jiiir^ iiiiiiiii ;;!i;iiii]iUi;. tm M \m illiii: mm Mli^iii-iiff Asmsbffi . 'Miii:^ '4*^M«:Y«4M i^mmr' A.\ CO. t-J^I ""law J; 45 JOHN ST :^ newyobk. ^ His nn (Jorn^U ^am ^rJjnnl Slihtary Digitized by Microsoft® Cornell University Library KF3615.B791917 Bradbury's workmen's compensation law / 3 1924 019 313 778 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® BRADBURY'S WORKMEN'S COMPENSATION LAW HARRY B. BRADBURY OF THE NEW YORK BAR. AUTHOR OP " BRADBURY's RULES OF PLEADING" AND VARIOUS WORKS ON PLEADING AND PRACTICE THIRD EDITION THE BANKS LAW PUBLISHING COMPANY BAKER, VOORHIS & COMPANY NEW YORK 1917 Digitized by Microsoft® Copyright, 1912, by THE BANKS LAW PUBLISHING CO. * Copyright, 1914, by THE BANKS LAW PUBLISHING CO. Copyright, 1917, by THE BANKS LAW PUBLISHING CO., BAKER, VOORHIS & CO. Digitized by Microsoft® PREFACE TO THE THIRD EDITION When the first and second editions of this work were published the various workmen's compensation statutes were new and could not be secured- without considerable trouble. This was especially true of the laws of States other than those in which a particular investigator was situated. That condition is now entirely changed. The statutes now appear in regular publications and are easily accessible to the profession generally. The interpretation of the statutes by the courts and the general principles which have been adopted and which are not covered by specific statutory provisions have become matters upon which enlightenment is important. In this third edition, therefore, the various statutes have not been reprinted. Naturally numerous references have been made to the statutes. But the text of the work is confined essentially to the. discussion of judicial interpretation. ITaturally, also, such brief extracts from the statutes have been added as have been found necessary to niake clear the particular points under discussion. These laws covered so large a portion of the industrial activities of the States where they were adopted that many cases speedily found their way to the courts. The result has been the creation of a large body of judicial law within a comparatively short time. While a number of problems yet remain to be solved a large percentage of the questions of practical importance have been authoritatively deter- mined. The publication of the book was delayed so as to include the decisions of the Federal Supreme Court on the Constitutional ques- tions as well as on those relating to interstate commerce and maritime law, and they will all be found herein, the last ones having been decided on May 21, 191Y. The author has endeavored to include a reference to every reported American case and also to include a dis- cussion of all the important British and Canadian cases. In this discussion rthere has haen included the decisions of the •J ^ t, qmiz^ymcnosotm . . t j j various accident boards and industrial commissions. Indeed, any iii IV PEBFACE treatise on tibe workmen's compensation principle, without including the decisions of these boards and commissions, would be inadequate, fragmentary and entirely unsatisfactory. These boards and com- missions represent a new development in American jurisprudence. They have more power than the courts ever possessed, in many respects. Moreover, they have superseded that bulwark of British and American jurisprudence, trial by jury, to an extent hardly appreciated except by those who have given close study to the subject. Their decisions on many questions are final. They may make rules regarding evidence and procedure which ignore or revolutionize the doctrines established by both legislatures and courts during several centuries. Without, therefore, intending in the slightest degree' to condemn or even to criticise this new departure in jurisprudence, it is obvious that to attempt to state the judicial principles established in relation to the compensation principle without reference to the decisions made by these boards and commissions, would result in the production of a work which should be and doubtless would be condemned as entirely superficial. The author cannot close this preface without a sincere acknowledg- ment to the various boards and commissions for the very kind and courteous assistance which he has received at their hands in preparing • this third, as well as the previous editions of this work. !N"o reason- able request has ever been refused. Some of the commissions are so new that they have not yet accumulated a sufficient body of precedents based on actual experience to be of especial value. But wherever any information was available it has been furnished freely and with a courtesy which has mitigated, to a considerable degree, the inevitable drudgery incident to the writing of a book of this character. A word should be said as to the arrangement of the material in some of the chapters. It was found that there was considerable con- flict in the decisions from various States on particular points. This was due principally to variations in the provisions of the different statutes. In such cases it was thought advisable to arrange the material by States, alphabetically, as each investigator naturally would desire to have the decisions from his own State first. This plan has been followed generally, not only in regard to the arrange- ment of entire f^^^l^^^M^AfBVl^^S^SWE)^^^ ^®° ^^ regard to the PREFACE V arrangement of practically all the subdivisions. While this gives certain portions of the book the appearance of a carefully arranged digest, this was done intentionally, after giving the matter much careful consideration. "Whether or not it is the best arrangement that could have been adopted the author is not prepared to say, but it seemed to him to be the best one under the circumstances. Thus an examination of the index will indicate where the topic is discussed and under that topic the cases will be found arranged alphabetically according to States. A number of the more important topics, how- ever, as to which the cases were not so numerous and as to which the decisions did not depend on the construction of particular statutes, ' the division has been made on a topical basis entirely. Many of the reports to which reference is made are not readily available in all parts of the country, and in view of this circumstance it has been deemed advisable to concisely state the facts in every case where necessary to a complete understanding of the doctrine an- nounced by the court, board or commission. This has tended still further to give the work the appearance of a digest in some divisions. But this also has been done with premeditation, in the belief that such an arrangement would prove the most satisfactory under the circumstances. Haebt B. Beadbttey. 141 Broadway, I^ew York, August 1, 1917. Digitized by Microsoft® Digitized by Microsoft® TABLE OF CONTENTS CHAPTER I. ECONOMIC PRINCIPLES INVOLVED Abucxoe; A — The Fundamental Bases op the Compensa- tion Principle 1. Distribution of cost of com- pensation and general effect on employers and employes . . 2. The obligation to the com- munity and to the work- men's families as distin- FAOE guished from the personal obligation to the workmen. 3 3. Distinction between " acci- dental " injuries and " oc- cupational diseases " 7 4. Limiting operation of acts to so-called " hazardous " em- ployments 8 5. Injuries to employes who are sub-normal physically 9 CHAPTER II. THE BRITISH AND GERMAN COMPENSATION ACTS PAGE Abticle a — The Origin and General Principles Un- derlying THE Two Acts.. 12 1. Tlje British and German Compensation Acts com- pared 12 2. The general effect of the British Act on American statutes and decisions 14 CHAPTER ni. COMMON-LAW DEFENSES PAGE Abticle A — Historical Review AND Changes Wrought by Compensation Acts 18 1. Origin and nature of the so- called common-law de- 2. Reason for abolishing the common-law defenses in relation to compensation acts 3. Burden of proof generally . . 20 23 fenses 18 . 4. To what extent common-law Digitized^ Microsoft® Vlll TABLE OF CONTENTS PAGE defenses have been abol- 11. ished generally 25 12. 5. When contributory negli- 13. gence pleaded only in miti- 14. gation of damages 29 15. 6. Common-law defenses avail- 16. able as against casual em- ^ 17. ploye 29 18. 7. Negligence of the employer 19. must still be shown in ac- 20. tion for damages 29 21. 22. Aeticle B — Specific Peovisions 23. OF Vabious Statutes 30 24. 1. Alaska 30 25. 2. Arizona 30 26. 3. California 32 27. 4. Colorado 33 28. 5. Connecticut 33 29. 6. Hawaii 34 30. 7. Illinois 34 31. 8. Indiana 36 32. 9. Iowa 36 33. 10. Kansas 37 34. PAGE Kentucky 38 Louisiana 38 Maine 38 Maryland 39 Massachusetts 39 Michigan 40 Minnesota 40 Montana 41 Nebraska 41 Nevada 42 New Hampshire 42 New Jersey 43 New York 45 Ohio 45 Oklahoma 47 Oregon 47 Pennsylvania 48 Rhode Island 48 Texas 49 Vermont 49 Washington 50 West Virginia 50 Wisconsin 51 Wyoming 52 CHAPTER IV. BRIEF HISTORICAL REVIEW OF COMPENSATION LEGISLATION IN AMERICA PAGE Aeticij!!' A — General View 53 1. Efforts to pass compensation acts In the United States . . 63 page 2. Brief review of the Ameri- can laws thus far passed. 55 CHAPTEE V. CONSTITUTIONAL LAW Abticui A — Statutes As STITUTIONAI GENEEi fa bvMi(h)iSW^ . . 63 2. State ci court decisions, court decisions. . . PAGE . 63 . 63 TABLE OB' CONTENTS 12 CHAPTEE VI. STATE MANAGED INSURANCE FUNDS PAGE Abticle a — Definition and Descbiption 70 1. Importance of the subject. . 70 2. The meaning of the term " State Insurance " in America 70 3. Some of the merits and de- merits of State managed funds as compared with stocl£ and mutual insur- ance companies 71 FAGE Abticle B — Peemiums and the Rates Theeeof 76 1. Actuarial principles under- lying State insurance laws 76 2. Basis of premium 79 3. Collecting premiums from delinquents 80 4. Liability of employer for premium on contract work begun before act took effect 81 5. Necessity of legislative ap- propriation to pay award. 81 CHAPTEE VII. EXTRA-TERRITORIAL EFFECT OF WORKMEN'S COM- PENSATION ACTS page Abticle A — Division op the Subject and Poweb of THE Leqislatuee 82 1. Division of the subject 82 2. Power to give extra-terri- torial effect to act 83 Article B — Peinciples of Beitish and Amebican Acts Compaeed 83 1. The limited application of the decisions under the British Act to the Ameri- can statutes 83 Abticle C — Conflict Under State Laws 95 1. To what extent will the courts of one State enforce the laws of ^riotJQj^f^u^i^s'Sf^' PAGE Abticle D — Rulings .of Amebi- can Coubts, Boards and Commissions 102 1. Preliminary 102 2. California 102 3. Connecticut , 105 4. Iowa 107 5. Massachusetts 107 6. Michigan 108 7. Minnesota 108 8. Missouri 109 9. Montana 109 10. Nevada 109 11. New Jersey 109 12. New York 113 13. Ohio 117 14. Rhode Island 117 15. West Virginia 117 insin 117 TABLE OF CONTEH'TS CHAPTER VIII. TO WHOM ACTS APPLY PAGE Abticie a — How THE Relation OF Employee and Em- ploye IS Created and Under What Conditions It Continues 121 1. How the relation of master and servant or employer and employ^ Is created generally 121 2. Agency to employ 123 3. Assistants 124 4. Caddie for golf club 125 5. Captain of chartered vessel. 125 ' 6. Changing place of work 125 7. Clerk of building construc- tion 125 8. Colorable transfer of busi- ness by employer 126 ,9. Commission salesman 126 10. Contract assigned as se- curity for financial ad- vances 126 11. Creditor taking over man- agement of firm financially embarrassed 126 12. Disobedience of specific order does not discon- tinue relation 127 13. Defense that relation of master and servant exists in common-law action 127 14. Dual employers 127 15. Emergency employ^ 130 16. Employer also workman; relation with other work- men 130 17. Estoppel to deny relation. . 130 18. Fraud in securing employ- ment 130 19. Incidenial employment 131 20. Independent contractors . . . 133 21. Instances in which it has were employes and not con- tractors . . 136 (a) Agent with supervisory powers 136 (b) Allowance to employ^ for automobile and assistant.. 138 (c) Bill collector intermit- tently employed 138 (d) Bowling alley pin boy re- reciving percentage of amount paid 139 (e) Chairman on exhibition grounds 139 (f ) Commission agent 139 (g) Contractor also employ 6 when performing extra service 139 (h) Dividing men into groups or gangs 140 (i) Employ^ of contractor not of the principal 140 (j) Employ^ supplying material at a profit 140 (k) Installing machinery under independent contract 140 (1) Inventor receiving advance when perfecting invention 141 (m) Labor union furnishing employes 141 (n) Lump sum as wages based on estimated time to do work 141 (o) Mining operations 141 (p) Moving picture actor fur- nishing airplane 142 (q) Piece workers 143 (r) Plumber doing repair work. 146 (s) Profit sharing arrangement 146 (t) Subcontracts as subter- fuge to avoid liability 147 (u) Tugs 147 (v) Undisclosed contract 147 been held iQi$itimetktff^icros6W^^^^^^^^°^^^ principal .... 147 TABLE OF CONTENTS XI FAOB (x) Vaudeville actress 147 (y) Vessels 148 (z) Wmdow washer 148 22. Instances on which It has been held that workmen were contractors and not employes 148 (a) Associated workmen 148 (b) Building contracts 148 (c) Commission agent 150 (d) Employes of contractor not of principal 150 (e) Hod elevator 150 (f) Men and appliances at stipulated sum per hour or for entire work 151 (g) Mining operators 152 (h) Participating in profits 152 (i) Partnership contractors . . . 153 ( j ) Piece worker 153 (k) Pilots 155 (1) Principal assisting contrac- tor 155 (m) Teamsters 155 (n) Work outside of regular employment 155 23. Landlord and tenant 156 24. Loaned employ^ 157 25. Partnership arrangement, but one party retains status of employe 160 26. Physician attending to com- pensation cases 160 27. Quitting work 161 28. Receiver as employer. 161 29. Substitutes 161 30. Teamsters 163 (a) Owner driving his own team 164 b) Driver of team owned by another and hired to a third person 165 31. Vendor and purchaser 168 32. Volunteer 168 AbticLiE B — Application or Statutes Geneballt 169 1. Classification of statutes... 169 2. -usual course of t£^gt^ade^^^ FAOE business or profession" of the employer 169 3. Definition of the word " em- ployd " or a " workman " under compensation acts. . 173 4. Subscriber 175 5. Agreements between em- ployer and employ^ to waive Compensation Act. . 175 6. Contracts of employment ex- isting at time of passage of Compensation Act 175 7. Death occurring after statute goes into effect by reason of injury happening before statute effective. . . . 176 8. Injuries occurring prior to passage of Act 176 9. Number of employes as af- fecting application of Act. 176 10. Wages of employ^ as de- termining application of Compensation Act 179 11. Pecuniary gain 180 12. Presumption that employes covered by Act 180 13. Action for damages against third person causing In- juries 181 14. Taking effect of Act post- poned by referendum 182 Abticle C — Specific Instances Illtjsteating the Extent or THE COVBEAGE UNDEB Compensation Acts 182 1. Apartment house 182 2. Apprentices 182 3. Artificial flower manufac- turer 183 4. Alien non-residents 183 5. Automobile driver 184 6. Baker 185 7. Blacksmith 185 8. Boarding mistress of con- struction crew 185 9. Boarding stable 186 10. Book agents or canvassers. . 186 ,,11. Bott^r 186 Microsoft® Xll TABLE OF CONTESTTS 12. 13. 14. 15. 15a, 16. (a) (b) (c) (d) (e) (f) (g) (h) (1) (J) (k) 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. S4. 35. 36. 37. 38. 89. 40. 41. PAGE Boy receiving small gratui- ties 186 Buildiiig residence 186 Butchers 187 Buyer for storage warehouse 187 , Carpenter making repairs in department store 188 Casual employes 188 British doctrine 188 Varying rule in America. . . 191 California • 191 Connecticut '. . . . 196 Illinois 197 Indiana 197 Massachusetts 197 Michigan 198 New Jersey 199 Ohio 200 Pennsylvania 201 Charitable institutions 201 Churches 202 Commission agents 202 Commission merchant 203 Convict 203 Counties 204 Dairies 204 Delivery helper in depart- ment store 204 Delivery wagon driver de- livering on foot 204 Department store 205 Director of bank 205 Domestic servants 205 Driver of brewery wagon . . . 207 Drygoods and clothing mer- chant 207 Dual employers 208 Dual business enter.: 'ises conducted by on, em- ployer 208 Elevator operator 210 Erection of ranch cottages . . 210 Express agent 211 Factory using power 211 Family 211 Farm laborers 212 Firemen 216 42. 43. 44. 45. 46. 52. 53. 54. 55. PAGE Gas company 217 Gasolene merchant 218 General utility man in occu- pation classified as hazard- ous 218 Glass manufacturer 218 Handy man working for a real estate corporation .... 218 47. Hay press 218 48. Horticultural laborer 219 49. Hotel manager 219 50. Ice harvesting 219 51. Ice manufacturer 220 Installing water tank 220 Interstate commerce 220 Iron manufacturer 223 Janitor 223 56. Jurors 224 57. Labor union 224 58. Lamp manufacturer 224 59. Leather manufacturer 224 60. Lecturer 224 61. Lessor and lessee 224 62. Loft building 225 63. Longshoreman 225 64. Machinery 225 65. Machinery manufacturer . . . 226 66. Mail contractor 226 67. Man of all work 226 68. Maritime employes 226 Marshal 230 Metal goods manufacturer. . 230 Metal toy manufacturer 230 Mill employ^ 231 Minors 231 Model for cloak manufac- turer 232 75. Moving picture actor 233 76. Municipal employfi 233 (a) California 233 (b) Connecticut 234 (c) Illinois 234 Iowa 234 Kansas 234 Maryland 284 Massachusetts 235 Michigan 235 69. 70. 71. 72. 73. 74. (d) (e) (f) (g) (h) Firewood manuf acjtp^fl'/zeQf j93''^M;dirk)s6W>®ana 235 Furniture manufacturer ... 217 (j) New Jersey 235 TABLE OF CONTENTS xm PAGE (k) New York 235 (1) Ohio 235 (m) Washington 235 (n) Wisconsin 236 77. National Guardsman 236 78. Non-residents 236 79. Nurse 237 80. Officer and stockholder of corporation 237 81. Outworkers 239 82. Partners 239 83. Patent experiments 241 84. Pecuniary gain 241 85. Physician 241 86. Piano manufacturer 241 87. Picture hanging 241 88. Piece worker 242 89. Pile driving 242 90. Policeman 242 91. Porter in office building 243 92. Process server for railroad. 244 93. Public officer 244 94. Publishing company 244 95. Rag picker 244 96. Railroads 244 97. Renovating building 245 98. Salesman 245 99. Salesman in automobile 246 100. Schools 246 101 Shareworkers 247 102. Sheriff 252 103. Ships 252 104. Shorer of underpinning com- pany 252 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. PAGE Scow trimmer on dump 253 Soda dispenser and work- man in the manufacture of soda 253 Soldier 253 Stableman 253 State 253 Stockraising 254 Stone crusher .- 255 Stone mason 2SS Street railroad 255 Structural iron worker 255 Student of manual training school on holiday 255 Subsequently arising haz- ardous employment 256 Taxicab drivers 256 Teamsters 257 Telegraph companies 258 Telephone lineman 259 Theatrical employes 259 Thrashing machine 260 Traveling salesmen 260 Ultra vires 261 Umbrella manufacturer .... 261 Underwear manufacturer . . 261 Upholstery work 261 Warehouseman 262 Watchman 262 Wholesale grocer 263 Wholesale hardware dealer. 263 Wood lamp manufacturer. . . 263 Wood pipe manufacturer . . . 263 CHAPTEE IX. LIABILITY OF PRINCIPALS FOR COMPENSATION TO EMPLOYES OF CONTRACTORS AND SUB- CONTRACTORS PAOE Abticm) a — Liability Depends Upon Statute Alone 264 1. Definition of the new rela- tion 264 2. British Act 265 3. California ._...,,..., ^68 Digitized By Microsoft® page 4. Connecticut 271 5. Illinois 272 6. Massachusetts 273 7. New York 2t3 8. Wisconsin 273 XIV TABLE OF COIfTElTTS CHAPTER X. HOW EMPLOYERS AND EMPLOYES ARE BROUGHT UNDER THE ACTS PAGE Abticle a — Difference Be- tween COMPULSOEY AND Elective Acts 275 1. Classification of statutes... 275 2. Contracts exempting em- ployers from the operation of the Act, " contracting out" 277 3. Acceptance of compensation principle as to part only of employes 279 4. California 279 5. Connecticut 280 page 6. Illinois 280 7. Kansas 281 8. Massachusetts 282 9. Michigan 282 10. Minnesota 283 11. Montana 284 12. New Jersey 284 13. New York 284 14. Rhode Island 285 15. Washington 285 16. West Virginia 285 17. Wisconsin 286 CHAPTER XI. ELECTION OF REMEDY AFTER ACCIDENT AND ACTIONS FOR DAMAGES AGAINST ASSENTING EMPLOYERS page Abticu! A — Scope of Chapteb. . 287 1. Two subjects dependent 287 Abticle B — Election of Remedy 288 1. In general ; right to elect irrespective of statutory provision 288 2. British rule 290 3. Arizona 292 4. California 293 5. Connecticut 294 6. Illinois 295 7. Kansas 295 8. Maryland 296 9. Massachusetts 296 10. Michigan 298 11. Minnesota 298 12. New Jersey 299 13. New York 299 14. Ohio 302 page 16. Texas 303 17. Washington 304 ' 18. West Virginia 305 19. Wisconsin 305 Article C — Action fob Dam- ages Against Assenting Employee 306 1. In general 306 2. Connecticut 307 3. Illinois . . ..-. 307 4. Massachusetts 308 5. Michigan 308 6. New Jersey 308 7. New York 309 8. Ohio 311 9. Oregon 312 10. Rhode Island 312 11. Texas 312 12. Washington 313 15. Oregon «■• -i' ■ • 1/ l 3Q3 13. Wisconsin 313 •«--v/) 303,. 13. w;s( Digitized by Microsoft® TABLE OP CONTENTS XV CHAPTER Xn. WHAT IS AN " INJURY " OR AN " ACCIDENTAL INJURY ' WITHIN THE MEANING OF COMPENSATION ACTS? PAGE Abticlb a — Gengbal View of THE Subject 317 1. In general ; distinction be- tween tlie word " injury " and the term " accidental injury " as found in the various statutes 317 2. Aggravation of pre-existing disease 326 3. Aggravation of disability by illness or other contribut- ing cause 341 4. Eeduclng compensation pay- ments when an occupa- tional injury accelerates or aggravates a pre-exist- ing subnormal physical condition, or when the period of disability is pro- longed by a disease subse- quently contracted or by other subsequently inter- vening cause 342 Abticlb B — Specific Rulings AS TO What is ob is not AN Accidental Injubt 351 1. Alcoholic meningitis and de- lirium tremens 351 2. Aneurism 352 3. Anthrax 352 4. Apoplexy 352 5. Appendicitis 354 6. Arterial sclerosis 354 7. Artificial leg brolien 354 8. Artificial teeth broken 354 9. Asthma and heart trouble from breathing dust 355 10. Bandages on wound catch- ing fire 355 11. " Bends " 355 12. Blood poison 355 13. Boils 355 14. Bright's disease . .^... ..,.. . . .. 356 15. 16. ,...., 356 42. Epilepi Digitized by Microsoft® page Bronchitis and intestinal tuberculosis 356 Burstltis ; an Infection from working on knees 356 17. Cancer 357 18. Cataract 357 19. Cerebral abscess 358 20. Cerebral hemorrhage 358 21. Cerebral oedema and de- lirium tremens 358 22. Chemical poisoning applied externally 359 23. Concussion of brain 359 24. Constant jarring and jolt- ing of machine 359 25. Continuous strain 360 26. Copper poisoning 360 27. Death not natural or proba- ble consequence of injury. 360 28. Delirium tremens 361 29. Dementio praeeox 362 30. Dermatitis 362 31. Disease contracted in hos- pital after accidental in- jury 362 Disease following injury as distinguished from occu- pational disease 363 Dislocation from strain 364 Displacement of cartilage of knee 365 Dizziness caused by first accident 365 36. Drinking poison by mistake for drinking water 365 37. Drowning 366 38. Dust 366 39. Eczema 366 40. Embolus following amputa- tion 366 41. Emergence of floating carti- lage 366 42. EpUepsy 367 32, 33, 34, 35, XVI TABLE OP CONTENTS PAGE 43. Erysipelas following frost- bite 367 44. Erysipelas following trau- matism 367 45. Exciting and contributing cause of death 368 46. External manifestation ab- sent 368 47. Eye injuries 368 48. Facial paralysis from work- ing in cold room in choco- late factory 369. 49. Falls from fits, tertigo or other like causes 370 50. Fibroid tuberculosis; stone grinder's phthisis 372 51. Fits 372 52. Flat foot from traumatism. 372 53. Floating kidney 373 54. Friction injuries 373 55. Frostbite 375 56. Gangrene from wound 377 57. Gastric cancer 377 58. Gastric ulcer ; aggravating pre-existing condition 378 59. Glaucoma 378 60. Headaches from eye Injury. 378 61. Heart diseases ' 378 62. Heat stroke 383 63. Hemorrhage internally 385 64. Hemorrhoids becoming ex- ternal from exertion 386 65. Hernia 386 66. Housemaid's knee 392 67. Hydrocele 392 68. Hypostatic pneumonia 392 69. Hysterical blindness 392 70. Hysterical paralysis 393 71. Infectious disease 393 72. Infection from break in skin 394 73. Infection in a different part of the body from the in- jured member traced to in- fection at the seat of the wound 395 74 Infections and other ail- ments contracted by rea- son of lowered vitality, du^ to previous injurtfeP. . "^ PAGE 75. Inflammation of kidneys from standing in water. . . 398 76. Inhalation of dust 398 77. Inhalation of noxious gases 398 78. Insanity 401 79. Insect bite 403 80. Intestinal ulcers 404 81. Ivy poisoning 404 82. Lead poisoning 404 83. Lightning 406 84. Lighting up inflammatory condition 407 85. Medical treatment causing disability 407 86. Meningitis following acci- dent 410 87. Mental shock or fright and nervous troubles' 410 88. Mine gas poisoning 414 89. Neurosis 414 90. Nephritis 416 91. Occupational diseases 417 92. Operation (surgical) 419 93. Optic neuritis 420 94. Osteosarcoma from fall 421 95. Overheated employ^ be- comes incapacitated by standing in draught 421 96. Overwork 421 97. Palmar abscess 421 98. Paralysis 422 99. Paresis, after injury but re- sulting from other causes. 423 100. Periarthritis 423 101. Peritonitis, caused by elec- trical shock 423 102. Peritonitis from traumatism 423 103. Pleurisy 423 104. Pimple opened in unsani- tary manner 424 104a. Pneumonia 424 105. Recurrence of condition due to former injury 428 106. Refusal of workman to per- mit operation to be per- formed 429 107. Rheumatism 430 "'«&»." ."°!'..'r;« TABLE OF OONTEWTS XVI 1 FAOE 109. St. Vitus dance 430 110. Sarcoma 431 111. Scarlet fever 431 112. Sciatica 431 113. Secondard effect of injury. . 431 114. Second operation required by condition produced by first 432 115. Septicaemia cases generally 432 116. Skin affection from acids and other irritants 436 117. Sprains and strains gener- ally 438 118. Suicide due to mental condi- tion caused by accident. . . 443 119. Sunstroke 443 FAOE 120. Surgical scarlet fever 448 121. Sympathetic affection of one eye by injury to the other . 448 122. Tetanus 448 123. Trachoma 449 124. Tuberculosis 449 125. Tumor 451 126. Typhoid fever 451 127. Ulcers 453 128. Ulcers of stomach 453 129. Vaccination by order of su- perior _. 453 130. Varicose veins . . .• 454 131. Vertigo 455 132. Wood alcohol poisoning 456 CHAPTER XIII. ARISING " OUT OF " AND IN " THE COURSE OF " THE EMPLOYMENT. PAGE Article A — Definitions 461 5. 1. In general ; distinction be- tween terms " arising out 6. of " and " in the course 7. of " 461 Abticie B — • Going To and Fbom 8. Place op Bmfloyment . . 468 1. Away from employer's prem- ises on employe's own time 468 9. (a) Exceptions 470 2. While on employer's prem- ises in going to and from 10. work 473 (a) Exceptions 475 3. Going to and from work in 11. conveyance furnished by 12. employer, or supplied by 13. the employ^, with the ac- quiescence of the employer 480 14. (a) Licensees 484 (b) Exceptional cases in which 15. compensation was refused 486 4. Pieceworker carrying bun- 16. dies to and ^rof^j^^^^J i^y^crOSO: PAGE Moving picture actress go- ing to and from studio . . . 488 Messenger on way home . . . 488 Police judge returning from luncheon 489 Newspaper reporter injured while riding bicycle on his way home 489 Train baggage solicitor in- jured on way to railroad station 489 Returning to place of em- ployment to work over- time 490 Policeman killed by train . . 490 Taxi-cab starter 490 Physician attending com- pensation cases 490 Traveling between different places of work 491 Seamen and mechanics get- ting on and off vessels. . . 491 Entering employer's prem- is to apply for work 499 xvxu TABLE OF CONTENTS PAGE 17. Reporting for work 499 18. Going after time slip 499 19. Returning to employer's premises to secure pay . . . 500 20. Standing in line to get pay check SQil 21. Returning to employer's premises to secure tools . . 501 22. Workmen whose duties take them away from the em- ployer's premises 502 Abttcm: C_ — NoNWOHKiNG Time INJUEIES' 510 1. Scope of article 510 2. Workmen injured on em- ployer's premises before work begins, after work ceases, or during cessation of work 511 8. Injuries at mealtime 523 4. Going to portions of em- ployer's premises other than those necessarily used by the workman, for his own convenience or pleasure 528 Abticle D — Serious and Will- fTJL Misconduct 531 1. Origin and general applica- tion of the term 531 2. Definition of generally 531 3. Burden of proof 535 4. Accidental shooting in being mistaken for robber 536 5. Actress riding spirited horse 536 6. Appeal 536 7. Assault on foreman 537 8. Aviator exploding bomb.... 537 9. Boy on bicycle catching on motor car 537 10. Cleaning machinery in mo- tion 538 11. Deviating from route 538 12. Disobedience of general rules and specific orders. . 539 13. Doing work for own benefit 547 14. Doing work in unusual man- 15. EmTrgency' V '. ' ". '. ^'9'!"^^. ^'CroSOi PAGE 16. Error of judgment 547 17. Exhibition of poisonous rep- tile 548 18. Failure to use goggles 548 19. Failure to use guys in build- ing operation 548 20. Failure to use safety guard. 549 21. False representation as to age by minor in securing work 550 22. False statement to physician as to drinking habits by in- jured workman 550 23. Following custom 551 24. Going in wine vat without testing for poisonous gases 551 25. Idle curiosity 552 26. Intoxication 552 27. Jumping on moving car. . . . 557 28. Kerosene oil used to build fire 557 29. Riding on top of cars 557 30. Leaving machine in opera- tion 558 Lineman failing to use safety- belt 558 Lineman working without rubber gloves 558 Lineman working on elec- tric light poles when cur- rent turned on 558 Neglect of suggestion not amounting to an order. . . 559 35. Neglect to secure proper medical treatment 559 36. Obeying direction of su- perior 560 37. Picking finger with unsani- tary knife 560 38. Picking up live wire 560 39. "Purposely self-inflicted" . 561 40. Racing with motor cycles.. 561 41. Removing flour sacks from middle of pile 561 42. Resisting robbers 561 43. Resting in working hours. . 561 44,_Ridtog in dangerous place on mine bucket 561 31 32. 33. 34. TABLE OF CONTENTS XIX PAGE 45. Seaman returning to wrecked vessel 562 46. " Taking a Chance " 562 47. Unloading car when con- tents frozen 562 48. Violating safety statutes and rules 562 49. Violating speed law in auto- mobile or motor cycle 563 50. Willful negligence 563 51. Without scope of employ- ment 564 Aeticle E — The Doctrine of Pboximate Cause as illustbated in the so- CALLED " AGQKAVATION " Cases 564 1. Introduction 564 2. Aggravation of pre-existing condition 566 (a) Cases in which compensa- tion awarded 566 (b) Cases in which compensa- tion denied 574 3. Aggravation of injury from subsequently intervening causes 575 (a) Cases in which compensa- tion awarded 575 (b) Cases in which compensa- tion refused or reduced. . 582 Abticle F — Assaults 587 1. Personal altercation 587 2. Quarrels between workmen 587 (a) Cases in which compensa- tion denied 582 (b) Cases in which compensa- tion awarded 589 3. Maintaining discipline 591 4. Altercation between work- men and foremen or others in authority 591 5. Felonious assault by em- ployer 593 6. Maintaining order on em- ployer's cars or premises. 593 7. Ejecting trespassers 594 8. Assault by irate customer of employer ^... ..... . 595 bigitiz&d by PAGE 9. Assaults by strangers in course of employment. . . . 595 10. Assaults by strangers in no way connected with em- ployment 596 11. Strikebreakers assaulted . . 596 12. Attacks by intoxicated per- sons 596 13. Assaults by insane persons. 598 14. Murder of chauffeur on hired car 598 15. Robbery 598 16. Peace officers 60O 17. Citizen temporarily im- pressed as peace officer. . . 601 18. Gamekeepers repelling tres- passers 601 19. Prison guard killed by es- caping convict 601 20. Accidental shooting 601 Article G — Specific Rulings AS TO When an Injuby Arises Out of the Em- ployment 601 1. Acting on unauthorized orders . . .• 601 2. Anaesthetic causing death during surgical operation. 603 3. Answering telephone call . . 603 4. Anthrax 603 5. Apoplexy 604 6. Appendicitis 604 7. Apprentice 605 8. Asphyxiation in hotel 605 9. Assisting another employ^. 605 10. Assisting employ^ of an- other employer 606 11. Assisting stranger 607 12. Attending to call of nature. 607 13. Automobile driver repairing car 609 14. Bite of animal 609 15. Bite or sting of insect 610 16. Bite of reptile 611 17. Bite of snake 611 18. Bottle of acid bursting in employe's pocket 611 19. Brlght's disease from blister on heel 611 Microsoft® XX TABLE OF CONTESTTS PAGE 20. Building cupboard for his own tools 611 21. Burn from ammonia being mistakenly thrown into face 611 22. Cancer 612 22a. Carbuncle 612 23. Cerebral hemorrhage from strain 612 24. Charity worker injured while calling on physician 612 25. Church sexton injured try- ing to stop fight between boys on church ground. . . 613 26. Cleaning own motor cycle used in work 613 27. Cleaning own clothing 613 28. Concussion of brain 613 29. Contagious skin disease 614 30. Continuous employment . . . 614 31. Corneal ulcers from splash- ing of lye water 615 32. Corporation employe doing private work for stock- holder 615 33. Death from inconsequential injury 616 34. Death from unexplained cause 616 35. Death occurring two years after alleged injury 619 36. Delirium tremens 619 37. Disobedience of specific orders 619 38. Dislocation from quick movement 628 39. Dislocation from strain 628 40. Doing work in unusual man- ner 628 41. Driver falling from wagon. 680 42. Driver for fiorist adjusting customer's window box . . . 630 43. Driver kicked by strange horse in blacksmith shop. . 630 44. Ejecting trespassers 630 45. Electrical shock 631 46. Emergency employ^ 631 47. Erysipelas, following frost- bite Digitized PAGE 48. Erysipelas from Infection of pimple 636 49. Exchanging duties 637 50. Exhaustion and death from exposure 637 51. Explosions 637 52. Eye injured in cutting brush 638 53. Eye strain 638 54. Faintness causing fall 638 55. Falling ceiling 640 56. Falling object from adjoin- ing building 640 57. Fires causing injuries 641 58. Flat foot 642 59. Friction Injuries 643 60. Foreign substance in eye. . . 643 61. Frostbite 644 (a) Freezing to death 645 62. Gasolene fumes inhaled. . . . 645 63. Gas poisoning . .". 645 64. Getting drink of water 646 65. Heart failure 646 66. Heat stroke 647 67. Hernia 647 68. Home injuries 648 69. Horse-play, larking or joking 649 70. Horse sneeze 654 71. Idle curiosity 654 72. Incidental work 654 73. Independent contractor do- ing extra work 655 74. Indigestion 655 75. Infection from burn 655 76. Infection from crack in cal- loused hand 656 77. Infection from opening pim- ple 656 78. Infection of pimple by scratching 656 79. Infection from splattering water without break of skin 656 80. Infection from traumatic in- jury 657 81. Inflammation of pancreas.. 658 82. Insanity 658 83. Ivy poisoning 659 84. Janitor making repairs 659 r removing ashes 659 TABLE OF CONTEKTS XXI FAOE 86. Landslide on railroad 660 87. Lesion of heart from broken rib 660 88. Lighting pipe 660 89. Lightning strilsing worljman 660 90. Loaned employ^ 662 91. Mental shock 662 92. Misunderstanding orders . . 663 93. Moving threshing machine after work finished 663 94. National Guardsman en- gaged in competitive shoot- ing match 663 95. Negligence of third person. . 663 96. Nephritis from electric shock 664 97. Overwork 664 98. Paralysis 664 99. Paralysis causing fall in water and drowning 665 100. Paralysis from electric shock 665 101. Paralysis from wearing tele- phone headpiece over ear. 665 102. Paralysis of face from work- ing in cold air in factory. 666 108. Pecuniary gain 666 104. Performing gratuitous act on holiday 666 105. Peritonitis . . ..