decision of the arbitration committee is filed with the Industrial Accident Board and unless a claim for review is filed by either party within seven days the decision is final. Part III, § 7. If a claim for review is filed it is heard by the Industrial Accident Board. Part III, § 10. Any party in interest may present a certified copy of the decision of the Board or of an arbitration committee, from which no claim for review has been filed, or a memorandum of agreement ap- proved by the Board, to the Superior Court * for the county 1 "At the threshold lies a question of practice. The insurer, being a party in interest, presented its petition to the Superior Court, together with certified copies of the decision of the Industrial Accident Board. The petition alleges the interest of the employe^ employer and insurer, the date of the decision and the insurer's desire to have determined ques- tions of law set out in the decision. Part III, § 11, as amended by St. 1912, c. 571, § 14, provided that 'any party in interest may present certified copies of an order or decision of the Board * * * and all papers in connection therewith to the Superior Court * * * whereupon said Court shall render a decree in accordance therewith and notify the parties. Such decree shall have the same effect, and all proceedings in relation thereto shall thereafter be the. same as though rendered in a suit duly heard and determined by said Court, except that there shall be no appeal ADMINISTRATION AND PROCEDURE 837 Massachusetts in which the injury occurred, or for the County of Suffolk, whereupon said court shall render a decree in accordance therewith and notify the parties. Part III. § 11. therefrom on questions of fact.' While this section does not require any- thing more than the bare presentation of the copies of the designated pro- ceedings of the Industrial Accident Board, it is not improper that a petition be filed setting forth briefly the nature of the questions to be decided. When the case came on to be heard in the Superior Court a decree was entered in accordance with the decision of the Board. The Judge also allowed a bill of exceptions, stating that it was for the purpose of enabling this Court to determine the proper manner of bringing before it pro- ceedings of this sort. "The Workmen's Compensation Act has a procedure all its own. Where the Act is adopted by the parties, a relation arises between the employe 1 and the employer, under which in the event of a personal injury to the employ^ there shall be speedy ascertainment of the new kind of compen- sation provided by the Act, coupled with a voluntary relinquishment by both parties of the right to trial by Jury as to matters covered by the Act. One main purpose of the Act is to establish between employe 1 and employer, in place of the common-law or statutory remedy for personal injury, based upon tort, a system whereby compensation for all personal injuries or death of the employe 1 whether through unavoidable accident or negligence or otherwise (except through his serious and wilful mis- conduct), shall be determined forthwith by a public board, and paid by the insurer. For the accomplishment of these ends a simple method is furnished operating without delay or unnecessary formality. The prac- tice should be direct and flexible in order to adapt the remedy to the needs of the particular case. In one aspect a case under the Act resembles an action at law, for it seeks ultimately the payment of money. Payments, however, in most instances are by instalments. In another aspect it is akin to the specific performance of a contract, designed to cover the whole range of misfortunes likely to arise in the course of employment in a state with many and diversified industries. Moreover, the compensation is to be paid not directly by the employer, but by the insurer, who is either the "Massachusetts Employes Insurance Association" provided by Part IV of the Act or any liability insurance company authorized to do business within the Commonwealth. The employe 1 has no immediate relation with the insurer. He is the beneficiary under a contract between the employer and insurer. A beneficiary under any instrument to which he is not a direct party more naturally looks to equity rather than the law for relief. Part III, § 11, requires a "decree" to be entered, and 838 bradbury's workmen's compensation law Massachusetts FORM Agreement in regard to compensation 1 We, , residing at (Name of injured employe.) city or town of and the » (Name and address of insurance association or company.) have reached an agreement in regard to compensation for the in- jury sustained by said employ & while in the employ of (Here insert name and address of employer.) (Here insert the time, including hour and date of accident, the place where it occurred, the nature and cause of injury, and other cause or ground of claim.) refers to the proceedings as a "suit." A decree in our practice is entered commonly in equity alone. Judgment is the word expressive of the end of an action at law. Suit while a word of comprehensive signification, is applied usually in our practice to proceedings in equity, while action is the word descriptive of proceedings at law. Our statutes in general, although perhaps not with absolute uniformity, refer to proceedings in equity as suits, § R. L. c. 159, and to those at law as actions, § R. L. c. 167. Giving due weight to the equitable phraseology employed in this section, to the beneficent purposes of the Act, which can be enforced better through the relief afforded by equity, and to the character of pro- ceeding itself and the parties thereto, it follows that in the main causes under the Act in Court should be treated as equitable rather than legal in nature, procedure and final disposition. "The Act provided only for an appeal, and makes no reference to ex- ceptions. Although exceptions are permitted in our system of equity, that is a statutory engraftment, not according to general chancery pro- 1 "Every agreement in regard to compensation under this act is subject to approval by the Industrial Accident Board, and a memorandum of the same must be filed with the Board, whether said agreement is written or oral, and whether it is made by one or both parties, or in the form of a receipt. Any weekly payment or settlement under the act, whether purporting to be final or otherwise, may be reviewed by the Board. (Sec- tion 20, Part II, and sections 4 and 12, Part III, chapter 751, of the Acts of 1911, and amendments thereto, and rule adopted by the Board.) "The above paragraph of this rule shall be written or printed at the head of every agreement regarding compensation, and of every receipt taken by the insurer from the employed" Rule No. 6, Mass. Indus. Ace. Bd. ADMINISTRATION AND PROCEDURE 839 Massachusetts The terms of the agreement follow: (Here state the sum per week agreed upon subject to the terms of the Act.) (Witness.) (Name of injured employe.) (Name of insurance association or company.) cedure, an appeal is simpler and on all grounds better practice. But where exceptions are taken, there can be no final decree until exceptions are dis- posed of. The present Act, however, requires a decree, which in the ordi- nary case must be final in its nature, to be entered by the Superior Court. This precludes the possibility of exceptions. It follows that the suit must be brought here by appeal from the decree of the Superior Court, and not by exceptions. As exceptions could not be allowed legally, the case is here rightly on appeal." Gould v. Sturtevant and Am. Mut. Lia. Ins. Co., 215 Mass. 000; 102 N. E. Rep. 693. "In the decree entered in the Superior Court the ruling of the Board of Arbitration was followed, providing that the payments should be di- vided equally between the widow and the dependent minor daughter, rather than that of the Industrial Accident Board that the widow alone was entitled to the payments. This was not in accordance with the Act, as has been pointed out. Apparently the judge of the Superior Court exercised his own judgment as to the kind of decree which the law re- quired upon the facts found. That is correct. Part III, § 11, of the Act as amended by St. 1912, c. 571, § 14, provides that when copies of the 'decision of the Board * * * and all papers in connection therewith' have been transmitted to the Superior Court, 'said Court shall render a decree in accordance therewith.' This means such a decree as the law requires upon the facts found by the Board. It does not make the action of the Superior Court a mere perfunctory registration of the approval of the 'conclusions' of law reached by the Industrial Accident Board. The section in question doubtless was enacted because of the intimation in the Opinion of the Justices, 209 Mass. 607, 612, to the effect that the decision of the Board must be enforced by appropriate proceedings in Court. The obligation placed upon the Superior Court by the require- ment to enter a decree in accordance with the decision is to exercise its judicial function by entering such decree as will enforce the legal rights of the parties as disclosed by the facts appearing on the accord." Mc- Nichol v. Patterson, Wilde & Co. and Employers' Lia. Assur. Corp., 215 Mass. 000; 102 N. E. Rep. 697. "The Act does not contemplate the allowance of exceptions, and they must be dismissed. The case is properly here on appeal." Id. Although a proceeding under the Workmen's Compensation Act is not an equity cause, the practice, speaking broadly, follows that prevailing 840 beadbury's workmen's compensation law Massachusetts FORM Receipt on account of compensation Received of (Name of insurance association or company.) . the sum of * , dollars, and cents, being the proportion of my weekly wages for the period from the .day of , 191., to the day of , 191. , under the Massachusetts Workmen's Com- pensation Act, subject to review by the Industrial Accident Board. (Witness.) (Employe.) (Street and No.) (Street and No.) (City or Town.) (City or Town.) in equity and not that in law. Pigeon v. Employers' Lia. Assur. Corp., 215 Mass. 000; 102 N. E. Rep. 932. The word " court" is broad enough to include the Committee of Arbitra- tion and the Industrial Accident Board as instituted by the Workmen's Compensation Act and should be given such construction in relation to R. L. Chap. 175, § 66, providing that "a declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant." Pigeon v. Employers' Ida. Assur. Corp., 215 Mass. 000; 102 N. E. Rep. 932. In the last-mentioned case the deceased employe' was a driver and stated shortly before the ac- cident that he was going to take the horses to water. On the way to the watering trough the horses ran away and the employe" was killed. It was held that this declaration by the employe" was admissible in evidence in a proceeding on behalf of dependents before an Arbitration Commission and the Industrial Accident Board for compensation. The Massachusetts Industrial Accident Board has no authority to arbitrate injury cases not under the Workmen's Compensation Act. Bulletin No. 2, Mass. Indus. Ace. Bd., Jan., 1913, p. 12. ADMINISTRATION AND PROCEDURE 841 Massachusetts FORM Application for review of claim before full board To the Industrial Accident Board, Boston, Mass. Gentlemen: — The undersigned, as provided in Part III, sec- tion 7, chapter 751 of the Acts of 1911, and amendments thereto, makes application for a review of the findings of the Committee on Arbitration in the claim of vs. . . , ■. This claim for a review is based on the following ground: — ,191.. Note. — "No party shall as a matter of right be entitled to a second hearing on any matter of fact." FORM Appointment of next friend of minor Under Part II, § 14 of the Act, which permits a minor to nom- inate a next friend to receive compensation the Board has adopted a simple form which may be used in such cases as follows: I, , being a minor, hereby request (Name and address of employe.) my mother (or as the case may be), whose name is to exercise all my rights and privileges under the Workmen's Compensation Act, and I hereby nominate and declare my said mother to be my next friend for said purposes. Dated at the on the day of , 191.. (Signature of employe.) 842 bra.dbury's workmen's compensation law Michigan MICHIGAN * The Act is administered by the Industrial Accident Board consisting of three members appointed by the Gover- nor. Part III, § 1. The Board prints and furnishes free of charge to employers or employes all blanks necessary in the administration of the act. Part III, § 4. Questions relating 1 Rules of Procedure, Michigan Industrial Accident Board what accidents to be reported Rule 1. All accidents which result in disability continuing for more than one full working day shall be reported to the Board; all accidents involving the loss of a member shall be so reported irrespective of the question of disability resulting; all accidents causing death shall be re- ported to the Board. WHEN TO BE REPORTED Rule 2. All employers subject to the Compensation Law shall make reports to the Board weekly of all accidents to their employe's which come within the classes of accidents designated in Rule 1. Such reports shall be on and in accordance with the requirements of the weekly report blank, "Form No. 5-a," of said Board. FIFTEENTH-DAT REPORT Rule S. In all cases where the disability resulting to the injured employe" continues for more than fourteen days, a further report, on and in accord- ance with the requirements of report blank, "Form No. 6," shall be made to the Board on the fifteenth day of such disability: Provided, That in all cases where the accident causes the loss of a member or death, such re- port on Form No. 6 shall be made to the Board within ten days after such accident or such death, as the case may be. IMMEDIATE REPORT REQUIRED Rule 4- Id. all cases where a claim for compensation is filed with the Board by an injured employe^ if it appears that the report required by Rule 3 has not been made and filed by the employer on account of dis- agreement as to the continuance of the disability or for any other reason, the Board shall thereupon require such employe 1 to forthwith file a report ADMINISTRATION AND PROCEDURE S43 Michigan to compensation may be settled by agreement, but they are subject to the approval of the Board. Part III, § 5. If the parties fail to agree as to the compensation the Board of the accident on and in accordance with the requirements of blank Form No. 6 of said Board. MEMORANDUM AGREEMENT Rule 5. When an agreement in regard to compensation is made be- tween the employer and the injured employ^, the same shall be in writing on and in accordance with Form No. 10 of the Bpard, and such agreement, together with the supplemental report in accordance with the requirements of form No. 7, shall be immediately filed with the Board. SUPPLEMENTAL REPORT Rule 6. In cases where the employer and employe 1 fail to reach an agreement in regard to compensation and either of such parties files application with the Board for arbitration of the matter, such em- ployer shall, within fifteen days after the filing of such application for arbitration, make and file with the Board a supplemental report of the accident on and in accordance with the requirements of Form No. 7 of said Board. RECEIPTS FOR COMPENSATION Rule 7. After an agreement relating to compensation is made between the employer and the injured employ 6, and approved by the Board; and also in cases where an application for arbitration has. been filed and an award of compensation made by the Board, receipts for weekly payments of compensation made upon Form No. 11, signed by such employe 1 or his dependents, shall be filed in the office of the Board monthly. FINAL REPORT Rule 8. When the disability of the injured employe" terminates; and also when the payment of compensation for the loss of a member, or in case of death, has been fully made, final report thereof shall be filed with the Board, on and in accordance with Form No. 7-a, together with settle- ment receipt on and in accordance with Form No. 12, signed by the employe 1 or his dependents, as the case may be. Rule 9. Wherever the word "employer" is used in the foregoing rules, numbered from 1 to 8 inclusive, it shall be construed to cover either the employer, or the insurance company carrying the risk, or the Commis- sioner of Insurance, as the case may be. 844 bradbury's workmen's compensation law Michigan forms an arbitration committee which hears the matter and reports to the Board. If a claim for review is filed the matter is heard by the Board, which has power to hear the parties, LUMP SUM PAYMENTS Ride 10. It is manifest that the clear purpose of the legislature was to provide that the compensation receivable under this law should go to the persons or families 5 entitled to the same in weekly payments, it being the opinion of the legislature that when so paid it would more effectually meet and relieve the wants of the injured employes and their families, than if paid in a lump sum. This view has the full endorsement and con- currence of the Board. Therefore, lump sum payments will only be au- thorized in exceptional cases where circumstances create a necessity for such action. Application for lump sum payments can only be made after an "Agreement in Regard to Compensation" has been filed with and approved by the Board, or an award of compensation made; and such application is required to be in the form of a sworn petition setting forth in detail the facts and circumstances on which application is based. Desire of the applicant to go to another state or country or to buy property, or to invest in business, etc., do not constitute reasons for lump sum payment. In general conditions created by the acts of the injured employe 1 or his dependents after the accident, do not constitute ground for such payment. As a general rule, the circumstances and conditions that will justify such payment are those existing prior to the accident or created by it, such as mortgage indebtedness on the home of the employed In such case, both the indebtedness and attendant conditions must be set forth in detail, and if secured by mortgage, the location and description of the property must be given, the name and address of the mortgagee, and the office or place where the mortgage is filed or recorded. APPEALS TO SUPREME COURT Ride 11. In case an appeal is taken to the Supreme Court by cer- tiorari, it is incumbent upon the appellant to prepare the return to such writ in much the same way that a bill of exceptions is prepared in cases appealed by writ of error. Such proposed return should be submitted to and served upon the opposite party, or his attorney, so as to give opportunity to prepare and submit amendments in substantially the same way as in settling bills of exceptions. The appellant at the time of serving the proposed return on the opposite party should serve such opposite party with notice of the time when the proposed return will be presented to the Board for settlement. This practice will give both par- ties an opportunity to be heard and to have all matters which they ADMINISTRATION AND PROCEDURE 845 Michigan together with such additional evidence as they may wish to submit. Part III, § 11. The decision of the Board may be reviewed by the Supreme Court on all questions of law. deem important included in such return. In cases where the proposed return is agreed upon between the parties, such agreement may be signi- fied by a stipulation in writing attached to the proposed return. FINDINGS OF FACT AND LAW Rule IS. If either party in a case desires to have findings of fact and law made by the Board for the purpose of an appeal to the Supreme Court, such party shall prepare and submit to the Board proposed findings of law and fact in substantially the manner required by rule in non-jury cases. Such proposed findings shall be served upon the opposite party, together with notice of the time when the same will be presented for settlement be- fore the Board. Such opposite party may draft and submit amendments to such proposed findings of fact and law, and also additional proposed findings, if deemed necessary. In case of disagreement on such proposed findings, the same will be settled by the Board in substantially the same manner that is provided for settlement of the return to a writ of certiorari. Parties will aid the Board in this work by agreeing upon the facts to be found whenever possible, and in cases where they are unable to agree they will aid the Board by reducing the matters in difference to the smallest possible compass. FURTHER RULES The Industrial Accident Board on October 5, 1912, adopted certain rules relating to the reporting of accidents, settlement of claims, receipts for compensation and procedure to be followed in cases settled and dis- posed of without arbitration or contest. These are known as "Rules of Procedure'' and are numbered from one to nine inclusive. Said rules and the procedure marked out by them cover the uncontested cases, and also the reporting of accidents and other preliminary proceedings in cases that later become contested and eventually proceed to arbitration. In the administration of the law the Board has from time to time adopted rules relating to practice and procedure in connection with con- tested cases and claims, as experience seemed to require, and the same are here set forth, under the bead of "Administration and Procedure," as follows: SELECTION OF ARBITRATORS Rule 1. It is a maxim of the law that no man can act as judge in hjs own case, and this principle extends to and excludes all persons financially 846 bradbury's workmen's compensation law Michigan Part III, § 12. The application for review by the aggrieved party must be made within thirty days "after such de- termination" by certiorari, mandamus or any other method interested in the outcome of the case, together with their agents, officers, and attorneys. Persons so nearly related to any of the parties in" an arbi- tration case that they may be fairly deemed to be financially interested in the decision are also excluded under this principle. The rule is there- fore established by* the Board that all persons who fall within any of the above-named classes are disqualified from acting as arbitrators in cases to be heard before committee on arbitration under the Workmen's Com- pensation Law. POSTPONEMENT Or CASES Rule 2. The compensation law provides that arbitration be had in the locality where the accident occurred. This is for the accommodation of parties interested and to save expenses for travel and mileage for them- selves and witnesses. In all arbitration cases one member of the Board goes to place of accident, frequently traveling hundreds of miles to hear the case. It is apparent under these conditions a postponement of such hearing cannot be had and it is necessary for the parties to be prepared for arbitration and to proceed with the same at the time and place set. Any other rule would make the administration of the compensation law expensive and ineffectual. The parties must also have their witnesses ready at the time and place set for arbitration so as to make their proofs complete. INSURER DEEMED PARTY Rule S. When arbitration is ordered in the case of any employer who is insured, notice of the time and place of such arbitration shall be given both to the employer and the company or organization carrying the risk; and a copy of the award or judgment on such arbitration shall be sent by mail from the offices of the Industrial Accident Board to such employer and also to the carrier of the risk. In all such cases if an award of com- pensation is made it shall be against the employer and also against the carrier of the risk, both of whom shall be deemed parties to such pro- ceeding. AGREEMENTS AND AWARDS Ride 4- In all cases where an award has been made, or agreement in regard to compensation entered into by the parties and approved by the Board, such award or agreement, as the case may be, shall continue in force until modified by the order of the Board, or by a written agreement ADMINISTRATION AND PROCEDURE 847 Michigan possible under the rule and practice of the Supreme Court or the laws of the State. Part III, § 12. Either party may present a certified copy of the decision of the Board or of an of the parties approved by the Board. The employer may not stop or in any way change the rate of compensation provided for in such award or. agreement except as herein provided. In cases where the employe 1 returns to work at the termination of his disability the filing of the final receipt for compensation will be deemed an agreement terminating the period of disability. WITNESSES AND PROOFS Rule 5. The arbitration is the first and fundamental hearing in contested cases, and is held at the place where the accident occurred in order to make such hearing reasonably convenient and inexpensive to the parties. The proofs should be fully taken at such arbitration, and such proofs in general form the record and basis for the hearing on review before the full Board. Where cases are taken before the full Board for review, additional testi- mony may be taken when necessary by deposition under the provisions of the general statutes of the state. The party appealing should furnish the Board with a copy of transcript of the proofs. Witnesses will not be heard orally before the full Board except on extraordinary occasions, and then only in cases where permission to produce and examine such wit- nesses has been granted by the Board on application prior to the date of the hearing. -Where a minor is injured the compensation may be paid direct to such minor. Ruling of Mich. Indus. Ace. Bd., January, 1913. A chief engineer having supervision of several plants where his duties consisted in overseeing the installation, received the injury which re- sulted in his death while attempting to board a street car. The following day he spent the greater part of his time at the office of the company, but complained of a severe headache. Symptoms of brain pressure be- came evident and he subsequently died. It was held that the statements of the deceased made to his wife on leaving home in an injured condition, as to the manner in which the accident occurred, were admissible as part of the res gestm. Hopkins v. Michigan Sugar Co., Mich. Indus. Ace. Bd., June, 1913. Where an employe 1 of a State Institution is injured in the course of his duties his claim for damages must be paid out of the funds of the Institu- tion by which he is employed, and such disbursement should be included as part of the current expenses of the maintenance of such Institution. Opinion of Attorney General of Michigan, on the application of the Board of State Auditors, in re Michigan School for the Blind. January 22, 1913. 848 bradbury's workmen's compensation law Michigan approved agreement or of a decision of an arbitration com- mittee where no claim to review is made to the Circuit Court in the county in which the accident occurred, whereupon the court must enter judgment in accordance therewith. Part HI, § 13. FORM NO. 10 Agreement in regard to compensation We, (Name of injured employe.) residing at city or town of and (Name of employer, insurance company or commissioner of insurance.) have reached an agreement in regard to compensation for the in- jury sustained by said employe while in the employ of (Name and address of employer.) The time, including hour and date of accident, the place where it occurred, the nature and cause of injury and other cause or ground of claim, are as follows: The terms of the agreement follow: (Here state the sum per week agreed upon, subject to the terms of the Act; also wages earned by injured at time of accident.) Witness: (Name of injured employe.) (Name of employer, insurance company, or insurance commissioner.) By Dated at this day of . . . . . . , 191 . . NOTE. — If the employer, or the insurance company carrying such risk, or commissioner of insurance, as the case- may be, and the injured employ 6 reach an agreement in regard to com- pensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act — Section 5, part III. FORM NO. 11 Receipt on account of compensation Received of the sum of (Name of employer, insurance company or commissioner of insurance.) dollars and cents administration 1 and procedure 840 Michigan being the proportion of my weekly wages from the day of , 19. ., to the day of 19. ., under the Michigan Workmen's Compensation Law, subject to review by the Industrial Accident Board, said accident occurring on the day of , 191 . , while in the employ of $ (Name of employe\) (Street and number.) Date (City or town.) If the employer, or the insurance company carrying such risk, or commissioner of- insurance, as the case may be, and the injured employe 1 reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act — Section 5, part III. FORM NO. 12 Settlement receipt Received of (Name of employer, insurance company or commissioner of insurance.) the sum of dollars and cents, making in all, with weekly pay- ments already received by me, the total sum of dollars and cents, in settle- ment of compensation under the Michigan Workmen's Compensa- tion Law, for all injuries received by me on or about the day of , 19. . , while in the em- ploy of (Name of employer, city, or town, street and number.) subject to review and approval by the Industrial Accident Board. Witness my hand this. day of , 19 . . Witness '•'■ (Name of employe.) Address (Street and number.) (City or town.) If the employer or the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employe reach an agreement in regard to compensation under this act, a memorandum of such agreement shall be filed with the Industrial Accident Board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreement shall be approved by said board only when the terms conform to the provisions of this act. — Section 5, part III. 54 850 bradbtjry's workmen's compensation law Michigan FORM NO. 13 Notice and application for adjustment of claim State of Michigan, County of » Applicant vs. Respondent(s). , the above named applicant, hereby gives notice to said Industrial Accident Board that the above named parties have failed to reach an agreement in regard to compensation under Act No. 10 of the Public Acts of 1912, extra session; and hereby makes application to said Industrial Accident Board for the adjustment of such compensation between said parties, and the adjudication and determination of the same. Said applicant further shows that the accident upon which claim for compensation is based in this matter occurred on the day of , 191., at the town of , county of , and State of Michigan, and resulted in: (State fully result of injury.) The postoffice address of the above-named applicant is and the postoffice address of the respondent(s) is as follows: The above named applicant prays for the following relief in the premises, viz. : (State amount of claim as near as may be.) Wherefore the applicant prays that a time and place be fixed by said Board for the arbitration and adjudication of said matter, and that due notice thereof be given to all of the parties hereto and that an order or award be made by the Industrial Accident ADMINISTRATION AND PROCEDURE 851 Michigan Board granting such relief as the applicant may be entitled to in the premises. (Signed) (Applicant.) Dated at , this day of , 191 . . NOTE — Either party to the dispute may apply to the Board for the adjustment of the matter in difference. The original notice and application shall be seut by mail to the Industrial Ac- cident Board, Lansing, Michigan. If the accident did not result fatally, describe particularly the nature and extent of the injury. If death resulted to the employe from the accident, so state, giving the full name of such deceased employed FORM NO. 14 Notice of hearing Applicant. Respondent(s). To the above named parties and each of them: Notice is hereby given that on the day of , 191., notice and application for adjustment of claim for compen- sation in the above entitled matter was filed with the Industrial Accident Board at its office in Lansing, Michigan, and that a true copy of said notice and application is hereto attached. You will further take notice that the arbitration of said claim in accordance with the provisions of Act No. 10 of the Public Acts of 1912, extra session, will be held on the day of at in the town of , county of , State of Mich- igan, commencing at o'clock in the noon of said day; and that said applicant(s) and said respondent(s) are each required to name one member of the committee of arbitration provided for in said act within seven days after receiving this no- tice, and to give notice of such selection to the said Board at its office in the city of Lansing. You are further notified to be present at the time and place fixed for said hearing and arbitration, and to be prepared to proceed with the same. INDUSTRIAL ACCIDENT BOARD, By Secretary. Dated at Lansing, Michigan, this day of , 191 . . 852 bradbury's workmen's compensation law Michigan FORM NO. 15 Notice of appointment of member of committee of arbitration Applicant, vs. * Respondent^). To the Industrial Accident Board, Lansing, Michigan. Gentlemen: You are hereby notified that whose postoffice address is has been chosen as a member of the committee of arbitration in the above-entitled matter by the undersigned. (Applicant.) (Respondentia].) Dated at , this day of , 191 NOTE — If this blank is filled out by the applicant, the word "respondent^)" should be crossed'out under the signature. If filled out Tby the respondent(s), the word "applicant" should be crossed out in the manner above indicated. Please fill out the above blank and for- ward to the Industrial Accident Board, Lansing, Michigan, in the enclosed envelope within seven days after it is received by you. Write the full name of the member of the committee of arbitration chosen by you as plainly as possible. FORM NO. 17 Award on arbitration Applicant, vs. 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 representatives on the committee of ar- bitration, and said committee of arbitration having been duly formed, consisting of representing said applicant, and representing said respondent(s), and ADMINISTRATION AND PROCEDURE 853 Michigan member of the Industrial 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 Michigan, on the day of , 19 . . , at o'clock in the noon, and after hearing the proofs and al- legations of the said applicant(s) and said respondent(s), and said committee having made careful inquiry and investigation of said matter and being fully advised in the premises, doth find, deter- mine 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 , 191., and that said ap- plicant is entitled to receive and recover from said re- spondent(s) on this date dollars, being the amount of such compensation that has already become due under the provisions of law, the remainder of said award to be paid to said , applicant, by said respondent(s) 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. .. FORM NO. 18 Stipulation, and waiver of arbitration Applicant, vs. Respondent(s). The facts in this 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, extra session, and the parties 854 bradbury's workmen's compensation law Michigan hereto desiring to obtain a decision of said matter 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 compensation 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 in detail the nature of the injury, disability or death resulting, etc.) 2. That the facts relating to the wages of said employ6 are as follows: 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 para- graphs 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 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 effect as if said cause had proceeded to arbitration in due course, and was brought before the full board on appeal duly taken 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 , 191 . . Signed in presence of (Applicant.) (Respondents.) ADMINISTRATION AND PROCEDURE 855 Michigan State of Michigan, County of ss. 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 acknowledged and signed by him (them). Notary Public. My commission expires the day of , 19. .. State of Michigan, County of ss. 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 ex- ecuted the same on behalf of said being duly authorized so to do, and that the same is his free act and deed as for said employer. (State position or office.) Notary Public. My commission expires on the day of , 19. . . FORM NO. 19 Application for review of claim before full board (Part 3, §§ 11 and 12) To the Industrial Accident Board, Lansing, Mich. Gentlemen: — The undersigned, as provided in Part 3,' Sec. 8, of Act No. 10, Public Acts 1912, makes application for a review of the 856 bradbury's workmen's compensation law Minnesota findings of the Committee on Arbitration in the claim of . . . This claim for review is based on the following grounds: vs. » Dated at this day of ,19. MINNESOTA The parties may settle all questions relating to compensa- tion between themselves. Part II, § 22. But the settle- ment must be approved by a judge of the District Court. Part II, § 22. Upon failure of the employer to pay the com- pensation for thirty days in accordance with the approved agreement the employe may apply, upon a notice of five days, for judgment, and such judgment shall have the same force and effect and may be specified as other judgments of the same court. Part II, § 22. In case of dispute the matter may be submitted to a judge of the District Court who is authorized to hear the case in a summary manner and his decision on all questions of fact is conclusive, sub- ject to the right of appeal on questions of law. Part II, § 22 (2). The Labor Commissioner of the State has general supervision of the Act and is required to advise employes of their rights thereunder. Part II, §§ 24 and 28. The specific procedure in case of dispute is provided for in Part II, § 30. ADMINISTRATION AND PROCEDURE 857 Minnesota FORM Settlement disability case State of Minnesota, County of » . In the matter of compensation for injury To Employe" Against Employer and Insurer District Court Judicial District Settlement and Petition. The undersigned, being the only parties interested in the above- entitled matter, hereby petition the Court for approval of the following agreement and settlement, and agree and represent to the Court as follows: That they are subject to the provisions of Part II of Chapter 467 of the Laws of Minnesota of 1913; that the said Employe^ aged years, residing at Minnesota, who can (cannot) read and understand the English language, did, on , 191., at o'clock M., sustain injury by accident while employed by said Employer, which injury occurred at and resulted in (Permanent Total, Permanent Partial, or Temporary.) disability of said Employe, and consisted of that said Employ^ was receiving at the time of the injury wages at the rate of $ per week; Therefore, it is hereby agreed that the Employe" is entitled to and shall receive compensation for said injury from the Employer, beginning , 191 . , at the rate of $ per week during disability (or) for weeks, payable as follows: all subject to the limitations of said Act; and the Employe" 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 fur- nish the same, if ariy be necessary, to the extent and in the manner required by said Section. The Employe" agrees to present himself 858 bradbury's workmen's compensation law Minnesota for examination, or if physically unable to do so, to submit himself to examination by the physician or physicians designated by the Employer, 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 settle- ment contains the whole agreement between the parties hereto. Dated at 191.. Witnessed by Employe" Employer By Insurer of Employer State of Minnesota, County of On this day of A. D. 191., before me, a Notary Public within and for said County and State, personally appeared to me known to be the iden- tical person described in the foregoing instrument as Employe^ and acknowledged that the same is true; and that, after reading the same (or) having the same read to , and with a full un- derstanding of the terms and the effect thereof, executed the same as free act and deed and for the uses and purposes therein expressed. Notary Public, County, Minn. My commission expires 19. .. INTERPRETER'S OATH State of Minnesota, County of ' I, residing at do hereby on my oath say, that I understand, read and speak ADMINISTRATION AND PROCEDURE 859 Minnesota readily the English language; that I correctly read over to said injured Employe, and correctly interpreted to in own language, the true and correct meaning of each word in the foregoing instrument and the acknowledgment thereof; and that executed said instrument and acknowl- edged the execution of the same after I had interpreted and fully explained the same to ; and I further say that I am con- versant with the language spoken by said injured Employe, which is that of Subscribed and sworn to before me this day of , 191.. Notary Public County, Minn. My commission expires , 19. .. Interpreter. PHYSICIAN'S CERTIFICATE State of Minnesota, County of I, residing at upon oath say, that I am a physician, duly licensed to practice in the State of Minnesota; that I professionally attended the person described as Employe" in the foregoing instrument; that injury and the nature and extent of disability are as follows: Subscribed and sworn to before me this day of ,191. Notary Public County, Minn. My commission expires , 19 . . . M. D. 8G0 BRADBURY'S WORKMEN'S COMPENSATION LAW Minnesota District Court Judicial District. Order Approving Settlement and Petition. State of Minnesota, County of In the matter of compensation for injury To Employe" Against Employer and Insurer Upon reading and filing the foregoing settlement and agreement and joint petitiorfof the parties, and being fully advised in the premises, and it appearing that the allegations of said petition are true and that said settlement is substantially in accordance with the provisions of Part II of Chapter 467 of the Laws of Minnesota of 1913, and Sections 13 and 14 thereof, It is obdeked, That the said settlement, release and petition be, and the same hereby are approved, and that the parties in all things conform thereto. Judge of District Court. Dated at Minnesota, 191 . . FORM Settlement death case District Court " Judicial District. Settlement and Petition. State of Minnesota, County of In the matter of compensation for injury To Employe" Against Employer and Insurer of Employer The undersigned, being the only parties interested in the above- entitled matter, hereby petition the Court for approval of the following agreement and settlement, and agree and represent to the Court as follows: That they are subject to the provisions of Part II of Chapter 467 of the Laws of Minnesota of 1913; that said Employ^, aged years, residing at Street, City of State of Minnesota, did, on 191., at o'clock. . . .M., sustain injury while employed by said Employer, which injury occurred at (Here state exactly where accident occurred.) ADMINISTRATION AND PROCEDURE 861 Minnesota and resulted in the death of said Employe" on 191 . ; that said deceased Employe" was receiving at the time of the injury wages at the rate of $ per week; that (Here state name, age, relationship and address of each dependent.) and no others were his dependents at the date of his death who were dependent upon him at the time of the injury; (Wholly or partially.) and that of such dependents (Names of those who can read English.) can, and cannot read (Names of those who cannot read English.) and understand the English language; Therefore, it is hereby agreed that said dependents are entitled to and shall receive compensation for said injury and death from the Employer, beginning , 191 . , at the rate of $ per week in the aggregate, during dependency, payable as follows: all subject to the limitations of said Act; and the said dependents agree to give proper receipts for each payment made hereunder. The dependents hereby acknowledge that all medical and surgical treatment and benefits given by Section 18 of Part II of said Act have been furnished. This settlement is substantially in ac- cordance 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 and death under said Act or otherwise. This settlement contains the whole agree- ment between the parties hereto. Dated this day of , 191 . . Witnessed by Dependents of Deceased Employe" Employer By Insurer of Employer By 862 bradbury'b workmen's compensation law Minnesota State of Minnesota, j County of J On this day of A. D. 191 , before me, a Notary Public within and for said County and State, personally appeared to me known to be the identical persons described in the foregoing instrument as dependents, and who executed said instrument as such, and each acknowledged that the same is true; and that, after reading the same (or) having the same read to him (or her), and with a full understanding of the terms and effect thereof, he (or she) executed the same as his (or her) free and voluntary act and deed for the uses and purposes therein expressed. Notary Public County, Minn. My commission expires 19. . INTERPRETER'S OATH ss. State of Minnesota, County of I, , residing at do hereby on my oath say, that I understand, read and speak readily the English language, and that I correctly read over to dependents of said deceased, and correctly interpreted to them (him or her) in their (his or her) own language, the true and correct meaning of each word in the foregoing instrument and the acknowledgment thereof; and that they (he or she) executed said instrument and acknowledged + he execution of the same after I had interpreted and fully explained the same to them (him or her) ; and I further say that I am conver- sant with the language spoken by said dependents, which is that of Subscribed and sworn to before me this day of , 191.. Notary Public County, Minn. My commission expires . . . , 19 . . . Interpreter. ADMINISTRATION AND PROCEDURE 863 Nevada District Court Judicial District. Order Approving Settlement and Petition. State of Minnesota, County of In the matter of compensation for injury To Employe" Against Employer and Insurer of Employer Upon reading and filing the foregoing settlement and agreement and joint petition of the parties, and being fully advised in the premises, and it appearing that the allegations of said petition are true and that said settlement is substantially in accordance with the provisions of Part II of Chapter 467 of the Laws of Minnesota of 1913, and Sections 13 and 14 thereof, It is ordered, That the said settlement, release and petition be, and the same hereby are approved, and that the parties in all things conform thereto. Judge of District Court Dated at Minnesota, 191.. NEBRASKA The parties may settle all matters of compensation be- tween themselves. § 36. In case of dispute the matter is submitted to arbitration if both parties agree. § 37. In case the parties do not agree to arbitrate the matter either party may file a petition in the District Court and power is given to this tribunal to hear the matter in a summary manner. § 39. Appeals are allowed as in other cases. NEVADA * The Nevada Act provides for a State insurance fund ad- >PART I Rules and Directions for Employers 1. Whenever an accident occurs to any workman (in your mine, plant, or establishment) it shall be the duty of the employer to at once report 864 bradbury's workmen's compensation Law Nevada ministered by the Nevada Industrial Commission. All such accident to the Commission, for which use Industrial Commission Blank No. 21. Blank reports for such purpose may be secured by apply- ing for same to the Commission. These reports must be filled out ac- curately, immediately, and in detail as required, by Section 33 of the law and the rules and regulations of the Commission. 2. Where an injured workman files a claim for compensation, it shall be the duty of the physician and also of the employer, to inform and ad- vise the injured workman (or his relatives or dependents, in case of his death) of his rights under the Nevada Industrial Insurance Act, and to lend all necessary assistance in aiding the workman in making his claim and such proof as the Commission may require. Such assistance is to be "without charge to the workman," as required and provided in Section 34 of the law. Blanks for filing claims for compensation (Form Nos. 21 and 22) will be sent to the different employers, and if not, may be secured by writing to the Commission. Each employer should have these and other blanks on hand at all times so that prompt reports may be made to the Commission of all accidents. 3. Each employer should assist his injured employe's in securing their rights under the law. The entire matter is between the employer, employe^ and the Nevada Industrial Commission. In assisting your injured work- men and doing all that you can for their benefit or relief, you in ho way injure or prejudice yourself. Such assistance will tend to produce more cordial relations between employer and workmen, and greatly expedite and facilitate the operation and administration of the law. In all matters of doubt or dispute address the Commission direct. No claim for com- pensation is valid unless filed within one year after date of injury, and all workmen should be so advised. 4. Section 29 of the law specifically provides that no employer of work- men shall exempt himself of the burden, or waive the benefits of the law, by any contract, rule, or regulation, and any such contract, rule, or regu- lation shall be void. 5. Employers should inform and advise their injured workmen that Section 28 of the law provides that no money paid or payable under the Nevada Industrial Insurance Act shall, prior to issuance and delivery of the warrant, be assigned, charged, or even be taken in execution, or attached and garnished, nor shall be passed to any other person by opera- tion of law. Any such assignment or charge shall be void. 6. Section 39 of the law relating to employer's responsibility for safe- guards, and inflicting heavy penalties in case of injury due to the absence of safeguards, should be maintained, and all departmental rulings under any statute strictly observed. Otherwise serious penalties may be im- ADMINISTRATION AND PROCEDURE 865 Nevada claims for compensation are made to the Commission on blanks supplied by that body. posed in. case of accident. If any workman remove any such safeguard this Commission should be advised. (See, also, Section 22 of Act.) 7. Section 37 of the law relating to employers who fail or refuse to make their payments into the Insurance Fund should be carefully observed. Default in the payment of any premium means great risk and peril on the part of the defaulting employer. 8. Employers should notify this Commission of any work or establish- ment which, because of poor, careless, or negligent management, is un- duly dangerous and hazardous in comparison with other like or similar works or establishments. This notice is necessary in order to protect the careful employer. (See Section 22 of Act.) 9. The attention of the employer is directed to Section 36 of the law which imposes an extremely heavy penalty for misrepresenting to the Commission the amount. of the payroll upon which the employer's pre- mium under the law is based. The employer who so misrepresents is liable to the Commission ten (10) times the amount of the difference in premium paid and the amount the employer should have paid. The travel- ing Auditors of the Commission will at all times assist the employers in computing their premiums under the law. If any employer misrepresents his payroll, you should so advise the Commission. Such misrepresenta- tions means loss to you eventually, and not to the Industrial Commission. 10. The Nevada Industrial Insurance Act in no way interferes with any of the usual hospital arrangements between employers and employes. Whenever possible it is desirable that such arrangements be continued in order that injured workmen may receive immediate hospital and medical attention. 11. The employment of competent foremen and superintendents and the exercise of care in the management of all establishments within the scope of the law, is necessary in order to reduce accidents to a minimum. The premium rate will depend entirely upon the number of accidents to workmen. 12. When any new industry is started, or any suspended business re- sumes operation, the Commission should be advised so that payrolls can be secured and the new or revived industry subjected to the requirements of the law. 13. Employers desiring copies of the Nevada Industrial Insurance Act may secure the same by applying to the Commission. Any other data with reference to the law, its administration or operation, may be secured from the Commission. 14. All statutes relating to safeguards and protection of machinery, 55 866 bradbury's workmen's compensation law Nevada and all departmental rulings or regulations with reference thereto, should be carefully complied with and observed. One of the chief purposes of the law is to reduce and minimize accidents, and conserve human life and limb. Employes as well as employers should constantly bear this fact in mind. 15. Section 35 of the law provides that the books, records, and pay- rolls of the employer, pertinent to the administration of the Act, shall always be open to inspection by the Commission or its traveling auditor, agent or assistant, f6V the purpose of ascertaining the correctness of the payroll, the men employed, and such other information as may be neces- sary for the department and its management under this Act. Refusal to permit such inspection is made a crime. 16. The Commission shall be in continuous session and open for the transaction of business during all the business hours of each and every day excepting Sundays and legal holidays. All sessions shall be open to the public, and shall stand and be adjourned without further notice thereof on its records. All proceedings of the Commission shall be shown on its record of proceedings, which shall be a public record, and shall con- tain a record of each case considered, and the award made with respect thereto, and all voting shall be had by the calling of each member's name by the Secretary, and each vote shall be considered as cast. PART II Rules and Directions for Workmen 1. Any injured workman entitled to compensation under the law must file at once with the Commission his claim for compensation on Form No. 22. These claim blanks can be secured by writing direct to the Commission, Carson City, Nevada. 2. The injured workman must also file at once with the Commission the certificate or report of the physician who attended him. This report is Form No. 23 of the Commission, and may be secured by workmen or physicians at the above office. 3. Section 34 of the law requires the attending physician to assist the injured workman in making application for compensation. 4. In case of death the relatives or dependents of the deceased workman must file claim for compensation upon blank forms to be furnished by the Commission. 5. No claim for compensation will be considered, and no compensation awarded unless all necessary blanks furnished and required by the Com- mission are filled out accurately, carefully and completely to the satisfac- tion of the Commission. ADMINISTRATION AND PROCEDURE 867 New Jersey 6. No claim for compensation by any injured workman will be con- sidered unless filed within one year after date of injury. Section 34 (d). 7. Whenever requested by the Commission, any injured workman shall submit to a medical examination by one of the Commission's examining physicians. In case of refusal to submit to such examination all compensa- tion will be suspended, and nothing further will be done in the considera- tion of the claim for compensation until the necessary and required official examination occurs. 8. In case of removal of any safeguard or protective device on ma- chinery by the superintendent, foreman, or any other person, the Commis- sion should be immediately notified. If any injury results to any workman because of the removal of any safeguard by himself, then in such case the workman's compensation is reduced 25 per cent. 9. In case of injury the workman should consult the employer or address this Commission at once for blank forms upon which to make claim for compensation. Litigation under the law is unnecessary and would be useless, before addressing the Commission. 10. Whenever necessary the Commission' reserves the right to supervise the medical, surgical, and hospital treatment of the injured workman. 