> 666 106. Personal errand of officer of corporation employer .... 666 107. Pneumonia 667 108. Pleasure trip combined with business 669 109. Poison taken by mistake. . . 669 110. Presumption in fatal cases where cause of accident unexplained 670 111. Railroad employe going to have watch tested 671 112. Repairing machine 671 113. Rheumatism 671 114. Runaway horse 671 115. Rupture of blood vessel from strain 672 116. St. Vitus dance 672 117. Salesman testing new motor- cycle without authority.... ,672 Digitized by PAGE 118. Sanitation; making prem- ises sanitary 672 119. Saving life of another 673 120. Scenic railway employe searching for lost hat of passenger 673 121. School teacher supervising selection of basketball team 673 122. Seeking shelter from sudden storm 674 123. Shooting squirrels as pests. 674 124. Shoveling snow from roof. . 674 125. Skin irritants without trau- matism 675 126. Slipping on floor of hotel . . 675 127. Slipping on ice on street. . . 675 128. Slipping on orange or banana skin 676 129. Snow slide 676 130. Stepping on nail in street . . 676 131. Suicide from insanity caused by injury 676 132. Suicide; presumption against 677 133. Sunstroke 677 134. Teamster injured in stable. 678 135. Teamster suffers infection to eye while disinfecting stable 678 136. Teamster neglecting team so horses run away 679 137. Temporarily departing from sphere of employment. . . . 679 138. Testing racing motorcycle.. 686 139. Tetanus 687 140. Toxic amplyopia 687 141. Tuberculosis 687 142. Turning comer too short. . . 688 143. Typhoid fever 688 144. Unintentional injury by fel- low employ^ 688 145. Unnecessarily going to a place of danger 689 146. Using elevator contrary to instructions 694 147. Using machinery contrary to directions 694 Microsoft® XXll TABLE OP CONTEIfTS PAGE 148. Using machinery othen^lian tliat employed to use. .... 6&4 149. Vaccination 695 150. Violation of safety statute by fellow employe 695 151. Volunteers 695 152. Wagon washer cranking automobile 697 ■ PAGE 153. War risks of noncombatants 698 154. Watchmen 698 155. Watchman accidentally shot while cleaning pistol 699 156. Window cleaner falling from ledge 699 CHAPTER XIV. WAITING PERIOD PAGE Abticle a — Genekal View 700 1. Definition 700 2. Death benefit 700 page 3. In specific injury cases no deduction should be made. 700 4. How computed ; 7(XL 5. Burden of proof 701 CHAPTER XV. MEDICAL ATTENTION PAOE AETICM! a — iNTBODtrCTION 703 1. Provisions of statutes gen- erally 703 2. Affirmative duty of employer 703 Article B — Basis op Right to Medical Attention 705 1. Failure to give notice to em- ployer of injury 705 2. Limitation ; claim for com- pensation more than six months after injury 706 3. When employe justified In selecting his own physician at the expense of the em- ployer or Insurance car- rier 706 4. Agreement by employe to pay his own medical bill . . 717 Abwolb C — What Medical At- tention iNCLtTDES 717 1. Computation of period of medical attention ; exclu- FAOE 2. Ninety day period starts from date of disability, not date of accident 717 3. Extension of period of med- ical attention 718 4. First aid 720 5. Operation in part to cure pre-existing condition .... 720 6. Renewal of disability from same injury 720 7. Nurses 720 8. Hospital treatment 721 9. Private ward in hospital . . . 722 10. X-ray service 723 11. Surgical operations 723 12. Specialist 723 13. Consulting physicians 724 14. Employment of two physi- cians or surgeons. .' 724 15. Rent of apartment in which injjired employ^ is housed 724 slon of date of /9i§M&'?eC( Jbjri/W/C/KSdiS&iage hire 725 TABLE OF CONTENTS XXlll PAGE 17. Railroad fare oq returning borne witti nurse 725 18. Expenses of going to and from pliysician's office ; man partially blinded 725 19. Artificial limb 725 20. Electrical treatment 725 21. Massage treatment 726 22. Plaster casts 726 23. Truss 726 24. Crutches 726 25. Dentists' bills 726 AETictE D — Qualification of Medical Attendant .... 727 1. Licensed physician 727 2. Christian Science treatment 727 3. Chiropractor 727 4. Bone setter not regularly licensed as physician ; em- ployed by consent of both parties 728 5. Liability of employer for negligent medical attention 728 6. Wound aggravated by fail- ure of medical attention . . 728 Article E — Medical Chaeqes AND PEACTICE in COLLECTING 728 1. Amount of charges 728 PAGE 2. Offsetting additional com- pensation payments against medical bill 731 3. Offsetting cost of additional medical treatment against compensation 731 4. Deducting medical disburse- ments from employe's wages 733 5. Treatment at free clinic. . . 733 6. Lien of physician 733 7. How medical fees collected. 734 8. Rehearing to approve medi- cal bills 736 Article F — Miscellaneous Matters 736 1. Refusal to permit medical attention 736 2. Tendering medical treatment in the nature of an opera- tion as a condition of stop- ping compensation 736 3. Necessity of submitting to operation 736 4. Insurance carrier's subroga- tion to right to furnish medical attention 737 CHAPTER XVI. DEATH BENEFITS page Abticle a — General View of THE Subject 740 1. Comparison of the statutes. 740 Article B — Funeral Expenses- 1. When allowed 741 Article C — Dependents 742 I. Definition of word "depend- ent" 742 1, a." Actual" and "presump- tive " or " statutory " de- pendents 744 2. Question of dependency is one of fact 747 PAGE (a) British 748 (b) California 748 (c) Connecticut 750 (d) Kansas 751 (e) Massachusetts 751 (f) Michigan 752 (g) Minnesota 752 (h) New Jersey 753 (i) New York 753 (j) Ohio 753 (k) Pennsylvania 753 (1) Washington 754 (m) Wisconsin 754 3. Partial dependenco/g,teed-JbJ*^;crds3l?^* dependent 754 XXIV TABLE OF CONTENTS PAGE (a) British 754 (b) California 755 (e) Kansas 755 (d) Massachusetts 755 (e) Minnesota 755 (f ) New Jersey 755 (g) Ohio 756 5. Partial and total dependents of same workman 756 6. Wife separated from hus- band 757 (a) British 757 (b) California 758 (c) Connecticut 760 (d) Massachusetts 760 (e) Michigan 763 (f ) New Jersey 763 (g) New York 764 (h) Ohio 764 (i) Wisconsin 765 7. Insane wife 765 8. Wife married after accident 765 9. Mistress : 765 10. Parents 768 (a) British 768 (b) Federal 769 (c) California 770 (d) Connecticut 772 (e) Illinois 773 (f ) Ohio 773 (g) Massachusetts 774 (h) Michigan 774 (1) Minnesota 775 ( j ) New Jersey 775 (k) New York 776 (1) Ohio 777 (m) Ehode Island 777 (n) Washington 778 (o) Wisconsin 778 11. Foster father of child not legally adopted 779 12. Grandmother 779 13. Mother remarried ; step- brothers and sisters 779 14. Foster mother 779 15. Children 780 (a) British 780 (b) California 780 (d) (e) it) is) (h) PAGE Kansas 782 Massachusetts 782 Michigan 783 Minnesota 783 New York 783 (i) Ohio 783 (j) Wisconsin 784 16. Married daughter not living with father 784 17. Stepchildren 784 18. Adopted child 785 19. Child adopted by widow . . . 785 20. Minor children who have been adopted by another. . 785 21. Minor son by former hus- band 785 Son of divorced parents . . . 785 Minor ^ children living with divorced mother 786 Husband and son killed in same accident ; dependency of widow and daughter. . 787 Posthumous child 787 Illegitimate children 787 Posthumous illegitimate child 788 Parents of illegitimate chil- dren 788 Mother of illegitimate child as dependent of father of child 788 Brothers and sisters 789 (a) California 789 (b) Connecticut 790 (c) Massachusetts 79] (d) New Jersey 791 (e) New York 791 (f ) Ohio 791 31. Half-brothers and half- sisters 792 32. Stepmother and half- brothers and sisters 793 33. Sister-in-law 793 34. Inmate of workhouse 793 35. Non-resident aliens 793 36. Dependent of more than one workman 795 22. 23. 24. 25. 26. 27. 28. 29. 30. (c) Connecticut . . .D/g/fe-ee/ S51M;§?oS^fif®dents receiving other TABLE OF CONTENTS XXV PAGE income because of death of workman 796 38. Relief association benefit as affecting right to compen- sation 797 39. Inheriting benefits from es- tate of deceased worljman, as affecting right to com- pensation 797 40. Right of dependents inde- pendent of that of deceased 797 41. Division of compensation be- tween dependents 799 42. Burden of proof to show de- pendency 801 Article D — Miscellaneous Matters 801 1. Necessity of administering on estate of worliman 801 2. Guardian of minor child of applicant 801 3. Presumption of death from absence 802 4. Estoppel by payment of com- pensation before death or right to deny liability therefor after death 802 5. Claim for compensation by personal representative of deceased dependent 802 6. Death occurring after stat- ute goes into efEect by rea- son of accident happening before statute effective . . . 805 7. Advance payments 805 8. Minor's wage increase 806 9. Award in absence of depend- ents 806 10. Double indemnity 806 11. Injuries caused by negli- gence of third person .... 806 12. Submitting to operation 806 13. Deducting board furnished to dependent 807 14. Hearsay testimony 807 15. Limitation 807 CHAPTER XVII. DISABILITY BENEFITS PAQE Article A — What Amounts to Disability Generally . . 810 1. Classification of disability . . 810 2. Pain and suffering not com- pensated 811 3. Making complete reparation for injury 811 4. Inability to compete in the open market 812 5. Inability to secure work . . . 812 6. Reduced earnings owing to general fall in wages 815 7. Refusal to do work which is offered 815 8. Inability to do work being performed when injured. . 819 9. Earning same wages as be- fore injury 820 10. Dismissal for raisco^foffj^^ fjy PAGE workman suffering from partial permanent disabil- ity 828 11. Malingering 824 12. Convalescence period 825 13. Neurasthenia 827 14. Medical referee's decision as to termination of disabil- ity .' 828 15. Disability extended by rea son of .'mproper medical treatment 828 16. Refusal to suomit to surgi- cal operation 834 17. Disability prolonged by dis- ease or other sub-normal physical condition 837 18. Hernia 840 MJ^oSTO#"'''^®°* accidents.... 841 XXVI TABLE OF CONTENTS PAGE 20. Physical weakness due to idleness 842 21. Voluntary idleness of work- man as tending to prolong disability 843 22. Compensation during vaca- tion period 843 23. Employe committed to jail after injury 843 Aeticle B — Tempobabt Partial Disability 843 1. Definition 843 2. Inability to obtain employ- ment in district where workman lives 844 3. Disability by disease accel- erated by accident; basis of compensation 844 4. Recurrent attacks of indus- trial disease 844 5. Failure to return to work ■ when able to do so 845 6. Clumsiness due to injury as ground of incapacity 845 7. Carpenter's foreman unable to use tools 845 8. Pain and inconvenience from injury after retiirn- Ing to work 845 9. Convalescence period 846 10. Backache 846 11. Callous from broken bone. . 847 12. Offer of employment by em- ployer 847 13. Offer of light work 847 14. Loss of wages only basis' of . compensation 847 15. Wages and compensation after accident need not equal wages before injury 847 16. Earnings after injury as basis for partial disability 848 17. Earning smaller sum in other employment 848 18. Credit of sums earned else- where on disability pay- ments 848 Abticle C — Tempobabt Total Disability.. .-Engitized PAGE 1. Unsuccessful efforts to ob- obtain employment 849 2. Waiting for opportunity to have operation performed at hospital 849 3. Test of disability is inability to earn money 849 4. Inability to walk to and from work 850 5. Loss of eye 850 6. Disability arising more than six months after accident. 850 7. Relapse caused by working. 850 8. Total disability for in- definite term 850 9. Submitting to operation for hernia 851 10. Failure to exercise proper care in use of injured limb 851 11. Heart weakness from injury 851 12. Second surgical operation to relieve condition produced by first one 851 13. Inability to se,cure work by reason of loss of fingers . . 851 14. Question of fact 852 15. When award for partial dis- ability improper 852 16. Age of workman as affecting amount of award 852 Aeticle D — Peemanent Partial Disability Generally . . . 852 1. Workman engaged in sev- eral employments ; basis of compensation 852 2. Refusal of employ^ to have operation performed 853 3. Minimum award 853 4. Difference in earning power 853 5. Workmen earning same wages as before the injury 853 6. Suspensory award 854 Article E — Specific Injuries roB Which Definite Sum Is Usually Awabded 854 1. Minimum amount payable In all cases of specific in- demnity 854 'icfh^M^ schedule for specific TABLE OF CONTENTS xxvn PAGE Indemnities two weelcs waiting period sliould not be deducted 854 3. Bye injuries 854 4. Finger injuries 860 5. Thumb injuries 865 6. Hand injuries 867 7. Arm injuries 869 8. Toe injuries 870 9. Foot injuries 871 10. Anlile injuries 871 11. Leg injuries 871 12. Ear injuries 873 13. Nose injuries 873 14. Injury to testicle 873 15. Kidney removed 873 16. Heart trouble developing after injury 873 17. Hernia 874 18. Disfigurement 874 19. Specific injuries not covered by statute 876 20. Remaining at worJi after in- jury for which specific amount is awarded 876 21. Schedule rating for perma- nent partial disability 878 22. When amount for specific indemnity discretionary . . 878 23. Consecutive awards for- permanent partial and temporary total disability 878 Aeticle F ■ — Peemanent Total DlSABIUTT 883 1. British 883 2. California 884 3. Illinois 886 4. Kansas 886 5. Massachusetts 886 PAGE 6. Michigan 888 7. Minnesota 888 8. New Jersey 889 9. New York 889 10. Wisconsin 890 Article G — Miscellaneous Mattees 891 1. Double compensation 891 2. Increased compensation for employer's failure to obey safety rules 891 3. Prospective award 892 4. Offset or counterclaim 892 5. Claim by estate of deceased workman 894 6. Burden of proof 895 7. Compensation for one day. . 895 8. Sundays, holidays and shut- downs occurring in period for which compensation is due ; 896 9. Infant, "probable earn- ings " 896 10. Occupational diseases con- tracted partly in the em- ployment of two employ- ers ; apportioning com- pensation 896 11. Place of payment of eom- peusafion 896 12. State institution ; compen- sation payments part of current expenses 897 13. Divorced man paying ali- mony is " single " for com- pensation purposes 897 14. Deducting insurance bene- fits to which employes con- tribute 897 CHAPTER XVin. WAGES WHICH ARE BASIS OF COMPENSATION PAGE Aeticle A — General Rules as to Wage Basis 898 1. Average of other workmen doing similar work 898 PAGE 3. Employd who has worked substantially full year 900 4. Overtime and double pay on holidays 901 2. Casual employ^ . . -D/g^/zec/ ?^ M/C^oSWl® the wages received at XXVlll TABLE OF CONTENTS PAGE the time of the injury is the basis of compensation. 902 6. Employ^ worliing seven days a weelj 902 7. Absence of agreement as to rate of wages 903 8. Change of grade of work- man within previous year. 903 9. Intermittent employment . . 905 10. Seasonable employments . . 909 11. Absence from work due to illness 910 12. Longshoreman 910 13. Deducting holidays 912 14. Pieceworkers 912 15. National Guardsman 913 16. Probable increase of wages of minors 913 17. Wages paid seaman under shipping act taken into account in awarding com- pensation 914 18. Deducting poor-law relief received by dependent 914 19. Compensation for previous injury not included in de- termining basis of com- pensation for subsequent injury causing death 915 20. Father dependent of son; PAGE allowance for son's main- tenance 915 21. Commissions 915 22. Pension 916 23. Deduction caused by busi- ness depression 916 24. Employment of man and horse 916 25. Amount of board, lodging and other perquisites 916 26. General increase of wages in district as reason for increasing compensation 918 27. " Tips " or gratuities 918 28. Bonuses 919 29. Deducting upkeep of motor- cycle or automobile used by employ^ 920 30. Anticipated increase of wages 920 31. Deducting disbursements for powder, etc 921 32. Deducting amount paid to assistant 921 33. When average wages based on amount actually earned 922 34. Dual employments and em- ployers 924 35. Evidence 927 CHAPTEE XIX. NOTICES OF INJURIES AND CLAIMS FOR COMPENSATION PAGE ABTICM! a — INTBODTJCTION 928 1. Different rules applicable as j to requirements relating to notices of injuries and claims for compensation. . 928 Abticle B — Notices of Injur- ies 929 1. British Act 929 2. California • o/^/Y/zfitf Jby°'° 3^ Connecticut . . PAGE 4. Illinois 942 5. Kansas 943 6. Massachusetts 943 7. Michigan 944 8. Minnesota . . 944 9. New Jersey 945 10. New York 94$ 11. Pennsylvania 947 [crJ^M^^^''^''^ 9*7 \ 13: Wisconsm 947 TABLE OF CONTENTS XXIX PAGE ABTICtE C ClAIM FOB COM- PENSATION 948 1. British 948 2. Federal 949 3. California 949 4. Connecticut 952 5. Illinois 952 6. Kansas 953 PAGE 7. Massachusetts 954 8. Michigan 955 9. Minnesota 956 10. New Jersey 956 11. New York 956 12. Ohio 956 13. West Virginia 957 CHAPTER XX ADMINISTRATION AND PROCEDURE PAGE ABTICtE A INTEODUCTION 960 1. Various methods of admin- istration 960 ABTictE B — Settlements Out op Coubt 987 1. Approval of agreement 987 2. Signing receipts by work- man 989 3. Effect of agreement to pay compensation " during in- capacity " 990 Abticle C — Parties 990 1. Guardian ad litem 990 2. Election by minors 992 3. Petition by employer 992 4. State Insurance; who must be sued 992 5. Substitution of insurance carrier for employer 992 6. Joining party in interest with Industrial Commis- sion . 993 7. Change of name of party . . 993 8. Bringing in third party 993 9. Executors and administra- tors 993 10. Death of employe in whose favor award made 994 11. Power of election in per- sonal representatives and not in executor or admin- istrator 994 PAGB 12. Right of ^or^^J3fgjftzmyMicrosof^°'''^'''^ out letters of administra- tion on estate of deceased employer 994 13. Claim by foreign Consul . . . 994 14. Employes of contractor ; proceedings against princi- pal only 995 Aeticle D — Nature and Juitis- diction of Commissions and "boards 996 1. Character of commission. . . 996 2. Nature of proceeding 996 3. Rule of construction 996 4. Liberal rules as to procedure 997 5. Jurisdiction 997 Article E — • Proceedings Gen- erally 1000 1. When dispute arises 1000 2; British 1092 3. Service of summons 1002 4. Claim for medical expenses as distinct claim 1002 5. Specifying amount when making claim for compen- sation 1002 6. Petition by employer or in- surance carrier 1003 7. Adjournment 1003 8. Adjournment pending out- come of injury 1003 9. Right of attorney to dismiss 1003 XXX TABLE OF CONTENTS FAOE 10. Dismissal for failure to prosecute 1004 11. Court dismissing common- law action retaining case to award compensation... 1004 12. Default 1004 13. Award cin consent of defend- ant's attorney 1004 14. Right to hearings 1005 15. When hearings held.. 1005 16. Notice of hearing 1005 17. Retroactive effect of amend- ments 1006 18. Hypothetical cases 1006 19. Combining original proceed- ing with one to commute payments 1006 20. Change of venue 1006 21. Refusal to undergo opera- tion 1006 22. What amounts to " re- covery " of compensation. 1007 23. Agreement to pay compen- sation is not a consent to submit to arbitration 1007 24. Claim against non-assenting employer 1007 25. Mixed questions of law and fact; arising out of em- ployment 1007 26. Attorney representing In- dustrial Board 1008 27. State claims 1008 28. Pleading 1008 29. Jury trial 1011 30. Evidence 1011 31. Stipulations as to fact; when disregarded 1025 32. Abolition of common-law and statutory rules of evi- dence and procedure 1026 33. Depositions 1026 34. Letters rogatory 1026 35. Adjournment to secure further evidence 1026 36. Taking testimony at scene of accident ^... ..... ., ,102; 37. Order of proof... 9.'9!('?e.'?' PAGB 38. Judicial notice 1027 39. Medical referee 1028 40. Presumption 1020 41. Presumption against suicide 1031 42. Drawing inferences from en- explained injuries 1032 43. Burden of proof generally. . 1034 44. Burden of proof as to serious and willful mis- conduct 1042 45. Burden of proof as to in- toxication 1042 46. Burden of proof as to juris- diction 1043 47. Burden of proof as to de- pendency 1043 48. Burden of proof as to prejudice by failure to give notice 1043 49. Burden of proof on em- ployer to show prejudice by failure of employd to secure proper medical at- tention 1043 50. Burden of proof on applica- tion to discontinue com- pensation 1044 51. Burden of proof as to whether employe in ex- cepted class 1044 52. Burden of proof as to inter- state commerce by employe on vessel 1045 53. Conflict between Board and Arbitration Committee . . . 1045 54. Costs 1045 55. Security for costs 1047 56. Fees of arbitrators 1047 57. Cost of transmitting money to non-resident alien 1047 58. Stenographic minutes of testimony 1048 59. Findings 1048 60. Decision by a majority of the Commission 1050 61. Time to file findings 1050 ^E^^tions to findings 1051 ^STTMiBlnation of proceeding. 1051 TABLE OF CONTENTS XXXI PAGE 64. Awarding compensation after action for damages dismissed on appeal 1051 65. Award "during total or partial Incapacity " 1051 66. Minimum award when proper 1051 67. Joint award against em- ployer and insurance car- rier 1052 68. Anticipatory award, on de- creasing scale 1052 69. Award to terminate at speci- fied date in future 1052 70. Suspensory award 1052 71. Rehearing 1054 72. New trial ; arbitrator can- not grant 1061 73. Supplementary proceeding instead of rehearing 1061 74. Supplemental award after PAOB hearing brought up on oral motion 1061 75. Setting aside award 1062 76. Action to set aside agree- ment 1062 77. Setting aside approved agreement 1062 78. Judgment on award 1063 79. Payment of award into court 1063 80. Enforcing payment of award ; body execution . . . 1063 81. Staying execution against principal until return against contractor 1064 82. Failure to appeal from award of arbitrators 1064 83. Apportioning compensation among dependents 1064 84. Offset 1664 85. Ees adjudlcata 1066 CHAPTER XXI APPEALS FACE Article A — Beitibh Act 1068 1. Implied right to appeal 1068 2. Points raised below only considered on appeal 1068 11. Waiving right to appeal . . . . 12. Costs on appeal 13. Security for costs on ap- peal 3. From arbitrator's decision . 1069 Abticle B — Calipoenia 4. Determining adequacy of lump sum paid under agreement 1069 5. Order terminating weekly payments not appealed from is final 1070 6. Dismissal of action and making decision in arbi- tration proceedings 1070 7. Question submitted by ar- bitration 1070 8. From determination of com- mittee under approved 1. Constitutional right to ap- peal 2. Questions raised below only reviewed 3. Title of case on appeal 4. Reviewing question of fact. 5. When question of law raised on admitted facts.. 6. Payment of medical bill 7. Bringing up evidence on certiorari 8. Willful misconduct Abticle — ■ Connecticut plan 1070 1. Reviewing questions of fact 9. Reviewing facts . , . , 1070 2. Trial de novo in Superior 10. Withdrawal . . . .%'.^!Zecf buMcrOSOmmt page 1074 1074 1075 .1075 1075 1075 1076 1076 1077 1077 1077 1077 1077 1077 1078 XXXll TABLE OF CONTEH'TS 3. Sending record back FAOB for Abticu! I — Michigan PAGE 1088 correcting 1079 4. Practice on appeal to Su- perior Court 1079 Abticle D — IixJNOis 1079 1. From County Court 1079 2. Failure to appeal from de- cision of Arbitration Com- mittee 1080 3. By certiorari from Circuit Court 1080 Aeticu; J 4. After time to appeal to Cir- cuit Court has expired... 1080 5. Jurisdictional questions . . . 1080 6. To Supreme Court 1080 7. Record on appeal 1081 8. Reviewing questions of fact 1082 9. Decision by majority of Board 1082 Abticle K — New Jeeset 10. Trial de novo on review of 1. When remedy by motion. . . . arbitration committee 1082 2. Reviewing question of fact. Abticle B — Iowa 1083 Abticle L — New Toek 1. Error in computation 1088 1. Conclusiveness of record... Article F — Kansas 1083 1. Dismissal for want of merit 1083 2. Decision ordering lump sum payment 1083 3. Damages for disfigurement, pain and suffering 1083 Abticle G — Maetland 1084 1. Effect of failure to appeal from Arbitration Com- mittee to Board 2. Original hearing before Board by stipulation 3. Harmless error 4. Remanding for further tes- timony 5. Reviewing question of fact. Minnesota 1. Motion to amend decision not prerequisite 2. Modifying award on appeal . 3. Appellant only can complain of award 4. Intermediate order 5. Review of question of fact. 1. In which district appeal taken 1084 2. Additional testimony 1084 3. Burden on appellant; open- ing and closing 1084 Abticle H — Massachusetts . . 1084 1. Reviewing question of fact. 1084 2. Time within which appeal presented to Superior 2. Appeal from unanimous affirmance by Appellate Division 3. Non-unanimous affirmance by Appellate Division .... 4. Costs of appeal 5. Rehearing after time to ap- peal expired 6. Review of questions of fact. 7. Exceptions 8. Employer's appeal from award against State fund 9. Award consented to by at- torney of record Abticle M — Ohio 1. Jurisdictional questions . . . Court 1086 Aeticle N — Rhode Island. 3. Review by certiorari 1087 1. Reviewing question of fact. 4. Exceptions 1087 Article O — Washington 5. Stay pending appeal 1087 1. Question of law arising on 6. Wife leaving husband for decision deemed prima justifiable cause 1087 facie correct 7. Proceedings before arbitra- Abticle P- — West Vibginia tion committee as founda- 1. Power to review is original, tion for •^«"^'°°/3F^^&-Jbjg|/Cr2Sg|gjPP^"^^t«^ •. 8. Harmless error leviewing questions of fact 1088 1088 1089 1089 1089 1090 1090 1091 1091 1091 1091 1091 1091 1092 1092 1092 1093 1093 1093 1094 1094 1095 1096 1096 1096 1096 1096 1096 1097 1097 1097 1097 1098 TABLE OF CONTENTS XXXlll FASE Abticle Q — Wisconsin 1098 1. Setting aside award for fraud 1098 PAGE 2. Decision from which no ap- peal is taken 1098 3. Reviewing question of fact. 1098 CHAPTER XXn MODIFICATION OF AGREEMENTS AND AWARDS 6. 8. PAGE Abticle a — Undee What Cib- cumstances modification AliOWED 1101 1. Introduction 1101 2. Inherent right to review . . . 1101 3. Change of circumstances... 1102 4. Error in original award. . . . 1105 5. Agreement made and ap- proved under a mistake as to facts 1106 Award made on stipulation as to the facts 1108 New period of disability from same injury 1108 Change in status of injured employe 1108 9. Point not raised on original hearing. 1108 10. Newly discovered evidence. 1109 11. Increase or decrease of dis- ability after award. 1109 12. Profits of business enter- prise as affecting right to reduce compensation 1109 13. Lack of evidence as to exact amount workman is able to earn 1110 14. Inability to obtain light work 1110 Failure of workman to get or attempt to get light work 1113 Inability to get employment due to slackness of work. 1113 Inability to do same wofk as before injury 1113 Inability to earn old wages 15. 16. 17. 18. PAGE 19. Apportioning loss between employer and employ^ 1115 20. Permanent partial dis- ability ; ability to earn same wages as before acci- dent V 1115 21. Increased susceptibility to occupational disease 1116 22. OfCering employment at dif- ferent place 1116 23. Allowance for expenses when work furnished away from home 1116 24. General increase of wages in district 1117 25. Probable increase of m"inor's wages as basis for increase of compensation when workman is infant at time of injury 1117 26. Infant earning as much after as he did before ac- cident 1117 27. Probable earnings of infant in different grade 1118 28. Workman sentenced to hard labor in prison after in- jury 1118 29. Increasing age as affecting disability 1118 30. Disability due to idleness and softened muscles 1118 31. Disability due to brooding over injury 1119 32. Disability from disease fol- lowing injury 1119 33. Workman permanently in- In new occupatfj^y^y^ed-fo/^rOSO/?©'"^ ""* suffering XXXIV TABLE OB" CONTENTS FAGE creased disability from dis- ease 1120 34. Terminating compensation payments 1120 35. Refusal to submit to surgi- cal operation 1122 Abticlb B — Pbactice 1124 1. Question of recovery from injury is one of fact 1124 2. Suspensory award 1125 3. Recovering overpayments of compensation 1126 PASE 4. Pleading 1126 5. Modifying award from a date earlier than tbe date of the application to modify 1126 6. Withdrawing part of mo- tion 1127 7. Burden of proof 1127 8. Res adjudicata 1128 9. Limitations 1130 10. Retroactive effect of cor- rection on rehearing. 1130 CHAPTER XXIII PHYSICAL EXAMINATION OF CLAIMANTS FOR COMPENSATION PAGE PAGE Aeticle a — When Bxamina- 2. California 1133 TioN Allowed 1131 3. Massachusetts 1133 1. British Act 1131 4. New Jersey 1134 CHAPTER XXIV REPORTS OF ACCIDENTS BY EMPLOYES PAGE Article A — When REQinsED. . . 1135 2. 1. Michigan 1135 3. PAGE Minnesota 1135 Wisconsin 1135 CHAPTER XXV COMPROMISING COMPENSATION CLAIMS PAGH Abticle a — Compromises Not AliLOWED 1137 1. In general; British Act 1137 2. California 1141 3. Connecticut 1143 4. Illinois 1145 5. Kansas 1145 6. Massachflsetts . . Bigitized JJ>%;d^%sWi¥iPl»sl^ PAGE 7. Michigan 1146 8. Minnesota 1146 9. Nevada 1147 10. New Jersey 1147 11. New York 1148 12. Ohio 1148 13. Washington 1143 U49 TABLE OF CONTENTS XXXT CHAPTER XXVI COMMUTATION OF AWARD PAOB FAGB Article A — When Oommuta- 7. Minnesota 1157 TioN Allowed 1150 8. Nebraska 1157 1. British Act 1150 9. New Jersey 1158 2. California 1151 10. New York 1160 3. Connecticut 1154 11. Oliio 1161 4. Illinois 1156 12. Pennsylvania 1161 5. Kansas 1156 13. Wisconsin 1161 6. Massachusetts 1157 CHAPTER XXVn INSURANCE OF COMPENSATION CLAIMS FAOB FAGB Abticle a — iNTEODTTCTioN 1163 Officer and majority stock- 1. Character and necessity of holder of corporation 1171 such insurance 1163 g. Creditor of employer in Abticle B — Rights and Lia- charge of business under BUJTiES OF INSUBANCE power of attorney 1171 Cabbiebs Genebaixt 1166 xo. Member of partnership 1171 1. Coverage of policy 1166 n, Diability of insurance car- 2. Policy covering only one of rier even though premium several different classes of unpaid 1171 business conducted by em- 12. Policies must comply with Ployer 1169 Act 1172 3. Recurrence of ddsability; 13. Fraud in securing policy ... 1172 liability of insurance car- ^^ g^^^^ ^^ warranty in Tier whose policy was In p^,.^ . ^^^^^ 1172 force when accident hap- ^g ^^^^^ ^^ employer to P®°®^ ^^^^ give notice to company. . . 1173 4. Minors employed contrary . ,. . „ ^.^ jg^ jjgQ 16. Construmg policy by Com- _ T , '",'",' ^,-n mission 1173 5. Loaned emplqye 1170 . , . . „ „ , , , .. „ 17. Joint award agamst em- 6. Employe of corporation as- , , . " .^_„ ' J . , ployer and insurer 1173 sured: doing work on stockholder's house 1170 18. Jurisdiction over a con- 7. Liability to employes of sub- troversy between employer contractor when policy is- and insurance carrier..... 1173 sued to principal contrac- 19. Failure of insurance car- tor . . 1170 rler to furnish adequate 8. Liability of insurance car- medical attention 1174 rter for compf£%ftffleQtd)y M;CAa&d*l@ical charges; bone set- XSXVl TABLE OF CONTENTS ter not regularly licensed as physician 1174 21. Direct liability 1174 22. Waiver of insurance carrier of right to designate phy- sician 1175 23. Change of physicians 1175 24. Change of physician by con- sent of employer, but with- out notice to insurance car- rier 1175 25. Medical attention; regula- tions 1176 26. Offsets allowed to em- ployer ; defective Insur- ance 1176 27. Subrogation to insurance PAGE carrier of right to furnish medical attention 1176 28. Subrogation of right to re- cover against third person 1176 29. Substitution of insurance carrier for employer. 1177 30. Bound by agreement be- tween employer and em- ploye for lump sum pay- ment 1178 31. Self insurer 1178 32. Cancellation of policy 1179 33. Status of those insured in stock companies as com- pared with those insured in the State fund 1180 CHAPTER XXVin PREFERENCE OF COMPENSATION CLAIMS PAGE Article A — When Aixowbd... 1181 1. Insolvency of insurer 1181 2. Bankruptcy of employer 1181 PAGE 3. Receivers of bankrupt per- sonally liable 1181 4. Setoff against amount awarded 1181 CHAPTER XXIX ASSIGNMENT OF COMPENSATION CLAIM PAGE PAGE Articm; a — When Allowed... 1183 4. Assignment of compensation 1. Act constitutional 1183 claims to insurance car- 2. Against insurer 1183 rier 1183 3. Against State fund 1183 CHAPTER XXX ATTORNEYS PAGE PAGE Article A — Fees Generall-x;. . . 1184 2. Contingent fees 1185 1. Amounts allowed '^jMf^^^ huMJcp6^1f(^^ addition to compen- cases ¥ TlSi sation not allowed 1185 TABLE OF CONTENTS XXXVll CHAPTER XXXI SUBROGATION PAGE PAGE Abticle a — When Allowed . . . 1186 7. Minnesota 1189 1. British Act 1186 8. New Jersey 1189 2. California 1187 9. New York 1190 3. Connecticut 1188 10. Pennsylvania 1191 4. Iowa 1188 11. Washington 1191 5. Massachusetts 1188 12. Wisconsin 1191 6. Michigan 1189 CHAPTEE XXXII PENALTIES PAGE PAGE Abticle A — When Imposed 1193 3. Claim for disfigurement 1195 1. Failure to qualify financially 4. Increased compensation for or secure insurance 1193 employer's failure to obey 2. Double indemnity ; serious safety rules 1196 and willful misconduct of employer 1193 CHAPTER XXXm LIMITATIONS PAGE PAGE Abticle A — Application op 9. Last day falling on Sunday . 1200 Statutes 1197 10. Death benefit 1200 1. Claim for compensation.... 1197 11. Extending time by paying 2. When petition must be act- medical expenses 1200 ually filed 1198 12. Pleading statute as defense. 1201 3. State fund 1199 13. Application dismissed on 4. Further disability 1199 petition 1201 5. Minors 1199 ^„„^ _ _ . , . . ■ 14. Waiver ; State institution . . 1201 6. Runs from last payment of ' ,, * * + ioai ... 15. Agreement to avoid statute. 1201 wages m lieu of compen- ..„ , ^ ^ j. ^ ^- -.oao ,r ,ir.n 16. Amendment not retroactive. 1202 sation 1199 ^_ „,^ , ... ^ „ i J J ... 17. When general statute of 7. Time extended as to em- ,..,/? ,. ir,«o , ^ -L. ■ limitation applies 1202 ployer by payment by in- surance carrier 1199 18. Amending complaint after 8. Application of unauthorized action for damages dis- lump sum settlement to ex- missed 1202 tend time . . . PigifizQfl. t)yMierosoft® Digitized by Microsoft® EXPLANATION OF ABBREVIATIONS Ala. — Alabama Eeports. App. Div. — Exports of the Appellate Division of the Supreme Court of Few York. Ariz. — Arizona Eeports. All. — Atlantic Eeporter. Bradbury's PI. & Pr. Rep. — Bradbury's Pleading and Practice Ee- ports, coTering miscellaneous decisions in New York State. Bull. 111. Ind. Bd. — Bulletin of the Illinois Industrial Board containing workmen's compensation decisions. Bull. Ohio Ind. Com. — BuUetiu of the Ohio Industrial Commission contaiaing workmen's compensation decisions. B. W, C. C. — Butterworth's Workmen's Compensation Cases (British) continuation of W. C. C. Cal. — California Eeports. Cal. Ind. Ace. Com. — Eeports pf the California Industrial Accident Commission. Conn. — Connecticut Eeports. Conn. Comp. Dec. — Decisions of the various compensation commis- sioners of the State of Coimecticut. Fed.— Federal Eeporter. Ga. — Georgia Eeports. 111. — Illinois Eeports. 111. App. — Illinois appeal cases of intermediate courts of appeal. Ind. — Indiana Eeports. Indicator, The. — Insurance newspaper in Michigan containing some of the decisions of the Michigan Industrial Accident Board. Iowa. — Iowa Eeports. Kans. — Kansas Eeports. Ky. — Kentucky Eeports. L. Ed. — Eeports of the United States Supreme Court; edition of the Lawyers' Co-operative Publishing Company. L. R. A. — Lawyer's Eeports Annotated. L. R. A. (N. S.). — Lawyer's Eeports Annotated, New Series. Marq. H. L. Cas. — Decisions of the British House of Lords. Mass. — Massachusetts Eeports. Mass. Ind. Ace. Bd. — Eeports of the Massachusetts Industrial Acci- dent Board. Md. — Maryland Eeports. xsnx Digitized by Microsoft® Xl EXPLANATION OF ABBEEVIATIONS Mich. — Michigan Eeports. Mich. Ind. Ace. Bd. — •Decisions by the Michigan Industrial Accident Board. Minn. — Minnesota Eeports. Misc. — ^Miscellaneous Eeports of Kew York State containing decisions of the lower courts. Mo. — Missouri Eeports. Mo. App. — ^Missouri Appeal Eeports. N. E. — ISTortheastern Eeporter. Nebr. — Nebraska Eeports. N. C. C. A. — 'Negligence and compensation cases published by Calla- han & Co., Chicago. Nebr. — Nebraska Eeports. N. J. Law. — New Jersey Law Eeports. N. J. Law J. — New Jersey Law Journal. N. W. — Northwestern Eeporter- N. Y. — New York Court of Appeals Eeports. N. Y. St. Dep. Rep. — New York State Departmental Eeports, in which are reported the decisions of the Industrial Commission in work- men's compensation cases. Ohio Cir. Ct. — Decisions of intermediate courts of Ohio. Op. Sol. Dep. C. & L. — Opinions of the Solicitor of the Department of Commerce and Labor under the Federal Workmen's Compensa- tion Act relating to government employes. Pac. — Pacific Eeporter. Pa. St. — Pennsylvania State Eeporter. Scotch L. R. — Scotch Law Eeports. S. E. — Southeastern Eeporter. So. — Southern Eeporter. Sup. Ct. — West Publishing Company's edition of the reports of the Supreme Court of the United States. Supp. — New York Supplement, published by West Publishing Co. S. W. — Southwestern Eeporter. Texas Civ. App. — Texas Civil Appeal Eeports. U. S. — United States Supreme Court Eeports. Wall. — Wallace's United States Supreme Court Eeports. Wash. — Washington State Eeports. ,.^ W. C. C. — Workmen's Compensation Cases (British), published by Butterworth ; sometimes cited Minton-Senhouse. After 9th volume superseded by B. W. C. C. Wis. — Wisconsin Eeports. Wis. Ind. Com. — Eeports of the Wisconsin Industrial Commission. W. Va. — West Virginia Eeports. Digitized by Microsoft® TABLE OF GASES PAGE A. Aberdeen Steam Trawling & Fish- ing Co. V. Gill (1907), 45 Scotcb L. R. 247; 1 B. W. C. C. 274 250 Abraham Coal Co. v. Southern (1903), 5 W. C. C. 125 .' . 917 Ackerson v. National Zinc Co., 96 Kans. 781 ; 153 Pac. 530 943, 953, 954, 1002, 1156, 1202 Acres v. Frederick & Nelson, 79 Wash. 402; 140 Pac. 370; 5 N. C. C. A. 557 285 Acrey v. City of Holtville, 2 Cal. Ind. Ace. Com. 561.... 233, 600, 819, 893, 1199 Adams v. Acme White Lead & Color Works, 182 Mich. 157; 148 N. W. 485; 6 N. C. C. A. 482 318, 406 Adams v. New Tork, Ontario & Western Ry. Co., 220 N. Y. 579 ; 114 N. E. 1046; aff'g 175 App. Dlv. 714; 161 Supp. 919 1160 Adams v. Southern Ky. Co., 51 So. 987 ; 000 Ala. 000 524 Adams v. Thompson (1911), 5 B. W. C. C. 19 643 Adier v. Thomashefsky Theatre Co., Inc. (1916), 9 N. Y. St. Dep. Rep. 348 259, 1060 Admiral Fishing Go. v. Robinson (1910), 102 L. T. 203; 3 B. W. C. C. 247 249 Aga V. Harbach, 117 N. W. 669; 140 Iowa 606 162 Agate V. Bradbury Estate Co. (1916), 3 Cal. Ind. Ace. Com. 361 TO7 Agler V. Michigan Agricultural College, Mich. Ind. .Ace. Bd., bigitized by Mi^soft® PAGE No. 3 (1913) ; The Indicator, Nov. 5, 1913, p. 442 199 Agler V. Michigan Agricultural College, 181 Mich. 559; 148 N. W. 341 ; 5 N. C. C. A. 897 254 Aiken v. Anderson, 2 Cal. Ind. Ace. Com. 361; 11 N. C. C. A. 373 192 Aillo V. Milwaukee Refrigerator Transit & Car Co., Fourth An- nual Report (1915), Wis. Ind. Com. 18 376 Ainsworth v. B. Drouillard, 2 Cal. Ind. Ace. Com. 14 269, 369 Altken v. Finlayson, Bousfield & Co. (1914), Scotch Court of Session, 7 B. W. C. C. 918. .353, 604 Aken v. Barnet & Aufsesser Knit- ting Co., 118 App. Div. 463 ; 103 Supp. 1078 174 Aklns V. Pacific Light and Power Corp., 2 Cal. Ind. Ace. Com. 911 366, 578 Albanese v. Stewart, 2 Brad- bury's PI. & Pr. 189; 78 Misc. 581; 138 Supp. 942 99, 116 Albe V. Puth (Essex Common Pleas, 1913), 37 N. J. Law J. 9 658, 882, 945 Albin V. International Mercantile Co., 5 N. Y. St. Dep. Rep. 367, 114, 225, 230 Alderidge v. Merry (1912), Irish Court of Appeal, 6 B. W. C. C. 450 640 Aldinger v. Ransome Concrete Co., 1 Cal. Ind. Aec. Com. (Part I), 151 765, 766 Alexander v. R. A. Sherman Sons Co., 86 Conn. 292; 85 Atl. 514. . 134 xlii TABLE OS" CASES PAGE Allaire v. CJopping, 1 Conn. Comp. Dec. 288 1144 Allard v. Browne, 2 Cal. Ind. Ace. Com. 464; 11 N. C. C. A. 761.. 710 Allegar v. American Car & Foundry Co., 206 Fed. 437 408 Allen V. Bear Creek Coal Co., 43 Mont 269; 115 Pac. 673 142 Allen V. City of Millville, 87 N. J. I/aw 356; 95 Atl. 130; 9 N. 0. C. A. 749 ; afE'd 96 Atl. 1101 ; 88 N. J. Law 356 945 Allen y. Globe Indemnity Co., 1 Mass. Ind. Ace. Bd., 75; 11 N. O. C. A. 555 891, 1195 Allen V. Great Eastern Railway Co. (1914), Court of Appeal of England, 7 B. W. C. C. 986. . . .1070 Allen V. Hixson, 36 S. E. 810; 111 Ga. 460 696 Allen V. Hoey (1914), Irish Court of Appeal, 8 B. W. C. C. 424. . . 948 Allen V. Los Angeles Ice & Cold Storage Co., 3 Cal. Ind. Ace. Com. 104 614 Allen V. Southwestern Surety Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 67 838 A.llen V. State of New York, 6 N. Y. St. Dep. Rep. 376; afE'd 173 App. Div. 455; 160 Supp. 85, 235, 254 Alloa Coal Co. v. Drylie (1913), 6 B. W. C. C. 398; 4 N. C. C. A. 899 425, 667 Allyn V. Fresno Brewing Co., 2 Cal. Ind. Ace. Com. 782 598 Alvarez v. Eisenmann, 1 Conn. Comp. Dec. 357 795 American Coal Co. v. Alleghany County Commissioners (1916), 128 Md. 564 ; 98 Atl. 143 66 American Ice Co. v. Fitzhugh (1916), 128 Md. 382; 97 Atl. 999 258, 536, 1043, 1084 American Mut. Llab. Ins. Co. In Re, 111 N. E. 106; 222 Mass. 461 916 FAQE Re (Gould V. Sturtevant, which gee), 102 N. B. 693; 215 Mass. 480 1087 American Radiator Co. v. Rogge, 86 N. J. Law 436; 92 Atl. 85; aff'd 87 N. J. Law 314; 93 Atl. 1083; 7 N. C. C. A. 144. .83, 87, 93, 95, 111, 112, 284 Ames V. New York Central Rail- road Co. (1916), 9 N. Y. St. Dep. Rep. 393 480 Amesbury v. Vacuum Oil Co. (1916), 9 N. Y. St. Dep. Rep. 399 383 Amorosino v. Massachusetts Em- ployes Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 285 716 Amys V. Barton (1911), 5 B. W. C. C. 117 610, 1011 Anaratone v. Lemoore Canal and Irrigation Co., 2 Cal. Ind. Ace. Com. 249 834 Anderson, In re, 1 Bull. Ohio Ind. Com. 90 468, 486 Anderson v. Adamson, 6 B. W. C. C. 874 504 Anderson v. American Straw Board Co., 1 "Conn. Comp. Dec. 11; aff'd by Superior Ct, Id. 12 Anderson v. Ashmore Mutual Telephone Co., 1 Bull. 111. Ind. Bd. 132 Anderson v. Balfour (1910), 44 Irish L. T. 168; 3 B. W. C. C. 588 601 Anderson v. Carnegie Steel Co. (1916), 000 Pa. St. 000; 99 Atl. 215 68 Anderson v. Fife Coal Co. (1909), 47 Scotch L. R. 5; 3 B. W. C. Co. 539 478 Anderson y. Foley Bros., 124 N. W. 987; 110 Minn. 151 135 Anderson v. Hammond Lumber Co. (1916), 3 Cal. Ind. Ace. Com. 378 909, 919 750 259 American Mutual Lia£j/^/z^.^y M/cAj^fl^ ^- ^"^ Angeles Military .TABLE OP CASES xliii PAGE Academy, 3 Oal. Ind. Ace. Com. 309 194 Anderson v. Miekelson and Hughes, 1 Cal. Ind. Ace. Com. (Part II), 189 168 Anderson v. Pelham Hod Elevat- ing Co., 129 App. Div. 639; 113 Supp. 989 151 Anderson v. Perew, 2 Cal. Ind. Ace. Com. 727 153 Anderson & Co. v. Adamson (Scotch Court of Session), 6 B. W. C. C. 874 640 Andreini v. Cudahy Packing Co. and Casualty Co. of America, 1 Cal. Ind. Ace. Com. (Part II), 157; 6 N. C. C. A, 390.... 387, 648, 1035 Aildrejwski v. Wolverine Coal Co., 182 Mich. 298; 148 N. W. 684; 6 N. C. C. A. 807 926, 997 Andreueetti v. California Brick Co., 2 Cal. Ind. Ace. Com. 208; 12 N. C. C. A. 1036 560 Andrew v. Alaska Packers Asso- ciation, 2 Cal. Ind. Ace. Com. 768 807, 1015 Andrevp^ v. Failsworth Industrial Society (1904), 90 L. T. 611; 6 W. O. C. 11 ; 2 K. B. 32. .407, 661, 463 Andrews v. Boedecker, 17 111. App. 213 134 Andrus v. Atkinson (1916), 3 Cal. Ind. Ace. Com. 224 215, 280 Angelucci v. H. S. Kerbaugh, Inc. (1916), 9 N. Y. St. Dep. Rep. 387 767, 956, 1023, 1198 Anglo-Australian Steam Naviga- tion Co. V. Richards (1911), 4 B. W. C. C. 247 1113 Angus V. White Gulch Mining Co., 3 Cal. Ind. Aee. Com. ,87 237, 515, 1171 Anley's Executors v. Neale (1907), 9 W. C. 34 821 Anslow V. Cannock Chase Col- liery Co. (1909), loo&gitizfiskpy Mia PAGE 2 B. W. C. C. 365 ; 11 N. C. C. A. 669 906 Antone v. South Eureka Mining Co., 1 Cal. Ind. Ace. Com. (Part I), 228 846 Anys V. Barton (1912), 1 K. B. 40 464 Appleby v. Horseley Co. & Lovatt (1899), 80 L. T. 853; 1 W. C. Co. 103 906 Aquilano v. Lambo, 1 Conn. Comp. Dee. 145 335, 586 Arata, Re, Sol. Dep. L., p. 264... 400 Arcangelo v. Gallo & Laguidara (1917), 000 App. Div. 000; 163 Supp. 727 860, 1005, 1054 Archambault v. London Guaran- tee and Accident Co., 1 Mass. Ind. Ace. Bd. 49 763 Archibald v. Ott, 000 W. Va. 000 ; 87 S. B. 790 366, 670 Arizona & N. M. Ry. Co. v. Clark (U. S. Cir. Ct. of App., 9th Cir.), 207 Fed. 817 176 Arkadelphia Lumber Co. v. Smith, 78 Ark. 505 ; 95 S. W.800 484 Armenis v. Kerr, 1 Conn. Comp. Dee. 338 730 Armiger v. Townsend-Davis Bak- ing Co., 1 Oal. Ind. Ace. Com. (Part II), 55 701, 1035 Armitage v. Lancashire & York- shire Ry. Co. (1902), 76 L. T. 883; 4 W. C. C. 5, 2 K. B. 178 463, 587 Armour & Co. v. Industrial Board (1916), 273 111. 590; 113 N. B. 138 .1018, 1035, 1082 Armour & Co. v. Industrial Board (1916), 000 111. 000; 114 N. B. 173 262 Armstead, Re: Op. Sol. Dep. C. & L., p. 240 592 Armstrong v. California Rex Spray Co. and Royal Indemnity Co., 1 Cal. Ind. Aee. Com. (Part II); 190 368 V. Industrial Com. of xliv TABLE OF CASES PAGE Wis., 161 Wis. 530; 154 N. W. 845 766, 768 Armstrong v. West Coast Life Ins. Ck)., 41 Utah 112 ; 124 Pac. 518 363 Arndt v. Illinois Steel Co., Third Annual Report (1914), Wis. Ind. Com., p. 47 684 Amiston Coal Co. v. King (1913), Scotch Court of Session, 6 B. W. C. C. 826 987 Arnold v. Benjamin, 1 Cal. Ind. Ace. Com. (Part II), 411 554 Arnold v. Brooklyn, 1 Conn. Oomp. Dec. 188 668 Arnold v. Holeproof Hosiery Co., Fourth Annual Report (1915), Wis. Ind. Com. 32 589 Arnott V. Fife Coal Co. (1911), 48 Scotch L. R. 828; 4 B. W. C. C. 361 855 Arnott V. Fife Coal Co. (No. 2) (1912), 2 B. W. C. C. 281 1121 Arnott V. Fife Coal Co. (No. 2) (1912), 6 B. W. C. C. 281 1073 Artenstein v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 699 155 Asdoorian v. Massachusetts Em- ployes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 742 819 Ash V. Barker, 2 Cal. Ind. Ace. Com. 40 347, 711, 727 Ash Grove Lime & Portland Ce- ment Co., 92 Kans. 146; 139 Pac. 1193; 5 N. C. C. A. 763. ..1004 Ashley 'V. Lilleshall Co. (1911), 5 B. W. C. C. 85 329 Ashton V. Boston and Maine R. R. Co., 222 Mass. 65 ; 109 N. E. 820 ; 12 N. C. C. A. 837 27 Asplund V. Conklin Construction Co., 165 111. App. 44 135 Astley V. R. Evans & Co. (1911), 104 L. T. 373; 4 B. W. 0. 0. 209; aff'd 4 B. W. C. C. 319. . .1034 Atkins V. S. Arthur ^cranton, ,1 Conn. PAGE Atkinson, Re: Op. Sol. Dep. C. & L., p. 197 397 Atlantic Transport Co. v. Im- brovek, 234 U. S. 52 229 Atwell, In re, Ohio Ind. Com. No. 1,384, Sept 20, 1915; 12 N. C. O. A. 662 501 Augustine v. Cotter, 2 Cai. Ind. Ace. Com. 59; 11 N. C. C. A. 373 195 Augusto v. Standard Lumber Co., 1 Cal. Ind. Ace. Com. (Part I), 114 1016 Auguzzi V. Blakeslee, 1 Conn. Comp. Dec. 163 336 Auguzzi V. Blakeslee, 1 Conn. Comp. Com., Third Dist, June 28, 1916 (unreported) 704 Avanzato v. Erie R. Co., 4 N. Y. St. Dep. Rep. 397 483 Avery v. Pacific Gas and Electric Co., 2 Cal. Ind. Ace. Com. 343 759, 781 Aylesworth v. Phoenix Cheese Co., 3 N. Y. St. Dep. Rep. 383 376 Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34; 155 Supp. 916; 11 N. C. C. A. 3.30; 12 N. C. C. A. 311 171, 220 Aylward v. Oceanic Steamship Co., 2 Cal. Ind. Ace. Com. 116. . 853 B. Babcock, In re, Ohio Ind. Com. No. 115,044, Dec. 3, 1915; 12 N. C. C. A. 655.: 480 Babcock & Wilcox v. Young (1911), 48 Scotch L. R. 298; 4 B. W. C. C. 367 903 Backman v. Devine & Sons .(1915), 9 N. Y. St. Dep. Rep. 322 451 Backman v. Donlan (1915), Re- port of Montana Ind. Ace. Bd. , 135 1022 Bacon v. U. S. Mutual Accident 123 N. Y. 304; 9 L. R. clpT^c: »^2r^^c^s«/-;-- -;_-;- 3^3 TABLE OF CASES xlv FAOE Baggonski v. Clayton Brothers, Inc., 1 Conn. Comp. Dec. 299. . 847 Bagley v. James, 2 Cal. Ind. Ace. Com. 840 219 Bagnall v. Levinstein (1906), 96 L. T. 184; 9 W. C. C. 100. .173, 180 Baird, In re, 1 Bull. Ohio Ind. Com. 28 784 Bailey, Re: Op. Sol. Dep. C. & L., p. 232 609 Bailey v. Interstate Cas. Co., 8 App. Div. 127; 40 Supp. 513; aff'd 158 N. T. 723; 53 N. B. 1123 407, 432 Bailey v. Kenworthy (1906), 1 B. W. C. C. 371 ; 11 N. C. C. A. 793 904, 907 Bailey v. Plant (1900), 3 W. C. C. 209 1064 Bailey v. United States Fidelity & Guaranty Co., 000 Nebr. 000 ; 155 N. W. 237 ....1157, 1158, 1178 Bailey v. Wheeler Co. and Etna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 142 708, 1174 Baine v. Libby, McNeil & Libby, 2 Cal. Ind. Ace. Com. 449 332 Balona v. Employers Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 252 428 Baird, Re: Claim No. 504, Ohio Lia. Bd. Awd., Nov. 11, 1912... 756 Baker v. Armstrong, 2 Cal. Ind. Ace. Com. 982 153 Baker v. Brophy, 3 Cal. Ind. Aec. Com. 108 926 Baker v. Frankfort General Ins. Co., 1 Mass. Ind. Ace. Bd. 249 1059, 1104, 1145 Baker v. Jevcell (1910), 3 B. W. C. C. 503 1052 Baker's Adm'r v. Lexington & E. Ry. Co., 28 Ky. Law 140; 89 S. W. 149 689 Bakiewicz v. National Brake and Electric Co., Fourth Annual Re- port (1915), Wis. Ind. Com. 11 423, 573 Ball V. William ^^j^^l^^ Micro%W^ (1912), 5 B. W. C. C. 459; rev'g 4 Id. 225 457, 849, 856 Ballon V. Potter, 106 S. W. 1178; 32 Ky. Law Rep. 779 632 Banister, James A. Co. v. Kriger, 84 N. J. Law 30 ; 85 Atl. 1027 ; 3 N. C. C. A. 585 854, 863, 1158 Banks v. Adams Express Co. (1916), 7 N. Y. St. Dep. Rep. 471 452 Barbaglia v. Warren Bros. Co., Superior Ct., New Haven County, Conn., Jan. 9, 1917 (unreported) 466, 469 Barbeary v. Chugg (1915), 8 B. W. C. C. 37 431 Barbour Flax Spinning Co. v. Hagerty, 85 N. J. Law 407; 89 Atl. 919 ; 4 N. C. C. A. 586. .869, 870 Bareham v. Universal Film Mfg. Co., 1 Cal. Ind. Ace. Com. (Part II), 487 195 Bargewell v. Daniel, 123 L. T. J. 487 ; 9 W. C. C. 142 190 Bargey (Matter of) v. Massaro Macaroni Co., 218 N. Y. 410; 113 N. E. 407; aflC'g 170 App. Div. 103; 155 Supp. 1076; 11 N. C. C. A. 322.. 132, 170, 180, 666 Barker v. Henry B. Kent & Co., and The Aetna Life Ins. Co., Conn. Comp. Com., First Dist, June 19, 1916 (unreported) 846 Barnabas v. Bersham Colliery Co. (1910), 102 L. T. 621; 3 B. W. C. C. 216 1036 Barnabas v. Bersham Colliery Co. (1910), 4 B. W. O. C. 119.. 353 Barnard v. H. Garber & Co., 1 Conn. Comp. Dec. 572 474 Barneburg v. Northwestern Pa- cific Ry. Co., 2 Cal. Ind. Aec. Com. 336 917 Barnes v. Evans & Co. (1914), 7 B. W. C. C. 24 149 Barnes v. Nunnery Colliery Co. (1911), 5 B. W. C. C. 195; aff'g (1910), 4 B. W. C. C. 43 622 V. Port of London Au- xlvi TABLE OB" CASES FAOi: thority (1913), e B. W. C. C. 466 1046, 1075 Barozzi v. Bertin & Leporl Co., 1 Cal. Ind. Ace. Com. (Part II), 484 988, 1142 Barrett v. Grays Harbor Com- mercial Co. (U. S. Dlst. Ct. Dist Wash.), 209 Fed. 95; 4 N. C. C. A. 756 80, 305 Barrett v. Shartenberg & Robin- son Co., 1 Conn. Comp. Dec. 305 474 Barrie v. Diamond Coal Co. (1914), Alberta Supreme Court, 7 B. W. C. C. 1061 930, 990 Barron v. Blair & Co. (1915), 8 B. W. C. C. 501 817 Barron v. Seaton Burn Coal Co. (1915), 8 B. W. C. C. 218..... 418 Barron v. Venice, 2 Cal. Ind. Ace. Com. 31 234 Barry v. Bay State St. Ry. Co., 2 Mass. Ind. Ace. Bd. 1031.... 1062 Barry v. Bay State St. Ry. Co., 220 Mass. 366; 110 N. E. 1031 297, 1188 Bartlett v. Tutton & Sons (1901), 85 L. T. 531 ; 4 W. C. C. 133. . . 922 Barton v. New York, New Haven & Hartford R. Co., 1 Conn. Comp. Dee. 227 559, 722 Bartoni, In re (1916), 000 Mass. 000; 114 N. E. 663.... 782, 805, 900 Bartonshill Coal Co. v. Reid, 3 Marq. H. L. Cas. 266 20 Bassett v. Thomson Graf Edler Co., 1 Cal. Ind. Ace. Com. (Part II), 60 704, 861 Batch V. Borough of Broton, 1 Conn. Comp. Dec. 177 879 Batchelder v. Kreis, 1 Cal. Ind. Aec. Com. (Part II), 63.. 136, 818, 1(^ Bateman v. Albion Combing Co. (1914), 7 B. W. C. C. 47..1... 596 Bateman Mfg. Co. v. Smith, 85 N. J. Law 409; 89 Atl. 979; 4 PAGE Bates V. Davies' Executors (1909), 2 B. W. C. O. 459 682 Bates V. Holding Co. (1914), 7 B. W. C. C. 80 1141 Bates V. Mirfield Coal Co. (1913), 6 B. W. O. C. 165 620 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. 500 256 Batista V. West Jersey & S. R. Co., 000 N. J. Law 000; 88 Atl. 954; 4 N. C. C. A; 781.... 764 Battey v. Stanage (1916), 3 Cal. Ind. Ace. Com. 288 137 Batty V. Crescent Feather Co. and United States Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 66 867 Bauer v. Pacific Baking Co. (1916), 3 Cal. Ind. Ace. Com. 337 551 Baumgartner v. New Method Laundry Co., 2 Cah Ind. Aec. Com. 619 1197 Baur V. Court of Common Pleas in and for Essex County, 000 N. J. Law 000 ; 95 Atl. 627 ; 11 N. C. C. A. 634. .881, 918, 956, 996, 1006, 1159 Bax V. Russ Lumber & Mill Co. (1916), 3 Cal. Ind. Ace. Com. 199 550 Bayer v. Bayer (1916), 000 Mich. 000; 158 N. W. 109. .159, 467, 1170 Bayne v. Riverside Storage & Cartage Co., 181 Mich. 378; 148 N. W. 412; 5 N. C. C. A. 837 441, 669 Bayon v. Beckley, 89 Conn. 154; 93 Atl. 139; 8 N. C. C. A. 588; aff'g 1 Conn. Comp. Dec. 69 . . ..177, 197, 547, 629, 978, 981 Beadle v. Milton & Others (1903), 114 L. T. 550; 5 W. C. C. 55. . . 407 Beadle v. Owners of S. S. " Nich- olas" (1909), 101 L. T. 586; N. c. c. A. 588 DigitiZBSl bsQMicrQSBft®. c. c. 102 1074 TABLE OF OASES xlvii PAGE Beale v. Fox (1909), 2 B. W. C. C. 467 542 Beals V. United Railroads of San Francisco, 3 Cal. Ind. Ace. Com. 30 700, 912 Beare v. Garrod (1915), 8 B. W. C. C. 474; 10 N. C. C. A. 756, 327, 1012 Beatty v. C6unty of Los Angeles, 2 Cal. Ind. Ace. Com. 983; 12 N. C. C. A. 387 468 Beauehamp v. Chanslor-Canfield Midway Oil Co., 2 Cal. Ind. Ace. Com. 485 449 Beaudry v. Watkins (1916), 000 Mich. 000; 158 N. W. 16. .483, 537 Beaumont v. Underground Elec- tric Railways Co. of London (1912), 5 B. W. C. C. 247 328 Beauregard v. E. N. Tichener & Co., 1 Bull. 111. Ind. Bd. 8 858 Becli V. Hill & Sons (Carriers) Ltd. (1915), 8 B. W. C. C. 592. . 250 Becker v. Blake, 1 Conn. Comp. Dec. 516 1057 Beekman v. Oelerieh & Son (1916), 174 App. Div. 353; 160 Supp. 791 186, 238, 1059, 1094, 1105, 1198 Beckster v. A. T. Pattison, 1 Conn. Comp. Dec. 61 1039 Beddard v. Stanton Ironworks Co. (1913), 6 B. W. C. C. 627. . 850 Bedini v. Northwestern Pacific Railroad Co., 1 Cal. Ind. Ace. Com. (Part II), 312. .330, 842, 1152 Bedwell v. London Electric Ry. Co. (1914), 7 B. W. C. C. 685. .1001 Beech v. Bradford Corporation (1911), 4 B. W. C. C. 236 1139 Beech v. Packard Motor Co., Mich. Indus. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, p. 418 862 Behringer v. Inspiration Consol. Copper Co., 17 Ariz. 232; 149 Pac. 1065 .^.. . „.. .293, 1008 Beinotovitz v. Nan Works, 1 Conn. Comp. Dee. 623 723 Belcher v. Campo, 1 Conn. Comp. Dec. 612 773 Belfast, The, 7 Wall. 624 229 Belknap v. Mervy-Elwell Co., 1 Cal. Ind. Ace. Com. (Part II), 82 531, 1042 Bell V. Hayes-Ionia Co. (1916), 000 Mich. 000; 358 N. W. 179, 390, 1090 Bell V. Terry & Tench qo., 000 App. Div. OOO; 163 Supp. 733, 783, 788 Bell V. Toluca Coal Co., 272 111. 576; 112 N. E. 311 25 Bellamy v. J. Humphries & Sons (1913), 6 B. W. C. C. 53 583 Bellisario v. Hyde Real Estate Corporation, 6 N. X. St. Dep. Rep. 357 243 Belt Ry. Co. v. Charters, 123 111. App. 322 696 Bender v. Owners of Steamship "Zent" (1909), 100 L. T. 639; 2 B. W. C. C. 22 1034 Benedict v. International Mer- cantile Marine Co., 5 N. Y. St. Dep. Eep. 411 225 Bennett v. Russell & Sons Co., 6 N. Y. St. Dep. Rep. 403; 12 N. C. C. A. 659 475 Bennett v. San Barnardino Laundry Co. (1916), 3 Cal. Ind. Ace. Com. 229 400 Bennett v. San Buenaventura Wharf Co., 1 Cal. Ind. Ace. Com. (Part II), 200; 12 N. C. C. A. 66 771 Bennett v. Western Union Oil Co. (1916), 3 Cal. Ind. Ace. Com. 279 478, 521 Benoit v. Bushnell (Superior Court of Conn.), 1 Conn. Comp. Dec. 174; rev'g 1 Conn. Comp. Dec. 172 154, 940, 941, 1078 ....^^^. ^^^^ Benson v. Hutchinson Co., 2 Cal. W^^m MicrosqS^ ^cc com. 898 699 xlviii TABLE OP CASES PAGE Benson v. Lancashire & Yorkshire Ry. Co. (1903), 89 L. T. 715; 6 W. C. C. 20 468, 477 Benson v. Penney (1916), 000 App. Div. 000 ; 161 Supp. 532. . 883 Bentley, In re (Bentley v. Burn- ham Bros.), 104 N. B. 432; 217 Mass. 79; 4 N. C. C. A. 559. . . .1086 Bentley v. Massachusetts Em- ployees Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 98 763 Benton v. Fraser, 5 N. Y. St. Dep. Re^. 392 114, 245, 261 Benton v. Wilson, 1 Bull. 111. Ind. Bd. 54 260 Berbllnger v. Hicks-Hauptman Transportation Co., 1 Gal. Ind. Ace. Com. (Part II), 653 103 Berg, In re, 1 Bull. Ohio Ind. Com. 102 1183 Berg V. Great Lakes Dredge and Dock Co., 173 App. Div. 82; 158 Supp. 718; 12 N. G. G. A. 74 555, 1030 Bergemann v. Schwarzenbach Huber & Co. (Morris Common Pleas), 36 N. J. Law J. 209. ... 946 Berger v. Shadboldt Mfg. Go. (1916), 8 N. Y. St. Dep. Rep. 460 764, 788 Berlin v. Chesky, Third Annual Report (1914), Wis. Ind. Com. 49 765, 784 Berliner v. Ritchie & Cornell, 4 N. Y. St. Dep. Rep. 446 246 Bernard, Re: Op. Sol. Dep. L., p. 323 473 Bernard v. Michigan United Trac- tion Co., 188 Mich. 504; 154 N. W. 565 283, 308 Bemdt v. California Wine Ass'n, 3 Cal. Ind. Ace. Com. 103 1038 Bernstein v. Bothman, 1 Bull. 111. Ind. Bd. 163.-. 1081 Bernstein v. Brothman (1916), 000 III. 000 ; 114 N. B. 120 1063 Berry v. Pacific Coast Steel Co., 2 Cal. Ind. Ace. Com- Berthele v. .Globe GT l'?l&'M^^'%& PAGE Milling Co. and Nymo Line, 1 Cal. Ind. Ace. Com. (Part II), 137 1143 Berton v. Titjon & Lang Drydock Co., 219 Fed. 767 67 Bertram v. H. S. Crocker Co., 2 Gal. Ind. Ace. Com. 392 388 Bertsch v. B. W. Elliott and Pa- cific Coast Casualty Co., 1 Gal. Ind. Ace. Com. (Part I), 221.. 8.34 Besnys v. Herman Zohrlaut Leather Co., 157 Wis. 2a3; 147 N. W. 37 ; 5 N. G. C. A. 282,. .27, 28, 29 Bess V. Brownstein-Louis Com- pany, 1 Gal. Ind. Ace. Com. (Part I), 147 828 Bett V. Hughes (1914), (Scotch Court of Session), 8 B. W. C. C. 362 503 Betty V. Allen and Nelson (1916), 3 Cal. Ind. Ace. Com. 279 521 Bevan v. Bmerglyn Colliery Co. (1911), 5 B. W. C. C. 169; 11 N. C. C. A. 673 922 Bickelnitzky v. Acme Brewing Co., 3 Cal. Ind. Ace. Com. 5. . . . 843 Biddinger v. The Champion Iron Co., 1 Bull. Ohio Ind. Com. 70. . 664 Biero v. New Haven Hotel Co., 1 Conn. Comp. Dee. 52., 435, 795 Biggart v. S. S. " Minnesota " (1911), 5 B. W. C. C. 68 496 Billingsley v. United Tuna Pack- ing Co., 2 Cal. Ind. Ace. Com. 104 736, 1057 Billman v. Two Rivers Coal Co., 1 Bull. 111. Ind. Bd. 69 875 Bines v. L^ Gueret (1913), 6 B. W. C. C. 120 1034 Binkey v. Western Pipe and Steel Co., 1 Gal. Ind. Ace. Com. (Part II), 33 749, 917 Binns v. Kearley and Tonge (1913), 6 B. W. C. C. 608 1074 Bircbfleld v. Erickson Bros., 1 11. Ind. Bd. 198 1081 re, Ohio Ind. Com. No, TABLE OF CASES xlix PAGE 109,702, Dec. 20, 1915; 12 N. C. C. A. 662 499 Bird V. Oakland Brewing and Malting Co. (1916), 3 Cal. Ind. Ace. Com. 356 908 Birk V. Matson Navigation Co., 2 Cal. Ind. Ace. Com. 199 333 Birks V. Stafford Coal and Iron Co. (19'13), 6 B. W. C. 6. 617. . 418 Birmingham v. Lehigh & Wilkes- Barre Coal Co., 000 N.J. L. 000 ; 95 Atl. 242 ; 11 N. C. ' 0. A. 630 881, 912, 956, 1134 Birmingham Cabinet Mfg. Co. v. Dudley (1910), 102 L. T. 619; 3 B. W. C. C. 169 1121 Birmingham Rolling Mill Co. v. Rockhold, 143 Ala. 115; 42 So. 96 646 Birn v. Bradley Contracting Co., 6 N. Y. St. Dep. Rep. 319. .263, 946 Birnie v. Contractors' Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 619 358 Bischoff V. American Car and Foundry Co., 000 Mich. 000; 157 N. W. 34 564, 627, 1089 Bishop V. City of Chicago, 1 Bull. 111. Ind. Bd. 96 358, 646 Bishop V. Iroquois Iron Co., 1 Bull. 111. Ind. Bd. 108 795 Bisotti V. Behlow Estate Co., 2 Cal. Ind. Ace. Com. 912 594 Bist V. London & South Western Ry. Co. (1907), 96 L. T. 750; 9 W. C. C. 19 539 Bjorklund v. C. E. Lloyd and State Compensation Ins. Fund, 1 Cal. Ind. Ace. Com. (Part II), 48 861 Blackall v. Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 183 325 Blacker v. American Beet Sugar Co., 1 Cal. Ind. Ace. Com. (Part II), 481 1184 Blackford v. Green, 87 N. J. Law .359 ; 94 Atl. 401 870, 1066, 1092 Blackford V. Gveen^^.^jP^^ni^.^^^^^1 PAGE (Morris Common Pleas, 1914), 37 N. J. Law J. 279 636, 894 Black V. New Zealand Shipping Co. (1913), 6 B. W. C. C. 720. . 421 Black V. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 319.... 364, 450, 580 Blaes V. E. W. Bliss Co. (1916), 9 N. Y. St. Dep. Rep. 288 860 Blaes V. E. W. Bliss Co. (1917), 000 App. Div. 000; 163 Supp. 722 890 Blaine v. McKinsey, 1 Cal. Ind. Ace. Com. (Part II), 641; 11 N. C. C. A. 368... 192, 193, 213, 560 Blake v. Head, 106 L. T. Rep. 822, 464 Blake v. Head (1912), 5 B. W. C. C. 303 593 Blake v. Herskovitz, 1 Bull. 111. Ind. Bd. 161 1081 Blake v. Western Rock and Sand Co., 2 Cal. Ind. Ace. Com. 50. . 357 Blanton v. Wheeler & Howes Co. (1916), 000 Conn. 000; 99 Atl. 494 744, 782, 806, 982 Blanton v. Wheeler & Howes Co., 1 Conn. Comp. Dec. 415; aff'd by Superior Ct, Id. 418. ...... 784 Blanz V. Erie R. Co., 84 N. J. Law 35 ; 85 Atl. 1030 ; aff'd by Court of Errors and Appeals, 85 N. J. Law 367; 91 Atl. 1067; 11 N. C. C. A. 714 775 Blass V. Studebaker Corp. of America and Royal Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 162 885 Blatt V. Sehonberger & Noble (1916), 7 N. T. St Dep. Rep. 388 357 Blevins v. Dayton Union Ry. Co., 2 Bull. Ohio Ind. Com. 30 244 Block V. Mutual Biscuit Co., 2 Cal. Ind. Ace. Com. 330.... 331, 577 Blood V. Industrial Accident Commission, 30 Cal. 274; 157 Pae. 1140 191 Bloom, In re, 222 Mass. 434; 111 N„E. 45 943, 954 TABLE OF CASES PAGE Bloom V. Jaffe, 94 Misc. 222 ; 157 Supp. 926 735 Bloom V. Tilin, 5 N. Y. St. Dep. Rep. 441 1179 Bloomfield v. November (1916), 219 N. Y. 374; 114 N. E. 000. . . 946 Bloomfield v. November, 5 N. Y. St. Dep. Rep. 385 233 Bloomington D. & C. R. Co. v. Industrial Board (1916), 000 111. 000; 114 N. E. 511.... 1064, 1080, 1104 Blovelt V. Sawyer (1904), 1 K. B. 271 ; 6 W. C. C. 16 525 Blum V. Sockolov, 2 Cal. Ind. Ace. Com. 177 733 Blusslato V. Ebrhart, 2 Cal. Ind. Ace. Com. 621 584 Blynn v. City of Pontiac, 185 Mich. 35; 151 N. W. 681; 8 N. C. C. A. 793 243, 244 Blyth V. Sewell, 2 B. W. C. C. 476. 189 Boag V. Lockwood Collieries (1909), 47 Scotch L. R. 47; 3 B. W. C. C. 549 1110 Boardman v. Scott & Whitworth (1901), 3 W. C. C. 33; afE'd (1901), 85 L. T. 502; 4 W. C. C. 1 ' 438 Board of Management, Trim Joint District School v. Kelly (1914), 7 B. W. C. C. 274 591 Bobbey v. Crosbie (1915), 8 B. W. C. C. 236 150, 268 Boekwich v. Housatonic Power Co., 1 Conn. Comp. Dec. 266. 426, 667, 1040 Bode V. Shreve & Co., and Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 6 532, 635 Bodner v. West Canadian Col- lieries (1912), Alberta Supreme Ct, 7 B. W. C. C. 1022 1026 Boehme v. Owl Drug Co., 2 Cal. Ind. Ace. Com. 520 419 Boesenberg v. Butterick Publish- ing Co., 4 N. Y. St. Dep. Rep. 367 ; 12 N. C. C. A. 553 244, 500 •Boggelyn v. Coronado ^^^jfi^ by PAGE Frankfort Gen. , Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 276. 388 Bohma v. Western Union Tele- graph Co., 2 Cal. Ind. Ace. Com. 282 ; 12 N. C. C. A. 1035. . 563 Bokoshe Smokeless Coal Co. v. Morehead, 126 Pac. 1033; 34 Okla. 424 157 Bolger V. North Pacific Steamship Co., 2 Cal. Ind. Ace. Com. 324; 12 N. C. C. A. 71 562 Bolles V. New York Motion Pic- ture Corp., 2 Cal. Ind. Ace. Com. 477; 12 N. C. C. A. 665. . . 515 Bollinger v. Diestelhorst (1916), 3 Cal. Ind. Ace. Com. 368 541 Bolton V. Bridgeport Brass Co., 1 Conn. Comp. Dec. 515 349, 832 Bonaldi v. Hamburg Am. Line, 36 N. J. Law J. 302 911 Bonin v. California Hawaiian Sugar Refinery (1916), 3 Cal. Ind. Ace. Com. 334 364, 628 Bonney v. Joshua Hoyle & Sons (1914), 7 B. W. C. C. 108 1166 Bonsall v. Midland Colliery, etc.. Indemnity Co. (1914), 7 B. W. C. C. 613 812, 1166 Boody V. K. & C. Mfg. Co., 77 N. H. 208 ; 90 Atl. 860 ; 5 N. C. C. A. 840; L. R. A. 1916, A., lOn. . 231 Boon V. Quance, No. 1 (1909), 102 L. T. 443; 3 B. W. C. C. 106 247, 248 Booth V. Aetna Life Ins. Co., 1 Mass. Ind. Ace. Bd. 117; 12 N. C. C. A. 72 366, 517 Booth V. Burnett, 2 Cal. Ind. Ace. Com. 162 5X4 Booth V. Leeds & Liverpool Canal Co. (1914), 7 B. W. C. C. 434. 1034, 1035 Borgnis v. Falk Co., 147 Wis. 327 ; 133 N. W. 209; 3 N. C. C. A. 649;37L. R. A. (N. S.) 489.... 69 Boris V. Frankfort Gen. Ins. Co., 1 Mass. Ind. Ace. Bd. 276. .437, 675 /VJ^^iil,^^^®. Watson, Gow & Co. TABLE OF CASES li PAGE (1911), 49 Sc. L. R. 10; 5 B. W. C. C. 514 439 Bosanar, In re, 1 Bull. Ohio Ind. Com. 87 764 Boscarino v. Garfagno & Drago- nette (1917), 220 N. T. 323; 115 N. E. 710; rev'g 168 App. Div. 286; 161 Supp. 562 860 Boschetti v. L. Lecas and Fom- baron, 3 Cal. Ind. Ace. Com. 39. 215 Bostedo V. Fair, III. Ind. Bd. 506 ; May 6, 1914 ; 5 N. C. C. A. 791. 281 Boston & Maine R. Co. v. Baker, 236 Fed. 896 27 Boswell V. Gilbert (1909), 2 B. W. C. C. 251 266 Boucher v. London Guarantee and Accident Co., 1 Mass. Ind. Ace. Bd. 177 416 Boucher v. Olsen & Mahony Steamship Co., 1 Cal. Ind. Ace. Com. (Part II), 248 498 Bowdish V. Northwestern Pacific Rd. Co., 2 Cal. Ind. Ace. Com. 776 635 Bowhill Coal Co. v. Malcolm (1910), 47 Scotch L. R. 449; 3 B. W. C. C. 562 1117 Bowhill Coal Co. v. Neish and Others (1908), 46 Scotch L. R. 250 ; 2 B. W. C. C. 253 789 Bowie V. Coffin Valve Co., 86 N. E. 914 ; 200 Mass. 571 147, 158 Bowman v. Chicago, etc., Ry. Co., 125 U. S. 465, 507, 508 229 Bowne v. Bowne, 176 App. Div. 131; 162 Supp. 244 238 Boyd V. Blumenthal, 52 Atl. 330; 3 Pennewill (Del.), 564 696 Boyd V. Doharty (1908), 46 Scotch L. R. 71 ; 2 B. W. C. C. 257 1048 Boyd V. Pratt, 72 Wash. 306 ; 130 Pac. 371 754, 778 Boyd V. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 180.... 350, 398 Boyd V. Young Men's Christian Ass'n, 3 Cal. Ind. A&i^Simcfi^Wcn PAGE Boylngton v. Stoddard, 1 Conn. Comp. Dec. 103 154, 554 Boyle V. Columbian Fire Proof- ing Co., 182 Mass. 93; 64 N. E. 726 524 Boyle V. Mahoney, Conn. Comp. Com., Beers, Comr., Fourth Dist, March 19, 1917 (unre- ported) 177, 178, 474 Bozzo V. Pacific Coast Glass Works (1916), 3 Cal. Ind. Ace. Com. 247 334 Bracking v. Trinity Asbestos Min- ing Co., 3 Cal. Ind. Ace. Com. 22 685 Brackrog v. Macauley Foundry Co., 1 Cal. Ind. Ace. Com. (Part I), 148 280 Bradford v. Union Hollywood Water Co., 2 Cal. Ind. Ace. Com. 791 748 Bradley v. Salt Union (1906), 122 L. T. J. 302 ; 9 W. C. C. 31 552 Bradley v. Waterbury Clock Co., 1 Conn. Comp. Dec. 179 559, 704, 814, 941 Brady v. Canadian Pacific Ry. Co. (1913), 6 B. W. C. 0. 680. . 929 Brady v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 143. 811, 821 Brain v. Eisfelder, 2 Cal. Ind. Ace. Com. 36; 11 N. C. C. A. 378 150, 191, 193, 270, 1133 Braithwaite v. Rowley, 1 Conn. Comp. Dec. 355 1058, 1105 Braithwaite & Kirk v. Cox (1911), 5 B. W. C. C. 77 1115 Branconnier, In re, 223 Mass. 273 ; 111 N. E. 792 .' 887 Brandt v. Globe Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 309 836 Brandy v. Owners of S. S. "Raphael" (1910), 4 B. W. O. C. 6; afC'd by House of Lords (1911), 4 B. W. C. C. 307 924 rd V. North Eastern Rail- lii TABLE OF CASES PAGE way Co. (1910), 4 B. W. 0. 0. 84 1112 Bratson v. Mammoth Copper Mining Co. (1916), 3 Cal. Ind. Ace. Com. 357 830, 919 Breakwell v. Clee Hill Granite Co. (1911), 5 B. W. C. C. 133.. 932 Bredow v. Naughton & Co. (1916), 8.N. Y. St. Dep. Rep. 437 218 Brennan v. Mortell, Conn. Su- perior Court of New Haven County, July 19, 1916 (unre- ported) ; aff'g 1 Conn. .Comp. Dec. 659 557, 1042 Brennan v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 503 887 Brenner v. Brenner, 127 Md. 189 ; 96 Atl. 287 1084 Brewer v. Belcher, 1 Conn. Comp. Dec. Ill 177, 1009 Brewer v. Smith (1913), 6 B. W. C. C. 651 883 Brice v. Edward Lloyd (1909), 2 K. B. 804; 2 B. W. C. C. 26. 518, 524 Bridgeman v. McLoughlin (1916), 7 N. T. St. Dep. Rep. 425 359 Briggs V. Mitchell (1911), 48 Scotch L. R. 606; 4 B. W. C. C. 40O 787 Brightman, In re, 220 Mass. 17; 107 N. E. 527; 8 N. C. C. A. 102; L. R. A. (1916) A, 321, n. 381, 571, 1086 Brightman v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 765. .336, 571 Brinckman v. Harris (1916), W. C. & Ins. Rep. 45; 12 N. C. C. A. 484 691 Brine v. May, Ellis, Grace & Co., 6 B. W. C. C. 134 172, 1047 Brintons, Limited, v. Turvey (1905), A. C. 230; 7 W. 0. C. 1 327, 394 Brio V. Carpenter, Boxley & Her- rick, 6 N. Y. St. Dep. Rep. 364 777, 1060 Brisco V. Bnglert, 4 N. Y. St. Dep. Rep. 345 630 Bristol V. Bristol, 1 Conn. Comp. Dec. 368 211 Bristol V. Gartland, 1 Cal. Ind. Ace. Com. (Part II), 632.. 748, 749, 759 British Columbia Copper Co. v. McKittrick (1913), British Columbia Court of Appeal, 7 B. W. C. C. 1037 1063 British & South American Steam Navigation Co. v. Neil (1910), 3 B. W. C. C. 413 278 Britten v. Massachusetts Em- ploye Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 9 774 Broadway Coal Mining Co. v. Robinson, 150 S. W. 1000; 150 Ky. 707 502 Broderick v. London County Council (1908), 1 B. W. C. C. 219 399 Broderick v.' San Francisco Stevedoring Co., 2 Cal. Ind. Ace. Com. 286 293 Broderick v. Southern Pacific Co., 4 N. Y. St. Dep. Rep. 371. 448 Brodie v. Reo Pacific Co., 1 Cal. Ind. Aec. Com. (Part II), 12 N. C. C. A. 389 507 Broforst v. Owners of S. S. "Blomfield" (1913), 6 B. W. C. C. 613 353 Brogi V. Hammond Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 137 348 Bronzetti v. Employers' Liability Assur. Corp., 1 Mass. Ind. Aec. Bd. 279 859 Brooker v. Warren (1907), 23 T. L. R. 201; 9 W. C. C. 26... 534 Brooklyn Mining Co. v. Indus- trial Accident Commission (1916), 000 Cal. 000; 159 Pac. 162 516 Brooks V. Central California Traction Co., 2 Cal. Ind. Aec. Com. 438 886 Digitized by Microsoft® TABLE OF CASES liii PAGE Brost V. Whitall Tatum Co. (1916), 000 N. J. Law 000; 99 Atl. 315 67, 231, 284 Brousset v. Fresno Flume and Lumber Co., 1 Cal. Ind. Ace. Bd. (Part I), 159 872,910 Brown, In re (1916), 173 App. Div. 432; 159 Supp. 1047 244 Brown, Ee: Op. Sol. Dep. L., p. 328 683 Brown, Jr., v. Berkeley Daily Gazette, 2 Cal. Ind. Ace. Com. 841 589 Brown v. Boea Mills Co., 1 Cal. Ind. Aee. Com. (Part II), 40.. 553 Brown v. Byroads, 47 Ind. 435.. 696 Brown v. City of Decatur, 188 111. App. 147 234, 517 Brown v. Corona Citrus Ass'n, 2 Cal. Ind. Aee. Com. 134 585 Brown v. Davies-Leavitt Co., 2 Cal. Ind. Aee. Com. 16. . . .735, 998 Brown v. George A. Fuller Co. (1916), 000 Mich. 000; 159 N. W. 376 1063 Brown v. Johns-Pratt Co. and American Mut Liab. Ins. Co., Conn. Comp. Com'r, First Dist, June 8, 1916 (unreported) .362,' 721, 1106 Brown v. Kemp (1913), 6 B. W. C. C. 725 ..327, 566 Brown v. Kent (1913), 6 B. W. C. C. 745 431, 837 Brown v. Kidman (1911), 4 B. W. C. C. 199 371 Brown v. Pioneer Fruit Co., 2 Cal. Ind. Aee. Com. 824; 12 N. C. C. A. 180 482 Brown v. Scott (1899), 1 W. C. 0. 11 602 Brown v. Sheffield Scientific School, 1 Conn. Comp. Dec. 419 . . 1065 Brown v. Shirley Hill Coal Co., 94 N. E. 574; 47 Ind. App. 354. 529 Brown v. South Eastern & PAGE Committee (1910), 3 B. W. C. C. 428 917 Brown v. Thornyeroft & Co. (1912), 5 B. W. C. C. 386 856 Brown V. Watson (1914), 7 B. W. C. C. 259 425 Bruce v. Taylor & Malisbey (1916), 000 Mich. 000; 158 N. W. 153 852, 1090 Bruno v. International Coal & Coke Co. (1913), Alberta Su- preme Court, 7 B. W. C. C. 1033 933 Bryant v. Fissell, 84 N. J. Law 72; 86 Atl. 458; 3 N. C. C. A. 585 325, 465, 518, 595, 664, 1035, 1092 Brzinski v. Acme Body Co. (U. S. Dist. Court of N. J., 1914), 37 N. J. Law J. 183; 000 Fed. 000.1181 Buchanan v. L. B. White Lumber Co., 2 Cal. Ind. Ace. Com. 795. 771 Bucherri v. The Hartford Rubber Works. Co., 1 Conn. Comp. Dec. 622 1155 Buckley, In re, 105 N. E. 979 ; 218 Mass. 354; 5 N. C. C. A. 613.. 791 Buckley v. London India Docks (1909), 127 L. T. J. 521; 2 B. W. C. C. 327 925 Buckley v. Winchester Repeating Arms Co., Conn. Comp. Com., Beers, Com'r, Sept. -29, 1916 (unreported) 357, 706, 941, 984 Buhse V. Whitehead & Kales Iron Works (1916), 000 Mich. 000; 160 N. W. 557 775 Bulfinch V. Madera Sugar Pine Co., 1 Cal. Ind. Ace. Com. (Part II), 438 1154 Bulletin No. 9, Minnesota Dep. Labor & Ind. 9 945 Bullworthy v. Glanfield (1914), 7 B. W. C. C. 191 699 Buls V. S. S. "Teutonic" (1913), 6 B. W. C. C. 653 1141 Bunce, Re: Op. Sol. Dep. C. & L, Chatham Ry. Co.'s J^^g^^ by Micm^Sft® 330 liy TABLE OF CASES PAGE Burbage v. Lee, 87 N. J. Law 36 ; 93 Atl. 859; 11 N. C. C. A. 428. 