11. All workmen should assist each other and their employers in the earnest attempt to avoid accidents. Fewer accidents mean less pain, happier homes, and greater prosperity. These rules are subject to amendment, change or alteration by the Commission at any time, as experience and observation shall dictate. Due notice of change of rules will be given. NEW HAMPSHIRE Any question as to compensation may be determined by agreement or in an action in equity if the parties cannot agree. § 9. NEW JERSEY 1 The parties may agree as to compensation claims but if they fail to agree either party may submit his claim, both 1 Under the New Jersey Workmen's Compensation Act the burden of proving that the employe's death was caused by "an accident arising out of and in the course of the employment" rests upon the claimant. BnjoM v. Fissell, 000 N. J. Law 000; 86 Atl. Rep. 458. An action for the computation of compensation under Section 12 of the 868 bradbury's workmen's compensation law New Jersey as to questions of fact and the nature and effect of the in- juries and the amount of compensation therefor to a judge of the Court of Common Pleas who would have jurisdiction of a civil action between the parties. § 2, subd. 18. Either party may present a petition setting forth the matters specified in the statute, and a copy of the petition with a notice of hearing, must be served on the other party. Upon the return of the notice the matter is heard by the court without a jury. § 2, subd. 20. While there is no special provision requiring that agree- ments for compensation must be approved the following is to be found in § 2, subd. 20. "No agreement between the parties for a lesser sum than that which may be determined by the judge of the Court of Common Pleas to be determined shall operate as a bar to the determination of a controversy upon its merits, or to the award of a larger sum, if it shall be determined by the said judge that the amount agreed upon is less than the in- jured employd or his dependents are properly entitled to receive." FORM Petition To the Honorable Howard Carrow, Judge of the Court of Com- mon Pleas of the County of Camden: The petition of Harry Fisher, of No. 211 Mount Vernon Street, Camden, New Jersey, respectfully shows unto your Honor: 1. That prior to and on the third day of June, nineteen hundred and twelve, he was employed by Louis Ballinger, a stevedore, of the City and County of Camden, and State of New Jersey, as en- gineer of a hoisting engine located at the end of the wharf of the MacAndrews & Forbes Licorice Works. New Jersey Workmen's Compensation Act may be brought by the person to whom payment is to be made under Section 19. McFarland v. Central R. R. Co., 000 N. J. Law; 87 Atl. Rep. 44. ADMINISTRATION AND MtOCEDIJRE 869 New Jersey 2. That on the said third day of June, nineteen hundred and twelve, while at work for the said Louis Ballinger at the end of the wharf of the MacAndrews & Forbes Licorice Works, and while en- gaged at his usual employment, your petitioner was injured by having his right foot crushed between the fly wheel of the engine which he was operating in the usual course of his employment and the connecting rod, connecting the fly wheel with the piston, with- out any fault or negligence on his part, whereby your petitioner lost the two toes adjoining the big toe on his right foot, splitting the foot open across the ball of the foot, and that by reason of which injuries he suffered intense pain and agony, and that he is unable as yet to move around without the aid of crutches, and that it is likely to be a long time before your petitioner will be able to get along by walking on his feet in the natural way. 3. That the average weekly wages of the said Harry Fisher were Thirteen Dollars per week. 4. That the said Louis Ballinger was present when the above accident happened and when the injury was sustained by your petitioner, and, therefore, had actual knowledge of the occurrence of the injury above set forth immediately after the same happened. 5. That by virtue of the provisions of an act of the Legislature of the State of New Jersey, entitled, "An Act prescribing the liability of an employer to make compensation for injuries received by an employe* establishing an elective schedule of compensation, and regulating procedure for the determination of liability and com- pensation thereunder." Approved April 4th, 1911, and the acts supplemental thereto and amendatory thereof, the said Louis Ballinger was bound to furnish reasonable medical and hospital service and medicine for two weeks after the occurrence of said injury and after the expiration of two weeks after the occurrence of said injury was bound to pay unto your petitioner fifty per cen- tum of the weekly wages received at the time of the injury, during the period of such disability, not to exceed the term of three hun- dred weeks. 6. That your petitioner and Louis Ballinger are unable to agree upon the amount to be paid. 7. Your petitioner therefore asks that your Honor will hear in a summary manner the matters in dispute both as to the matters of fact and the amount of compensation to be made to your peti- 870 bbadbury's workmen's compensation law New Jersey tioner, and will direct compensation to be made weekly or in one or more lump sums as may appear to your Honor to be proper. Harry Fisher, Petitioner. State of New Jersey, County of Camden. ss. Harry Fisher, o£ full age being duly sworn according to law on his oath says, that he is the petitioner in the foregoing petition named and that the matters and facts therein set forth are true. Harry Fisher. Sworn and subscribed to before me this 14th day of September, A. D., 1912. Lawrence M. Verga, Notary Public of New Jersey. FORM Order for Hearing Before Honorable Howard Carrow, Judge of the Court of Common Pleas of the County of Camden: In the Matter of the Petition of Harry Fisher, for compensation to be made by Louis Ballinger, under the provisions of the Em- ployers' Liability Acts. Upon reading and filing the petition of Harry Fisher, the peti- tioner herein, I, Howard Carrow, Judge of the Court of Common Pleas of the County of Camden, do order, that Friday, the eleventh day of October, nineteen hundred and twelve, at ten o'clock in the forenoon of said day, or as soon thereafter as the same can be heard, at the court house in the City of Camden, in the State of New Jersey, be and the same is hereby fixed as the time and place for the hearing of said petition. Dated September 14th, 1912. Howard Carrow, Judge. On Petition Order. ADMINISTRATION AND PROCEDURE 871 New Jersey FORM Notice of Hearing Before Honorable Howard Carrow, Justice of the Court of Com- mon Pleas of the County of Camden. In the matter of the petition of Harry Fisher, for compensa- tion to be made by Louis Bal- linger, under the provision of the Employers' Liability Acts. On Petition Notice. To Louis Ballinger: Take Notice, That Harry Fisher, who was injured while work- ing for you at his usual employment on the third day of June, nine- teen hundred and twelve, has filed a petition addressed to the Honorable Howard Carrow, Judge of the Court of Common Pleas of the County of Camden, for compensation under an Act of the Legislature of the State of New Jersey, entitled "An Act prescrib- ing the liability of an employer to make compensation for injuries received by an employe in the course of employment establishing an elective schedule of compensation, and regulating procedure for the determination of liability and compensation thereunder." And the Judge has fixed the Friday, the eleventh day of October, nineteen hundred and twelve, at the Court House, in the City of Camden, at the hour of ten o'clock in the forenoon or as soon there- after as the same may be heard as the time and place to hear the same; and take further notice that at the time and place aforesaid I shall move the hearing of said matter. That annexed hereto and served herewith is a copy of the peti- tion and order in the above matter. Eknest L. Bartelt, Attorney for Harry Fisher. . 872 bkadbury's workmen's compensation law New Jersey FORM Determination and finding of fact ' Hudson County Court of Common Pleas. May Callagy, Petitioner, vs. * New Jersey Embroidery Works, a corporation, Respondent. A petition having been filed in the above stated cause by the petitioner, wherein she claims compensation by virtue of the terms and provisions of an act of the Legislature of the State of New Jersey entitled "An act prescribing the liability of an em- ployer to make compensation for injuries received by an employe in the course of employment, establishing an elective schedule of compensation and regulating procedure for the determination of liability and compensation thereunder," (Approved April 4, 1911) and a time and place for the hearing of said cause having been fixed, and an appearance and answer having been entered and filed by the respondent, and service of the petition having been waived, and the witnesses for both parties having appeared before me and given their testimony at the time and place fixed for said hearing: I do hereby find and determine as follows: That on the thirteenth day of January, 1912, the petitioner while in the employ of the respondent as a shuttle girl, received certain injuries as a result of which the flesh of the index finger of her right hand was crushed, her nail lost and her finger disfigured, but no bones broken; that the said injury resulted directly from an accident arising out of and in the course of petitioner's employment; that at the time of the accident petitioner was receiving Four Dollars and Fifty Cents a week as wages; that the petitioner is entitled to the sum of 1 Under § 2, subd. 20 of the New Jersey Act the Court of Common Pleas should make a statement of the facts found by it in determining the case and not merely refer to the petition and state that the facts are found as therein set forth. Long v. Bergen Common Pleas, 36 N. J. Law. J., 246; 000 N.J. Law 000, ADMINISTRATION AND PROCEDURE 873 , New York Ten Dollars being a sum equal to four weeks' wages and Seventeen Dollars doctor's bills, or a total of Twenty-seven Dollars. Robert Carey, Judge of Hudson County Court of Common Pleas. NEW YORK The entire administration of the Act is under the juris- diction of the Workmen's Compensation Commission of five members, which is created by § 60. This Commission has power to appoint as many deputy Commissioners as it may deem necessary, which deputy Commissioners hold office during the pleasure of the Commission. § 61. It also ap- points a secretary, an actuary, accountants, medical doc- tors, clerks, stenographers, inspectors and other employes. The authority, duties and compensation of all subordinates and employe's, except as otherwise specifically provided in the law, are fixed by the Commission. § 61. The Commis- sion has power to adopt rules. § 61. And it may do all things incidental to the hearing of cases and determining all controversies in relation to compensation claims. §§ 68 to 76 inclusive. It also has power to establish a State In- surance fund. §§ 90 to 105 inclusive. There is no provision in the Act for agreements between employers and employes as to compensation, either by the approval of the Commission or otherwise. Apparently, the only method of making compensation payments is for the employe or dependent to present a claim for compensa- tion to the Commission. The Commission then makes an investigation and orders a hearing, after which it makes an award. § 20. "The Commission may, before making an award, require the claimant to appear before an arbitration committee appointed by it and consisting of one representative of em- ployes, one representative of employers, and either a member 874 bradbury's workmen's compensation law Ohio of the Commission or a person specially deputized by the, Commission to act as chairman, before which the evidence in regard to the claim shall be adduced and by which it shall be considered and reported upon." § 20. It will be seen by the above that neither party is given the power to select the arbitrator representing him. The Commission appoints the arbitrators* the requirement merely being that one shall be "representative of employes" and the other "represent- ative of employers." The Commission may or may not follow the decision of the arbitrators but upon all questions of fact the decision of the Commission is final. § 20. After an award compensation payments are not made direct, by either an employer or an insurance company, to the employe 1 or dependent, but the money must be sent to the Commis- sion and by it paid to the employe. § 25. OHIO 1 The administration of the Ohio Act is entirely within the jurisdiction of the Ohio Industrial Commission, which, by the supplemental act taking effect March 18, 1913 (103 Ohio Laws, 95; See Chap. 24 hereof), supersedes the State Liability Board of Awards, although the name of the Board is not changed in the Compensation Act proper by any amendment to that Act. All claims for compensation, whether against the State insurance fund or against individ- uals who are permitted to carry their own insurance, must 1 See Act approved May 3, 1913, in effect Aug. 7, 1913 (103 Ohio Laws, 396) providing that in the case of alien, non-resident dependents, informa- tion in relation thereto shall be furnished to the Commission by the respective foreign consuls. The burden of proof in all claims for compensation rests upon the applicant to furnish convincing proof to the Board as to every jurisdic- tional fact, or to furnish proof of facts from which such jurisdictional facts may be clearly deduced. Where, therefore, an employe' is taken ill while at work and dies soon thereafter, there is no presumption that he was killed in the course of his employment. Re Gertrude Patterson, 'Claim No. 1014, Ohio St. Lia. Bd. Awd., Dec. 16, 1912. ADMINISTRATION AND PROCEDURE 875 Ohio be presented to the Commission on blanks which are fur- nished by the Commission, and these blanks must be used in all cases. The rules of the Commission provide for a preliminary notice which must be mailed within one week after the date of the injury. Upon receiving this notice blanks will be sent which must be filled out by the applicant for compensation. These blanks should be secured from the Ohio Industrial Commission, Columbus, Ohio. There is no specific provision in the Act for agreements between employers and employes as to the amount of com- pensation, even though the employer is permitted to carry his own risk but the Industrial Commission has adopted rules 1 relating to such agreements as well as to the determi- 1 These rules are as follows: "Rule 1. Employers who have elected to pay compensation, etc., di- rect to their injured and the dependents of their killed employes shall report each and every injury occurring to their employes, as required by Sec. 52 of the compensation act, such reports to be made upon report forms furnished by the Commission. "Ride 2. It is the duty of the employer upon injury to any of his employes in the course of their employment to promptly furnish com- pensation, medical attendance, etc., to such injured employ^, or to their dependents in case of death as the result of such injury, in accordance with the provisions of the compensation act. "Rule S. Within thirty days after agreement as to' the payment of compensation to injured or the dependents of killed employes, and within thirty days after furnishing medical, surgical, nursing or hospital attention or medicines or funeral expenses, a statement of the same shall be filed with The Industrial Commission. "If the injury does not incapacitate the employe 1 for a longer period than one week, a simple statement by the employer of the amount or value of the medical, surgical, nursing and hospital attention and medi- cines will be sufficient. "If the injury incapacitates the employe" for a longer period than one week, such statement shall include the amount of medical, surgical, nurs- ing and hospital attention and medicines and the amount of compensa- tion agreed upon, and shall be signed by the employer and the injured employ^. "If the injury causes the death of the employe" within a period of two years, such statement shall include the amount paid to the injured 876 Bradbury's workmen's compensation law Ohio nation of controversies arising between such employers and employes. employ^ prior to his death, and the amount agreed to be paid to his de- pendents as defined in Section 35 of the act, and shall be signed by the employer and the person or persons described in Section 36 of the act. "Periodical payments required to be made by the compensation act may be commuted to one or more lump sum payments only when the approval of the Commission is given therefor. Either the employer or the employe 1 may make application for authority to make lump sum pay- ments. "No agreement made hereunder will be approved by the Commission unless the same is in strict conformity with the provisions of the com- pensation act as to the amount and method of payment of compensation and the furnishing of medical attention, etc. "Rule 4- Upon receipt of the statement required by Rule 3, the same shall be filed and stamped with the date of its filing, and upon the expira- tion of 60 days from and after the date of such filing, if the same appears to be in conformity to the provisions of the compensation act, the same will be approved and confirmed by the Commission, unless objection is made thereto in the manner defined in the rule next following. "Rule 5. Upon such statement or agreement being filed by the em- ployer, the employe 1 or beneficiaries shall be forthwith notified of the filing of the same and that the same will be approved and confirmed by the Commission at the end of 60 days from the filing of same, unless within said sixty days objection in writing to such confirmation is filed with the Commission either by the employe 1 or beneficiary or by the employer. "Ride 6. Objections to the confirmation of agreements as to com- pensation provided for in Rule 5 hereof shall be in writing, shall state the grounds of objection, and the request that the Commission may conduct a hearing and fix the amount of compensation according to the facts and the law governing the same; and upon filing the same if the objections seem to possess merit a date shall be fixed for the hearing of the same not later than 30 days after the filing thereof and notice of the filing of said objections, the nature of the same and the time and place of such hearing shall be mailed forthwith to the adverse party. "The Commission shall furnish blanks for the filing of such objec- tions free of charge upon application therefor. "Rule 7. The Commission will not be bound by the usual common law or statutory rules of evidence or any technical rules of procedure in conducting hearings, but will conduct the hearing and make investigations in reference to the questions at issue in such manner as in its judgment ADMINISTRATION AND PROCEDURE 877 Ohio is best calculated to ascertain and determine the substantial rights of the parties and to carry out justly the spirit of the compensation act. "Oral testimony may be offered by either party and depositions may be filed. Depositions should be taken and filed in all respects as required by statute in civil actions in the courts. "Rule 8. If upon hearing the objections the facts appear as set forth in the statement on file it will be the duty of the Commission to overrule the objections, in which event the agreement of the parties contained in said statement shall continue in full force; otherwise the objections may be sustained and a finding of facts made in accordance with the proof adduced at the hearing, and an award made in accordance with such finding of facts, which award shall be substituted for the agreement con- tained in statement required by Rule 3 hereof. "Rule 9. In the event the employer and the injured employ^, or in case of death the dependents of the killed employ^, do not arrive at an agreement as to the nature and extent of the injury and the amount of compensation, etc., to be paid or furnished by the employer to such em- ploye 1 or dependents within thirty days after such injury or death, or within thirty days after the medical department certifies capacity on the part of the employe 1 or claimant to make an agreement, the employer or such injured employe^ or his dependents in case of his death, may file an application with the Industrial Commission for the purpose of having the amount of such compensation, etc., determined in accordance with the provisions of Section 27 of the compensation act. "Rule 10. Upon the filing with the Commission of the application provided for in Rule 9 the time and place of hearing said application, should a hearing be granted, shall be fixed at least one week or not more than three weeks after the filing thereof, and the employer shall forth- with be notified by mail of the filing of said application and the contents thereof, and of the time and place of such hearing. "The hearing will be conducted, oral and other testimony taken, as is provided in other cases. "Rule 11. The policy of the Commission will be to determine all questions brought before it as speedily as possible; but continuances of hearings for any reasonable cause may be had upon the request of either of the parties. "The Commission will continue hearings upon its own motion only when the volume of business is such as to demand it, or when the proof is not satisfactory, or is insufficient. "Rule 12. The employer may file an answer to the application of the employe 1 at any time before the date set for the hearing, but no answer is necessary and in the event none is filed the allegations contained in the application will be deemed to be denied by the employer. 878 BRADBURY'S WORKMEN'S COMPENSATION LAW Rhode Island "Rule 13. The Commission will prepare and furnish free of charge all proper forms required by these rules and the provisions of the com- pensation act and require that such forms be used in all instances where prescribed. "Rule 14.. The rules of the Commission are subject to alterations or amendment at any time; and the Commission will make additional rules, whenever, in its judgment, the same are necessary." OREGON The entire administration of the Oregon Act is under the supervision of the State Industrial Accident Commission which is created by § 2 of the Act. As an employer cannot adopt the compensation principle except by contributing to the State insurance fund all applications for compensation must be made to the Industrial Accident Commission and must be made on blanks prepared and furnished free by the Commission. § 8. As the Oregon Act does not go into effect until July 1, 1914, no rules have yet been made concerning its administration. RHODE ISLAND Employers and employes can agree upon compensation and such claims must be reduced to writing and filed with the Clerk of the Superior Court. This agreement must be approved by a justice of the same court after which it is enforcible in the same manner as an execution on a judgment in a civil action. Art. Ill, § 1. Upon failure to agree upon the amount of compensation either party may file a petition in the Superior Court in the nature of a petition in equity, and the court then determines the matter, sitting as a court of equity. Art. Ill, §§ 2 to 17, inc. Administration and procedure 879 Texas TEXAS 1 The Act is administered by the Industrial Accident Board which is created by Part 2, § 1. All questions arising under the Act, if not settled by agreement of the parties, are 1 Rules Adopted by Industrial Accident Board manner of giving notice by employer of acceptance of the act Rule 1. Every subscriber shall, after receiving a policy, give notice in writing or print, to all persons with whom he is about to enter into a contract of hire, that he has provided for payment of compensation for injuries by the Association. If any employer ceases to be a subscriber, he shall on or before the day on which his policy expires, give notice to that effect in writing or print to all persons under contract of hire with him. In case of the renewal of his policy, no notice shall be required under this Act. He shall file a copy of said notice with the Industrial Accident Board. (Section 20, Part III of the Act) . If personal service is not made of the notice as above required, said notice may be given in printed or typewritten form by posting the same in six or more conspicuous places where labor is employed, so that each and every laborer may have an opportunity for seeing and reading the same. MANNER OF GIVING NOTICE BY EMPLOYE TO EMPLOYER OF AN INJURY AND CLAIM FOR COMPENSATION Rule 2. In each instance the notice shall be served upon the employer, or upon one employer if there are more employers than one, or upon any agent, representative or manager of such employer or employers, or upon any officer or agent of a corporation if the employer is a corporation, by delivering the same to the person on whom it is to be served, or by leaving it at his residence or place of business, or by sending it by registered mail addressed to the person or corporation on whom it is to be served, at the last known residence or place of business. REPORT OF ACCIDENTS BY TEXAS EMPLOYERS' INSURANCE ASSOCIATION, OR BY COMPANIES AND ASSOCIATIONS ISSUING POLICIES OF INSURANCE UNDER THE EMPLOYERS' LIABILITY ACT TO THE INDUSTRIAL ACCIDENT BOARD Ride 3. The above designated association and companies shall report all accidents within five days after the receipt of notice thereof by them 880 BRADBURy's WORKMEN'S COMPENSATION LAW Texas determined by the Board. Part 2, § 5. But any party who is not willing to and does not consent to abide by the final ruling and decision of the Board on any disputed claim, may sue on such claim or may require suit to be brought thereon in some court of competent jurisdiction, and the Board shall proceed no further with the adjustment of the claim. Part 2, § 5. from any subscriber, by sending to the Industrial Accident Board a list or brief statement of the same. This rule is not intended to supersede the report required of the employer under Section 7, Part II of the Act. SETTLEMENT OP CLAIMS Ride 4- All settlements with employes by any insurance company or association under the Employers' Liability Act shall be promptly reported to the Industrial Accident Board with a statement of the terms of the settlement, the name of the injured employ^, and also name of his em- ployer, and dates of accident and settlement. Copies of all receipts of payments for compensation from the injured employe 1 to the insurance company or association shall also be promptly sent by such association and companies to the Board. ASSOCIATIONS AND COMPANIES MUST NOTIFY INDUSTRIAL ACCIDENT BOARD OF INSURANCE ISSUED UNDER EMPLOYERS' LIABILITY ACT Rule 5. Associations and companies insuring under the Employers' Liability Act shall notify the Industrial Accident Board of the names and addresses of all employers who insure their liability under the Act, notice to be given on the day of the issuance of such insurance and a further notice to be given on the day when such employers cease to be so insured; said notice will also give the character and location of the employers' business and the number of his employes. ASSOCIATIONS AND COMPANIES MUST FURNISH INDUSTRIAL ACCIDENT BOARD WITH COPIES OF FORMS OF POLICIES, INDORSEMENTS, CONDITIONS OR PROVISOS, THAT THEY ISSUE UNDER ACT Rule 6. All associations and companies that are authorized or may be authorized to issue policies of insurance under the Employers' Liability Act, be and are hereby required to transmit to the Industrial Accident Board copies of all forms of policies that they may issue under the Act, together with such indorsements, conditions or provisos that may be at- tached to such policies. ADMINISTRATION AND PROCEDURE 881 West Virginia FORM Agreement in regard to compensation We, , residing at (Name of injured employe.) city or town of , and the (Name and address of insurance association or company.) have reached an agreement in regard to compensation for the in- jury sustained by said employe 1 while in the employ of (Here insert name and address of employer.) (Here insert the time, including hour and date of accident, the place where it occurred, the nature and cause of injury, and other cause or ground of claim.) The terms of the agreement follow: (Here state the sum per week and number of weeks agreed upon.) (Witness.) (Name of injured employed) (Name of insurance association or company.) WASHINGTON The Washington Act is a purely State insurance plan and is administered by the Industrial Insurance Department which is created by § 21. All reports, claims and other proceedings must be in accordance with the rules of the Department and on blanks furnished by the Department. WEST VIRGINIA The West Virginia Act creates a purely State insurance plan and it is administered by the Public Service Commission which is created by § 1 of the Act. All reports, claims and other proceedings under the Act must be in accordance 56 882 bradbury's workmen's compensation law West Virginia with the rules J of the Commission, and on blanks furnished by the Commission. 1 Rules op Procedure before the Public Service Commission (Divi- sion B) Workmen's Compensation Fund (As Adopted Septem- ber 1, 1913) office hours * Rule 1 . The office hours of the Commission (Division B) will be from 9:00 o'clock a. m. to 12:00 m; and from 1:30 o'clock p. m. to 5:00 o'clock p. M. sessions of commission Rule 2. Sessions of the Commission will be held regularly at its office on the Third Floor of the Capitol Building in the City of Charleston, beginning at 10:00 a. m. of each business day, and continuing until the business of the day is completed: provided, that sessions may also be held at any other place within the State should the business to be trans- acted seem to require it. FORMS PRESCRIBED Rule 3. Printed forms of all notices, applications, proofs, certificates, etc., necessary for perfecting of any claim before the Commission will be furnished free of charge. Such forms must be used in all cases. INJURY NOT RESULTING IN DEATH. NOTICE OF Rule 4- Any employe" who has been injured in the course of his employ- ment and who intends to file an application for an award, shall, within one week from receiving such injury, notify or cause notice to be given the Commission of the time, place and nature of his injury, and the name of his employer. Forms of such notices can be obtained from the employer. Such notices shall be mailed to the Public Service Commission, Division B, Charleston, W. Va. Upon receiving such notice the Commission will mail to the injured employe 1 proper forms and blanks for his use in perfecting his claim, and notify the employer thereof. Unless such notice is given, no application for award will be considered. INJURY RESULTING IN DEATH, NOTICE OF Rule S. When death results from an injury received by an employe' in the course of his employment, notice of death must be given by the attend- ADMINISTRATION AND PROCEDURE 883 West Virginia ing physician, undertaker, employer, executor, administrator, or a de- pendent within one week from the time of death. NOTICE OP ACCIDENT BY EMPLOYER Rule 6. Every employer is required to give notice to the Commission within twenty-four hours after the accident, of the time, place, cause and other circumstances attending the accident, and the nature and extent of the injury. The attending physician must report to the Commission within twenty- four hours the time, place and cause of the injury and its nature and extent and probable time of disability. Forms for these reports are furnished by the Commission and must be kept on hand in the office of the employer. These reports must be prepared by the employer and the attending physician independently. DOCKETING AND NUMBERING Rule 7. Notices provided for by Rules 4 and 5 shall be numbered when received by the Commission and entered upon the docket kept for the purpose, and each paper thereafter filed in connection with the claim shall be given the same number as the original notice. APPLICATION — INJURY Rule 8. Application for awards in all cases of injury not resulting in death must be made by the party injured at once, and in every case within six months after the injury is received. When the applicant claims money to pay for medical and hospital services, or medicines, he shall authorize the payment to be made directly to the person or persons rendering such services, etc., in all cases where he has not already paid for the same. FAILURE TO MAKE APPLICATION Rule 9. In all cases of injury where medical services, etc., have been rendered and furnished to the injured employe, and such injured employe 1 fails or neglects to make application for money to pay for the same within thirty days, or having made application and an award for such medical services, etc., having been made, payable to the applicant, and the appli- cant is not found at the address given in his application within thirty (30) days after the making of the award, the money may be ordered by the Commission to be paid to the person or persons rendering such services, etc. 884 bradbury's workmen's compensation law West Virginia WAIVES OF EIGHT TO COMPENSATION \ Rule 10. In all cases of injury where the preliminary notice provided for by Rule 4 hereof has been given, and no application for compensation has been made within the time provided by Rule 8 hereof, it shall be the duty of the Secretary to notify the injured person by mail at his last known address of his non-compliance with said Rule 8, inclosing him a copy thereof 15 days before the lapse of six months from the date of his injury or death, and should n© application be filed within two weeks after the date of such notice, the Commission shall enter an order dismissing the applica- tion, as barred by the statute. APPLICATION — DEATH Rule 11 . To obtain awards in cases of injury resulting in death within a period of ninety days after the date of such injury (see Section 33), applica- tion must be made by the executor, administrator or dependent of the deceased, or by the attending physician or undertaker where there is no dependent, within six months after the death of the injured employed PBOOF Rule 12. The proof of all claims shall be made by affidavit as far as possible. But the Commission will, if in its judgment it is deemed neces- sary, require medical or other examinations, including post mortems, and may take oral testimony of witnesses, the claimant being notified of the time, place and manner of taking the same. The Commission may also hear any oral testimony offered by an applicant. Depositions of witnesses may also be filed by an applicant, but notice of the time and place of taking the same must be given to the Commission prior to their taking. Any duly authorized inspector or auditor of the Commission shall have the right at any time either before or after an award to make an investigation as to the cause and extent of the injury for the purpose of ascertaining facts. The proof in every instance must show clearly the rights of an applicant to an award, and the amount thereof. MEDICAL EXAMINATION, REFUSAL TO SUBMIT Rule IS. In case the Commission, or its Chief Medical Examiner, orders an injured employe to submit to ah examination by its Local Medical Examiner, or by a physician specially designated by the Commission to make such examination, and such examination is refused or shall in any way he obstructed, his right to have his claim for compensation considered shall be suspended during the period of such refusal or obstruction. ADMINISTRATION AND PROCEDURE 885 West Virginia employe's intention to leave locality, notice to be given Rude 14. An injured employe 1 who desires to leave the locality in which he has been employed, during treatment of his injury, and goes into another locality of the State, or into another State, shall report to the Local Medical Examiner for examination, notify the Commission of such intention to leave, and obtain the approval of the Commission, and send with such notice a certificate from the attending physician, which shall state the exact nature of the injury, together with length of time of dis- ability present. physician's reports, refusal to pill out Rule IS. In case an attending physician refuses to fill out an attending physician's report or itemize his physician's fee bill, or make an affidavit to the same, on his claim for medical services rendered an injured applicant, his claim for medical services shall not be considered during the period of such refusal. duty op claim clerk Ride 16. The Commission Claim Clerk shall keep a record of the time of filing all notices, applications, affidavits, statements, depositions, medical and other forms of proof, and when the proof is seemingly com- plete, shall assign the same for a hearing. He shall prepare a list of the claims as assigned for each hearing day, which shall contain an abstract of the proof on the questions necessary to be determined by the Commission, and such other information as he may deem necessary to include therein, and shall provide a copy of such list for each member of the Commission and for the Secretary. Such original lists shall be preserved by him and filed in his office with the papers in the claims to which they refer. hearings Ride 17. Applications for awards will be heard on Mondays of each week, unless such day should be a legal holiday, in which event the day following will be the hearing day. Applicants may appear either in person or by agent or attorney. If no appearance is made, the application will be heard and disposed of upon the proofs on file, if sufficient, or may be con- tinued until a future day, or indefinitely, for attendance of applicant or counsel, or for the furnishing of further proof. notice op hearings Rule 18. When the Claim Clerk assigns an application for hearing he shall forthwith give the applicant notice by postal card of the time and 886 bradbury's workmen's compensation law West Virginia place of hearing, and at least five days shall elapse between the date of mailing such notice and the date of hearing, unless the claim to be heard involves only a claim for medical services, medicines or hospital services, in which event no notice of the time and place of hearing need be given. But the right to notice as provided herein may be waived by the applicant at the time of filing his application, or at any time thereafter, and, if waived, the claim will be heard as soon as may be after the completion of the proof. AWARDS Rule 19. All awards other than for medical and surgical attention, and for funeral expenses, shall be paid in monthly installments, unless other- wise provided for by the Commission, and will be paid directly to the applicant or dependent in all cases except where such applicant or de- pendent is an infant of tender years, or under some legal disability, in which event the award will be paid as provided by statute for the payment of benefits in case of death. In the case of temporary disability or partial impairment of earning capacity, the Commission, when making the award, will fix a time at which payments shall cease, unless the injured employe shall make it appear that he is still incapacitated as a result of the injury for which the award was originally made. In such case a modification of the terms of the original award will be made. PATMKNT OF LUMP SUMS Rule 20. Payment of awards in lump sums will be made only when in a supplemental proceeding, it is made to appear to the Commission that it would be to the mutual advantage of the applicant or dependent and to the Workmen's Compensation Fund. CONTINUANCES Rule 21. The policy of the Commission will be to determine all ques^ tions brought before it as speedily as possible; but continuances of hear- ings for any reasonable cause may be had upon the request of the appli- cant. The Commission will continue hearings on its own motion when the volume of business is such as to demand it, or when the proof is not satis- factory, or insufficient, or for any other good cause. MODIFICATION OF AWARDS Rule 22. The Commission has continuing power and jurisdiction over an award, and may make changes or modifications of its former findings, ADMINISTRATION AND PROCEDURE 887 Wisconsin either upon its own motion or upon the application of the employ^, or his dependent. If on its own motion, it must first notify the employe 1 or his dependent. CHANGE IN RULES Rule 28. The rules of the Commission are subject to alterations or amendment at any time; and the Commission will make additional rules, whenever, in its judgment, the same are necessary. WISCONSIN x The Wisconsin Act is administered by the Industrial Com- mission (formerly the Industrial Accident Board). § 2394- 13. All disputes relating tc compensation are determined by the Commission and every compromise concerning com- 1 Rules of Practice op Industrial Commission of Wisconsin Rule 1. The rules of practice at hearings before the Industrial Com- mission will conform generally to the rules of practice before courts of equity. The aim is to secure the facts in as direct and simple a manner as possible. Rule 2. Employers under the provisions of the workmen's compensa- tion act shall make report to the Industrial Commission on the eighth day after the accident on form No. 12, of every accident causing death or a disability which exists' for more than seven days, and thereafter in such cases shall make a supplementary report on form No. 13 on the twenty- ninth day after the accident and at the end of each fourth week during disability. (See forms Nos. 12 and 13.) Rule 3. In any case where an accident and injury to an employ^ oc- curs of which the commission has jurisdiction under the Compensation Act, and a compromise of liability thereunder is made directly by such employer and employe^ the same shall be made in writing in the presence of one or more disinterested witnesses who shall sign such compromise, and copies of all such compromises shall be mailed immediately to the Indus- trial Commission by the employer. All compromises may be reviewed, set aside, modified or confirmed by the commission upon application of either party within one year from the date of the compromise. (Section 2394- 15). Rule 4- The commission will hold public sessions in the offices of the commission in Madison on the first and second Tuesday of each month and continuing from day to day until all matters before the commission 888 bradbury's workmen's compensation law Wisconsin pensation is subject to be reviewed, set aside, modified or confirmed by the Commission upon an application made within one year from the time of the compromise. The practice before the Commission follows substantially are heard. The commission may from time to time hold public sessions in other places in the state as the convenience of the parties may require. The office of the cdmmission at Madison shall be open for the transaction of business during office hours each working day. (Sec. 2394-14.) Rule 5. Examiners may be appointed by the commission from time to time, whose duties shall be to aid the commission in making settlements between employers and employes, and to make report of their actions and all facts in relation therewith to the commission. (Sec. 2394-14.) Rule 6. In case of disputes in matters coming under the jurisdiction of the commission, either party to the dispute may apply to the commis- sion for relief and the commission shall make such order or award as shall be lawful and just in the premises. In all such cases the party complaining shall file his application with the commission, with copies to be served on the adverse party. The commis- sion shall thereupon serve such adverse party with a copy of such applica- tion and such adverse party shall file his answer thereto with the commis- sion within five days after such service and likewise serve a copy of such answer on the party making the application. The commission will there- upon notify the parties of the time and place of hearing, at least ten days prior to such hearing. (Sec. 2394-16.) ' Ride 7. The parties to the controversy shall be known as the appli- cant and the respondent. The party filing the application for relief shall be known as the applicant and the adverse party as the respondent. Either party may appear in person or by an attorney or agent. Ride 8. All service of papers, unless otherwise directed by the com- mission or by law may be made by mail and proof of such mailing shall be prima facie proof of such service. Time within which service shall be made shall be the same as in courts of record unless otherwise specified by rule or order of the commission. Ride 9. Amendment may be made to any pleading upon application to the commission and cause shown. The commission may on its own mo- tion, modify or change its order, finding or award at any time within ten days from the date thereof if it shall discover any mistake therein. Rule 10. The commission may grant extensions of time in which to comply with any rule when it shall deem such extensions of time reasonable and it may likewise grant adjournments of hearings. Rule 11. Parties to a controversy may stipulate the facts in writing, ADMINISTRATION AND PROCEDURE 889 Wisconsin the practice in courts of equity. § 2394-16. Either party- may present a certified copy of the award made by the Com- mission to a Circuit Court for any county whereupon such court shall, without notice, render a judgment in accordance therewith. § 2394-18. The findings of fact by the Commis- sion, in the absence of fraud, are final. But the judgment may be reviewed in an action against the Commission, in which the adverse party shall also be made a defendant, in the Circuit Court for Dane County. § 2394-19, subd. (1). and the commission may thereupon make its order or award based upon such stipulation. Rule 12. Depositions may be taken and used upon any hearing where the convenience of the witnesses or parties may so require. Such deposi- tions shall be taken in the same manner as in courts of record. Rule 13. The Industrial Commission will allow stenographic reporters for reporting hearings before the commission or any examiner appointed by the commission, compensation at the rate of $10 per day, and $5 for each half day or portion thereof, and a folio fee of 5 cents a folio for making transcripts of testimony; and 3 cents per folio for copies thereof. Rule 14. The Industrial Commission will pay special examiners the sum of $10 per day for conducting hearings. In all cases where testimony is not taken and the parties are merely advised of their rights and a settle- ment made, the sum of $5 will be paid. ' Rule IS. The Industrial Commission will pay physicians and surgeons the sum of $10 for making examinations and giving testimony before the commission or any examiner in a hearing where attendance at the hearing does not exceed one hour; and at the rate of $2 per hour for additional time in attendance at hearings. For making a physical examination with a written report, the fee of $5 will be allowed. No additional allowance of fees or for expenses will be allowed to any examiner, physician or surgeon, or reporter, unless special arrangement is made before the service has been performed. 890 brapbury's workmen's compensation law Wisconsin FORM Application for adjustment of claim (Form No. 7. Sec. 2394-16) INDUSTRIAL COMMISSION OF WISCONSIN State of Wisconsin. Applicant, vs. , Respondents. The petition of the above-named applicant respectfully shows: 1. State address of applicant, 2. State occupation of applicant, 3. State address of respondent(s), 4. State general nature of claim in controversy, including time and place of accident, 5. State kind of relief demanded, 6. Wherefore the applicant prays that the said respondent be re- quired to answer the charges herein and that an order or award be made by the Industrial Commission of Wisconsin granting such relief as the applicant may be entitled to in the premises. Dated at this day of , 19. .. (Signed) Applicant. NOTE — Either party to the dispute may apply to the commission for an adjustment of the matter in difference. The original application and one copy for each respondent shall be mailed to the Industrial Commission of Wisconsin t Madison, Wis. ADMINISTRATION AND PROCEDURE 891 Wisconsin FORM Answer to application (Form No. 9. Sec. 2394-16) INDUSTRIAL COMMISSION OF WISCONSIN Applicant, vs. Respondent. The respondent above named for answer to the application herein respectfully 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 dis- pute.) 3. (State such additional facts as may constitute a defense or partial defense.) 4. Wherefore the respondent prays (stating relief asked.) (Signed) Respondent. NOTE — The respondent shall answer the application within five days from the date that a copy of the application is served upon him. . . The original answer shall be mailed to the Industrial Commission of Wisconsin at Madison. Wis., and a copy thereof served upon the applicant by respondent either personally or by mail- ing to the address given in the application. Forms adopted by the Commission, excepting accident report forms are printed on Blanks &yb z 11 inches, and same will be furnished to parties upon request. CHAPTER XVI APPEALS ARTICLE A— Introduction. Page . 892 Page 1. In general 892 2. Points raised below only considered on appeal. . 893 3. Reviewing facts 893 4. Determining adequacy of lump sum paid under agreement 894 5. Order terminating weekly payments not appealed from is final . 894 6. Dismissal of action and making decision in ar- bitration proceedings. 894 7. Award of costs 895 ARTICLE B — Specific Provisions of various Statutes 895 Page Arizona „ . . 895 Nevada 898 California 895 New Hampshire Connecticut 895 New Jersey Illinois 896 New York Iowa 896 Ohio 898 898 899 Kansas 897 Oregon , 899 Maryland 897 Rhode Island 899 Massachusetts 897 Texas 899 Michigan 897 Washington 900 Minnesota . Nebraska. . 898 West Virginia 900 898 Wisconsin 900 ARTICLE A— INTRODUCTION 1. In general. The question of the right to appeal depends almost en- tirely on statutes under modern procedure. Some general principles not covered by particular statutes are now and then decided by the courts. The decisions which follow have been selected from the British reports as applicable to some phases of the compensation laws of the American States. 892 APPEALS 893 Reviewing facts 2. Points raised below only considered on appeal. An appeal by an employer cannot be entertained on points which were not taken in the court below. Payne and Another v. Clifton (1910), 3 B. W. C. C. 439. 3. Reviewing facts. Where the facts are either found or admitted, the only question to be decided is the inference to be drawn from those facts, which is a question of law; and it is open to the Court of Appeal in such a case to review the conclusion at which the learned County Court judge arrived, and to say whether it is or is not wrong in point of law, and whether or not he has misdirected himself. Gane v. Norton Hill Colliery Co. (1909), 100 L. T. 979; 2 B. W. C. C. 42. An appeal to the Court of Appeal in England must be dismissed when it is on purely a question of fact. Rayman v. Fields, No. 2 (1910), 102 L. T. R. 154; 3 B. W. C. C. 123. A workman was injured and was paid compensation for twenty-one weeks. The employers then stopped payment and disputed liability of any kind, including even the oc- currence of an accident. Arbitration proceedings were brought by the workman and terminated in favor of the employer. Subsequently the workman applied to the County Court judge to have the implied agreement recorded. The judge refused on the ground that he had already found, as a fact, no personal injury had occurred arising out of or in the course of the workman's employment on the date al- leged, and that the payments which had already been made were in the nature of a compassionate allowance, and that there was no agreement. On appeal to the Court of Appeal it was held that these were findings of fact, with which the appellate court could not interfere. Turner v. G. Bell and Sons (1910), 4 B.W.C.C. 63. A workman with an injured hand was advised by his own doctor that he could not recover the use of it, but the em- ployers ' doctor advised that he ought to exercise it, and that 894 bradbury's workmen's compensation law Dismissal of action and making decision in arbitration proceedings he would soon recover if he did so. He did not exercise it, and the employers applied for a review of the weekly pay- ments on the ground that the incapacity was due not to the injury but to the unreasonable conduct of the man in not exercising the hand. The County Court judge held that the man had not behaved unreasonably and dismissed the appli- cation to review. It was held on appeal that the question was one of fact, and there was evidence to support the de- cision. Moss & Co. v. Akers (1911), 4 B. W. C. C. 294. 4. Determining adequacy of lump sum paid under agree- ment. An agreement for the redemption of a weekly payment by a lump sum was sent to a registrar to record. It appearing inadequate, the registrar under the powers given him by Schedule II (9) (d), referred it to the judge. The judge, holding that the sole question for him to decide was whether the agreement had in fact been made, declined to decide the question of adequacy. It was held on appeal that the case must go back for the question of adequacy to be de- cided. Owners of the Steamship "Segura" v. Blampied (1911), 4 B. W. C. C. 192. 5. Order terminating weekly payments not appealed from * ', is final. An order terminating weekly payments is, unless appealed from, final, and the original agreement or order is not then the subject of review. Nicholson v. Piper (1906), 96 L. T. 75; 9 W. C. C. 123, aff'd, House of Lords (1907), A. C. 215; 97 L. T. 119; 9 W. C. C. 128. 6. Dismissal of action and making decision in arbitration proceedings. Where in an action under the Employers' Liability Act the judge dismissed the action and then came to the conclu- sion that no compensation was payable under the Workmen's APPEALS 895 Connecticut Compensation Act, it was held that an appeal could be taken from his action as a judge and that he did not deal with the case as an arbitrator under the Employers' Liability Act. Granick v. British Columbia Sugar Co. (1910), 15 R. C. R. 193;4B.W.C. C.452. 7. Award of costs. If a judge grants a party costs they must be taxed, and when an order as to costs is made part of an award, an appeal lies to the Court of Appeal in respect to such order. Beadle and Others v. Owners of S. S. "Nicholas" (1909), 101 L. T. 586; 3 B. W. C. C. 102. ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATES ARIZONA No appeal is provided in the Act from decisions by ar- bitrators or the Attorney General. If the parties fail to agree to arbitrate or submit the matter to the Attorney General, then the workman may sue in any court of competent juris- diction and from the judgment entered an appeal may be taken as in civil actions. § 75. CALIFORNIA The decisions of the Commission may be reviewed by certiorari. § 84. But before applying for a writ of certiorari the aggrieved party must request a re-hearing before the Industrial Commission. §§ 81, 82 and 83. CONNECTICUT Appeals from awards of the Commissioners may be taken to the Superior Court for the county in which the injury was sustained. Part B, § 27. 896 BEADBtJKY's WORKMEN'S COMPENSATION LAW Iowa .of. FORM FOR APPEAL Claimant v. .of.. ♦ Respondent Superior Court, County 1st Tuesday of 191. The above-entitled matter came before the Compensation Com- missioner for the Congressional District and was duly heard by him. On the day of , 191. ., said Com- missioner made his finding and award therein and filed the same in this Court. Now, therefore, the undersigned claimant (or respondent), herein, does hereby appeal from said finding and award to the Su- perior Court to be held at in and for the County of on the first Tues- day of .....191.. Dated at , this day of 191.. Claimant. Respondent. ILLINOIS Decisions of arbitrators may be reviewed by the Industrial Board and determinations of the Board on questions of law may be reviewed by the Supreme Court. § 19 (6) (J). IOWA The decisions of arbitrators may be reviewed by the In- dustrial Commissioner. § 33. An appeal lies to the District Court, from the decision of the Commissioner on questions at law. § 34. 1 Prepared by the Commissioners. APPEALS 897 Michigan KANSAS No right of appeal is given in the Act itself from the de- cisions of arbitrators. If the parties do not agree to arbitrate the workman can sue in the ordinary courts. § 36. MARYLAND Controversies are determined by arbitration and there is no appeal from the decisions of the arbitrators. § 13. MASSACHUSETTS * Decisions of arbitrators may be reviewed by the Industrial Accident Board. Part III, § 7. If no review is demanded in relation to decisions of arbitrators such decisions, like those of the Industrial Accident Board, are filed and become the decisions of the Superior Court from which an appeal lies on questions of law only. Part III, §§ 10 and 11. MICHIGAN An appeal lies from the findings of arbitrators to the In- dustrial Accident Board and decisions of the Board may be reviewed on questions of law by the Supreme Court. Part 3, §§ 11, 12 and 13. 1 As exceptions do not lie under the Workmen's Compensation Act, and the only way to bring questions of law to the Supreme Judicial Court is by an appeal, it follows that the general equity rules as to consideration of questions of evidence raised at a hearing before the Chancellor should be followed. Such questions, seasonably presented upon the record will be considered, but a decree will not be reversed for error in this respect unless the substantial rights of the parties appear to have been affected. Pigeon v. Employers' Liability Assurance Corporation, 215 Mass. 000; 102 N. E. Rep. 932. 57 898 bradbttry's workmen's compensation law New York MINNESOTA Decisions of the courts determining controversies relating to compensation may be reviewed by the Supreme Court on auestions of law only. §§ 22 and 30. • NEBRASKA No appeal appears to be provided for from the decision of arbitrators who may be appointed by agreement only. § 37. If arbitration is not agreed upon the matter must be presented to the District Court from whose judgment an appeal lies to the Supreme Court. § 39. NEVADA There is no provision in the Act allowing an appeal from the decision of the Nevada Industrial Commission relating to claims for compensation on the State Insurance Fund. NEW HAMPSHIRE Disputes are determined by the courts from whom these appeals lie as in other civil cases. § 9. NEW JERSEY Determinations of the Courts of Common Pleas which have jurisdiction in compensation cases are reviewed by the Supreme Court on certiorari. § 2 subd. 20. NEW YORK On questions of fact the decisions of the Workmen's Compensation Commission are final. § 20. On questions of law appeals are allowed to the Appellate Division of the Third Department and to the Court of Appeals. § 23. APPEALS 899 Texas OHIO The decisions of the Industrial Commission are final except where the right of a claimant to compensation from the State fund is denied on the ground that the injury was self-inflicted, or that the accident did not arise out of and in the course of the employment or upon any other ground going to the basis of the claimant's right in which cases the claimant may appeal to the Court of Common Pleas of the county wherein the injury was inflicted. § 1465-90. § 43 of the Act of 1913. From the judgment of the Court of Common Pleas a review may be had by writ of error as in other civil cases. Id. There does not appear to be any right of appeal from the determination by the Board as to a dispute between an employer who has elected to carry his own insurance and an employe 1 claiming compensation. OREGON An appeal lies from the decisions of the Commission by the Circuit Court of the County in which the accident happened or in which the appellant resides. § 32. RHODE ISLAND An appeal lies from the decision of the Superior Court on any question of law or equity. Art. Ill, § 7. TEXAS There does not appear to be any right of appeal from de- cisions of the Industrial Accident Board. But either party may refuse to permit the Board to decide the case, whereupon the Board shall proceed no further and the matter must be taken to the regular courts. Part II, § 5. 