877 Burgess v. Star and Empire Mines and. Investment C!o., 2 Cal. Ind. Ace. Com. 86; a£E'd on rehearing 2 Cal. Ind. Ace. Com. 88 400, 414 Burgess & Co. v. Jewell (1911), 4 B. W. C. C. 145 1119 Burgnon v. Bdgewater Coal Co., 111. Ind. Bd., Nov. 23, 1914 ; 12 N. C. C. A. 477 562 Burkard v. San Francisco Brew- eries, 2 Cal.- Ind. Aec. Com. 415 719 Burke v. Mayer (1916), 3 Cal. Ind. Aec. Com. 310 639, 923 Burke v. P. Ballantine & Sons (Essex Common Pleas, 1915), 38 N. J. Law J. 105; 12 N. C. C. A. 322 385, 647 Burke v. Sbepard, 1 Conn. Comp. Dec. 106 941 Burman v. Zodiac Steam Fishery Co. (1914), 7 B. W. C. C. 767.. 252 Burnes v. Swift & Co., 186 111. App. 460 307 Burnham v. Thames National Bank, 1 Conn. Comp. Dee. 339. 205 Burns, In re, 105 N. E. 601; 218 Mass. 8; 5 N. C. C. A. 635. .579, 806, 887, 894, 994, 1085 Burns, In re, 1 Bull. Ohio Ind. Com. 5 721, 728, 823 . Burns v. Manchester & Salford Wesleyan Mission (1908), 1 B. W. C. C. 305 ; 11 N. C. C. A. 77. 201 Burns v. Summerlee Iron Co. (1912), 6 B. W. C. C. 320 680 Burns v. William Baird & Co. (1912), Scotch Court of Ses- sion, 6 B. W. C. C. 362 988 Burrell v. Avis (1898), 1 W. C. C. 129 552 Burt, In re, Ohio Ind. Com. No. 82,519, July 6, 1915; 11 N. C. 0. A. 244 593 Burt V, Fife Coal Co. (1914), Digitized by Microsoft® PAGE Scotch Court of Session, 8 B. W. C. C. 350 817 Burton v. Chapel Coal Co. (1909), 46 Scotch L. R. 375; 2 B. W. C. C. 120 291 Burton v. ^Eggette Coal Co. (Mercer Common Pleas), 37 N. J. Law J. 271 653 Burton v. Whelan & Sons, 5 N. Y. St. Dep. Rep. 395 217 Burtsehell v. Cross, Austin & Ire- land Lumber Co., 3 N. Y. St Dep. Rep. 381; 12 N. C. C. A. 184 509 Burwash v F. Leyland & Co. (1912), 5 B. ^. C. C. 663 1032 Busby V. Richardson (1901), 3 W. C. C. 54 1001 Busek V. Wisconsin Gas & Elec- tric Co., Fourth Annual Report (1915), Wis. Ind. Com. 38... 6, 550 Bush V. Ickleheimer Bros. Co., 1 Cal. Ind. Aec. Com. (Part II), 552 481 Bush V. Union Commission Co., 2 Cal. Ind. Ace. Com. 632... 145, 995 Bushnell v. Industrial Board (1916), 000 III. 000; 114 N. E. 496 953, 1201 Busse V. Brugger, Third Annual Report (1914), Wis. Ind. Com. 78 151 Bustamente and Melendes v. Gate City Ice and Preeoollng Co., 2 Cal. Ind. Ace. Com. 120. 765, 787 Butler V. Burton-on-Trent Union (1912), 5 B. W. C. C. 355 371 Butler V. Paeifle-Wakefleld Com- pany, 1 Cal. Ind. Ace. Com. (Part I), 149 831 Butler V. Sheffield Farms, 6 N. Y. St. Dep. Rep. 368 1023 Butler V. Steamship Co., 130 U. S. 527 227 Butt V. Provident Clothing and Supply Co. (1913), 6 B. W. C. C- 18 505 Butte v. Industrial Accident TABLE OF CASES Iv PAGE Board of Montana, 52 Mont. 75 ; 156 Pac. 130 235, 284 Butterfleld v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 192 786 Buttl V. MacRorie-McLaren Co., - 2 Cal. Ind. Ace. Com. 526 219 Byles V. Pool and Ano. (1909), 2 B. W. C. C. 484 914 Byrne, Matter of (1910), 44 Irish L. T. 98 ; 3 B. W. C. C. 591. . . . 994 Byrne v. Baltlmglass Rural Dis- trict Council & Kelly (1911), 45 Ir. L. T. 206 ; 5 B. W. C. C. 566 150 Bystrom Bros. v. Jacobsno, 162 Wis. 180; 155 N. W. 919 442 Oabel V. Brown Cotton Gin Co., 1 Conn. Comp. Dec. 558 1041 Cable V. Hartford Accident and Indemnity Co. (1916), 3 Cal. Ind. Ace. Com. 235 714, 731 Caceavano v. New Yorli, Ontario & Western Ry. Co., 6 N. T. St Dep. Rep. 380; 12 N. C. C. A. 471 558 Cahill, In re, 173 App. Div. 418; 159 Supp.. 1060. .302, 310, 806, 1190 Cain V. Greenhut & Co., N. Y. Ind. Com. Bulletin, Vol. 2, No. 7, April, 1917, p. 125 188, 612 Cain V. Leyland & Co. (1906), 1 B. W. C. C. 368 900, 904 Cain V. National Zinc Co., 94 Kans. 679; 146 Pac. 1165; re- hearing denied, 94 Kans. 679; 148 Pac. 251 703, 1083 Caldwell v. Iowa State Traveling Men's Ass'n, 156 Iowa 327 ; 136 N. W. 678 423 Calef V. Union Oil Co. of Cali- fornia, 2 Cal. Ind. Ace. Com. 463 1201 Calico Printers' Association v. Booth (1913), 6 B. W. O. C. 551, 556 1027, 1151 California State Board PAGE Directors v. Dickerson, 1 Cal. Ind. Ace. Com. (Part II), 262. 772 Callahan v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 684; 12 N. C. C. A. 397. .. . 611 Callahan v. Fidelity and Deposit Co. of Maryland, 1 Mass. Ind. Ace. Bd. 251 880 Calot V. Union Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 512. 846 Cambrooli v. George (1903), 5 W. C. C. 26 697 Camellier v. Cardilli and Kaplan, 1 Conn. Comp. Dee. 215 271 Cameron v. Pillsbury (1916), 000 Cal. 000; 159 Pac. 149 209 Cammell, Laird & Co. v. Piatt (1908), 2 B. W. C. C. 368 819 Campbell, In re, Ohio Ind. Com. No. 71,569, July 1, 1915; 12 N. C. C. A. 665 520 Campbell v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 701 403 Campbell v. Detroit United Rail- way, Mich. Ind. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at p. 417 412 Campbell v. Los Angeles, 2 Cal. Ind. Ace. Com. 308 163 Campbell v. White Lumber Co., 3 Cal. Ind. Ace. Com. 33 710 Campenella v. Stola Construction ^nd Building Co. (1916), 9 N. Y. St. Dep. Eep. 385 520 Canadian Pacific Ry. v. Alberta Clay Products (1914), (Alberta Supreme Court), 8 B. W. C. 0. 645 1187 Canavan v. Owners of Steamship "Universal" (1910), 3 B. W. C. 0. 355 493 Cangreme v. Alberta Coal Mining Co. (1912), Alberta Supreme Court, 7 B. W. C. C. 1020 1068 Cannon v. Fargo, 138 App. Div. 20; 122 Supp. 576 631 Cannon v. Original Mining and Milling Co., 1 Cal. Ind. Ace. Ivi TABLE OF OASES PAGE Cantor v. Rubin Musicant Co., 3 N. T. St. Dep. Rep. 392 238 Cantwell v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 246.... 892, 580 Capen v. Terminal Hotel Co., 1 Cal. Ind. Ace. Com. (Part II), 562 919 Cappelli V. Cranford, 6 N. T. St. Dep. Rep. 349 451 Cardiff Corporation v. Hall (1911), 104 L. T. 467; 4 B. W. C. C. 159 1111 Cardoza v. Pillsbury, 000 Cal. 000; 145 Pac. 1015 1076, 1109 Carinduff v. Gilmore (1914), (Irish Court of Appeal), 7 B. W. C. C. 981 512 Carkey v. Island Paper Co. (1917), 177 App. Div. 73; 163 Supp. 710; rev'g 6 N. T. St. Dep. Rep. 321 890, 914, 1106 Carlin v. Alexander Stephens & Sons (1911), 48 Se. L. R. 862; 5 B. W. C. C. 486 1110 Carlo V. Illinois Pacific Glass Works, 2 Cal. Ind. Aec. Com. 182; 11 N. 0. C. A. 496 708 Carlsen v. Moe, 3 Cal.^ Ind. Ace. Com. 73 683 Carlson v. Emanuelson, 1 Conn. Comp. Dee. 139 579 Carlson v. Strong, Barnes & Hart Co. (Nov. 2, 1916) 969 Carmichael v. Hogrefe, 2 Cal. Ind. Ace. Com. 725 342 Carnegie Steel Co. v. Rowan, 39 Ohio Cir. Ct. 202.. 524 Carolan v. Harrington & Sons (1911), 2 K. B. 733; 4 B. W. C. C. 253 1132 Carpenter v. Detroit Forging Co., 000 Mich. 000; 157 N. W. 374, 1089, 1146 Carrigan v. Winchester Repeat- ing Arms Co., 1 Conn. Comp. Dec. 327 ; aff'd by Super. Ct. of Conn., Id., 330 651 Carroll, In re (1916), 000 Mass. 000 ; 114 N. E. 285 955, 1019 PAGE Carroll v. Gray and Sons (1910), 47 Scotch L. R. 646; 3 B. W. C. C. 572 1123 Carroll v. Knickerbocker Ice Co., Matter of, 218 N. T. 435; 113 N. B. 507; rev'g 169 App. Div. 450; 155 Supp. 1 573, 971, 1022 Carroll v. What Cheer Stables Co., 96 Atl. 208 ; 000 R. I. 000. 640, 1097 Carstens v. Pillsbury (1916), 172 Cal. 572 ; 158 Pac. 218 65, 269, 996, 997, 1076 Oarsvcell v. Sharpe and Others (1910), 47 Scotch L. R. 335; 3 B. W. 0. C. 552 249 Carter, In re, 221 Mass. 105 ; 108 N. E. 911 ; 9 N. C. C. A. 579. . . 782 Carter v. Hume-Bennett Lumber Co., 2 Cal. Ind. Ace. Com. 52. . 698 Carter v. Llevs'ellyn Iron Works, 2 Cal. Ind. Ace. Com. 855 456 Carter v. Rowe, Conn. Comp. Com., Third Dist, Beers, Com'r, Nov. 27 1916 (unreported) ; aff'd Super. Ct. of Conn., New Haven County, Feb. 2, 1917. 474, 722 Carter v. Travelers Ins. Co., 2 Mass. Ind. Aec. Bd. 796 782 Caruso v. Dunwoodie Ice Co., 5 N. Y. St. Dep. Rep. 422 223 Casanegri v. Medera Sugar Pine Co., 1 Cal. Ind. Ace. Com. (Part II), 589 713, 830 Case v. Colonial Wharves (1905), 8 W. C. C. 114 923 Casey v. Humphries (1913), 6 B. W. C. C. 520; 4 N. C. C. A. 881 563 Cason V. Star Laundry, 1 Cal. Ind. Aec. Com. (Part II), 485. 894, 1065, 1182 Casparson v. Munn, 111. Ind. Bd., March 4, 1915; 12 N. C. C. A. 654 517, 697 Cass v. Great Lakes Dredge & Dock Co., 1 Bull. 111. Ind. Bd. 99 1145 Digitized by Microsoft® TABLE OF CASES Ivii PAOE Cassell V. Simon Millinery Co., 2 Cal. Ind. Ace. Com. 996 545 Cassell V. Simon Millinery Co. (1916), 3 Cal. Ind. Ace. Com. 230; 12 N. C. C. A. 491. . .545, 750 Cassidy, Re: Op. Sol. Dep. L., p. 224 468 Casson v. Northwestern Pacific Ry. Co., 2 Cal. Ind. Ace. Com. 720 1153 Castellotti v. McDonnall, 1 Cal. Ind. Ace. Com. (Part II), 351; 11 N. C. C. A. 375 194, 207 Casualty Co. of America v. Swett Electric Light and Power Co. (1916), 174 App. Div. 825; 162 Supp. 107 1190 Catardi v. Bridgeport Contract- ing Co., 4 N. y. St. Dep. Rep. 410 113, 636 Caton V. Summerlee & Mossend Iron Co. (1902), 39 Scotch L. R. 762 476 Catterson v. County of Los An- geles, 2 Cal. Ind. Aec. Com. 751 .. . .■ ....1152 Catto V. G. Cudemo & Co., 1 Conn. Comp. Dec. 374.... 968, 1143 Cavagnero v. American Mills Co., 1 Conn. Comp. Dec. 163 526 Cavero v. Hipolito Screen Co., 1 Cal. Ind. Ace. Com. (Part II), 193 529 Cavett, In re, 1 Bull. Ohio Ind. Com. 150 792 Cawder and Garnant Collieries v. Jones (1900), 3 B. W. C. C. 59 1129 Cegrelski v. The Lenon Co., 1 Bull. 111. Ind. Bd. 35 1185 Central Kentucky Traction Co. v. Miller, 153 S. W. 750; 147 Ky. 110; 40 L. R. A. (N. S.) 1184. 634, 695 Central of Georgia Ry. Co. v. Mulling, 66 S. E. 1028; 7 Ga. App. 381 696 Central Railroad Co. ot^^^ffj^i^y MjcrJtofi®^^ PAGE sey V. Kellett, 86 N. J. Law 84 ; 90 Atl. 1005 ; 5 N. C. C. A. 529. 742 Ceraza v. Lehigh Valley R. Co. (1916), 7 N. Y. St. Dep. Rep. 423 391 Cernich, Re; Op. Sol. Dep. L., p. 539 701 Cessarini v. Hazel (1914), Al- berta Supreme Court, 7 B. W. C. C. 1059 1047 Chaboya v. Becker, 2 Cal. Ind. Ace. Com. 690; 12 N. C. C. A. 662 473 Challis V. London & Southwest- ern Railway (1905), 2 K. B. 154 463 Challis V. London & South West- ern Ry. Co. (1905), 7 W. C. C. 23 595 Chambers, Re: Op. Sol. Dep. L., pp. 226, 228 473, 526 Chamlee v. Planters Hotel Co., 134 S. W. 123; 155 Mo. App. 144 695 Chandler v. Great Western Rail- way Co. (1912), 5 B. W. C. C. 254 435 Chandler v. Jesse L. Lasky Feature Play Co., 2 Cal. Ind. Ace. Com. 510 233 Chandler v. Smith & Son (1899), 1 W. C. C. 19 821 Chaney, In re, Ohio Ind. Com. No. 118,908, Oct. 29, 1915; 11 N. C. C. A. 242 589, 596 Chapman v. Pearn (1916), 9 B. W. C. C. 224 ; 12 N. C. C. A. 368. 676 Chapman v. Sage & Co. (1915), 8 B. W. C. C. 559 813 Chappelle v. Pour Hundred and Twelve Broadway Co., 218 N. Y. 632; 112 N. E. 569; rev'g 171 App. Div. 958; 155 Supp. 858 225 Charing Cross, Euston and Hampstead Ry. Co. v. Boots (1909), 101 L. T. 53; 2 B. W. 1127 Iviii TABLE OF CASES PAGE Charles v. Walker (1909), 25 T. L. E. 609; 2 B. W. C. C. 5. . . .1015 Chase, In re, 1 Bull. Ohio Ind. Com. 53 ' 655 Chase v. Fairbanks, Morse & Co., 4 N. Y. St. Dep. Rep. 369. .226, 776, 779 Chatel V. Southwestern Surety Ins. Co., 1 Cal. Ind. Aec. Com. (Part I), 176 799 Cheek v. Hamsworth Bros. (1901), 4 W. C. C. 3 437 Cheevers, In re, 219 Mass. 244; 106 N. E. 861 165, 198 Cheevers v. Fidelity & Deposit Co., 1 Mass. Ind. Ace. Bd. 365. 165 Chegloff V. Borchard & Petit Bros., 3 Cal. Ind. Ace. Com. 68. 548 Chenoweth v. Bones, 2 Cal. Ind. Ace. Com. 96 1167 Chenoweth v. Mitchell, 2 Cal. Ind. Ace. Com. 96 378, 574 Chepa V. Portola-Louvre Cafe (1916), 3 Cal. Ind. Ace. Com. 306 546 Chertkoff v. Sehaeffer & Son, 5 N. Y. St. Dep. Rep. 423 131 CheskI V. The Connecticut Mills Co., 1 Conn. Comp. Dec. 213.. 908 Chesler v. Ocean Accident and Guarantee Corp. (1914), 3 Mass. Ind. Aec. Bd. 614; 12 N. C. C. A. 187 350 Cheverton v. Oceanic Steam Navi- gation Co. (1913), 6 B. W. C. C. 574 748 Chicago & A. R. Co. v. Industrial Board of Illinois (1916), 274 111. 336; 113 N. E. 629 390, 1017, 1035, 1082 Chicago Dry Kiln Co. v. Indus- trial Board, 000 111. 000; 114 N. B. 1009 263, 590 Chicago Railways Co. v. Indus- trial Board (1916), 000 111. 000; 114 N. E. 534 65, 175, 627 Chicago, R. I. & 6. R. Co. v. Groner, 51 Tex. Civ. App. 65, 111 S. W. 667 343 PAGE Chicago, R. I. & P. By. Co. v. Bennett, 128 Pac. 705 ; 36 Okla. 358 134 Chicago Savings Bank & Trust Co. V. Chicago Railways Co., 1 Bull. 111. Ind. Bd. 104; aff'd 000 111. 000; 114 N. E. 534.255, 281 Chielinsky v. Hoopes & Townsend Co., 40 Atl. 1127; 1 Marv. (Del. Super.) 273 696 Chiesa v. United States Crushed Stone Co., 1 Bull. 111. Ind. Bd. 82 ; 11 N. C. C. A. 504 403, 658 Chilton V. Blair & Co. (1914), 7 B. W. C. C. 607 625 Ching Shee v. Madera Sugar Pine Co., 2 Cal. Ind. Aec. Com. 939 794, 995 Chiocearillo v. Marrone, 4 N. Y. St. Dep. Rep. 352 253 Chisholm v. Walker & Co. (1908), 46 Scotch L. R. 24 ; 2 B. W. C. C. 261 152 Chitty V. Nelson (1908), 2 B. W. O. C. 496 641 Chludzinski v. Standard .Oil Co. (1916), 176 App. Div. 87; 162 Supp. 225 670, 1081 Chmelaski v. Landers, Frary & Clark, Conn. Comp. Com., First Dist, Chandler, Com'r, March 29, 1917 (unreported) 349, 736, 832 Christ V. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Aec. Com. (Part I), 26.... 818, 844, 856, 997, 1034 Christensen v. Bartelmann Co. (1916), 273 III. 346; 112 N. E. 686 1081 Christensen v. Ohio Building Safety Vault Co., 111. Ind. Bd., No. 1,931, Jan. 19, 1916; 11 N. C. C. A. 245 599 Christiansen v. McLiellan, 133 Pac. 434; 74 Wash. 318 166 Christiansen v. St Mary's Hospi- tal, Fourth Annual Report (19-15), Wis. Ind. Com. 20 833 Digitized by Microsoft® TABLE OF CASES lix Christlanson v. Barber, 1 Bull. 111. Ind. Bd. 71 207 Chrlstophson v. Turner Oonstrue- tion Co., 1 Conn. Comp. Dee. 591 722 Christy v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 35 712, 997, 1001, 1009, 1015 Chulata v. Ramsome Crummey Construction Co., 2 Cal. Ind. Ace. Com. 952 759 Chuter v. Ford and Sons (1915), 7 B. W. C. C. 160 1028 Cianettl v. Fremont Consolidated Mining Co., 2 Cal. Ind. Ace. Com. 638 838, 1120 Cianti v. Mount Whitney Power and Electric Co., 1 Oal. Ind. Ace. Com. (Part I), 60 1141 Ciealese v. Lehigh Valley R. Co., 69 Atl. 166; 75 N. J. Law 897. . 484 Cicero v. United States Casualty Co., 1 Mass. Ind. Ace. Bd. 215. 880 Cieek v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 135 '..387, 648 Cincinnati, N. O. & T. P. Ry. Co. V. Trozell, 137 S. W. 543; 143 Ky. 765 691 Clapp V. Carter (1914), 7 B. W. C. C. 28 933 Clark, Be, Op. Sol. Dep. L., p. 270 400 Clark, In re, 1 Bull. Ohio Ind. Com. 125 590 Clark V. Clark, 000 Mich. 000; 155 N. W. 597; 11 N. C. C. A. 240 595 Clark V. Gas Light & Coke Co. (1905), 7 W. C. C. 119 849 Clark V. George Taylor & Co. (Scotch Court of Session), 7 B. W. C. C. 8,56 842 Clark y. Kennedy, 3 Cal. Ind. Ace. Com. 125 389 Clark V. Los Angeles County, 1 Cal. Ind. Aee. Com. (Part II), 623; 12 N. C. C. A. ^''higt^ikPB^ MicfdM®^' ^^' °- PAGE Clark V. Morrison and Burns, 2 Cal. Ind. Ace. Com. 110 163 Clark V. Northwestern Pacific Railroad Co., 1 Cal. Ind. Ace. Com. (Part II), 191 660 Clark V. Tall Timber Lumber Co. (1916), 000 La. 000; 73 So. 239 155 Clark Distilling Co. v. Western Maryland Railway Co 229 Clarke, Re : Op. Sol. Dep. C. & L., p. 150 319 Clarke v. Bigelow-Hartford Car- pet Co., 1 Conn. Comp. Dec. 166 .. . ., 1155 Clarke v. Louisville & N. R. Co., Ill S. W. 344; 33 Ky. Rep. 797 124 Clarke, Nicholis & Coombs v. Knox (1913), 6 B. W. C. C. 695 1112 Clary v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 186 ..886, 841 Classen v. Pollard Steamship Co., 2 Cal. Ind. Ace. Com. 598. 104 Clatworthy v. R. & H. Green (1902), 86 L. T. 702; 4 W. C. C. 152 801 Claudio V. California Street Cable Ry. Co., 3 Cal. Ind. Ace. Com. 7 749, 758, 1016 Clay V. Goetz (1916), 3 Oal. Ind. Ace. Com. 202 405 Clayton V. Hardwick Colliery Co. (1914), 7 B. W. 0. C. 643; 11 N. C. C. A. 236 588 Clayton and Shuttieworth v. Dobbs (1908), 2 B. W. C. C. 488 843 Cledou T. Hof Brau Cafe (1916), 3 Cal. Ind. Ace. Com. 233. .425, 1038 Cleland v. Smith Brothers, Third Annual Report (1914), Wis. Ind. Com. 85 486 Clem V. Chalmers Motor Co., 178 Mich. 340; 144 N. W. 848; 4 N. C. C. A. 876; L. R. A. 535, 693 k TABLE OF CASES PAGE Clementi v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 330 851 Clements, Re: Op. Sol. Dep. C. & L., p. 190 370 Clements v. Columbus Saw Mill Co., 1 Bull. Ohio Ind. Com. 161 179, 200 Clements v. Travelers Ins. Co. 1 Mass. Ind. Ace. Bd., 273.. 336, 350 Cleveland v. Hastings, 2 Cal. Ind. Ace. Com. 18.... 207, 216, 541, 742 Clifford V. Joy (1909), 43 Irish L. T. 193 ; 2 B. W. C. C. 82. . . . 681 Cline ■ V. Studebaker Corp., 189 Mich. 514; 155 N. W. 519.. 369, 581, 586, 860 Clooney v. Crescent Glass Spe- cialty Co. (Mercer Common Pleas, 1913), 37 N. J. Law J. 82 876 Clover Clayton & Co. v. Hughes (1910), A. C. 242; 3 B. W. C. C. 275 ; aff'g 2 K. B. 798 ; 2 B. W. C. C. 15 338, 379 Clyde Steamship Co. v. Walker, 000 U. S. OOO; 000 Sup. Ct. 000; L. Ed., May 21, 1917.. 226, 299 Coady v. Igo (1916), 000 Conn. 000; 98 Atl. 328; aff'g 1 Conn. Comp. Dec. 576 178, 984, 1017 Coakley v. Coakley, 102 N. E. 930; 216 Mass. 71; 4 N. C. C. A. 508 747 Coates V. City of Elsinore (1916), 3 Cal. Ind. Ace. Com. 269 326, 449 Cobb V. Library Bureau (1916), 176 App. Div. 91; 162 Supp. 291 868 Cochran v. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 93 549 Cochran v. Fenton, 1 Conn. Comp. Dec. 690 369, 638 Cochran v. Whiting Wrecking Co. and United States Fidelity and Guaranty Co., 1 Cal. Ind. Ace. Com. (Part II), 186 880 PAGE Codling V. John Mowlem & Co. (1914), 7 B. W. C. C. 786; aff'g 6 B. W. C. C. 767 292 Cody V. Beach, 1 Conn. Comp. Dec. 447 840, 1044 Coe V. Fife Coal Co. (1909), 46 Scotch L. R. 825; 2 B. W. C. C. 8 379 Coelho V. Rideout Co., 2 Cal. Ind. Ace. Com. 771; 12 N. C. C. A. 81 584, 540 Coffey V. Bordens Condensed Milk Co., 1 Conn. Comp. Dec. 167 196, 368, 750 Cohen, In re (1916), 176 App. Div. 35 ; 162 Supp. 424. . . .924, 927, 989, 1024 Cohen v. Naughton, 1 Bull. 111. Ind. Bd. 211 1081 Cohen v. Union News Co., 1 Conn. Comp. Dec. 62 106, 522 Cokolon V. Ship " Kentra " (1912), 5 B. W. C. C. 658..... 511 Cole V. Callahan & Sperry, 4 N. Y. St. Dep. Rep. 348; 12 N. C. C. A. 310 376, 645 Cole V. Dichman, 2 Cal. Ind. Ace. Com. 702 723 Cole V. Evans Sons, Lescher & Webb (1911), 4 B. W. C. C. 138 649 Coleman v. Bartholomew (1916), 175 App. Div. 122; 161 Supp. 560 180, 212 Coleman v. Guilfoy Cornice Works, 1 Cal. Ind. Ace. C«m. (Part II), 31 704, 901 Coller V. Donohue, 1 Conn. Comp. Dec. 654 335 Collins V. American Mutual Lia- bility Ins. Co., 2 Mass. Ind. Ace. Bd. 841 1047 Collins V. Bodin, 2 Cal. Ind. Ace. Com. 156; 12 N. C. C. A. 475. . . 540 Collins V. Brooklyn Union Gas Co., 4 N. Y. St. Dep. Rep. 449. . 217 Collins V. Brooklyn Union Gas Co., 171 App. Div. 381; 156 Supp. 957 640, 1030, 1095 Digitized by Microsoft® TABLE OP CASES ixi PAGE Collins V. Oakdale Irrigatioa Dist. (1916), 3 Cal. Ind. Ace. Com. 344 688 Collins V. Terminal Transfer Co. (1916), 91 Wash. 468; 157 Pac. 1092 185, 313 Collins V. York Bradford Co., 2 Cal. Ind. Ace. Com. 248 913 Colot V. Union Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 512 850 Colson V. City of Burbank, 2 Cal. Ind. Ace. Com. 164 600 Coltmann v. Morrison & Mason (1914), 7 B. W. C. C. 194 937 Comaskey v. Coleman, 3 Cal. Ind. Ace. Com. 95 207 Comerford, In re (1916), 224 Mass. 571 ; 113 N. E. 460 273 Commonwealth v. Carmalt, 2 Binn. (Penn.) 235 212 Congreme v. Alberta Coal Mining Co. (1912), Alberta Supreme Court, B. W. C. C. 1020 142 Connell v. New York Central & H. R. R. Co., 144 App. Div. 664; 129 Supp. 666 528, 529 Conner v. Acme Cement and Plaste* Co., 1 Cal. Ind. Ace. Com. (Part II), 143.. 705, 734, 735, 1173 Conners v. Public Service Elec- tric Co. (N. J. Supreme Ct, 1916), 000 N. J. Law 000; 97 Atl. 792 700, 748, 801, 902, 927, 1022, 1092 Conners v. Sugar Pine Ry. Co., 2 Cal. Ind. Ace. Com. 874 547 Connolly v. Industrial Ace. Com. (1916), 000 Cal. 000; 160 Pac. 239 149, 1015, 1043 Connolly v. Southern Pacific Co., 2 Cal. Ind. Ace. Com. 930; 12 N. C. C. A. 393 522 Connor, Be: Op. Sol. Dep. L., p. 330 471 Connors v. Panama-Pacific Inter- national Exposition, 2 Oal. Ind. Ace. Com. 279 ,s- -i- • Ui^i^^ PAGE Connors v. Semet-Solvay -Co., 94 Misc. 405; 159 Supp. 431... 75, 301, 309, 1180, 1195 Coni?olidated Arizona Smelting Co. V. Ujack, 15 Ariz. 382; 189 Pac. 465 ; 5 N. C. C. A. 742 293 Consolidated Kansas City Smelt- ing and Refining Co. v. Dean (1916), 000 Tex. Civ. App. 000; 189 S. W. 747 803, 312 Consumers' Lignite Co. v. Grant, 000 Tex. 000; 181 S. W. 202; 11 N. C. C. A. 881 68 Conway v. Belfast & Northern R. R. Co., 11 Ir. L. R. 345 20 Conway and another v. Pumpher- ston Oil Co. (1911), 48 Scotch L. R. 632 ; 4 B. W. C. C. 392. . . 624 Conyea v. Canadian Northern Railway Co. (1913), (Sas- katchewan Supreme Court), 7 B. W. C. C. 1029 ; afE'd 7 B. W. C. C. 1041 ; 12 N. C. C. A. 897. . 512 Cook V Dodge, 6 La. Ann. 276. .. . 206 Cook V. Employers' Liability Assur. Corp., 1 Mass. Ind. Aec. Bd. 50 296 Cook V. Employers' Liability As- surance Corp., 1 Cal. Ind. Ace. Com. (Part II), 420 335,574 Cook ,v. Home Telephone and Telegraph Co., 2 Cal. Ind. Aec. Com. 150; 12 N. C. C. A. 379.. 485 Cook V. Manvers Main Colliers (1914), 7 B. W. C. C. 696 621 Cook V. New York Central and Hudson River R. Co. (1916), 8 N. Y. St. Dep. Rep. 469 389 Cook V. S. S. "Montreal" (1918), 6 B. W. C. C. 220 497 Cooley V. Board of Wardens, 12 How. 299 228 Coons V. De Michiel & Bros., 1 Conn. Comp. Dec. 446.... 968, 1144 Cooper, In re, 1 Bull. Ohio Ind. Com. 180 240 Cooper V. Massachusetts Em- ployes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 573 417, 664 Digitized by Microsoft® Ixii TABLE OP CASES PAGE Cooper T. New Haven Rigging Co., 1 Conn. Comp. Dec. 157. . . 592 Cooper V. Nortlieastern Railway (1915), 85 L. J. K. B. 187; 11 N. C. C. A. 254 698 Cooper V. Wales (1915), 8 B. W. C. C. 595 1001 Corbett v. Matz, 72 Conn. 610. . . 973 Corbett v. H. S. Pitt & Co. (1915), 7 B. W. C. C. 466; 10 N. Cj C. a. 342 626 Corcoran v. Farrell Foundry & Machine Co., 1 Conn. Comp. Dee. 42 448, 586, 804 Corico V. Smith (1916), 97 Misc. 447; 161 Supp. 293 300 Cornell v. Jacobsen-Bade Co., Lundstrom Co., 1 Cal. Ind. Aec. Com. (Part II), 217 1154 Coronado Beach Co. v. Pillsbury (1916), 172 Cal. 682; 158 Pac. 212; 12 N. C. C. A. 789; rev'g 2 Cal. Ind. Ace. Com. 384 650 Corral v. William H. Hamlyn & Son, 000 R. I. 000; 94 Atl. 877, 1035, 1044, 1096 Corrigan v. Hunter, 122 S. W. 131; 139 Ky. 315; rehearing denied, 130 S. W. 798; 000 Ky. 000 163 Cory Brothers & Co. v. Hughes (1911), 2 K. B. 738; 4 B. W. C. C. 291 1120 Coslett V. Shoemaker (Morris Common Pleas, 1915), 38 N. J. Law J. 116 416, 873 Costa V. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 457 579 Costain V. Carson Chemical Co. (1916), 3 Cal. Ind. Ace. Com. 334 417 Costanzo v. Hanover Brick Co. (Morris Common Pleas, 1914), 37 N. J. Law J. 52; rehearing denied 37 N. J. Law J. 172 ; 11 N. C. C. A. 711 776 Costello, In re, 1 Bull. Ohio Ind. PAGE Costello, A., Re, Claim No. 4268, Ohio St. Lia. Bd. Awd, May 19, 1913 811 Costello V. Kelsall Brothers and Beeching (1913), House of Lords, 6 B. W. C. C. 480 ; aff'g 5 B. W. C. C. 667 251 Costello V. Taylor, 217 N. Y. 179 ; 111 N. B. 755; 11 N. C. C. A. 320; aff'g 169 App. Div. 905; 153 Supp. 1111 253, 655 Costello V. United , States Cas- ualty Co., 1 Mass. Ind. Ace. Bd. 265 427, 668 Cottam V. American Mutual Lia- bility Ins. Co., 2 Mass. Ind. Aec. Bd. 428 416 Cotter V. Johnson, 45 Ir. L. T. 259; 5 B. W. C. C. 568 189 Cottun V. I. Newman & Sons, 1 Conn. Comp. Dee. 289 1039 Coulson V. South Moor Colliery Co. (1915), 8 B. W. C. C. 253. . 948 Countryman v. Newman (1916), 7 N. T. St. Dep. Rep. 421 499 Oourboyer, F. J., Re: Op. Sol. Dep. C. & L., p. 582 436 Courter v. Simpson Construction Co., 264 111. 488; 106 N. E. 350; 6 N. C. C. A. 548 1080 Covell V. Southern Pacific Co. (1916), 3 Cal. Ind. Ace. Com. 241 294 Cowden, In re (1916), 000 Mass. 000 ; 113 N. E. 1036 788 Cowen V. Cowen's New Shirt Laundry, Inc. (1916), 8 N. Y. St. Dep. Rep. 481 598 Cowles V. Alexander & Kellogg, 2 Cal. Ind. Ace. Com. 589 194 Cowles V. Wilkenda Land Co., 1 Conn. Comp. Dee. 361 857 Cox, In re (1916), 000 Mass. 000; 114 N. E. 281.... 175, 209, 603, 1167 Cox V. Braitheaite & Kirk (1912), 5 B. W. C. C. 648 1115 Com. 54 823 Coyle v. Massachusetts Employes Digitized by Microsoft® TABLE OF CASES Ixii 11 PAGE Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 704; 11 N. C. C. A. 380, 198, 427 Cozoff V. Welch (1914) (British Columbia Court of Appeals), 7 B. W. C. C. 1064 1070 Craig, In re, 1 Bull. Ohio Ind. Com. 38 653 Craig V. Axt, 1 Cal. Ind. Ace. Com. (Part II) , 72 899, 901 Craig V. Hartson, 2 Cal. Ind. Ace. Com. 264 213 Craig V. S. S. "Calabria" (1914), Scotch Court of Ses- sion, 7 B. W. C. C. 932 497 Craig and Hancock v. Royal In- surance Co. (1914), 8 B. W. C. C. 339 1166, 1187 Cramer v. Lanterman (Morris Common Pleas, 1914), 37 N. J. Law J. 169 1035 Cramer v. Littell (Essex Common Pleas, 1915), 38 N. J. Law J. 82 357, 612 Cranfield v. Ansell (1910), 4 B. W. C. C. 57 1121 Crapo V. Kelly, 16 Wall. 610. ... 92 Crase v. North Star Mines Co., 1 Cal. Ind. Aec. Com. (Part I), 68 638 Craske v. Wigan (1909), 2 K. B. 635 464 Craske v. Wigan (1909), 100 L. T. 8 ; 2 B. W. C. C. 35 610, 661 Craycroft v. Craycroft-Herrold Brick Co., 2 Cal. Ind. Ace. Com. 633 595 Craycroft v. Craycroft-Herrold Brick Co., 2 Cal. Ind. Ace. Com. 654 237 Crehan v. Los Angeles, 1 Cal. Ind. Aec. Com. (Part II), 252. . 233 Creighton v. J. & W. Lowry (1915), 8 B. W. C. C. 250. .818, 1048 Crellin, Re: Op. Sol. Dep. C. & L., p. 195 321 Cripp, In re (Cripp v. Aetna Life Ins. Co.), 104 N. E. 565; 216 Mass. 586 297, 798 Cripps V. Aetna Life Ins. Co., 1 Mass. Ind. Ace. Bd. 256.. 1146, 1157 Criseuolo v. Connecticut Co., 1 Conn. Comp. Dec. 342 658, 969 Cristoforo v. Employers Lia- bility Assur. Corp., 2 Mass. Ind. Ace. Bd. 3G4 431, 672 Crittenden v. Dr. B. B. Bobbins, doing business as the Bristol Trucking Co., 1 Conn. Comp. Dec. 523 151 Croad v. Parafflne Paint Co., and Frankfort General Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 179 103 Crockett v. International Rail- way Co. (1916), 176 App. Div. 45; 162 Supp. 357 765 Crockett v. State Insurance Fund, 170 App. Div. 122; 155 Supp. 692 1096 Crofut V. Bredow & Bohm, 1 Conn. Comp. Dec. 524 942 Cromowy v. Sulzberger & Sons Co., 1 Bull. 111. Ind. Bd. 37; 12 N. C. C. A. 485 ,. . .686, 697 Cronin v. Silver (1911), 4 B. W. a C. 221 681 Crooks V. Tazewell Coal Co., 263 111. 343; 105 N. E. 132; 5 N. C. 0. A. 410 65 Crosby v. Sylvester Strong, 2 Cal. Ind. Ace. Com. 421 191 Cross V. Boston & M. R. R. Co., 223 Mass. 144; 111 N. E. 676.. 297 Crossfield & Sons v. Tanian, 82 L. T. 813; 2 W. C. C. 141 1103 Crouch V. Massachusetts Em- ■ ployes Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 401; 12 N. C. C. A. 559 527 Crouch V. Ritter, 2 Cal. Ind. Ace. Com. 693 369 Cremins v. Guest, Keen & Net- tlefoia (19(«), 1 K. ^idf^eS by Mi9&Wom ^^ ^°^^'^® Railway B. W. C. C. 160 480 Corp., 1 Oal. Ind. Aec. Com. Ixiv TABLE OF CASES FAOB (Part II), 449; 12 N. C. C. A. 376 485 Crowley v. City of Lowell, 223 Mass. 288; 111 N. E. 786 570 Crowley v. Davis-Schonwasser & Co. (1916), 3 Cal. Ind. Ace. Com. 242 546, 667, 1169 Crowley v. Lange Canning Co., Third Annual Report (1914), Wis. Ind. Com., p. 45 686 Crucible Steel Forge Co. v. Moir (U. S. Circuit Ct. of Appl., 6th Circuit), 219 Fed. 151; 8 N. C. C. A. 1006 28 Cruz V. California Portland Ce- ment Co., 2 Cal. Ind. Ace. Com. 159 546 Cue V. Port of London Authority (1914), 7 B. W. C. C. 447 911 Culshaw V. Crow's Nest Pass Coal Co. (1914) (British Col- umbia Court of Appeal), 7 R. W. C. C. 1050 676 Culurides v. Ott (1916), OOO W. Va. 000; 93 S. E. 270 957 Cummings, In re, 32 Fed. 75 206 Cummings v. Johnson Construc- tion Co. (1916), 9 N. Y. St. Dep. Rep. 369 484 Cunka v. American Mutual Lia- bility Ins. Co., 2 Mass. Ind. Ace. Bd. 491 887, li25 Cunningham v. Buffalo Copper & Brass Rolling Mills, 171 App. Div. 955; 155 Supp. 797.. 1005, 1096 Cunningham v. International Ry. Co., 51 Texas 508 134 Cunningham v. Locke Construc- tion Co., 1 Cal. Ind. Ace. Com. (Part I), 72 1172,1174 Cunningham v. M'Naughton & Sinclair (1910), 47 Scotch L. R. 781 ; 3 B. W. C. C. 577 1124 Cunningham v. Northwestern Im- provement Co., 44 Mont. 180; 119 Pac. 554; 1 N. C. O. A. 720 53 Cunningham v. Sheltering Arms, 61 Misc. 501; 115 ^pp,,.576, PAGE afE'd 135 App. Div. 178; 119 Supp. 1033 202 Curless v. Peninsula Warehouse, 1 Cal. Ind. Ace. Com. (Part II), 354 561 Curran v. Newark G«ar Cutting Machine Co. (Essex Common Pleas, 1913), 37 N. J. Law J. 21 127, 1042 (jjurrie v. Royal Indenmity Co., 2 Mass. Ind. Ace. Bd. 174; 11 N. C. C. A. 507 428 Curry v. Bechtel (1916), 3 Cal. Ind. Ace. Com. 235 731 Curry v. Doxford & Sons (1915), 8 B. W. C. C. 19 817 Curtis V. Plumptre (1913), 6 B. W. C. C. 87 148 Curtis V. Slater Construction Co. (1916), 000 Mich. 000; 100 N. W. 659 1002, 1010 Curtis V. Talbot and Kidder- minster Infirmary Committee (1911), 5 B. W. C. C. 41 696 Cushing V. Healy Tibbitts Con- struction Co., 1 Cal. Ind. Ace. Com. (Part II), 524 1153 Cushner v. Rowe & Co., 1 Conn. Comp. Dec. 574 307, 969 Cushner v. Rowe, Conn. Comp. Com., Third Dist, Beers, J., Dec. 20, 1916 (unreported), 1106, 1107, 1155 Cutaria v. Swieberg, 1 Bull. 111. Ind. Bd. 153 '942 Cutsforth V. Johnson (North- eastern Ry. Co., Third Par- ties, 1913), 6 B. W. C. C. 28 1073, 1186 Cypher v. United Development Co., 1 Cal. Ind. Ace. Com. (Part II), 425.. 156, 732, 893, 1065 Cyril V. Hammond Lumber Co., 2 Cal. Ind. Aec. Com. 799 826 D. Dabila v. Brandon & Lawson and Wtized'by Microimk "^''^ ^"^- ^- ^ ^'- TABLE OF CASES Ixv PAGE Ind. Ace. Com. (Part II), 239 348, 576 Daff V. Midland Colliery Owners Mutual Indemnity Co. (1913), (House of Lords), 6 B. W. O. C. 799 " 1166 Dahl V. Jensen, 2 Cal. Ind. Ace. Com. 741 733 Daigle v. Steele & Johnson Mfg. Co., 1 Conn. Comp. Dec. 196. . .1144 Dally News v. McNamara & Co. (1913), 7 B. W. C. C. 11 1187 Dale v; Hual Construction Co. (1916), 9 N. Y. St. Dep. Rep. 282 168, 672 Dale, Matter of, v. Saunders Bros., 171 App. Div. 528; 157 Supp. 1062 ; aff'd 218 N. Y. 59 ; 112 N. E. 571. . .-r 167, 174, 257, 662, 1094 Dalgleish v. Edinburgh Roperie 'and Sailcloth Co. (1913), (Scotch Court of Session), 6 B. W. C. C. 867 905 Dalgiesh v. Gartside & Co. (1914), 7 B. W. C. C. 535 936 Dallas Mfg. Co. v. Townes, 41 So. 988; 148 Ala. 146 158 Dalton V. Connecticut Co., 1 Conn. Comp. Dee. 142 532, 535 Dalton V. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 231; 12 N. C. C. A. 327, 369, 666 Daly V. Mahoney Bros., 1 Cal. Ind. Ace. Com. (Part II), 625, 1055, 1056, 1108 Daly V. Mahoney Bros., 3 Cal. Ind. Ace. Com. 64 1133 Damerow v. Paine Lumber Co., Fourth Annual Report (1915), Wis. Ind. Com. 34 378 Damrau v. Kuetemeyer, Fourth Annual Report (1915), Wis. Ind. Com. 19 778 Dana v. DeTurk, 2 Cal. Ind. Ace. Com. 670 255 Daniels v. Charles Boldt Co., 000 W. Va. 000; 88 S. E..613 285 Digitized by Microsoft® PAGE Darbon v. Gigg (1904), 7 W. C. C. 32 549 Darlington v. Roscoe & Sons (1906), 7 W. C. C. 4 803 Darlington v. Roscoe & Sons (1910), 96 L. T. 179; 9 W. C. C. 1 803 Darnley v. Canadian Pacific Ry. Co., 14 B. C. R. 15 ; 2 B. W. C. 0. 505 550 Darroll v. Glasgow Iron and Steel Co. (1912) (Scotch Court of Session), 6 B. W. a 354. ... 419 David V. Town Taxi Cab Co., Inc. (1916), 7 N. Y. St Dep. Rep. 464 490 David V. Windsor Steam Coal Co. (1911), 4 B. W. C. C. 177; 11 N. C. C. A. 34 1119 Davidheiser v. Hay Foundry & Iron Works (Essex Common Pleas, 1914), 37 N. J. Law J. 119 113 Davidheiser v. Hay Foundry & Iron Works, 87 N. J. Law 688 ; 94 Atl. 309 237, 902 Davies v. Crown Perfumery Co. (1913), 6 B. W. C. C. 649 679 Davies v. Gillespie (1911), 5 B. W. C. C. 64 445 Davies v. Rhymney Iron Co., 2 W. C. C. 22 487 Davis V. Farmers' Transporta- tion Co., 3 Cal. Ind. Ace. Com. 93 516 Davis V. McDonald & Kahn, 3 Cal. Ind. Ace. Com. 84. ...354, 576 Davis V. Mais, Ind. Ind. Bd., No. 6, Nov. 29, 1915; 11 N. C. C. A. 370 197 Day V. Ellington, Third Annual Report (1914), Wis. Ind. Com. 74 151 Day V. Lincoln Sightseeing Co., 1 Cal. Ind. Ace. Com. (Part II), 269 726 Day V. Markham (1904), 6 W. C. C. 115 787 Days V. Trimmer & Sons (1916), Ixvi TABLE OF CASES PAGE 176 App. Div. 124; 162 Supp. 608 ; aff'g 9 N. T. St. Dep. Rep. 285 376, 645, 882 Dazy V. Apponaug Co., 36 R. I. 81; 89 Atl. 160; 4 N. C. C. A. 594 778 Dean v. California Fruit Canners Ass'n, 3 Cal. Ind. Aec. Com. 80 389, 569 Dean v. London & North West- ern Railway Co. (1910), 3 B. W. C. C. 351 399 Dean v. Rubian Art Pottery Co. (1914), 7 B. W. C. C. 209.405, 1036 Dearborn v. Peugeot Auto Import Co., 170 App. Div. 93 ; 155 Supp. 769 184, 300, 994 Deavers, In re, 1 Bull. Ohio Ind. Com. 62 530 De Biasi v. Normandy Water Co. (Fed. Dist. Ct., N. J., Dec. 1915), 228 Fed. 234 67, 796 De Constantin v. Public Service Commission, 75 W. Va. 32; 83 S. E. 88 , 468, 1097 Decormier v. Western Indemnity Co., 2 Cal. Ind. Ace. Com. 756; 12 N. C. C. A. 326 425 Decounter v. United Greenwater Copper Co., 2 Cal. Ind. Ace. Com. 691 1153 Deem v. Kalamazoo Paper Co., 189 Mich. 655 ; 155 N. W. 584, 359, 614 DeFazio's Estate v. Groldschmidt Detinning Co. (N. J. Supreme Ct, 1913), 37 N. J. Law J. 181; 4 N. C. C. A. 716 1041 de Francesco v. New Haven Trap Rock Co. (Dec. 26, 1916) 981 De Francesco v. Piney Mining Co., 000 W. Va. 000; 86 S. E. 777; 10 N. C. C. A. 1015 69 De Gazio v. Kerbaugh, 6 N. Y. St. Dep. Rep. 373; 12 N. C. O. A. 245 519 Deibeikus v. Link-Belt Co., 251 111. 454; 104 N. E. 211; 5 N. C. C. A. 401 25, 65 De La Gardelle v. Hampton Co., 167 App. Div. 617; 153 Supp. 162; 9 N. C. C. A. 703^ 187 Delgado v. California Portland Cement Co., 1 Cal. Ind. Ace. Com. (Part II), 436 760, 781 Delight V. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 238 732 DeLong v. Krebs, 1 Cal. Ind. Ace. Com. (Part II), 592.. 185, 692 Del Priore v. Booth Bros. & Hurricane Isle Granite Co., 1 Conn. Comp. Dec. 300 160, 472, 1017 DeMann v. Hydraulic Engineer- ing Co. (1916), 000 Mich. 000; 159 N. W. 380 474, 752, 1021 Demott V. Stone &' Webster Con- struction Co. and Royal In- demnity Co., 1 Cal. Ind. Ace. Com. (Part II), 187 708 Dempsey v. Caldwell & Co. (1913), 7 B. W. C. C. 823 1052 Demski v. The Winchester Re- peating Arms Co., 1 Conn. Comp. Dec. 191 579 Denehy v. Panama-Pacific Inter- national Exposition Co., 1 Cal. Ind. Ace. Com. (Part II), 109, 704, 818 Denker v. Pacific Stevedoring and Ballasting Co., 1 Cal. Ind. Ace. Com. (Part II), 14 1035 Dennehy v. Flinn & Treacy, 1 Cal. Ind. Ace. Com. (Part II), 302 771 Denny v. Wright & Cobb Lighterage Co., 36 N. J. Law 3. 121 no De Palma v. Home Construction Co., 1 Conn. Comp. Dec. 358. . . 137 De Pasquale v. Employers' Lia- bility Assur. Corp., 2 Mass. Ind. Ace. Bd. 497 774 DePasquale v. Mason Mfg. Co. (1916), 000 R. I. 000; 97 Atl. 816 285 Derbeck v. Pflster & Vogel Digitized by Microsoft® TABLE OF CASES Ixvii FAGK Leather Co., Wis. Indus. Cknu., May 18, 1912 874 Derkinderen v. Bundle Mfg. Co., Fourth Annual Report (1915), Wis. Ind. Com. 16 406 De Rosa v. Fred T. Ley & Co., 1 Conn. Comp. Dec. 75 831 Detroit Steel Products Co. v. Jendrus, Mich. Ind. Ace. Bd., June, 1913 429 Detwiler v. Kettering, 2 Gal. Ind. Ace. Com. 807 140 Devaney v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 233 774 Devanzo v. Jarvis, 1 Conn. Comp. Dec. 435; aff'd by Su- perior Ct. 440 588 Devine, Re: Op. Sol. Dep. L., p. 277 449 Devine v. Delano, 272 111. 166; 111 N. B. 742 26, 65, 161 Devine v. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 351; 11 N. C. C. A. 556 891, 1194 De Vito V. Atlantic Insulated Wire & Cable Co., 1 Conn. Comp. Dec. 40^^ 867 Devitt and Magee v. The Owners of the S. S. "Bainbrldge" (1909), 2 K. B. 802; 2 B. W. C. C. 383 1132 Devlin v. Chapel Coal Co. (1914), (Scotch Court of Session), 8 B. W. C. C. 357 845 Devlin v- Pelaw Main Colleries (1912), 5 B. W. C. C. 349 758 Devlin V. Smith, 1 Cal. Ind. ^ Ace. Com. (Part II), 418, 709, 730, 734, 998, 1175 Devney v. City of Boston, 223 Mass. 270; 111 N. E. 788 216 DeVoe, Matter of, v. N. Y. State Railways, 218 N. Y. 318; 113 N. E. 256; aff'g 169 App. Div. 472 ; 155 Supp. 12 470, 671 Dexter v. People's Cloak fl/iff'fe'aflP' by PAGE Co., 2 Cal. Ind. Ace. Com. 542 721 Dewhurst v. Mather, 1 B. W. 0. C. A. 328. 190 DeWitt V. Jacoby Brothers and Fidelity and Casualty Co. of N. Y., 1 Cal. Ind. Ace. Com. (Part II), 170 456 De Zeng Standard Co. v. Pressey, 85 N. J. Law 407; 92 Atl. 278; 4 N. C. C. A. 586 870 De Zeng Standard Co. v. Pressey, 86 N. J. Law 469; 92 Atl. 278; 11 N. C. C. A. 428 877 Dias V. American Mutual Lia- bility Ins. Co., 1 Mass. Ind. Ace. Bd. 430 423 Diaz, In re (Diaz v. Fred T. Ley & Co.), 104 N. B. 384; 217 Mass. 36; 5 N. C. C. A. 609... 1086 Dibilo V. American Mutual Lia- bility Ins. Co., 2 Mass. Ind. Ace. Bd. 485 719 Diciaiulo v. H. S. Kerbaugh, Inc., 1 N. Y. St. Dep. Rep. 424; 12 N. C. C. A. 73 484 Dickerson v. Bomstein, 137 S. W. 773; 144 Ky. 19 499 Dickson v. Scott (1914) (English Court of Appeal), 7 B. W. C. C. 1007 1186 Diehels v. Lasky's (1916), 3 Cal. Ind. Ace. Com. 351 687 Dietz V. Big Muddy Coal & Iron Co., 263 111. 480; 105 N. B. 289; 5 N. C. C. A. 419. .26, 65, 281 Dight V. S. S. "Craster Hall" (1913), 6 B. W. C. C. 674 949 Dikovich v. Am. Steel & Wire Co., 36 N. J. Law J. 304 733, 1160 Diminieo v. Fidelity and Casualty Co., 2 Mass. Ind. Ace. Bd. 328.. 1133 Dinnington Main Coal Co. v. Nruins (1912), 5 B. W. C. C. 367 884 Di Paolo V. Crimmins Contract- ing Co., 5 N. Y. . St. Dep. Rep. Micei2SQft. Morehouse, 2 Cal. Ind. Ace. Com. 311 414, 662 Keehan v. City of Milwaukes, Wis. Ind. Ace. Bd., Sept. 6, 1912 363 Keeling v. New Monekton Col- Kaplan V. Friedman Constrfibigi&ecf by Mi§lfasa^®0), 4 B. W. C. C. 49. 757 TABLE OF CASES XCV PAGE Keen v. St. Clement's Press (1914), 7 B. W. C. O. 542 524 Keen v. Scott Co., 2 Cal. Ind. Ace. Com. 524 455 Keen's Adm's v. Keystone Cres- cent Lumber Co., 118 S. W. 355 ; 000 Ky. 000 138 Keevans V. Mundy (1914) (Scotch Court of Session), 7 B. W. C. C. 883 815 Kehoe v. Consolidated Telegraph and Electrical Subway Co. (1916), 176 App. Div. 84; 162 Supp. 481 262 Kehoe v. Consolidated Telegraph and Electrical Subway Co. (1916), 9 N. Y. St. Dep. Rep. 384 646 Keigher v. General Electric Co., 173 App. Div. 207; 158 Supp. 939 717 Kelleher v. Swift & Co., 4 N. Y. St. Dep. Rep. 356 187 Kelley v. Hay lock (1916), 163 Wis. 326; 157 N. W. 1094; 11 N. C. C. A. 382 179 Kelley v. Manley, 2 Cal. Ind. Ace. Com. 355 721 Kelley v. Pacific Electric Railway Co., 1 Cal. Ind. Ace. Com. (Part II), 150 414, 713 Kelley v. The Seltzer-Bennett Co. (Essex Common Pleas, 1915), 38 N. J. Law J. 336 872 Kelley's Case, In re, 111 N. E. 395 ; 222 Mass. 538 792 Kelliher v. Great Western Power Co., 2 Cal. Ind. Aec. Com. 371.. 347 Kellogg V. Church Charity Foun- dation of L. I., 203 N. T. 191 ; 96 N. E. 406; 38 L. R. A. (N. S.) 481, n ; 3 N. C. C. A. 444. . . 167 Kelly, In re, 1 Bull Ohio Ind. Com. 141 957, 1042 Kelly V. Auehenlea Coal Co. (1911), 48 Scotch L. R. 768; 4 B. W. C.C. 417 399 Kelly V. Hartford Rubber Works Co., 1 Conn. Comp. -D^^^ed ^ Micr^§m§^ PAGE Kelly V. Kerry County Council (1908), 42 Irish L. T. 23; 1 B. ■ W. C. C. 194 661 Kelly V. Owners of " Foam Queen" (1910), 3 B. W. C. C. 113 468, 495 Kelly V. Scougall (1916), 3 Cal. Ind. Ace. Com. 226 173 Kelly V. Snare & Triest Construc- tion Co., 1 Cal. Ind. Ace. Com. (Part II), 471 1154 Kelly V. S. S. " Miss Evans " (1913) (Irish Court of Appeal), 6 B. W. C. C. 916 251 Kelly V. Tyra, 115 N. W. 636 ; 103 Minn. 176; aff'g 114 N. W. 750; 103 Minn. 176 ; 17 L. B. A. (N. S.) 334, n 695 Kelly V. York Street Flax Spin- ning Co. (1909), 43 Irish L. T. 81 ; 2 B. W. C. C. 493 906 Kemo V. Lewis (1914), 7 B. W. C. C. 422 132 Kempson v. Owners of Schooner "Moss Rose" (1910), 4 B. W. C. C. 101 1140 Kendall & Gent v. Pennington (1912), 5 B. W. C. C. 335 1151 Kendall & Tietjen v. Land Dry- dock Co. (Hudson Common Pleas, 1915), 38 N. J. Law J. 309 416 Kenefick v. Laurer Brewing Co., 4 N. Y. St. Dep. Rep. 350 630 Kennedy v. American Brass Co., 1 Conn. Comp. Dec. 406 790 Kennedy v. Chase, 52 Pac. 33 ; 119 Cal. 637 529 Kennedy v. Grand Trunk Pacific Ry. Co. (1913) (Saskatchewan Supreme Court), 7 B. W. C. C. 1046 512 Kennedy v. Guardian and Guar- anty Co., 1 Cal. Ind. Ace. Com. (Part II), 152 799, 991, 1154 Kennedy v. Kennedy Mfg. cSs En- Co. (1916), 7 N. Y. XCVl TABLE OF CASES PAGE St Dep. Rep. 383; aff'd 177 App. Dlv. 56; 163 Supp. 944. 115, 238, 823 Kennedy v. Loggie Brothers (1916), 7 N. T. St. Dep. Rep. 411 664 Kennelly v. Steams Salt & Lum- ber Co., 000 Mich. 000; 157 N. W. 878 642, 1089 Kennerson v. Thames Towboat" Co., 89 Conn. 367; 94 Atl. 372; 000 L. R. A. (1916), A, 436, n. 83, 105, 106, 230, 295, 307, 773, 963, 964, 1078 Kenney v. City of Boston, 222 Mass. 401 ; 111 N. B. 47. . .752, 1085 Kenny v. Union Railway Co., 166 App. Div. 497; 152 Supp. 117; 8 N. C. C. A. 986.... 131, 1051, 1096, 1178 Kentucky State Journal v. Work- men's Compensation Board, 161 Ky. 562 ; 170 S. W. 1166 ; L. R. A. (1916), B, 389; rehearing denied, 162 Ky. 387 ; 172 S. W. 674 66 Kerr v. William Baird & Co. (1911), 48 Scotch L. R. 646; 4 B. W. C. C. 397 628 Kerr or Lendrum v. Ayr Steam Shipping Co. (1914) (House of Lords), 7 B. W. C. C. 801; rev'g 6 B. W. C. C. 326 616 Kerr v. Ritchies (1913) (Scotch Court of Session), 6 B. W. C. C. 419 380 Kerr v. Stewart (1909), 43 Irish L. T. 119 ; 2 B. W. C. 0. 454. . 991 Kesler v. Mass. Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 168. 337 Ketron v. United Railroads of San Francisco, 1 Cal. Ind. Ace. Com. (Part II), 628; 12 N. C. 0. A. 668 466, 514 Keyes Davis Co. v. Allerdyce, Mich. Ind. Ace. Bd., April, 1913 (unreported) 84, 108 Keyser v Burdick & Co. (1910), 4 B. W. C. C. 87..., PAGE Keyser r. Gilbert & Bennett Mfg. Co., 1 Conn. Comp. Dec. 636. . . 558 Kid V. New York Motion Picture Co., 1 Cal. Ind. Ace. Com. (Part II), 475 916 Kiel, Village of, v. Industrial Commission (1916), 163 Wis. 44iy2 ; 158 N. W. 68 230 Kiernan, Matter of, v. Friestadt Underpinning Co., 171 App. Div. 539 ; 157 Supp. 900 474 Kiernan v. Friestedt Underpin- ning Co., 5 N. T. St. Dep. Rep. 390 252, 475 Kiernan v. Irrigation Dist., 2 Cal. Ind. Ace. Com. 301 387 Kiernan v. Schermerhorn Estate (1916), 8 N. Y. St. Dep. Rep. 483 660 Kierson v. Joseph L. Thompson and Sons (1913), 6 B. W. C. C. 58 1046 Kilberg v. Viteh, 171 App. Div. 89 ; 156 Supp. 971 ; aff 'g 4 N. Y. St. Dep. Rep. 434 183, 744, ' 806, 914 Kilbride v. Pratt & Whitney Co., 1 Conn. Comp. Dec. 688 894, 994 Kill V. Industrial Commission, 160 Wis. 549 ; 152 N. W. 148 ; L. R. A. (1916), A, 14 n 834 Kill V. Plankington Packing Co. (Third Annual Report, 1914), Wis. Ind. Com. 83 351, 587 Kllloy V. Evans, 1 Conn. Comp. Dec. 277 822 Kimball v. Cushman, 103 Mass. 194; (E. L.) 123 Kimbol V. Industrial Accident Commission (1916), 000 Cal. 000; 160 Pac. 150 640 King, In re, 1 Bull. Ohio Ind. Com. 37 756, 901 King, In re, 220 Mass. 290; 107 N. E. 959; 11 N. C. 0. A. 368. 1035, 1086 King V. Berlin Mills Co. (1916), ■DrgiUz&aWMicimo^<^- ^°= ^^ ^«- 289 225 TABLE OB" CASES XCVll King V. Morgan Millwork Co., First Annual Report State Ind. Com. of Md. (1914-1915), 20.. 419 King V. Phoenix Assurance Co. (1910), 3 B. W. C. C. 442 1165 King V. Viscoloid Co., 219 Mass. 420; 106 N. E. 988; 7 N. C. C. A. 254 296, 308 Kingliorn v. Guthrie (1918) (Scotch Court of Session), 6 B. W. C. C. 887 504, 640 Kingsley v. Donovan, 169 App. Div. 828; 155 Supp. 801; 12 N. C. C. A. 384; aff'g 3 N. Y. St. Dep. Rep. 367 613 Klniavsisy v. New Haven Car- riage Co., 1 Conn. Comp. Dec. 119 717 Kinney, Re: Op. Sol. Dep. L., p. 768 1055, 1109 Kirkpatrick v. Industrial Accident Commission (1916), 000 Cal. App. 000; 161 Pac. 274. . . .166, 1076 Kitchenham v. Owners .of S. S. "Johannesburg" (1911), 1 K. B. 523; 6 (1911), A. C. 416 464 Kitchenham v. Owners of S. S. "Johannesburg" (1910), 4 B. W. C. C. 91 ; aff'd by House of Lords, 4 B. W. C. C. 311 495 Klatt V. Milwaukee Electric Ry. & Light Co., Wis. Ind. Com., April 22, 1913 871 Klawinski v. Lake Shore & M. S. Ry. Co., 185 Mich. 643; 152 N. W. 213 406, 661 Klein v. A. J. Johnson & Sons Furniture Co., 1 Bull. 111. Ind. Bd. 85 867 Kleinklaus v. Wright and Cobb Lighterage Co. (1916), 7 N. T. St. Dep. Rep. 369 :.. 230 Klotz V. Newark Paving Co., 36 N. J. Law J. 271 784 Klotz V. Newark Paving Co., 86 N. J. Law 690; 92 Atl. 1086. 299, 1190 Knight V. Bucknill, 6 B. W. O. C. PAOE Knisley v. Pratt, 148 N. Y. 372; 32 L. R. A. 367 19 Knittle, In re, Ohio Ind. Com. 89,545, July 8, 1915; 12 N. O. C. A. 316 385 Knoll V. City of Salina (1916), 98 Kans. 428; 157 Pac. 1167. .943, 953, 954, 956 Knopp V. American Car and Foundry Co., 186 111. App. 605 ; 5 N. C. C. A. 798 651 Knott V. Tingle Jacobs & Co. (1910), 4 B. W. C. C. 55 918 Kobyra v. Adams (1916), 176 App. Div. 43; 162 Supp. 269.. 181, 644, 671, 1031 Koch V. Oakland Brewing and Malting Co., 1 Cal. Ind. Ace. Com. (Part II), 373 650 Koether v. Union Hardware Co., 1 Conn. Comp. Dec. 38 ■: . . . 800 Kolb V. Borden's Condensed Milk Co., 4 N. Y. St. Dep. Rep. 347; 12 N. C. C. A. 188 688, 776, 791 Konzelski v. GriflSn-Neuberger To- bacco Co., 1 Conn. Comp. Dec. 50 651 Koontz, Re: Op. Sol. Dep. L., p. 229 473 Koponen v. Union Lumber Co., 2 Cal. Ind. Ace. Com. 981 707 Kordellos v. Northwestern Pacific Rd. Co., 1 Cal. Ind. Ac. Com. (Part II), 586; 11 N. C. C. A. 762 ; 828 Korochek v. Peabody Coal Co., 1 Bull. 111. Ind. Bd. 195 836 Korochek v. Peabody Coal Co., 1 Bull. 111. Ind. Bd. 184 1007 Koslowitzky v. Koslow Iron Works, 4 N. Y. St. Dep. Rep. 360 239 KossofC V. R. H. Macy & Co. (1916), 7 N. Y. St. Dep. Rep. 430 672 KossofC V. R. H. Macy & Co. (1916), 175 App. Div. 959; 161 Supp. 532 882 160 ■DigttizedAf^MMmM V. Albert Trostel & Sons XCVlll TABLE OF CASES FAOE (Fourth Annual Report, 1915), Wis. Ind. Com. 17 372 Kraljlvich v. Yellow Aster Mining and Milling Co., 1 Cal. Ind. Ace. Com. (Part II), 554 533, 546, 885, 1042 Kramer Re: Op. Sol. Dep. L., p. 322 525 Kramer v. Industrial Accident Commission (1916), 000 Cal. App. 000 ; 161 Pac. 278 219 Kramer v. Schalk (1916), 8 N. Y. St. Dep. Rep. 444 245 Krasmeskl v. The New Haven Clock Co., 1 Conn. Comp. Dec. 699 858 Krauss v. George H. Fritz & Son, 87 N. J. Law 321 ; 93 Atl. 578. . 776, 1092 Krensien v. Jasper, Inc. (1916), 7 N. Y.. St. Dep. Rep. 373 391 Kreppel v. Boyland, 2 N. Y. St. Dep. Rep. 489 883 Kreutz v. R. Newmann Hardware Co. (Essex Common Pleas, 1914), 37 N. J. Law J. 58; 12 N. G. C. A. 486 694 Kricinovich v. American Gar and Foundry Go. (1916), 000 Mich. 000 ; 159 N. W. 362 834, 1146 Kringle v. Meyers, 1 Bull. 111. Ind. Bd. 72 384 Krisan v. American Steel Foun- dries, 1 Bull. 111. Ind. Bd. 156. 847, 1018 Kruger v. Strehlow, Freese & -Peterson, 2 Gal. Ind. Ace. Com. 367 ;..1152 Krulla V. Casualty Go. of Amer- ica, 2 Mass. Ind. Ace. Bd. 409. . 852 Krupyak, In re, Ohio Ind. Com. No. 95,747, July 8, 1915 ; 11 N. C. C. A. 237 589 Kruse v. Pillsbury, 000 Cal. 000; 162 Pac. 891 102, 103 Krznarich v. Grown Columbia Paper Go. and The Employers' Liability Assur. Corp., Cal. Ind. Ace Bd., Nov. 7, 1913 867 Digitized by PAGE Krznarich v. Crown Columbia Paper Co., 1 Cal. Ind. Ace. Com. (Part I), 166 839,903 Krzus V. Crow's Nest Pass Coal Co. (1912), 6 B. W. C. C. 271.. 794 Kuminga v. Wilson and Bennet Mfg. Co., III. Ind. Bd. No. 1,434, Jan. 10, 1916; 12 N. O. G. A. 481 694 Kunasek v. New York Consoli- dated Card Co. (1916), 176 App. Div. 135; 162 Supp. 361.. 725 Kunze v. Detroit Shade Tree Co. (1916), 000 Mich. 000; 158 N. W. 851 509 L La Bourgogne, 210 U. S. 95, 138. 228 Lacey v. John Mowlem & Go. (1914), 7 B. W. G. G. 135 935 Lachuga v. Kataoka, 2 Cal. Ind. Ace. Com. 764 145 La Fleur v. Wood (1916), 8 N. Y. St. Dep. Rep. 405 213 Lagan v. The Connecticut Co. . . . 1188 Lagan v. The Connecticut Co., Superior Court, Hartford County, Court, June 6, 1916 (unreported) 1177 LaGrande Laundry Co. v. Pills- bury (1916), 000 Cal. 000; 161 Pac. 988 195 Landes v. Lupton's Sons Co. (1916), 9 N. Y. St. Dep. Rep. 340 116 Landrigen v. Cochran, 6 N. Y. St. Dep. Rep. 310 273 Lane v. Aeolian Co., 1 Conn. Comp. Dec. 32 686 Lane v. Herrick, 3 Gal. Ind. Ace. Com. 29 126 Lane v. Joyland Co., 2 Cal. Ind. Ace. Com. 868; 12 N. C. C. A. 473 673 Lane v. W. Lusty & Son (1915), 8 B. W. C. G. 518 684 Lane v. Sacramento Laundry, 2 Gal. Ind. Ace, Com. 785 587 IVIicrosoft® TABLE OF CASES XCIX PAGE Langley v. Reeve (1910), 3 B. W. C. C. 175 424 Lanker v. County of Los Angeles, 1 Cal. Ind. Ace. Com. (Part II), 107 545, 712 Lannin v. Simpkins, 3 Cal. Ind. Ace. Com. 127 396 Lantis v. City of Sacramento, 2 Cal. Ind. Ace. Com. 663 293 Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303; 97 Atl. 320; 12 N. C. C. A. 308; aff'g 1 Conn. Comp. Dec. 113.. 367, 375, 636, 644, 916, 971 Larnhart v. Rice-Landswick Co., 1 Cal. Ind. Ace. Com. (Part II), 557 846, 849 Larsen v. Dalzell & Co., 3 N. Y. State Dep. Rep. 393; 11 N. C. C. A. 504 230 Larsen (Matter of), v. Paine Drug Co., 218 N. Y. 252; 112 N. B. 725; afC'g 169 App. Div. 838; 155 Supp. 759; 11 N. C. C. A. 327 132, 180, 218, 654, 1030 Larson v. Holbrook, McGuire and Cohen, 2 Cal. Ind. Ace. Com. 130 703, 908 Larson v. Powers, 2 Cal. Ind. Ace. Com. 320 367 La Salle v. Whiting-Mead Com- mercial Co., 1 Cal. Ind. Ace. Com. (Part II). 346 801, 991 Laspada v. Public Service Ry. Co. (Essex Common Pleas, 1915), 38 N. J. Law J. 102; 11 N. C. C. A. 373; 12 N. C. C. A. 311.. 200, 375 Lasturka v. Grand Trunk Pacific Ry. Co. (1913) (Alberta Su- preme Ct), 7 B. W. C. C. 1031. 401 Lata V. American Mutual Liabil- ity Ins. Co., 1 Mass. Ind. Ace. Bd., 283 365, 411, 828 Latak v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 443 859 Latecny v. Vierling Steel Works, PAGE Lauruszka v. Empire Mfg. Co., Ill N. E. 82 ; 271 111. 304. . . .65, 988, 1000, 1079 La Veck v. Parke, Davis & Co., 000 Mich. 000; 157 N. W. 72; 12 N. C. C. A. 325; L. R. A. (1916), D, 1277 422,1089 Lavin v. Wells Bros. Co., 272 111. 609; 112 N. E. 271 66, 1080 Lavorgna v. Barnum (Jan. 4, 1917) 969 Law v. William Baird & Co. (1914) (Scotch Court of Ses- sion), 7 B. W. C. C. 846; 6 N. O. C. A. 880 816, 817 Lawrie v. James. Brown & Co. (1908), 45 Scotch L. R. 477; 1 B. W. C. C. 137 1140 Lawson V. Stockton Motorcycle and Supply Co., 2 Cal. Ind. Ace. Com. 628; 12 N. C. C. A. 1034. 561, 687 Lawton v. Los Angeles Transfer Co., 2 Cal. Ind. Ace. Com. 988. .. . 490 Lay V. Northern Redwood Lumber Co. (1916), 3 Cal. Ind. Ace. Com. 271 755, 926 Layman v. Amalgamated Oil Co., 2 Cal. Ind. Ace. Com. 223 1029 Lax-Fos Co. v. Rowlett, 139 S. W. 836; 144 Ky. 690 690 Leach v. Mason Valley Mines Co. (1916) (Nevada), 161 Pac. 513 1147 Leach v. Oakley, Street & Co. (1910), 4 B. W. C. C. 91 492 Leary v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 184 450 Lederman v. Standard Accident Ins. Co., 2 Mass. Ind. Ace. Bd. 551 362 Ledford v. Caspar Lumber Co., 2 Cal. Ind. Ace. Co. 679 804 Ledoux V. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 493 354, 604 Lee V. Baird & Co. (1908), 45 Scotch L. R. 717; 1 B. W. C. C. 187 111. App. 448 D/g/fKe(4i96M;C/S^pfif®. 855 TABLE OF CASES PAGE Lee V. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 753 416 Lee V. Fidelity and Casualty Co., 1 Mass. Ind. Ace. Bd. 316 555 Lee V. Pacific Coast Steel Co., 3 Cal. Ind. Ace. Com. 28 878 Lee V. Stag Line (1912), 5 B. W. C. C. 660 1032 Lee V. Steamship St. George (1914), 7 B. W. C. C. 85 497 Leeds & Liverpool Canal Co. v. Hesketh (1910), 102 L. T. 663; 3 B. W. C. C. 301 ; 11 N. C. C. A. 495 1124 Legee v. Lacy Mfg. Co., 1 Cal. Ind. Ace. Com. (Part I), 133.. 812 Lehman v. Ramo Films, Inc., 92 Misc. 418; 155 Supp. 1032... 90, 100, 116 Leiser v. General Drop Forge Co. (1916), 7 N. Y. St. Dep. Rep. 467 989 Leishman v. Dixon (1910), 47 Scotch L. R. 410 ; 3 B. W. C. 0. 560 543 Leite v. ParaflSne Paint Co., 2 Cal. Ind. Ace. Com. 948; 12 N. C. C. A. 392 490 Lemanes, Re : Op. Sol. Dep. L., p. 613 995 Lemieux v. Contractors Mutual Liability Ins. Co., 223 Mass. 346; 111 N. E. 782 955, 1066, 1085, 1105 Lenk v. Kansas & T. Coal Co., 80 Mo. App. 374 123 Lentz V. Estabrook Co., 2 Cal. Ind. Ace. Com. 231 103 Leon V. Exposition Wheel Chair Co., 2 Cal. Ind. Ace. Com. 842. 139 Leonard, Re: Op. Sol. Dep. C. & L., p. 247 471 Leonard v. Balboa Amusement Co., 1 Cal. Ind. Ace. Com. (Part II), 564 233, 950 Leonard v. Fremont Hotel, 2 Cal. Ind. Ace. Com. 924 ; 12 N. C. C. ^•66T Digitmd^ PAGE Lera v. Fairehild-Gilmore-Wilton Co., 1 Cal. Ind. Ace. Com. (Part II), 44 .* 663 Lesandro v. Milwaukee Electric Ry. and Light Co., Wis. Indus. Com. Dec. 18, 1912 1161 Lesh T. Illinois Steel Co., Fourth Annual Report (1915), Wis. Ind. Com. 24 834 Lesh V. Illinois Steel Co., 163 Wis. 124 ; 157 N. W. 539 587 Leslie v. O'Connor & Riehman, 5 N. Y. St. Dep. Rep. 383; 11 N. C. C. A. 501 186, 474 Lessner v. United States Fidelity & Guaranty Co., First Annual Report State Ind. Com. of Mary- land (1914-1915), 20 988 Lester v. Otis Elevator Co., 169 App. Div. 613; 155 Supp. 524; afif'g 90 Misc. 649; 153 Supp. 1058 301 Leveroni v. Travelers Ins. Co., 219 Mass. 488; 107 N. E. 349; aff'g 2 Mass. Ind. Ace. Bd. 267 468 Lewandov?ski v. Illinois Steel Co., Wis. Indus. Com. Oct. 2, 1912.. 865 Leware, In re, 1 Bull. Ohio Ind. Com. 100 449 Lewis V. Coupe, 85 N. E. 1053 ; 200 Mass. 182 695 Lewis V. Detroit Vitrified Brick Co., 129 N. W. 726; 164 Jlich. 489 142 Lewis V. Foiada, 3 Cal. Ind. Ace. Com. 60 736 Lewis V. Garratt-Callahan Co., 2 Cal. Ind. Ace. Com. 556 203 Lewis V. Globe Indemnity Co., 1 Mass. Ind. Ace. Bd. 48 b72 Lewis V. Goodyear India Rubber Glove Mfg. Co., 1 Conn. Comp. Dec. 238 §57 Lewis V. Grand Trunk Pacific Ry. Co. (1913) (British Columbia Ct. of Appeal), 7 B. W. C. C. 1038 1051 Lewis V. Port of London Author- MiC^^6M^^' '^ B- W. C. C. 577. . 420 TABLE OF CASES CI PAGE Lewis V. Stanbridge (1913), 6 B. W. C. C. 568 149 Lewis and Clark County v. Indus- trial Accident Board- of Mon- tana, 52 Mont. 6; 155 Pac. 268. 66, 204 Libertl v. Staten Island Ry. Co., 6 N. Y. St. Dep. Rep. 406 481 Llchtenberger v. Strack, Fourth Annual Report (1915), Wis. Ind. Com. 13 391 Llghtbown v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 243 382 Lima V. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 800 356 Llmron v. Blair, 181 Mich. 76; 147 N. W. 546; 5 N. C. C. A. 866 , 88Q Linch V. Millard, 4 N. Y. St. Dep. Rep. 385 376 Llndauer O'Connel Co. v. Hoenlg, Third Annual Report (1914), Wis. Ind. Com. 79 662 Lindebauer v. Welner, 94 Misc. 612 ; 159 Supp. 987 260, 300 Llndh V. Toyland Co., Ind., 2 Cal. Ind. Ace. Com. 625 885 Lindsay v. Gallagher (1916), 9 N. X. St. Dep. Rep. 275 581 Lindsay v. M'Glashen & Son (1908), 45 Scotch L. R. 559; 1 B. W. C. C. 85 757 Llndstrom v. Mutual S. S. Co., 132 Minn. 328 ; 156 N. W. 669 109, 230, 299 Lines V. Pacific Gas and Electric Co., 2 Cal. Ind. Ace. Com. 835. 558 Linnane v. Aetna Brewing Co. (1916), 000 Conn. 000; 99 Atl. 507; rev'g 1 Conn. Comp. Dec. 677 426, 667, 942, 948 Linnell v. North Star Mines Co., 1 Cal. Ind. Ace. Com. (Part I), 175 857 Linsteadt v. Louis Sands Salt & Lumber Co., 000 Mich. 000 ; 157 PAGE Linton V. Smith, 8 Gray (Mass.) 147 134 Llondale Bleach, Dye & Paint Works V. Riker, 85 N. J. Law 426 ; 89 Atl. 929 ; 4 N. C. C. A. 713; rev'g 36 N. J. Law J. 305. 438 Little V. Hackett, 116 U. S. 379. . 165 Litle V. Seigrist & Easterday, 1 Bull. 111. Ind. Bd. 60 218 Littledair v. Crowley, 1 Bull. 111. Ind. Bd. 25 272 Littleford v. Connell (1909), 3 B. W. C. C. 1 748 Lloyd, Re : Op. Sol. Dep. C. & L., p. 209 321 Lloyd V. Midland Railway Co. (1914), 7 B. W. C. C. 72 925 Lloyd V. Powell Duffryn Steam Coal Co. (1914), 7 B. W. C. C. 330 788, 1012 Lloyd V. Power Specialty Co. (1916), 7 N. Y. State Dep. Rep. 409 95 Lloyd V. Sugg & Co. (1900), 81 L. T. 768 ; 2 W. C. C. 5 326 Lobuzek V. American Car and Foundry Co., 000 Mich. 000 ; 161 N. W. 139 1026 Lockwood V. Pacific Gas & Elec- tric Co., 3 Cal. Ind. Ace. Com. 26 558 Loesser v. East Shore Amusement Co., 1 Conn. Comp. Dec. 449. . . 588 Lohrke v. Benicia Iron Works, 1 Cal. Ind. Ace. Com. (Part II), 261 1029 London and Lancashire Guarantee Co. V. Romberger, 2 Cal. Ind. Ace. Com. 48; 12 N. C. C. A. 896 529 London and Lancashire Guar. & Ace. Co. V. Industrial Accident Commission (1916), 000 Cal. 000; 161 Pac. 2 641 London & North Western Railway V. Taylor (1910), 4 B. W. C. 0. 11 1120 N. W. 64 9(©/S(flli2ec(lfl90M;C«I«SOlJtqpMG. A. 78 201 CXXIV TABLE OF CASES • PAGE Possner v. Smith Metal Bed Co., 3 N. T. St. Dep. Rep. 387 1054 Post, Matter of, v. Burger & Gohlke, 216 N. Y. 544; 111 N. B. 351; 10 N. C. C. A. 888; aff'g 168 App. Div. 403; 153 Supp. 505 83, 113, 1180 Postex Cotton Mill Co. v. Me- Camy, 000 Tex. 0000; 184 S. W. 569 ; 11 N. C. C. A. 884. .29, 68 Potter, Re: Op. Sol. Dep. L., p. 272 452 Potter V. City of Brawley (1916), 3 Cal. Ind. Ace. Com. 210 373 Potter V. John Welch & Son FAQE C. C. A. 835; aff'g 3 N. Y. St. Dep. Rep. 366... 134, 140, 175, 1030 Predale v. Berntz (Essex Com- mon Pleas, 1914), 37 N. J. Law J. 60 549 Pressey v. De Zeng Standard Co. (Camden Common Pleas, 1913), 37 N. J. Law J. 13; 11 N. C. C. A. 428 877, 881 Price V. Burnyeat, Brown & Co. (1907), 2 B. W. C. C. 337 824 Price V. Clover Leaf Coal Mining Co., 188 111. App. 27 30 Price V. Marsden & Sons (1899), 80 L. T. 15 ; 1 W. C. C. 108. ... 904 (1914), 7 B. W. C. C. 738. .291, 933 P"ce v. Tredegar Iron &' Coal Pottorff V. Federal Coal Mining Co., 122 Pac. 120; 86 Kans. 774 134 Potts V. Guildford Syndicate (1914), 7 B. W. C. 9. 675 1008 Potts V. Lehigh Valley R. Co., 4 N. T. St. Dep. Rep. 421 483 Potts V. Pacific Stevedoring and Ballasting Co., 1 Cal. Ind. Ace. Com. (Part II), 630 1042 Poulton V. Kelsall (1912), 5 B. W. C. C. 318 597 Powell V. Bryndu Colliery Co. (1911), 5 B. W. C. C. 124 622 Powell V. Crow's Nest Pass Coal Co. (1910) (British Columbia Supreme Court), 8 B. W. C. C. 653 559, 828 Powers, Re: Op. Sol. Dep. C. & L., p. 176 368, 973 Powers V. Hopping Valley Ry. Co., 31 Ohio Cir. Ct. 488 156 Powers V. Hotel Bond Co., 1 Conn. Comp. Dec. 16; aff'd by Superior Ct., Id. 20, 89 Conn. 143 ; 93 Atl. 245 750, 772, 790, 963, 964, 965, 967, Co. (1914), 7 B. W. C. C. 387. . 487 Price V. Westminster Brymbo Coal & Coke Co. (1915), 8 B. W. C. C. 257 949 Prichard v. American Beet Sugar Co., 2 Cal. Ind. Ace. Com. 378, 743, 770 Priestley v. Fowler, 3 M. & W. 1. . " 19 Priestley v. Port of London Au- thority (1913), 6 B. W. C. C. 105 901 Prigg V. Pennsylvania, 16 Pet. 539, 617 222 Princeton Coal Mining Co. v. Downer, 93 N. B. 1009; 48 Ind. App. 136 142 Printy v. Jacobsen-Bade Co., 1 Cal. Ind. Ace. Com. (Part II), 519 834 Pritchard v. Torkington (1914), 7 B. W. C. C. 719 692 Procknau, In re, 1 Bull. Ohio Ind. Com. 66 684 Proctor v. S. S. "Serbina" (1915), 8 B. W. C. C. 572; 10 N. C. C. A. 618 617 Proctor & Sons v. Robinson (1909), 3 B. W. C. C. 41. .1111, 1127 970, 972, 974, 978, 981 Prohaska v. American Typewriter Powers v. Smith (1910), 3 B. W. Co., 1 Conn. Comp. Dec. 116. .. 730 ^- ^- *'^*^ ^'^9 Prokoplak v. Buffalo Gas Co. Powley V. Vivian & Co., 169 App. (1916), 7 N. Y. St. Dep. Rep. Dlv. 170; 154 Supp. 4j^6i.^0 IJ.^ ,„. 390^^ '339 i^ifizeaby Microsoft® ' TABLE OF CASES CXXV PAQE Prokopiak v. Buffalo Gas Co. (1916), 176 App. Dlv. 128; 162 Supp. 288 946, 1094 Proprietors of Hays Wharf v. Brown (1909), 3 B. W. C. C. 84 1122 Pryce v. Penrikyber Navigation Colliery Co. (1901), 85 L. T. 477 ; 4 W. C. C. 115 797 Pryor, In re, Ohio Ind. Com., No. 65,068, Jan. 15, 1915; 11 N. C. C. A. 372 201 Puddy V. Fitch, Fourth Annual Report (1915), Wis. Ind. Com. 17 156, 286 Puget Sound Traction, Light & Power Co. v. Schleif (U. S. Circ. Ct. of App. 9th Cir.), 220 Fed. 48 181 Pugh V. Earl Dudley (1914), 7 B. W. C. C. 528 637 Pugmire v. Oregon Short Line R. Co., 92 Pac. 762; 33 Utah 27; 13 L. R. A. (N. S.) 565 186 Pulford v. Packard Motor Car Co., 1 Bull. 111. Ind. Bd. 86.... 861 Puljevieh v. Lime Rock Sugar Co. and The U. S. Fidelity & Guar- anty Co., 1 Cal. Ind. Ace. Com. (Part. II), 165 387 Pumpanelli v. The Aberthaw Construction Co., 1 Conn. Comp. Dec. 620 579 Punkosski v. New Castle Leather Co., 57 Atl. 559; 4 Pennewill (Del. Super.) 544 695 Purchase v. Grand Rapids Re- frigerator Co. (1916), 000 Mich. 000; 160 N. W. 391 860 Purdy V. City of Sault Ste. Marie, 000 Mich. 000; 155 N. W. 597, 944, 954, 956 Puridzy v. Winchester Repeating Arms Co., 1 Conn. Comp. Dee. 420 858, 1053 I>urse V. Hay ward (1908), 1 B. W. C. C. 216 438 Pusch V. Sawmiller (1916), 8 N. Y. St. Dep. Rep. 442. . . ■ DtgitizeWhy PAGE Puterbaugh, Re, 1 Bull. Ohio Ind. Com. 143 678 Putnam v. Murray (1916), 174 App. Div. 720 ; 160 Supp. 811. . . 676 Putnam v. Murray, 6 N. Y. St. Dep. Rep. 355 448, 687 Puza V. C. Hennecke Co., 158 Wis. 482 ; 149 S. W. 223 28 Pynchon v. Ernest Higgins Co. (1916), 3 Cal. Ind. Ace. Com. 286 742 Q. Queenan v. Travelers Ins. Co. (1914), 3 Mass. Ind. Ace. Bd. 525 ; 12 N. C. C. A. 250 518 Quinlan v. Barber Asphalt Paving Co., 84 N. J. Law 510; 87 Atl. 127; 11 N. C. C. A. 715 775 Quinn v. Flynn (1910), 44 Irish L. T. R. 183; 3 B. W. C. C. 594 1133 Quinn v. M'Callum (1908), 46 Scotch L. B. 141 ; 2 B. W. C. C. 339 1128 Quintrall v. Consumers' Rock and Gravel Co., 1 Cal. Ind. Ace. Com. (Part II), 112 1184 R. Rabello v. Marin County Milk Producers, 1 Cal. Ind. Ace. Com. (Part II), 87 424, 656 Rabelo v. Napa Transportation Co., 2 Cal. Ind. Ace. Com. 225. . 824 Race V. Petry's Express and De- livery, Inc. (Mercer Common Plas, 1915), 88 N. J. Law J. 265 299 Racujja v. The National Folding Box and Paper Co., 1 Conn. Comp. Dec. 522 715 RadclifCe v. The Pacific Steam Navigation Co. (1910), 102 L. T. 206 ; 3 B. W. C. C. 185 1128 Radic V. American Car and Foundry Co., Dec. of Mich. Ar- bitration Committee, Dec. 18, ,,1912 . ^^. 862 Microsoft® CXXVl TABLE OF CASES FAOE Radigan v. Sanitary District of Clilcago, 1 Bull. 111. Ind. Bd. 138 234 Radley v. Nephew, 2 Oal. Ind. Ace. Com. 98 1037 Kaggio v. Secondino Macchetto (1916), 3 Cal. Ind. Ace. Com. 319 365 Rally V. Island Transportation Co., 2 Oal. Ind. Ace. Com. 582. . 812 Rainey v. McClain, 1 Cal. Ind. Ace. Com. (Part II), 57. .532, 828, 831 Rakiec v. Delaware, L. & W. R. Co., 000 N. J. Law 000 ; 88 Atl. 953; 4 N. C. C. A. 734. . . .871, 1092 Rallins v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part I), 57 748, 789 Ralph V. Mitchell (1913), 6 B. W. C. C. 678 930 Ralph v. Morgan, 2 Cal. Ind. Ace. Com. 537; 11 N. C. C. A. 500. . . 356 Ramirez v. Binkley & Wayne, 3 Cal. Ind. Ace. Com. 33.... 893, 1065 Ramlow v. Moon Lake Ice Co. (1916), 000 Mich. 000; 158 N. W. 1027 343, 361, 551, 1089 Rankel v. Buskstaff-Edwards Co., 120 N. W. 269; 138 Wis. 442; 20 L. R. A. (N. S.) 1180 138 Rankin v. Rankin & Sons (1916), 3 Cal. Ind. Ace. Com. 370 326 Rankine v. Fife Coal Co. (1915) (Scotch Court of Session), 8 B. W. C. C. 401 948 Ratcliff V. DeWitt Co., 1 Cal. Ind. Ace. Com. (Part II), 639 216 Ratzberg v. Deltox Grass Rug Co., Fourth Annual Report (1915), Wis. Ind. Com. 34 731 Ravenscroft v. Packard, 3 Cal. Ind. Ace. Com. 24 193 Rayman v. Fields, No. 2 (1910), 102 L. T. R. 154; 3 B. W. C. C. 123 1071 Raymond v. Chicago, M. & St. P. R. Co. (1916), 233 Fed. 239. .. . 69 Raymond v. United States Cai Digitized PAGE ualty Co., 1 Mass. Ind. Ace. Bd. 277 408, 427, 580 Rayner v. Sligh Furniture Co^ 180 Mich. 168; 146 N. W. 665; 4 N. C. C. A. 851; L. R. A. (1916) , A, 22n 518, 1089 Razziuni v. John Salter & Son, 1 Conn. Comp. Dec. 687 730 Read V. Bowman, 2 Cal. Ind. Ace. Com. 665 710 Ream v. Sutter Butte Canal Co., 2 Cal. Ind. Ace. Com. 187 393 Reardon v. Philadelphia & R. Ry. Co., 85 N. J. Law 90; 88 Atl. 970 ; 4 N. C. C. A. 776 775 Redfleld v. Michigan Workmen's Compensation Mut. Ins. Co., 183 Mich. 633 ; 150 N. W. 362 ; 8 N. C. C. A. 889 538 Redinger v. Pekin Wagon Co., 1 Bull. 111. Ind. Bd. 146; 11 N. C. C. A. 503 805, 1018 Red River Lumber Co. v. Pills- bury (1916), 000 Cal. 000; 161 Pac. 982 951, 1009, 1201 Reed v. Booth & Piatt Co., 1 Conn. Comp. Dec. 121 202, 605 Reed v. Great Western Ry. Co. (1908), 99 L. T. 781 ; 2 B. W. C. C. 109 681 Reed v. Orient Music Co., 1 Conn. Comp. Dec. 36 727 Reed (Gerard) v. Rothe, Fourth Annual Report (1915), Wis. Ind. Com. 33 784 Reed v. Smith, Wilkinson & Co. (1910), 3 B. W. C. C. 223 267 Reed v. Winn, 2 Cal. Ind. Ace. Com. 675 195, 204 Reed v. Zelinsky, 1 Cal. Ind. Ace. Com. (Part II), 496 990, 1142 Reeks v. Kynoch (1901), 4 W. C. C. 14 533 Rees, Re: Op. Sol. Dep. L., p. 599. 770 Rees V. Penrikyber Navigation Colliery Co. (1902), 87 L. T. 661; 5 W. C. C. 117 793 Rees V. Powell-Duffryn Steam TABLE OF CASES CXXVll PAGE Rees V. Thomas (1899), 80 L. T. 578 ; 1 W. C. C. 9 633 Reese v. Yale & Towne Mfg. Co., 1 C!onn. Comp. Dec. 154 714 Reeves v. N. J. State Hospital (Morris Common Pleas, 1915), 38 N. J. Law J. 341 254 Refuge Assurance Co. v. Millar, 49 Scotch L. R. 67 502, 932 Regan v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 358 899 Reger v. McCloud Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 567 910 Reich V. City of Imperial, 1 Cal. Ind. Ace. Com. (Part 11), 337. . 403 Reid V. Hieks-Hauptman Trans- portation Co., 1 Cal. Ind. Ace. Com. (Part II), 652 103 Reid V. Leitch Collieries (1912), 7 W. C. C. 1017 152 Reid V. Thomas Elevator Co., 1 Bull. 111. Ind. Bd. 144 360 Reily v. Newhall Lumber and Farming Co. (1916), 3 Cal. Ind. Ace. Com. 208 172, 191, 213 Reiner v. Morris Plains State Hospital (Morris Common Pleas, 1914), 37 N. J. Law J. 179 410, 587, 833 Reimers v. Proctor Pub. Co., 85* N. J. Law 441; 89 Atl. 931; 4 N. C. C. A. 738. 627, 1041 Reinking v. Aetna Life Ins. Co., 3 Cal. Ind. Ace. Com. 82.. 240, 1171 Reithel, In re, 222 Mass. 163 ; 109 'N. B. 951 ; UN. C. C. A. 235- 254; L. R. A. (1916), A, 304... 594 Remsnider v. Union Savings & Trust Co., 89 Wash. 87; 154 Pac. 135 223 Renaldi v. Town of Rocklin, 1 Cal. Ind. Ace. Com. (Part II), 206 230, 600 Rennie v. Reid, 45 Scotch L. R. 814 ; 1 B. W. C. C. 324 190 Replogle V. Seattle School Dist. No. 1, 84 Wash. 581; l^igPf^d by 196 ; 11 N. C. C. A. 321-32f . ... 132 PAGE Reseburg v. Hamilton Mfg. Co., Fourth Annual Report (1915), Wis. Ind. Com. 14 391, 717 Ress V. Youngstown Sheet & Tube Co., 1 Bull. Ohio Ind. Com. 194 385, 792 Revere . Rubber Co., In re 916 Revie v. Cumming (1911), 5 B. W. C. C. 483 622 Revita v. Royal Indemnity Co., 2 Mass. Ind. Ace. Bd. 352; 11 N. C. C. A. 558 1194 Rex V. Coney Island and Brook- lyn R. R. Co., 2 Bradbury's PI. and Pr. 296 290 Rex V. Registrar of the Thetford County Court (1915), 8 B. W. C. C. 276 ; 987 Rex V. Solomons (1909), 2 K. B. 980 257 Reynolds v. Mound City Water and Light Co., 111. Ind. Bd., Dec. 31, 1914; 12 N. C. C. A. 478 558 Reynolds v. Seneca Falls Mfg. Co., 137 App. Dlv. 446; 122 Supp. 797 691 Reynolds v. Smith, 1 Cal. Ind. Ace. Com. (Part II), 35 919 Rhatigan v. Brooklyn Union Gas Co., 136 App. Div. 727; 121 Supp. 481 123 Rheinwald, In re, 168 App. Div. 425; 153 Supp. 598; rev'g 1 N. Y. St. Dep. Rep. 417 143 Rheinwald v. Builders Brick & Supply Co 143 Rhoades v. Varney, 91 Maine 222 ; 39 Atl. 552 130 Rhodes v. J. B. B. Coal Co. (1916), 000 W. Va. 000; 90 S. E. 796 232, 285 Rhodes V. Soothill Wood Colliery Co. (1908), 100 L. T. 15; 2 B. W. C. C. 377 1064 Rhyner v. Hueber Building Co., 171 App. Div. 56; 156 Supp. MMsoft® ^■■Vy^ Richards v. Central Iowa Fuel Co. CXXVlll TABLE OF CASES PAGE (1916), 000 Iowa 000; 159 N. W. 696 921 Richards v. Pitt (1915), 8 B. W. C. C. 525 133 Richards v. Sanders & Sons (1912), 5 B. W. 0. C. 352 1012 Richardson v. Builders' Exchange Ass'n (1916), 9 N. Y. St. Dep. Rep. 317 35T Richardson v. Denton Colliery Co. (1913), 6 B. W. C. C. 629.. 626 Richardson v. Harmon, 222 U. S. 96 230 Richardson v. Morris (1914), 7 B. W. C. C. 130 481 Richardson v. Owners of Ship "Avonmore" (1911), 5 B. W. C. C. 34 491 Richardson v. Sears, Roebuck & Co., Ill N. E. 85 ; 271 111. 825. . 65 Richardson v. State, 43 Tex. 456. . 206 Rlcherson, Re : Op. Sol. Dep. L., p. 775 825 Richmond v. Sltterding, 101 Va. 354 ; 99 Am. St. Rep. 879 ; 43 S. E. 562 ; 65 L. R. A. 445 135 Rideout Co. v. Pillsbury (1916), 000 Cal. 000; 159 Pac. 435; 12 N. C. C. A. 1032 491, 534 Rider v. Little Co., Mich Ind. Ace. Br. April, 1913 164, 862 Riedel v. Llewellyn Iron Works, 1 Cal. Ind. Ace. Com. (Part I), 240, 241 719, 821 Bieff V. City of Sacramento, 2 Cal. Ind. Ace. Com. 251 ; 12 N. C. C. A. 901 246, 515 Riker v. Liondale Bleach, Dye and Print Works, 36 N. J. Law J. 305 833 Riley v. Cudahy Packing Co., 117 N. W. 765 ; 82 Nab. 319 524 Riley v. W. Holland & Sons (1911), 104 L. T. 371 500 Riley v. W. Holland & Sons (1911), 1 K. B. 1029; 4 B. W. C. C. 155 500 Riley v. Walsh, 1 Conn. Comp. PAGE Ringwood v. Kerr Bros. (1914) (Alberta Supreme Court), 7 B. W. C. C. 1056 173 Rintoul V. Dalmeny Oil Co. (1908), 45 Scotch L. R. 809; 1 B. W. C. C. 340 768 Risdale v. Steamship " Kilmar- nock " (1914), 8 B. W. C. C. 7. 698 Rist V. Larkin & Sangster, 5 N. Y. St. Dep. Rep. 381 451, 687 Rltchings v. Bryant, 6 B. W. C. C. 183 190 Ritzow V. City of Milwaukee, Third Annual Report (1914), Wis. Ind. Com. 56 351 Rives V. Smith, 2 Cal. Ind. Ace. Com. 888 1050 Roadhouse v. Wells, 2 Cal. Ind. Ace. Com. 294; 11 N. C. C. A. 374 192 Roanoke (The), 189 U. S. 185, 228, 229 Bobbins v. Magoon-Kimball Co. (1916), 000 Mich. 000; 159 N. W. 323 ; 000 N. C. C. A. 000. ... 28 Robbins v. Original Gas Engine Co., 000 Mich. 000; 157 N. W. 437 442, 901 Roberts v. Benham (1910), 2 B. C. 430 1073 V. Hitchcock Hardware Co., 1 Conn. Comp. Dec. 213. . . 392 Roberts & Ruthven v. Hall (1912), 5 B. W. C. C. 331 1110 Roberts v. Trollop & Sons (1914), 7 B. W. C. C. 678 685 Roberts v. Whaley (1916), 000 Mich. 000; 158 N. W. 209.. 765, 783, 788 Roberts v. Wolff Packing Co.. 000 Kan. 000; 149 Pac. 413.853, 943, 1102, 1109, 1156 Robertson v. Allan Brothers & Co. (1908), 98 L. T. 821; 1 B. W. C. C. 172 493 Robertson v. Hall Brothers Steamship Co. (1910), 3"B. W. W. C. Roberts Dec. 505 • Drgstlzed ^hflicr8s6h^/W/' PAG": Co. and Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part 11), 93 785, 787 Sedlock V. Carr Coal Mining Co. (1916), 98 Kans. 680;, 159 Pac. 9 "... 474 See V. Leidecker, 152 Ky. 724; 154 S. W. 10 165 Seiberlich v. Buckingham & Hecht, 1 Cal. Ind. Ace. Com. (Part I), 372 1038 Selsus V. Case Threshing Machine Co., Fourth Annual Report (1915), Wis. Ind. Com. 22 286 Senior v. Fountains & Burnley (1907), 23 T. L. R. 634; 9 W. C. C. 116 780 Senter v. Klyce, 2 Cal. Ind. Ace. .^ Com. 695 425 Septimo, In re, 219 Mass. 430, 107 N. B. 63; 8 N. C. C. A. 1025 888, 1045, 1086 Serin v. Daisy Gadsby Steamship Co., 2 Cal. Ind. Ace. Com. 725, 103 1142 Serpa v. Jotham Bixby Co. (1916), 3 Cal. Ind. Ace. Com. 343 838 Sessler v. Peter (1916), 000 N. J. Law 000 ; 98 Atl. 834 1092 Setnick v. Goldstein, First Annual Report, State Ind. Com. of Md. (1914-1915), p. 19 185 Sevey v. Department of Engineer- ing of the State of California, 2 Cal. Ind. Ace. Com. 568 507 Seward v. Sunset Trading and Land Co., 3 Cal. Ind. Ace. Com. 49 164, 437, 675 Sexton V. Massachusetts Bonding and Ins. Co. and Two Boys Oil Co., 1 Cal. Ind. Aec. Com. (Part II), 48 765, 788 Sexton y. Newark District Tele- graph Co., 2 Bradbury's PI. and Pr. Rep. 221, 84 N. J. L. 85; 86 Atl. 451 ; 3 N. C. C. A. 569 ; aff 'd„gg N. J. Law 701 ; 91 Atl. "l N. C. C. A. 633 67 CXXXIV TABLE OF CASES PAGE Seywald v. Ford Motor Co., 1 Cal. Ind. Ace. Com. (Part I), 112 ; 12 N. C. 0. A. 381 514 S. F. & W. Ry. Co. V. Stewart, 71 Ga. 446 343 Shade v. Ash Grove Lime & Port- land Cement Co., 92 Kans. 146 ; 139 Pac. 1193; 5 N. C. C. A. 763 296 Shadoan's Adm'r v. Cincinnati, N. O. & T. P. R. Co., 82 S. W. 567 ; 26 Ky. Law Rep. 828 646 Shafer v. Parke Davis & Co. (1916), 000 Mich. 000; 159 N. W. 304 216, 944, 1090 Shaffer, In re, 1 Bull. Ohio Ind. Com. 7.. 764, 777, 792, 957, 992, 994 Shaffer, Claim No. 41, Ohio St. Lia. Nd. Awd., June 14, 1912. . . 756 Shaffer v. Southern California Hardwood Mfg. Co., 2 Cal. Ind. Ace. Com. 886 145 Shanahan v. Monarch Engineer- ing Co., 219 N. Y. 469; 114 N. E. 795 ; rev'g 172 App. Div. 221 ; 159 Supp. 257.88, 301, 309, 310 Shannesy v. City of Chicago, 1 Bull. 111. Ind. Bd. 100 899 Shannon v. Hercules Powder Co„ 1 Cal. Ind. Ace. Com. (Part I), 199 819 Shanton v. Masterson, 2 Cal. Ind. Ace. Com. 698 231 Sharf V. Packard Motor Co., Mich. Ind. Ace. Bd., April, 1913 341 Sharman v. Holliday & Green- wood (1903), 90 L. T. 46; 6 W. C. C. 147 1103 Sharp V. Colyer Van and Storage Co. and Globe Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 149 440 Sharp V. Johnson & Go. (1915), 7 W. C. C. 28 511 Sharpe v. Midland Ry. Co. (1903), 88 L. T. 545; 5 W. C. 0. 128 ; afC'd 6 W. C. C. 119, . . . 