900 bbadbury's workmen's compensation law Wisconsin WASHINGTON All determinations of the department may be reviewed by appeal to the Superior Court. § 20. * WEST VIRGINIA The decisions of the Commission are final except where the right of a claimant to participate at all in the State Fund is denied on the ground that the injury was self-inflicted or that the injury did not arise in the course of the employment, or upon any other ground going to the basis of the claimant's right, in which case an appeal lies to the Supreme Court of Appeals. § 43. WISCONSIN Decisions of the Industrial Commission are subject to review in the Circuit Court for Dane County, in an action against the Commission for review. § 2394-19. CHAPTER XVII MODIFYING AWARDS OTHERWISE THAN BY APPEAL ARTICLE A — Introduction. Page 1. Circumstances must have changed to jus- tify review 902 2. Res adjudicata 903 3. New medical evidence on review to show changed circumstan- CES 904 4. Terms op application for review binding on applicant 904 5. Modifying award from a date earlier than the date of the applica- tion to modify 904 6. Terminating compensa- tion payments 905 7. Question of recovery from injury is one of fact 906 8. Increasing age as af- fecting DISABILITY. . . 907 9. Refusal to submit to surgical operation. . . 907 10. Reducing payments by reason of ability to dolightwork 908 11. Inability to obtain light work 909 12. Offering suitable em- ployment 910 13. Reducing payments Page . 902 after offer and re- fusal of light work . . 910 14. Failure of workman to get or attempt to get light work 911 15. Disability from disease following injury. ... 911 16. Workman permanently injured but suffering increased disability from disease 912 17. Rolling-mill hand able to work with glasses when vision impaired . 912 18. Disability due to idle- ness AND SOFTENED MUSCLES 913 19. Disability due to brood- ing over injury 913 20. Inability to get employ- ment due to slackness OF WORK 914 21. Infant earning as much after as he did before accident 914 22. Probable earnings of infant in different GRADE 914 23. Profits of business en- terprise as affecting right to reduce com- pensation 915 24. Apportioning loss be- 901 902 bkadbury's workmen's compensation law Circumstances must have changed to justify review Page TWEEN EMPLOYER AND EMPLOYE 915 25. Allowance fob expenses when work furnished away from home 916 26. Diminishing payments; burden of proof 916 27. Keeping Proceeding alive by payment of nominal sum 917 28. Recovering overpay- ments of compensation 918 29. Permanent partial dis- ability; ABILITY TO Page earn same wages as before accident 918 30. Increased susceptibility to occupational dis- EASE.. 919 31. Inability to earn old wages in new occupa- TION 919 32. Inability to do same work as before injury 920 33. Lack of evidence as to exact amount work- man is able to earn. . . 920 ARTICLE B — Specific Provisions of Various Statutes 921 Page Arizona 921 California 921 Connecticut 921 Illinois . ._ 921 Iowa '. 921 Kansas 921 Maryland 921 Massachusetts 922 Michigan 922 Minnesota 922 Nebraska 922 Nevada 922 New Hampshire 922 New Jersey 923 New York 923 Ohio 923 Oregon 923 Rhode Island 923 Texas 923 Washington 924 West Virginia 924 Wisconsin : 924 ARTICLE A— INTRODUCTION 1. Circumstances must have changed to justify review. A. few awards in compensation cases are not subject to modification. This rule would apply to indemnity for a specific number of weeks for a particular injury like the loss of a hand, an arm or a leg. But in most cases it is impos- sible to tell how long disability will continue and so the award is indefinite as to time. Naturally this makes the right of review necessary. Naturally also this right depends upon showing changed circumstances. MODIFYING AWARDS 903 Res adjudicata Weekly payments can be reviewed only if the circum- stances have altered since the last award was made; otherwise the review would amount to a rehearing of the arbitration, which is not permissible. Crossfield & Sons v. Tanian, 82 L.T.813;2W.C. C. 141. 2. Res adjudicata. On an application to review the employer is entitled to introduce evidence as to the physical condition of the em- ploye, even though it conflicts with the former finding as to such physical condition on the date of the finding, as the determination of the County Court judge, as to the physical condition of the workman, is not res adjudicata. Mead v. Lockhart (1909), 2 B. W. C. C. 398. Where a workman received compensation for a while and then the amount was reduced and he subsequently applied for an increase, on the ground that although his finger which was injured was in the same condition as at the date of the last review, the fact that he had made several applications for work which had been refused on account of his condition, showed that his earning capacity was in fact reduced as a result of the accident. It was held that the last review, by which the compensation was reduced, was not res adjudicata, as against the workman, and that an order of the County Court judge, increasing the compensation, should be sustained. Radcliffe v. The Pacific Steam Naviga- tion Co. (1910), 102 L. T. 206; 3 B. W. C. C. 185. In the last-mentioned case it was held that certain matters became res adjudicata on such a review; for example, the fact that the workman was an employe; that he was injured in the course of his employment; but that the same doctrine did not apply to the amount of compensation, because the statute made this subject to review by subsequent proceed- ings. A collier lost the sight of one eye by accident and com- pensation was paid for two and a half years under an agree- 904 bkadbury's workmen's compensation law Modifying award from date earlier than that of application to modify ment. Another agreement reducing the amount of com- pensation was then entered into in March, 1908. In January, 1909, the employers applied to further reduce the compen- sation. The workman contended that the amount of his incapacity had been settled once and for all by the agree- ment of March, 1908. It was held that the man was fit for his work as a miner, and the judge reduced the com- pensation to one penny a week. It was held on appeal that the evidence before the County Court judge was sufficient to sustain the decision, and that the workman's contention that the agreement of March, 1908, was res adjudicate, could not be sustained. The Cawdor and Garnant Collieries v. Jones (1909), 3 B. W. C. C. 59. 3. New medical evidence on review to show changed cir- cumstances. On review of an award medical evidence on new observa- tions and tests is admissible to show a change of circum- stances. Sharman v. Holliday & Greenwood (1903), 90 L. T. 46; 6 W. C. C. 147. 4. Terms of application for review binding on applicant. On an application by employers to review a weekly pay- ment the court is bound by the terms of the employer's application and has no jurisdiction to find that the workman has recovered from the accident at a time previous to that suggested in the application. Upper Forest and Western Steel and Tinplate Co. v. Thomas (1909), 2 B. W. C. C. 414. 5. Modifying award from a date earlier than the date of the application to modify. On an application to review a weekly payment the ar- bitrator may vary the weekly payments from the date of the application, but not from an earlier date. Donaldson Brothers v. Cowan (1909), 46 Scotch L. R. 920; 2 B. W. C. C. 390. MODIFYING AWARDS 905 Terminating compensation payments On an application to review compensation it is not com- petent for the County Court judge to go outside of that application and to make an order terminating liability from an antecedent date. Charing Cross, Euston and Hampstead Ry. Co. v. Boots (1909), 101 L. T. 53; 2 B. W. C. C. 385. 6. Terminating compensation payments. A workman was injured, and liability was admitted, and compensation agreed upon during incapacity. Subsequently notice was given by the employer of his intention to ter- minate the weekly payments, on the ground that the work- man had recovered, and a joint application was made for a reference to a medical referee, in accordance with the statute. The referee certified that the man was fit for work. The workman then filed an application for arbitration, at the hearing of which the Comity Court judge, on the medical evidence, terminated the employer's liability. It was held that the judge had jurisdiction to make such an order, and was not bound to make a nominal award of compensation, containing a declaration of liability. Cranfield v. Ansell (1910), 4 B. W. C. C. 57. By an accident a workman lost one finger and received permanent injury to two other fingers, and was awarded 4s. Id. a week compensation. On an application to review the weekly payments, the County Court judge, on the evidence, made an order terminating the employers' lia- bility. The workman requested that the weekly compensa- tion be reduced to Id. a week, to keep alive his right to apply for a further review in the event of future loss, but the Court of Appeal held that the question decided by the court below was one of fact with which the Court of Appeal could not interfere. Emmerson v. Donkin and Co (1910), 4 B. W. C. C. 74. Where a workman has returned to work and is receiving the same wages that he did before the accident from his old employer and the compensation payments have been re- 906 bradbuby's workmen's compensation law Question of recovery from injury is one of fact duced to a nominal amount, it was held, on an application to terminate the payment entirely, that the question is not whether the man's employers are paying him or should pay him at the time of the application the same wages as before the accident, but whether the man is left in such position that in the open market his earning capacity may in the future be less than it was before the accident as the result of the accident. Birmingham Cabinet Manufacturing Co. v. Dudley (1910), 102 L. T. 619; 3 B. W. C. C. 169. 7. Question of recovery from injury is one of fact. The question of whether a workman has or has not re- covered is one of fact, and the arbitrators' finding on this question will not be reviewed on appeal where there is no evidence to support it. Cunningham v. M'Naughton & Sinclair (1910), 47 Scotch L. R. 781; 3 B. W. C. C. 577. A workman's hand was injured on December 2, 1907; his employers agreed to pay compensation and a memoran- dum of this agreement was recorded in May, 1908. After several operations for blood-poisoning his little finger was amputated. In January, 1910, an application was made by the employers to reduce the weekly payments ; the grounds of the application were that the workman had wholly or partially recovered from the injury, and was then able to work and receive wages. The judge dismissed the applica- tion, holding that there was some incapacity still, and the Court of Appeal held that on the evidence the decision was correct. Leeds & Liverpool Canal Co. v. Hesketh (1910), 102 L. T. 663; 3 B. W. C. C. 301. A workman injured one finger in July, 1909, and compen- sation was paid under a registered agreement. On November 26, 1909, the workman admitted to the employers' doctor that he was able to work, but on January 17, 1910, when the employers applied to terminate the agreement, the tip of the finger was still slightly tender. The arbitrator termi- nated the compensation, and refused to make a suspensory MODIFYING AWARDS 907 Refusal to submit to surgical operation award. It was held on appeal that the decision was on a question of fact, and there was evidence to support it; and that the case was not a proper one for a suspensory award. Goodall and Clarke v. Kramer (1910), 3 B. W. C. C. 315. 8. Increasing age as affecting disability. An award of compensation which has been paid some time should not be reduced on the ground that by reason of the increased age of the workman he would not be earning as much as he was getting at the time of the accident even if he had not been injured. Smith v. Hughes (1905), 8 W. C. C. 115. 9. Refusal to submit to surgical operation. Where a workman has submitted to one operation as advised by the medical referee, which operation was un- successful, and he was then requested by his employers to submit to another operation, which he refused to do, it was held, on an application to review the compensation award that as no evidence tending to show that the second operation would be successful was tendered, there was no power to submit the case to the medical referee for a further hearing. Carroll v. Gray and Sons (1910), 47 Scotch L. R. 646;3B.W.C.C.572. A workman, after being for some time in receipt of com- pensation, refused to undergo an operation. On an appli- cation to review the doctors were unanimous as to the ad- visability and as to the strong possibility of the success of the suggested operation. The workman called two doctors whose opinions disagreed. It was held that the finding of the County Court judge that this workman was not un- reasonable, was a fact which could not be upset on appeal. Ruabon Coal Co. v. Thomas (1909), 3 B. W. C. C. 32. Where a workman had injured his finger in such a way as to make it stiff and crooked, and it was reported by the medical men that by amputating the finger the workman 90& bradbury's workmen's compensation law Reducing payments by reason of ability to do light work would be able to use the hand to better advantage, and the workman refused to undergo the operation, it was held that the employer who had been paying compensation could not merely stop the entire compensation on the ground of unreasonable refusal of the workman to undergo the opera- tion, but his remedy was by a proceeding to review. O'Neill v. Ropner & Co m 42 Irish L. T. 3; 2 B. W. C. C. 334. Where a workman refused to undergo a simple and minor operation, by which it clearly appears he would be restored to capacity for work, and that the workman was of good sound constitution and general health it was held that the arbitrator was justified in discontinuing compensation. Donnelly v. William Baird & Co. (1908), 45 Scotch L. R. 394;1B.W.C.C95. A workman's forearm, which was broken by accident, was set so negligently that the bones united, but overlapped at a bad angle, preventing the use of the wrist, for which reason he was incapacitated. His employers requested him to have the arm broken again and re-set. This he refused. The employers thereupon applied for a review on the ground that the incapacity was no longer due to the injury but to the workman's unreasonable refusal to have the operation per- formed, or that it was due to the negligence of the man who set the bone. The County Court judge found that the workman's refusal was reasonable, and without deciding the point as to the negligence of the man who set the bone, dismissed the application. The Court of Appeal sent the case back for a re-hearing on the question of whether or not the incapacity was due to the negligence of the man who set the bone. Humber Towing Co. v. Barclay (1911), 5 B. W. C. C. 142. 10. Reducing payments by reason of ability to do light work. A workman was in receipt of weekly payments under an award. The employers applied for diminution of the payments, on the ground that the man was fit to do light MODIFYING AWARDS 909 Inability to obtain light work work. There was no evidence that the man could get light work, and there was evidence that he had made numerous attempts to do so and had failed. The County Court judge found that the man was able to do light work and reduced the payments from 9s. 2d. to 8s. per week. The Court of Appeal held that there was evidence on which the payments could be reduced. Cardiff Corporation v. Hall (1911), 104 L. T. 467; 4 B. W. C. C. 159. Compare the last-mentioned decision with the case of Proctor & Sons v. Robinson (1909), 3 B. W. C. C. 41, where it seems to have been held that the fact that the workman might be able to do some kind of light work was not sufficient ground on which to reduce the compensation. 11. Inability to obtain light work. Where an agreement has been entered into to pay partial compensation, it is no ground for review, on behalf of the workman, to allege that he is totally incapacitated, upon the contention that his employers are unable to give him suitable light work and he is unable to obtain light employ- ment elsewhere. Boag v. Lochwood Collieries (1909), 47 Scotch L. R. 47; 3 B. W. C. C. 549. In the last-mentioned case the Court said: "As I read the Act of Parliament and relative schedule the question to be decided in an application to assess compensation or under an application for review of weekly payments is the question of the man's physical capacity to work. Now, in this case it had been decided by agreement that the workman was partially capable for work. Is it any reason for reviewing the payment to say that the employers cannot find him suitable work for his capacity, or that he has not been able to find such work himself? If the appellant means that his averments if proved would of themselves be a sufficient ground for saying that compensa- tion must be increased to the full allowance under the statute, I should certainly not for myself yield for. one moment to any such demand. I take it that the whole question is that 910 bradbury's workmen's compensation law Reducing payments after offer and refusal of light work of 'capacity to work,' which cannot be decided merely by the fact that the workman has not got work, but only by such evidence as satisfies the Court whether or not he is able to work." 12. Offering suitable employment. A miner who had injured one eye so that he had practically no use thereof, was receiving compensation when his employ- ers offered him work in the mine at the coal face. This he refused and it was held that this could not be called "suitable employment" within the meaning of § 3 of Schedule 1, for the reason that there was some appreciable increase of peril to the remaining eye, and that the consequences of injury to the remaining eye of a one-eyed man would be very serious, and that therefore the employers were not entitled to have the compensation discontinued, by reason of having offered the workman employment which he had refused. Eyre v. Houghton Main Colliery Co. (1910), 102 L. T. R. 385; 3 B. W. C. C. 250. 13. Reducing payments after offer and refusal of light work. An injured workman in receipt of compensation was ex- amined jointly by his own and the employer's doctors, who reported that he was fit for light work. His employer then offered him light work, but he refused, thinking that the work offered involved some heavy labor. The employer then applied for a review and the County Court judge, finding that the man was fit for light work, and that the offer made it perfectly clear that the man would not have to do any heavy labor, reduced the payments to Id. a week. It was held on appeal that there was evidence to support the decision. McNamara & Co. v. Burtt (1911), 4 B. W. C. C. 151. A workman having been in receipt of full compensation for some months, entered into an agreement with his old employers, to do light work at his former rate of wages, and MODIFYING AWARDS 911 Disability from disease following injury that in the event of total incapacity recurring his rights under the Act should revive. He again became totally in- capacitated, and claimed compensation, which was paid. He was subsequently offered light employment at reduced wages, with half the difference between his former and pres- ent wages. This offer he refused, claiming that according to the terms of the agreement he was entitled to full wages. The employers maintained that the agreement terminated when the subsequent claim for compensation was made, and that the workman was relegated to his rights under the Act. The County Court judge upheld the contention of the employers and this determination was sustained by the Court of Appeal. Branford v. North Eastern Railway Co. (1910), 4 B. W. C. C. 84. 14. Failure of workman to get or attempt to get light work. On an application by employers to review, it was proved that the workman was fit for light work, but no evidence was given that the man had been offered or could get light work. It was admitted that he had not attempted to get it. The County Court judge reduced the payments from 15s. to 10s. per week. . It was held that there was no evidence on which the reduction tould properly be made. Anglo- Australian Steam Navigation Co. v. Richards (1911), 4 B. W. C. C. 247. 15. Disability from disease following injury. A workman was injured and received compensation. He soon returned to work at full wages and compensation ceased. Some time later he fell ill and attributing his illness to the injury, applied for compensation. The employers resisted on the ground that the workman had fully recovered from the effects of the accident when he returned to work. The County Court judge found that the man had recovered from the injury and that the illness had no connection with it and 912 bradbury's workmen's compensation law Rolling-mill hand able to work with glasses when vision impaired the compensation was therefore terminated. London & North-Westem Railway v. Taylor (1910), 4 B. W. C. C. 11. 16. Workman permanently injured but suffering increased disability from disease. A collier, in 1906, had his right hand permanently injured. He received fulr*compensation at 12s. Id. per week and was then given light work at which he earned more than his old wages. In 1910 he left his work as his heart was affected by disease, which prevented him from continuing this light work, and registered a memorandum of an agreement to pay full compensation. His employers at once applied for a review and reduction of the payments. The County Court judge found that the man was unfit for work, but that the heart disease was not connected with the injury to the hand, and awarded 10s. per week. It was held that as the workman was still suffering from an obvious permanent in- jury, due to the accident, he was entitled to compensation, the amount of which was a question for the judge to deter- mine. Cory Brothers & Co. v. Hughes (1911), 2 K. B. 738; 4 B. W. C. C. 291. 17. Rolling-mill hand able to work with glasses when vision impaired. A workman in a steel rolling mill had the sight of one eye impaired by an accident. He received compensation for some time and the employers then applied to review the payments. Conflicting medical evidence being given as to the state of the man's vision, the judge referred the matter to a medical referee, who reported that the man would see better with glasses, and could do his old work, but did not make it clear that he could work without glasses. The judge found that the man was physically able to work, but that, as a man with glasses was unlikely to obtain employment in a steel rolling mill, he was not commercially able to earn, and dismissed the application to review. It was held that MODIFYING AWARDS 9l3 Disability due to brooding over injury there was evidence of a change of circumstances, which the judge ought to have considered, and that the case must go back to him for a rehearing. Guest, Keen & Nettlefolds v. Winsper (1911), 4 B. W. C. C. 289. 18. Disability due to idleness and softened muscles. A collier was injured in 1907 and received compensation until 1910. His employers then stopped payment. He took proceedings and the County Court judge found that he was unfit for the heavy work of a collier, but that his incapacity was due not to the accident but to his prolonged idleness, his muscles having become soft and unfit for hard work. He accordingly awarded in favor of the employers. It was held on appeal that there was evidence on which the judge could so find. David v. Windsor Steam Coal Co. (1911), 4 B. W. C. C. 177. A workman had the tip of his little finger amputated, after an accident. The wound healed, leaving slight ad- hesions. After paying compensation for some time, the employers applied for a review. It was admitted that three days before the application to review was heard, another piece of his finger was, under medical advice, amputated. The employers contended that the man would have been fit for work, and that the persistence of the adhesions was due to his unreasonable refusal to resume work, which would have soon broken them down. The County Court judge upheld these contentions and reduced the payments to Id. per week. It was held that there was no evidence to support the findings of the County Court judge, and his ruling was reversed. Burgess & Co. v. Jewell (1911), 4 B. W. C. C. 145. 19. Disability due to brooding over injury. On an application to review and increase a nominal award, the two medical referees of the court reported that the workman, who had been injured by an admitted accident, was, as regards his physical condition, able to resume his 58 914 beadbury's workmen's compensation law Probable earnings of infant in different grade usual occupation as a moulder. As to his mental condition, they reported that he had brooded so much over his accident that his mind would not allow him to summon up courage to persevere at his usual work. It was held that the County Court judge was right in finding that the man was not suffer- ing from any incapacity from work which resulted from the injury, but that his inability to work was caused by brooding over the effects of the accident, and that this was not in- capacity within the meaning of the Compensation Act. Holt v. Yates and Thorn (1909), 3 B. W. C. C. 75. 20. Inability to get employment due to slackness of work. An injured workman in receipt of part wages and reduced compensation is not entitled to a restoration to full half wages because of his inability to get employment because of the slackness of work. Dobby v. Wilson Pease & Co. (1909), 2 B. W. C. C. 370. 21. Infant earning as much after as he did before accident. An infant workman was injured and sustained a rupture. After a few weeks he returned to his former work wearing a truss. A year later his employers applied to terminate their liability and proved that he was earning as much as before the accident. It was held that the fact that an infant work- man is earning the same wages as before the accident is not necessarily conclusive that the employers are entitled to have the compensation terminated, but the arbitrator should de- termine whether the earning capacity was the same as it would have been had he not been injured. Bowhill Coal Co. v. Malcolm (1910), 47 Scotch L. R. 449; 3 B. W. C. C. 562. 22. Probable earnings of infant in different grade. An infant skilled laborer, during a slack time, took em- ployment of an unskilled kind, paid at a lower rate. He was injured while in the latter employment and received compensation based on the wages he was receiving when MODIFYING AWAKDS 915 Apportioning loss between employer and employe 1 injured. On an application to review he claimed to be entitled to compensation, based on the weekly sum he would probably have been earning at his skilled work. It was held that in estimating the probable earnings of this work- man under Schedule I (16), regard may be had to his power of earning money in another employment and in another class of employment than that in which he had been working at the time he was injured. Evans v. Vickers, Sons and Maxim (1910), 102 L. T. 199, 3 B. W. C. C. 126, aff'd by House of Lords, Vickers Sons and Maxim v. Evans (1910), 3 B. W. C. C. 403. In the decision of the House of Lords it was held that the "weekly sum which the workman would probably have been earning" is not limited to what the workman would probably have earned in the same employ- ment under the same employer. 23. Profits of business enterprise as affecting right to re- duce compensation. On an application to review the court can consider as "wages" the profits of a bakery business in which the work- man has engaged. Norman & Burt v. W r alder (1904), 90 L.T.531;6W.C.C. 124. An injured workman, before the accident, earned an average of £94 per year. After the accident he purchased a public house for £100 and deducting interest on capital and all expenses he still made a net profit of £98. On an application to review the employers contended that although the workman had not recovered from his injuries the in- capacity to earn had ceased, as he was earning more since the accident than before. It was held on appeal, reversing the decision below, that the test was not the man's profits, but the value of the work done had it been offered as services in the open market. Paterson y. A. G. Moore & Co. (1910), 47 Scotch L. R. 30; 3 B. W. C. C. 541. 24. Apportioning loss between employer and employe. Where a man earns something but not enough when 916 bradbury's workmen's compensation law Diminishing payments; burden of proof added to the compensation payable to equal what he was earning before the injury, an arbitrator is not bound to reduce the payments so that the actual loss to the workman shall be borne equally by him and his employer. Ellis v. Knott (1900), 2 W. C. C. 116. 25. Allowance .for expenses when work furnished away from home. Employers who were paying a workman 17s. bd. a week compensation gave him light work at a different place some miles from home, and then filed an application to review the compensation. The County Court judge reduced the payments, but allowed the man the cost of a week-end ticket and also lodging allowance, as he was compelled to live apart from his family during the week. The family then moved to the place where he was working and on a new application by the employers the judge still further reduced the compen- sation. On appeal it was held that the decision of the court was on a question of fact and the Court of Appeal would not interfere. The Taff Vale Railway Co. v. Lane (1910), 3 B. W. C. C. 297. 26. Diminishing payments; burden of proof. "Once liability is admitted and payment of an amount for compensation is made, such amount should be the employer's liability until he (the employer) discharges the onus of showing a change of circumstances which entitles him to have the amount diminished. " Maundrell v. Dunker- ion Collieries Co. (1910), 4 B. W. C. C. 76, 78. On an application to diminish a weekly payment, it was found that the workman could do some light work, if he could obtain it; but the employer did not produce any evi- dence that he could obtain such light work, and the judge refused to reduce the weekly payments. It was held on appeal that the employers had not discharged the onus of proof which was upon them to show that the man could ob- MODIFYING AWARDS 917 Keeping proceeding alive by payment of nominal sum tain such work. Proctor and Sons v. Robinson (1909), 3 B. W. C. C. 41. In the last-mentioned case the court said: "I think the employers here struck too soon. Either they should first obtain some work which the workman could do and offer it to him, and give evidence of this, or else they should give evidence that there is some chance of the work- man obtaining a particular kind of light work in the district. Here the employers failed to prove the case they put for- ward. The burden was upon them and they failed to dis- charge it." Where an employer who has been paying compensation contends that the incapacity from the injury has ceased, and that the workman is suffering from a cardiac affection unconnected with the injury, the onus is on the employer of proving this contention on a proceeding to reduce or dis- continue the compensation. Quinn v. M'Callum (1908), 46 Scotch L. R. 141; 2 B. W. C. C. 339. The employers applied to review payments under a registered agreement, putting in a certificate of a medical referee, obtained in accordance with Schedule I (15), as proof that the workman was fit to work. The man tendered medical evidence in contradiction, but the County Court judge rejected it on the ground that the certificate was con- clusive. It was held that the evidence was rightly rejected, the certificate being conclusive. Sapcote & Sons v. Hancock (1911), 4 B. W. C. C. 184. 27. Keeping proceeding alive by payment of nominal sum. On an application to review a weekly payment the County Court judge has jurisdiction to make a suspensory award of, say, Id. per week, or a declaration of liability, it matters not which, for the purpose of keeping alive the workman's claim for compensation, and his right to go back to the judge in the event of new circumstances arising rendering such a course appropriate. Ovmers of Vessel "Tynron" v. Morgan (1909), 100 L. T. 461; 2 B. W. C. C. 406. 918 Bradbury's workmen's compensation law Permanent partial disability; ability to earn same wages as before 28. Recovering overpayments of compensation. On an application to review an order for compensation, it was held that the weekly payments should be reduced as of a certain antecedent date. The employer refused to make any further payments until the amount of overpayments had been worked off. It was held that the employer had no right to recover overpayments in this way, as his remedy was by action. B. Hosegood and Sons v. Wilson (1910), 4 B. W. C. C. 30. Where an employer, by mistake, has paid more than half wages, he is entitled to have the excess payments set off as to future compensation. Mutter v. The Batavia Line (1909), 2 B. W. C. C. 495. 29. Permanent partial disability; ability to earn same wages as before accident. A ship's fireman sustained an injury which necessitated the amputation of the third finger. Compensation was paid under an agreement. The finger having healed so he could use his hand to a certain extent, the compensation was reduced to 5s. a week, the judge finding that the man was permanently partially incapacitated. Later the em- ployers offered the man work as a fireman at his full former wages. This he accepted and worked for seven months. The employers thereupon applied to terminate the payments on the ground that he had completely recovered his wage earning capacity. The application was refused by the County Court Judge and the decision was affirmed by the Court of Appeal, it being held that the man was entitled to compensation because of the permanent incapacity. War- wick Steamship Co. v. Callaghan (1912), 5 B. W. C. C. 283. A workman lost the sight of one eye by accident. After recovery he was offered his old work which he refused, as he did not wish to run the risk of losing his other eye. On application by the employers the County Court judge MODIFYING AWARDS 919 Inability to earn old wages in new occupation terminated the compensation. This decision was affirmed on appeal, but the Appellate Court held that the workman was entitled to a declaration of liability. Braithwaite & Kirk v. Cox (1911), 5 B. W. C. C. 77. A coal miner, after receiving compensation for some time returned to full work. Subsequently he declared that he was suffering from flat-foot which he alleged was due to the accident. The employers applied for a termination of the weekly payments and gave evidence showing that the work- man was able to do full work. The workman contended that flat-foot was a disability. The County Court judge terminated the payments without giving any grounds for his decision. On appeal to the Court of Appeals the decision was affirmed on the ground that there was evidence to sup- port the decision of the County Court judge that disability had ceased. Jones v. Tirdonkin Colliery Co. (1911), 5 B. W. C. C. 3. 30. Increased susceptibility to occupational disease. A collier suffered from an occupational disease and re- ceived compensation. On an application by the employers to terminate the weekly payment it was found that the collier was not now suffering from the disease, but that he had an increased susceptibility to it, due to the previous attack, which affected his capacity to work underground and the application for a review was dismissed. Garnant Anthracite Collieries v. Bees (1912), 5 B. W. C. C. 694. 31. Inability to earn old wages in new occupation. As a result of an accident a riveter had one eye blinded. He received compensation until the wound had healed and on application by the employers to terminate the payments, a declaration of liability was awarded and payments were stopped. He was entirely able to do his old work, which was offered to hi™ by his employers, but he refused, as he was 920 bhadbuky's workmen's compensation law Lack of evidence as to exact amount workman is able to earn afraid of injuring the remaining eye. Painting work was then given to him, but he was unable to earn his full wages at this and he applied for an increase of compensation. The application was denied on the ground that there was no change in his circumstances since the first review. Cox v. Braithwaite & Kirk (1912), 5 B. W. C. C. 648. 32. Inability to do same work as before injury. A coal miner had his compensation reduced to a nominal sum. He asked his employers for light work and they offered him only his old work. He attempted this, but entirely failed to do it, as it made him ill and he was confined in the hospital for six months. It was held that on the application of the workman he was entitled to have a review on the ground that there was a change in his circumstances. Wal- ton v. South Kirby, Featherstone v. Hemsworth Colliery (1912), 5 B. W. C. C. 640. 33. Lack of evidence as to exact amount workman is able to earn. Payments may be diminished on proof that the total incapacity has ceased without evidence of the actual amount of the earning capacity of the workman. Carlin v. Alexander Stephen & Sons (1911), 48 Sc. L. R. 862; 5 B. W. C. C. 486. A workman who was injured was able to do light work which was offered to him by his employers. He refused to accept the work and upon an application to reduce the com- pensation no evidence was given as to the exact amount of wages the workman was able to earn at the light work. The County Court judge, acting partly upon his own local knowledge, diminished the payments, and upon appeal it was held that it was in the discretion of the judge to diminish any weekly payment without evidence as to the actual amount the workman was able to earn. Roberts & Ruthven v. Hall (1912), 5 B. W. C. C. 331, MODIFYING AWARDS 921 Maryland ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA There is no provision in the Arizona Act allowing a modi- fication of award or judgment for compensation. CALIFORNIA The California Act contains elaborate provisions for a re-hearing and review of awards. §§ 81, 82, 83 and 84. CONNECTICUT Awards may be modified at any time where there has been a change of condition. Part B, § 15. ILLINOIS Agreements and awards may be modified at any time within eighteen months after they are made. § 19. IOWA Agreements or awards may be modified at any time. Part 2, § 35 (a). KANSAS Agreements and awards may be modified or cancelled at any time within one year after they are filed. § 29. MARYLAND There is no special provision in the Maryland law as to the modification of the award. There is merely a provision that all controversies shall be settled by arbitration. § 13. 922 BRADBURY'S WORKMEN'S COMPENSATION LAW New Hampshire MASSACHUSETTS Any weekly payment may be reviewed for cause. Part III, §12. MICHIGAN Any weekly payment may be reviewed where it appears that conditions have changed, warranting such action. Part 3, § 14. MINNESOTA Settlements and awards as to compensation providing for payments not exceeding six months are final, and not subject to readjustment. Part 2, § 26. If the payments are for more than six months the award or agreement may be re- viewed and modified. Part 2, § 27. NEBRASKA All settlements and awards for payments for a period under six months are final, but if periodical payments are for a period of more than six months then they are subject to review upon showing changed conditions. §§ 41 and 42. NEVADA Awards may be modified at any time. § 34 (c). NEW HAMPSHIRE There is no provision in the New Hampshire Act on this subject except in the latter part of § 9, wherein it is provided that "either such employer or workman may apply to "said Superior Court or to any justice thereof in similar proceedings for the determination of any other question that may arise under the compensation feature of this Act." MODIFYING AWARDS 923 Texas NEW JERSEY An agreement or award of compensation may be modified at any time after one year from the time the same became operative. § 2, subd. 21. NEW YORK Awards may be modified at any time because of changed conditions. § 22. OHIO Awards may be modified at any time when in the opinion of the Industrial Commission such modification is justified. § 1465-86. § 39 of the Act of 1913. OREGON An award may be modified at any time where there is a change in conditions. § 21 (1). No increase or re-arrange- ment shall be operative for any period prior to the applica- tion therefor. § 27 (c). RHODE ISLAND At any time within two years from the date of the ap- proval of an agreement or the entry of a decree fixing com- pensation and prior to the period for which compensation has been fixed by such agreement or decree, the same may be reviewed upon application of either party. Art. Ill, § 14. TEXAS The Texas Act does not contain any provision on this subject. 924 Bradbury's workmen's compensation law Wisconsin WASHINGTON Awards may be modified at any time where there is a change in conditions. § 5 (h). WEST VIRGINIA Awards may be modified at any time where there is a change in conditions. § 40. WISCONSIN There is no general provision in the Wisconsin law al- lowing an award or judgment for compensation to be re- viewed or changed because of changed conditions. CHAPTER XVIII PHYSICAL EXAMINATION OF CLAIMANTS FOR COMPENSATION Page ARTICLE A— Introduction 925 Page 1. Demand that workman's attorney be present at medical examination. . 925 2. Unreasonable demand that workman's med- ical attendant be pres- ent at examination 926 3. Cause OP DEATH SUBMITTED TO MEDICAL REFEREE 926 4. Refusal of workman to undergo surgical operation 927 5. Medical referee's re- port NOT CONCLUSIVE ON ARBITRATOR 928 ARTICLE B — Specific Provisions of Various Statutes. 928 Page Arizona 928 California 928 Connecticut 929 Illinois 929 Iowa 929 Kansas 929 Maryland 929 Massachusetts 930 Michigan 930 Minnesota 930 Nebraska 931 Nevada 931 New Hampshire 931 New Jersey 931 New York 931 Ohio 932 Oregon 932 Rhode Island 932 Texas 932 Washington 932 West Virginia 933 Wisconsin 933 ARTICLE A— INTRODUCTION 1. Demand that workman's attorney be present at med- ical examination. A workman in receipt of compensation under the Act was required by his employers to submit himself for examina- tion by a certain duly qualified medical practitioner. The 925 926 bradbury's workmen's compensation law Cause of death submitted to medical referee workman refused to do so unless the examination was at his solicitors' office or in his solicitors' presence. The employ- ers repeated their request, but stated that the workman's medical adviser might attend at the examination. The workman again refused unless his conditions were complied with. It was held on these facts that there was a refusal to submit to a medical examination. The Court said: "It cannot be too well known that a solicitor's office is not, in ordinary circumstances, a proper place at which to hold a medical examination of a workman." Warby v. Plaistowe & Co. (1910), 4 B. W. C. C. 67. 2. Unreasonable demand that workman's medical attend- ant be present at examination. A workman having claimed compensation under the Act of 1906, his employers required him to submit himself for medical examination. The workman refused except on con- dition that his own medical attendant should be present throughout the examination. He conceded that there were no special circumstances in his case which called for the presence of his medical attendant. It was held that the workman's refusal to submit to examination unless his own medical attendant was present was a "refusal within the Act." Morgan v. William Dixon (1910), 48 Scotch L. R. 296; 4 B. W. C. C. 363. A workman who refuses to be examined by the employer's physician unless the workman's own medical adviser is present, does not refuse to submit himself to such examination or obstruct the same, within the mean- ing of the Act. Devitt and Crosby Magee v. The Owners of the S. S. " Bainbridge" (1909), 2 K. B. 802; 2 B. W. C. C. 383. 3. Cause of death submitted to medical referee. A workman was injured and afterward died in the hospital. His dependent claimed compensation, and on the hearing conflicting medical evidence was given as to the cause of death. The County Court judge thereupon submitted the PHYSICAL EXAMINATION OF CLAIMANTS 927 Refusal of workman to undergo surgical operation matter to a medical referee, in accordance with Schedule II (15) of the Act, which provides that the judge may submit to a referee any matter which seems material, "subject to regulations made by the Secretary of State and the Treas- ury." These regulations (dated June 24, 1907), in fact, deal only with the case of a living workman. It was held that the judge had, nevertheless, jurisdiction to submit for report the question of the cause of death." Carolan v. Harrington & Sons (1911), 2 K. B. 733; 4 B. W. C. C. 253. 4. Refusal of workman to undergo surgical operation. An employer is not entitled to have compensation termi- nated because of the refusal of the workman to undergo an operation unless he can show clearly that the refusal of the workman was unreasonable. Proprietors of Hays Wharf v. Brown (1909), 3 B. W. C. C. 84. The onus rests upon the employer to show that a workman unreasonably refused to submit to an operation whereby it is alleged that the opera- tion would have cured the disability. Marshall v. Orient Steam Navigation Co. (1910), 1 K. B. 79; 3 B. W. C. C. 15. So held where a ship's fireman whose finger was injured re- fused to have an incision made as advised by the ship's doctor, who declared that such an incision would have saved the finger, and the workman's doctor declared to the con- trary. Id. The refusal by a workman to undergo a surgical operation must be reasonable or he will not be entitled to a continuance of the compensation awarded. Paddington Borough Council v. Stack (1909), 2 B. W. C. C. 402. Where a workman refuses to submit to a surgical operation of a simple character, involving no serious risk to life and health, and which, according to the unanimous professional evidence, offers a reasonable prospect of the removal of the incapacity from which he suffers, is debarred from any right to claim further compensation. Such continuance of his disability is not attributable to the original accident, but to his unreason- able refusal to avail himself of surgical treatment. Wamcken 92S beadbury's workmen's compensation law California v. Richard Moreland & Son (1908), 100 L, T. 12; 2 B. W. C. C. 350. A workman injured by accident arising out of and in the course of his employment, who refuses, on the advice of his own doctor,, to submit to a surgical operation, which, in the opinion of such medical man, involved some risk to his life, is not acting unreasonably in such refusal, and is not thereby precluded from claiming compensation because of his continued disability to work. Tutton v. Owners of Steamship "Majestic" (1909), 100 L. T. 644; 2 B. W. C. C. 346. 6. Medical referee's report not conclusive on arbitrator. Where the County Court judge submits to a medical referee for report any matter which seems material to any question arising in the arbitration the judge is not bound by the referee's report, but should exercise an independent judgment. Quinn v. Flynn (1910), 44 Irish L. T. R. 183; 3 B. W. C. C. 594. ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA The employe" must submit to an examination when de- manded by the employer and the right to compensation is suspended during any time which the workman wrongfully refuses to submit to such examination. § 73. CALIFORNIA l The employer has a right to have the workman examined by a physician and compensation is suspended during the 1 The refusal of an injured employ! to submit to a physical examination after order by the Board, bars his right to compensation during the period of such refusal. This penalty should be strictly enforced. What con- stitutes a refusal is afact to be determined by the Board. Mack v. Pacific Telephone & Telegraph Co., Cal. Indus. Ace. Bd., Oct. 7, 1912. PHYSICAL EXAMINATION OF CLAIMANTS 929 Maryland periods of any improper refusal on the part of the workman to submit to such examination. § 21. CONNECTICUT The workman must submit to an examination upon the request of the employer or the direction of a Commissioner and the refusal to submit to such examination suspends the right to compensation during such refusal. Part B. § 23. ILLINOIS The workman must submit to an examination upon the request of the employer, and during the time of any refusal compensation is suspended. § 12. . IOWA The workman must submit to an examination when re- quested by the employer and compensation is suspended during the period of any improper refusal to submit to such examination. § 12. KANSAS The employe 1 must submit to an examination when re- quested by the employer, and compensation is suspended during refusal. The Court may also appoint a physician where any proceeding is pending for compensation. §§ 17 to 21 inclusive. MARYLAND The contract of insurance may provide that the employ^ shall submit himself to medical examination as required by the employer at the employer's expense. § 7. 59 930 Bradbury's workmen's compensation law Minnesota MASSACHUSETTS The workman must submit to an examination at the re- quest of the employer or the insurance carrier and should he refuse, compensation is suspended. Part II, § 19. FORM Notice to industrial accident board that an injured employe has refused to submit himself to an examination You are hereby notified that (Name of employe.) (Street and No.) (City or Town.) who was injured on or about while in the employ of . . . . (Date.) at (Name of employer.) (Place.) has refused to submit himself to an examination, as required under the provisions of Section 19, Part II, chapter 751 of the Acts of 1911, and amendments thereto. (Name of insurance association or company.) Per 191. (City.) MICHIGAN The workman must submit to an examination at the re- quest of the employer or by a physician appointed by the Board, and should he refuse to submit to the examination, compensation is suspended during such refusal. Part II, § 19, Part III, §9. MINNESOTA The workman must submit to an examination at the re- quest of the employer and compensation is suspended during the time of any refusal to submit to such examination. § 21. PHYSICAL EXAMINATION OF CLAIMANTS 931 New York NEBRASKA The workman must submit to an examination at the request of the employer and compensation is suspended during the time of any refusal to submit to such examina- tion. Part II, § 34. NEVADA The workman must submit to examination when requested by the Commission, and the right to compensation is sus- pended during his refusal. § 32. NEW HAMPSHIRE The workman must submit to an examination at intervals not oftener than once in a week, and compensation is sus- pended during his refusal. § 7. NEW JERSEY The workman must submit to an examination as often as may be reasonably requested. The right to compensation is suspended during refusal to submit to such examination. § 2, subd. 17. NEW YORK A workman "if requested by the Commission" must submit to a medical examination. The employe or the in- surance carrier may have a physician of his' or its own selec- tion participate in such examination. The right to com- pensation or to prosecute proceedings therefor is suspended during the time of the refusal to submit to the examination.- § 19. 932 bradbuby's workmen's compensation law Washington OHIO A workman claiming compensation may be required to submit to a physical examination from time to time as may be provided by the rules of the Commission. The right to compensation is ♦suspended during the time of any refusal to submit to such examination. §§ 1465-95, § 48 of the Act of 1913. OREGON The workman must submit to a physical examination when requested by the Commission and should he refuse, compensation is suspended during the refusal. § 28. RHODE ISLAND The workman must submit to a physical examination when requested by the employer and the right to compensation is suspended during his refusal. Art. 2, § 21. TEXAS The Industrial Accident Board may require any workman claiming compensation to submit to an examination before said Board or someone acting under its authority. Refusal to submit to such examination suspends the right to com- pensation during the refusal. Part II, § 4. WASHINGTON A workman must submit to a physical examination if requested by the Department and compensation is suspended during any refusal to submit to such examination. § 13. PHYSICAL EXAMINATION OF CLAIMANTS 933 Wisconsin WEST VIRGINIA There is no special provision in the West Virginia Act providing for physical examinations other than the broad powers of the Commission to make investigations and re- quire employe's as well as employers to answer all necessary questions. WISCONSIN » The workman must submit to an examination whenever required and during the period of any refusal compensation is suspended. § 2394-12. 1 The applicant was injured by a cave-in while employed as a plumber's helper. He was totally disabled for five weeks. At the end of that time the employer' served written notice upon him to submit to a medical examination. The workman failed to comply with this request. At the time of the hearing the workman had fully recovered from his injury. It was held that compensation amounting to $46.85 for five weeks should be awarded. Christian Lick v. L. R. StoUberg Co., Wis. Indus. Com., Jan. 23, 1913. CHAPTER XIX REPORTS BY EMPLOYERS OF INJURIES TO WORKMEN Page ARTICLE A — Specific Pbovisions of Various Statutes 934 Page Arizona 934 Nevada 937 California 934 New Hampshire 937 Connecticut 934 New Jersey 937 Illinois 935 New York 937 Iowa 935 Ohio 938 Kansas 935 Oregon 938 Maryland 935 Rhode Island 938 Massachusetts 935 Texas 938 Michigan 936 Washington 938 Minnesota 936 West Virginia 938 Nebraska 937 Wisconsin 939 ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA There is no special provision in the Arizona Act requiring employers to report accidents. CALIFORNIA Employers and insurance carriers are required to make reports to the Industrial Commission of accidents to em- ployes under rules of and on blanks furnished by the Com- mission. §§ 57 (5), and 71. CONNECTICUT Employers must report each week injuries which have occurred in the preceding week. Part B, § 20. 934 KEPORTS BY EMPLOYERS OP INJURIES 935 Massachusetts ILLINOIS Immediate reports of accidents must be made to the In^ dustrial Board where the injury entails a loss of more than one week's time. Also in death cases. § 30. IOWA Reports of accidents must be made within forty-eight hours to the Industrial Commissioner on blanks to be pro- cured from the Commissioner for that purpose. § 37. KANSAS Employers are required to report annually to the State Commissioner and Factory Inspector all accidents, including information as to all payments under the Compensation Act. § 16. MARYLAND A quarterly report of all settlements and payments must be made by the employer to the Insurance Commissioner. §17. MASSACHUSETTS 1 Employers must within forty-eight hours, not counting Sundays and legal holidays, after the occurrence of an acci- dent, report the same to the Industrial Accident Board, on blanks to be procured from the Board for that purpose. Upon termination of the disability, or if such disability extends beyond a period of sixty days, at the end of that "The Massachusetts Industrial Accident Board rules that all em- ployers must report accidents to the Board whether or not they are in- sured under the Act. See Bulletin No. 2, Mass. Indus. Ace. Bd., Jan. 1913, p. 11, 936 bradbury's workmen's compensation law Minnesota period, the employer must make a further report. Part III, §18. "That the association and liability insurance companies report to it all accidents within five days after receipt of notice thereof by them from any subscriber, by sending to the Industrial Accident Board a copy of said notice. ' ' Rule No. 3, Mass. Indus. Ace. Bd. MICHIGAN i Reports must be made within ten days after the accident to the Industrial Accident Board on blanks to be procured from the Board for that purpose. Part 3, § 17. MINNESOTA Reports of all accidents which disable employe's for one week must be made to the Department of Labor and Indus- tries at St. Paul, on blanks to be furnished by the Commis- sioner of Labor. Fatal and serious accidents must be reported within forty-eight hours and all other accidents within four- teen days. L. 1913, c. 416. Copies of all settlements made or releases obtained in respect of industrial accidents shall also be filed with the Labor Commissioner. The failure to make any of such reports is a misdemeanor. L. 1913, c. 416, §§ 2 and 3. 