917 Digitized Dy FAGE Shaw V. D. J. Foley, 1 Cal. Ind. Ace. Com. (Part II), 629 240 Shaw (Glasgow) v. Maefarlane (1914), 8 B. W. C. C. 382 597 Shaw V. Massachusetts Employes Ins. Ass'n (1914), 3 Mass. Ind. Ace. Bd. No. 707; 12 N. C. C. A. 197 643 Shaw V. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 501 ; 12 N. C. C. A. 197. .. . 731 Shaw V. Wigan Coal & Iron Co. (1909), 3 B. W. C. C. 81. . . .587, 649 Shay V. Christian Felgenspan ' Corp., 1 Conn. Oomp. Dec. 232. 426 Shayne v. American Cap Fronts Mfg. Co. (1916), 9 N. Y. St. Dep. Rep. 362 864 Shea V. Western Grain and Sugar Products Co., 2 Cal. Ind. Ace. Com. 487 600, 802, 1016 Shea V. Westinghouse Electric & Mfg. Co., 147 App. Div. 660; 132 Supp. 612 690 Sheehan v. Fidelity & Casualty Co., 1 Mass, Ind. Ace. Bd. 394; 11 N. C. C. A. 712 791 Sheehy v. Great Southern and Western Ry. Co. (1913) (Irish Court of Appeal), 6 B. W. C. C. 927 512 Sheeran, Re, 28 Op. Atty. Gen. 254; Op. Sol. Dep. c' & L., p. 169 319, 320, 444 Sheeran v. Clayton & Co. (1909), 44 Irish L. T. 52 ; 3 B. W. G. C. 583 398 Shelby v. Pacific Telephone & Telegraph Co. (1916), 3 Cal. Ind. Ace. Com. 214 656 Sheridan (Matter of) v. P. J. GroU Const. Co., 218 N. Y. 633 ; 112 N. E. 568; rev'g 172 App. Div. 916 182 Shevehenko v. Detroit United Ry., 000 Mich. 000; 156 N. W. 423. 283, 298 Shields v. Miller, 2 Cal. Ind. Ace MiE^^SOm 334 TABLE or CASES CXXXV PAGE Shinnick v. Clover Farms Co., 169 App. Div. 236; 154 Supp. 423; 9 N. C. C. A. 342.301, 307, 309, 1195 Ship " Victoria " v. Barlow (1911), 45 Irish L. T. 260; 5 B. W. C. C. 570 250 Shipp V. Frodingham Iron and Steel Co. (1913), 6 B. W. C. C. 1 921 Shirt V. Calico Printers' Ass'n (1909), 100 L. T. 740; 2 B. W. C. Q. 34? 407 Shouler v. Greenberg, 1 Cal. Ind. Ace. Com. (Part II), 146; 11 N. C. C. A. 382... 139, 191, 193, 506, 1009 Shroeb, In re, 1 Bull. Ohio Ind. Com. 132 523 Sibley v. State, 89 Conn. 682; 96 Atl. 161 ; rev'g 1 Conn. Comp. Dec 88 252 Sicardi v. Sarnoff Hat Co. (1916), 176 App. Div. 13 ; 162 Supp. 337. 946 Sickle V. Pierson (Warren Com- mon Pleas, 1913), 37 N. J. Daw J. 15 153 Sickles V. Ballston Refrigerating Storage Co., 171 App. Div. 108 ; 156 Supp. 864 188, 260 Slegreth v. Goldberg (1916), 7 N. Y. St. Dap. Rep. 452 223 Siemientkowski v. Berwind White Coal Mining Co., 000 N. J. Law 000; 92 Atl. 909 693 Sigman v. Columbia Oil Produc- ing Co., 3 Cal. Ind. Aec. Com. 2. 741 Silcock & Sons v. Golightly (1915), 8 B. W. C. C. 48; 11 N. C. C. A. 31 1113 Sillix V. Armour & Co. (1916), 000 Kans. 000; 160 Pac. 1021. 953, 1002, 1009, 1019 Silva V. James Common, 1 Cal. Ind. Ace. Com. (Part II), 644. . 1002, 1055 Silva V. Kopperud, 2 Cal. Ind. Ace. Com. 604 293, 1187 Silva V. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 597. D/g/f/z^Sby Silveria v. Connecticut Quarries Co., 1 Conn. Comp. Dec. 509 908 Simmons v. Faulds (1901), 3 W. C. C. 169 136 Simmons v. Heath Laundry Co. (1910), 3 B. W. C. C. 200 927 Simmons v. White Bros. (1899), 80 L. T. 344 ; 1 W. C. 0. 89. . . . 743 Simpson, Re: Op. Sol. Dep. C. & L., p. 251 521 Simpson, Re: Op. Sol. Dep. 0. & L., p. 253 521 Simpson v. Byrne (1913) (Irish Court of Appeal), 6 B. W. C. C. 455 825 Simpson v. Bbbw-Vale Steel, Iron & Steel Co. (1905), 92 L. T. 282 ; 7 W. C. C. 101 173, 179 Simpson v. ParafEne Paint Co., 1 Cal. Ind. Ace. Com. (Part II), 76 342, 585, 708, 730, 831 Simpson Construction Co. v. In- dustrial Board of Illinois (1916), 000 111. 000; 114 N'. E. 138 1104 Sims V. Omaha K. C. & B. Ry. Co., 89 Mo. App. 197 603 Sims V. Sherer & Co. (1916), 3 Cal. Ind. Ace. Com. 197.... 158, 789 Sinclair v. Carlton (1914) (Scotch Court of Session), 7 B. W. C. C. 937 607 Sinclair v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part I), 243 949 Sinclair v. Maritime Passengers Ins. Co., 3 Ellis & Elis 476 399 Sinclair v. Maritime Passengers' Assurance Co., 30 L. J. Q. B. 77; 4 L. T. 15 444 Sinclair v. Ramapo Iron Works, 4 N. T. St. Dep. Rep. 418 442 Singer Mfg. Co. v. Rahn, 132 U. S. 518 123 Sinner v. Town of Colchester and Brainerd, 1 Conn. Comp. Dec. Mim)SOftm 234, 638 CXXXYl TABLE OF CASES PAGE Sinnes v. Daggett, 80 Wash. 673 ; 142 Pac. 5; 11 N. C. C. A. 431. 878, 1011, 1007 Sinsigalli v. Suzio, 1 Conn. Comp. Dec. 455 441, 1040 Siri V. L. Arata & Co., 2 Cal. Ind. Ace. Com. 624; 12 N. C. C. A. 184 606 Sirici v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 171 582, 715 Skailes v. Blue Anchor Line (1910), 4 B. W. C. C. 16 920 Skates v. Jones & Co. (1910), 3 B. W. C. C. 460 266 Skei V. Brie Railroad Co. (1916), 7 N. Y. St. Dep. Rep. 401 230 Skidmore v. Brown, 2 Cal. Ind. Ace. Com. 493 139, 186, 482 Skinner v. Connecticut School for Imbeciles, 1 Conn. Comp. Dec. 108; afC'd by Superior Court, Id., 110 174, 246 Skinner v. Stratton Fire Clay Co., 1 Bull, Ohio Ind. Com. 103.. 141, 627, 1007 Skoczlols V. Vinocur (1916), 8 N. Y. St. Dep. Rep. 443 1179 Skougstad v. Star Coal Co., Fourth Annual Report (1915), Wis. Ind. Com. 31 ~376 Slade V. Taylor (1915), 8 B. W. C. C. 65 505 Slaman v. American Mutual Lia- bility Ins. Co., 1 Mass. Ind. Ace. Bd. 433 827 Slater v. New Britain Trap Rock Co., 1 Conn. Comp. Dec. 501 .. . 585 Slattery v. Ocean Accident & Guarantee Corp., 2 Cal. Ind. Ace. Com. 511 498 Sloat V. Rochester Taxicab Co. (1916), 8 N. Y. St. Dep. Rep. 498 257 Smale v. Wrought Washer Mfg. Co., 160 Wis. 331 ; 151 N. W. 808. 181 Smelik v. Peabody Coal Co., 1 Bull. 111. Ind. Bd. 191 1058 Smith V. Astoria Marbl£,.|^^^gi^ ^^ ^. PAGK Mills (1916), 9 N. Y. St. Dep. Rep. 332 865 Smith V. Buxton, 8 B. W. C. C. 196 ; 11 N. C. C. A. 383 190 Smith V. Christopher's Market, 2 Cal. Ind. Ace. Com. 527 781 Smith V. Coles (1905), 93 L. T. 754 ; 8 W. C. C. 116 212 Smith V. Cope (1918), 6 B. W. C. C. 569 754 Smith V. Cord Taton Colliery Co. (1909), 2 W. C. C. 121. .:....,. 407 Smith V. Crescent Belting & Pack- ing Co. (Mercer Common Pleas, 1914), 37 N. J. Law J. 292. 694, 1027 Smith V. Davis & "Sons (1915) (House of Lords), 8 B. W. C. C. 313 1 afC'g 7 B. W. C. C. 138. 1131 Smith V. Englebretson, 1 Cal. Ind. Ace. Com. (Part II), 129 385 Smith V. Fife Coal Co. (1914), 7 B. W. C. C. 258. . . .- 626 Smith V. Foster (1913), 6 B. W. C. C. 498 1069 Smith V. Gold (1916), 9 N. Y. St. Dep. Rep. 376 474 Smith V. Hardman & Holden (1913), 6 B. W. C. C. 719 1012 Smith V. Hayashi Floral Store, 2 Cal. Ind. Ace. Com. 516; 11 N. C. C. A. 375 ; 12 N. C. C A. 180. 191, 507 Smith V. Horlock (1913), 6 B. W. C. C. 638 251 Smith V. Hughes (1905), 8 W. C. C. 115 1118 Smith V. Industrial Accident Com. of Cal., 26 Cal. App. 560; 147 Pac. 600 220, 221, 1076 Smith V. Israel Brothers, 1 Bull. 111. Ind. Bd. 164 1102 Smith V. Lancashire & Yorkshire Ry. Co. (1899), 79 L. T. 633; 1 W. C. C. 1 696 Smith V. Massachusetts Employes Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 217 774 fe)McPhee Stevedoring Co. TABLE OP CASES CXXXVH PAGE and Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 197. 425, 568, 1015 Smith V. Morrison (1911), 5 B. W. C. C. 161 •. 676 Smith V. Hunger Laundry Co., 1 Cal. Ind. Ace. Com. (Part I), 168 373, 532, 705, 1035 Smith V. National Sash & Door Co., 96 Kans. 816 ; 153 Pac. 533. 751 Smith V. Petrie (1913) (Scotch Court of Session), 6 B. W. C. C. 833 987 Smith V. Price, 168 App. Div. 421 ; 153 Supp. 221 ; afiE'g 1 N. Y. St. Dep! Rep. 421 257, 258 Smith V. Sierra & San Francisco Power Co., 1 Cal. Ind. Ace. Com. (Part I), 229 846 Smith V. Smith (Morris Common Pleas, 1915), 38 N. J. Law J. 344 866 Smith V. South Normanton Col- liery Co. (1903), 1 K. B. 204; 5 W. C. C. 14 468, 521 Smith V. Southern Pacific Co., 3 Cai. Ind. Ace. Com. 76 534 Smith V. Stanton Ironworks Co. Collieries (1913), 6 B. W. C. C. 239 682 Smith V. Western & A. R. Co., 67 S. E. 818 ; 134 Ga. 216 182 Smith V. Western States Portland Cement Co., 94 Kans. 501; 146 Pac. 1026 282, 296 Smith and Leishman v. Flood (1915) (Scotch Court of Ses- sion), 8 B. W. C. C. 613 930 Smolenslii v. Eastern Coal Dock Co., 000 N. Y. Law OOO ; 93 Atl. 85; 9 N. C. C. A. 531 909 Smrakar v. The Pacific Lumber Co., 2 Cal. Ind. Ace. Com. 107. . 831 Sneddon and Others v. Greenfield Coal and Brick Co. (1910), 47 Scotch L. R. 337 ; 3 B. W. C. C. 557 511 Snell V. Gross Sherwood & Heald (1913), 6 B. w. c. c. 245D/gitf/zSQi4)y PAGE Snell V. Lord Mayor and Corpora- tion of Bristol (1914), 7 B. W. C. C. 236 848, 911 Snow V. Harris, 2 Cal. Ind. Ace. Com. 348; 11 N. C. C. A. 368, 377 191, 216 Snow V. Winkler, 1 Conn. Comp. Dec. 76 154, 272 Snyder v. Goodwin, 1 Cal. Ind. Ace. Com. (Part I), 433... 854, 1053 Snyder v. Pacific Tent & Awning Co., 3 Cal. Ind. Ace. Com. 1. 330, 567, 569, 1037 Snyder v. State Liability Board of Awards (1916), 000 Ohio St. 000 ; 114 N. E. 268 1096, 1102 Socquet v. Connecticut Mills Co., 1 Conn. Comp. Dec. 653 526 Soderlund v. Union Lumber Co. (1916), 3 Cal. Ind. Ace. Com. 366 766, 781 Soderstrom v. Hartwood Lumber Co., 2 Cal. Ind. Ace. Com. 676. . 551 Sokol V. Clyde Steamship Co., 6 N. Y. St. Dep. Rep. 339. . . .528, 1062 Solloway v. Kopperud, 2 Cal. Ind. Ace. Com. 211 853 Soloski V. Strickland, 1 Conn. Comp. Dec. 564 154 Solvuca V. Ryan & Reilly Co. (1916), 000 Md. 000; 98 Atl. 675 296, 1010 Sorensen v. Gaff & Co. (1912), 6 B. W. C. C. 279 732 Sorge V. Aldebaran Co., ,3 N. Y. St. Dep. Rep. 390 699 Soria v. Marshall, 3 Cal. Ind. Ace. Com. 96 449, 952 Sorrell v. Sterling Motion Picture Co., 2 Cal. Ind. Ace. Com. 167. . 726 Southall V. Cheshire County News Co. (1912), 5 B. W. C. C. 251.. 443 Southern v. Joseph Taylor Coal Co., 1 Bull. 111. Ind. Bd. 174... 381 Southern California Hardwood & Mfg. Co. V. Adams, 1 Cal. Ind. Ace. Com. (Part II), 406 540 c. Co. V. Jensen. 000 CXXXVlll TABLE OP CASES FAOE U. S. 000; 000 Sup. Ct. 000; 1 D. Ed. (May 21, 1917) 103, 105, 109, 110, 113, 225, 226, 22T, 1045 Southern Railway Co. v. Bentley, . 56 So. 249 ; 1 Ala. App. 359. .. . 529 Southern Ry. Co. in Kentucky v. Pope's Adm'r, 119 S. W. 237; 133 Ky. 835 603 Southwestern Surety Ins. Co. v. Pillsbury (1916), 172 Cal. 768; 158 Pac. 762 440, 576, 835, 1076 Souza V. J. Stangland & Co., 2 Cal. Ind. Ace. Com. 757. ..999, 1172 Spangler v. Philbin, 2 Cal. Ind. Ace. Com. 170 347 Spears v. City of Santa Monica, 2 Cal. Ind. Ace. Com. 941 234 Speer v. Citrus Belt Racing Ass'n of Corona (1916), 3 Cal. Ind. Ace. Com. 379 924, 1167 Spellman, In re, Ohio Ind. Com. No. 33,794 ; Aug. 9, 1915 ; 11 N. C. C. A. 243 593 Spence v. W. Baird & Co. (1912), 49 Scotch L. R. 278 ; 5 B. W. C. C. 542 328 Spencer, In re, 1 Bull. Ohio Ind. Com. 179 793 Spencer v. Dowd, 1 Cal. Ind. Ace. Com. (Part II), 46 1035 Spencer v. Gibson, 1 Cal. Ind. Ace. Com. (Part II), 565 1038 Spencer v. Neil McLean and Lon- don and Lancashire Guarantee and Accident Co., 1 Cal. Ind. Ace. Com. (Part II), 84 786 Spencer v. Scanlon, 1 Conn. Comp. Dec. 280 554 Spiers v. Elderslie Steamship Co. (1909), 46 Scotch L. R. 893; 2 B. W. 0. C. 205v 267 Spivok V. Independent Sash & Door Co. (1916), 000 Cal. 000; 160 Pac. 565 30 Sponatslii, In re, 220 Mass. 526; 108 N. E. 466; 8 N. C. C. A. 1025; L. R. A. (1916), A, 333. PAGE Sponatski v. Standard Accident Ins. Co., 2 Mass. Ind. Ace. Bd. 445 443 Spooner v. Detroit Saturday Night Company, Mich. Ind. Ace. Bd., July, 1913 129 Spooner v. Detroit Saturday Night Co., 187 Mich. 125 ; 153 N. W. 657; 9 N. C. C. A. 647. .684, 1089 Spooner v. Estate of P. D. Beck- with, 000 Mich. 000; 149 N. W. 971 1129, 1130 Spottsville V. Western States Portland Cement Co., 94 Kans. 258 ; 146 Pac. 356 2^1, 1009 Spratt V. Sweeney & Gray Co., 168 App. Div. 403; 153 Supp. 505; 9 N. C. C. A. 918 ; afC'd without opinion 216 N. Y. 763 113 Spreekles Bros. Commercial Co. v. Nelson, 1 Cal. Ind. Ace. Com. (Part I), 109 755 Spring V. J. G. Miller Co., 3 Cal. Ind. Ace. Com. 4 712, 1175 Springer, Re : Op. Sol. Dep. L., p. 267 329 Stachuse v. Fidelity and Casualty Co., 2 Mass. Ind. Ace. Bd. 324. 448, 58Q Stacy, In re (1916), 000 Mass. 000; 114 N. E. 206 474 Stadtmuller v. Ehret, 6 N. Y. St. Dep. Rep. 342 1022 Stagg V. Edward Westen Tea & Spice Co., 69 S. W. 391 ; 169 Mo. 489 695 Staley v. Illinois Central R. R. Co., 268 111. 356 ; 000 N. E. 000. 220, 221, 1006, 1156 Stampick v. American Steel and Wire Co., 1 Conn. Comp. Dec. 474 378 Standing v. Eastwood " & Co. (1912), 5 B. W. C. C. 268 250 Stanley v. Aurora, E. & C. R. Co., 166 111. App 132 149 Stanley v. Wood, 6 N. Y. St. Dep. Rep. 383 428 p V. Dinnington Main TABLE OP CASES CXXXIX FAQE Coal Co. (1912), 5 B. W. C. C. 602 433 Stark V. Bates, Borland & Ayre (1916), 3 Gal. Ind. Ace. Com. 280 . . 410 Starviney v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 27 297 State V. Business Property Secur- ity Co., 87 Wash. 627 ; 152 Pac. 834 ; 11 N. C. C. A. 323 209 State V. Carroll, 000 Wash. 000; 162 Pac. 593 304, 1148 State V. Chicago, Milwauliee & Puget Sound Ry., 80 Wash. 435 ; 141 Pac. 897 80 State V. District Court of Rice County (1916), 000 Minn. 000; 159 N. W. 755 752, 753, 1041 State V. Mountain Timber Co., 75 Wash. 581; 185 Pac. 645; 4 N. C. C. A. 811 ; afC'd 243 U. S. 219. 68 . State V. Powells & Co., 000 Wash. 000 ; 162 Pac. 569 203, 256 State ex rel. Anderson v. General Accident Fire and Life Assur. Corp. (1916), 000 Minn. 000; 158 N. W. 715 1202 Stat ex rel. Anseth v. District Ct. of Koochiching County, (1916), 000 Minn. 000; 158 N. W. 713. 598, 1091, 1157 State of Nevada ex rel. G. H. Beebe v. William McMillan, aa Trasurer of the State of Nevada, 86 Nevada 388; 136 Pac. 108 81 State ex rel. Carlson v. District Court of Hennepin County, 131 Minn. 96 ; 154 N. W. 661. . . .176, 805 State ex rel. Casualty Co. of America v. Dist. Court of Blue Earth County, 000 Minn. 000; 158 N. W. 700 889 State ex rel. City of Duluth v. District Court of St. Louis County (1916), 000 Minn. 000; 158N.W.791 m&Ty State ex rel. City of NortsMlflT?." "■'' PAGE District Court, Rice County, 181 Minn. 352; 155 N. W. 103; 11 N. C. C. A. 366 945 Sate ex rel. Crookston Lumber Co. V. District Court, Beltrami County, 131 Minn. 27; 154 N. W. 509 753, 755, 797 State ex rel. Crookston Lumber Co. V. District Court of Pen- nington County, 000 Minn. 000 ; 156 N. W. 278 944, 945, 1091 State ex rel. Duluth Brewing & Malting Co. v. District Court for St. Louis County, 129 Minn. 428 ; 151 N. W. 912 ; 9 N. C. C. A. 1119 467, 630 State ex rel. Duluth Diamond Drilling Co. v. District Court of St. Louis County, 129 Minn. 428; 152 N. W. 838; 9 N. C. C. A. 1119 945, 1000, 1005, 1091, 1185 State ex rel. Garwin v. District Court, 129 Minn. 156 ; 151 N. W. 910 ; 8 N. C. C. A. 1052 888, 889 State ex rel. Gaylord Farmers Co-Operative Creamery Ass'n v. District Court of Sibley County, 128 Minn. 486; 151 N. W. 182.. 922 State ex rel. Globe Indemnity Co. V. District Court of Ramsey County, 132 Minn. 249; 156 N. W. 120 ; 11 N. C. C. A. 632. .752, 753, 1091 State ex rel. Kennedy v. District Court of Clay County, 129 Minn. 91 ; 151 N. W. 530 ; 8 N. C. C. A. 478 86S State ex rel. Klemer v. District Court of Rice County (1916), 000 Minn. 000; 158 N. W. 825. 1059, 1091, 1109 State ex rel. London and Lan- cashire Guar, and Ace. Co. v. District Court of Hennepin County (1916), 000 Minn. 000; 158 N. W. 615 1175 . .State «^rel. Maryland Casualty ™"^'S'o?'^Cistrict Court of Ramsey cxl TABLE OP CASES PAGE County (1916), 000 Minn. 000; 158 N. W. 798 783 State ex rel. Munding v. Indus- trial Commission of Ohio, 111 N. E. 299; 92 Ohio St. 434. 805, 1161 State ex rel. Nelson-Spelliscy Co. V. District Court of Meeker County, 128 Minn. 221; 150 N. W. 623 ; 11 N. 0. C. A. 636. . .66, 176, 509, 1091 State ex rel. People's Coal & Ice Co. V. District Court of Ramsey County, 129 Minn. 502; 153 N. W. 119; 9 N. C. C. A. 129; L. R. A. (1916), A, 344, n 661 Stat ex rel. Pratt v. City of Seat- tle, 73 Wash. 396; 132 Pac. 45. 68, 81, 235 State ex rel. Splady v. District Court of Hennepin County, 128 Minn. 338 ; 151 N. W. 123 775 State ex rel. Varchmin v. District Court of Ramsey County (1916), 133 Minn. 265; 158 N. W. 250 785 State ex rel. Virginia & Rainy Lalie Co. v. District Court of St. Louis County, 128 Minn. 43 ; 150 N. W. 211; 7 N. C. C. A. 1076 134, 146, 1091 State ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 N. B. 602; 1 N. C. C. A. 30; 39 L. R. A. (N. S.) 694 68 State Compensation Ins. Fund v. Breslow, 1 Cal. Ind. Ace. Com. (Part II), 194 760 State Compensation Ins. Fund v. Ernest, 1 Cal. Ind. Ace. Com. (Part II), 268 1153 State Compensation Ins. Fund v. Jacobsen, 1 Cal. Ind. Ace. Com. (Part II), 311 1154 State Compensation Ins. Fund v. Lemon, 2 Cal. Ind. Ace. Com. 452 489, 1008 State Workmen's Compensation Commission (Dale v. Saun- Digitized by PAGE ders), 218 N. T. 59; 112 N. E. 571 174 Statham v. Galloways, Limited, 2 W. C. C. 149 602 Steamboat Co. v. Chase, 16 Wall. 522, 534 228, 230 Steel V. Cammell, Laird & Co. (1905), 7 W. C. C. 9. . .318, 323, 404 Steers (Henry), Inc. v. Dunne- wald, 85 N. J. Law 449; 89 Atl. 1007; 4 N. C. C. A. 676 1041 Steiman v. Anshi Sfard, 2 Cal. Ind. Ace. Com. 944 169 Steinat v. German General Be- nevolent Soc, 1 Cal. Ind. Ace. Com. (Part II), 280 387 Steiner v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd. 510 159 Stelling V. State of California Naval Militia (1916), 3 Cal. Ind. Ace. Com. 341 236 Stenberg v. Oliver Salt Co. (1916), 3 Cal. Ind. Ace. Com. 295 574 Stephens v. Clark, 2 Cal. Ind. Ace. Com. 178; 11 N. C. C. A. 715. 410, 706, 772, 807, 950, 1037, 1200 Stephens v. Dudbridge Ironworks Co. (1904), 6 W. C. C. 48 291 Stephens v. Vickers (1913), 6 B. W. C. C. 469 1074 Stephenson v. Rossall Steam Fishing Co. (1915), 8 B. W. C. C. 209 251 Sterling v. Interredian Co., 2 Cal. Ind. Ace. Com. 192 404, 610 Sterling v. Western Union Tel. Co., 5 N. Y. St. Dep. Rep. 445. . 259 Stertz V. Industrial Insurance Commission (1916), 91 Wash. 588; 158 Pac. 256 69, 182, 304, 510, 591, 992 Stetz V. Mayer Boot & Shoe Co., 163 Wis. 151; 156 N. W. 971. 232, 314, 1149 Stevens v. Hilman's Department Store, 1 Bull. 111. Ind. Bd. 17.. 205 Microsoft® TABLE OB CASES Cxli PAGE Stevens v. Insoles (1911), 5 B. W. C. C. 164 929 Stevens v. Tittle, 2 Cal. Ind. Ace Com. 145 164 Stevenson v. Illinois Watch Case Co., 186 III. App. 418 ; 000 N. B. 000; 5 N. C. C. A. 858 773, 875 Stevenson v. Union Metallic Cart- ridge Co., 1 Conn. Comp. Dec. 621 522 Stewart v. Pacific Mall Steamship Co., 2 Cal. Ind. Ace. Com. 557. . 938 Stewart v. Wilsons & Clyde Co. (1903), 5 Falc. 120 439 Stickley, In re, 219 Mass. 513 ; 107 N. E. 350; 11 N. C. C. A. 431. . .1086 Stickley v. Royal Indemnity Co., 2 Mass. Ind. Ace. Bd 248 888 Stifura v. Pressed Steel Car Co., Pa. Workmen's Compensation Bd., July 20, 1916 (unreported). 1161 Stites V. Universal Film Mfg. Co., 2 Cal. Ind. Ace. Com. 653; 12 N. C. C. A. 1033 143, 233, 537, 902 Stith, In re, 1 Bull Ohio Ind. Com. 67 351 Stockwell V. Waymire, 1 Cal. Ind. Aca Com. (Part II), 225... 409, 576 Stoll V. Ocean Shore Railroad Co., 2 Cal. Ind. Ace. Com. 102.. 950, 1009 Stoll V. Pacific Coast Steamship Co. (U. S. Dist. Ct, Dist Wash.), 205 Fed. 169 68 Stonaker v. Jones & Delaney, 2 Cal. Ind. Ace. Com. 831 144 Stone V. F. L. Smith Co. (1916), 3 Cal. Ind. Ace. Com. 365 449 Stone V. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 470 427 Stone V. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 714 774 Stopyra, In re, 1 Bull. Ohio Ind. Com. 92 561 Stormont v. Bakersfield Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 533 429,577,720, 894, 1065 .Stori,.Ui.Y.Pv.luth,^..S,g^^^||j^^^ PAGE Co. (1916), 000 Mich. 000; 160 N. W. 415 30 Stoughton Wagon Co. v. Myre, 163 Wis. 132 ; 157 N. W. 522 860 Stroewer v. The Aerogen Gas Co. (1913), 6 B. W. C. C. 576 1074 Strom V. Postal Telegraph-Cable Co., 271 111. 544 ; 111 N. E. 555 ; 12 N. C. C. A. 843 65 Stuart V. Nixon & Bruce (1901), 3 W. C. C. 1 922 IStuder, In re, Ohio Ind. Com. No. 109,262, Nov. 16, 1915; 12 N. C. C. A. 906 523 Sturdivant v. Pillsbury (1916), 172 Cal. 581 ; 158 Pac. 222 269 Sturgis V. Boyer, 24 How. 123 147 Suburban lee Co. v. Industrial Board (1916), 274 111. 630; 113 N. E. 979 220, 678, 953, 1082 Sudell V. Blackburn Corporation (1910), 3 B. W. C. C. 227. ...... 242 Sugar V. Atlas Taxicab Co., 1 Cal. Ind. Ace. Com. (Part II), 34; 12 N. C. C. A. 486 '... 540 Suhr & Co. V. State Compensation Insurance Fund, 2 Cal. Ind. Ace. Com. 717 742, 999 Suleman v. Owners of the " Ben Lomond" (1909), 2 B. W. C. C. 499 892 Sulenta v. Otis Elevator Co., 1 Cal. Ind. Ace. Com. (Part II), 486 866 Sullivan, In re, 105 N. B. 463 ; 218 Mass. 141 ; 5 N. C. C. A. 735 ; L. R. A. (1916), A, 378, n : 815 Sullivan v. Chicago, M. & St. P. Ry. Co. (1916), 163 Wis. 583; 158 N. W. 321 27, 223 Sullivan v. Fitzgerald, Conn. Comp. Com., Fifth Dist, Wil- liams, Com'r, Oct. 26, 1916 (un- reported) 178 Sullivan v. Industrial Engineer- ing Co., 6 N. Y. St. Dep. Rep. 401 362, 619 Sullivan V. Industrial Engineer- Microsoft® cxlii TABLE OF CASES PAGE ing Co., 173 App. Div. 65; 158 Supp. 970 361, lOSl Sullivan v. Preston, 000 App. Dlv. 000; 163 Supp. 692 140 Sullivan v. Baisch Improvement Co. (1916), 3 Cal. Ind. Aec. Com. 262 513 Sullivan v. Rolph Navigation and Coal Co. (1916), 3 Cal. Ind. Ace. Com. 226 911 Sullivan v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 453 847 Summerlee Iron Co. v. Freeland (1913), 6 B. W. C. C. 255 1001 Summers v. National Tent and Awning Co., 2 Cal. Ind. Ace. Com. 778 147 Summerville v. Jack De Bella & Co., 1 Cal. Ind. Ace. Com. 558; 12 N. C. C. A. 189 554 Sundine (In re) v. F. L. Dunne & Co., 105 N. E. 433 ; 218 Mass. 1 ; 5 N. C. C. A. 616 ; L. R. A. (1916) , A, 318, n 273, 475 Sundine v. London Guarantee and Accident Co., 1 Mass. Ind. Ace. Bd. 491 474 Superior v. Industrial Commission of Wisconsin, 160 Wis. 541 ; 152 N. W. 151 ; 8 N. C. C. A. 960. . . 236 Surgess v. Jewett Refrigerator Co. (1916), 8 N. Y. St. Dep. Rep. 411 '. 339 Susznik v. Alger Logging Co., 76 Oreg. 189; 147 Pac. 922.... 127, 480 Sutter, In re. Bull. Ohio Ind. Com. 147 474 Sutton V. Wurster Construction Co., 2 Cal. Ind. Ace. Com. 696. .1178 Swain v. Pacific Telephone' and Telegraph Co., 2 Cal. Ind. Ace. Com. 402 724 Swank v. Chanslor-Canfield Mid- way Oil Co., 2 Cal. Ind. Ace. Com. 318 538, 539 Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433. .700, 725, 879 Swart V. Panama California Ex- position Co. and Maryland Digitized by PAGE Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 50 372 Swartz V. Casualty Co. of America, 2 Mass.i Ind. Aec. Bd. 728 356 Swickard v. Arrow Motor Cartage Co., 1 Bull. 111. Ind. Bd. 172 867 Swinbank v. Bell Bros. (1911), 5 B. W. C. O. 48 434 Symmonds v. King (1915), 8 B. W. C. C. 189 504 T TafC Vale Railway Co. v. Lane (1910), 3 B. W. C. C. 297 1117 Tallman v. Hart Construction Co., 1 Cal. Ind. Ace. Com. (Part II), 568 ., 141 Tamulynas v. U. S. Fidelity and Guaranty Co. '(1914), 3 Mass. Ind. Ace. Bd. 672; 12 N. C. C. A. 898 638 Tamworth Colliery Co. v. Hall (1911), 4 B. W. C. C. 313 915 Tank v. City of Milwaukee, Third Annual Report (1914), Wis. Ind. Com. 80 385, 647 Tarango v. McCombs, 3 Cal. Ind. Ace. Com. 63 765, 788 Tarr v. Stockton State Hospital, 2 Cal. Ind. Ace. Com. 565. . .335, 585 Tartar v. Associated Oil Co., 2 Cal. Ind. Ace. Com. 845 940 Tatta V. Capitol City Lumber Co., 1 Conn. Comp. Dec. 161.. 1058, 1107 Taylor, Re: Op. Sol. Dep. L., p. 542 701 Taylor v. Bolckow, Vaughan & Co. (1911), 5 B. W. O. C. 130. . 328 Taylor v. Cripps (1914), 7 B. W. C. C. 623 997 Taylor v. Federal Realty Co., 1 Cal. Ind. Aec. Com. (Part II), 506 631 Taylor v. Jones (1907), 1 B. W. C. C. 3 512 Taylor v. Kissel Kar Branch, 1 Cal. Ind. Aec. Com. (Part II), 322 710 IVIicrosoft® TABLE OP OASES cxliii FAQE Taylor v. New York Supply Co., 1 Conn. Comp. Dec. 182 186 Taylor v. Nicholson & Son (1915), 8 B. W. C. C. 114 934 Taylor v. Seabrook, 87 N. J. Law 407, 94 Atl. 399 ; 11 N. C. C. A. TIO 563, 742, 764, 1050 Taylor v. Spreckles, 2 Cal. Ind. Ace. Com. 79 1053, 1141 Taylor v. Sulzberger & Sons Co. (1916), 98 Kans. 169; 157 Pae. 435 782 Taylor v. Ward & Co. (1914), 7 B. W. C. C. 441 1048 Taylor & Co. v. Clark (1914) House of Lords), 7 B. W. C. C. 871 842 Taylorsen v. Framwellgate Coal & Coke Co. (1913), 6 B. W. C. C. 56 1036 Telford v. Healy-Tlbbitts Con- struction Co., 3 Cal. Ind. Aec. Com. 41 348, 829, 939, 1043 Tennant v. Ives, 2 Cal. Ind. Ace. Com. 188 578, 830 Tennessee Coal Co. v. George, 233 U. S. 354; 34 Super. Ct. 587; 58 L. Ed. 000 90 Terlecki v. Strauss & Co., 36 N. J. Law J. 185; 85 N. J. Law 454; 89 Atl. 1023 ; 4 N. C. C. A. 584. . 518 Testa V. Burns Co. (1916), 9 N. X. St. Dep. Rep. 277 451 Thaekway v. Connelly and Sons (1909), 3 B. W. C. C. 37; 11 N. C. C. A. 183 1037 Thayer, Re: Op. Sol. Dep. L., p. 266 400 Thayne v. Gray & Cd. (1915), 8 B. W. C. C. 17 1114 Thaxter v. Thaxter, 1 Cal. Ind. Ace. Com. (Part II), 196. .269, 1170 Theroux v. Shore Line Electric Railroad Co., 1 Conn. Comp. Dec. 667 619 Therriault v. England, 116 Pac. 581; 43 Mont. 376 omfzecP^Y PAGE Thimmes, In re, Ohio Ind. Com. No. 94,071 ; July 20, 1915 ; 12 N. C. C. A. 381 487 Thoburn v. Bedlington Coal Co. (1911), 5 B. W. C. C. 128 397 Thomas v. Fairbairn, Lawson & Co. (1911), 4 B. W. C. C. 195. 845, 884 Thomas v. Wisconsin Central Ry. Co., 122 N. W. 456; 108 Minn. 485; 23 L. B. A. (N. S.) 954... 524 Thompson v. Ashington Coal Co. (1901), 3B. W. C. C. 21; 11 N. C. C. A. 505 434 Thompson v. Banning Gas and Lighting Co., 2 Cal. Ind. Ace. Com. 571 ; 12 N. C. C. A. 327. . . 384 Thompson v. Employers Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 145; 12 N. C. C. A. 561. . . . 652 Thompson v. Gould & Co. (1910), A. C. 409; 103 L. T. 81; 3 B. W. C. C. 392 1003 Thompson v. Johnson (1914), 7 B. W. C. C. 479 813 Thompson v. Nautilus Steamship Co., The Policyholder, July 10, 1912, p. 553 637 Thompson v. Newton (1914), 7 B. W. C. C. 703 817 Thompson v. North Eastern Ma- rine Engineering Co. (1914), 7 B. W. C. C. 49 9.31 Thompson v. Twiss, 90 Conn. 444. 982 Thompson v. Parker and Coleman (Morris Common Pleas, 1915), 38 N. J. Law J. 368 199, 563 Thompson v. Twiss, 90 Conn. 444 ; 97 Atl. 328. . . .29, 137, 196, 197, 972, 1079 Thompson v. Van Cleef Brothers, 1 Bull. 111. Ind. Bd. 107 861 Thompson v. Vastbinder, 4 N. T. St. Dep. Rep. 363 114, 257 Thomson v. Flemington Coal Co. (1911), 48 Scotch L. R. 740; 4 B. W. C. C. 406 608 Thorn V. Humm & Co. (1915), 8 ... B. W„G, C. 190 698 Microsoft® cxliv ^ TABLE OF CASES PAGE Throm v. Malley (Dec. 4, 1916) . . 969 "Throop V. Union Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 111 1143 Ticzkus V. Standard Office Co., 1 Bull. 111. Ind. Bd. 176 804 Ticer v. Los Angeles Creamery- Co., 2 Cal. Ind. Ace. Com. 602. 834 Tiedeman v. Chelsea Fbire Mills (1916), 9 N. Y. St. Dep. Rep. 306 r 669 Tierney v. Houghton & Button Co., Mass. Ind. Ace. Bd. No. 1764, May 27, 1915 ; 11 N. C. C. A. 236 589 Tillman v. Sperry Engineering Co., 1 Conn. Comp. Dec. 408. 446, 452 Tilton, In re, Ohio Ind. Com. No. 1207, Aug. 27, 1915 ; 12 N. C. C. A. 388 510 Timpson v. John Mowlem & Co. (1915), 8 B. W. C. C. 178 418 Tlmmins v. Leeds Forge Co., 2 W. C. C. 10 438, 439 Tinkle v. St. Louis & S. F. R. Co., 110 S. W. 1086 ; 212 Mo. 445. . . . 185 Tirre v. Bush Terminal Co., 5 N. X. St Dep. Rep. 427; aflf'd 172 App. Div. 386; 158 Supp. 883; 12 N. C. C. A. 64 618, 742, 777, 1028, 1027, 1094 Tischman v Central R. Co. of New Jersey, 84 N. J. Law 527; 87 Atl. 144 ; 4 N. O. C. A. 736. ... . 776 Tishler v. Fidelity and Casualty Co. of N. Y., 1 Mass. Ind. Ace. Bd. 6 273, 1170 Tishler v. Frankfort Gen. Ins. Co., 1 Mass. Ind. Ace. td. 4. . . .273, 1170 Titus V. Arnold (1916), 3 Cal. Ind. Ace. Com. 282 400, 645 Tobin V. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 612; 11 N. C. C. A. 550. 1193 Tobin V. City and County of San Francisco (1916), 3 Cal. Ind. Ace. Com. 314 452, 688 Digitized by PAGE Todd V. Drouet & Page Co., 3 N. Y. St. Dep. Rep. 351 ; 12 N. C. C. A. 178 184, 636 Tomalin v. S. Pearson & Son (1909), 100 L. T. 685; 2 B. W. C. C. 1 83, 84 Tomassi v. Christensen, 171 App. Div. 284 ; 156 Supp. 905 244 Tomasi v. Mazzotti & Butini, 2 Cal. Ind. Ace. Com. 543 759 Tombs V. Bomford, 5 B. W. C. C. 338 189 Tomlinson v. Garratt's (1913), 6 B. W. C. C. 489 621, 1048 Tompkins v. Darwin & Miller, 6 N. Y. St. Dep. Rep. 325 114, 246 Toney v. Williams, 1 Cal. Ind. Ace. Com. (Part II), 348... 387, 841, 1036 Topping V. Ellis, 2 Cal. Ind. Ace. Com. 431 254 Totten V. Irish (1916), 9 N. Y. St. Dep. Rep. 333 530 Towle, Re: Op. Sol. Dep. L., p. 565 804 Toy V. Maryland Casualty Co., 2 Mass. Ind. Ace. Bd. 147 572 Tracy v. De Laval Separator Co. (1916), 7 N. Y. St. Dep. Rep. 385 373 Trammell, J. V., Re : Op, Sol. Dep. C. & L., p. 206 321 Travelers Ins. Co. v. A. G. Spauld- ing & Bros., 1 Cal. Ind. Ace. Com. (Part II), 575 506, 708 Travis v. Hobbs, Wall & Co., 2 Cal. Ind. Ace. Com. 506 136, 143 Traynor v. Robert Addie & Sons (1910), 48 Scotch L. R. 820; 4 B. W. C. C. 357 623 Treadwell v. Marks, 3 Cal. Ind. Ace. Com. 3 596 Treder v. Klopstock Brothers, 2 Cal. Ind. Ace. Com. 417 826 Treiber v. Weibel Brewing Co., 1 Conn. Comp. Dee. 547 968, 1144 Trelman, Re: Op. Sol. Dep. C. & L., p. 166 319 IVIicrosoft® TABLE OV OASES cxlv PAGE Treiman, Re: Op. Sol. Dep. L., p, 204 405 Tremblay v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 156 815 Trenholm v. Hough, 1 Oal. Ind. Ace. Com. (Part II), 260; 11 N. C. C. A. 373 194 Trierweiler v. Gleis (1916), 3 Cal Ind. Ace. Com. 375 226 Trigg V. Vauxhall Motors (1914), 7 B. W. C. C. 463 1034 Trimble v. Hill, L. R., 5 App. Cas. 342 975 Trim Joint District School Board of Management v. Kelly (1914), A. C. 667 324 Trobitz v. Hugh M. Cameron, 1 Cal. Ind. Ace. Com. (Part II), 550 203 Trodden v. J. McLennard & Sons (1911), 4 B. W. C. C. 190 49 Troth V. Millville Bottle Works (1916), 000 N. J. Law 000; 98 Atl. 435 ; aff 'g 86 N. J. Law 558 ; 91 Atl. 1031 67, 284 Truby v. Jackson, 3 Cal. Ind. Ace. Com. 69 386, 575 Trueblood v. County of Los Angeles, 2 Cal. Ind. Ace. Com. 914 703 Truesdale v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 360 555 Trumbull v. Trumbull Motor Car Co., 1 Conn. Comp. Dec. 304, 106, 698, 1155 Tucker, In re, 1 Bull. Ohio Ind. Com. 86 523 Tucker v. Buffalo Cotton Mills, 57 S. E. 626 ; 76 S. C. 539 162 Tucker v. Oldbury Urban District Council (1912), 5 B. W. C. C. 296 1011 Turgeon v. Fox Company, 1 Cal. Ind. Ace. Com. (Part II), 68, 507, 701 Turley v. Bible Institute Building Co., 1 Cal. Ind. Ace. Com. (Part II), 472 -DigitizecnB^ PAGE Tumbull V. Vickers (1914), 7 B. W. C. C. 396 930 Turner v. Bell and Sons (1910), 4 B. W. C. C. 63 1071 Turner v. Brooks & Doxey (1909), 3 B. W. C. C. 22 412 Turner v. Miller and Richards (1910), 3 B. W. C. C. 305 769 Turner v. Oil Pumping and Gaso- line Co., 2 Cal. Ind. Ace. Com. 471 137, 141, 1177 Turner v. Port of London Author- ity (1913), 6 B. W. C. C. 23; 11 N. C. C. A. 797 910 Turner v. Santa Cruz, 2 Cal. Ind. Ace. Com. 917 333, 893, 951, 1025, 1199 Turner t. S. S. "Haulwen" (1915), 8 B. W. C. C. 242 183 Turnquist v. Hannon, 219 Mass. 560 ; 107 N. E. 443 1188 Tuttle V. Embury-Martin Lumber Co. (1916), 000 Mich. 000; 158 N. W. 875 243 Tutton V. Owners of Steamship "Majestic" (1909), 100 L. T. 644 ; 2 B. W. C. C. 346 1122 Twoomey v. Royal Indemnity Co., 2 Mass. Ind. Ace. Bd. 540 453 Tyne Tees Shipping Co. v. Whitlock (1913), 6 B. W. C. C. 559 1101 Tyrrell, Re: Op. Sol. Dep. L., p. 546 701 U. Udeii V. J. Wagner, Peterson & Wilson, 2 Cal. Ind. Ace. Com. 139 ; 11 N. C. C. A. 58 584 Udey V. City of Winfield, 97 Kans. 279 ; 155 Pac. 48 234 Uhl V. Guarantee Construction Co. (1916), 8 N. Y. St. Dep. Rep. 479 442 Uhl V. Guarantee Construction Co. (1916), 174 App. Div. 571; 161 Supp. 659 ; aff'g 8 N. Y. St. Dep. Rep. 479 '. 338, 1095 Ma*bsY>/?®*'"twoo<3i ^^^^ (1917), cxlvi TABLE OF GASES PAGE 177 App. Div. 41; 163 Supp. 744 261, 1169 Uhlenburgh v. Prince Albert Lum- ber Co. (1913) (Saskatchewan Supreme Ct), 7 B. W. C. C. 1028 1028, 1074 Ulrich V. Lenox Coat and Apron Supply Co., 3 N. Y. St. Dep. Rep. 380 257 Ungar v. Howell (1914), 5 B. W. C. C. 36 937 Ungar v. Supreme Realty Co. (1916), 9 N. Y. St. Dep. Rep. 343 659 United Colleries v. Hendry (1909), 101 L. T. 109; A. O. (H. L.) 383 ; 2 B. W. C. C. 308. . 803 United States, etc., Ass'n v. New- man, 84 Va. 52 399 United States Board & Paper Co. V. Landers, 47 Ind. App. 315 ; 93 N. E. 232 123 United States Cement Co. v. Koch, 85 N. E. 490; 42 Ind. App. 251 632 United States Fidelity & Guar- anty Co. V. Kurschner, 1 Cal. Ind. Ace. Com. (Part II), 136. . 388 United States Fidelity and Guar- anty Co. V. Pillsbury, 000 Cal. 000; 162 Pac. 638 1201 United States Fidelity and Guar- anty Co. V. Rawling, 1 Cal. Ind. Ace. Com. (Part II), 64 387 United States Fidelity and Guar- anty Co. V. Rosenbach, 1 Cal. Ind. Ace. Com. (Part II), 92. . . 729 United States Fidelity and Guar- anty Co. V. Silk, 1 Cal. Ind. Ace. Com. (Part II), 50 841 United States Fidelity and Guar- anty Co. V. Williams, 1 Cal. In^. Ace. Com. (Part II), 52 841 United States Mutual Accident Ins. Ass'n v. Barry (1888), 131 U. S. 100 439 United States Steel Products Co. V. Pete Mellonas, 1 Cal. Ind. Ace. Com. (Part I), 202 873 Digitized by FAOE Unodeskia v. SeovlU Mfg. Co., 1 Conn. Comp. Dee. 32 336, 575 Uphoff V. Bruner, 1 Bull. 111. Ind. Bd. 9 212 Uphoff V. Industrial Board of Il- linois, 111 N. E. 128; 271 111. 312 312, 1080 Upper Forest and Worcester Steel and Tinplate Co. v. Grey (1910), 3 B. W. C. C. 424 843 Upper Forest and Western Steel and Tinplate Co. v. Thomas (1909), 2 B. W. C. C. 414 1126 Upton V. Stahlhuth, 2 Cal. Ind. Ace. Com. 531 486 Utieres v. Otto, 2 Cal. Ind. Ace. Com. 631 820 V. Valente r. Captain N. Fay, 2 Cal. Ind. Ace. Com. 502; 12 N. C. C. A. 73 526 Valentine, Matter of, v. Smith, Angevine & Co., 2 N. Y. St. Dep. Rep. 460; aff'd 168 App. Div. 403; 154 Supp. 1148; 9 N. C. C. A. 918; aff'd 216 N. Y. 763 113 Vamplew v. Parkgate Iron & Steel Co. (1903), 88 L. T. 756; 5 W. C. C. 114 152 Vance v. Vandercook, 170 U. S. 438 229 Van Dalsem v. D. Di Flore and Pacific Coast Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 229 345 Van Wetsel v. The Manhattan Hand Laundry, 3 Cal. Ind. Ace. Com. 100 515 Van Winkle v. G. S. Johnson Co., 2 Cal. Ind. Ace. Com. 212 639 Varesick v. British Columbia Copper Co. (1906), 12 B. C. 286 ; 1 B. W. C. C. 446 793 Varine v. Sargeant, 1 Conn. Comp. Dec. 194 522 Vasche v. Vasche, as Executrix, 3 Cal. Ind. Ace. Com. 89.280, 674, 899 IVIicrosoft® TABLE OF OASES cxlvii PAGE Vassor v. Atlantic Coast Line R. Co., 54 S. B. 849; 142 N. C. 68; 7 L. R. A. (N. S.) 950 124 Vauglian v. Booth, 13 Eng. L. & Eq. 351 206 Vaughans Seed Store v. Simonini, 000 111. 000 ; 114 N. B. 163 208 Veber v. Massachusetts Bonding and Ins. Co. (1916), 224 Mass. 86 ; 112 N. E. 485 761 Vennen v. New Dells Lumber Co., 161 Wis. 370; 154 N. W. 640; 10 N. C. C. A. 729; L. E. A. (1916), A, 273 453, 688 Vercourere -v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 185 826, 1142 Verderame v. Blenner, 1 Conn. Comp. Dec. 325 1062 Vereeke v. City of Grand Rapids, 000 Mich. 000; 151 N. W. 723, 1000, 1088 Verkamp, In re, 1 Bull. Ohio Ind. Com. 123 ; 12 N. C. C. A. 907. ... 607 Verkamp, In re, Ohio Ind. Com., No. 39,943, Sept. 3, 1914; 12 N. C. C. A. 907 684 Vernon v. A. B. Keyes, 1 Cal. Ind. Ace. Com. (Part II), 526 440 Vickers Sons and Maxim v. Evans (1910), 3 B. W. C. C. 403 1118 Victor Chemical Works v. Indus- trial Board of Illinois, 274 111. 11; 113 N. B. 173. .65, 184, 197, 953, 1018, 1045, 1082 Victorino Morales: Op. Sol. Dep. C. & L., p. 230 620 Vidal V. Consolidated Pacific Ce- ment & Plaster Co., 1 Cal. Ind. Ace. Com. (Part II), 5491 869 Viglione v. Montgomery Garage Co., 2 Cal. Ind. Ace. Com. 107, 452, 704 Viita V. Dolan, 000 Minn. 000; 155 N. W. 1077 ; 11 N. C. C. A. 753 1147 Villar V. Gilbey (1907), A. C. 139 Dlgm&-d SfMicrosaft®' PAGE Vlllet V. Nevada-California Power Co. (1916), 3 Cal. Ind. Ace. Com. 362 637, 993 Vincent v. Louis, 2 Cal. Ind. Ace. Com. 168 215 Viotti V. De Bisschop, 1 Conn. Comp. Dec. 195 794 Vishney v. Empire Steel and Iron Co. (Warren Common Pleas, 1914), 37 N. J. Law J. 217 351 Vishney v. Empire Steel & Iron Co., 87 N. J. Law 481; 95 Atl. 143 ; 11 N. C. C. A. 427 881, 889 Vitale V. Fidelity and Deposit Co., 2 Mass. Ind. Ace. Bd. 425, 834, 861 Vitovitch V. Empire Steel and Iron Co. (Morris Common Pleas, 1915), 38 N. J. Law J. 315 1160 Vittorio V. California Pottery Co., 3 Cal. Ind. Ace. Com. 26. . . 