'The Michigan Industrial Accident Board has made the following rule in relation to the reporting of accidents: "All accidents resulting in disability continuing for more than one full working day shall be reported to the Board; all accidents involving per- manent partial disability, i. e., dismemberment, etc., shall be reported irrespective of term of disability. Such report is to be filed weekly on Form 5A, upon which the name of an injured employe is to be carried until disability ceases or compensation period terminates. If disability exceeds fourteen days a detailed report is to be filed upon the fifteenth day upon Form No. 6. Provided: that in all cases where death or the loss of a member results Form No. 6 is to be filed not later than ten days following the injury. REPORTS BY EMPLOYERS OP INJURIES 937 New York NEBRASKA Reports of injuries and of settlements must be made to the Labor Commissioner. Part 2, § 45. NEVADA The employer must immediately report all accidents to the Commission on blanks furnished by the Commission. §33. NEW HAMPSHIRE Reports must be made to the Commissioner of Labor on blanks furnished by him of such matters relating to injuries and settlements as the Commissioner may require. § 12. NEW JERSEY Reports must be made to the Commissioner of Labor of all accidents which result in disability of two weeks or more on blanks furnished by the Commissioner. Additional re- ports must be made by insurance companies of all accidents reported to them. These reports must be filed within four weeks after the injuries have been reported to the company. L. 1912, c. 156. NEW YORK Every employer must keep a record of injuries, fatal or otherwise, to his employes. Within ten days after the oc- currence of an accident he must report the same to the Com- mission. Failure to do this is punishable by a fine of not more than $500 and the employer is guilty of a misdemeanor. §111. 938 bradbury's workmen's compensation law West Virginia OHIO Reports of all accidents, fatal or otherwise, must be made by employers to the Industrial Commission within a week after they happen, on blanks furnished by the Commission. Failure to make such reports is a misdemeanor subjecting the employer to a fine of not more than $500. § 1465-99; § 52 of the Act of 1913. OREGON Employers must at once report all accidents to the Com- mission on blanks furnished by the Commission. § 29. RHODE ISLAND There is no provision in the Act on' this subject. TEXAS Within eight days after the occurrence of an accident a report thereof must be made to the Industrial Accident Board on blanks to be procured from the Board for that purpose. A further report must be made at the end of dis- ability, or at the end of sixty days, if disability has not then terminated. Part II, § 7. WASHINGTON Reports must be made to the Department at once of any accidents to an employe, on blanks and under regulations of the Industrial Insurance Department. § 14. WEST VIRGINIA There is no special provision in the West Virginia Act requiring employers to report accidents, but the Public Reports by employers of injuries 939 Wisconsin Service Commission has power to make orders and regula- tions concerning the administration of the Act and undoubt- edly has power to require such reports. WISCONSIN There is no special provision of the Wisconsin Act re- quiring reports, but § 2394-14 authorizes the Industrial Commission to make rules and under that power the Com- mission has made the following rule: "Rule II. Employers under the provisions of the work- men's compensation act shall make report to the Industrial Commission on the eighth day after the accident on Form No. 12, of every accident causing death or a disability which exists for more than seven days, and thereafter in such cases shall make a supplementary report on Form No. 13 on the twenty-ninth day after the accident and at the end of each fourth week during disability. (See Forms Nos. 12 and 13)." Blanks for these reports are furnished by the Commission and must be used. CHAPTER XX COMPROMISING COMPENSATION CLAIMS Page ARTICLE A— Introduction -940 Page 1. In general 940 ARTICLE B— Specific Provisions of Various Statutes 945 Page Arizona 945 Nevada 947 California 945 New Hampshire 948 Connecticut 946 New Jersey 948 Illinois 946 New York 949 Iowa 946 Ohio 949 Kansas 946 Oregon 949 Maryland 946 Rhode Island 950 Massachusetts 947 Texas 950 Michigan 947 Washington 950 Minnesota 947 West Virginia 950 Nebraska 947 Wisconsin 950 ARTICLE A— INTRODUCTION 1. In general. The word "compromise" so far as it implies a concession has practically no application to workmen's compensation Acts. The amount of compensation due is subject to com- putation when the facts are properly established, in most cases, and very little is left for dispute or negotiation. Com- promise settlements, therefore, are scarcely recognized at all under such statutes. Some of the acts, however, permit the parties to agree as to the amount due, but most of them provide in one form or another that a settlement must either be approved by some public officer in the first instance or that it is subject to re-examination thereafter before it become conclusive. In New Jersey, for example, while the 940 COMPROMISING COMPENSATION CLAIMS 941 In general parties may agree as to the amount due, if the employe or the beneficiary subsequently brings proceedings in court the settlement is binding only so far as it is in compliance with the Statute. This chapter points out specifically in what instances settlements may be made by the parties and the effect of such settlements. The British Act "authorizes employers and injured work- men (or the dependents of workmen who have been killed) to enter into agreements as to the compensation to be paid. In order that such agreements when entered into may be binding the Act requires them to be registered in the County Court, or in Scotland in the Sheriff Court. Either the work- man or the employer may apply to the Registrar of the County Court (or in Scotland to the Sheriff Clerk) to register the agreement, and once the agreement is registered it has the same force as a County Court judgment, or in Scotland as a decree-arbitral. It is not necessary that the agreement should be in writing. A written agreement is, of course, more satisfactory in every way, but an oral agreement can be registered. All that is necessary is that the person asking for registration of an oral agreement shall write down in his own words the substance of the agreement; the Registrar or Sheriff Clerk will register it if he considers it to be gen- uine. An implied agreement even may be registered. An implied agreement is one that has neither been written nor spoken, but may be inferred from the conduct of the parties concerned. Thus, if an employer, without making any prom- ise, pays compensation weekly to an injured workman the court will, under certain circumstances, say that there is an implied agreement which can be registered. It must not, however, be assumed that in every case where an employer voluntarily pays compensation an agreement can be implied. There may be other facts to be taken into account. Either the employer or the workman may register the agreement, but by Section 11 (1) (c) of the National Insurance Act a special duty is laid upon the employer when the agreement 942 bradbury's workmen's compensation law In general is for the payment of a lump sum in lieu of weekly payments or for the payment of less than 10s. a week. In either of such cases the employer is bound under the act to give notice of the agreement either to the Insurance Commissioners or to the workman's approved society or (if the workman is a deposit contributor) to the Local Insurance Committee. This notice muit be given within seven days from the making of the agreement. " x Both employer and workman are entitled to be present when the agreement is registered. A workman employed by contractors was knocked down and injured by the defendants' tramcar. He received several weekly payments from his employers and gave them re- ceipts therefor. Subsequently he repaid to the employers the amount he has received from them, and sued the defend- ants for damages. At the trial the workman stated that he did not understand the nature and terms of the receipts he had signed. The County Court judge dismissed the case, holding, as a matter of law, that he had recovered compensa- tion within the meaning of § 6 of the Workmen's Compensa- tion Act, and that his action was therefore barred. The Court of Appeal held that it was a question for the jury whether the plaintiff understood the nature and effect of the receipts he had signed. Huckle v. The London County Council (1910), 4 B. W. C. C. 113. An illiterate and ignorant workman gave a cumulative re- ceipt for all payments of compensation received by him. This sum included one week in advance, but no other addi- tional payment. It was found, as a fact, that the workman was not recovered at this date, nor at the date of the hearing of the arbitration. The employer applied to record a mem- orandum of agreement of final discharge, and the workman at the same time applied to record one to pay him compensa- 1 From an Article by John H. Greenwood in the Fifty-fifth Quarterly Report of the General Federation of Trade Unions of Great Britain (Mareh; 1913}. COMPROMISING COMPENSATION CLAIMS 943 In general tion. It was held that the " final discharge "was not a genu- ine agreement, and should not be recorded, but that the workman's memorandum should be recorded. Macandrew v. Gilhooley (1911), 48 Scotch L. R. 511; 4 B. W. C. C. 370. A judge refused to record a memorandum of agreement for a lump sum settlement on the ground of inadequacy. The workman then applied for compensation, and the judge, finding that his incapacity was no longer due to the accident and that the amount in fact paid under the settlement was enough to cover all compensation due for the short period during which the incapacity had been due to the accident, decided in favor of the employers. The Court of Appeal held that the judge was entitled to decide the application for compensation freely on the evidence and was not bound by his previous decision to award compensation. Beech v. Bradford Corporation (1911), 4 B. W. C. C. 236. A workman entitled to compensation under the Work- men's Compensation Act of 1906 signed a discharge which purported to be in full satisfaction of all claims, past and future, in the belief that he was merely signing a receipt for compensation past due. The employer's cashier took the discharge in the belief that the workman had fully re- covered, whereas he was still totally incapacitated. Compen- sation was awarded, it being held that the workman was not barred from recovering compensation by the discharge. Ellis v. The Lochgelly Iron and Coal Co. (1909), 46 Scotch L.R.960;2B.W.C.C. 136. Where a claimant signed a release expressing a considera- tion of £35 and it appeared only the sum of £17, 10s. was paid, and the balance was paid as wages, it was held that there was accord but no satisfaction, and that the receipt did not contain a genuine agreement under the Act. Hawkes v. Richard Coles and Sons (1910), 3 B. W. C. C. 163. A compensation agreement between the workman and his employers stated that the workman should receive a 944 Bradbury's workmen's compensation law In general lump sum of money and be given regular employment, as foreman in the works, at specified wages. The employers paid the sum of money and kept the workman in their em- ployment on the terms arranged for nearly three years, when they dismissed him owing to a dispute. The workman thereupon brought an action against them for damages for breach of contract, and it was held that the action could not be maintained as there was no breach of contract, the em- ployers having given the workman regular employment for a considerable period. . Lawrie v. James Brown & Co. (1908), 45 Scotch L. R. 477; 1 B. W. C. C. 137. A seaman sustained serious injuries. He was conveyed to a hospital while unconscious and remained there after his discharge from the ship for fifteen weeks. The shipowners made payments for his maintenance during that period equal to the full weekly compensation for which they were liable. They were not legally liable to make these payments under the Merchant Shipping Act. It was held that such payments were a benefit which the workman received from the employers during the period of his incapacity, and that they must be taken into account in fixing the amount of compensation. Kempson v. Owners of Schooner ' ' Moss Rose ' ' (1910), 4 B. W. C. C. 101. On an application for compensation account must be taken of a lump sum paid by the employer in full settlement. Hors- man v. Glasgow Navigation Co. (1909), 3 B. W. C. C. 27. A workman met with an accident to his head in 1909. Apparently he got perfectly well and returned to his work. Two years later he died from the effects of an operation for abscess on the brain. Upon the dependents claiming com- pensation the employers offered £.10 in settlement. The sum was accepted and the money paid into Court. The Registrar refused to record the memorandum of agreement inasmuch as two of the children were minors, and on appeal to the Court of Appeal it was held that the sum offered was inadequate and the memorandum was properly refused. COMPROMISING COMPENSATION CLAIMS 945 California Johnson v. Oceanic Steam Navigation Co. (1912), 5 B. W. C. C. 322. ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA The parties may settle the question of compensation by written agreement. § 25. CALIFORNIA 1 The parties may settle their differences by agreement but such agreement is not valid unless it provides for full com- pensation in accordance with the provisions of the Act and is also approved by the Industrial Commission. § 33. 1 Applicant was injured while working for the California Stevedore & Ballast Company. He fractured a rib and injured his side. He worked for a short time after the accident, but was forced to seek medical atten- tion. Applicant asked for compensation and was taken to task for not reporting the injury sooner. The statement was made that the Insurance Company would be interviewed to see what could be done. The result was an offer of $10 in order to secure a release. Applicant claimed addi- tional compensation, and defendants resisted on the ground that a release had been given. Held by the majority of the Board that the release was binding and that no further compensation was due. A dissenting opinion was filed by one member of the Board on the ground that applicant was unaccustomed to legal proceedings, that he was a foreigner and at a de- cided disadvantage in a transaction such as the one under discussion, that his rights had not been explained to him and that the Act clearly states that the contending parties have the right "to compromise and settle upon such terms as they may agree upon, any liability which may be claimed to exist under this act on account of such injury or death." Nelson v. California Stevedore and Belfast Co. & Pacific Coast Casually Co., Cal. Indus. Ace. Bd. (opinion by Commissioners Pillsbury and Morrison; Commissioner French dissented). Applicant injured right eye. He had received compensation and had been furnished with hospital and medical attention, and employer re- quired a release from all further liability as a condition precedent to pay- ing $28.20 to applicant. It was decided that this release was a receipt and applicant was awarded $28.14 additional compensation. Cianti v. ML Whitney Power and Electric Co., Cal. Indus. Ace. Bd., Feb. 7, 1913. 60 946 bradbury's workmen's compensation law Maryland CONNECTICUT Agreements relating to compensation must be approved by a Commissioner before they are valid. Part B, § 22. ILLINOIS Any agreement relating to compensation made within seven days after the injury shall be presumed to be fraudu- lent. § 22. No provision of the Act in relation to the amount of compensation can be waived except by the approval of the Industrial Board. § 23. IOWA Any agreement relating to compensation made within twelve days after the injury is presumed to be fraudulent. Part I, § 19. No employe or beneficiary has power to waive any provision of the Act as to the amount of compensation. Part I, § 18. Agreements as to compensation must be filed with the Industrial Commissioner and unless he disapproves the same within twenty days the agreement stands approved. Part II, § 26. KANSAS The amount of compensation may be settled by agreement § 23. This agreement must be in writing. § 27. It shall be filed in the office of the District Court in the county in which the accident occurred within sixty days after it is made; otherwise it is void as to the workman. § 28. MARYLAND All controversies are settled by agreement between the parties, and if they cannot agree, by arbitration. § 13. COMPROMISING COMPENSATION CLAIMS 947 Nevada MASSACHUSETTS Questions relating to compensation are settled by agree- ment, but this agreement is not binding until it is filed with and approved by the Industrial Accident Board. Part III, §4. MICHIGAN The parties may agree upon the compensation to be paid, but the agreement is not binding until it is approved by the Industrial Accident Board. Part III, § 5. MINNESOTA The parties may settle all matters of compensation be- tween themselves, but the amounts must be substantially those provided by the Compensation Act and must be ap- proved by a judge of the District Court. § 22. NEBRASKA The interested parties shall have the right to settle all matters of compensation between themselves in accordance with the provisions of the Act. § 36. In case of non-resident alien dependents the consular officer or his representative residing in the State of Nebraska shall have, in behalf of such non-resident dependents, the right to adjust and settle all claims for compensation and to receive for distribution among such non-resident alien dependents all compensation arising under the Act. § 22 (5). NEVADA All claims for compensation against the State Insurance fund are determined by the Nevada Industrial Commission. 948 bradbury's workmen's compensation law New Jersey NEW HAMPSHIRE There is no prohibition against compromising claims i:i the New Hampshire Act. Nor is there any power of revision vested in any person when an employer and his employe agree upon a basis of compensation. In fact the statute plainly contemplates such agreements and provides a remedy only when an agreement is not reached. § 9. NEW JERSEY » Questions relating to compensation are settled by agree- ment between the parties. § 2, subd. 18. No agreement between the parties for a lesser sum than that which may be 1 A workman was employed to assist in loading and unloading wagons and also to assist in and about "the care of the wagons. He was requested by his employer to grease a wheel of one of the wagons. While complying with this request and standing in front of the employer's store the wagon on which he was engaged was struck by a truck driven by the employe" of a third person, and received injuries which disabled him for ten weeks. Subsequently he made a claim against the employer owning the truck and that claim was settled. He then made a claim against his immediate employer for compensation. It was held that the injury arose out of the employment and also that the settlement with a third person did not bar the claim for compensation. Perlsburg v. MuUer, Essex Common Pleas, 35 N.J. Law J. 202. The ends of two fingers of a workman had been removed and compensa- tion was paid for a certain length of time, after which the insurance com- pany took a general release from the workman who was a foreigner and did not understand the English language although he could write his name and did sign the general release. It appeared that the workman was entitled to greater benefits under the provisions for specific amounts in case of permanent partial disability. It was held that the release had been secured without the workman understanding that it was a release, and therefore was not binding on him, but the court did not determine the question of whether or not the release would have been good had there been no fraud or misunderstanding. Pabiss v. Newark Spring Mattress Co., Essex Common Pleas, Feb. 1913 ; 36 N. J. Law J. 114. COMPROMISING COMPENSATION CLAIMS 949 Oregon determined by the judge of the Court of Common Pleas to be due shall operate as a bar to the determination of a con- troversy on the merits, or to the award of a larger sum if it shall be determined by said judge that the amount agreed upon is less than the injured employ^ or his dependents are entitled to receive. § 2, subd. 20. The procedure in relation to this matter in New Jersey is somewhat anomalous. While the parties are allowed to agree as to the amount of com- pensation and these agreements are not subject to direct revision or approval, nevertheless, if they provide for a sum other than the amount specified in the statute the employe or dependent may thereafter bring a proceeding for compen- sation and the agreement will not be a bar to such a proceed- ing. NEW YORK There is no such thing as an agreement relation to compen- sation under the New York Act. In each case the amount due must be determined by the Commission. The workman makes his claim to the Commission and the Commisssion hears the case and fixes the amount of compensation. § 20. OHIO All questions relating to compensation payable out of the State fund are determined by the Industrial Commission. Where an employer decides to carry his own insurance and does not join the State fund it would seem that power was given to the employer and the employ^ to determine the amount due by agreement. §§ 1465-68, § 21 of the Act of 1913; §§ 1465-69, § 22 of the Act of 1913; and §§ 1465-72, § 25 of the Act of 1913. OREGON Claims against the State Insurance fund are determined by the Industrial Accident Commission. 950 bradbury's workmen s compensation law Wisconsin RHODE ISLAND The parties may agree upon the compensation to be paid, but the agreement must be approved by a justice of the Superior Court. Art. Ill, § 1. * TEXAS Agreements as to compensation may be made between the parties themselves. Part II, § 5. WASHINGTON Claims against the State Insurance fund are determined by the Industrial Accident Commission. WEST VIRGINIA Claims against the State Insurance fund are determined by the Public Service Commission. WISCONSIN The parties may settle claims in relation to compensa- tion, but all such agreements may be reviewed, set aside, modified or affirmed by the Industrial Commission upon application made within one year from the time the agree- ment is accepted. §§ 2394-15. CHAPTER XXI COMMUTATION OF CLAIMS AND AWARDS » Page ARTICLE A — Specific Provisions of Various Statutes 951 Page Arizona 951 Nevada 954 California 952 New Hampshire 955 Connecticut 952 New Jersey 955 Illinois 952 New York 955 Iowa 953 Ohio 956 Kansas 953 Oregon 956 Maryland 953 Rhode Island 956 Massachusetts 953 Texas 956 Michigan 954 Washington 956 Minnesota 954 West Virginia 957 Nebraska 954 Wisconsin 957 ARTICLE A— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA The court may order the amount of compensation paid in one lump sum. § 75. 1 Most of the statutes contain specific provisions relating to present lump-sum payments in full settlement of any claim for compensation. Each statute must be consulted. The decisions below will be found useful in applying the principles underlying such lump-sum payments. In arriving at a lump-sum to be paid the court should not take the actual value of the compensation based on the man's age and his ex- pectancy of life, but upon a business footing as between employer and employe\ Grant & Aldcroft v. Conroy (1904) , 6 W. C. C. 153. A workman in receipt of maximum compensation of 17s. 3d. per week, agreed with his employers to receive the sum of £175 to redeem the liability. The judge refused to allow the agreement to be registered, but this decision was overruled on appeal and the agreement was ordered to be 951 952 bradbuey's workmen's compensation law Illinois CALIFORNIA Commutation of the entire amount of compensation may be ordered by the Commission when it is determined to be for the best interests of either party. § 23. Or all future payments may be ordered to be deposited in a savings bank or trust company. § 23. CONNECTICUT All future payments may be commuted in a single lump sum by order of the Commissioner. Part B, § 28. ILLINOIS All future payments may be commuted to a lump sum by order of the Industrial Board. § 9. Any employer may be relieved of further liability by depositing the value of future payments in accordance with the direction of the Industrial Board. § 25. recorded. O'Neill v. The Anglo-American Oil Co. (1909), 2 B. W. C. C. 434. A workman sustained injuries in the course of his employment, whereby he lost his arm. The employer paid compensation for six months and then applied to have the payments redeemed by payment of a lump sum. The arbitrator, without inquiring as to the workman's capacity for work, fixed the amount of the lump-sum on the basis of permanent incapacity, and it was held on appeal that the arbitrator had not exceeded his jurisdiction. National Telephone Co. v. Smith (1909), 46 Scotch L. R. 988; 2 B. W. C. C. 417. Where the employers' right to redeem part of the payment of a lump- sum is absolute under the statute, the Judge to whom the application is made should provide for investing the sum for the benefit of the workman where, in his opinion, it would not be for the benefit of the workman to have so large a sum paid to him at once. Kendall & Gent v. Pennington (1912),5B.W.C.C335. COMMUTATION OF CLAIMS AND AWARDS 953 Massachusetts IOWA All future payments may be commuted to a lump sum by order of any judge of the District Court for the county in which the accident occurred. § 15. KANSAS The amount of all future payments may be commuted to a lump sum in death cases. § 14. Where payments have been continued for not less than six months all future payments may be commuted to one lump by agreement of the parties, or by application to a judge of the District Court. § 33. MARYLAND The question of whether or not the amount is to be paid in a lump sum or in weekly payments depends upon the original contract in relation to compensation, which the employer is authorized to make under the Act. § 5 (c). MASSACHUSETTS 1 Whenever any weekly payment has been continued for not less than six months the remainder of the compensation may, in unusual cases, be redeemed by the payment of a lump sum subject to the approval of the Industrial Accident Board. Part III, § 22. 1 The Board has ruled that it has no authority to approve the payment of compensation in a lump-sum in any case where the weekly payment has been continued for not less than six months and that only in unusual cases may the payment of a lump-sum be made after six months in lieu of weekly payments. Bulletin No. 2, Mass. Ind. Ace. Bd., Jan. 1913, p. 12. The right of a widow to compensation is entirely separate from that of her husband and the signing of a release at common law by him prior to his death does not operate to deprive her of her claim for compensation under the Massachusetts Act. Cripps v. Aetna Life Ins. Co., Mass. Indus. Ace. Bd., (Appeal pending to Supreme Judicial Court). 954 bbadbury's workmen's compensation law Nevada MICHIGAN Whenever any weekly payment has been continued for not less than six months the balance of the compensation may be redeemed by payment of a lump sum by agreement of the Industrial Accident Board, and in certain cases the Board may di?ect that all deferred payments be commuted to the present worth thereof. Part II, § 22. MINNESOTA Future payments may be commuted to a lump sum by agreement of the parties, approved by the court, except that compensation due for death or permanent total disability or for permanent partial disability, resulting from the loss of an arm, or a hand, or a foot, or a leg, or an eye, can be commuted only with the consent of the District Court. Part II, § 25. The employer may deposit the entire amount due with a trustee and thereby be discharged of any further liability. Part II, § 28. NEBRASKA All future payments may be commuted to one lump sum by agreement of the parties except compensation due for death and permanent disability which may be commuted only with the consent of the District Court. Part II, § 40. The employer may pay the entire amount of any future com- pensation payments to a trustee who may be discharged under certain circumstances. Part II, § 43. NEVADA All future payments may be commuted to a lump sum by order of the Industrial Commission. § 31. COMMUTATION OF CLAIMS AND AWARDS 955 New York NEW HAMPSHIRE The court may grant an order for the payment of a lump sum either on the application of the workman or the em- ployer. § 9. NEW JERSEY 1 All future payments may be commuted by an order of the Court of Common Pleas, but such commutation is not favored. § 2, subd. 21. A sum equal to future payments may be deposited by leave of court and the employer there- after relieved of liability. § 2, subd. 21 (a). NEW YORK Future payments may be commuted and paid into the State Insurance fund for the benefit of employes or depen- dents. § 27. 1 In commuting the amount payable the judge should not merely multi- ply the weekly payment by the number of weeks for which compensation is allowed, but should determine the present value of the weekly payments for the period specified in the statute. James A. Banistar v. Krigh, 36 N. J. Law J. 307; 85 Atl. Rep. 1027. A direction by the Court of Common Pleas that the weekly payments be commuted to a lump-sum, pursuant to paragraph 21 of the New Jersey Workmen's Compensation Act, should be based on specific findings of fact, supported by legal evidence. New York Ship Building Company v. Buchanan, 000 N. J. Law 000; 87 Atl. Rep. 86. A decision commuting payments to a lump-sum under the New Jersey Workmen's Compensation Act should contain the basis of the award in amount per week and number of weeks. Long v. Bergen County Court of Common Pleas, 000 N. J. Law 000; 86 Atl. Rep. 529. A workman who had lost the sight of an eye made a request that the compensation be commuted to a lump-sum for the purpose of buying a cigar, fruit and candy store. It did not appear from the testimony that the workman knew anything about the business or its value and his request for a commutation was based entirely upon the information received from others. Under such circumstances the court refused to make the order for commutation. Dikovich v. American Steel and Wire Co., 36 N. J. Law J. 304. 956 bradbury's workmen's compensation law Washington OHIO The Commission "under special circumstances, and when the same is deemed advisable, may commute periodical benefits to one or more lump sum payments." §§ 1465-87; § 40 of the Acts of 1913. While the above provision was intended originally to apply to the State Insurance Fund, apparently it applies to payments from employers who decide to carry theii own insurance as well. OREGON Where a beneficiary resides out of the State and has been such non-resident for a period of one year the Commis- sion may commute all future payments to a lump sum. §21 (k). RHODE ISLAND If payments have been continued for not less than six months either party may apply to a Superior Court for an order commuting future payments to a lump sum. Art. 2. §25. TEXAS In cases where death or total permanent disability re- sults the future payments may be commuted to a lump sum subject to the approval of the Industrial Accident Board. Part II, § 15. WASHINGTON In case of non-resident beneficiaries, the department may commute the amount due to a lump sum. § 5 (j). The department may in any case of death or total disability commute future payments to a lump sum. § 7. COMMUTATION OF CLAIMS AND AWARDS 957 Wisconsin WEST VIRGINIA The Commission under special circumstances, when the same is deemed advisable, may commute periodical pay- ments to one or more lump payments. § 41. WISCONSIN » At any time after six months have elapsed from the date of the injury the Industrial Commission may commute future payments to a lump sum. §§ 2394-9 (5) (e). 1 The husband of the applicant was employed as a track laborer on an electric railway. He fell from a hand car and was killed. He left a widow and five children. The average earnings of the deceased for the preceding year amounted to $642.83. The employer did not deny liability. The applicant asked to have the entire compensation paid in a lump-sum as she desired to return to Italy. The Commission ruled that the sum of $300 be paid to the applicant within ten days and that the sum of $48 per month thereafter be paid until the sum of $2,571.32 was paid. In a mem- orandum the Commission recognized the desire of the applicant to return to her former home in Italy and agreed that she could live more cheaply there than she could in the United States, as was argued- For that reason a part of the award was directed to be paid in a lump-sum. Anna Lesandro v. Milwaukee Electric By. & Light Co., Wis. Indus. Com., Dec. 13, 1912. CHAPTER XXII INSURANCE OF COMPENSATION * Page ARTICLE A— Introduction 958 Page 1. Character and necessity or such insurance .... 958 ARTICLE B — Specific Provisions of Various Statutes 962 Page Arizona 962 Nevada 980 California 962 New Hampshire -, 980 Connecticut 965 New Jersey 980 Illinois 966 New York 980 Iowa - 969 Ohio 983 Kansas 972 Oregon 984 Maryland 972 Rhode Island 984 Massachusetts 973 Texas 984 Michigan 974 Washington 985 Minnesota 976 West Virginia 985 Nebraska 978 Wisconsin 986 ARTICLE A— INTRODUCTION 1. Character and necessity of such insurance. Under liability insurance policies it has heretofore been a rule of almost universal application that there could be no 1 Under the British Columbia Compensation Act it was held that a workman could not recover from a liability insurance company which had issued a policy to his employer who subsequently became insolvent. Disourdi v. Sullivan Group Mining Co. and Another (1910), 15 B. C. R. 305;4B.W.C.C462. An injured workman was paid compensation by a company which be- came insolvent and was wound up. The company was insured against accidents under the Act and on the company ceasing to pay compensation the workman brought proceedings against the insurers. The insurers 958 INSURANCE OF COMPENSATION 959 Character and necessity of such insurance direct recovery by a workman, or the representatives of a deceased employ^, against the insurance company. Such policies have been purely indemnity contracts in favor of employers. It was specifically provided therein that no suit would lie thereon except to recover money actually paid by the assured, on a judgment, after a trial of the issues. Most of such policies still so provide, in all cases except in those States where by statute the companies are required to assume a direct liability to those who are injured. When, therefore, an employer becomes insolvent, or bankrupt, and cannot pay a judgment against him, rendered because of the injury or death of an employe^ the insurance company has entirely escaped liability. The companies have universally and still do take advantage of such a situation wherever possible. They take the position that they have made no contract with the employe' and they are therefore under no obligation to pay him anything. By making it a condition precedent that the employer must actually pay the money before it is liable the insurance company escapes payment. alleged that there was a dispute between them and the workman's em- ployers as to whether the latter had taken precautions against accidents, as required by the policy, and that until this dispute had been settled by arbitration, in accordance with the terms of the policy, the employers could not claim against them and that the workman had no greater rights than his employers had. The contention of the insurers was upheld by the County Court judge and this decision was affirmed by the Court of Appeal. King v. Phoenix Assurance Co. (1910), 3 B. W. C. C. 442. There must be an admission of liability on the part of the insurer, or a finding by a competent tribunal, before the provisions of § 6 of the British Columbia Workmen's Compensation Act of 1902, as to the payment into court, can be invoked. Disowdi v. Sullivan Group Mining Company and Maryland Casualty Co. (No. 2) (1909), 14 B. C. R. 256; 2 B. W. C. C. 508. In the Supreme Court of British Columbia it was held that any right which the applicant for compensation might have against the employers under § 6 of the British Columbia Compensation Act must be decided in an action commenced in the ordinary way and that the rules made under § 6 were ultra vires. Disourdi v. Sullivan Group Mining Co. and Maryland Casualty Co. (No. 3), 14 B. C. R. 273; 2 B. W. C. C. 514. 960 Bradbury's workmen's compensation law Character and necessity of such insurance In many of the States the compensation acts require the companies to issue policies giving a direct remedy to em- ployes. It is obvious, from the wording of some of the statutes, that the various legislatures have not fully under- stood this subject. They have, in some instances, given to the employes the same right to recover against the insur- ance company that the employer has. Of course, this inade- quately protects the rights of the employed If they go a little further and say that the employe 1 shall have the same right to recover against the insurer that the employer would have had if he had paid the compensation to the employe^ this will be better. But even this is not entirely satisfac- tory, where the policy contains a provision that the insurer shall be liable only upon payment by the employer of a judg- ment entered after a trial of the issues. Because the employe 1 may still find himself enmeshed in a net of technicalities by the requirement that the liabilty of the insurer must be predicated upon a judgment after a trial. Such a provi- sion might be appropriate in common law, or so called em- ployers' liability cases, as distinguished from workmen's compensation controversies, but it is utterly unfitted for the latter, in which periodical payments are the rule. The necessity of some form of insurance in compensation cases is obvious. Under the old rule a judgment for the full amount could be enforced at once when the case finally went to judgment. In compensation cases the payments are distributed over a long period of time, not infrequently for ten or fifteen years. A good many employers become insolvent every year. Unless insured in some way the result would be that while compensation payments were awarded they would be uncollectible, in many cases, after a certain number of payments had been made. Dependents of work- men who had been killed, as well as injured workmen them- selves, would therefore find themselves without redress if there was not some method of securing the payment of such benefits. This has been recognized in all of the more recent INSURANCE OF COMPENSATION 961 Character and necessity of such insurance laws and is becoming a fixed policy in most of the American States. Up to this time four methods of insuring such payments have been devised. One is to compel the employer to demon- strate that he is of sufficient financial ability to insure such payments himself. This rule would apply to large corpora- tions, such as railroads, where even if they should go into •the hands of a receiver the preference in favor of such claims would be sufficient to insure their payment in most cases. The other is to compel the employer to take insurance either in a stock company or in a mutual association or in a State insurance fund. These problems are comparatively new and are now being worked out in a number of States, espe- cially New York, Massachusetts, Michigan, California, Ohio, Washington and Connecticut. The old employers' insurance policies were invariably limited in amount. That is, it was specified that the com- pany should not be liable for a sum in excess of $5,000 by reason of the injury to or death of one employe 1 , and not more than $10,000 because of any one accident in which two or more employes were injured or killed. Of course, these amounts were sometimes increased. For example, policies were written with limitations of $10,000 and $20,000. Poli- cies were also written with an initial limitation of $10,000 and a second limitation of from $25,000 to $100,000. Such policies are still so written, even in the compensation States, unless the law itself requires them to be unlimited. The first law to require the companies to write unlimited policies was that of Massachusetts. That has been followed by similar laws in a number of other States, notably New York, Michigan, Connecticut, California and Texas. In New Jer- sey the employers are not required to insure and the policies which have been written in that State have usually been limited in amount and have been in the form of the old employers' liability policies without right on the part of employes to sue the companies direct. 61 962 bradbuky's workmen's compensation law California The specific provisions of the various statutes on this subject will be found in Article B of this Chapter. ARTICLE B— SPECIFIC PROVISIONS OF VARIOUS STATUTES ARIZONA There is no provision on this subject in the Arizona Act. * CALIFORNIA 1 "§ 34. (a) Nothing in this act shall affect the organization of any mutual or other insurance company, or any existing contract for insurance or the right of the employer to insure in mutual or other companies, in whole or in part, against liability for the compensation provided for by this act; or, to provide by mutual or other insurance, or by arrangement with his employe's, or otherwise, for the payment to such em- ployes, their families, dependents or representatives, of sick, accident or death benefits, in addition to the compensation provided for by this act. "(6) Liability for compensation shall not be reduced or affected by any insurance, contribution, or other benefit what- soever due to or received by the person entitled to such com- pensation, except as otherwise provided by this act, and the person so entitled shall, irrespective of any insurance or other contract, except as otherwise provided in this act, have the right to recover such compensation directly from the employer, and in addition thereto, the right to enforce in his own name, in the manner provided in this act, either by making the insur- 1 Cancellation of Insurance Policy after accident; bankruptcy of em- ployer. Applicant was injured while in the employ of the Locke Construc- tion Company, which company subsequently had business difficulties and its compensation policy was cancelled by the Southwestern Surety In- surance Company. Held that applicant was entitled to recover from the insurance carrier, according to the law of 1911, inasmuch as, at the time of the accident, insurance was in force. The sum of $59. 1 1 was awarded appli- cant, in addition to $48.75 which had previously been paid. Cunningham v. Locke Construction Co. and Southwestern Surety Ins. Co., Cal. Indus. Ace. Bd. INSURANCE OF COMPENSATION 963 California ance carrier a party to the original application or by filing a separate application, the liability of any insurance carrier, which may, in whole or in part, have insured against liability for such compensation; provided, however, that payment in whole or in part of such compensation by either the employer or the insurance company shall, to the extent thereof, be a bar to recovery against the other of the amount so paid; and pro- vided, further, that as between the employer and the insurance company, payment by either directly to the employ^, or to the person entitled to compensation, shall be subject to the conditions of the insurance contract between them. " (c) Every contract insuring against liability for compen- sation, or insurance policy evidencing the same, must contain a clause to the effect that the insurance carrier shall be directly and primarily liable to the employe" and, in the event of his death, to his dependents, to pay the compensation, if any, for which the employer is liable; that, as between the employe" and the insurance carrier, the notice to or knowledge of the occur- rence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the insurance carrier; that jurisdiction of the employer shall, for the purpose of this act, be jurisdiction of the insurance carrier and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards ren- dered against the employer under the provisions of this act. " (d) Such policy must also provide that the employ6 shall have a first lien upon any amount which shall become owing on account of such policy to the employer from the insurance carrier and that in case of the legal incapacity or inability of the employer to receive the said amount and pay it over to the employe or his dependents, the said insurance carrier may and shall pay the same directly to the said employe" or his dependents, thereby discharging to the extent of such pay- ment the obligations of the employer to the employe^ and such policy shall not contain any provisions relieving the insurance carrier from payment when the employer becomes insolvent or is discharged in bankruptcy, or otherwise, during the period that the policy is in operation or the compensation remains owing. 964 bradbury's workmen's compensation law California "(e) 1. If the employer shall be insured against liability for compensation with any insurance carrier, and if after the hap- pening of any accident such insurance carrier shall serve or cause to be served upon any person claiming compensation against such employer a notice that it has assumed and agreed to pay the compensation, if any, for which the employer is liable, and shall file a copy of such notice with the Commission, such employer shall thereupon be relieved from liability for compensation to such claimant and the insurance carrier shall, without notice, be substituted in place of the employer in any proceeding theretofore or thereafter instituted by such person to recover such compensation, and the employer shall be dis- missed therefrom. Such proceeding shall not abate on account of such substitution but shall be continued against such insur- ance carrier. "2. If at the time of the happening of an accident for which compensation is claimed, or may be claimed, the employer shall be insured against liability for the full amount of com- pensation payable, or that may become payable, the employer may serve or cause to be served upon any person claiming compensation on account of the happening of such accident and upon the insurance carrier a notice that the insurance carrier has, in its policy contract or otherwise, assumed and agreed to pay the compensation, if any, for which the employer is liable, and may file a copy of such notice with the commis- sion. If it shall thereafter appear to the satisfaction of the commission that the insurance carrier has, through the is- suance of its contract of insurance or otherwise, assumed such liability for compensation, such employer shall thereupon be relieved from liability for compensation to such claimant and the insurance carrier shall, after notice, be substituted in place of the employer in any proceeding theretofore or thereafter instituted by such person to recover such compensation, and the employer shall be dismissed therefrom. Such proceeding shall not abate on account of such substitution, but shall be continued against such insurance carrier. "(f) Where any employer is insured against liability for compensation with any insurance carrier and such insurance carrier shall have paid any compensation for which the INSURANCE OF COMPENSATION 965 Connecticut employer was liable, or shall have assumed the liability of the employer therefor, it shall be subrogated to all the rights and duties of the employer and may enforce any such rights in its own name. " § 35. (a) If any insurance policy shall be issued cover- ing liability for compensation, which policy shall contain any limitation as to the compensation payable, such limitation shall be printed in the body of such policy in boldface type and in addition thereto the words 'limited compensation policy' shall be printed on the top of the policy in bold-faced type not less than eighteen point in size. " (b) No insurance carrier shall insure against the liability of the employer for damages recoverable at law by the injured employe under the optional provisions contained in section twelve hereof, and any insurance carrier liable to any such injured employe for compensation upon the payment of the same shall have the same option given by said section twelve to such employe and shall be fully subrogated to his rights, and may enforce such liability for damages against the employer in its own name, anything in the insurance contract to the contrary notwithstanding." Public corporations can only insure in the State Insurance Fund "unless such fund shall refuse to accept the risk." §46. CONNECTICUT "PartB. §30. Insurance of Compensation Liability. Every employer subject to part B who shall not furnish to the com- missioner satisfactory proof of his solvency and financial ability to pay directly to injured employes or other beneficia- ries the compensation provided by this act, shall insure his full liability under part B in one or both the following ways : (1) By filing with the insurance commissioner in form acceptable to him security guaranteeing the performance of the obligations of this act by said employer; or, (2) by insuring his full liability under part B of this act in such stock or mutual companies or associations as are or may be authorized to take such risks in 966 Bradbury's workmen's compensation law Illinois this state, or by such combination of the above-mentioned two methods as he may choose, subject to the approval of the insurance commissioner. 