650 Voege V. Raulf Co., Third Annual Report (1914), Wis. Ind. Com., p. 40 833 Vojacek v. A. J. Schlaefer (1915), Fourth Annual Report, Wis. Ind. Com. 8 179 Vollmar v. " E. C. Rockwell, and Sackett (1916), 3 Cal. Ind. Ace. Com. 195 538 Von Ette, In re, 223 Mass. 56 ; 111 N. E. 696; 12 N. C. C. A. 551, 518, 1019, 1032, 1035, 1085, 1088 Voorhees v. Stickle (Morris Com- mon Pleas, 1915), 38 N. J. Law J. 143 870, 1185 Voorhees v. Smith Sehoonmaker Co., 86 N. J. Law 500; 92 Atl. 280; 7 N. C. C. A. 646. .337, 572, 573 Vrabliek v. Radtke (Mercer Com- mon Pleas, 1915), 38 N. J. Law J. 267 733, 873 Vreeland v. Cogswell & Boulter Co. (Essex Common Pleas, 37 N. J. Law J. 57 530 cxlviii TABLE OB- CASES W. PAGE Wagen v. Minneapolis & St. L. E. Co., 80 Minn. 02; 82 N. W. 1107 124 Wagner v. American Bridge C!o., 172 App. Div. 876; 158 Supp. 1043' 300, 309 Waiswell v. General Accident Assur. Corp., 1 Mass. Ind. Ace. Bd. 307 427 Waite V. Pennsylvania Rd. Co., 3 N. Y. St. Dep. Rep. 364 473 Waites v. Franco-British Exhibi- tion (Incorporated) (1909), 2 B. W. C. C. 199 265 Wajteniak v. Pratt & Cady Co., Inc., 1 Conn. Comp. Dec. 545. 447, 678 Waliefleld v. State, 41 Tex. 556. .. 206 Waldman v. M. D. Hermann and Employers' Liability Assur. Corp., 1 Cal. Ind. Ace. Com. (Part II), 82 381 Wallier v. Clyde Steamship Co., 215 N. X. 529; 109 N. E. 604, 226, 299 Walker v. Crystal Palace Football Club, 101 L. T. 645 ; 3 B. W. C. C. 53 174 Walker v. Hockney Brothers (1909) , 2 B. W. C. C. 20, . . .318, 374 Walker v. Lilleshall Coal Co. (190O), 81 L. T. 769; 2 W. C. C. 7 435 Walker v. Mosson Co., 3 N. Y. St Dep. Rep. 362 678, 890 Walker v. Mullins (1908), 42 Irish L. T. 168; 1 B. W. C. C. 211 434 Walker v. Murrays (1911),( 48 Scotch L. R. 741 ; 4 B. W. C. C. 409. . . 439 Walker v. Santa Clara Oil and Development Co.', 2 Cal. Ind. Ace. Com. 5... '.159, 999, 1167, 1173 Walker v. Skillman (Mercer Com- mon Pleas), 38 N. J. Law J. 269 918, 920 Wall V. Steel (1915), 8 L. W. C. ^•i°^i -Digitizidhy PAGE Wallace v. National Guard of California, 3 Cal. Ind. Ace. Com. 94 236, 663, 913 Wallace v. Pratchner, 2 Cal. Ind. Ace. Com. 644 196, 270 Wallace v. Regents of the Univer- sity of California, 1 Cal. Ind. Ace. Com. (Part II), 97 1035 Wallace v. Tracy Brothers Co., 1 Conn. Comp. Dec. 156 814, 878 Wallack v. Sorenson, 1 Conn. Comp. Dec. 197 918, 1028 Waldeck, In re, Ohio Ind. Com. No. 124,893, Oct. 26, 1915; 12 N. C. C. A. 899 530 Wallis v. Andrew G. Soutter & Co. (1915), 7 B. W. C. C. 130. . .1028 Wallis & Sons v. M'Neice (1912) (Irish Court of Appeal), 6 B. W. C. C. 445 1116 Walsh, J. J., Re: Op. Sol. Dep. C. & L., p. 193 444 Walsh V. Hayes (1909), 43 Irish L. T. 114 ; 2 B. W. C. C. 202. ... 268 Walsh V. Locke & Co. (1914), 7 B. W. C. C. 117 ; 6 N. C. C. A. 675. . 834 Walsh V. Turner Center Dairying Ass'n, 223 Mass. 386 ; 111 N. E. 889 27, 30 Walsh V. Waterford Harbour Commissioners (1913) (Irish Court of Appeal), 7 B. W. C: C. 960 155 Walters v. Brune, 2 Cal. Ind. Ace. Com. 292 331, 569 Walters v. McGovern, 4 N. Y. St. Dep. Rep. 361 164 Walters v. Staveley Coal & Iron Co. (1911), 105 L. T. 119; 4 B. W. C. C. 303 468, 476 Walther v. American Paper Co. (1916), 000 N. J. Law 000; 99 Atl. 263 ; rev'g 98 Atl. 264 ; 000 Law 000 599 Walton, Re (Mercer Common Pleas, May 10, 1912), 35 N. J. Law J. 184 924 M)^d'ff^°'^t'^ ^''■''y- Feather- TABLE OB' CASES cxlix PAGE Stone & Hemsworth Colliery (1912), 5 B. W. C. C. 640 1114 Walton V. Tredegar Iron and Coal Co. (1913), 6 B. W. C. C. 592. . 482 Waltz V. San Joaquin Light and Power Corp., 1 Cal. Ind. Ace. Com. (Part II), 506 1197 Waltzer v. Martinez, 2 Cal. Ind. Ace. Com. 669 952 Walz V. Holbrooli, Cabot & Rol- lins Corp., 170 App. Div. 6 ; 155 Supp. 703 ...744, 753, 777, 791, 800 Wambold v. Fox Ice Co., Fourth Annual Report (1915), Wis. Ind. Com. 36 286 Wanck v. A. WyckofE & Son Co., 5 N. Y. St. Dep. Rep. 414 263 Warby v. Plaistowe & Co. (1910), 4 B. W, C. C. 67 1132 Ward V. London and North West- ern Ry. Co. (1901), 3 W. C. C. 192 844 Ward V. Miles (1911), 4 B. W. , C. C. 182 845 Ward V. Ward (1916), 3 Cal. Ind. Ace. Com. 220 602 Warden v. Tosemite Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 518 789 Ware, Re: Op. Sol. Dep. L., p. 335 468 Waring v. Gillow (Ferguson, third party) (1909), 2 B. W. d. C. 474 896 Wamcken v. Richards Moreland 6 Son (1908), 100 L. T. 12; 2 B. W. C. C. 350 1122 Warner v. Couchman (1911), 5 B. W. 0. C. 177 ; aff'g 4 B. W. C. C. 32 ; 1 N. C. C. A. 51.374, 445, 4.64 Warren v. Hedley's Colliery Co. (1913), 6 B. W. C. C. 136 520 Warwick Steamship Co. v. Calla- ghan (1912), 5 B. W. C. C. 283.1115 Washburn v. The California Port- land Cement Co., 2 Cal. Ind. Ace. Com. 587 921 Wasilewski v. Warner Sugar Re- fining Co. (City ct. of Ofg/Wzecf Jby PAGE 1914), 87 Misc. 156; 149 Supp. 1085 116 Wassell V. Russell & Sons (1915), 8 B. W. C. C. 230 935 Waters v. Guile (1916), 234 Fed. 532 298 Waters v. Jewell Belting Co., 1 Conn. Comp. Dec. 511 1040 Waters v. Kewanee Boiler Co., 1 Bull. 111. Ind. Bd. 169 822 Waters v. Taylor Co., 218 N. T. 248; 112 N. B. 727; afE'g 170 App. Div. 942; 154 Supp. 1149, 7, 673 Waterhouse v. State, 21 Tex. App. 663 ; 2 S. W. 889 206 Watkins, In re, 1 Bull. Ohio Ind. (3om. 135 523 Watkins v. Guest, Keen & Nettle- folds (1912), 5 B. W. e. C. '307 481 Watson V. Beardmore & Co. (1914) (Scotch Court of Ses- sion), 7 B. W. C. C. 913 1052 Watson V. Butterley Co. (1902), 5 W. C. C. 51 543 Watson V. Riuderknect, 82 Minn. 235 ; 84 N. W. 798 343 Watson V. Sherwood (1909), 2 B. W. C. C. 462 477 Watters v. Kroehler Mfg. Co., 187 111. App. 548 ; 000 N. E. 000; 8 N. C. C. A. 352 875, 1018 Watts V. Logan & Hemingway (1914), 7 B. W. C. C. 82 1112 Watts V. Ohio Valley Electric Ry. Co., 000 W. Va. 000; 88 S. B. 659 28, 69, 223 Wayman v. Huff, 1 Cal. Ind. Ace. Com. (Part II) , 358 709, 721 Weaver v. Assawaga Co., 1 Conn. Comp. Dec. 331 779 Weaver v. Eyster & Stone, 1 Cal. Ind. Ace. Com. (Part II), 563, 139, 347 Weaver v. Maxwell Motor Co., 186 Mich. 588; 152 N. W. 993; MM-d&jt^- ^- 433 888 cl TABLE OF CASES FAQE Webb, Re: Op. Sol. Dep. L., p. 336 482 Webber v. Kales Haskel Co., Dec. of Mich. Arbitration Commit- tee, Dec. 19, 1912 863 Webber v. Wansborough Paper Co. (1914), 7 B. W. C. C. 795; rev'g 6 B. W. C. C. 583 494 Weber v. American Silk Spinning Co., 000 R. I. 000; 95 Atl. 603; 11 N. C. C. A. 436. . . .811, 866, 1097 Webster v. Cohen Brothers (1913), 6 B. W. C. C. 92 933 Webster v. Steddom (1916), 3 Cal. Ind. Ace. Com. 265 521 Weekes v. Stead & Co. (1914), 7 B. W. C. C. 398; 6 N. C. C. A. 1010 591 Welghlll V. South Heaton Goal Co. (1911), 4 B. W. C. C. 141. . 541 Well, Re: Op. Sol. Dep. C. & L., , p. 543 383 Weinman v. Bruno and White, Contractors, 2 Cal. Ind. Ace. Com. 548 271, 1064 Weiser v. Industrial Commission (1916), 000 Cal. 000; 157 Pac. 593 1178 Welch V. American Mutual Lia- bility Ins. Co., 1 Mass. Ind. Ace. Bd. 119 441 Welch V. Employers' Diabillty Assur. Corp., 1 Mass. Ind. Ace. Bd. 173 336, 383, 571 Welch V. Weber & Co., 2 Cal. Ind. Ace. Com. 693 354 Welcome v. Aetna Life Ins. Co., 1 Mass. Ind. Ace. Bd. 76 1029 Wells V. Cardiff Steam Coal Col- lieries Co. (1909), 3 B. W. C. C, 104 1072 Wells V. Kentucky Distilleries & Warehouse Co., 138 S. W. 278; 144 Ky. 438 162 Wells V. Metropolitan Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 66 395, 658 Welton V. Waterbury Rolling PAGE Mill Co., 1 Conn. Comp. Dec. 78 105, 238 Wemyss Coal Co. v. Cruden (1913), 6 B. W. C. 0. 393 1028 Wemyss Coal Co. v. Symon (1912), 6 B. W. C. C. 298 621 Wendt V. Industrial Insurance bommission, 80 Wash. Ill; 141 Pac. 311 ; 5 N. C. C. A. 790. ... 182 Wentworth v. Chamberlain Co., 1 Conn. Comp. Dec. 588 579, 1169 Wentworth v. Pacific-Wakefield Co., 1 Cal. Ind. Ace. Com. (Part I), 65 801, 1043 Werly v. Pacific Gas and Electric Co. (1916), 3 Cal. Ind. Ace. Com. 254 742 Wessman v. Bloomfleld, 1 Conn. Comp. Dec. 336 724 West V. City of Pasadena, 1 Cal. Ind. Ace. Com. (Part II), 274, 348, 831 Western Grain and Sugar Pro- ducts Co. V. Pillsbury (1916), 000 Cal. 000 ; 159 Pac. 423. .802, 1016, 1037 Western Indemnity Co. v. O'Brien, 2 Cal. Ind. Ace. Com. 419; rev'g 1 Cal. Ind. Ace. Com. (Part II), 539 793 Western Indemnity Co. 'v. Pills- bury, 000 Cal. 000; 151 Pac. 398 1076 Western Indemnity Co. v. Pills- bury, 000 Cal. 000; 159 Pac. 721 1076 Western Indemnity Co. v. Pills- bury, 170 Cal. 686; 151 Pac. 398; 10 N. C. C. A. 1 64, 592 Western Indemnity Co. v. State Industrial Accident Commis- sion (1916), 172 Cal. 766; 158 Pac. 1033 269 Western Indemnity Co. v. Pills- bury, 172 Cal. 807; 159 Pac. 721 164, 165, 175 Western Metal Supply Co. v. Pillsbury, 172 Cal. 407; 156 Digitized by Microsoft® TABLE OF CASES cli PAGE Pac. 491 ; aff'g 1 Cal. Ind. Ace. Com. (Part II), 284. ...64, 127, 598, 926 West Jersey Trust Co. v. Phila- delphia & R. Ry. Co., 88 N. J Law 102; 95 Atl. 753.. 112, 563, 797, 1147 West Salem v. Industrial Com- mission of Wisconsin, 162 Wis. 57 ; 155 N. W. 929 243, 601 Weston V. Crown Columbia Paper Co., 1 Cal. Ind. Ace. Com. (Part I), 172; 12 N. C. C. A. 900 594 Westover v. Hoover, 129 N. W. 285; 88 Neb. 201; 3 N. C. C. A. 471 157 Wetherell v. American Hardware Corporation, 1 Conn. Comp. Dec. 367 355, 575 Whalen v. United States Fidelity & Guaranty Co., 2 Mass. Ind. Ace. Bd. 318; 11 N. C. C. A. 498 403, 659 Whaley v. Hudson, 1 Bull. 111. Ind. Bd. 186; 12 N. C. C. A. 479 686, 694 Wharton, Re: Op. Sol. Dep. C. & L., p. 250 592 Wheadon v. Red River Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 640 356, 611 Wheatley v. Journal Publishing Co., 1 Conn. Comp. Dec. 110. . . 479 Wheatley v. Smith, 2 Cal. Ind. Ace. Com. 907 834 Wheeler v. Contootuck Mills Cor- poration, 77 N. H. 551 ; 94 Atl. 265 67, 125 Wheeler v. Maryland Casualty Co. (1914), 3 Mass. Ind. Aec. Bd. 433 ; 12 N. C. C. A. 389. . . . 481 Wheeler v. Milner, 137 Wis. 26; 118 N. W. 187 343 Wheeler v. Randall, 6 Mete. (Mass.) 529 212 Whelan v. Great Northen Steam Fishing Co. (1909), 100 L. T. 912; 2 B. w. c. o. 235 . .Djgjtized4by PAGE Whelan v. Moore (1909), 43 Irish L. T. 205 ; 2 B. W. C. C. 114. ... 634 Whetherell v. Am. Hardware Cor- poration, 1 Conn. Comp. Dec. 367 366 Whitbread v. Arnold (1908), 99 L. T. 103 ; 1 B. W. C. C. 317. . . 485 White V. County of Los Angeles, 3 Cal. Ind. Ace. Com. 83. . . .333, 569 White V. Geo. A. Fuller Co., 000 Mass. 000; 114 N. B. 829. .273, 297, 308 White V. Lauter Company (Essex Common Pleas, 1914), 37 N. J. Law J. 175 338, 868 White V. National Guard, State of California (1916), 3 Cal. Ind. Ace. Com. 287 913, 952 White V. Fidelity and Deposit Co., 2 Mass. Ind. Ace. Bd. 567 554 White V. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Aec. Com. (Part II), 148 506 White V. Scioto Land Co., 1 Bull. Ohio Ind. Com. 114. . .756, 783, 1024 White V. Sheepwash (1910), 3 B.^ W. C. C. 382 435 White V. Wiseman (1912), 5 B. W. C. C. 654; 11 N. C. C. A. 670 908 White and Sons v. Harris (1910), 4 B. W. C. C. 39 823 Whitehead v. Reader (1901), 3 W. C. C. 40 619, 624 Whiteman v. Clifden (Viscount) and others (1913), 6 B. W. C. C. 49 683 Whitfield V. Lambert (1915), 8 B. W. C. C. 91 ; 12 N. C. C. A. 905 484 Whitlocli V. Mahoney, 3 Cal. Ind. Ace. Com. 589 194, 685 Whitney v. Peterson, 1 Cal. Ind. Ace. Com. (Part 11), 306 214 Whitsell ^ V. Montgomery, 1 Cal. Ind. Ace. Com. (Part II), 572. .1038 Wiclss V. Dowell & Co., 2 K. B. MieSQSOft® 370 clii TABLE OJ? CASES PAGE Wiesdeppe v. Zwirfel, 000 Wis. OOO; 160 N. W. 1038 286 Wiggin V. Federal Stock and Grain Co., 77 Conn. 507 977 Wilkes, Re : Op. Sol. Dep. C. & L., p. 175 374 Wilkes (or Wicks) v. Dowell & Co., 2 K. B. 225; 7 W. G. C. 14 370 Wilkie V. Thomas Forman Co., Mich. Ind. Ace. Bd., Oct. 15, 1913; The Indicator, Oct. 20, 1913, at p. 417 644 Wilkinson v. Frodingham Iron and Steel Co. (1913), 6 B. W. C. C. 200 842 Wilkinson v. Union Iron Works (1916), 3 Cal. Ind. Ace. Com. 213 714 Willard v. W. W. Anderson & Co., 1 Cal. Ind. Ace. Com. (Part I), 188 812 William Baird Co. v. Burley (1908), 45 Scotch L. R. 416; 1 B. W. C. C. 7 .\. .. 588 Williams, In re, 1 Bull. Ohio Ind. Com. 31 756, 783, 900 Williams v. Bwllfa & Merthyr Dare Stea. Collieries (1914), 7 B. W. C. C. 124... 1117 Williams v. Coney Island C/on- struction Co., 6 N. Y. St. Dep. Rep. 346 777 Williams v. Duncan (1898), 1 W. C. C. 123 318, 404 Williams v. Electric Carbon Co., 4 N. Y. St. Dep. Rep. 439 133 Williams v. Kansas City, S. & G. Ry. Co., 45 So. 924; 120 La. 870 128 Williams v. Llandudno Coaching and Carriage Co. (1915), 8 B. W. C. C. 143 ; 9 N. C. C. A. 245. 553 Williams v. National Cash Register Co., 157 Ky. 836; 164 S. W. 112 134 Williams v. Ocean Coal Co. (1907), 97 L. T. 150; 9 W. C. C. 44 .,....;.. 787 Digitized by FAei! Williams v. Ruobon Coal & Coke Co. (1914), 7 B. W. C. C. 202. .1113 Williams v. Smith (1913), 6 B. W. C. C. 102 476 Williams v. Southern Pac. Co. (1916), 000 Cal. 000; 160 Pac. 660 30 Williams v. State, 41 Tex. 649. . . 206 Williams- v. S. S. "Maritime" (1915), 8 B. W. C. C. 267 180 Williams v. Vauxhall Colliery Co. (1907), 23 T. L. R. 591; 9 W. C. C. 120 798 Williams v. Wigan Coal and Iron Co. (1909), 3 B. W. C. C. 65. . . . 682 Williams v. Wynnstay Collieries (1910), 3 B. W. C. C. 473 904 Williamson v. Berlin Mills Co., 190 Fed. 1 620 Williamson v. St. Catherine's Hospital, 2 Cal. Ind. Ace. Com. 430 ; 11 N. C. C. A. 497 237 Williamson v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 107 811, 818 Willis y. Guthrie-McDougal Co., Report of Mont. Ind. Ace. Bd. (1915), p. 126 613, 638 Willoughby v. Great Western Ry. Co. (1904), 6 W. C. C. 28 326 Wilson, In re, 1 Bull. Ohio Ind. Com. 84 377 Wilson V. Allis-Chalmers Co., Third Annual Report (1914), Wis. Ind. Com. 70 392 Wilson V. American Can Co., 2 Cal. Ind. Ace. Com. 892 706 Wilson V. Banner Lumber Co., 32 So. 460 ; 108 La. 590 484 Wilson V. Cheney Brothers, 1 Conn. Comp. Dec. 66 1039 Wilson, Matter of, v. Dorflinger & Sons, 218 N. Y. 84 ; 112 N. E. 567 ; remittitur amended, 218 N. Y. 734; 113 N. E. 454; rev'g 170 App. Div. 119; 115 Supp. 857 210, 1047, 1093 Wilson V. Gallegher, 1 Cal. Ind. iVIicrtfdl^- (P-rtII),306 1152 TABLE OF CASES cliii FAQE Wilson V. Lalng (1909), 46 Scotch L. E. 843; 2 B. W. C. C. 118 649 Wilson V. Lake Hopatcong (Hud- son Common Pleas, 1915), 38 N. J. Law J. 172 416 Wilson V. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part II), 414 422, 665 Wilson V. Parra, 3 Cal. Ind. Ace. Com. 65 483, 538 Wilson V. Red River Lumber Co., 2 Cal. Ind. Ace. Com. 803 1200 Wilmerson v. Lynn and Hamburg Steamship Co. (1913), 6 B. W. C. C. 542 1071 Windfelder v. City of Milwaukee, Wis. Ind. Com., Dec. 21, 1911.. 779 Winfield v. Erie R. Co., 88 N. J. Law 619 ; 96 Atl. 394 ; rev'd 000 U. S. 000 67, 220, 221 Winfield v. New York Central & H. R. R. Co., 168 App. Div. 531; 153 Supp. 499 1179 Winfield v. New York Central R. R. Co., 216 N. Y. 284; 110 N. E. 614; 10 N. C. C. A. 916 220 Winn V. Adjustable Table Co. (1916), 000 Mich. 000; 159 N. W. 372 852, 1102 Winn V. Methuen, Ind. Ace. Com. 1647, Aug. 5, 1915, 11 N. C. C. A. 369 197 Winn V. Small, 1 Cal. Ace. Ind. Com. (Part II), 5 814 Winter v. Atkinson Frizelle Co. (Hudson Common Pleas, 1914), 37 N. J. Law J. 195; 11 N. C. C. A. 180 180, 572 Winter v. Atkinson-Frizelle Co., 000 N. J. Law 000; 96 Atl. 360.. 1092 Winter v. Johnson-Pollock Lum- ber Co., 1 Cal. Ind. Ace. Com. (Part II), 387 540, 541, 636 Winter v. Peter Doelger Brewing Co. (1916), 175 App. Div. 796; 162 Supp. 469; rev'g 95 Misc. 150; 159 Supp. ^^S- ■■ ■^O^j^S^y PAGE Wippelhauser v. Rohe & Bro., 6 N. Y. St. Dep. Rep. 372 187 Wise V. Lillie & Sugar Apparatus Mfg. Co., 113 Pac. 403; 84 Kans. 86 157 Wite, Re: Op. Sol. Dep. C. & L., p. 183 ,.. 329 Withers v. London, Brighton & S. C. Ry. (1916), 32 Times L. R. 685 344 Withy, Re: Op. Sol. Dep. L., p. 273 421 Witt V. Pacific Lumber Co., 2 Cal. Ind. Ace. Com. 859 1055 Wood V. Camden Iron Works (U. S. Dist. Ct, Dist. of N. J.), 221 Fed. 1010 161 Wood V. Chico Construction Co., 1 Cal. Ind. Ace. Com. (Part 11), 89 696 Wood V. Cobb, 3 Allen 58 123 Wood V. Detroit, 188 Mich. 547; 155 N. W. 592 66, 235 Wood V. Tupper Lake Chemical Co. (1916), 9 N. Y. St. Dep. Rep. 372 129 iWoodcock V. London & North- western Railway (1913) (King's Bench Division), 6 B. W. C. C. 471 292. IWoodcock V. Walker, 170 App. Div. 4 ; 155 Supp. 702 702, 800 iWooden v. Western N. Y., etc., R. Co., 126 N. Y. 10; 13 L. R. A. 458, n 99 Woodman v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 142; 12 N. C. C. A. 482 686 Woodruff V. Peterson, 1 Cal. Ind. Ace. Com. (Part II), 516; 12 N. C. C. A. 190 213, 584 Woods V. Wilson, Sons & Co. (1915), 8 B. W. C. C. 288; (Housfe of Lords) ; rev'g 6 B. W. C. C. 750 327 Woods V. Winskill (1913), Chan- cery Division), 6 N. W. C. C. MM)SOft® 1181 cliv TABLE OP CASES PAGB Wolfe V. Mosler Safe Co., 139 App. Dlv. 848; 124 Supp. 541.. 157 Wolfe V. Scripps, 1 Cal. Ind. Ace. Com. (Part II), 509 213 WolfC V. Levison & Zellerbach, 1 Cal. Ind. Ace. Com. (Part II), 847 826 Wolynski v. Frankford Gen. Ins. Co., 1 Mass. Ind. Ace. Bd. 220. . 819 Woodward, Matter of, v. E. Wy Conklin & Son, Inc., 171 App. Div. 736; 157 Supp. 948. .258, 302, 1183, 1190 Worden v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 153 430 Workman v. New York, 179 U. S. 552 227, 228 Wowinski v. Vlto, 1 Conn. Comp. Dec. 629 154 Wozneak v. Buffalo Gas Co. (1916), 168 App. Div. 268; 161 Supp. 675 895, 994, 1160 Wray v. Panama-Pacific Inter- national Exposition, 3 Cal. Ind. Ace. Com. 226; 11 N. C. C. A. 377^ 877 Wray v. Taylor Brothers & Com- pany (1912), 6 B. W. C. C. 529; 4 N. C. C. A. 935 157, 520 Wright V. Barnes, and Fidelity & Casualty Co. (Conn. Sup. Ct), 1 Conn. Comp. Dec. 260; rev'g Id. 248 149, 1169, 1175 Wright V. Kerrigan (1911), 45 Irish L. T. 82; 4 B. W. C. C. 432 1011, 1013 Wright V. Lindsay (1911), 49 Scotch L. R. 210; 5 B. W. O. C. 531 1007 Wright V. Scott (1912), 5 B. W. C. C. 431 625 Wright 7. Smith (Essex Common Pleas, 1915), 38 N. J. Law J. 231 924, 1201, 1202 Wright V. Sneyd Collieries (1915), 8 B. W. O. C. 537 829 Wrigley v. Nasmuth Wilson & Co. (1913), 6 B. W. C. C. 90 650 Digitized by PAGE Wuertz V. Chicago and A. R. Co., 111. Ind. Bd., Dee. 12, 1914; 11 N. C. C. A. 247 599 Wyman v. Berry, 75 Atl. 123; 106 Me. 43 157 Wyrwas v. Bigelow-Hartford Carpet Co., 1 Conn. Comp. Dee. 326 715 Xvadar v. Pratt & Whitney Co., Conn. Comp. Com., First Dist., Chandler, Com'r, Meh. 30, 1917 (unreported) 349 T. iTamaski v. Commonwealth Bond- ing and Casualty Ins. Co., 1 Cal. Ind. Aee. Com. (Part II), 658. .1046 Tamin v. Harris Raincoat Co. (1916), 175 App. Div. 959; 161 Supp. 531 882 Xaneey v. County of Los Angeles, 2 Cal. Ind. Aee. Com. 575 252 rates V. South Kirby Feather- stone & Hemsworth Colliers (1910), 103 L. T. 170; 3 B. W. C. C. 418 ; 3 N. C. C. A. 225. . . . 410 Yates V. Union lee Co., 2 Cal. Ind. Ace. Com. 442 938 Yazoo & M. V. R. Co. v. Slaughter, 45 So. 873 ; 92 Miss. 289 162 Yazoo & M. V. R. Co. v. Stans- berry, 53 So. 389; 97 Miss. 831. 124 Yeager v. Western Pipe and Steel Co., 1 Cal. Ind. Ace. Com. (Part II), 473 1154 Yenne v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 135, 330, 346, 705 Yohe V. Erie R. Co. (Hudson Common Pleas, March 31, 1913), 36 N. J. Law J. 154 785 Yongue v. St. Louis & S. F. R. Co., 112 S. W. 985; 133 Mo. App. 141 632 Young V. Duncan (In re Young), 218 Mass. 346; 106 N. E. 1, 66, 282, 1087 IVIicrosoft® TABLE OF CASES dv PAGE Young T. Holcomb, 1 Conn. Comp. Dec. 482 178 Young V. Niddrie & Benhar Coal Co. (1913) (House of Lords), 6 B. W. C. C. 774 757 Young V. Northern California Power Co., 1 Cal. Ind. Ace. Com. (Part I), 88; 12 N. C. G. A. 309 377, 635, 645 Young V. Villa de Paris, 2 Cal. Ind. Ace. Com. 507 392 Younger v. Gllro Machine Co., 2 Cal. Ind. Aec. Com. 904 159 Ystradowen Colliery Co. v. Griffiths (1909), 100 L. T. 869; 2 B. W. C. C. 357 326 Yukanoviteh v. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 787 834 Yume V. Knickerbocker Portland Cement Co., 3 N. Y. St. Dep. Rep. 353 ; 11 N. C. C. A. 244. ... 593 Z. Zabriskie v. Erie R. Co., 86 N. J. Law 266 ; 92 Atl. 385 ; L. R. A. (1916), A, 315, n.; aff'g 85 N. J. Law 157; 88 Alt 824; 4 N. C. C. A. 778 608 Zahoroduy v. Winchester Repeat- ing Arms Co., Conn. Comp. Com., Third Dist, Beers,, Com'r, March 6, 1917 (unreported) 335, 941 PAGE Zamero v. Saddlerock Cafe, 2 Cal. Ind. Ace. Com. 138 641 Zannoti v. Aquilino & Lagomar- sino Co., 3 Cal. Ind. Ace. Com. 53 127, 535, 552, 1042, 1171 Zappala v. Industrial Insurance Commission, 82 Wash. 314 ; 144 Pae. 54; L. R. A. (1916), A, 295 391, 1026, 1097 Zavella v. Naughton, 2 Cal. Ind. Ace. Com. 688 422, 643 Zblnden v. Union Oil Co., 2 Cal. Ind. Ace. Com. 590 507 Zeikus V. Florida East Coast Ry. Co., 153 App. Div. 345; 138 Supp. 478 99 Zelavzmi, 1 Bull. Ohio Ind. Com. 87 653 Ziegler v. P. Cassidy's Sons, 4 N. Y. St. Dep. Rep. 343 255 Zilch V. Bomgardner, 91 Ohio St. 205 ; 110 N. B. 459 302, 957 Zillwood V. Winch (1914), 7 B. W. C. C. 60 931 Zoler V. American Steel and Wire Co., 111. Ind. Bd. 844, Sept. 21, 1915 ; 12 N. C. C. A. 319 384 Zumwalt V. Acme Cement and Plaster Co., 1 Cal. Ind. Ace. Com. (Part II), 143 998 Zwiesele v. Ratto (1916), 3 Cal. Ind. Aec. Com. 372. .999, 1052, 1173 Digitized by Microsoft® Digitized by Microsoft® BRADBURY'S WORKMEN'S COMPENSATION LAW THIRD EDITION CHAPTER I. ECONOMIC PRINCIPLES INVOLVED PAGE Akticle a — The Fundamental' Bases of the Compensa- tion Principle 1 1. Distribution of cost of com- pensation and general effect on employers and employes 1 2. The obligation to tbe com- munity and to tbe work- men's families as distin- guished from the personal obligation to the workmen. 3. Distinction between '" acci- dental " injuries and " oc- cupational diseases " 4. Limiting ojjeration of acts to so-called " hazardous " em- ployments 5. Injuries to employes who are sub-normal physically ARTICLE A — THE FUNDAMENTAL BASES OF THE COMPENSATION PRINCIPLE 1. Distribution of dost of compensation and general effect on em- ployers and employes. Until very recently it has been difficult for American lawyers to reconcile themselves to the fundamental changes which work- men's compensation 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 th« master is at fault, has, until very recently, in most parts of the United States, mot with almost instant opposition whenever it has been made. ITevertheless, the compensation prin- ciple, 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 of Digitized b^Microsoft® a BEADBUEY S WORKMEN S COMPENSATIOIir LAW Distribution of cost of compensation the Union, prove that it is not taking the employer's property with- out due process of law to compel him to pay compensation to an injured workman, when the injury is due to a risk which is neces- sarily incident to the business. An assertion to the contrary is an economic fallacy. The amount paid in compensiation to injured workmen 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 when inadequate provision is made, through public and private charity, for talcing 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 de- pendents 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 worlonan 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 mot infrequently grow up in bad surroundings and a good 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, niot only directly but indirectly. Moreover, equitable compensation laws tend, to a very great extent, to make workmen more contented 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 on« of the number of inevitable indus- trial accidents. This is an important factor in the efforts to secure the greatest industrial efficiency. Since compensation acts have been put into practical operation in many States the great saving which they have effected, in many ways, has produced a revolution of feeling in regard to them. The enormous sums which were paid to an army of lawyers and witnesses on both sides of controversies between employers and em- ployes, over personal injury cases, are now being saved. The ma- Digitized by Microsoft® ECONOMIC PEINCIPLES ISTVOLVED Obligation to community and workmen's families ehinery of the courts is no longer clogged with such controversies, although there are as yet a good many old cases pending, which resulted from injuries occurring before the compensation statutes became effective. An accidental injury to an employe no longer creates a condition of guerilla warfare between the injured employe and his employer, with th© corollary of sharp practice, perjury and recrimination. Injured employes, and their dependents, when killed, are receiv- ing, under compensation laws, assistance when they most need it, instead of waiting for years for the final deiterminatious of courts of last resort, and undergoing suffering, privation and next to starva- tion in tho meantime. Widowed mothers are able to keep families together, instead of having small children suffer the degrading in- fluence necessarily resulting from maintenance in charitable insti- tutions. The resulting benefits to the character of the citizens generally, while not immediately apparent, must in time be tremend- ous. So this new plan, while it was fought bitterly in the beginning by those of narrow vision, is now being accepted by the overwhelming majority in every community where it has been tried, as a necessary concomitant of modern industrialism. 2. The obligation to the community and to the workmen's families as distinguished from the personal obligation to the workmen. If a workman should intentionally cut off a finger, or a hand, probably no one would urge that his employer should be compelled to pay him compensiation for the injury. If he should become stupidly intoxicated! during working hours and injure himself, cer- tainly it might well be urged that no principle of law or morality could be advocated successfully in favor of making it incumbent on the employer to support the workman and his family while he was recovering from the injury. If the employe, being the aggressor, should engage in a fight with another workman and should receive injuries which incapacitated him, again it could be contended easily thait it would be the height of injustice to compel the employer to pay compensation for the injury. Probably no fair-minded person would dispute these propositions. There are other circumstances where equally cogent arguments might, perhaps, be aidduced for denying liability for compensation, ^ ' ^ ^ Digitized by Microsoft® 4 beadbuey's woekmen's compensation law Obligation to community and. workmen's families but as to which there is a conflict of opinion. For example, where a workman, who is not familiar with a particular machine, which is inherently dangerous to operate, is specifically ordered not to touch it, because it can be operated safely only by - those who are ex- perienced and expert, disregards such ordersi and is injured, should , hisi employer be campelled to pay penalty of such disobedience? E"aturally the answer is, " No ; for if any other rule should prevail discipline would be destroyed." Therefore principles have been introduced in some of the statutes denying compensation when the injury is due to " serious and willful misconduct." Even when no such specific exception has been included in a particular law, if an employe has been injured while doing some- thing entirely beyond the scope of his duties, or something which he has been specifically ordered not to do, it ha^ been held usually that the injury did not " arise out of the employment " and com- pensation has been refused. This class of cases', however, is on the border line. There is much conflict in the application of the prin- ciple. This lack of uniformity is due to several causes. One of these causes arises from the difiiculty of the application of the prin- ciple to the facts proved in particular cases. Another is the hard- ship caused to the workman's family when serious injury or death is caused by acts on the part of the employe, which, ordinarily, would lead to a denial of compensation. So far as the workman's family is concerned, the hardship is just as great if the wage earner is removed or incapacitated through some act of serious' and willful misconduct, as it would be had the injury or death been caused by the gross negligence of the employer. The employer may Well ask, and has asked heretofore, success- fully : " What has that to do with me ? " Considering each em- ployer alone in respect to an individual workman, obviously the answer is, " Nothing." But that assumes that the family of a work- man is not a part of the industrial system of the State or Nation • that while the industry owes to the workman himself tie duty of com- pensating him for injuries necessarily incident to the occupation in which he is engaged, it owes no separate duty to his family which is based on principles different from those regulating the obligation to the workmian himself. Are we sure that this reasoning is entirely sound ? If a domestic Digitized by Microsoft® ECOKOMIC PRINCIPLES INVOLVED Obligation to community and worlimen's families animal with young is killed by reason of its own viciousness we nevertheless care for the young and do many things which cost time and money to take the place of the parent. Why ? Clearly because the young animals are of value to the owner and he hopes to reap a money reward for the additional oare he is compelled to bestow on them by reason of the unreasoning misconduct of the parent. Are not widows and young children, in a very much higher degree and on much more humanitarian principles, entitled to the care of the State when the wage earner is removed, even by reason of his owa serious and willful misconduct ? " Certainly " ; we can anticipate others, as well as employers, saying, " let the State do it." It may be conceded that the answer is logical and that such cases are a charge on the whole community anyway, and must be accepted as such. But there are many practical and cogent reasons' why such an aniswer is not satisfactory and ought not to be accepted without care- ful consideration. Indeed it has been rejected, in a large measure, in England, and he would be bold who would assert that the basis of the rejection has not been economically sound as' weill as intensely humanitarian. Under the British Act compansation is denied when the injury is caused by serious and willful misconduct unless " the injury results in death or seriousi and permanent disablement." The exception is much more important than the rule. The intent to provide for a workm^an's family in any event is quite apparent. The British Statute has been the subject of harsh criticism, but Parliament has refused to modify it. Instead of making public charges of the innocent victims (widows and children) of such acci- dents, it follows the compensation doctrine to its logical conclusion of making each trade bear its own losses. And it considers the loss to the family of the workman as well as that of the workman himself. So, while it m'ay be argued with much force that cases' of that character should be cared for by the community at large, the ex- perience in England proves that no real injustice will be done by making this also a part of the burden which must be borne by each industry. The small inequalities which will result from saddling a trade with a risk which is not necessarily incident to that occupa- tion, but is dependent upon the personal qualities of the workmen who happen to be eng^yJe^lfo^/I^R^oe*^^^^ ^™^' "^'^^ ''''* ^ '° Obligation to community and workmen's families great, in actual experience, as might he imagined from a purely academic discussion. Most important of all, such a plan saves these innocent victims from the degradation of hecorriing recipients of public charity. As, ordinarily, sucli cases inevitably are a charge on all indus- tries of the community, the industries in which they occur would be compelled to pay their share, even though the payments were made directly by the State. In a few isolated eases it m'ay be that the burden will not be so evenly distributed, where each industry is compelled to recognize this obligation to the families of its work- men, as it would be should the obligation be borne by the community as a whole. But, for the reasons suggested, cases of this kind per- haps ought to be classed as injuries arising out of the occupation, certainly to the extent they are so recognized by the British Com- pensation Statute. In fact some of the American lawmakers are beginning to recog- nize the justice of the principle just enunciated by reducing, but not entirely denying, compensation in cases of willful misconiduct. Thus the Wisconsin Act provides that if an injury is caused by the willful failure of an employe to use a safety device provided by the employer, compensation shall be reduced fifteen per cent. This provision of the statute has been applied in the case of an electrical worker who, by failure to use an insulated stool, received a shock which caused his death, and from the death benefit a reduction was made of fifteen per cent. Buseh v. Wiscon^n Gas & Electric Co., Fourth Annual Report (1915), Wis. Ind. Com. 38. This Wisconsin solution of reducing the compansation in the class of cases under discussion appears to be an eminently wise one. The penalty is severe enough to make workmen careful. Our experience in the criminal law indicates that not the severity of a penalty written in the statute is the real deterrent, but the fact that the penalty is invariably enforced. So when compensation is entirely denied for such causes commissions and courts seek a way to avoid the harsh- ness of the statute, especially when a widow anid small children are involved, and these " hard cases are bound to make bad law." The JSTew York Court of Appeals has recently shown a very broad conception of tie real principle underlying compensation statutes. The court declared, iibfJ^^c/fey^/lfe-oY^^fe^®^'® Compensation Act ECONOMIC PEINCIPLES INVOLVED Distinction between " accidental " injuries and " occupational diseases " rests on the economic and humanitarian principles that compensa- tion should he given at tie expense of the business to the employe or his representatives for earning capacity destroyed by an accident, in the course of or oonnected with his work, and this is not only for his own benefit but for the benefit of the State, which otherwise might be char.ged with his support and this purpose ought not to be de- feated by placing too narrow a limit upon the nature of the acts which will be regarded as pertaining to his employment. Matter of Waters V. William J. Taylor Co., 218 K Y. 248; 112 IST. E. 727; aff'g 170 App. Div. 942; 154 Supp. 1149. In the last mentioned case an employe working for a contractor of a building under construction, went to the assistance of an employe of another contractor, working on the same building, who had been oaught in a cave-in. The first employe was also oaught in a further cave-in and received injuries from which he died, and it was held that the injury arose out of the employment. 