1 "§ 31. Requirements in Insurance Policies. Every policy insuring the payment of compensations under this act shall contain a clause to the effect that as between the employe" and the insurer notice and knowledge of the occurrence of injury by the insured shall be deemed notice and knowledge by the insurer, that jurisdiction of the insured for the purposes of this act shall be jurisdiction of the insurer, and that the in- surer shall in all things be bound by and subject to the find- ings, judgments, and awards rendered against such insured. " § 32. Requirements in Insurance Policies. No policy of insurance against liability under part B of this act, except as provided in section thirty, shall be made unless the same shall cover the entire liability of the employer thereunder and shall contain an agreement by the insurer that, in case the insured . shall become insolvent or be discharged in bankruptcy during the period that the policy is in operation, or the compensation, or any part of it, is due and unpaid, or in case an execution upon a judgment for compensation is returned unsatisfied, an injured employe^ or other person entitled to compensation under this act, may enforce his claim to compensation against the insurer to the same extent that the insured could have en- forced his claim against such insurer had he paid compensa- tion." ILLINOIS "■§ 26. (a) An employer who elects to provide and pay the compensation provided for in this Act shall within ten (10) days of receipt by the employer of a written demand by the industrial board (1) file with the board a sworn statement showing his financial ability to pay the compensation provided for in this Act, normally required to be paid, or (2) furnish security, indemnity or a bond guaranteeing the payment by the employer of the compensation provided for in this Act, normally required to be paid, or (3) insure to a reasonable 1 See Part B, § 42, for penalty for failure to comply with this section. INSURANCE OF COMPENSATION 967 Illinois amount his normal liability to pay such compensation in some corporation, association or organization authorized, licensed or permitted to do such insurance business in this State, or ' (4) make some other provision for the securing of the payment of compensation provided for in this Act, nprmally required to be paid, and shall within twenty (20) days of the receipt of such written demand furnish to the board evidence of his compliance with one of the above alternatives: Provided, that the sworn statement of financial ability, or security, indemnity or bond, or amount of insurance or other provision, filed, fur- nished, carried or made by the employer, as the case may be, shall be subject to the approval of the board, upon the ap- proval of which the board shall send to the employer written notice of its approval thereof: And, provided, further, that demand shall not be made upon the employer by the board oftener than once in any calendar year. "(6) If no sworn statement or no security, indemnity or bond, or no insurance is filed, furnished or carried, or other provision made by the employer within ten (10) days of receipt by the employer of the written demand provided for in para- graph (a), or if the statement, security, indemnity, bond or amount of insurance filed, furnished or carried, or other pro- vision made by the employer, as provided in paragraph (a), shall not be approved by the board, and written notice of such non-approval shall be given to the employer and the employer shall not comply with one of the alternatives of paragraph (a) of this section within ten (10) days after the receipt by the employer of such written notice of non-approval, then the em- ployer shall be liable for compensation to any injured employe" or his personal representative; according to the terms of this Act, or for damages in the same manner as if the employer had elected not to accept this Act, at the option of such em- ploye" or his personal representative: Provided, such option is exercised and written notice thereof is given to the employer within thirty (30) days after the accident to such employ^, otherwise the employer shall be liable only for the compensa- tion payable according to the provisions of this Act: And, provided, further, that if at any time thereafter the employer shall comply with any of the alternatives of paragraph (a), 968 bradbuby's workmen's compensation law Illinois then as to all accidents occurring after the said compliance, the employer shall only be liable for compensation according to the terms of this Act. "(c) 'Normal liability' and 'normally required to be paid,' whenever used herein, shall be measured by the ex- perience, if any, of the said employer during the two years preceding ths demand by the board, and if there is no such individual basis of experience, then by the general experience in the same industry, business, occupation or enterprise in the same neighborhood during the same period. " § 27. (a) This Act shall not affect or disturb the continu- ance of any existing insurance, mutual aid, benefit, or relief association or department, whether maintained in whole or in part by the employer or whether maintained by the em- ployes, the payment of benefits of such association or depart- ment being guaranteed by the employer or by some person, firm or corporation for him: Provided, the employer contributes to such association or department an amount not less than the full compensation herein provided, exclusive of the cost of the maintenance of such association or department and with- out any expense to the employe 1 . This Act shall not prevent the organization and maintaining under the insurance laws of this State of any benefit or insurance company for the pur- pose of insuring against the compensation provided for in this Act, the expense of which is maintained by the employer. This Act shall not prevent the organization or maintaining under the insurance laws of this State of any voluntary mu- tual aid, benefit or relief association among employes for the payment of additional accident or sick benefits. " (b) No existing insurance, mutual aid, benefit or relief as- sociation or department shall, by reason of anything herein contained, be authorized to discontinue its operation without first discharging its obligations to any and all persons carrying .insurance in the same or entitled to relief or benefits therein. " (c) Any contract, oral, written or implied, of employment providing for relief benefit, or insurance or any other device whereby the employe" is required to pay any premium or pre- miums for insurance against the compensation provided for in this Act shall be null and void, and any employer withhold- INSURANCE OF COMPENSATION 969 Iowa ing from the wages of any employe any amount for the pur- pose of paying any such premium shall be guilty of a misde- meanor and punishable by a fine of not less than ten dollars nor more than one thousand dollars, or imprisonment in the county jail for not more than six months, or both, in the dis- cretion of the court." " § 28. Any person, who shall become entitled to compensa- tion under the provisions of this Act, shall, in the event of his inability to recover such compensation from the employer on account of his insolvency, be subrogated to all the rights of such employer against any insurance company, association or insurer which may have insured such employer against loss growing out of the compensation required by the provisions of this Act to be paid by such employer, and, in such event only, the said insurance company, association, or insurer shall become primarily liable to pay to the employe" or his personal representative the compensation required by the provisions of this Act to be paid by such employer." IOWA "Part III. § 42. Every employer, subject to the provisions of this act, shall insure his liability thereunder in some cor- poration, association or organization approved by the state department of insurance. Every such employer shall within thirty (30) days after this act goes into effect exhibit on de- mand of the state insurance department evidence of his com- pliance with this section. And if such employer refuses, or neglects to comply with this section, he shall be liable in case of injury to any workman in his employ under part one (1) of this act. "§ 43. For the purpose of complying with the foregoing section, groups of employers by themselves or in an associa- tion with any or all of their workmen, may form insurance associations as hereafter provided, subject to such reasonable conditions and restrictions as may be fixed by the state insur- ance department and membership in such mutual insurance organization as approved, together with evidence of the pay- 970 Bradbury's workmen's compensation law Iowa ment of premiums due, shall be evidence of compliance with the preceding section. " § 44. Subject to the approval of the Iowa Industrial Com- missioner any employer or group of employers may enter into or continue an agreement with his or their workmen to provide a scheme of compensation, benefit or insurance in lieu of the compensate and insurance provided by this act; but such scheme shall in no instance provide less than the benefits here secured, nor vary the period of compensation provided for disability or for death, or the provisions of this act with re- spect to periodic payments, or the percentage that such pay- ments shall bear to weekly wages, except that the sums re- quired may be increased; Provided, further, that the approval of the Iowa Industrial Commissioner shall be granted, if the scheme provides for contribution by workmen, only when it confers benefits in addition to those required by this act com- mensurate with such contributions. " § 45. Whenever such scheme or plan is approved by the Iowa Industrial Commissioner, he shall issue a certificate to that effect, whereupon it shall be legal for such employer, or group of employers, to contract with any or all of his or their workmen to substitute such scheme or plan for the provisions of this act during a period of time fixed by said department. " § 46. Such scheme or plan may be terminated by the Iowa Industrial Commissioner on reasonable notice to the interested parties if it shall appear that the same is not fairly adminis- tered, or if its operation shall disclose latent defects threaten- ing its solvency, or if for any substantial reason it fails to accomplish the purpose of this act; but from any such order of said Iowa Industrial Commissioner the parties affected, whether employer or workman, may, upon the giving of proper bond to protect the interests involved appeal for equitable relief to the district court of this state. "§47. No insurer of any obligation under this act shall either by himself or through another, either directly or indi- rectly, charge or accept as a commission or compensation for placing or renewing any insurance under this act more than fifteen (15) per cent of the premium charged. "§48. Every policy issued by any insurance corporation, INSUBANCE OF COMPENSATION 971 Iowa association or organization to assure the payment of com- pensation under this act shall contain a clause providing that between any employer and the insurer, notice to, and knowl- edge of the occurrence of injury or death on the part of the insured shall be notice and knowledge on the part of the in- surer; and jurisdiction of the insured for the purpose of this act shall be jurisdiction of the insurer and the insurer shall be bound by every agreement, adjudgment, award or judg- ment rendered against the insured. " § 49. No policy of insurance issued under this act shall contain any provision relieving the insurer from payment if the insured becomes insolvent or discharged in bankruptcy during the period that the policy is in operation, or the com- pensation, or any part of it, is due and unpaid. Every policy shall provide that the workman shall have a first lien upon any amount becoming due on account of such policy to the insured from the insurer, and that in case of the legal incapac- ity, inability or disability of the insured to receive the amount due and pay it over to the insured workman, or his depend- ents, said insurer shall pay the same directly to such work- man, his agent, or to a trustee for him or his dependents, to the extent of discharging any obligation of the insured to said workman or his dependents. " § 50. Where an employer coming under this act furnishes proofs to the insurance department satisfactory to the insur- ance department and Iowa Industrial Commissioner, of such employer's solvency and financial ability to pay the compen- sation and benefits as by this act provided, and to make such payment to the parties, when entitled thereto, or when such employer deposits with such insurance department security satisfactory to such insurance department and the Iowa In- dustrial Commissioner as will secure the payment of such compensation, such employer shall be relieved of the provi- sion of section forty-two (42) of this act. Provided that such employer shall from time to time, as may be required by such insurance department and Iowa Industrial Commis- sioner, furnish such additional proof of solvency and financial ability to pay as by this section of this act provided. The in- surance department and Iowa Industrial Commissioner may, 972 bradbury's workmen's compensation law Maryland at any time, upon reasonable notice to such employer and upon hearing, revoke for cause any order or approval theretofore made, as by this act provided and within the contemplation of this section." KANSAS " § 30. Staying -proceedings upon agreement or award. At any time after the filing of an agreement or award and before judgment has been granted thereon, the employer may stay proceedings thereon by filing in the office of the clerk of the district court wherein such agreement or award is filed: (a) A proper certificate of a qualified insurance company that the amount of the compensation to the workman is insured by it: (b) A proper bond undertaking to secure the payment of the compensation. Such certificate or bond shall first be approved by a judge of the said district court." " § 34. Insurance. Where the payment of compensation to the workman is insured, by a policy or policies, at the ex- pense of the employer, the insurer shall be subrogated to the rights and duties under this act of the employer, so far as ap- propriate." MARYLAND The employer is required to insure compensation by effect- ing the same in some casualty insurance company authorized to do business in the State of Maryland, or he may, if he employs not less than 1,500 employers, establish an insur- ance fund which is contributed to by his employes and him- self, or he may request the insurance Commissioner to act as a depositary of an insurance fund. § 2. The contract may provide that the employer shall con- tribute not less than fifty per cent of the insurance premiums and the employe shall contribute the remainder of the pre- miums. § 6. In case the employer provides any insurance fund out of contributions made by himself and his own employes such employers shall pay the whole of the expenses of the manage- INSURANCE OF COMPENSATION 973 Massachusetts ment of such fund, and all contributions shall be paid into such fund without any deductions by reason of such expenses. §6. The contract may provide that the premium paid by the employes shall be deducted from their wages. § 8. MASSACHUSETTS The only way in which an employer can adopt the com- pensation principle in Massachusetts is by becdming a "subscriber." Part I, §5; Part V, §2. This means that the employer has become a member of the Massachusetts Employe's' Insurance Association by paying a year's pre- mium in advance and receiving the receipt of the Association therefor or has secured a policy in a liability insurance company authorized to do business in the State of Massa- chusetts. Part V, §§ 2 and 3. The Massachusetts Employes ' Insurance Association is a mutual insurance organization created by the compensation act. Originally the directors for the purpose of organization were appointed by the Governor. As soon as the Association was organized the directors were elected from the employers who became members of the Association and thereafter it became purely a private mutual insurance association, under public super- vision, the same as other insurance corporations. "Part V, § 3. Any liability insurance company authorized to do business within this Commonwealth shall have the same right as the association to insure the liability to pay the com- pensation provided for by Part II of this act, and when such liability company issues a policy conditioned to pay such com- pensation the holder of such policy shall be regarded as a sub- scriber so far as applicable within the meaning of this act, and when any such company insures such payment of com- pensation it shall be subject to the provisions of Parts I, II, III and V and of section twenty-two of Part IV of this act, and shall file with the Insurance Department its classifications 974 bradbuby's workmen's compensation law Michigan of risks and premiums relating thereto and any subsequent proposed classifications or premiums, none of which shall take effect until the Insurance Commissioner has approved the same as adequate for the risks to which they respectively apply." (As amended by L. 1912, c. 571.) Rule No. 5 Insurance Association and Companies to Notify Industrial Accident Board of Employers Who Insure or Cease to Insure That ihe insurance association and all liability insurance com- panies shall notify the Industrial Accident Board of the names and addresses of all employers who insure their liability under the Work- men's Compensation Act, notice to be given forthwith upon the issuance of such insurance and a further notice to be given when employers cease to be so insured. MICHIGAN In order to adopt the compensation principle in Michigan an employer must at the same time provide for the insur- ance of the compensation claims in the methods specified in the Act. Part IV, § 1. He must file a statement to the effect that he elects to adopt the compensation principle. Part I, § 6. As part of the same transaction he designates the method of payment or otherwise of insurance of such claims. Part IV, § 1 below. "Part IV, § 1. Every employer filing his election to become subject to the provisions of this act, as hereinbefore set forth, shall have the right to specify at the time of doing so, subject to the approval of said industrial accident board, which of the following methods for the payment of such compensation he desires to adopt, to-wit: "First. Upon furnishing satisfactory proof to said board of his solvency and financial ability to pay the compensation and benefits hereinbefore provided for, to make such payments directly to his employes, as they may become entitled to INSURANCE OF COMPENSATION 975 Michigan receive the same under the terms and conditions of this act; or " Second. To insure against such liability in any employers' liability company authorized to take such risks in the State of Michigan; or "Third. To insure against such liability in any employers' insurance association organized under the laws of the State of Michigan; or "Fourth. To request the commissioner of insurance of the State of Michigan to assume the administration of the dis- bursement of such compensation exclusive of that provided for in part two, section four herein, and the collection of the premiums and assessments necessary to pay the same, as pro- vided in part five hereof. Said board, however, shall have the right, from time to time to review and alter its decision in ap- proving the election of such employer to adopt any one of the foregoing methods of payment, if in its judgment such action is necessary or desirable to secure and safeguard such payments to employes. " § 2. Nothing herein shall affect any existing contract for employers' liability insurance or affect the organization of any mutual or other insurance company, or any arrangement now existing between employers and employes, providing for the payment to such employes, their families, dependents or representatives, sick, accident or death benefits, in addition to the compensation provided for by this act. But liability for compensation under this act shall not be reduced or af- fected by any insurance, contribution or other benefit what- soever, due to or received by the person entitled to such com- pensation, and the person so entitled shall, irrespective of any insurance or other contract, have the right to recover the same directly from the employer; and in addition thereto, the right to enforce in his own name in the manner provided in this act the liability of any insurance company or of any em- ployers' association organized under the laws of the State of Michigan, or the commissioner of insurance, who may, in whole or in part, have insured the liability for such compensa- tion: Provided, however, That payment in whole or in part of such compensation by either the employer, or the insurance 976 bradbury's workmen's compensation law Minnesota company carrying such risk, or the commissioner of insurance, as the case may be, shall ; to the extent thereof be a bar to recovery against the other, of the amount so paid. "§3. Every contract for the insurance of the compensa- tion herein provided for, or against liability therefor, shall be deemed to be made subject to the provisions of this act, and ■ provisions thereof inconsistent with this act shall be void. No company shall enter into any such contract for insurance, unless such company shall have been approved by the com- missioner of insurance as provided by law." MINNESOTA 1 "Part II, § 31a. Any employer who is responsible for com- pensation as provided in this act may insure the risk in any manner then authorized by law. But those writing such in- surance shall in every case be subject to the conditions in this section hereinafter named. " If the risk of the employer is carried by any insurer doing business for profit, or by any insurance association or corpora- tion formed of employers, or of employers and workmen, to insure the risks under this act, operating by the mutual assess- ment or other plan or otherwise, then in so far as policies are issued on such risks they shall provide for compensation for 1 "An employer subject to the provisions of the Workmen's Compensa- tion Act may insure himself against liability to pay compensation to a part of his employes and not others'. He may insure a part of his employes in one company and others in other companies or not at all. If the em- ployer insures only a part of his employes and gives the notice provided for in paragraph 7 of § 31a of said Act, he must use appropriate language in the notice to clearly indicate which of his employes are covered by in- surance. "The insurer cannot limit its liability under either Parts I or II of the Workmen's Compensation Act but must assume the full obligations imposed upon the employer by 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 writing employer's liability insurance. It follows that policies of insurance may not be written which eliminate the medical attention feature specified in § 18 of the Act." /. A. 0. Preus, Commissioner of Insurance, Jan. 12, 1914. INSURANCE OF COMPENSATION 977 Minnesota injuries or death according to the full benefits of Part II of this act. "Such policies shall contain a clause to the effect that as between the workman and the insurer, that notice to and knowledge by the employer of the occurrence of the injury shall be deemed notice and knowledge on the part of the in- surer; that jurisdiction of the employer for arbitration or other purposes shall be jurisdiction of the insurer, and that the in- surer will in all things be bound by and subject to the awards rendered against such employer upon the risks so insured. "Such policies must provide that the workman shall have an equitable lien upon any amount which shall become owing on account of such policy to the employer from the insurer and in case of the legal incapacity or inability of the employer to receive the said amount and pay it over to the workman or dependents, the said insurer will pay the same direct to said workman or dependents, thereby discharging all obligations under the policy to the employer and all of the obligations of the employer and insurer to the workman; but such policies shall contain no provisions relieving the insurance company from payment when the employer becomes insolvent or dis- charged in bankruptcy or otherwise, during the period the policy is in force, if the compensation remains owing. " The insurer must be one authorized by law to conduct such business in the State of Minnesota, and authority is hereby granted to all insurance companies writing such insurance to include in their policies in addition to the requirements now provided by law the additional requirements, terms and con- ditions in this section provided. "It shall be lawful for the employer and the workman to agree to carry the risks covered by Part II of this act in con- junction 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 pre- vent its validity if the employer pays not less than the cost of the insurance of the risks otherwise covered by Part II of this act, and the workman gets the whole of the additional com- pensation or benefits. 62 978 bradbtjky's workmen's compensation law Nebraska "If the employer shall insure to his employes the payment of the compensations provided by Part II of this act, in a cor- poration or association authorized to do business in the State of Minnesota and approved by the insurance commissioner of the State of Minnesota, and if the employer shall post a notice or notices in a conspicuous place' or in conspicuous places about his place of employment, stating that he is so insured and stat- ing by whom insured, and if the employer shall further file copy of such notice with the labor commissioner of the State of Minnesota, then, and in such case, any suits or actions brought by an injured employe" or his dependents shall be brought directly against the insurer, and the employer or in- sured shall be released from any further liability. "Provided that in case of insolvency or bankruptcy of such insurance company the employer shall not be released from liability under the provisions of this act. "The return of any execution upon any judgment of an em- ploye" against any such insurance company unsatisfied in whole or in part, shall be conclusive evidence of the insolvency of such insurance company and in case of the adjudication of bankruptcy or insolvency of any such insurance company by any court of competent jurisdiction, proceedings may be brought by the employe" against the employer in the first in- stance or against , such employer and insurance company jointly or severally or in any pending proceeding against any insurance company, the employer may be joined at any time after such adjudication." NEBRASKA "Part II, § 46. (Insurance.) An employer who is liable for compensation as provided in this Act may insure the liability to pay such compensation in any liability insurance company or companies licensed to write such risks in the State of Nebraska, or in any mutual insurance association authorized under the laws of the State of Nebraska to assume such risks. " § 47. (Insurance policies.) No policy of insurance against liability under this Act shall be made unless the same shall cover the entire liability of the employer thereunder and INSURANCE OF COMPENSATION • 979 Nebraska shall contain an agreement by the insurer that, in case the em- ployer shall be or become insolvent, or in case an execution upon a judgment for compensation is returned unsatisfied, an employe of such employer or the dependents of a deceased employe who shall be entitled to compensation under this Act may enforce their claim or claims to compensation against the insurer to the same extent that the employer could have en- forced his claim against such insurer had he paid compensa- tion. No suit shall be maintained for the collection of pre- miums upon any such policy of insurance, unless such covenant is contained in said policy. Such covenant shall be unaffected by any default of the insured in the payment of premiums and shall be construed to be a direct promise to such injured employe and dependents, and shall be enforceable by action brought in the name of such injured employe' or in the names of such dependents. Every contract for the insurance of the compensation herein provided for, or against liability there- for, shall be deemed to be made subject to the provisions of this Act, and provisions thereof inconsistent with this Act shall be void. No company or association shall enter into any such contract for insurance unless such insurance shall have been approved by the State Insurance Commissioner as provided by law. " § 48. (Existing liability insurance contracts.) Nothing herein shall affect any existing contract for employers' liability insurance, or affect the organization of any mutual or other insurance company, or any arrangement now existing be- tween employers and employes, providing for the payment to such employes, their families, dependents or representatives, sick, accident or death benefits in addition to the compensa- tion provided for by this Act; but liability for compensation under this Act shall not be reduced or affected by any insur- ance of the injured employe, or any contribution or other benefit whatsoever, due to or received by the person entitled to such compensation, and the person so entitled shall, irre- spective of any insurance or other contract, have the right to recover the same directly from the employer, and in addition thereto, the right to enforce in his own name in the manner provided in section 47 the liability of any insurer who may, 980 bradbury's workmen's compensation law New York in whole or in part, have insured the liability for such compen- sation; Provided, however, that payment in whole or in part of such compensation by either the employer, or the insurer, as the case may be, shall, to the extent thereof, be a bar to recovery against the other, of the amount so paid." NEVADA * The only way in which an employer can adopt the com- pensation principle in Nevada is by making contributions to the State Insurance fund. NEW HAMPSHIRE Any employer to take advantage of the provisions of the Act, must either satisfy the Commissioner of Labor that he is of sufficient financial ability to comply with the Act, or must file a bond "in such form and amount as the commis- sioner may prescribe. " This bond may be enforced by the Commissioner of Labor, "for the benefit of all persons to whom such employer may become liable under this Act in the same manner as probate bonds are enforced. " § 3. NEW JERSEY There is no provision in the New Jersey Act on this sub- ject. NEW YORK Employers of workmen specified in § 2 of the Act are brought within its terms by compulsion and are subject to the compensation features of the Act whether they insure or not. They are required, however, to insure and a penalty is inflicted for failure to do so. This penalty is a double one. A failure to insure gives the employ^ the right to elect, after the accident, whether he will claim compensation or common law damages, and if he claims damages the employer is not permitted in such a suit to set up the ordinary common INSURANCE OF COMPENSATION 981 New York law defenses. §§11 and 52. Besides this, the employer is liable to a penalty during his failure to insure of one dollar for every employed § 50. The provisions of the Act relating to insurance will be found below. "§50. Security for payment of compensation. An em- ployer shall secure compensation to his employed in one of the following ways: "1. By insuring and keeping insured the payment of such compensation in the state fund, or "2. By insuring and keeping insured the payment of such compensation with any stock corporation or mutual associa- tion authorized to transact the business of workmen's com- pensation insurance in this State. If insurance be so effected in such a corporation or mutual association the employer shall forthwith file with the commission, in form prescribed by it, a notice specifying the name of such insurance corporation or mutual association together with a copy of the contract or policy of insurance. "3. By furnishing satisfactory proof to the commission of his financial ability to pay such compensation for himself, in which case the commission may, in its discretion, require the deposit with the commission of securities of the kind prescribed in section thirteen of the insurance law, in an amount to be determined by the commission, to secure his liability to pay the compensation provided in this chapter. "If an employer fail to comply with this section, he shall be liable to a penalty during which such failure continues an amount equal to the pro rata premium which would have been payable for insurance in the State fund for such period of non-compliance, to be recovered in an action brought by the commission. "The commission may, in its discretion, for good cause shown, remit any such penalty, provided the employer in default secure compensation as provided in this section. "§51. Posting of notice regarding compensation. Every employer who has complied with section fifty of this chapter shall post and maintain in a conspicuous place or places in and about his place or places of business typewritten or printed notices in form prescribed by the commission, stating the fact that he has complied with all the rules and regulations of 982 Bradbury's workmen's compensation law New York the commission and that he has secured the payment of com- pensation to his employes and their dependents in accordance with the provisions of this chapter. "§52. Effect of failure to secure compensation. Failure to secure the payment of compensation shall have the effect of enabling the injured employe' or his dependents to maintain an action foe damages in the courts, as prescribed by section eleven of this chapter. " § 53. Release from all liability. An employer securing the payment of compensation by contributing premiums to the state fund shall thereby become relieved from all liability for personal injuries or death sustained by his employes, and the persons entitled to compensation under this chapter shall have recourse therefor only to the state fund and not to the em- ployer. An employer shall not otherwise be relieved from the liability for compensation prescribed by this chapter except by the payment thereof by himself or his insurance carrier. "§ 54. The insurance contract. 1. Right of recourse to the insurance carrier. Every policy of insurance covering the liability of the employer for compensation issued by a stock company or by a mutual association authorized to transact workmen's compensation insurance in this state shall contain a provision setting forth the right of the commission to enforce in the name of the people of the State of New York for the benefit of the person entitled to the compensation insured by the policy either by filing a separate application or by making the insurance carrier a party to the original application, the liability of the insurance carrier in whole or in part for the payment of such compensation; provided, however, that pay- ment in whole or in part of such compensation by either the employer or the insurance carrier shall to the extent thereof be a bar to the recovery against the other of the amount so paid. "2. Knowledge and jurisdiction of the employer extended to cover the insurance carrier. Every such policy shall contain a provision that, as between the employe and the insurance carrier, the notice to or knowledge of the occurrence of the injury on the part of the employer shall be deemed notice or knowledge, as the case may be, on the part of the insurance INSURANCE OF COMPENSATION 983 Ohio carrier; that jurisdiction of the employer shall, for the purpose of this chapter, be jurisdiction of the insurance carrier and that the insurance carrier shall in all things be bound by and subject to the orders, findings, decisions or awards rendered against the employer for the payment of compensation under the provisions of this chapter. "3. Insolvency of employer does not release the insurance carrier. Every such policy shall contain a provision to the effect that the insolvency or bankruptcy of the employer shall not relieve the insurance carrier from the payment of com- pensation for injuries or death sustained by an employe during the life of such policy. "4. Limitation of indemnity agreements. Every contract or agreement of an employer the purpose of which is to in- demnify him from loss or damage on account of the injury of an employe by accidental means, or on account of the negli- gence of such employer or his officer, agent or servant, shall be absolutely void unless it shall also cover liability for the pay- ment of the compensation provided for by this chapter. "5. Cancellation of insurance contracts. No contract of insurance issued by a stock company or mutual association against liability arising under this chapter shall be cancelled within the time limited in such contract for its expiration until at least ten days after notice of intention to cancel such con- tract, on a date specified in such notice, shall be filed in the office of the commission and also served on the employer. Such notice shall be served on the employer by delivering it to him or by sending it by mail, by registered letter, addressed to the employer at his or its last known place of residence; provided that, if the employer be a partnership, then such notice may be so given to any one of the partners, and if the employer be a corporation, then the notice may be given to any agent or officer of the corporation upon whom legal process may be served." OHIO Employers may either go into the State Fund or, in cer- tain cases, by approval of the Industrial Commission, may 984 bbadbuey's workmen's compensation law Texas carry their own insurance. If they decide to carry their own insurance they must give a bond, but this is not an insur- ance contract. They may insure if they so desire, in addi- tion to giving the bond, but they are not required to do so. OREGON The only manner in which employers can adopt the com- pensation principle is by making contributions to the State insurance fund. RHODE ISLAND There is no provision in the Act on this subject. TEXAS The only manner in which the employer can adopt the compensation principle is by becoming a "subscriber." This means that he must take a policy in the Texas Em- ployers' Insurance Association, which is created under the Act (see Part III), or take a policy in a liability insurance company authorized to do business in the State of Texas. Part IV, § 2. "Part IV, § 2. Any insurance company, which term shall include mutual and reciprocal insurance companies lawfully transacting a liability or accident business within this State, shall have the same right to insure the liability to pay the compensation, provided for by Part I of this Act, and when such company issues a policy conditioned to pay such com- pensation the holder of such policy shall be regarded as a sub- scriber so far as applicable under this Act; and when such company insures such payment of compensation it shall be subject to the provisions of Parts I, II and IV of sec- tions 10, 17 and 21 of Part III of this Act, and shall file with the Commissioner of Banking and Insurance its classifica- tion of premiums none of which shall take effect until the Commissioner of Banking and Insurance has approved same INSURANCE OF COMPENSATION 985" West Virginia as adequate to the risks to which they respectively apply and not greater than charged by the association, and such company may have and exercise all of the rights and powers, conferred by this Act on the Association created hereby but such rights and powers shall not be exercised by a mutual or reciprocal organization unless such organization has at least fifty sub- scribers, who have not less than two thousand employes." " § 3. Any subscriber who has paid his annual premium as provided in section 1, Part IV of this Act, but who ceases to be an employer after three months and before the expiration of one year, may by satisfactory proof of such fact made to the Industrial Accident Board as herein created, be entitled to a refund of such portion of the annual premium so paid by him as the portion of the year in which he is not an employer bears to the whole year; provided, that in no event shall more than three-fourths of the annual premium by any subscriber who claims the benefit of this refund, ever be refunded. " WASHINGTON The only method by which an employer can adopt the compensation principle is by paying premiums into the State insurance fund. WEST VIRGINIA The only way in which employers can adopt the com- pensation principle is by paying premiums into the State insurance fund. " § 54. If deemed best by it the commission may insure in any liability insurance company, or companies, authorized to do business in West Virginia, all or any part or class of, or one or more individual risks of, the liabilities of the workmen's compensation fund for any year or series of years, and apply so much as may be necessary of the premiums collected for such year or years toward the payment of the premiums for such insurance." 986 bkadbury's workmen's compensation law Wisconsin WISCONSIN "§ 2394-24. 1. The whole claim for compensation for the injury or death of any employe or any award or judgment, thereon, shall be entitled to a preference over the unsecured debts of the^employer hereafter contracted, but this section shall not impair the lien of any judgment entered upon any award. " 2. An employer liable under this act to pay compensation shall insure payment * of such compensation in some company authorized to insure such liability in this state unless such em- ployer shall be exempted from such insurance by the indus- trial commission. An employer desiring to be exempt from in- suring his liability for compensation shall make application to the industrial commission showing his financial ability to pay such compensation, whereupon the commission by written order may make such exemption. The commission may from time to time require further statement of financial ability of such employer to pay compensation and may upon ten days' notice in writing, revoke its order granting such exemption, in which case such employer shall immediately insure his liability. "3. An employer who shall fail to comply with the provi- sions of subsection 2 of sections 2394-24 shall be guilty of a misdemeanor and upon conviction thereof shall forfeit twenty- five dollars for each offense. Each day's failure shall be a sep- arate offense. Upon complaint of the commission, such for- feitures may be collected by the state in an action in debt. "§2394-26. Nothing in sections 2394-3 to 2394-31, in- clusive, shall affect the organization of any mutual or other in- surance company, or any existing contract for insurance of 'The Wisconsin Industrial Commission holds that insurance policies under this section must be for an unlimited amount, except in special cases where a limited sum, in the case of small employers, is deemed suffi- cient to cover the catastrophe hazard. In each case of a limited policy there must be a special approval of the Commission. In such cases also the employer is required to qualify, from a financial stand point, to carry the excess over the limit of the policy. INSURANCE OF COMPENSATION 987 Wisconsin employers' liability, nor the right of the employer to insure in mutual or other companies, in whole or in part, against such liability, or against the liability for the compensation provided for by sections 2394-3 to 2394-31, inclusive, or to provide by mutual or other insurance, or by arrangement with his em- ploye's, or otherwise, for the payment to such employes, their families, dependents or representatives, of sick, accident or death benefits in addition to the compensation provided for by sections 2394-3 to 2394-31, inclusive. But liability for compensation under sections 2394-3 to 2394-31, inclusive, 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, and the person so entitled shall, irrespective of any insurance or other contract, have the right to recover the same directly from the employer; and in addi- tion thereto, the right to enforce in his own name, in the man- ner provided in sections 2394-3 to 2394-31, inclusive, the lia- bility of any insurance company which may, in whole or in part, have insured the liability for such compensation; pro- vided, however, that payment in whole or in part of such com- pensation by either the employer or the insurance company, shall, to the extent thereof, be a bar to recovery against the other of the amount so paid, and provided, further, that as between the employer and the insurance company, payment by either directly to the employe^ or to the person entitled to compensation, shall be subject to the conditions of the insur- ance contract between them. "§2394-27. 1. Every contract for the insurance of the compensation herein provided for, or against liability therefor, shall be deemed to be made subject to the "provisions of sec- tions 2394-3 to 2394-31, inclusive, and provisions thereof in- consistent with sections 2394-3 to 2394-31, inclusive, shall be void. No company shall enter into any such contract of in- surance unless such company shall have been approved by the commissioner of insurance, as provided by law. For the purposes of sections 2394-3 to 2394-31, inclusive, each em- ploye shall constitute a separate risk within the meaning of section 1898d of the statutes; provided, that at least five em- ployers shall join in the organization of a mutual company 988 bradbury's workmen's compensation law Wisconsin under subdivision (5) of section 1897 and no such company organized by employers shall be licensed or authorized to effect such insurance unless such company shall have in force or put in force simultaneously, insurance on at least one thousand five hundred separate risks. "2. The industrial commission, by itself or its employed, may examine from time to time the books and records of any liability insurance company insuring liability or compensation for an employer in this state. Any such company that shall refuse or fail to allow the industrial commission to examine its books and records or to file the report required by subsection 3 of section 2394-27, shall have its license to do business in the state revoked. " 3. Every company transacting the business of compensa- tion insurance, in addition to all other reports required by law to be made, shall, on or before the first day of March in each year, on blanks furnished for such purpose, make and file with the industrial commission an annual statement of its business and accident experience covering the year ending on the preceding thirty-first day of December. "4. Every insurance company, including any inter-insurer or other insurer authorized to do business within this state and insuring the liability of employers for compensation as herein provided, shall file with the industrial commission its classi- fications of risks and rates of premium relating thereto, and any changes in or additions to such classifications or rates of premium. No such company shall issue in this state any policy insuring against such liability for compensation except upon the classifications and rates of premiums so filed with the in- dustrial commission. No such company shall discriminate between insured having risks in the same class and degree of hazard by the granting of any rebate or deduction in such rate of premium, or by any change of classification for the purpose of granting such deduction, or in any other manner. Any such company or agent violating any provision of this section shall be subject tb the penalties provided by section 1955o. Upon the filing of any complaint with the commissioner of insurance alleging any violation of this section, proceedings shall be had thereon as provided for violations of section l955o. INSUBANCE OF COMPENSATION 989 Wisconsin " § 2394-28. Any employer against whom liability may exist for compensation under sections 2394-3 to 2394-31, inclusive, may, with the approval of the industrial commission, be relieved therefrom by: " (1) Depositing the present value of the total unpaid com- pensation for which such liability exists, assuming interest at three per cent per annum, with such trust company of this state as shall be designated by the employe" (or by his depend- ents, in case of his death, and such liability exists in their favor), or in default of such designation by him (or them) after ten days' notice in writing from the employer, with such trust company of this state as shall be designated by the commis- sion; or " (2) By the purchase of an annuity, within the limitations provided by law, in any insurance company granting annuities and licensed in this state, which may be designated by the employ^, or his dependents, or the commission, as provided in subdivision (1) of section 2394-28." CHAPTER XXIII FEDERAL COMPENSATION ACT » Page ARTICLE A — Classified Decisions of Department under Act . 991 Page 1. 991 16 2. Hazardous emploi- ments 991 3. Not hazardous employ- 17, ments 992 4. What is an arsenal 993 18. 5. What is employment in 19. A NAVY YARD 993 6. Construction op forti- fication work 993 20. 7. Construction work in THE RECLAMATION OF 21. ARID LANDS 994 8. What is a manufactur- 22. ing ESTABLISHMENT. . . 994 9. What is not a manufac- turing ESTABLISHMENT 996 23. 10. Employe of manufac- TURING ESTABLISH- 24. MENT WORKING ELSE- 25. 996 26. 11. ArTISANS OR LABORERS ONLY COVERED BY ACT . 997 27. 12. Nature of work, not 28. TITLE, FIXES STATUS OF 29. 997 13. Who is an artisan or 998 30. 14. Who is not an artisan OR LABORER? 999 1001 31 15. Piece workers 32. Services and employ- ments without the ACT 1001 Independent contrac- tor 1003 Employe of contractor 1003 "Injury shall continue for more than fif- teen days" 1003 Negligence or miscon- duct 1004 Acts not negligent; compensation granted 1010 Acts held to be negli- gent; compensation refused 1024 Contributing cause of disability 1030 Injury, definition of. . 1031 Injury means disability 1031 Injuries before act passed 1032 Ability to resume work 1032 Successive claims 1033 Computing year during which compensation is payable 1033 Wages as basis of com- pensation 1034 Dependents 1035 Filing claim 1042 1 Applicable to certain government employes only. 990 FEDERAL COMPENSATION ACT 991 Hazardous employments Page Page 33. Resignation of employe 35. Physician's ceetificate 1048 after injury 1046 36. administration 1048 34. Medical examination. 1047 ARTICLE B— Text of Federal Acts 1049 ARTICLE A— CLASSIFIED DECISIONS OF DEPARTMENT UNDER ACT 1. Introduction. This Act applies to certain employes of the Government, specified in § 1 of the original Act of May 30, 1908, the appli- cation of the Act being somewhat extended by the supple- mented Acts of March 4, 1911, March 11, 1912 and July 27, 1912, all of which are printed in full in Article B. Many of the questions raised under the Federal Act are peculiar to that statute. They are discussed in the pages which follow. The questions of what is an "injury" or an "accidental injury" and when it arises out of the employment are im- portant under all compensation Acts. Those questions there- fore have been discussed in relation to the Federal Act in Chapter VI where these subjects are treated generally. 2. Hazardous employments. The following have been held to have been engaged in hazardous employments: A laborer with a gang at work clearing ground, using a machete in cutting trees. Re Elias Pedez, Op. Sol. Dep. C. & L., p. 135. A machine printer operating a roller press. Re Allen Rawlins, Id., p. 133. A time inspector required to attend men occupied in actual construction work of Isthmian Canal. Re E. H. Van Sittert, Id., p. 132. A plumber and tinner working on roofs and stacks. Re Joseph Thennard, Id., p. 131. A water boy serving water to men employed in actual 992 bradbtjry's workmen's compensation law Not hazardous employments construction work of Isthmian Canal. Re Adolphus Garsia, Id., p. 130. An ambulance teamster, in the Canal Zone. Re Samuel Thompson, Id., p. 129. A hospital orderly in attendance upon persons violently insane. Re David Small, Id., p. 128. A policeman employed in the Isthmian Canal Zone. Re J. P. Golden, M., p. 122. A machine attendant at the ice plant of the Roosevelt Dam in the Reclamation Service. Re. C. H. Riggs, Id., p. 119. A ditch rider, required to ride at night and discover and attend to breaks in a canal. Re Frank Redburn, Id., p. 118. 3. Not hazardous employments. The following have been held not to have been engaged in hazardous employments: A storeroom clerk. Re Dudley Inniss, Op. Sol. Dep. C. &. L. p. 123. A laborer employed in a mess hall under the Quarter- master's Department in the Canal Zone. Re Pedro Traviso, Id., p. 124. A cook in a hotel kitchen. Re C. L. Reisinger, Id., p. 124. A cook's helper, working in cooking quarters, in the Re- clamation Service. Re J. F. Jones, Id., p. 120. A janitor rendering services chiefly of a domestic char- acter. Re Alexander Jarvis, Id., p. 137. A scavenger occupied in collecting garbage and hauling it away in carts. Re Henry Gill, Id., p. 134. A cemetery laborer, wheeling stone in a barrow. Re John Carney, Id., p. 136. A laborer employed on a delivery wagon. Re Eloy Pala- cios, Id., p. 126. A scytheman in a grass-cutting gang. Re Jose Migeles, Id., p. 125. FEDERAL COMPENSATION ACT 993 Construction of fortification work A water boy delivering water to grass-cutting gangs. Re Stephen Price, Id., p. 127. A telephone operator. Re William Etienne, Id., p. 126. A hospital attendant performing the manual service usual about a hospital. Re Altman Renwick, Id., p. 136. 4. What is an arsenal. The Military Academy at West Point is not an arsenal. Re Finlay Mackay, Op. Sol. Dep. C. & L., p. 106. Carpenter work on an ice house for Fort Robinson, a mile distant, is not work in an arsenal. Re J. P. Olson, Id., p. 107. 5. What is employment in a navy yard. The Naval Academy at Annapolis, in accordance with the organization and nomenclature of the Navy Department, is a navy yard. Re R. L. Brown, Op. Sol. Dep. C. & L., p. 108. A naval experiment station at Annapolis is a navy yard. Re F. S. Bullard, Id., p. 111. A gardener at a naval training station is an employ^ of a navy yard. Re J. H. Pangburn, Id., p. 109. A navy yard employe, although injured while at work on a naval hospital, outside the yard, is employed in a navy yard . Re Hinton Blount, Id., p. 108. An employe at a naval station, also designated a coaling depot, is employed in a navy yard. Re C. A. Burke, Id., p. 110. A laundress at a naval home which is an asylum for dis- abled naval officers, seamen and marines is not employed in a navy yard. Re Clara Carey, Id., p. 110. 6. Construction of fortification work. An artisan repairing cables in the underground electric system at Fort Adams is engaged in the construction of fortification work, which refers to work authorized by the fortification appropriation acts. Re H. F. Buzby, Op. Sol. Dep. G. & L., p. 112. A machinist working on gun carriages 63 994 bradbury's workmen's compensation law What is a manufacturing establishment at a seacoast fortification, although under the Ordnance Department rather than the Engineer Department, is en- gaged in the construction of fortification work. Re J. B. Moore. Id., p. 114. Fort Meade, S. D., although called a fort, is not a fortifica- tion within the meaning of the Act. Re W. E. Burgess, Op. Sol. Dep. C. & L., p. 116. Nor is Fort Totten. Re C. B. Schenk, Id., p. 118. A military post, called a fort, although unfortified, is not a fortification. Work of maintenance and upkeep of a fort, such as painting, is not work of construction. Re W. E. Burgess, Id., p. 116; Re C. B. Schenk, Id., 118. A laborer under the Army Quartermaster's Department, hauling dirt in grading operations for new buildings, for officers' quarters, is not engaged in the construction of forti- fication work. Re James Ryan, Id., p. 116. An engineer of an ice plant at the military post of Camp Wilhelm, Tayabas, Philippine Islands, is not engaged in construction work of fortification. Re C. E. Cale, Id., p. 113. Carpenter work on an ice house for Fort Robinson, a mile distant, is not done in the construction of fortification work, as the construction of such work does not include the erec- tion of an ice plant. Re J.P.Olson, Id., p. 112. 7. Construction work in the reclamation of arid lands. The construction of a reservoir for storing water for irrigat- ing lands on an Indian reservation is construction work in the reclamation of arid lands. Re W. E. Arnold, Op. Sol. Dep. C. & L., p. 120. So also is work in a quarry to obtain rock for damming the Colorado River to protect a valley and supply water for irrigation. Re J. W. Skill, Id., p. 121 . 8. What is a manufacturing establishment. The following have been held to be manufacturing estab- lishments within the meaning of the Federal Act: The Government Printing Office. Re Edward Blaine, FEDERAL COMPENSATION ACT 995 What is a manufacturing establishment Op. Sol. Dep. C. & L., p. 89; letter of Comptroller Tracewell to the Auditor for the State and other departments, March 18, 1909; Id., p. 625; 15 Comptroller's Decisions, p. 554. The Bureau of Engraving and Printing. Re A. E. Clark, Id., p. 92. A carpenter and machine shop connected with an Indian industrial school at which mission furniture is made. Re F. A. P. Clarke, Id., p. 105. The mechanical plant of the Smithsonian Institution, at which steam power and electric light are generated, and cases, cages and museum furniture are made. Re Albert Strong, Id., p. 104. The mail-bag repair shop of the Post Office Department at which a variety of mail equipment is made. Re M. A. Kennedy, Id., p. 103. An electric light and power plant of an executive depart- ment, at which ice is also made. Re Jacob Pyrah, Id., p. 101. A blacksmith shop, at which bolts, frills and other articles and tools used in irrigation work are made and repaired. Re H. L. Fenton, Id., p. 99. The Jeffersonville Depot, where a number of articles of quartermaster's supplies are manufactured, and a painter, engaged in painting one of the buildings, although not en- gaged in portion of the manufacturing, is entitled to com- pensation when injured, under the terms of the Federal Act. Re George Worthington, Id., p. 98. An Army Quartermaster's depot, at which clothing and tents are made, and an employe 1 of such an establishment is entitled to compensation although not engaged in manufac- turing operations. Re J. V. Nicholas, Id., p. 97. In the last- mentioned case the employe" at the time of the injury was engaged in loading a truck away from the depot at a wharf on the Delaware River. A saw mill at Fort Meade, at which lumber is sawed and dressed and shingles are made. Re Leander Herron, Id., p. 96. A lighthouse depot at which a material portion of the work 990 bradbury's workmen's compensation law Employe 1 of manufacturing establishment working elsewhere consists in the manufacture and repair of materials, appli- ances and vessels. Re G. W. Wygant, Id., p. 90; Re George Bell, Id., p. 92. 9. What is not a manufacturing establishment. , The following have been held not to be manufacturing es- tablishments within the meaning of the Federal Act: An aqueduct and filtration plant, the function of which is to collect, purify and deliver city water. Re J. W. Schlos- ser, Op. Sol. Dep. C. & L., p. 105. A laboratory used only for making tests of materials. Re E. J. Meissner, Id., p. 103. A naval observatory; nor is it an arsenal or navy yard. Re John Lamkin, Id., p. 100. 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. Re John Lambert, Id., p. 94; Re J. A. Veseth, Id., p. 94. The local office of the Weather Bureau at Detroit, al- though a printing press is there operated, Re William H. McAllister, Id., p. 93. A storekeeper-gauger of the Internal-Revenue Service is not employed in a manufacturing establishment. Re S. J. Roberts, Id., p. 99. Hauling and trucking oats from car to dock by a laborer in the Army Quartermaster's Department, is not work in or in connection with a manufacturing establishment. Re J. B. Gray, Id., p. 90. Nor is the driving of piles by an em- ploye" of the Bureau of Fisheries at work about a lobster pound work done in a manufacturing establishment. Re A. H. Feltis, Id., p. 95. 10. Employe of manufacturing establishment working elsewhere. An employe 1 of a manufacturing establishment is entitled to compensation although at work elsewhere at the time of injury. Re I. R. Melting, Op. Sol. Dep. C. & L., p. 101. FEDERAL COMPENSATION ACT 997 Nature of work, not title, fixes status of employ^ . 11. Artisans or laborers only covered by Act. Artisans or laborers only among employes of the United States are covered by the Federal Statute. Re Joseph Little, Op. Sol. Dep. C. & L., p. 66. In the last-mentioned case it was urged that an employ^ of the Government who was engaged in a hazardous employment was entitled to com- pensation even though he was not an artisan or a laborer. This contention, however, was not sustained, it being held that only artisans or laborers employed in certain occupa- tions which could be designated hazardous employments come within the provisions of the Act. 12. Nature of work, not title, fixes status of employe. The nature of the work performed by the employe* and not the title given him in his appointment determines the question of whether or not he comes within the terms of the compensation Act, as an artisan or laborer. Re William G. Crandall, Op. Sol. Dep. C. & L., p. 58. The fact that an employe is designated as a messenger is not material, but his status under the Federal Compensation Act will be deter- mined by his actual duties. Re S. J. Mullins, Id., p. 40; Albert Donaldson, Id., p. 41; re John Jackson, Id., p. 41. An employ^ who is designated as a "general foreman" but whose duties are in reality those of "foreman" in actual charge of laborers at work, is a laborer within the meaning of the Act, and is entitled to compensation. Re J. D. Black, Id., p. 61. A laborer is one who performs manual labor. Ho King, 14 Fed. R. 724. A laborer is one who labors with physical powers and under the direction of another, at fixed wages. Kansas City v. McDonald, 80 Mo. App. 444. A sanitary inspector in the Canal Zone was injured while "inspecting canal cut for mosquito larvae." The question of whether or not he was a laborer was reserved and does not seem to have been subsequently decided. Re I. W. Pickett, Op. Sol. Dep. C. & L., p. 62. 998 bradbury's workmen's compensation law Who is an artisan or laborer 13. Who is an artisan or laborer. The following have been held to be artisans or laborers within the meaning of the Federal Act: A working foreman of laborers. Re Wm. L. Kline, Op. Sol. Dep. C. & L., p. 75. A rigger and diver. Re Fritzihoff Lagerholm, Id., p. 86. % An acting inspector, normally a working foreman of laborers. Re P. J. Keating, Id., p. 73. A time inspector (under special circumstances). Re E. H. Van Sittert, Id., p. 72. An employe who was designated as an inspector, and whose duty consisted of accompanying scows containing dredging material to the dumping grounds at sea, it being necessary for him to board the scows from the tug in the open sea. Re M. T. J. Green, Id., p. 83. An employe, designated an inspector, engaged in marking and passing cross-ties, piling, and lumber, and without any duty of supervision or superintendence. Re S. W. Baker, Jr., Id., p. 82. A rodman with a surveying party, also acting as chainman and axman. Re E. R. Williams, Id., p. 70. An employ^ designated on the pay rolls as a "survey- man," who was engaged in assisting surveyors employed in construction of river and harbor work, whose work consisted of acting as transit man, levelman, chainman and axman. Re C. E. Hott, Id., p. 71. A storeroom clerk in the Canal Zone. Re Dudley Inniss, Id., p. 63. A packer in the Mare Island Navy Yard, who was required to handle and arrange stock in the store room for the purpose of putting all the articles of one kind together and to check and list them. Re William G. Crandall, Id., p. 58. A watchman on a Government dredge engaged in river and harbor work. Re Sam. Peffer, Id., p. 53. A policeman or watchman. Re J. P. Golden, Id., p. 50. FEDERAL COMPENSATION ACT 999 Who is not an artisan or laborer A shipkeeper in the Charlestown Navy Yard. Re B. G. Pedrick, Id., p. 53. A sailor working on a dredge and assisting in dredging work. Re L. T. Zacias, Id., p. 44; Re Marcus Vulicas, Id., p. 45. An employ^ appointed as a special laborer messenger engaged in the work of a laborer or messenger, except when detailed to clerical work. Re Frank Adler, Id., p. 45; s. c. p. 46; s. c. p. 47; s. c. p. 48; decision of the Comptroller of the Treasury, p. 49. A messenger, but who at the time of the injury "was driving a delivery wagon of the Printing Office. Re Albert Donald- son, Id., p. 41. An employe designated a messenger who engaged in work of the laboring class. Re S. J. Mullins, Id., p. 40. In the last-mentioned case the employe was caring for a horse in the stables connected with the arsenal, and the horse kicked him, causing injuries which disabled him for a period of fifteen days. A boy fourteen years of age was employed as a messenger in the construction and engineering department in the Canal Zone and received $30 a month as wages. He operated a telephone and worked as a messenger at a booth located near a junction of a certain dump track of the Canal Com- mission with the Panama Railroad line, and he reported to the dispatcher trains passing that point and delivered to the train crews such orders as were given him by the dispatcher or yardmaster. He was killed in crossing the tracks. It was held that he was an artisan or laborer within the meaning of the Federal Compensation Act and that his mother was entitled to compensation as a dependent. Re John Jackson, Id., p. 41. 14. Who is not an artisan or laborer. The following have been held not to be artisans or laborers within the meaning of the Federal Act: 1000 Bradbury's workmen's compensation law Who is not an artisan or laborer A foreman or superintendent 1 who directs the work of others and. whose work is mental and administrative or executive. Re Joseph Little, Op. Sol. Dep. C. & L., p. 60. A dock master, having the care of a dock and the supervi- sion of the dock force. Re G. W. Trahey, Id., p. 87. A laboratory assistant engaged in making tests of materials in a chemical laboratory. Re William H. Ransom, Id., p. 85. An assistant veterinarian, engaged in treating sick animals, giving medicine and dressing wounds. Re J. R. Brown, Id., p. 85. A surveyor. Re A. H. Shappard, Id., p. 80. A transit man. Re J. M. Grant, Id., p. 76. A pilot on a snag boat. Re J. D. Hays, Id., p. 68. A master or pilot of a steamer used in river and harbor work. Re* A. T. Jones, Id., p. 68. A telegrapher and shipping clerk engaged in work of a clerical nature. Re P. M. Whiteman, Id., p. 66. A concrete inspector engaged in inspecting and directing J The cases generally decide that a superintendent is not a laborer within the meaning of any law, although foremen have been held to be laborers in several cases. Willamette Falls Transp. Co. v. Remick, 1 Oreg. 169; Short v. Medherry, 29 Hun, 39; Flaggstaff Silver Min. Co. v. CvRins, 104 U. S. 176; Capron v. Strout, 11 Nev. 304; Welch v. Ellis, 15 Can., L. T. 148. That a superintendent is not a laborer was held in Mo. etc. R. Co. v. Baker, 14 Kan. 567; Nelson v. Withrow, 14 Mo. App. 270; Boyle v. Min. Co., 9 New Mex. 237; Blakey v. Blakey, 27 Mo. 39; Cole v. McNeil, 99 Ga. 250; Osborne v. Jackson, 11 Q. B. D. 619; Cocking v. Ward, 48 S. W. Rep. 287; Malcomson v. Wappoo Mills, 86 Fed. Rep. 192; Krauser v. Ruckel, 17 Hun, 463. In a few cases it has been held that a superintendent is a laborer. Pendergast v. Yandes, 124 Ind. 159. In the last-mentioned case the decision was made under a statute which preferred debts due to laborers, and it was held that a man employed by a gas company to have the sole superintendence of digging the trenches and laying the pipes, and with full authority to hire and discharge employes, was a laborer. An assistant superintendent has been held to be a laborer. Willamette Falls Trans. Co. v. Remick, 1 Oreg. 169. FEDERAL COMPENSATION ACT 1001 Services and employments without the act the work of others. Re J. C. Cunningham, Id., p. 63; s. c. on reconsideration, but reaching the same conclusion, p. 64. A draftsman whose duties resemble those of a clerk or artist. Re A. F. Reeves, Id., p. 54. A ship draftsman whose duties are to design work and lay the same out for the different tradesmen and inspect the work when it is completed. Re H. L. Meeker, Id., p. 56. A draftsman, who at the time of the injury was at work in a photograph gallery, and at work with a large vertical camera. (To steady the camera stand a pig of lead weighing about 100 lbs. was used, and in adjusting this weight it slipped from its position, falling about two feet and striking the wrist of the claimant, causing severe strains and contu- sions). Re W. G. Moore, Id., p. 56. An employe whose occupation was given as "recorder" and whose duties consisted of "entering in a note book notes of survey work of the party to which he is assigned, reducing soundings, and assisting occasionally in platting notes." Re J. J. Corrigan, Jr., Id., p. 44. A clerk engaged in office work. Re E. V. Alcee, Id., p. 42. A clerk whose duties "consisted of visiting the various sub-offices, work, and items of floating plant, inspecting, counting, and checking all public property." Re T. G. Prioleau, Id., p. 43. A clerk acting as postmaster, who, while going for mail, was struck by a train. Re G. E. La Mire, Id., p. 43. 15. Piece workers. A plate printer in the Bureau of Engraving and Printing, paid by the piece, is an employe of the United States and not a mere contractor. Re A. E. Clark, Op. Sol. Dep. C. & L., p. 34. 16. Services and employments without the Act. The following services and employments have been held to be without the operation of the Federal Act: 1002 bradbuby's workmen's compensation law Services and employments without the Act A carpenter working in improvements to the water-supply system at West Point. Re Finlay Mackay, Op. Sol. Dep. C. & L., p. 138. A rural mail carrier. Re D. H. Morgan, Id., p. 139. A lineman employed by the Signal Corps of the Army. Be A. J. Lawrence, Id., p. 140. An elevator % conductor in a local Federal building. Be James Cassidy, Id., p. 142. An electrician's helper employed in an executive depart- ment at Washington. Be A. W. Fowler, Id., p. 142. A stevedore employed in the Army transport service. Be Michael Hogan, Id., p. 142. A laborer employed in a local customhouse. Be N. C. Washington, Id., p. 143. A pilot in the service of the Quartermaster's Department of the War Department. Be T. C. Pent, I'd., p. 143. A painter employed by an Indian agent at an Indian school. Be Bay Cadwalader, Id., p. 144. A laborer employed in painting at an Army barracks. Be J. A. Posey, Id., p. 145. A launch operator in the Quartermaster's Department of the War Department. Be Joseph Eaton, Id., p. 145. A deck hand on a vessel attached to Governor's Island, N. Y. Re A. J. Cowan, Id., p. 146. A laborer employed at a National park. Be Albert Johnson Id., p. 147. A laborer employed in the construction of a power plant in the Congressional buildings. Be G. H. Smith, Id., p. 148. A powder man employed by the Government Road Com- mission of Alaska. Be M. D. McCormick, Id., p. 148. A laborer employed by the United States in the work of raising the "Maine." Be Manuel Fernandez, Id., p. 149. A seaman on a vessel of the Naval Auxiliary Service. Be Sigurd Evenson, Id., p. 149. A quartermaster on a lighthouse tender. (Law since amended.) Re J. A. Veseth, Id., p. 147. FEDERAL COMPENSATION ACT 1003 "Injury shall continue for more than fifteen days" A seaman employed on a lighthouse tender. (Law since amended.) Re 0. R. Hansen, Id., p. 141. A lighthouse keeper. (Law since amended.) Re Samuel Jewell, Id., p. 144. An employ^ engaged in repairing a lighthouse beacon. (Law since amended.) Re August Michel, Id., p. 139. 17. Independent contractor. 1 The owners of a power boat chartered to the Government and operated by the owner in its service is an independent contractor and is not an employe 1 of the United States. Re John Hanson, Op. Sol. Dep. C. & L., p. 36. 18. Employe of contractor. A workman employed by a Government contractor is not employed by the Government and is not entitled to re- ceive compensation from the Government under the Federal Compensation Act. Re R. Lipscomb, Op. Sol. Dep. C. & L., p. 34. 19. " Injury shall continue for more than fifteen days." Unless the incapacity lasts more than fifteen days com- pensation cannot be allowed. Re W. S. Frates, Op. Sol. Dep. C. & L., p. 416. An injury continues for more than fifteen days if the period of disability lasts for full fifteen days in addition to the day of the injury; the day of injury cannot be disregarded without extending the period limit to sixteen days. Re Seymore Fogg, Id., p. 415. When the days of incapacity, whether consecutive or in broken periods, amount to more than fifteen out, counting intervening Sundays and holidays, the law operates to grant compensation. Re 0. P. Wells, Id., p. 421. Where the accident causing the injury occurred at ten 1 See Chapter 5. 1004 beadbuky's workmen's compensation law Negligence or misconduct o'clock on the morning of December 15th, and the claimant was able to resume work on the morning of December 31st, it was held that the injury continued for more, than fifteen days and that the claimant was entitled to compensation. Re H. A. Thompson, Id., p. 418. Where an injury happened at 3 p. m. on January 4th and the claimant worked on the 5th but was unable to work on the 6th and was away from work from January 6th to January 20th, both days inclusive, it was held that the injury continued for more than fifteen days within the meaning of the Act, and that the claimant was entitled to compensation. Re Elemo Osborne, Id., p. 419. An employ^ who is so injured that he can never resume work on which he was engaged at the time of the injury, but who after fourteen days after incapacity, is able to re- sume work by accepting an assignment to a character of work with which his injury does not materially interfere, and who does so resume work, may receive compensation for the time lost even though it may not amount to more than fifteen days. Re A. D. Davis, Id., p. 422. An employ^ who is physically able to resume work within fifteen days after the injury, but who is prevented from actually resuming work until 18 days thereafter because of holidays or lack of work, is not entitled to compensation. Re Jack Avery, Id., p. 423; Re Alexander Jackson, Id., p. 424. Where a workman is injured and pneumonia supervenes which is not in any way connected with the injury, and by reason thereof he is incapacitated more than fifteen days, he is not entitled to compensation if the injury itself would not have caused him to be incapacitated for fifteen days. Re Joseph Broughton, Id., p. 434. 20. Negligence or misconduct. Under the Federal Act compensation is denied when the injury is caused by the "negligence or misconduct" of the employ^. The rule of "contributing negligence" is not FEDERAL COMPENSATION ACT 1005 Negligence or misconduct applied in all its strictness by the Department under this provision. That is, compensation is not denied for every act which might, under the rules of the commonlaw, be considered contributory negligence. A middle ground, rather, has been chosen, which is somewhat similar to that established under statutes denying compensation for in- juries due to serious and wilful misconduct. It is held that the negligence must be such as to show a voluntary and unnecessary exposure to an obvious danger. Negligence under the Act involves the idea of misconduct or of voluntary and unnecessary exposure to obvious danger. Mere inadvertence or error of judgment under circumstances not suggesting danger is not negligence. Re J. C. Dieselman, Op. Sol. Dep. C. & L., p. 314. In the last-mentioned case the claimant was drilling foot-brackets for a truck and was holding the brackets with his hands, instead of having strap- ped them down. When the drill was going through the stock it pulled the bracket around and caught his hand be- tween the drill frame and the bracket, cutting deep gashes in two fingers of his left hand. It was found that the custom among machinists generally was to strap down such work and all necessary appliances for doing this were available. The strapping down was not a difficult matter and it would have taken but little time. There was no definite rule re- quiring the work to be strapped down while it was being drilled, but it was necessary to do this when the cut to be taken would be so heavy that the operator could not hold the piece with his hands, or where any considerable accuracy was required. In the case in question, the cut was not such as to make it essential that the claimant use the strap. Com- pensation was awarded on the principle stated. A somewhat similar doctrine was announced in another case where the accident was due to the failure of the employe to hold the work, which was being drilled, with a wrench. Be C. B. Ddvis, Id., p. 315. Failure to exercise incessant vigilance in avoiding a known 1006 bradbuby's workmen's compensation law Negligence or misconduct danger is not such negligence as will cause compensation to be refused under the Federal Act. ReA.L. Reiriburg, Id., p. 311. In the last-mentioned case the claimant, in passing from the room in which he had been working, to the lunch room to eat his lunch, stumbled over a waste pipe which was across the passageway and just above the floor, and fell, causing the injury which was the basis of the claim. It was shown that the claimant knew of this pipe and had passed over it many times, as also had many other employes, but never before had he fallen over the pipe, and there was no report that any one else had ever fallen over it. Two employes of the Bureau, who were examined, stated that they had several times stumbled over the pipe. Subse- quently an electric light was placed in the passageway where the pipe crossed. Under the circumstances, it was held that the claimant was entitled to compensation. 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. If he is slower to think or slower to act than another this is not negligence. Re William E. McFadden, Id., p. 309. In the last-mentioned case the claimant was a farrier in the blacksmith shop at the Watertown Arsenal. He was assisting in cutting a heavy iron plate. He was holding one side of the plate and a helper was holding the other side, while a third person was cutting it. As the cut was finished, the helper dropped the part he was holding, and it fell on the claimant's foot, causing the injury. The"* claimant's superior officer expressed the opinion that the accident was due to the negligence of the injured employe as he had ample time to get out of the way. The Solicitor, however, said: "I think it is fair to assume that the claimant endeavored to get out of the way of the falling iron as best he could. If he was slower to think or slower to act than another man would have been under the same circumstances, I do not think this constitutes such negligence as should de- prive him of the benefits of the act." FEDERAL COMPENSATION ACT 1007 Negligence or misconduct Failure to avoid a known danger by a laborer engrossed in his work, who momentarily forgets it, is not negligence, as will cause compensation to be refused. Re H. S. Glass, Id., p. 306. In the last-mentioned case the workman was engaged in constructing a cabin on the hull of a new dredge. He was standing on the deck and with a two by four inch piece of timber, knocking off a plate or stringer nailed to the top of the joists of the cabin, when he stepped back, looking up, and fell into an open, hatchway. The solicitor cited the following cases as sustaining the decision. Kane v. Northern Central Railway, 128 U. S. 91; Snow v. Housatonic R. Co., 8 Allen (Mass.) 441. Artisans are not necessarily negligent because as they become proficient and dexterous they naturally make use of movements more or less mechanical or involuntary, which might be regarded as negligent if it were reasonable to expect men never to relax their vigilance and to be constantly on guard. Re H. L. Robinson, Op. Sol. Dep. C. & L., p. 302. In the last-mentioned case the claimant was a machinist employed in the Naval gun factory at Washington. He was engaged in filing a heavy piece of steel which he had fixed in the grip of a vise. It was necessary to change the position by releasing the grip of the vise adjusting the piece of steel, and again tightening the grip of the vise. The claimant was engaged in changing the position of the piece of steel on which he was working, and it accidently slipped, struck against his wrist, and inflicted a severe cut. The Superintendent of the gun factory stated that the accident was due to the workman's negligence in not properly se- curing the work to prevent slipping between the jaws of the vise. The Solicitor made the ruling above stated. A similar ruling was made in a case where a laborer was employed at a press which was operated by means of a pedal. The employe claimed that the machine "repeated. " Those in charge of the shop contended that the machine could not repeat. The Solicitor in deciding that the man 1008 bradbury's workmen's compensation law Negligence or misconduct was entitled to compensation stated: "It is not reasonable to expect workmen never to relax their vigilance and to be constantly on guard. It is probably true that the ac- cident was the result of the employe's failure to remove his feet from the pedal in time to stop the motion of the machine before the die descended and crushed his finger, but it is highly probable, too, that the failure to remove his foot in time was due, not to any negligence on his part, but to his having lapsed into the mechanical and involuntary motion that might reasonably be expected under the cir- cumstances." Re R. F. Thompson, Id., p. 303. A laborer in a sudden emergency and seemingly called upon to act at once is not negligent, merely because the action taken leads to an injury which would not have oc- curred otherwise. Re G. D. Lyte, Id., p. 310. In the last- mentioned case the decedent was on a labor train riding from his place of employment to his dinner, when one car of the train was derailed and he jumped, falling under the, cars, and being killed. The report of the superior officer stated that the accident was due to the negligence of the deceased employe 1 as he should have remained on the train as other passengers who were not injured did. The solicitor, however, held that the accident was not due to negligence or misconduct on the part of the deceased employe, and that compensation should be awarded. The solicitor cited the cases of Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, and Thurber v. Harlem Bridge, etc., Rd., 60 N. Y. 326; The Dunham Towing & Wrecking Co. v. Emily Dandelin, Admx., 143 111. 409; Gibbons v. Wilkesbarre, etc., St. Ry. Co., 155 Pa. St. 279, as authorities for the principle that persons who in sudden emergencies are called upon to act under peculiar circumstances are not held to the same degree of caution as in other cases. The violation of a positive rule of instruction directly resulting in injury amounts to negligence or misconduct; but the rule or regulation must be a reasonable one. It must FEDERAL COMPENSATION ACT 1009 Negligence or misconduct have been known to the employe 1 and it must have been enforced. The disregarding of a rule which has become a dead letter is not necessarily negligence. ReC.A. Weigand, Op. Sol. Dep. C. &. L., p. 317. It is unreasonable to deny compensation merely because the physical condition of the injured person is such as to predispose him to some ailment which is also a natural con- comitant of the injury received. Re F. T. Osgood, Id., p. 304. In the last-mentioned case the claimant, in the regular course of his employment, used an automatic screw driver so constantly as to cause a blister in the palm of his right hand, which blister he opened without consulting proper medical authority. Subsequently septic poisoning developed and his hand became swollen so as to render him incapaci- tated for work. The reporting officer stated that the in- jury was due to the negligence or misconduct on the part of the employe because he himself opened the blister without consulting a physician. It was reported also that the claim- ant had previously been afflicted with blood poisoning. The Solicitor in holding that the man was entitled to compensa- tion said: "It does not seem reasonable or just to deny compensation merely because the physical condition of the injured person is such as to predispose him to some ail- ment which is also a natural concomitant of the injury received. Such a predisposition on his part would be harm- less if no injury supervened to inaugurate the malady. A man's predisposition to disease is like his size and weight and sight and hearing, and many other physical character- istics, which may have some connection with the cause or nature of his disability, but which cannot be held to affect his right to compensation." The Solicitor referred to a number of German cases in which compensation had been awarded under similar circumstances. He thus stated that in one case where a mason, working on sandstone, received an injury resulting in blood poison, which was aggravated by his continuing his employment, and death ensued, com- 64 1010 bradbury's workmen's compensation law Acts not negligent; compensation granted pensation was granted. In another case where a stone mason injured his finger during employment, and blood poisoning set in in an unknown way, causing death, com- pensation was granted. In still another case a brick-layer injured his finger in the course of his employment and afterwards the material upon which he was working getting into the wound causing blood poisoning, compensation was granted. ♦ A laborer called upon to perform a task out of his regular line of work is not chargeable with negligence because he adopts, through negligence, a method dangerous in fact, but not obviously dangerous to an inexperienced man. Re Robert Turner, Id., p. 319. In the last-mentioned case a ma- chinist was instructed to do some blasting with black powder. He advised his superior officer that no black powder was to be procured, but that there was a supply of dynamite. The employ^ also expressed the opinion that the work could be done with dynamite and also stated that he was somewhat familiar with the use of dynamite. Two blasts were set off successfully, without damage, and while preparing another blast in a manner which was declared to be improper, there was a premature explosion and the man was killed. It was held that under the circumstances compensation should be awarded. 21. Acts not negligent; compensation granted. The claimant was employed as a powder man, and while engaged in loading a hole with powder an explosion occurred, whereby the claimant lost his left eye and his right hand as a result thereof. It was contended that the claimant was negligent in remaining in the vicinity of the hole too long, or that the fuses which he used were too short. Compensa- tion was awarded. Re Joe Davis, Op. Sol. Dep. C. & L., p. 394. The fact that a man in handling an elevator does so while he is standing on the floor outside of the elevator FEDEEAL COMPENSATION ACT 1011 Acts not negligent; compensation granted rather than getting into the same, and the elevator in de- scending strikes his foot and crushes it, is not necessarily to be charged with such negligence as will prevent him from claiming compensation. Re William G. Crandall, Id., p. 58. A rock was found by a laborer containing a charge of powder that had not been exploded. He called to claimant who was known as a powder man to come and see the rock. The claimant and a number of other laborers went there and while looking at the same another laborer who had gone up with the others picked up a hammer and began to strike the rock. Upon his striking it the second time all of the men ran away except himself and the claimant, and upon his striking it again it exploded, killing the laborer who was striking, and injuring the claimant. It was contended by the overseer that the claimant was negligent for the reason that he had authority to stop anyone in doing what the laborer was doing and that the claimant should have drawn the charge or fired the same. The claimant contended that he, on trying to prevent the laborer from striking the rock, was told by the laborer that there was no danger and he would just take off a small piece. Just as he was trying to induce the laborer to cease striking the explosion occurred. It was held that under the circumstances he was entitled to compensation. Re Solomon Kahalewai, Id., p. 411. The claimant was working as a powder man, and while cleaning a hole, after it became clogged, with a metal bar or drill, he caused the powder to explode and he was injured. It appeared that the use of such a bar in tamping dynamite was a matter of common occurrence or usage and while more dangerous than the use of a wooden bar, it was held that the use of the metal bar was not such negligence as precluded the recovery of compensation. Re Frank Schultz, Id., p. 409. The claimant, a drill helper, was at his drill when a gang of Spanish laborers, about to fire a blast, shouted a warning. The mine to be fired was on the other side of the hill and 1012 bkadbttky's workmen's compensation law Acts not negligent; compensation granted about three or four hundred feet from the claimant's drill. The claimant could not see the Spanish laborers, but he heard the warning shouted and took shelter under a large boulder about twenty feet from the drill. Others belonging to this gang took shelter under another large boulder about 100 feet from the drill. He was at a safe distance if the blast had been a small one, but he had no means of knowing whether it was large or small. When the place was fired a large rock loosened from the side of the hill, rolled down over the boulder under which the claimant had taken shelter and injured him. The Division engineer contended that the claimant's injury was due to his own carelessness in not getting out of the way and going as far as the other work- men had gone, when warned of the blast. It was held, however, in granting compensation that the claimant had not been guilty of negligence or an unreasonable exercise of judgment in selecting the particular place of a shelter. Re Edward Clark, Id., p. 371. The claimant was drilling a piece of iron held in a jig when the trill caught, causing the jig to revolve. Instead of shifting the belt by means of the belt shifter with his foot, he tried to throw it off with his hand. His right hand was caught and held between the pulley, belt shifter and belt, the belt burning his hand between the thumb and forefinger. The solicitor in holding that compensation should be awarded said: "Apparently the claimant was engrossed in his work, and in his anxiety to save the drill or jig from damage he hurriedly undertook to stop the machine by shifting the belt with his hand. Under the exigencies of the moment, he evidently did what first came to his mind. This would seem to be such an accident as might happen to any ordi- narily careful machinist in the usual course of his employ- ment rather than the result of misconduct or negligence within the meaning of the act." Re C. H. Hadlock, Id., p. 408. The claimant was a boatman employed in connection with FEDERAL COMPENSATION ACT 1013 Acts not negligent; compensation granted river and harbor service work at Boston Harbor. While standing on the wharf of the engineer's depot at East Boston, casting off a line or rope holding a steamer to the wharf, and in the act of dropping the rope to the deck of the steamer, the man tripped on the cap log of the wharf and fell to the deck of the steamer, striking his side on the deck and on an iron cleat. The tide was very low and the deck of the steamer was some fifteen feet below the floor of the wharf. The right leg was badly crushed. He was taken to the hospital and three days later developed marked delirium. Later he became quiet but remained irrational. Still later he became unconscious and could not be aroused. He failed to respond to stimulation and died about seventeen days after the injury. There was some question as to whether or not the man was under the influence of alcohol at the time of the injury. The solicitor held, however, that there was not sufficient evidence of intoxication to amount to negli- gence and therefore compensation was awarded. Re E. J. Flaherty, Id., p. 403. On the question of intoxication the solicitor cited the following cases: Wordsworth v. Dunnam, 98 Ala., 610; Sapp v. State, 116 Ga. 182; Johnson v. Rail- road Co., 53 Am. St. Rep. 39; Bageard v. Consolidated Trac- tion Co., 64 N. J. L. 316; 45 Atl. Rep. 620; 49 L. R. A. 424; 81 Am. St. Rep. 498; Houston, etc. Ry. Co. v. Reason, 61 Tex. 613; Ward v. Chicago, St. P., M. & 0. Ry. Co., 85 Wise. 601. A man working on the hull of a ship was struck in the eye by a chip from a rivet. It appeared that there was a rule in force that all employes whose work warranted it, were re- quired to wear goggles, which were furnished by the Govern- ment and served out on tool checks. There was also a notice that if an employ^ received an injury through neglect to wear eye protectors he might jeopardize the validity of his claim for disability compensation. It was admitted that the claimant was not wearing goggles at the time of the injury. The solicitor in granting compensation said that he was of the opinion that although a notice had been issued re- 1014 bradbtjky's workmen's compensation law Acts not negligent; compensation granted quiring the wearing of goggles that no sufficient effort had been made to enforce it, and therefore, the man had not been guilty of such negligence or misconduct as precluded the granting of compensation." Re D. 0. Morton, Op. Sol. Dep. C. & L., p. 385. The solicitor followed the rule laid down in the case of Edison Alleyne (not reported) in which case a rule had been promulgated forbidding employes to ride on top of work cars and it appeared that this rule had not always been enforced. In reaching the conclusion in the Alleyne case the solicitor said: "If the rule is a reasonable one and a persistent effort is made to enforce it, even though that effort may not always be successful, the employ^ who violates it is guilty of negligence or misconduct within the meaning of the compensation act. But the mere announcement of a rule, followed by a merely perfunctory effort to enforce it, is not sufficient." The claimant, with other laborers, was skidding heavy timbers from the pile to the planer. All the laborers had been warned to stay behind the timber, but this claimant, in attempting to expedite the work, got in front of the timber to start it, when the skid slipped and the timber fell on his leg. It was held that under the circumstances the claimant had not been guilty of negligence or misconduct and com- pensation was awarded. Re Andrew Nelson, Id., p. 383. The foreman ordered a gang of workmen to carry tools to a certain place to prepare to drill. A long dirt train was across the path and the foreman ordered the men to throw the tools over the train and for the men to climb over. Some of the men were climbing over and it appeared, al- though the testimony on that point was conflicting, that the claimant and others climbed under. The train started and the claimant was injured. It was held that under the circumstances he had not been guilty of negligence or mis- conduct in attempting to cross beneath the cars and that he was therefore entitled to compensation. Re Robert George, Id., p. 382. FEDERAL COMPENSATION ACT 1015 Acts not negligent; compensation granted The claimant was engaged in piling lumber in one of the cuts of the Isthmian Canal. When the whistle blew at five o'clock, he quit work and got on the front end of a locomotive which was going to the place where he lived. The men had been repeatedly told not to get on the engines. After the train started the conductor of the train threw a piece of coal at the workman and knocked off his hat. The conductor then came forward and either pushed the man or compelled him to get off the engine, while it was in motion. He fell down in front of the engine, was run over and both feet and one hand were cut off, and other injuries were received. It was held that while the claimant had no business to be where he was, the conductor was guilty of a much graver fault and the conductor's fault was the direct cause of the injury. Under the circumstances, it was held that the accident was due not to the claimant's negligence, but to the conductor's fault, and compensation was therefore awarded. Re David Clarke, Id., p. 381. The workman was running acid out of a tank into a mixer, and after getting a sufficient amount attempted to close a plug cock on the pipe with a wrench and broke the pipe off close to the tank, thereby letting the acid flow out on him. There was pressure of air on the tank at the time. The reporting officer stated that the accident was due to the negligence of the employe in that the pressure of air should have been relieved from the tank before closing the valve on the acid pipe. It also appeared that the manipulation of acid valves, when there was air pressure on the tank, was forbidden. It appeared that the deceased employe was a careful workman. The solicitor held that under the circum- stances the employe 1 had been guilty of an error of judg- ment rather than of negligence or misconduct and therefore awarded compensation. Re William W. Fraser, Id., p. 377. While the deceased employ^ was working with a pick near a well, the foreman of the work ordered him, as well as his companions, to discontinue work with picks at that place, 1016 bradbuky's workmen's compensation law Acts not negligent; compensation granted but notwithstanding such order he continued to work with the pick at the bottom of the well, until it gave way and he was caught by falling stone and crushed to death. It appeared that there was a possibility that the deceased, when the warning was given by the foreman, did not under- stand the Spanish language in which the order was given, and as the workman was deceased and could not give his own story of the affair, compensation was awarded. Re Bonifacio Panganiban, Id., p. 379. Claimant at the time of the accident was operating a pocket machine, which is a heavy horizontal machine used in forming the primer pocket in the base of the cartridge case. The operator at this machine placed the cases in a trough by hand. The punch and die for pocketing the case operated at the bottom of this trough. The machine was provided with a loose pulley, onto which the belt was shifted when it was desired to stop the machine, and a hand brake was supplied which was used in bringing the machine to a quick stop. A broken cartridge case got jammed in the bottom of the feed trough and the operator shifted the belt over to the loose pulley and applied the brake until the machine was stopped. It required both hands to disengage the broken case, and while he was doing this it was necessary to release the brake. When this was done the machine started up, the punch catching the operator's finger and driving it into the die. It appeared that if the belt had been properly shifted the machine would not have started up on releasing the brake. The claimant stated that the belt was evidently improperly shifted so that when he released the brake he used both hands to remove the obstruction, and machinery started up and his finger was caught and injured. It was held in granting compensation that this was a case of slight negligence; that the workman was engrossed in his work and perhaps was not using all the intelligence a more skilled mechanic might have been expected to bring to bear upon the operation; that the accident might easily have FEDERAL COMPENSATION ACT 1017 Acts not negligent; compensation granted happened to any ordinary man and it was not reasonable to expect workmen never to relax their vigilance and con- stantly be on their guard. Re T. F. Tiernan, Id., p. 367. While .the claimant was engaged in tightening up a chuck with a wrench, the wrench slipped and he fell backward across an open box, sustaining a fracture of two ribs. It was held that he was entitled to compensation. Re. C. H. Hadlock, Id., p. 366. The claimant was a carpenter foreman employed in the Canal Zone and while engaged in adjusting a shearing machine a helper allowed a blade to fall on the claimant's finger, cutting off the index finger of the right hand. The reporting officer stated that the claimant was solely to blame for placing his finger in such a dangerous position as under the blade of a shearing machine while adjusting the same. The solicitor, however, decided that under such circum- stances it would be setting too high a standard of care to say that the claimant was guilty of negligence sufficient to bar his right to compensation. Re J. H. Retry, Id., p. 366. Claimant was helping to place a trolley pole in position in the Philadelphia Navy Yard. He was one of four men who, each with a pike or long pole, was steadying a trolley pole which was placed in position. The pole appearing to fall over toward him, and being compelled to quickly change the position of his pike to steady the pole, he put the handle of his pike against the ground, which was newly made and soft and gave way, thus throwing claimant off his balance so that he tumbled off the embankment and was injured. It was held that he was entitled to compensation. Re J. J. Burns, Id.; p. 364. The claimant was chambering a six inch gun and had occasion to place a slope bit in the boring car. The bit weighed about 150 pounds, and in lifting and adjusting it he sprained his back so as to disable him for 22 days. It ap- peared that it was the custom of the men to handle such bits without the use of a crane and that although a crane was 1018 bradbury's workmen's compensation law Acts not negligent; compensation granted available its use would have involved loss of time and the rule requiring the use of cranes was not sufficiently definite to put the claimant under obligation to use one in the present instance, and that the rule was practically ignored by the men in their work. It was held that he was entitled to com- pensation as he had not been guilty of negligence or miscon- duct. Re W. B. Thomson, Id., pp. 360, 361. A man, on his first day's employment in the department, was making a splice of live cables, when, as a result of a short circuit, he was burned. It appeared that the claimant was cautioned by the foreman that the employes were charged to exercise the necessary precaution and that the claimant did not take the necessary precaution to insu- late the cables, which he could easily have done, and the short circuit was caused by the careless handling of tools. The solicitor first decided that compensation should be refused because of negligence, but on reconsideration owing to further evidence by which it appeared that this was an accident which might happen to any man no matter how careful, the solicitor held that compensation should be awarded. Re Harry Block, Id., pp. 333, 334. An injury to a printer's back while working a hand press was held to be not due to negligence merely because the printer had continued working the press, although it worked hard and required extra exercise. Re W. P. Hutton, Id., p. 321. The claimant, a laborer in the Frankford Arsenal, while being carried up on an elevator, allowed his right foot to project beyond the elevator floor and it was caught between the floor of the elevator and the floor of the building and badly crushed. The case was considered in two different opinions and it was finally determined that the injury was purely accidental, and that the claimant was not sufficiently negligent to bar him from the Federal Act. Re William Smith, Id., p. 307; s. c. 309. The claimant, in going to dinner from his work, was com- FEDERAL COMPENSATION ACT 1019 Acts not negligent; compensation granted pclled to cross a railroad bridge. While on the bridge a worktrain approached from behind. Not having time to get off the bridge before the train would pass, he lay on the bridge between the rails. The train in passing crushed the big toe of his left foot. The case was considered in three different opinions by the solicitor of the department. In the first two he was inclined to deny compensation, but in the third new evidence was submitted by which it appeared that the claimant was not struck from behind but was struck by a train which was apparently running wild and it was coming toward him at a speed of about forty miles an hour, and that the claimant was crossing the bridge to board the train, which generally stopped on the other side and did not usually cross the bridge at all, except to take on its passengers. It was held therefore, that he was entitled to compensation. Re Z. M. Crooks, Id., pp. 362, 363, 364. Where signs had been posted up warning laborers not to cross over the tracks, but to use the bridge erected for that purpose, but it appeared that laborers had paid absolutely no attention to these signs, and that aside from placing these signs up nothing had been done to enforce the rule, it was held that where a laborer was injured by crossing these tracks, he was entitled to compensation and that under the circumstances he could not be charged with negligence or misconduct. Re Placido Carrero, Id., p. 402. A laborer working with a gang near an inclined track began to cross the track to escape an approaching engine, and was struck by an engine and killed. The evidence was conflicting and it was uncertain what reason impelled the laborer to cross the track. The solicitor held under the circumstances that compensation should be awarded. Re Antonio Martinez, Id., p. 412. The claimant while seated on a flat car loaded with lumber and adjusting a stake in a stake pocket of the car, allowed his legs to hang over the side of the car. In passing a plat- form at the lumber yard his foot was caught between the car 1020 BRADBUKY S WORKMEN'S COMPENSATION LAW Acts not negligent; compensation granted and a loose timber which was projecting over the edge of the platform. In view of the fact that the claimant was at work when hurt, and his attention was directed to that work so that he did not observe the projection of the timber, it was held that he had not been guilty of negligence and compen- sation was awarded. Re Jose Herrera, Id., p. 370. Two dirt trains were using the same dump. An empty train had left the dump and was turning the curve where the switch was located, intending to pass the switch and back into the siding to allow the loaded dirt train hauled by an engine on which the deceased was working as engineer, to go on the dump. Both trains were on the curve and in sight of each other, but running too fast to stop, resulting in a collision, in which one engineer lost his life. The Coroner's jury convened to inquire into the cause of the death and found the following verdict: "That the deceased came to his death through unavoidable accident, due to his own fault, and that no blame can be placed on any employe or employer." The division engineer reported that the acci- dent was not due to the negligence of the deceased and re- commended payment. The Solicitor commented on the in- consistency of the Coroner's verdict and decided that under the circumstances compensation should be paid to the dependents of the deceased engineer. Re J. R. Morris, Id., p. 376. The claimant belonged to the crew engaged on a dirt unloader. As the unloader was passing the yard office on the way to a water tank he attempted to alight for the purpose of getting a drink of water. The unloader was moving at the rate of about four or five miles an hour at the time, and as he stepped down his foot got caught in some way, causing him to fall and injure himself. It appeared that unloader crews were accustomed to get off at this particular place to get drinking water, and that four or five miles an hour was not considered an unsafe speed while getting off. It appeared that there was no drinking water on board the unloader. FEDERAL COMPENSATION ACT . 1021 Acts not negligent; compensation granted It appeared that the claimant had not violated any rule and that he did what an ordinarily prudent man would do under the circumstances and that therefore compensation should be awarded. Re Canu Guiseppe, Id., p. 380. Car cleaners on electric cars had been in the habit of waiting until the foreman turned off the current and called out "All right, go ahead" before starting to work. On this particular occasion the car had been standing some time after arriving at the place where it was to be cleaned and several of the cleaners started work. While doing so one of the cleaners received a shock from an over-heated wire, which knocked him off the car and he fell on the third rail and was killed. It was held that under the peculiar circum- stances of the case he had not been guilty of negligence within the meaning of the act and therefore compensation was awarded. Re Francis Right, Id., p. 389. Where a conductor was hanging on to one of the cars of a construction train moving along slowly and it appeared that there was no caboose on the train, and the conductor was in the place in question "in accordance with the usual practice" and while in such condition he was injured, it was held that he was entitled to compensation under the circumstances, as the injury was not due to his negligence or misconduct. Re H. C. Strayer, Id., p. 359. Claimant was riding on a work train on his way to do a repair job when he signalled to the engineer to slow up. While the train was still moving at a good rate of speed he stepped off and fell in such a way as to get his right arm crushed under one of the wheels of the train. It was held that the accident arose out of and in the course of the man's employment. It was further held that he had not been guilty of negligence for the reason that it appeared that men in the kind of work in which the claimant was engaged, did not wait for cars to stop before they got on or off, and there- fore he was not guilty of such negligence as to bar a claim for compensation, Re J. L. Du Puy, Id., p. 361. 1022 bradbtjry's workmen's compensation law Acts not negligent; compensation granted The claimant was attempting to board a labor train to go to his work at a place which was not a regular stopping place for labor trains, but where it had become the custom for a number of men to take the train, and for that reason it usually stopped or slowed down to take down the men. On this particular day the train slowed down somewhat but did not stop and the claimant in attempting to get on the train lost his hold and fell in such a way that one foot was am- putated and the other badly lacerated. The solicitor applied the rule that the negligence contemplated by the statute involved the idea of misconduct or voluntary or unnecessary exposure to an obvious danger. Re Francis Williams, Id., p. 372. Where a workman, following a general practice, attempted to get on a labor train while it was in motion, slipping, the wheels passed over his right foot mashing the toes, it was held that under the peculiar circumstances the man had not been guilty of such negligence as to preclude an award of compensation. Re Edward McCarthy, Id., p. 374. Where, according to a regular custom, a laborer in going to his work, got off the train while it was in motion, and losing his balance fell to the ground, his right foot going under the wheels of the car, it was held that he was entitled to compensation as he had not been guilty of negligence or misconduct. Re C. L. Short, Id., p. 375. Where a labor train on which the claimant was riding did not stop and he, with seven or eight other men got off while it was in motion, and was injured, it was held that he was entitled to compensation. It appeared that the men had been in the habit of getting off in the same way from this train at the particular place where they alighted. Re Richard Bunting, Id., p. 391. An employe was on a labor train waiting for the train to stop, when his foot slipped off the step and he, being in a weakened condition from sickness and fever, was unable to hold on with his hands until the train came to a stop. It FEDERAL COMPENSATION ACT 1023 Acts not negligent; compensation granted was held that under the circumstances he was entitled to compensation as he had not been guilty of negligence or mis- conduct. Re Samuel Mann, Id., p. 392. A brakeman was injured while getting on the engine. His foot slipped and he fell under the engine. It was con- tended that he had no right to be on the front of the train, as his position was in the middle of the train. It appeared, however, that he sometimes did work in the front of the train under the direction of the conductor. As it appeared that it was absolutely necessary that the trainmen jump on and off moving trains and hang on to them under all sorts of conditions, it was held that the man was not guilty of negligence and he was entitled to compensation. Be James Headley, Id., p. 395. An employ^ got on an engine to ride to a restaurant where it was usual for them to get dinner. A negro brakeman yelled to him to get off and he, being frightened jumped off while the train was in motion. It appeared to be uncertain whether or not employes had been directed to ride on engines. At any rate no such rule was enforced with any great strict- ness. It was held that under the circumstances compensa- tion should be awarded as the claimant had not been guilty of negligence. Re Ernesto Gamboa, Id., p. 397. The claimant, a brakeman on a train, contended that while standing between two dump cars, connecting the air hose on the train, the engineer started the train ahead before he gave the signal to do so, and that he was knocked down and his left leg was cut off at the knee. The engineer con- tended that he received the signal from the brakeman to go ahead. The solicitor held that in view of the conflicting testimony he would settle the doubt in favor of the claimant, and therefore awarded compensation. Re George Clark, Id., p. 399. A fireman was requested by the conductor to make a coupling between an engine and a car because the conductor and brakeman were busy. The draw bar on the car was out 1024 bradbury's workmen's compensation law Acts held to be negligent; compensation refused of repair and not in line with that of the engine. The claim- ant attempted to shove the drawbar on the engine to one side with his foot, so as to meet that on the car, when the engine lurched by reason of a defect in the track, and the claimant's foot was caught and crushed between the two drawbars. It was contended that it was negligence for the claimant to use his foot in making the coupling, instead of his hand, and that if he had used his hand he would not have been injured. The evidence showed and it was held that it was not unusual to make such couplings in the manner employed by the claimant and that the drawheads frequently got out of line, and that as the claimant was a fireman and not a brakeman negligence could not be imputed to him. Compensation, therefore, was awarded. Re Charles McDer- mott, Id., p. 368. The Solicitor cited the case of Morris v. Duluth S. S. & A. Ry. Co., 108 Fed. Rep. 747, where the Court said: "Where there is a comparatively safe and a more dangerous way known to a servant by means of which he may discharge his duty, it is negligence for him to select the more dangerous method, and he thereby assumes the risk of the injury which its use entails." In that case it was held that the fact that a brakeman chose to and did step in between cars while in motion to draw a coupling pin instead of using a lever provided for that purpose was evi- dence of negligence contributing to an injury resulting from his stumbling while walking between the cars. The Solicitor also cited the following cases arising under similar circum- stances: Suttle v. Choctow 0. & G. Co., 144 Fed. Rep. 668; Gilbert v. Burlington, C. R. & N. Ry. Co., 128 Fed. Rep. 529 and Kansas City Southern Ry. Co. v. Brunty, 133 Fed. Rep. 13. But he distinguished all of those cases from the one under consideration. 22. Acts held to be negligent; compensation refused. Claimant was working in a pit where what is known as a cable way skip was being raised and lowered for the purpose FEDERAL COMPENSATION ACT 1025 Acta held to be negligent; compensation refused of removing the material taken out of the pit. It was found that pieces of rock would adhere to the mud on the bottom of the skip and that in the process of raising and lowering the same the rocks would fall off the skip down into the pit where the claimant was working. The claimant ad- mitted that he was standing underneath the skip and that it was being lowered into the pit in violation of the in- structions from the foreman which he had forgotten to ob- serve. It was held that compensation should therefore be refused for negligence. Re Salomon Anaya, Op. Sol. Dep. C. &L., p. 358. An employe 1 injured while getting on or off a moving train, when it is not necessary for him to do so, cannot recover com- pensation. Re Edgar Cousins, Id., p. 356; Re Constantin BeU mon, Id., p. 355; Re Walter Lemont, Id., p. 355; Re Josephus Liverpool, Id., p. 353; Re L. B. Kent, Id., p. 352; Re James Coward, Id., p. 350; Re Arnold Simmons, Id., p. 343; Re Grandville Hunt, Id., p. 326. An employe 1 riding on a labor train from work, was sitting on the sill at the rear end of the labor car. There was plenty of room in other portions of the car where he could ride. When the train reached the yard the claimant's feet which were extending beyond the side of the car struck some object alongside the track, causing him to be thrown on the track and injured. It was held that under the circumstances he was not entitled to compensation as a safe place had been provided for the claimant to ride on, but he, of his own volition, had chosen to occupy an unsafe place. Re Archibald Alleyne, Id., p. 357. The hat of an employe 1 blew off while he was on a moving labor train. He got off to get the hat while the train was still moving and in doing so fell and rolled under the wheels. It was held that he was guilty of negligence which precluded an award of compensation. Re James Wood, Id., p. 349. An employe 1 trying to get on the footboard of an engine of a moving train going to dinner, slipped and fell and both 65 1026 bradbtjry's workmen's compensation law Acts held to be negligent; compensation refused legs were cut off. A sign was printed on the front and rear of the locomotive "keep off." Frequently, however, labor- ers got on the engines while moving. A labor train was due to leave in a short time to take men to dinner and it appeared that there was no need for the injured workman to try to ride on the locomotive. It was held under such circumstances that compensation should be denied for negligence. Re William Hindsfld., p. 342. An employe was injured while riding on the pilot of an engine. It appeared that the employes were strictly for- bidden to ride on the engine although it was customary for them to do so. It appeared also that it was difficult to en- force the rule forbidding employes to ride on the engines, as a number of men would jump on at once in some instances. It was held under the circumstances of the case that com- pensation should be refused on the ground of negligence and misconduct. Re Halecio Sahanas, Id., p. 340. Where an employe" was either under or on a dump car, where he had no business to be, and was injured by reason of an engine coming along and bumping into the train of dump cars, it was held that compensation should be denied on the ground of negligence. Re Simeon Carter, Id., p. 339. Where an employe" was riding on the engine of a train which he had been strictly forbidden to do, and on all lo- comotives there was printed in large letters in the front and rear a warning to keep off, it was held that he was guilty of such negligence and misconduct as precluded an award of compensation. Re Santos Garcia, Id., p. 338. An employe" while on a labor train stepped on the link between the bumpers of two cars, and the train slacking, his foot was crushed between the bumpers. It was held that any ordinarily prudent man would not step on the link connecting two cars together, when it was known that an engine was attached to the train and was moving or liable to move at any time, and that therefore the claimant had been FEDERAL COMPENSATION ACT 1027 Acts held to be negligent; compensation refused guilty of such negligence as precluded the recovery of com- pensation. Be E. V. Alcee, Id., p. 337. The claimant attempted to step on the footboard of an engine to ride a short distance to take a labor train which carried men to dinner. Another brakeman, on the front of the engine, who did not see him, suddenly shifted his position and the claimant stepped on his foot, slipped and fell upon the track. It appeared that there was ample time to catch the labor train which was standing near and it was not necessary for the claimant to get on the engine to reach the labor train in time. All of the engines in this place were plainly marked "Keep off " on the front and rear bumper. It was held that the claimant was in a place in which he had no right to be and from which he was properly excluded and that warning of such exclusion was properly posted. Under the circumstances, therefore, it was declared that the claimant had been guilty of such negligence as to deprive him of the right to compensation. Be Wesley Edghill, Id., p. 336. The claimant, although employed as a brakeman, was assigned to duty as a locomotive engineer while the regular engineer was at dinner. The claimant was in the cab of the engine alone, the fireman having gone to the storehouse for some oil. In response to signals from a switchman, the claimant backed the engine, pushing a loaded concrete car toward the incomplete end of the bridge, moving very slowly and stopping several times, until just before the in- complete end of the bridge was reached. Then he opened the throttle and the car and engine went with a rush. The car went over the plank which had been placed across the track to prevent cars from running over the edge of the bridge, and went into the sluiceway, drawing the engine after, thus causing the injury complained of. After the accident it was found that the throttle of the engine was wide open. It was held that the accident was due to such negli- gence as precluded recovery of compensation. Be William Ewald, Id., p. 331. 1028 BRADBURY S WORKMEN S COMPENSATION LAW Acts held to be negligent; compensation refused The claimant was helping to dig a trench two feet wide and six feet deep into a sand bank when one wall caved in upon him and he was injured. His superior officer reported negligence and misconduct because he remained in the trench after being twice told to come out. It appeared from the testimony that the claimant seemed to want to make it appear that he was brave and that when the foreman ordered him out the claimant said there was no danger and he could tell when the dirt was going to cave in in time to get out. It was held that the claimant was grossly negligent and com- pensation was denied. Re J. W. Roberts, Id., p. 335. The claimant was fixing a bent switch on an electric switchboard with a screw driver, and got a short circuit which caused a very deep burn on the wrist. It appeared that the man had not obeyed instructions as to such work, which had for their purpose the avoiding of accidents from a short circuit, on a grounded switchboard such as this is, and compensation was therefore refused on the ground of the negligence of the employe. Re C. 0. Fowler, Id., p. 332. The claimant, with a gang of other laborers, was engaged in removing a six inch water pipe from a ditch. He entered the ditch to make the rope fast to one end of the pipe and after doing so was told by the foreman to get out of the way of the pipe. Instead of doing this, he stepped to the other side of the pipe and the foreman again told him to get entirely out of the way. The claimant replied that he was all right and began pulling upon the pipe to help the other men who were pulling from the outside of the ditch. The pipe swung around and struck the claimant causing the injury. It was held that this was a plain case of negligence which precluded a recovery. Re Frank Alston, Id., p. 330. In the last-men- tioned case the solicitor cited the case of Williams v. Choctaw 0. & G. R. Co., 149 Fed. Rep. 104, to the effect that a man "may not close his eyes to obvious and dangerous conditions and expect to recover in case of accident." The claimant, while removing a tool from under a steam Federal compensation act 1029 Acts held to be negligent; compensation refused hammer in motion, sustained severe injuries on account of the hammer having struck a false blow, which caused the handle of the tool to strike the injured man on his left side. It appeared that the claimant had been warned by the hammer driver that to remove the tool while the hammer was in motion was dangerous. It was held under the circum- stances that he had been guilty of such negligence as pre- cluded an award of compensation. Re Daniel Currie, Op. Sol. Dep. C. & L., p. 329. An employ^ was injured while attempting to board a moving ferry boat which had started on its trip. In attempt- ing to get aboard he made a jump, but instead of landing on the boat he fell under the water, striking the stern of the boat in his fall. It was held that he was guilty of such negligence as precluded an award of compensation. Re James Dale, Id., p. 350. Where a boy crawled under a car to get out of the sun and fell asleep with his left foot across the rail, and was in- jured when the train started, it was held that compensation should be refused on the ground of negligence. Re Ferdinand Ricketts, Id., p. 341. A laborer went under a car of a train to which an engine was attached, to shelter himself from the rain, and when the train was started the wheels ran over a portion of his foot and bruised his toes. It was held that he was guilty of negligence which precluded recovery of compensation. Re Nicolas Bacema, Id., p. 333. During a heavy rainstorm the claimant got under a car and while in this position the train of which the car formed a part was moved by an engine. It was held that the claim- ant unnecessarily placed himself in obvious danger and was therefore guilty of negligence or misconduct which would preclude an award of compensation. Re Ramon Torres, Id., p. 325, s. c, p. 326. Where an electrician was directed not to work on any wire that was alive and disregarding these rules was burned from 1030 bradbury's workmen's compensation law Contributing cause of disability a short circuit, it was held that he was guilty of such negli- gence or misconduct as precluded an award of compensation. Re M. J. Ryan, Id., p. 341. Where the claimant was injured by being struck in the eye with a wooden plug, which was blown out of a pump, in consequence of the opening of a certain valve by an appren- tice boy, and thg workman himself directed the boy to open the valve and that he knew that the opening of the valve, while a certain other valve was likewise open, would cause the plug to blow out, and that it was dangerous, was held to be guilty of such negligence as required that compensation should be denied. Re W. H. Taylor, Id., p. 324. The claimant was going home from his work, and while walking upon the railroad tracks a train approached from the rear, entirely unnoticed, struck him and inflicted a severe injury to his left hip. It was held that the claimant had been guilty of such negligence as precluded an award of compensation. Re R. R. Lopez, Id., p. 330. The claimant declared that he was walking on a trestle in the course of his employment when two engines jumped the track where he was and fell to the bottom of the river channel underneath the trestle, and that he was caught be- tween the two engines and his foot crushed. The division engineer stated that the claimant was riding on the foot- board of one of the engines and that he had been forbidden to ride on the engines. The Solicitor stated that if the state- ment of the claimant was to be relied upon he was entitled to compensation, whereas if the evidence of the division engineer and other witnesses were to be relied upon, no compensation could be awarded. The case was sent back for further testimony. Re Miguel Colmeneiro, Id., p. 327. 23. Contributing cause of disability. A claim is not barred by evidence of congenital weakness which may have contributed to cause an injury to result in incapacity. Re J. F. Mulverhill, Op. Sol. Dep. C. & L., p. 538. FEDERAL COMPENSATION ACT 1031 Injury means disability To entitle an employ^ to continued compensation the disability must be due in an appreciable measure to the original injury. Re A. C. McAllister, Id., p. 546. An injured employ^ is entitled to compensation no longer than his incapacity is due to his original injury and may not be paid, on account of old age or other bodily infirmity, because he is unable to resume work within a year. Re Elijah Blackhurst, Id., p. 556. Where a claimant has worked for a considerable period up to the time of the accident and declared positively that he had no prior injury, and that his disability is due entirely to the accident, such circumstances are sufficient to support the claimant's statement where the medical testimony merely casts a doubt on the claimant's statement as to prior injuries, and the physician expresses the belief that the trouble dated back some time before the injury, although he was unwilling to make that statement as a positive fact. Re J. W. Davis, Id., p. 606. 24. Injury, definition of. 1 The word "injury" is used comprehensively to embrace all the cases of incapacity to continue the work of employ- ment unless the injury is due to the negligence or misconduct of the employe injured and including all cases where, as a result of the employe's occupation, he, without any negli- gence or misconduct, becomes unable to carry on his work and this condition continues for more than fifteen days. Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31; citing the opinion of the Attorney General, dated May 17, 1909 in the Clark case. 25. Injury means disability. Until the injury shall have caused incapacity it is not such an injury as is contemplated by the statute. The injury which may entitle an employ^ to compensation under the 1 See exhaustive discussion of this subject in Chapter VI. 1032 bradbury's workmen's compensation law Ability to resume work Act does not begin to exist until the accident or literal injury has resulted in incapacity for work. When it has existed for more than fifteen days the right to compensation accrues. Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31. 26. Injuries before act passed. The accident qr other cause of injury as well as the result- ing incapacity must have occurred on or after the date fixed in the act, to wit, August 1, 1908, to entitle the claimant to compensation. Re A. B. Adolphus, Op. Sol. Dep. C. & L., p. 31. 27. Ability to resume work. Ability to resume work means ability to resume the regu- lar work of the injured person's employment, in the course of which the injury was sustained, not any work he may be able to do notwithstanding the injury. Re query of naval constructor of Boston Navy Yard, Op. Sol. Dep. C. & L., p. 263. Ability to resume the regular work of the injured per- son's employment appearing, compensation ceases under the Act, although the employe* remains seriously and perma- nently injured. Re David Carroll, Id., p. 285. In the last- mentioned case the employe, while driving a team hauling stone out of a trench, was hit on the jaw by rock thrown from a place and the jaw was fractured. At the time compen- sation was disallowed the fracture was still ununited, but it was found that the employe, notwithstanding the perma- nence of the injury, was still able to do the work which he had done before. Compensation, therefore was discontinued. Inability to resume work of employment appearing, com- pensation is payable although the claimant is discharged and obtains other employment of a different character. Re E. L. Hill, Id., p. 287. Ability to resume work at a given date cannot be predi- cated on the fact that an injured person refuses to submit FEDERAL COMPENSATION ACT 1033 Computing year during which compensation is payable to an operation and therefore, according to the medical opinion, delayed recovery. Re Pete Passus, Id., p. 289. 28. Successive claims. An employ^, who, after an injury, had resumed work pursuant to orders, being assigned to lighter duties and was again injured, resulting in immediate incapacity was held to have established a new claim. Re W. R. Fletcher, Op. Sol. Dep. C. & L., p. 610. 29. Computing year during which compensation is payable. The year for which compensation was payable begins to run on the day following the injury and terminates with the anniversary of the day of the injury, under the Federal Act. Re D. J. Kelly, Op. Sol. Dep. C. & L., p. 255; Re Atancio Lacorte, Id., p. 258. The date of the injury from which the year of compensa- tion begins to run is the date on which the injury results in incapacity for work. Re William Bowen, Id., p. 258; Re E. A. Drummond, Id., p. 261; Re J. L. Malone, Id., p. 261. The provision of the statute that the compensation shall be paid for one year after the injury unless he is sooner able to resume work means that the employe 1 or his dependent is entitled to pay for a full year, excluding Sundays, and the fact that the employe 1 , if living, not disabled, would not have been able to work all the year, by reason of the shutting down of the works or a portion thereof, has no effect on the amount of compensation which should be paid. Re Frank J. Huff (Op. of the Comptroller of the Treasury), Id., p. 459. Where the workers are employed on a per diem basis and are injured in the course of their employment, they are entitled to compensation for absence on Sundays and holidays if in the regular course of the work they would have been compelled to have worked on these days, and if not, they should not be allowed compensation for Sundays and holidays. Re Letter of Comptroller Tracewell to the 1034 bbadbury's workmen's compensation law Wages as basis of compensation Secretary of the Interior, December 10, 1909, Op. Sol. Dep. C. & L., p. 632; 15 Comp. Dec. 464. 30. Wages as basis of compensation. The- compensation granted includes allowance for sub- sistence or in lieu of subsistence, when the same forms part of the regular itemuneration of earnings. Re Ed. Lanzy, Op. Sol. Dep. C. & L., p. 291. The right of a laborer to the same pay as if he continued to be employed is not lost or diminished because the work on which he was employed has been stopped or suspended before he was able to resume work. Be George McCrae, Id., p. 293. The amount of compensation payable to a dependent parent is equivalent to the full pay of the deceased for the balance of the year following the latter's death, although the' parent had not been wholly dependent upon him or had received, before the injury, only a share of his wages. Re Ymsel Noriega, Id., p. 296; Re J. J. Korp, Id., p. 297. The right to the same pay as though he continued to be em- ployed includes the right to any increase in the pay attached to the injured person's, position made after the injury and during incapacity. Re J. W. Hamilton, Id., p. 297; Re Michael O'Brien, Id., p. 298. Where an injured employe, although unable to return to his regular employment, 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 services. Re Antonio Manaloc, Id., p. 301. The question of fact as to what is the same pay a workman would receive if he continued to be employed is ordinarily better determined by the administrative and accounting officers of the establishment in which he is employed than by the Secretary of Commerce and Labor. Re A. E. Clark, Id., p. 299; Re William R. Miller, Id., p. 299. FEDERAL COMPENSATION ACT? 1035 Dependents 31. Dependents. A woman living as the illegitimate wife of an employe" in the Canal Zone, does not become, upon his death, his widow within the meaning of the Act. Re Stanley Howell, Op. Sol. Dep. C. & L., p. 442. A woman who has lived with a man for several years as his "reputed" wife is not his widow within the meaning of the Federal Act, upon the employe's death. Re Fitz Agard, Id., p. 443. The word "child" or "children" as used in the Act is not restricted to child or children born in wedlock, but includes illegitimate children as well. Re J. F. Harding, Id., p. 446. Where a deceased workman left two illegitimate children and a father who lived in the same -town, and there was an inference that the father cared for the children, it was held that while compensation should be denied to the father as not being a dependent, it should be paid to him for the benefit of the two illegitimate children and that he would become a trustee for the children to apply the compensation for their benefit. Re R. W. Baugh, Id., p. 482. The word "parent" does not include a foster parent where there has been no legal adoption. Re Charles Perkins, Id., p. 470. A foster parent by legal adoption may be a dependent parent within the meaning of the Act. Re F. J. Huff, Id., p. 458. The word "parent" does not include a stepfather or step- mother. Re Alexander McMurray, Id., p. 462. A woman who has been divorced from an employe" and to whom has been given the custody of his children, is not entitled to compensation on account of his death, although compensation may be paid to her as guardian for the chil- dren. Re Edward Niemeier (alias W. J. Niemeir), Id., p. 444. Where payment, by reason of the death of an employ^, has been awarded to a widow and she re-marries during the term for which compensation is to be paid, the payments are to be continued to her notwithstanding her re-marriage, 1036 bradbury's workmen's compensation law Dependents as there is nothing in the Act which requires them to be dis- continued under such circumstances. Letter of Comptroller Tracewell to the Isthmian Canal Commission April 20, 1909, Id., p. 629; also 15 Compt. Dec. 646. The filing of an affidavit of claim by any one or more of the beneficiaries named in Section 2 and referred to in Sec- tion 4 is sufficient to protect the rights of a minor child if filed within the period of ninety days. Re A. G. Rodriguez, Id., p. 444. Where an employ^ dies, leaving no parent or widow, but leaving a child entitled to the benefits of the Act and the acting Spanish consul files an affidavit of claim on behalf of such child, such acting consul may be regarded as acting in loco parentis and his affidavit as the affidavit of the child. Re J. G. Redondo, Id., p. 456. Where, on account of the death of an employe compensa- tion had been allowed 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 grandmother, the remainder of the year's compensation may be paid to such maternal grandmother for the use and benefit of the child Re J. E. Jefferson, Id., p. 457. 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 at- tempted 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. Re G. W. Branch, Id., p. 467. The question of dependence is one of fact and the fact of dependence sufficiently appears if a condition of partial dependence is shown. Contributions Jby the deceased tend to establish a condition of dependence, but is not the only criterion. The natural and equitable claim for support which parents have upon their children make it proper to FEDERAL COMPENSATION ACT 1037 Dependents 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 capacity. Re Theodore Bock, Id., p. 464. Where it appeared that for two years and five months prior to the death of the employe" he contributed $100 to the support of his father and mother, and it further appeared that the father's earnings were 50 cents a week, and the mother's earnings 24 cents per week, and that they were 55 and 45 years old respectively, and that the value of the property owned by them was $12, it was held that they were dependent on the employe" and compensation was awarded. Re Levi Belgrave, Id., p. 471. Where it appeared that the deceased employe who did not live with his parents and was not on very good terms with his father, but who sent to his mother amounts from time to time, but did not give his father anything, it was held that the mother's claim for compensation should be granted and that of the father denied. Re Leon Esselman, Id., p. 472. The deceased was a negro boy, nineteen years of age, employed as a trainman in the Canal Zone, earning at the time of his death 13 cents an hour. The mother was 39 years of age and lived with the father in the British West Indies. The father earned nothing and the mother's total income, aside from what she received from the deceased, consisted of what she earned from washing, which amounted to 48 cents per week. In the year preceding his death the deceased contributed $7.68 toward the mother's support. Neither parent owned any property. It was held that under the circumstances the mother was entitled to compensation. Re Thomas Allaway, Id., p. 473. The deceased, a boy of nineteen years of age, left his home in Spain and emigrated to Panama, reaching there about March 15, 1910, and on April 10, 1910 he met his death. Prior to leaving home he had been employed and contributed his earnings to the support of his father and mother and the 1038 bradbury's workmen's compensation law Dependents other children. He was killed before receiving any pay from the Canal Commission, and therefore he had sent nothing home. The claim was considered in three separate opinions by the solicitor, in the last of which, upon the taking of further evidence, the foregoing facts were practically es- tablished, and it was held that the parents were dependent within the meaning of the act and entitled to compensation. Re M. T. Gonzalez, Id., pp. 474, 475 and 476. The claimant, who was the mother of the deceased, lived in Spain and was entirely destitute, having no income or property, and subsisted altogether upon public charity. It appeared that the deceased had not contributed anything to his mother's support during the period of his employment upon the Panama Canal. The solicitor, in deciding that the mother was entitled to compensation said: "In construing the former act we are hence at liberty to give to the word dependent the meaning which attaches to it in ordinary speech, in other words, its usual and popular significance. So construed, I am of the opinion that a parent who is shown to be utterly destitute, altogether lacking in property and income, unable to sustain himself or herself, and depending on public charity for the means of living, is a dependent parent within the meaning of the act. A person so circum- stanced is certainly in a condition of actual dependence and the fact, as in the present case, that the claimant's son, an ordinary laborer earning 20 cents per hour, working over seas in a foreign country, had not, while so employed, con- tributed anything to her support, does not, in my judgment, suffice to show that she was not dependent. " The solicitor calls attention to the different meaning of the word "de- pendent" as used in the British Compensation Act and the Federal statute. In the British Act it means such members of the workman's family "as are wholly or in part dependent upon the earnings of the workman." Re Leon Garcia, Id., p. 477. The deceased, twenty-one years of age, had come to FEDERAL COMPENSATION ACT 1039 Dependents America in 1907 from Austria, his parents advancing him the money for his passage to the United States. His parents stated that they had received no money from the deceased during the twelve months prior to his death, although two months prior thereto he had written to them promising to send them about $200, "in order to pay off his and their debts." The Austrian-Hungarian Consul, who filed* the claim on behalf of the parents, stated that they were "very poor and have been hoping all days to receive a support from their child." It was held, under these circumstances, that the parents were dependent and entitled to compensation. Re John Zupa, Id., 479. The father and mother who were the claimants for com- pensation by reason of the death of an employe 1 in the Canal Zone stated that the father's weekly earnings during the twelve months prior to the death of the son were $3; that those of the mother during the same period were nothing; that during this same period the deceased did not contribute to the support of either, but that for four years prior to his employment in the Canal Commission he contributed regularly to the support of the mother 72 cents a week. The father was 45 years of age and the mother 48. It ap- peared that the deceased had been employed in the Canal Zone for more than a year prior to his death and that he did not contribute to the support of either parent during that time. Under the circumstances it was held that the parents were not dependent and compensation was refused. Re J. W. D. Mason, Id., p. 480. Where the affidavit of the parents of a deceased employe" stated that the amount of necessary support customarily received by the parents from deceased prior to his death was nothing, that during the twelve months prior to the death the amount received from him was nothing, that the amount of support from, other persons was nothing, that the total income from all sources was nothing,, that the average earnings of each was nothing and that the value of property 1040 bradbury's workmen's compensation law Dependents owned by them was nothing, that the father's age was 72 and the mother's 60, and that the deceased lived with them until 1907, it was held that claimants could not be regarded as dependents within the meaning of the act and compensation was refused. Re Mariano Fernandez, Id., p. 481. The deceased was nineteen years of age and left no widow or children, but did leave a father and mother who made the claim as to dependence. It appeared that during the twelve months prior to the death of the employe he lived apart from his parents and contributed nothing to their support, and their total income from all sources was $300. The father contended that the son intended to live with them in the winter and had promised to return home and help in whatever way he could. It was held, however, that they were not dependents within the meaning of the act and com- pensation was refused. Re Parker Patton, Id., p. 484. Where it appeared that the deceased had borrowed money from his father, who was in business, and had considerable of an income and that the son, prior to his death, had repaid to his father a portion of the loan, and had promised to make further payments to the father and re-imbursed him for sums advanced to permit him to go to Panama, it was held that the father was not a dependent on the son within the meaning of the act and compensation was refused. Re J. S. Dabbs, Jr., Id., p. 484. The word "portions" as used in the act refers to the divi- sion of the compensation among the claimants and not to its division into weekly or monthly payments, and the secre- tary is authorized 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 beneficiary to the exclusion of the others. Re William A. Brinkky, Id., p. 485; Re Simeon Osbourne, Id., p. 489. Where an injured employ^ dies several days or weeks FEDERAL COMPENSATION ACT 1041 Dependents after the injury, compensation is payable to the injured person or his personal representatives from the date of in- jury to and including the date of death, and for the balance of the year to the widow, children or dependent parent as the case may be. Re William MeCarrel, Id,, p. 490. In such, a case the amount which the deceased was entitled to at the time of his death became an asset of the estate. The fact that he did not make a formal claim is immaterial. He may not have been in condition to do so. Whatever right he had at the time of his death passed to his legal representatives. Re William Lindsay, Id., 491. Where an employe 1 dies as the result of an injury before having made application for or received compensation the spirit and purpose of the act warrants the payment of compensation from the date of injury to the date of death, as well as for the remainder of the year to the widow or family of the deceased. (Opinion of Comptroller of the Treasury) Re Jos. L. Sullivan, Op. So. Dep. C. & L., p. 492. In the last mentioned case the comptroller said: "I do not think the words 'legal representatives' are here used as meaning only executors or administrators which is the ordinary and commonly accepted sense of that term, because they usually by law represent the deceased. But this is not the only definition of the term. The words may mean heirs, or next of kin, descendants, or devisees and distributees." The employe 1 in this case had been injured on June 14th and became immediately incapacitated for any further work. He died on June 25th, eleven days later. The Comptroller held that under the facts presented the payment to the widow was in accordance with the principles of the law and might be made. The William MeCarrel case, was decided on December 3, 1908 while the Joseph L. Sullivan, case was decided on November 8, 1911. In the MeCarrel case the employ^ was injured on October 21, and died four days later on October 25th. In the MeCarrel case the solicitor of the department stated: "I find no provision of the law which 66 1042 beadbury's workmen's compensation law Filing claim would authorize the Secretary to direct that the compen- sation due the decedent at the time of his death be paid to his widow." The solicitor added further: "In the pay- ment of this portion of the compensation authorized by the act the disbursing officer will doubtless be governed by the rules laid down by the Comptroller of the Treasury in 12 Comptroller's Decisions, 439." Compensatiorfrwill not be paid to an administrator of a deceased employe" either for disability before death or for compensation after death, unless the administrator repre- sents a dependent beneficiary specified in the statute. Re Letter of Comptroller Tracewell to the Secretary of War, May 9, 1912, Op. Sol. Dep. C. & L., p. 635; 18 Comp. Dec. 872. Where an employe" is injured and makes a claim for com- pensation, but before the payment of the compensation he is killed by reason of another accident, the compensation for the first injury may be paid to the legal representatives of the employe^ but -if in such a case the employ^ has made no application for compensation prior to his second injury causing his death, no compensation can be paid for the first injury to the legal representatives. Letter of Comptroller Tracewell to the Isthmian Canal Commission, January 24-th, 1910, Op. Sol. Dep. C. & L., p. 633; 16 Comp. Dec, p. 477. The Secretary of Commerce and Labor has power to ap- portion payments to be made to various beneficiaries and acting under this power he may provide that the payment be apportioned in equal shares between the father and mother of a deceased employ^. Re Letter of Comptroller Tracewell to the Secretary of War, Nov. 8, 1909, Op. Sol. Dep. C. & L., p. 630; 16 Comp. Dec. p. 290. 32. Filing claim. The requirement that an affidavit of claim shall be filed within ninety days after the death is mandatory, and the claim of a widow filed ninety-one days after the death of the employe" is barred by the statute. Re William Goodley, Op. FEDEBAL, COMPENSATION ACT 1043 Filing claim Sol. Dep. C. & L., p. 494. In the case last mentioned the employe" was killed on October 8th, 1908, and the affidavit was filed on January 7th, 1909. In making the computation the day on which the employe dies is excluded and the day on which the affidavit is filed is included. The extension of the time within which to file a claim cannot be granted on the ground that the claimant did not understand his rights and that he was wrongly advised by the overseer of the work as to the method of procedure in making his claim. Re David Kaui, Id., p. 495. What may be a reasonable time in which to file an affidavit of claim must be determined with reference to the circum- stances of each case. Re L. F. Perron, Id., p. 536. Neither a verbal notice of claim by a vice consul of Italy to the superior officer of an Italian subject, killed while in the employ of the United States, within ninety days after death, nor a telegraphic notice by such consul sent to the Secretary of Commerce and Labor ninety-two days after his death, is a compliance with the Act. Re Samuele Badolato, Id., p. 505. The. last mentioned case was considered in three separate opinions, but the solicitor adhered to the opinion first ex- pressed. In concluding the third opinion he said: "It is recognized that the limitations of the statute have worked a peculiar hardship in the case of Mr. Badolato, but the executive branch of the Government is without authority to extend the benefits of the Act beyond the plain language used by the legislative branch. To undertake by any rule or regulation to allow nonresident foreigners a longer period than 90 days in which to file affidavits of claim would be a usurpation of the legislative function by the executive de- partment and contrary to the provisions of our Constitu- tion." Where a verbal claim for compensation was promptly made, but an affidavit of claim was not filed until nearly a year after the injury, owing to the neglect of official superiors to furnish necessary forms, the delay was held to be not un- 1044 bradbury's workmen's compensation law Filing claim reasonable, and compensation was awarded. Re James Sturgeon, Id., p. 535. An affidavit of claim may be executed and filed lor the claimant by an attorney in fact duly appointed for that purpose. Re Jesus Jvmiiwz, Id., p. 526. An affidavit of claim filed within ninety days by an agent, in accordance with a sufficient power of attorney executed by a widow of the deceased employe constitutes due filing. Re A. G. Munoz, Id., p. 510. The delivery of an affidavit of claim to the official superior of the deceased employe in accordance with the regulations of the secretary designating such official superior to receive the same, is a filing with the secretary within the meaning of the Act. Re George Nurse, Id., p. 501. It is the date of delivery to the official superior and not the date of the execution of the affidavit of claim which deter- mines whether or not the affidavit of claim is filed within ninety days. Re E. R. Graham, Id., p. 504. Ah affidavit of claim deposited in the mail within ninety days after the death of the employe, addressed to the de- ceased's official superior, but not received by the latter until after the expiration of the ninety day period, is not a filing within the meaning of the Act. Re Isaiah Henry, Id., p. 510. Where a claimant cannot act for himself within the time limited, and another, in his name and behalf, but without prior authority, acts for him and files a claim within ninety days, a ratification by the claimant of the act done on his behalf, though made after the expiration of the ninety days, relates back to the time of the act done so as to make the filing effective as of the prior date. Re Lyall CaUender, Id., p. 512. An affidavit of claim filed with the American consul at Madrid to whom the proper blanks had been sent, and through whom they were to be returned when filled out and executed, held under the circumstances to have been filed FEDERAL COMPENSATION ACT 1045 Filing claim with the Secretary of Commerce and Labor. Re G. P. Mel- char (alias Martin Lorenzo), Id., p. 521. If a beneficiary in case of death, in person or by an agent, files a claim for compensation or what is equivalent to a claim within the time prescribed, and an "affidavit" in the technical sense is not filed until ninety days have expired, owing to the delay of Government officers in supplying the necessary forms, the right to compensation is not barred. Re S. A. Powers, Id., p. 497. An employ^ was killed on March 28th, 1909. He was unmarried and his father lived in Spain. On April 21, 1909, the claimant executed a power of attorney in Spanish, authorizing the Spanish consul at Panama to act on behalf of the claimant. On June 17, 1909, this power of attorney was filed with the examiner of accounts of the Isthmian Canal Commission, and the Spanish consul requested that proper forms be sent him for the purpose of making the claim and affidavit required. As the power of attorney and accompanying letter were written in Spanish they were referred to another office for translation, and in some way the matter was overlooked for several weeks and until the ninety day limit had expired. It was held that under the circumstances the delay should be excused and the claim al- lowed, as having been filed in time. Re J. H. Maillo, Id., p. 498. An employ^ was killed May 3, 1909, and his parents who resided in Spain received word of the death of their son on May 28, 1909. They duly executed, under the laws of Spain, a power of attorney authorizing the Spanish consul in the City of Panama to do all necessary acts for the purpose of securing whatever indemnity might be available to them under the circumstances. This power of attorney was duly filed by the Spanish consul with the claim officer of the Canal Commission, who advised the former official that he should file a claim on behalf of the claimants, to which he replied that inasmuch as the claim had been filed by the parents 1046 bbaobukt's workmen's compensation law Resignation of employe 1 after injury direct he did not care to file a claim. This power of attorney was duly sworn to and fully evidenced the intention on the part of the claimants to make a claim for such indemnity as they would under the laws be entitled to receive. Subse- quently, on June 30, 1909, the Department of State for- warded to the American Vice Consul at Madrid, Spain, blank forms adopted by the Department, to be filled out by claimants for the purpose of making a formal claim thereon. These forms were in turn sent to the claimants, who, as stated by the American consul, lived in a little town far in the country and with but little communication with the outside world. The blanks were filled out and owing to the absence of the notary in the little town a delay was occasioned, but the papers, properly authenticated, were mailed at a town in Spain on August 2, and reached the American consul on August 5. As the ninety day limit expired on August 1, it was first decided that the claim had not been filed within the statutory period. When the first decision was made, how- ever, there was nothing in the record to show the filing of the power of attorney by the Spanish consul at Panama. Under the circumstances, it was held that the filing of this paper was sufficient to comply with the law to prevent the statute of limitation running against the claim and compensa- tion was awarded. Re N. M. Martin, Id., p. 499. An affidavit of claim may be executed before any person authorized to administer oaths generally, and the authority of a person in a foreign country to administer oaths generally is a question of fact which should be established by satis- factory evidence. Re Joseph Gilfillen, Id., p. 523. Authority to administer oaths generally is not indispensa- ble if the specific authority to administer oaths is not so limited as to exclude the oath in question. Re Leon Grant, Id., p. 528. 33. Resignation of employ^ after injury. Where an employe" becomes incapacitated by reason of FEDERAL COMPENSATION ACT 1047 Medical examination an injury received in the course of his employment, his status as a beneficiary immediately attaches, and a resigna- tion thereafter handed in while incapacity still exists, does not have the effect of changing the man's status as being a person employed by the United States and he is entitled to compensation, notwithstanding the resignation. Re Charles Salzmann, Id., p. 599. Where an employe 1 quit work under the United States because he was unable to continue work and made an appli- cation for compensation, based on an injury received while in the service, but he stated that he had not made the claim while still in the service by reason of the fact that he did not know of the Compensation Act, it was held that he^ was entitled to compensation. Re T. H. Watson, Id., p. 596. 34. Medical examination. A refusal of a claimant to submit to a medical examination by a representative of the Government, during his period of alleged incapacity, is sufficient reason to bar him from the benefits of the Compensation Act. Re J. H. Boyan, Id., p. 430. In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that such an examination shall have been directed by the Secretary, that it be made without expense to the employ^, and the em- ploye be advised that such examination is required by the Secretary. Re J.E. Mayott, Id., p. 616. If the Secretary so directs, an examination made by a naval surgeon designated by the Secretary of the Navy to examine an employe 1 to determine this right to continue com- pensation would be a compliance with the Act. Re Enrique ViUanueva, Id., p. 615. The law requires an examination at least once in six months during incapacity and contemplates that payments of compensation be not authorized for a longer period than 1048 BRADBURY'S WORKMEN'S COMPENSATION LAW Administration six months at a' time even though the disability is permanent in its nature. Re Sam Haynes, Id., p. 611. The duty of claimants to submit to medical examination at least once in six months is mandatory upon tfoem, but the obligation of the Secretary to provide such an examination is directory so that a right to compensation is not lost by the Secretary's failure to act. Re Feliciano ViUafranca, Id., p. 612. 35. Physician's certificate. Where the evidence shows incapacity for more than fifteen days, the attending physician's certificate covering onjy the thirteen days the employe 1 was under his observation satis- fies the law. Re F. C. Kuehnle, Op. Sol. Dep. C. & L., p. 531. The fact that no physician was employed satisfactorily accounts for the non-production of a physician's certificate. Re Charles Wagner, Id., p. 532; Re James Foster, Id., p. 533. 36. Administration. The duty of determining whether a claim "for compensation has been established involves a discretion on the part of the secretary, which cannot be delegated to any other person. Re Feliciano Villafranca, : Op. Sol. Dep. C. & L., p. 542. All questions of fact under the Federal Statute are to be determined by the Secretary of Commerce and Labor, and it is not the privilege of the Attorney General to determine questions of fact or mixed questions of fact and law. Re W. P. Hutton, Opinions of Attorney General, p. 322. The Act of May 30th, 1908 (35 Stat. 5S6), is exclusive after it came into effect and after that date it was no longer in the power of the Isthmian Canal Commission by regula- tions past or present to enlarge or diminish the provisions of that Act, as to the relief extended to employes of the Commission for injuries received in the line of such employ- ment. Letter of Comptroller Tracewell to the Isthmian Canal FEDERAL COMPENSATION ACT 1049 Text of Act Commission, Sept. 1, 1908, Op. Sol. Dep. C. & L., p. 618; 15 Comp. Dec. p. 115. ARTICLE B— TEXT OF FEDERAL ACTS AN ACT granting to certain employe's of the United States the right to receive from it compensation for injuries sustained in the course of their employment. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That when, on or after August first, nineteen hundred and eight, any person em- ployed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy-yards, or in the construction of river and harbor or fortification work or in hazard- ous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, is injured in the course of such employment, such employe" shall be entitled to receive for one year thereafter, unless such employe, in the opinion of the Secretary of Commerce and Labor, be sooner able to resume work, the same pay as if he continued to be employed, such pay- ment to be made under such regulations as the Secretary of Com- merce and Labor may prescribe: Provided, That no compensation shall be paid under this Act where the injury is due to the msegli- gence or misconduct of the employe injured, nor unless said injury shall continue for more than fifteen days. All questions of negli- gence or misconduct shall be determined by the Secretary of Com- merce and Labor. Sec. 2. That if any artisan or laborer so employed shall die dur- ing the said year by reason of such injury received in the course of such employment, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of Com- merce and Labor may prescribe, the same amount, for the re- mainder of the said year, that said artisan or laborer would be en- titled to receive as pay if such employe were alive and continued 1050 bradbury's workmen's compensation law Text of Act to be employed: Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any. Sec. 3. That whenever an accident occurs to any employe 1 em- braced within the terms of the first section of this act, and which results in death or a probable incapacity for work, it shall be the duty of the official superior of such employe 1 to at once report such accident and the injury resulting therefrom to the head of his Bureau or independent office, and his report shall be immediately communicated through regular official channels to the Secretary of Commerce and Labor. Such report shall state, first, the time, cause, and nature of the accident and injury and the probable duration of the injury resulting therefrom; second, whether the accident arose out of or in the course of the injured person's em- ployment; third, whether the accident was due to negligence or misconduct on the part of the employe" injured; fourth, any other matters required by such rules and regulations as the Secretary of Commerce and Labor may prescribe. The head of each Depart- ment or independent office shall have power, however, to charge a special official with the duty of making such reports. Sec. 4. That in the case of any accident which shall result in death, the persons entitled to compensation under this Act or their legal representatives shall, within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for compensation under the provisions of this Act. This shall be accompanied by the certificate of the attending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily accounted for. In the case of incapacity for work lasting more than fifteen days, the injured party desiring to take the benefit of this act shall, within a reason- able period after the expiration of such time, file with his official superior, to be forwarded through regular official channels to the Secretary of Commerce and Labor, an affidavit setting forth the grounds of his claim for compensation, to be accompanied by a certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity, or the non- production of the certificate shall be satisfactorily accounted for. FEDERAL COMPENSATION ACT 1051 Text of Act If the Secretary of Commerce and Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such additional investigation as the Secretary of Commerce and Labor may direct, that a claim for compensation is established under this act, the compensation to be paid shall be determined as provided under this act and approved for payment by the Secretary of Commerce and Labor. Sec. 5. That the employe shall, whenever and as often as re- quired by the Secretary of Commerce and Labor, at least once in six months, submit to medical examination, to be provided and paid for under the direction of the Secretary, and if such employe refuses to submit to or obstructs such examination his or her right to compensation shall be lost for the period covered by the contin- uance of such refusal or objection. Sec. 6. That payments under this Act are only to be made to the beneficiaries or their legal representatives other than assignees, and shall not be subject to the claims of creditors. Sec. 7. That the United States shall not exempt itself from lia- bility under this Act by any contract, agreement, rule, or regula- tion, and any such contract, agreement, rule, or regulation shall be pro tanto void. Sec. 8. That all acts or parts of acts in conflict herewith or pro- viding a different scale of compensation or otherwise regulating its payment are hereby repealed. Approved, May 30, 1908. AN ACT to amend an Act entitled "An Act granting to certain employes of the United States the right to receive from it com- pensation for injuries sustained in the course of their employ- ment," approved May thirtieth, nineteen hundred and eight. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the provisions of the Act approved May thirtieth, nineteen hundred and eight, entitled "An Act granting to certain employes of the United States the right to receive from it compensation for injuries sustained in the course of their employment," shall, in addition to the classes of persons therein designated, be held to apply to any artisan, laborer, or other employe engaged in any hazardous work under 1052 bradbury's workmen's compensation law Text of Act the Bureau of Mines or the Forestry Service of the Wasted States: Provided, That this Act shall not be held to embrace any case aris- ing prior- to its passage. Approved, March 11, 1912. (37 Stat. 238-289) And hereafter ±he benefits of the Act of May thirtieth, nineteen hundred and eight (Thirty-fifth Statutes, page five hundred and fifty-six), entitled "An Act granting to certain employes of the United States the right to receive from it compensation for injuries sustained in the course of their employment," shall be extended to persons employed by the United States in any hazardous em- ployment in the Lighthouse Service. Approved, July 27, 1912. (36 Stat. 1363) Sec. 5. Hereafter the act granting to certain employes of the United States the right to receive from it compensation for injuries sustained in the course of their employment shall apply to all em- ployes under the Isthmian Canal Commission, when injured in the course of their employment; and claims for compensation on ac- count of injury or death resulting from an accident occurring, here- after shall be settled by the chairman of the Isthmian Canal Com- mission, who shall, as to such claims and under such regulations as he may prescribe, perform all the duties now devolving upon the Secretary of Commerce and Labor: Provided, That when an injury results in death claim for compensation on account thereof shall be filed within one year after such death. Approved, March 4, 1911. KENTUCKY (L. 1914, c. .73) AN ACT to create a Workman's Compensation Fund and to pro- vide a method of compensation for employed who may be in- jured, or the dependents of those killed in the course of their employment from said fund, to be raised and paid into the hands of the State Treasurer, as herein provided, and to define and fix the rights of employes and employers and to define the de- fenses that may be made by employers in actions for damages arising from death or personal injury of their employes, and to provide a method of raising said fund, and to create a Board of Commissioners to administer said fund and to define the rights, powers and duties of said Board of Commissioners. Be it enacted by the General Assembly of the Commonwealth of Ken- tucky. Section 1. That a Board of Commissioners is' hereby created to be known as "The Workmen's Compensation Board" to admin- ister the funds for the compensation of injured workmen, and the dependents of killed workmen, as herein provided. Said Board shall consist of three members, who shall be the Attorney General, the Commissioner of Insurance, and the Commissioner of Agricul- ture, Labor and Statistics of the Commonwealth of Kentucky, who shall receive seventy-five dollars each per month, payable out of the Compensation Fund. Sec. 2. The Board shall keep and maintain in its main office in the City of Frankfort, Kentucky, and shall provide suitable rooms, necessary office furniture, supplies, books, periodicals, and maps for the same. All necessary expenses shall be audited and paid out of the Workmen's Compensation Fund created under this Act. It shall provide itself with a seal for the authentication of its orders, awards and proceedings, on which shall be inserted the Wofrds: "Workmen's Compensation Board, State of Kentucky, Official SeaL" The Board may hold sessions at any place within the State. Said Board shall have the power to sue and be sued. 1052a 1052b bradbury's workmen's compensation law Kentucky Sec. 3. The Board shall elect one of its members President, and members shall receive the amount named in Section One for their services. Their actual and necessary traveling expenses in the discharge of their duties shall be itemized and approved by the Board, and certified by the Auditor of Public Accounts, and shall be paid as now paid to other State officials. The Board shall elect a Secretary, who shall hold his office at the pleasure of the Board and who shall receive for his services an annual salary not to exceed Twenty-five hundred ($2,500) dollars, to be paid out of the Work- men's Compensation Fund created under this Act. Sec. 4. The Board may employ actuaries, accountants, in- spectors, examiners, experts, clerks, physicians, stenographers and other assistants and fix their compensation. Such employ- ment and compensation shall be first approved by the Governor, and shall be paid out of the Workmen's Compensation Fund created under this Act. The Secretary, actuaries, accountants, inspectors, examiners, experts, clerks, physicians, stenographers and other assistants that may be employed shall be entitled to receive from the Workmen's Compensation Fund created under this Act their actual and necessary expenses while traveling on the business of the Board, and the members of the Board may confer with and meet with, officers of other States and officers of the United States on matters pertaining to their official duties. Such expenses shall be itemized and sworn to by the person who in- curred the expense, and allowed by said Board. Sec. 5. The Board shall meet every Monday for the transaction of all business, and when necessary, the Secretary shall call said Board together to consider and transact such business as may be before it. All proceedings of the Board shall be shown on its records of proceedings which shall be a public record and shall con- tain a record of each case considered and the award made, with respect thereto, and all voting shall be had by the calling of each member's name by the Secretary, and each vote shall be recorded as cast. Sec. 6. A majority of the Board shall constitute a quorum for the transaction of business and vacancies shall not impair the right of the remaining members to exercise all the powers of the full Board, so long as a majority remains. Any investigation, inquiry or hearing which the Board is authorized to hold or under- TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052c Kentucky take, may be held or undertaken by or before any one member of the Board. All investigations, inquiries, hearings and decisions of the Board, and every order made by a member thereof, when approved by a majority of the members and so shown on the record of its proceedings, shall be deemed to be the order of the Board. Sec. 7. The Board shall adopt reasonable and proper rules to govern its procedure, regulate and provide for the kind and char- acter of notice and the service thereof, in case of accident and in- jury to employes, the nature and extent of proof and evidence and the methods of taking and furnishing same, to establish the rights to benefits or compensation from the fund hereinafter provided for, the form of application of those claiming to be entitled to benefits or compensation therefrom; the methods of making physical examinations and inspections and prescribe the time within which adjudications and awards shall be made. Sec. 8. Each member of the Board, the Secretary and every inspector or examiner appointed by the Board, shall, for the pur- pose contemplated by this Act, have power to administer oaths, certify to official acts, take depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents and testimony. Sec. 9. In the case of failure or refusal of any person to comply with the order of the commission or subpoena issued by it or one of its inspectors or examiners, or on the refusal of a witness to testify to any matter regarding which he may be lawfully inter- rogated, or refuse to permit an inspection; as aforesaid, the Circuit Judge of the county in which the person resides, on application of any member of the commission or any inspector or examiner appointed by it, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein. Sec. 10. Each officer who serves a subpoena shall receive the same fees as a sheriff, and each witness who appears in obedience to a subpoena before a commission or inspector or examiner, op before the Board, shall receive, for his attendance the fees and mileage provided for witnesses in civil cases in circuit court, which shall be audited and paid from the Workmen's Compensation Fund, in the same manner as other expenses are audited and paid upon the presentation of proper vouchers approved by any two 1052d bradbury's workmen's compensation law Kentucky members of the commission. No witness subpoenaed at the instance of a party other than the commission or an inspector, shall be entitled to compensation from the Workmen's Compensa- tion Fund, unless the commission shall certify that his testimony was material to the matter investigated. Sec. 11. In an investigation, the commission may cause deposi- tions of witnesses residing within or without the State to be taken in the manner prescribed by law for like depositions to be used in the circuit court. Sec. 12. A transcribed copy of the evidence and proceedings or any specific part thereof, on any investigation, taken by a stenog- rapher appointed by the Commission, being certified and sworn to by said stenographer to be a true and correct transcript of the testimony in the investigation, or of a particular witness, or of a specific part thereof, or to be a correct transcript of the pro- ceedings had on said investigation's© purporting to be taken and subscribed, may be received in evidence by the commission with the same effect as if such stenographer were present and testified to the fact certified. A copy of such transcript shall be furnished on demand to any party on payment of the fee therefor, as pro- vided for transcripts in the circuit court. Sec. 13. The Board shall prepare and furnish, free of charge, blank forms and provide in its rules for. their distribution, so that the same may be readily available, of applications for benefits for compensation from the Workmen's Compensation Fund, notice to employers, proofs of injury or death, or medical attention, of employment and wage earnings, and such other blanks as may be deemed proper and advisable andit shall be the duty of employers to constantly keep on hand a sufficient supply of such blanks. See. 14. All persons, firms and, corporations, regularly employing six or more persons for profit for the purpose of carrying on any form. of industry hereinafter mentioned, in the State of Kentucky, are employers within the meaning of this Act, and are subject to its provisions. All persons in, the service of employers, as herein defined, and employed' by them for the purpose of carrying on the industries hereinafter mentioned, in whteh they are engaged (persons casually employed, excepted), are? employes within the meaning of this Act and subject to the provisions thereof; provided that this Act shall not apply to employers of employes in domestic TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052e Kentucky or agricultural service, to employe's of any employer who are em- ployed wholly without the State, nor shall a member of a firm of employers or any officer of a corporation employer be deemed an employe within the meaning of this Act. Sec. 15. The industries which are subject to this Act are clas- sified as follows: (1) Coal mines, including their tipples, power, light, heating and ventilating plants, tramways, private tracks and sidings and accessory and auxiliary plants, working in or with by-products. (2) Paint manufactories, oil refineries, oil and gas wells including their pipe lines, storage, power or light plants, tramways, private tracks and sidings, and accessory and auxiliary plants working in or with by-products. (3) Iron and steel mills, including blast furnaces, smelters, tube work, rolling mills, and their accessory and auxiliary plants, working in or with by-products, and plants generating power, light or heat, and tramways, private tracks and sidings. (4) Sheet and tin plate mills, including their accessory and auxil- iary plants, working in or with by-products, and plants generat- ing power, light or heat, and tramways, private tracks or sidings. (5) Foundries, machine shops, fire-arm factories, tool factories, car building and repairing, structural iron works, and working in or with iron or steel not otherwise specified, when power driven machinery is used together with their necessary and auxiliary plants working in or with by-products, and plants, generating power, light or heat, and tramways, private tracks and sidings. (6) Stamped metal works, can factories, enamel iron works, and workings in or with sheet iron or tin plates, not otherwise specified where power driven machinery is used, together with their acces- sory and auxiliary plants, working in or with by-products, and plants generating power, light or heat, and tramways, private tracks and sidings. (7) Logging-Logging railroads and tramways, saw mills, in- cluding their accessory and auxiliary plants working in or with by- products, and plants generating power, light or heat, and tram- ways, private tracks and sidings. (8) Planing mills, wood pulp, cordage and paper mills, box factories, cooperage plants, furniture factories, woodenware or wood fibre ware manufactories, vehicle works of every kind, in- 1052f bradbury's workmen's compensation law Kentucky eluding their accessory and auxiliary plants working in or with by- products, and plants generating power, light or heat, and tram- ways, private tracks and sidings. (9) Glass houses of all kinds, including manufactories of table- ware, bar goods, bottles, tumblers, glass light fixtures, parts, lamps, window and plate glass, potteries of all kinds including tile, brick, terra cotta, fire clay, earthenware, porcelain, china, crockery-ware using automatic mdfehinery together with accessory and auxiliary plants working in or with by-products, and plants generating light or heat, and tramways, private tracks and sidings. (9a) Glass houses of all kinds, including manufactures of table- ware, bar goods, bottles, tumblers, gas light fixture parts, lamps, window and plate glass, potteries of all kinds, including tile, brick, terra cotta, fire clay, earthenware, porcelain, china and crockery- ware, not using automatic machinery, together with accessory and auxiliary plants working in or with by-products, and plants generating power, light or heat, and tramways, private tracks and sidings. (10) Printing plants of all kinds, electrotyping, photoengraving, engraving, lithographing, embossing, bookbinding, and accessory and auxiliary lines of work and manufacture. (11) Woolen mills, knitting mills, cotton mills, carpet and rug mills, clothing manufactories of every kind and working in or with textiles not otherwise specified. (12) Breweries, bottling works, canneries of fruit, vegetables, oils, fish, milk or meat, manufactories of preserves, jellies, ketchup, sauces, relishes, pickles, flour and feed mills, bakeries, confec- tioneries, drug and extract manufactories, tobacco, cigar and stogie cigarette manufactories, in which power driven machinery is used. (13) Slaughter and packing houses, stock yards, soap, tallow, lard and grease manufactories, tanneries, artificial ice, and re- frigerating and cold storage plants, creameries, and carbon black factories, in which power driven machinery is used. (14) Steam laundries, dyeing and cleaning plants, stamping, embossing and working with leather, shoe and harness manufac- tories, mattresses and bedding factories, upholstering factories, manufactories of rubber goods, and auxiliary and accessory lines of work and manufacture not otherwise specified, TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052g Kentucky (15) Steam and other railroads and transportation systems not otherwise specified. (16) Street and interurban railways, whether propelled by electricity or other power. (17) Telegraph and telephone plants and systems, electric light and power plants and systems, steam heat and power plants and systems, water works systems, gas works and systems, grain elevators and all lighting, heating or power systems not otherwise specified. (18) Quarries, stone crushers, gravel pits, mines, other than coal mines, and working with asphalt, cement, stone or other building material not otherwise specified, power propelled ferries, sand diggers and other water craft. (19) Such works, occupations and manufactories specified in the foregoing eighteen classifications as are operated without power driven machinery. (20) Match factories, powder mills, fire-works factories, and works in which articles of an explosive nature are mixed or manu- factured. (21) Constructing of tunnels, shafts, bridges, trestles, steeples, towers, grain elevators, tanks, water towers, wind mills, subaqueous works, iron or steel frame structures, or parts of structures, blast furnaces, smoke stacks, cupolas or chimneys more than fifty feet high, waterworks and systems, electric lights and power plants and systems, gas works systems, installation of steam boilers, engines and dynamos, steam railroads, logging railroads, street railways and systems, boat building with scaffolds, floating docks, engineering works, structural work on buildings over three stories in height, not otherwise specified, and drilling of wells. (22) Construction and installation of sewers, fire escapes, freight or passenger elevators, advertising signs, ornamental work on or in buildings, metal ceilings, plate or window glass, electrical wiring, stairways, buildings which require galvanized iron or tin work, marble, stone or brick work, roof work, slate work, plumbing work, carpenter work, electric work, installing automatic sprinklers, electric or fire alarm systems, heating or ventilating systems, or machinery not otherwise specified, covering steam pipes or boilers, road and street making, street or other grading and structural work not otherwise specified. 1052h bradbxjry's workmen's compensation law Kentucky (23) Such work or occupations not specified in the foregoing classifications in connection with which employer and employes shall voluntarily apply to the commission for the benefit and pro- tection of this Act. And the Board shall have the power, on or before the first day of January and July of each year, to re-classify the industries subject to this Act, or to create additional classifica- tions in accordance with their respective degrees of hazard and determine the risk of different classes and fix the rates or premiums for each class, according to the risk of same, sufficiently large to provide an adequate fund for the compensation provided for in this Act and to create a surplus sufficiently large to guarantee a work- men's compensation fund from year to year; provided that the rate so fixed shall not exceed the maximum of one dollar and twenty-five cents on each one hundred dollars of the gross annual pay roll of each employer in any class for the first year after this Act takes effect but the board may increase the rate if deemed necessary on the first day of July or January in any year. But in determining the rate of premium the board shall consider the length of time during which payment to employers or dependents under the Act may be paid; and provided that employes engaged in the same industry shall be placed in the same class. The premium required to be paid by employers shall be based on the gross annual pay roll of each employer in any class. The classifica- tion so determined and the rates of premium established, shall be applicable for such year; or portion thereof; and provided further that the purpose of this Act, the pay of any employe 1 employed partly within and partly without the State shall be deemed to be such proportion of the total pay of said employe as his services within this state bears to his service outside the same. Sec. 16. Each employer shall furnish the Board, upon request all the information required by it to carry out the purpose of this Act. The Board or any member thereof, or any person employed by the Board for that purpose shall have the right to examine under oath, any employer or officer, agent or employ6 thereof. Sec. 17. Within thirty days from the organization of the Board, every employer subject to this Act shall notify the commission of such fact. The Board shall prepare blank reports for the use of and furnish same to employers subject to this Act, and every employer receiving from the commission any blank, or blanks, texts of compensation acts Of American states 10521 Kentucky with directions for filling out and returning same, shall return the same filled out, so as to answer fully and correctly all pertinent questions there propounded, and if unable to do so, shall give good and sufficient reason for such failure. Answers to such questions shall be verified under oath, and returned to the commission within the period fixed by the commission for such return. Sec. 18. Every employer shall furnish the Board upon request all information required by it to carry out the purposes of this Act. In the month of January of each year, every employer subject to the Act shall prepare and mail to the Board at its main office in the City of Frankfort, Kentucky, a statement containing the following information, viz: The number of employes employed during the preceding year from January first, to December thirty- first, inclusive; the number of such employes employed at each kind of employment and the aggregate amount of wages paid to such employes, which information shall be furnished on a blank or blanks to be furnished by the Board and it shall be the duty of the Board to furnish such blanks to employers free of charge, upon request therefor. Every employer receiving from the Board any blanks with directions to fill out same shall cause the same to be properly filled out so as to answer fully and correctly all pertinent questions therein propounded and to give all the information therein sought, or if unable to do so, he shall give to the Board, in writing, good and sufficient reasons for such failure. Any employer who shall fail, or refuse to furnish to the Board the annual state- ment herein required, or who shall fail or refuse to furnish such other pertinent information as may be required by the Board, as provided by this section, shall be liable to a penalty of not exceed- ing five hundred dollars ($500) to be collected in a civil action brought against said employer in the name of the State. All such penalties, when collected, shall be paid into the Workmen's Com- pensation Fund and become a part thereof. Sec. 19. The information contained in the annual report pro- vided for in the preceding section, and such other information as may be furnished to the Board by employers, in pursuance of the provisions of any section hereof, shall be for the exclusive use and information of said Board in the discharge of its official duties, and shall not be open to the public; nor be used in any court in the action or proceeding, but the information contained in said report 1052j bradbtjry's workmen's compensation law Kentucky may be tabulated and published by the department in statistical form for the use and information of other State departments and the public. Any person who shall divulge any information secured by him while a member of the Board or an employe 1 thereof in respect to the transactions, property or business of any company, firm, corporation, person, association or co-partnership, to any person other than the members of the Board, shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500), and shall thereafter be disqualified from holding any appointment or employment with the Board. Sec. 20. The commission shall establish a Workmen's Compen- sation Fund from the premiums paid thereto by the employers based on the pay rolls of such employers that have paid the pre- miums applicable to the class to which they belong, and for the benefit of the dependents of such employes, and shall adopt rules and regulations with respect to the collection, maintenance and dis- bursement of said fund, not in conflict with the provisions of this Act. Sec. 21. The Board shall keep an accurate account of the money paid in premiums by each of the several classes of occupations or industries and the disbursements on account of injuries and deaths of employes thereof and the disbursements for salaries and ex- penses, and it shall also keep an account of the money received from each individual employer, and the amount disbursed from the Workmen's Compensation Fund on account of injuries and death of the employes of such employers should any money remain to the credit of any class, at the end of any year, after disbursements on accounts of deaths of and injuries to employers * of that class during such year, such remainder not exceeding ten per cent of the money paid into said fund on account of such class shall be set aside for the creation of a surplus, until the surplus shall be sufficiently large to guarantee a Workmen's Compensation Fund for such class. But claims for the benefits under this Act shall always have priority over the surplus fund. Sec. 22. On the first of July, 1915, and semi-annually thereafter, a readjustment of the rates shall be made for each of the several classes of occupation or industry, which in the judgment of the 1 Evidently intended for employes. TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052k Kentucky Board, have developed an average loss ratio in accordance with the experience of the Board in the administration of law, as shown by the accounts kept, as provided herein. Sec. 23. The Treasurer of the State shall be the custodian of the Workmen's Compensation Fund, and all disbursements therefrom shall be paid by him upon vouchers furnished by the Workmen's Compensation Board, and sighed by any two members of the Board, or such vouchers may bear the facsimile signature of the Board members printed thereon, and the signature of the Secretary of said Board. Sec. 24. The State Treasurer shall give a separate and additional bond, in such amount as may be fixed by the Governor with sureties to be approved by him conditioned on the faithful performance of his duties as custodian of the Workmen's Compensation Fund. Sec. 25. The State Treasurer is hereby authorized to deposit any portion of the Workmen's Compensation Fund, not needed for immediate use, in the same manner and subject to all provisions of law with respect to the deposit of State funds by such Treasurer, and all interest earned by such portion of the Workmen's Compen- sation Fund as may be deposited by said Treasurer, in pursuance of authority herein given, shall be collected by him and placed to the credit of such fund. Sec. 26. The Workmen's Compensation Board shall have the power to invest any surplus or reserve belonging to the Workmen's Compensation Fund in bonds of the United States, State of Kentucky, or of any county, city, school-district or taxing district of the State of Kentucky, at current market prices of such bonds, provided that such purchase be authorized by resolution adopted by the Board and approved by the Governor. Sec. 27. Every employer subject to this Act who shall elect to pay into said Workmen's Compensation Fund and receive the benefit of this Act shall, on or before the 1st day of January, 1915, and monthly thereafter in advance, and on or before the 10th day of each month, beginning March 10th, 1915, pay into the said Workmen's Compensation Fund the amount of premiums so paid by each employer to be determined by the classification, rules and rates made and prepared by the Board, and a receipt or certificate, certifying that such payment has been made, shall immediately be mailed to such employer by the Workmen's Compensation 10521 bradbuby's workmen's compensation law Kentucky Board, which receipt or certificate, attested by the seal of the Board shall be prima facie evidence of the payment of such prem- ium. Sec. 28. In order to create a fund available on the application of this Act as aforesaid on the first day of January, 1915, the pay- ments for the months of January, February and March, 1915, inclusive, shall be made on or before the first day of January, 1915, and be preliminarily based upon the pay roll of the operations of any three months between July, 1914, and January, 1915, to be selected by the said Board. If any employer be found to have overpaid for such three months, he may deduct such overpayment from the first monthly payment to the fund. If any employer be found to have under paid for such three months, he shall pay the deficiency made by him after the end of said three months. Every employer electing to pay into said Workmen's Compensation Fund after January 1, 1915, shall pay into said fund three months in advance the amount of premium to be based preliminarily upon such employers' pay roll for the three months preceding the appli- cation; any over payment to be credited on his first monthly pay- ment after the expiration of said three months and any under pay- ment to be made up by him upon his first monthly payment as hereinbefore provided with respect to employers who elect to pay in to said fund on or before January 1st, 1915; and the Board shall make proper rules and regulations to carry this provision into effect and for cases where the employer has had no pay roll preceding his application. Sec. 29. It shall be lawful for any employe* subject to this Act, including persons under twenty-one years of age to contract with any employer subject to this Act who elects to pay the premiums herein provided to be paid into said Workmen's Compensation Fund, to accept the compensation provided to be paid to injured employes and the dependents of ;those killed, and to accept the benefits conferred on employes by this Act, in lieu of any cause of action which he might have, if injured, or that his representative might have if he was thereafter killed through the negligence of such employer, of the negligence of his agents, servants, officers or employes, and to waive all causes of action against such em- ployer conferred by the Constitution or Statutes of this State or by the common law for his injury or death, occurring through the TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052m Kentucky negligence of the employer or his agents and such contract shall be binding upon the employer and upon the employe - and upon his heirs, personal representatives and all persons claiming under or through him. Sec. 30. Such a contract between an employe" and his employer shall be conclusively presumed to have been made in every case where an employer has elected to pay into the Workmen's Com- pensation Fund, if said employe" shall continue to work for said employer thereafter, with notice that the employer has elected to pay into said fund and the posting of printed or typewritten notices in conspicuous places about the employer's place of busi- ness at the time of the elections of such employer to pay into the Workmen's Compensation Fund that he has elected to pay into said Workmen's Compensation Fund shall constitute sufficient notice to all such employer's employes then or thereafter employed of the fact that he has made such an election, and the continuance in the service of such employers shall be deemed a waiver by the employe" of his rights of action, as aforesaid. Except as provided in Section 32. Sec. 31. Any employer subject to this Act, electing to pay into the Workmen's Compensation Fund, the premiums provided for by this Act, shall not be liable to respond in damages at common law or by statute for the injury or death or loss of service of any employe" occurring through the negligence of such employer, or his agent, servants, officers, or employes, during any period of time in which such employer shall not be in default in the payment of such premiums. Provided, that the injured employe has re- mained in the service after notice is posted as provided in Sec- tion 31, that his employer has elected to pay into the Workmen's Compensation Fund the premiums provided by this Act. The continuance in the service of such employer or accepting service after such notice shall have been posted, shall be deemed a waiver by the employe" of his rights of action, as aforesaid. Except as in Section 32. Sec. 32. Any employe" prior to receiving an injury may give notice to an employer who has elected to pay into said fund, that he will not accept the benefits of this Act and waive his rights of action as herein provided. Such notice shall be in writing and served on the employer as provided by the Civil Code for the 1052n bradbury's workmen's compensation law Kentucky service of notices, and a copy thereof shall be mailed by the em- ploye to the Workmen's Compensation Board. If thereafter such employ 6 shall be injured or killed while employed by such employer who has elected to pay into the said Workmen's Compensation Fund, and an action shall be instituted against such employer to recover damages for the injury or death of such employe, it shall be sufficient defense thereto and shall bar recovery if the injury of said employe was caused by or contributed to by the negligence of any other employe" of said employer, or if the injury was due to any of the ordinary hazards, or risks of the employment, or if due to any defect in the tools, machinery, appliances, instrumen- tality or place of work, if the defect was known or could have been discovered by the injured employe by the exercise of ordinary care on his part, or was not known or could not have been discovered by the employer by the exercise of ordinary care in time to have prevented the injury nor in any event, if the negligence of the injured employe" contributed to such injuries. But nothing herein shall deprive such employer of any defense not herein mentioned. If the employer is not in default in payment of premiums and a recovery shall be obtained against him in such action, the said Board shall pay on said judgment not exceeding a sum equal to the amount which the said injured employe or his dependents in case of death, would have been entitled to recover if he had elected to accept the benefit of this Act, and the employer shall receive credit on said payment for the payment made by the Board. Such employ^, at any time, after he has elected not to accept the benefits of this Act and waive his right of action, as in this Act provided, may withdraw such election and come under the provisions of this Act and accept its benefits and waive his right of action as herein provided, by giving written notice to his employer and to the Board; and shall thereafter occupy the same position as if he had originally elected to accept the benefits of this Act and waive his cause of action, provided, that such withdrawal of his election not to accept the benefits of this Act shall not affect claims for damages against his employer on account of injuries theretofore received; nor entitle such injured employe to be paid anything out of the Workmen's Compensation Fund on account of prior injury. Sec. 33. The Commission shall disburse the Workmen's Com- pensation Fund to such employes within the meaning of this Act} TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052o Kentucky of employers as have paid into such fund the premiums for the period in which the injury occurs, applicable to the class to which they belong that shall have received injuries in this State in the course of and resulting from their employment, or to the depend- ents, if any, of such employes, in case of his death, according to the provisions hereinafter made. Sec. 34. All employers subject to this Act who shall elect not to pay into the Workmen's Compensation Fund the premiums provided by this Act, or having elected to pay shall be in default in the payment of same shall be liable to their employes within the meaning of this Act, for damages by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employers, 1 and also to the personal representatives of such employe 1 and in any action by any such employ^ or personal representative thereof, such defendant shall not avail himself of the following defenses. The defense of the fellow servant; the defense of the assumption of risk, or the defense of contributory negligence. Sec. 35. The commission shall disburse and pay from the fund in addition to any such amounts as they may be entitled thereto under this Act, such amounts for medical, nurse and hospital services and medicine as it may deem proper, not, however, in any case to exceed the sum of One Hundred Dollars ($100) in addition to such awards to such employes; payment to be made to the employer to the persons who may have furnished the services and supplies or to the persons who may have advanced payment for the same, as the commission shall deem proper. Provided, that in case any injured employ^ be entitled, under the contract con- nected with his employment, or otherwise, to hospital or medical services without further charge to him, no payment shall be made out of the Workmen's Compensation Fund for hospital or medical services. Sec. 36. Notwithstanding anything hereinbefore or hereafter contained, no employe 1 or dependent of any employe 1 shall be entitled to receive any sum from the Workmen's Compensation Fund on account of any injury to or death of an employe* caused 1 Evidently intended for employes. 1052p bkadbtjky's workmen's compensation law Kentucky by a self-inflicted injury, wilful misconduct or intoxication of such employed If injury or death results to an employe" through the deliberate intention of his employer to produce such injury or death, the employ6, the widow, widower, children or dependents of the employe" shall have the privilege to take under this Act, or in lieu thereof, to have a cause of action against the employer as if this Act had not been enacted for such damages as may be sus- tained by such employe, his personal representative or dependent. Provided, that if a suit is brought under this section, the right to participate in said Workmen's Compensation Fund on account of such injury, shall be waived and void as to all persons, and if a claim is made for compensation from said Workmen's Compensa- tion Fund, all rights to sue the employer for damages for such injury shall be waived and void. Sec. 37. In case death ensues from the injury received reasonable funeral expenses, not to exceed seventy-five dollars ($75.00), shall be paid from the fund to the personal representative, to the em- ploy^, or to such other person as shall have advanced the same, in addition to such award to the employe's dependents. Sec. 38. No benefit shall be allowed for one week after injury is received, except the disbursements provided for in Section 35. Sec. 39. In case of temporary total disability the employe" shall receive fifty per cent of his average weekly wages, so long as such disability is total, not to exceed a maximum of Twelve Dollars ($12.00) a week, and not less than a minimum of Five Dollars ($5.00) a week, unless the employees weekly wages shall be less than Five Dollars ($5.00) a week, in which event, he shall receive compensation equal to his full wages, but in no case to continue for more than six years from the date of the injury, or to exceed Three Thousand Seven Hundred and Fifty Dollars ($3,750.00). Sec. 40. In case of injury resulting in partial disability the em- ploye shall receive fifty per cent of the impairment of his earning capacity during the continuance thereof, not to exceed a maximum of Twelve Dollars ($12.00) a week or an aggregate sum of more than Three Thousand Seven Hundred and Fifty Dollars ($3,750.00). In cases including the following schedule, the disability in each case shall be deemed to continue for the period specified, and the compensation so paid for such injury shall be as specified herein, to-wit: TEXTS OP COMPENSATION ACTS OF AMERICAN STATES 1052q Kentucky For the loss of a thumb, fifty per cent of the average weekly wages during sixty weeks. For the loss of a first finger, commonly called the index finger fifty per cent of the average weekly wages during thirty-five weeks. For the loss of a second finger, fifty per cent of the average wages during thirty weeks. For the loss of a fourth finger, com- monly known as the little finger, fifty per cent of the average weekly wages during fifteen weeks. The loss of the second, or distal phalange, of the thumb, shall be considered to be equal to the loss of one-half of such thumb; the loss of more than one-half of such thumb shall be considered to be equal to the loss of the whole thumb. The loss of the third, or distal phalange, of any finger shall be considered to be equal to the loss of one-third of such finger. The loss of the middle, or second phalange, of any finger shall be considered to be equal to the loss of two-thirds of such finger. The loss of more than the middle and distal phalanges of any finger shall be considered to be equal to the loss of the whole finger; provided, however, that in no case will the amount received for more than one finger exceed the amount provided in this schedule for the loss of a hand. For the loss of a metacarpal bone (bone of palm) for the corre- sponding thumb, finger, or fingers above, add ten weeks to the number of weeks as above. For ankylosis (total stiffness of) or contractures (due to scars or injuries) which makes the fingers more than useless, the same num- ber of weeks applied to such finger or fingers (not thumb) as given above. For the loss of a hand, fifty per cent of the average weekly wages during one hundred and fifty weeks. For the loss of an arm, fifty per cent of the average weekly wages during two hundred weeks. For the loss of one of the toes, other than the great toe, fifty per cent of the average weekly wages during ten weeks. For the loss of the great toe, fifty per cent of the average weekly wages during thirty weeks. The loss of more than two-thirds of any toe shall be considered equal to the loss of the whole toe. The loss of less than two-thirds of any toe shall be considered equal to the loss of one-half toe. 1052r beadbury's workmen's compensation law Kentucky For the loss of a foot, fifty per cent of the average weekly wages during one hundred and twenty-five weeks. For the loss of a leg, fifty per cent of the average weekly wages during two hundred weeks. For the loss of an eye, fifty per cent of the average weekly wages during one hundred weeks. The amounts specified in this clause are all subject to the limita- tions as to the maximum weekly amount payable as hereinbefore specified in this action. For the loss of a third finger, fifty per cent of average weekly wages during twenty weeks. Sec. 41. In case of permanent total disability the award shall be fifty per cent of the average weekly wages and shall continue until the death of such persons so totally disabled, but not to exceed a maximum of twelve dollars ($12.00) per week and not less than a minimum of five dollars ($5.00) per week, at the time of the injury, in which event he shall receive compensation in an amount equal to his average weekly wages. The loss of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, shall prima facie constitute total and permanent disability to be compensated according to the provisions of this section. Sec. 42. In case the injury causes death within the period of two years, the benefits shall be in the amount and to the persons following: Sub-Sec. 1. If there are no dependents the disbursements from the Workmen's Compensation Fund shall be limited to the expense provided for in Sections 35 and 37. And the said Board shall have the sole right of action to recover from an employer who has elected to pay into said fund who is not in default in the payment of premiums for the death of an employe leaving no dependent caused by negligence of such employer or his employes or agents. Sub-Sec. 2. If there are wholly dependent persons at the time of death, the payment shall be fifty per cent of the average weekly wages and to continue for the remainder of the period between the date of death and six years after the date of the injury and not to exceed the maximum of three thousand seven hundred and fifty dollars ($3,750.00) nor less than the minimum of one thousand five hundred dollars ($1,500.00). TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052s Kentucky Sub-Sec. 3. If there are partly dependent persons at the time of death, the payment shall be fifty per cent of the average weekly wages and to continue for all or such portion of the period of six years after the date of injury, as the Board in such case may determine, and not to amount to more than a maximum of three thousand seven hundred and fifty dollars ($3,750.00). Sub-Sec. 4. The following persons shall be presumed to be wholly dependent for support on a deceased employed (a) A wife upon a husband with whom she lives at the time of his death, (b) A child, or children under the age of sixteen years (or over sixteen years, physically or mentally incapacitated from earnings) upon the parent with whom she is living at the time of the death of such parent. In all other cases the question of dependency in whole or in part shall be determined in accordance with the facts in each particular case of such employe - but no persons shall be considered as a dependent unless a member of the family of the deceased employe^ or bears to him the relation of widower or widow, lineal descendants, ancestors or brother or sister. The word "child" as used in this act, shall include a posthumous child, and a child legally adopted prior to the injury. Sec. 43. The benefits in case of death shall be paid to such one or more of the dependents of the deceased for the benefit of all the dependents as may be determined by the Board, which may apportion the benefit among the dependents in such manner as it may deem just and equitable. Payment to a dependent sub- sequent in right may be made, if the Board deems it proper, and shall operate to discharge all other claims therefor. The dependent or person to whom benefits are paid, shall apply the same to the use of the several beneficiaries thereof, according to their respective claims upon the decedent for support in compliance with the finding and direction of the Board. In all cases of death where the dependents are a widow and one or more minor children, it shall be sufficient for the widow to make application to the Board on behalf of herself and minor children and in cases where all the dependents are minors, the application shall be made by the guardian of such minor dependent or dependents. The persons and classes of persons by this act specified shall be deemed to be the sole dependents of such employed and no other person or class of persons shall receive any benefit from the fund hereby credited. 1052t bradbtjry's workmen's compensation Law Kentucky And should any employe" leave surviving him no such dependent, the amount that would be due and payable to his dependents, had any survived him, shall be paid, or credited to the Workmen's Compensation Fund to the credit of the class to which such em- ploys belonged. Sec. 44. The average weekly wages of the injured person at the time of the injury, shall be taken as the basis upon which to com- pute benefits. Sec. 45. Whenever the Board shall find that an employe" has been injured without fault on his part while in the course of his employment, through the negligence of the employer in the failure to discharge a non-delegable duty, the Board may require such employer to pay an additional premium into said Workmen's Compensation Fund equal to an amount not exceeding ten per cent of the sum awarded by the Board to such injured employe" or his dependents. Said premium shall be paid within thirty days after the order is made. Before making an order to pay such additional premium, the Board shall give ten days' notice in writing, to the employer, to show cause against the order. Sec. 46. Whenever the Board shall find that an employe" has received an injury in the course of his employment, through the fault of his employer in failing to comply with any statute for the protection of employ6s, the Board shall fix a day on which the employer may appear before the Board and show any cause he may have against said finding, or against the Board awarding the additional sum herein provided, ten days' notice in writing, shall be given the employer of the time and place of said hearing. If no sufficient cause is shown by the employer against the finding of the Board, it shall enter an order to that effect and the employer shall, within ninety days, pay into and for the benefit of the Workmen's Compensation Fund a sum to be fixed by the Board in its order not to exceed an amount equal to twenty-five per cent of the amount awarded to the said injured employe" or his depend- ents, under Sections 39 to 42 of this Act. Said payment shall be made by the employer in a lump sum. Sec. 47. In case any minor employe" who is illegally employed shall be injured or killed, in the course of his employment, his statutory guardian or his representative, if the infant is killed, may claim compensation under the terms of this Act or sue as though texts of compensation acts op American states 1052u Kentucky this Act had not been passed. In the event claim is made for the injury or death of such infant or compensation from the said Workmen's Compensation Fund, the Board shall in addition to the sum awarded and payable from the Workmen's Compensation Fund award an equal amount against the employer of said infant not to exceed the sum of two thousand dollars ($2,000.00). The amount awarded against him shall be paid by the Board to the said infant or to his guardian, or representative if the infant is killed, in installment, or in a lump sum as the Board may determine as provided for the payment of awards from the said Workmen's Compensation Fund. Before any order is made requiring an employe 1 to pay any sum to the guardian or to the representative of such infant, under this section of the claim, to compensation under this section, notice of the time and place of the hearing of said claim by the Board, shall be given to the employer and the employer shall have the right to be heard and to introduce evidence on the question of his liability. Provided, that a claim made to compensation from said Work- men's Compensation Fund by the guardian of the infant or his personal representative, if the infant is killed, shall be a waiver and bar of all rights of action on account of said injury to said infant, and the institution of an action by the guardian or repre- sentative of the infant, shall be a waiver of the right to compensa- tion from said Workmen's Compensation Fund. Sec. 48. Should a further accident occur to an employe 1 receiving periodical payments under this Act, for a temporary disability, or who has been previously the recipient of a lump sum payment under this Act, his future compensation shall be adjusted according to the other provisions of this Act with reference to the combined effect of his injuries and his past receipt of money, under this Act. Sec. 49. The powers and jurisdiction of theBoard, over each and every case shall be continuing, and it may from time to time make such modifications or changes with respect to former findings or orders with respect thereto, as in its opinion, may be justified. Sec. 50. The Board, under special circumstances and when the same is deemed advisable, may commute periodical benefits to one or more lump sum payments. Sec. 51. Compensation before payment shall be exempt from all claims of creditors and from any attachments, executions or I052v Bradbury's workmen's compensation law Kentucky lien, and shall be paid only to such persons as shall be entitled to take under this Act, and any assignment of such claims shall be void. Sec. 52. The Board shall have full power and authority to hear and determine all questions within its jurisdiction and its decision thereon shall be final. Provided, however, in case the final action of such Board denies the right of the claimant to participate at all in such fund on the ground that the accident did not arise in the course of employment, or upon any other ground going to the basis of the complainant's right, then the claimant, within thirty days after notice of the final action of the Board, may file a petition against the Board in the circuit court of the county wherein the injury was inflicted, asserting his rights therein, to participate in said fund. In such action, the Commonwealth's Attorney and the County Attorney, in the circuit court, and the Attorney General in the Court of Appeals, if the case is appealed, shall rep- resent the Workmen's Compensation Board, said action shall proceed as ordinary actions in the circuit court, and if the court shall find and adjudge that the plaintiff is entitled to participate in such fund, the Board shall fix his compensation within the limits and under the rules prescribed in this Act. Such action shall have the same precedence on the trial dockets of the circuit court and the Court of Appeals, as election contest cases now have. Sec. 53. The Workmen's Compensation Board shall not be bound by the usual common law for statutory rules of evidence or by any technical or formal rules of procedure other than as herein provided; but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this Act. Sec. 54. A minor legally employed shall be deemed sui juris for the purpose of this Act, and no other person shall have any cause of action or right to compensation for an injury to such minor workmen or loss of service on account thereof, but in the event of the award of a lump sum of compensation to such minor employe^ such sum shall be paid only to the legally appointed guardian of such minor. Sec. 55. No agreement by an employe" to waive his rights to compensation under this Act shall be valid. No agreement by an employe" to pay any portion of the premium paid by his em- TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052w Kentucky ployer into the Workmen's Compensation Fund shall be valid, and any employer who deducts any portion of such premium from the wages or salary of any employ^ entitled to the benefits of this Act shall be guilty of a misdemeanor and upon conviction thereof, shall be fined not more than one hundred dollars ($100.00) for each such offense. Sec. 56. Any employ^ claiming the right to receive compensa- tion under this Act may be required by the Board or its chief medical examiner, to submit himself for medical examination at any time and from time to time at a place reasonably convenient for such employe, and as may be provided by the rules of the Board. If such employ6 refuse to submit to any such examination or obstruct the same, his right to have his claim for compensation considered, if his claim be pending before the Board, or to receive any payment for compensation theretofore granted, shall be sus- pended during the period of such refusal or obstruction. Sec. 57. All books, records and pay rolls of the employers of the State, showing or reflecting in any way upon the amount of wage expenditure of such employers, shall always be open for inspection by the Board of any of its traveling auditors, inspectors, or assist- ants, for the purpose of ascertaining the correctness of the wage expenditure, the number of men employed and such other pertinent information as may be necessary for the uses and purposes of the Board in its administration of the law. Refusal on the part of any employer to submit his books, records and pay rolls for the inspec- tion of any member of the Board or traveling auditor, inspector or such assistant presenting written authority from the Board, shall subject such employer to a penalty of one hundred dollars for each offense, to be collected by civil action in the name of the State, and paid into the Workmen's Compensation Fund to be- come a part thereof. Sec. 58. Any employer who fraudulently misrepresents to the Board the amount of pay roll upon which the premium under this Act is based, shall be liable to the State in ten times the amount of the difference in premium paid and the amount the employer should have paid. The liability of the Board under this section shall be enforced in a civil action by the Board and all sums collected under this section shall be paid into the Workmen's Compensation Fund. 1052x bradbury's workmen's compensation law Kentucky Sec. 59. The provisions of this Act shall apply to employers and their employes engaged in intra-state and also in inter-state and foreign commerce for whom a rule or liability or method of com- pensation has been or may be established by the Congress of the United States, only to the extent that their mutual connection with the intra-state work may and shall be clearly separable and distinguishable from inter-state or foreign commerce, and then only when such employer and any of his workmen working in this State, with the approval of the Board and as far as not for- bidden by any Act of Congress, voluntarily accept the provisions of this Act, by filing written acceptances, which, when filed with and approved by the Board, shall subject the acceptors irre- vocably to the provisions of this Act to all intents and purposes and as if they had been originally included in its terms, during a period or periods for which the premiums herein provided have been paid. Payment of premiums shall be on the basis of the payroll of the workmen who accept, as aforesaid. Sec. 60. Every employer shall keep a record of all injuries, fatal or otherwise, received by his employes in the course of their em- ployment. Within a week after the occurrence of an accident resulting in personal injury, a report thereof shall be made in writing to the Workmen's Compensation Board upon blanks to be procured from the Board for that purpose. Such report shall contain the name and nature of the business of the employer, the location of his establishment or place of work, the name, address and occupation of the injured employe^ and shall state the time, the nature and cause of injury and such other pertinent information as may be required by the Board. Any employer who refuses or neglects to make any report required by this section, shall be punished by a fine of not more than five hundred dollars ($500.00) for each offense. An injured employe, if he is able so to do, and the attending physician, whether the injury results in the death of such employe" or not, and within one week from the time of such injury or death, shall give written notice to the employer and the Board of such injury, stating the nature and extent thereof, the time and place of its occurrence, the name, address, and occupation of such injured employ^, and the names and addresses of the persons present at the time of the injury, so far as such names and addresses are known, or can be obtained. Any em- TEXTS OF COMPENSATION ACTS OF AMEBICAN STATES l052y Kentucky ployes or physician failing or refusing to make report as by this section required, shall be punished by a fine not exceeding twenty- five dollars ($25.00). And the Board may in its discretion, if such injured employe^ or his dependents are subsequently found to be entitled to any payments out of the compensation fund, deduct any amount, not exceeding said sum of twenty-five dollars ($25.00) from the benefits payable hereunder, or from the amount that might otherwise be paid to said attending physician, should such physician fail to make such report. Sec. 61. Upon the request of the Board, the Attorney General, or under his direction, the County or Commonwealth's Attorney of any county shall institute and prosecute the necessary actions or proceedings for the enforcement of any of the provisions of this Act, or for the recovery of any money due the Workmen's Compen- sation Fund, or any penalty herein provided for, arising within the county in which he was elected and shall defend in like manner all suits, actions or proceedings brought against the Board or the members thereof in their official capacity. Sec. 62. All judgments contained in any action prosecuted: by the Board under the authority of this Act, shall have the same preference against the assets of the employer as is now or may be hereafter allowed by law on judgments rendered for claims for taxes. Sec. 63. If any employer shall default in any payment required to be made by him to the Workmen's Compensation Fund, the amount due by him shall be collected by civil action against him in the name of the Board as plaintiff. Such actions may be brought either in the Franklin Circuit Court or in the Circuit Court in the county in which the defendant resides or has his principal place of business. Sec. 64. Annually on or before the fifteenth day of December such Board shall make a report to the Governor for the preceding fiscal year, which shall include a statement of the number of awards made by it, a general statement of the cause of accident leading to the injuries for which the awards were made and detailed statement of the disbursements from the expense fund and the condition of its respective funds, together with any other informa- tion which the Board deems proper to call to the attention of the Governor, including any recommendations it may have to make, 1032z bradbury's workmen's compensation law Kentucky and it shall be the duty of the Board from time to time to publish and distribute among employers and employes such general in- formation, as to the business transacted by the department as in its judgment may be useful. Sec. 65. The Board shall cause to be printed in proper form for distribution to the public, its classifications, rates, regulations and rules of procedure, and shall furnish the same to any person upon application therejjpr, and the fact that such classifications, rates, rules, regulations and rules of procedure are printed ready for distribution to all who may apply for same, shall be sufficient publication of the same, as required by this Act. Sec. 66. If any employer shall be adjudged to be outside the lawful scope of this Act, the Act shall not apply to him or his employes: or if the employe" shall be adjudicated to be outside the lawful scope of this Act, because of the remoteness of his work from the hazard of his employer's work, such adjudication shall not impair the validity of this Act in other respects, and every such case as accounting, according with the justice of the case, shall be had of the moneys received. If the provisions of this Act for the creation of the fund or the provision of the Act authorizing employes to waive causes of action against employers for injuries received in the course of their employment and making compensa- tion to the employes and their beneficiaries provided in this Act exclusive of any other remedy on the part of the employ6, shall be held invalid, the entire Act shall thereby be invalidated and an accounting according to the justice of the case shall be had of money received. In other respects an adjudication of the validity of any part of this Act shall not affect the validity of this Act as a whole or any part thereof. Sec. 67. If a single establishment or works comprises several occupations listed in Section 15 in different risk classes the pre- mium shall be computed according to the pay roll of each occupa- tion if the occupations are clearly separable; otherwise an average rate of premium shall be charged for the entire establishment tak- ing into consideration the number of employes and the relative hazards of the employes in the several occupations. Sec. 68. If the employe of an employer who has elected to accept the provisions of this Act, is injured by the negligence or wrong of another person not in the same employment, the injured employe^ TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052aa Kentucky or if death resulted from the injury, his dependents, as the case may be, shall elect whether to take under Act or seek a remedy against such other persons, such election to be in advance of instituting any suit; and, if he take under this Act, the cause of action against such other person shall be and is hereby assigned to the Board for the benefit of the compensation fund; if the other choice is made, the compensation fund shall contribute only the deficiency, if any, between the amount of recovery against such third person actually collected and the amount of compensation provided by this Act for such case. If such injury is due to the joint negligence of his employer and any other person not in the same employment, and the injured employe^ or in case of death resulting from the injury, his dependents, as the case may be, shall have elected to take compensation under this Act, the causes of action against the other joint tort feasor shall be and is hereby assigned to the Board for the benefit of the compensation fund. Any cause of action, so assigned to the Board, may be prosecuted or compromised, in the discretion of the Board. Any compromise by the injured employe or his dependent, in the case of death, of any such suit, which would leave a deficiency to be made good out of the compensation fund, shall be made only with the written approval of the Board. Sec. 69. This Act shall not affect any section pending or cause of action existing on the 31st day of December, 1914. Sec. 70. Notwithstanding anything in this Act, any employer filing notice with the Workmen's Compensation Board, of his intention so to do, and upon furnishing satisfactory proof to said Board of his solvency and financial ability to pay the compensation and benefits hereinbefore provided, may make said payments direct to his employes as they may be entitled to receive same under the terms and conditions of this Act, and any employer electing to administer the compensation fund direct to his employes shall have the benefit of all the provisions of this Act as though said fund were paid into and administered by said Board. Sec. 71. Nothing in this Act shall prevent any employer carrying his own risk from insuring his liability in any liability company authorized to do business in this State, provided the amounts to be paid are not less than that provided in this Act. Sec. 72. In case any employer carrying his own risk cannot agree 1052bb bradbury's workmen's compensation law Kentucky with an employ^ on the payments as provided for in this Act, such employe shall have the right to submit his claim in writing within sixty days to the Workmen's Compensation Board, and it shall be the duty of the Board to delegate one of its members to investi- gate said claim and endeavor under the provisions of this Act to reach a satisfactory settlement of the claim. In event the final action of the members of the Board denies the right of the claimant to participate in the fund as provided in Section 52, then the claim- ant may proceed as provided in Section 52, and compensation, if awarded the claimant, shall be fixed as provided in Section 52, and in the event the employer feels that the award should not have been granted, he shall have the right of appeal to the circuit court . and from the circuit court as in other cases. Sec. 73. The application of this Act, as between employers and employe, shall date from and include the first day of January, 1915. Sec. 74. Every employer subject to this Act who shall on or before November 1, 1914, elect not to pay into said Workmen's Compensation Fund and receive the benefits, hereof, shall on or before the first day of November, 1914, so notify the Board in writing, and any such employer not so notifying the Board shall on or before January 1st, 1915, pay into the fund the premiums as provided for in Section 27, hereof. Employers who elect to accept the benefits hereof, and pay into said Workmen's Compen- sation Fund, may at the time fixed for making any such payments, withdraw from the benefits hereof, and thereafter be relieved from further payments, but notice of such withdrawal shall be served on the Board and posted by written or printed notices in at least three conspicuous places about his plant. Such employer, may, however, at any time thereafter again elect to come under the provisions hereof by making payment of premium and posting notices as originally required. If any employes of an employer not entitled to the benefits hereof, or the dependents of such em- ploye 1 in case of his death, shall make application to the Board for the benefits hereunder, it shall be the duty of the Board to at once notify such employe, or his dependents of the fact that such em- ployer is not entitled to the benefits of his Act. Sec. 75. Applications for benefits hereunder, shall be made by the injured employ6 or his dependents, within one year from the TEXTS OF COMPENSATION ACTS OF AMERICAN STATES 1052CC Kentucky time of the injury, and if not so made within said time, shall thereafter be barred and not allowed by the Board. Members of the Workmen's Compensation Board shall be con- sidered as officers, and shall take the oath prescribed by the Con- stitution and laws of Kentucky, and shall give bond for the faithful performance of their duties, which bond shall be approved by the Governor and kept on file in the office of the Secretary of State, and any action on said bond for breach thereof, shall be instituted by special counsel employed by the Governor and shall be in the name of the Commonwealth. Edward J. McDebmott President of the Senate. Claude B. Terrell Speaker of the House of "Representatives. Approved March 21st, 1914 James B. McCreary Governor. COMMONWEALTH OF KENTUCKY Office of the SECRETARY OF STATE Certificate I, C. F. Crecelius, Secretary of State for the Commonwealth of Kentucky, do certify that the foregoing writing has been carefully compared by me with the original record thereof, now in my official custody as Secretary of State and remaining on file in my office, and found to be a true and correct copy. In Witness Whereof, I have hereunto set my [Seal.] hand, and affixed my official seal. Done at Frankfort this 26th day of March 1914 C. F. Crecelius Secretary of State. By Cecil H. Vansant Assistant Secretary of State, KF 3615 B79 191^ Author Bradbury, Harry Title Workmen's Compensation IM ff* ! l| HH i ii M I HI « l «w mil i< mmdimimmaia m ut»M