3. Distinction between " accidental " injuries and " occupational diseases." The distinction which is drawn in nearly all the acts between " accidental " injuries and " occupational diseases " is extremely unjust and illogical. The principal argument in favor of workmen's compensation acts, heard on all hands, is that each industry should oare for the human wrecks which it creates. The man who breathes lead fumes and contracts plumbism, or inhales marble or other dust from the air in the sihop where he is working and is totally incapaci- tated from pneumoconiosis, is, to a very much greater extent, the victim of the industry in which he is engaged, than is the workman who falls downstairs in going from one floor to another in the shop and breaks both legs. The dependents of a workman who for months or possibly years lingers in a helpless condition from an occupational disease, and then dies, are infinitely worse off; as a rule, than are the widows and children of workmen who are taken away suddenly by an " accidental " injury. Our mental horizon seems to broaden very slowly in such matters. The difficulty is due both to the ignorance of legislators and the narrow views of the courts. The distinction was made early in the history of the administration of the first British Act between an Digitized by Microsoft® 8 BEADBUEy's WOHKMEIir's COMPENSATION LAW Limiting operation of acts to so-called " hazardous " employment accidental injury which happened at some specific moment of time and an injury which was of gradual development. The British courts announced the doctrine that an accidental injury was one which occurred at a specific moment, easily ascertainable, while in the case of an occupatiomail disease, such as plumbism, there was a gradual development an/d it was impossible to tell just when the " injury " occurred and therefore it was not an " accident." Parlia- ment soon remedied this condition by specifying certain occupa- tional diseases, disability from which should be a ground for award- ing compensation. To make the Compensation Act more elastic, to meet new conditions as they might arise, it was provided that such other occupationail diseases might be included in the Act, by procla- mation of the Secretary of State, as should be found to arise from the conditions prevailing in the different industries. Very few of the American States have as yet followed this sensible course. In one or two instances, notably Massachusetts, the courts have con- strued acts in which the term " personal injury" was used, without the prefix "accidental," to be broad enough to cover occupational diseases. But this enlightened view of the Massachusetts Supreme Judicial Court has not been followed by either legislatures or judicial bodies generally. 4. Limiting operation of acts to so-called " hazardous " employ- ments. Another inane and wholly indefensible principle has been estab- lished, in a large number of American compensation acts, of limiting the operation .of the acts to certain " hazardous " or " extra- hazardous " occupations or industries. Not only does this plan cause confusion, litigation and uncertainty, but it results in absolute injustice. When it is carried to the ridiculous extent that hais pre- vailed in New York, for example, it would be absurd, if it were not so serious in its evil consequences. By reason of the inapt and bungling construction of the New York statute a workman may be protected by the compensation principle one minute and a few moments later, when engaged in some other detail of his employer's business, have no protection at all. For example, an employe of a mercantile establishment is protected while he is driving or operat- ing a vehicle in bis employer's business, but if he leaves the wagon Digitized by Microsoft® ECONOMIC PEINCIPIiES INVOLVED Injuries to employes who are sub-normal physically or motor car on the street amd goes- behind the counter to wait on a customer, and runs a nail in his foot and dies from tetanus, his widow and children receive aibsolutely nothing under the Compensa- tion Act. The Act was originally so crudely drawn that while tele- phone operators were covered, elevator operators and window cleaners on New York City skyscrapers were not. The Appellate Division of the Supreme Court tried to read elevator operators into the Act by a forced construction that elevators were " vehicles," but the Court of Appeals found it impossible to agree with this laudable, although somewhat awkward, attempt to correct legislative short- coming, which worked a distinct injustice. And where the driver of a meat wagon bad put up his horse for the night and was making a late delivery on foot and was injured, compensation was refused, because at the moment he was not engaged in the " hazardous " em- ployment of operating a vehicle. It makes absolutely no difference to a widow with several small children, who is left penniless by the sudden death of her husband, whether he was a struotural iron -worker or a clerk. The black despair which the widow faces in either case is the same. The effect on the children, as to whether they shall have proper nourishment and education, or shall become physically and mentally deficient and rnorally perverted, is the same in either case. That the percentage of injuries among clerks is smialler than it is among structural iron workers is no argument at all. This simply means that the cost of compensation payments, or insurance, is less -pro rata, among clerks than it is among structural iron workers. But the widows and chil- dren of one class have as great a right to protection as those of the other. Indeed, it is a serious injustice that they are not afforded equal protection. The time will come when this injustice will be swept away. But again the lawmakers' view expands with the greatest deliberation. The subject is discussed more fully in the chapter " To Whom the Ads Apply." 5. Injuries to employes who are sub-normal physically. Another economic question which has caused^ a good deal of thoughtful discussion among those who most strongly favor com- pensation laws is: To what extent should the acts go in awarding compensation to empl^J^g^y^^ ^j^i^^^^s due to a pre-existing 10 BEADBUEy's WOEKMEN's COMPENSATIOIir LAW Injuries to employes ^yho are sub-norinal physically , , disease, or a weakened condition, whicli is lighted up or aggravated by an injury which is inconsequential in itself? The fact that a considerable percentage of workmen have latent diseases of one character or another, although they are usually unaware of the fact, and that it is impossible to secure any con- siderable number of workmen in any industry without a sprinkling of those thus affected, makes the subject an important one. It has been contended, not without justice, from the employer's viewpoint, that prolonged disability from pre-existing disease was not a condition properly chargeable to the industry, to the extent at least that such disability continued after it would have ceased normally from an inconsequential injury. But the first difSculty has been to determine, by an inexact medi- cal science, the line of demarcation between the point where dis- ability ceased (or normally should cease) from the effects of the accidental injury and continued by reason of the pre-existing dis- ease or weakness. Speaking generally the British courts early adopted the principle that an employer accepted the employe in the physical condition in which he was at the time of the employment, and an aggravation of a pre-existing condition was an injury entitling the employe to compensation, to the same extent that physically sound employed would be entitled to remuneration for disability caused wholly by an accidental injury. The American courts have, with some slight modifications, adopted this principle. The modifications are dis- cussed exhaustively in Chapters XII and XIII, relating to " in- juries " for which compensation may be awarded and when they " arise out of " the employment. The general rule, however, is excellently stated by the Supreme Judicial Court of Massachusetts in the following language : " It is argued that grave economic consequences of far reaching effect may follow from the act as thus construed. It is said that persons not in good health may be altogether excluded from employ- ment to their severe hardship, while the cost of conducting commer- cial and indjistrial enterprises may become prohibitively large, all to the detriment of the general welfare and of the financial resources of the commonwealth. These considerations are of great public moment. But these factors relate to legislative questions and the arguments ionnde^j^jfj^^^ ^ifj^^^f^ly legislative arguments. ECONOMIC PRINCIPLES INVOLVED 11 Injuries to employes who are sub-normal physically They may be entitled to attention and deliberation at the hands of the legislative department of government. In the present forum they cannot have decisive significance, even if it were plain that the enumerated consequences were inevitable. The function of the judicial department of the government is simply to determine whether an act is within the power vested by the Constitution in the Legislature, and then to enforce it according to its true meaning in cases as they arise. While the consequences to which a particular construction or application of a statute would lead have an important bearing in determining what may have been the intent of the Legis- lature in using words of doubtful import, Greene v. Greene, 2 Gray, ?.61, 364; 61 Am. Dec. 454, they cannot control a plain rule of positive law established by clear language in a legislative mandate. The words ' personal injury ' had meaning in the law prior to the passage of the Workmen's, Compensation Act sufficiently definite and well defined clearly to include the kind of personal harm here dis- closed, so that it hardly can be assumed under all the circumstances that the Legislature used them in a different or unusually con- structed sense. There are no conditions which warrant a judicial interpretation of the words ' personal injury ' in the Act as meaning the same as ' personal injury by accident ' or as excluding from the scope of ' personal injuries ' those instances where a diseased physical condition may have invited, or rendered the employe unusually sus- ceptible to, ' personal injury.' It may be that the Legislature intended a more narrow field than actually was described by the words used. But if that be so, the remedy must be sought from the Legislature. There are no means by which the court can ascer- tain ' the purpose and effect of a statute except from the words used when given their common and approved meaning.' " In re Madden, 222 Mass. 487; 111 N. E. 379. Digitized by Microsoft® CHAPTEE II. THE BRITISH AND GERMAN COMPENSATION ACTS PAGE PAGE Article A — ^The Origin and Compensation Acts com- General Principles Un- pared 12 DEBLYiNG THE Two AcTS. . 12 2. The general effect of the 1. The British and German British Act on American statutes and decisions 14 ARTICLE A — THE ORIGIN AND GENERAL PRINCIPLES UNDER- LYING THE TWO ACTS 1. The British and German Compensation Acts compared. The British Compensiation 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 iirst Compensation Act was passed by the British^Pafliament. This Act was amended several times, notably in 1900, and again in 1906, after a thorough discus- sion and the consideration 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 ioffTl'The year 1911, when all the provisions of the various acts were unified and codified into an act which 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 effect of the Oode of July 6, 1911, was postponed to January J, 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 Insur- ance, and the Disability Insurance. Contributions by the workmen themselves play an important part in the system. T^or example, for 'the first thirteen weeks of either sickness',, or disab^ity caused by accident, the workmen are cared for by what is Iniown as the^ Sickness- Digitized ty Mcrosoft® The BfelTlSH AND GEEMAN COMPENSATION ACTS 13 The British and German Compensation Acts compared Pund, which is supported by the workmen contributing two-thirds and the employers one-ithird. As to all disabilit y which lasts more than thirteen weeks the Accident Fund becomes responsible. The Disability Insurance takes care of su perannuated workmen, and eovgrs~6ther Jorms of disiaibility which are not provided for in the other sufidivisions of the statute. Workmen contribute one-half of ^ the money necessary to s>upport the Disability Fund. All these insurance funds are managed by officers elected by work- men and employers. The Accident Fund is iuppor fed entirely by contributions fromjthe employers'and is managed by thein. The GTerman law requires all employers to join the Accident In- surance Fund of the trade-in which he is engaged' as'^a condition to his engaging in the trade. There is government supervisfion of the entire system. In Great Britain the liability is purely a personal one of the Mngloyers, who usually carry the risk either by insuring in stock liability companies or in mutual associations. ^ The British Act originally covered " accidental " injuries only. The courts held that the language of the Act was not broad enough to cover occupational diseases. By an early amendment, however, certain specific occupational diseases were included, and it was fur- ther provided that particular government officials, by proclamation, might include other occupational diseases, after having learned by proper investigation that they were really occupational diseases. Then followed the National Insurance Act which, with the Com- pensation Aot proper, makes the British system nearly as compre- hensive in its application as is that of Germany. The two systems, however, are totally different in structure. The entire German plan is founded on the principle of mutual associa- tions.^with government supervision. The British Compensation Aot proper casts a personal obligation on the employer and he is at liberty to either insure the risk in such manner as he deems best, or carry it as a personal liability, or join with other employers in mutual associations. The government does not interfere except to super- vise the insurance companies and the mutual insurance associations when they are formed. The National Insurance Act in Great Britain, however, is largely Digitized by Microsoft® 14 bkadbuey's woekmen's compensation law The British and German Compensation Acts compared a governmeiit institution, even more so than the German Compensa- tion Act. Instead of being supervised by government oflScials, ae is the German Compensation Act, the British National Insurance system is administered by government officials, but the commercial insurance companies carry a considerable portion of the risks. It might be remarked that aigither the German nor the British system has been adopted in Jhe United States. Originally the American acts followed', to a considerable extent, the British statute in casting a personal obligation on the employers. Shortly after the early acts were~pasie3~~fequirements were inserted compelling employers to insure their workmen's compensation liability, as a bg|fer~security~to workmen and the dependents of those who were killed in the cases of long deferred payments. In effecting this insurance there were created in some of the States what have gen- erally been known as " State insurance funds." Properly speaking, they are State managed insiirance funds. But they are not managed in the sense That the German funds are managed, nor do they have the governmental authority back of the British ]!^ational Insurance plan. They are not associations of employers, administered by em- ployers, with govefhinent supervision, as is the case in Germeiny. They are merely administered by State officials without State guar- anty and einployers have little or no voice in such administration. Indeed, employers cannot appeal from a decision awarding com- pensation to their~own"employes and they-^are not necessary parties to any proceeding relating to their employes. The German, British and American systems, therefore, are entirely distinct in their nature. The German system is the most comprehensive in its application, although the British system with the National Insurance Act proba- bly covers about as many employes as does the German system. The American system, however, covers as yet only a limited number of employes, speaking generally, and in very few jurisdictions has it been extended to cover occupational diseases. 2. The general effect of the British Act on American statutes and decisions. Many of the important features of the British Act have been copied in the statutes of the American States. The words of the British Act that an injury to be compensable must be the result of an acci- Digitized by Microsoft® THE BRITISH AND GEEMAN COMPENSATION ACTS '15 The general effect of the British Act on , American statutes and decisions dent " arising out of and in the course of the employment " have been adopted, in effect or absolutely, in nearly all the American States where compensation acts have been passed. This is in reality the codification, into a phrase, of a principle which has governed all cases between employers and employes arising out of claims foi* damages for personal injuries. But it is so pregnant with meaning that the longest chapter in any treatise on workmen's compensation law must be devoted to it. Such a chapter will be found in this work. As the British Act is administered under the same principles of law as our own, speaking broadly, the decision of the British courts are often persuasive on the construction of our own statutes, and, vice versa, the decisions of our courts are pertinent in the British tribunals in workmen's compensation cases. There will be found in this work, therefore, reference to all the reported British cases which are in point in relation to our statutes. In Great Britain, as here, triaHr^jury has been eliminated almost entirely in the determination of compensation claims. While with us such claims are determined by commissions or boards in many jurisdictions, in Great Britain such cases come before the regular courts in the localities where the parties reside. In this respect the system resembles that which has been adopted in New Jersey. In some of the States the phrase in the British Act " arising out of and in the course of employment" has been shortened so that it merely requires that the injuries should arise " in the course of the employment." This shortening in language has had a very broaden- ing effect on the application of the statutes where this condition exists. Many injuries may arise " in the course of " the employ- ment which do not " arise out of " the employment. This is par- ticularly true of quite a large class of accidental injuries which arise from fooling, larking or playing practical jokes. Usually, with some few exceptions, it has been held that these injuries did not " arise out of " the employment, although it might easily be said that they arise " in the course of " the employment In most of the States, however, there has been an adherence to the conventional require- ment that the injury to be compensable must " arise out of and in the course of the employment." In some of the States this is expressed in somewhat •Jjfef^^te'^f^^^/^l)^^^*^^^^ ^^® language 16 beadbuey's "woekmen's compensatiott law The general effect of the Britisli Act on American statutes and decisions used, it means practically the same as that found in the British Act, Some of the American statutes have omitted the word " accident " as a qualifying adjective to the injuries for which compensation- is allowed. The British statute allows compensation for " personal injury by accident." The British courts having held that an occu- pational disease was not an " accident," Parliament amended the British Act by affirmatively providing that certain occupational dis- eases should be covered by the Compensation Act. In America a few of the States eliminated the word " accident " from compensation acts and provided merely that compensation should be awarded for a "personal injury." This was the case in Massachusetts, and the court there held that inasmuch as the word " accident " had been eliminated from the statute and that the Legislature in making this elimination must have been familiar with the British Act and the decisions thereunder, that it must be presumed that the Massachu- setts Legislature intended to cover occupational diseases. In Mich- igan the court, in construing the Act, determined that it did not cover occupational diseases, even though the word "accident" was not contained in the principal clause. There were other provisions, however, of the Michigan Act for reporting accidents, and the title of the Act contained language which induced the court to hold that occupational diseases were not covered thereby. In California the original Act contained the word " accident," and after the court had held that it did not cover occupational diseases, the Legislature amended the Act, not by putting in a specific provision in relation to occupational diseases but merely by eliminating the word " accident." Under the Federal Act relating to certain governmental employes the word " accident " was not found in the principal clause, but was found in other portions of the Act in relation to reporting accidents. In this respect it was somewhat like the Michigan Act. The gov- ernment officials, who administered the law at first, determined that it did not cover occupational diseases. But this ruling was sub- sequently reversed under the officers appointed under President Wilson's first administration and the Act was construed to cover occupational diseases. It is thus seen that the British Act played a most important part in America on the points which have caused the greatest amount of discussion and also the most litigation. Great Britain, however, avoided much of the discussion and a good deal Digitized by Microsoft® THte BEITISH ANB GERMAN COMPENSATION ACTS 17 The general effect of the British Act on American statutes and decisions of the litigation by specifically providing by statute what the law- did and did not cover, while in America it has been left largely to judicial construction to discover the application of the various statutes. This subject is exhaustively discussed with the citation of authorities in Chapters XII and XIII. Digitized by Microsoft® CHAPTEE III. COMMON-LAW DEFENSES PAGE AbTICLE a — HiSTOEICAL REVIEW AND Changes Weought by Compensation Acts 18 1. Origin and nature of the so- called common-law de- fenses 18 2. Reason for abolishing the common-law defenses in relation to compensation acts 20 3. Burden of proof generally . . 23 4. To what extent common-law defenses have been abol- ished generally 25 5. When contributory negli- gence pleaded only in miti- gation of damages 29 6. Common-law defenses avail- able as against casual em- ploye 29 7. Negligence of the employer must still be shown in ac- tion for damages ....;.... 29 Article B — Specific Provisions OS Various Statutes 30 1. Alaslia 30 2. Arizona 30 3. California 32 4. Colorado 33 page 5. Connecticut 33 6. Hawaii 34 7. Illinois 34 8. Indiana 36 9. Iowa 36 10. Kansas 37 11. Kentucky 38 12. Louisiana 38 13. Maine . . 38 14. Maryland 39 15. Massachusetts 39 16. Michigan 40 17. Minnesota 40 18. Montana 41 19. Nebraska 41 20. Nevada 42 21. New Hampshire 42 22. New Jersey 43 23. New York 45 24. Ohio 45 25. Oklahoma 47 26. Oregon 47 27. Pennsylvania 48 28. Rhode Island 48 29. Texas 49 30. Vermont 49 31. Washington 50 32. West Virginia . . ■ 50 33. Wisconsin 51 34. Wyoming 52 ARTICLE- A— HISTORICAL REVIEW AND CHANGES WROUGHT BY COMPENSATION ACTS 1. Origin and nature of the so-called common-law defenses. The doctrines of assumption of risk, contributory negligence and negligence of fellow servant Lave played an important part in British and American law. Up to a very recent time the rule had long been established that a workman assumed all the risks which were neces- sarily incident to his employment and also all the risks which were obvious and concerning which he had actual information, or should Digitized by Microsoft® COMMON-LAW DEFENSES 19 Origin and nature of tlie so-called common-law defenses 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 risks thus assumed. The doctrine of assumption of risk has received much legislative attention, irrespective of the workmen's compensation statutes. It has been modified, from time to time, by the courts. Probably the most radical judicial modification of recent times is to be found in the case of Fitzwater v. Warren, 206 IST. Y. 355 ; 42 L. E. A. (N. S.) 1229n; 99 N. E. 1042. The Court of Appeals squarely overruled the leading case of Knisley v. Pratt, 148 N. Y. 372, 32 L. E. A. 367, 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 negligence of the employe contributed in any manner to the injury 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 " comparative negligence " has been adopted in some jurisdictions. The rule of contributory negligence in one form or another is still in force, however, in most of the jurisdictions where compensation laws have not been adopted. The fellow-servant doctrine dates from 1837, when it was estab- lished in Great Britain in the case of Priestley v. Fowler, 3 M. & W. 1. In that case two. butcher boys were on a wagon, being em- ployed 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. Go., 4 Met. 49,/Se^tozeBJttja^VlteA$^3S*@nnounced in the earlier 20 lieasojQ for abolisliing tUe common-law defenses British case. The same rule was subsequently promulgated and settled in the House of Lords in 1858, in the ease of Bartonshill Coal Co. V. Beid, 3 Marq. H. L. Cas. 266. The same doctrine was there- after followed by the courts of the various States of the Union. In Great Britain the doctrine was applied with great rigor. Em- ployes of all grades of employment were held to be fellow servants with those In practically every other grade. Ordinary seamen were held to be fellow servants of the captain. Iledley v. Pinkney & Sons 8. 8. Co., 1 Q. B. 58 ; 61 L. J. Q. B. 179. General superin- tendents and general managers were held to be fellow servants of laborers. Conway v. Belfast & Northern R. B. Co., 11 Ir. L. E. 345. ' In this country the fellow-servant doctrine was not applied uni- formly. 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 JSTational Legislature. The result was such a confusion that it would be -impossible to deduce general rules of anything like universal application from the con- flicting statutes and decisions of the courts of forty-eight States, the acts of Congress and the decisions of the Federal tribunals. 2. Reason for abolishing the common-law defenses in relation to compensation acts. Many of the so-called common-law defenses, the origin and develop- ment of which are discussed in the foregoing paragraph, were greatly modified, and, in some rare instances, entirely abolished, before the compensation statutes were enacted. The alternative abolition of these defenses in the compensation acts was hit upon as a plan to escape the constitutional question raised in the case of Ives v. South Buffalo By. Co., 201 K Y. 271 ; 94 K E. 431 ; 1 N. C. 0. A. 517 ; 34 L. R. A. CN. S.) 162; Ann. Cas. 1912 B, 156. In that case it was held that a "^^^^^^^g^^o^^^e^^^on^^ was unconstitutional. COMMON-LAW DEFENSES 21 Reason for abolishing tlie comaioia-law defensps^ The Legislature of New Jersey thereupon passed an optional com- pensation statute, under which if an employer failed to adopt the compensation principle, the oommon-law defenses of assumption of risk and negligence of fellow servant were abolished and the defense of contributory negligence was greatly modified, in actions by em- ployes against him for personal injuries due to negligence. Many of the other States followed the example of New Jersey. Recently several commonwealths have adopted constitutional . amendments permitting the legislatures to enact compulsory work- men's compensation statutes. Where these constitutional amend- ments have been adopted, the legislatures may enact compulsory compensation laws and are not driven to the necessity of taking this means of compelling employers to adopt the compensation principle. Moreover, since the Federal Supreme Court has upheld the consti- tutionality of compensation laws the necessity of this expedient no longer exists, so far as the common-law defenses are concerned. Only a few States have adopted such constitutional amendments thus far. In many of them the expedient is still employed of forcing employers to adopt the compensation principle by abolishing their common-law defenses. Practically the same expedient has been used to compel employers to insure their compensation liability. Thus it has been provided in the compensation acts of several States that if an employer fails to secure compensation payments by insurance, that an injured employe may elect, after the accident, whether to sue for common- law damages or claim compensation. In such an action for common- law damages the employer is deprived of the right to set up the de- fenses based on contributory negligence, assumption of risk or negli- gence of a fellow servant. Other penalties also have been prescribed for failure to insure compensation payments, some of the statutes going so far as to make it a penal offense. 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 of such an em- ployer 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 defenses. The statutes are not uniform, how- Digitized by Microsoft® 22 beadbuey's woekmen's compensation law Reason for abolishing the common-law defenses ever. In a very few 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 oommon-law defenses. In practically all of such cases, however, the election by the employe not to accept compensation must be made before the accident. In the following pages the question is discussed under the title of each State, showing exactly what the law is in the several common- wealths 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 statutes. Thus it is usually provided that compensation shall be refused when the injury is inten- tionally inflicted. The same result follows, according to some of the acts, if it was caused by intoxication or willful 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 compensation features of the statute which governs their relations. In the discussion of these questions, therefore, the distinction should always be kept in mind between purely compensation cases and actions for common-law damages. It must be remembered that all claims for personal injuries by employes against employers are not, in the present state of the law, based on the workmen's compensa- tion principle. This is due to the nature of the various workmen's compensation acts. None of these statutes, in the United States, covers all employers or all employes. This will appear more specifi- cally in the chapter To Whom Acts Apply. Eeference to that fact is made here merely to call attention to the changes wrought by the compensation acts in relation to claims for " compensation," under those statutes, as distinguished from actions for " damages " under the common law as modified by so-called employers' liability acts. While it is true that some of the workmen's compensation acts have been termed employers' liability statutes, in the acts themselves, this is a misnomer which is unfortunate. While all of these acts relate to the general subject of employers' liability, there is a clear line of demarcation between the old and the new principles. Briefly this Digitized by Microsoft® COMMON-LAW DEFENSES 23 Burden of proof generally distinction is found in the fact that under the old so-called employers' liability acts, as well as under the common-law, the " liability " of the employer was based on fault or " negligence; " while under the compensation acts liability is based on the mere fact of an injury arising out of and in the course of the employment, irrespective of fault or negligence on the part of the employer. The distinction must be kept in mind constantly, no matter what title has been pre- fixed by the legislatures of particular States to the statutes which they have enacted. Therefore, under the elective acts which provide that when an employer has failed to adopt the compensation principle an employe may sue for damages, the question of ^^hat defenses remain to the employer is important as well as the further question of upon whom the burden of proof rests in relation to these defenses. 3. Burden of proof generally. On the question of the burden of proof in relation to the common- law defenses there was much confusion prior to the enactment of compensation statutes. Under the common law generally the employe was required to prove, by a fair preponderance of evidence, every fact upon which his cause of action depended. He was compelled to prove that his master was negligent ; that he, the employe, was free from contribu- tory negligence; that is, that the injury was due exclusively to the negligence of the master. The common-law rule was modified even under the old employer's liability acts in many instances and in a few jurisdictions contributory negligence was made an affirmative defense as to which the employer had the burden of proof. In some jurisdictions this rule had been adopted by the courts prior to statu- tory enactment. On the question of the defense of 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. The compensation acts abolished all these burdens of proof by starting with the theory, in all purely compensation cases, that neither party was guilty of negligence and that the injury was the inevitable result of the particular employment. This being so, the law placed the burden on the employer, irrespective of negligence, of Digitized by Microsoft® 24 Burden of proof generally 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. But under elective compensation acts and also under compulsory acts there are certain employers and employes who have either rejected the compensation principle or as to whom the acts do not apply. In these cases the question of the burden of proof is still an important one. Naturally, in establishing claims for compensation there are also rules of procedure relating to the burden of proof. As a general rule this burden is on the employe to show that his disability is due to an injury arising out of and was received in the course of his employment. The employe is greatly assisted, under some of the acts, in sustaining this burden of proof, by certain presumptions in his favor, created by these statutes. Dependents of deceased work- men are also required to sustain the burden of proof of showing such dependency. But as to certain defenses, for example, that the injury was caused by the serious and willful misconduct of the em- ploye, or by his intention to injure himself, or by his intoxication, the burden is usually cast upon the employer. In a suit against the employer who has not adopted the Iowa Act the employer has the burden of proving that the servant was willfully negligent or that the servant's negligence was the result of his intoxi- cation. Hunter v. Colfax Consolidated Coal Co., Iowa ; 157 IS". W. 145. Also of showing that the injury was not caused by the employer's negligence. Hunter v. Colfax Consolidated Coal Co., Iowa ; 157 IST. W. 145, The Iowa law is optional, or elec- tive, and the employer can avail himself of the provisions or elect to reject the same, as he sees fit. It will be conclusively presumed that he has elected to be governed by the provisions unless he rejects the same in accordance with the requirements of the Act. In the event he elects to reject the Act or fails to provide the insurance required under § 2477 (M) 41, supplement to the Code of 1913, he will be liable to his injured employes the same as under the common- law, as modified by statute, and he cannot longer plead what is known as the three common-law defenses; that is, contributory negligence, fellow-servant rule and assumption of risk. He will also be required to rebut the presumption that the injury to his employe was the Digitized by Microsoft® COMMON-LAW DEFENSES 25 To what extent common-law defenses have been abolished direct result and growing out of the negligence of the employer and that such negligence was the proximate cause of the injury. See Opinions of Attorney General in Leg. Op. Iowa Ind. Com. (1915), 3. An employer who has rejected the Michigan Act has the burden of proving that an accident is due to contributory negligence and willful negligence. Freeman v. East Jordan and S. B. Co. (1916), Mich. ; 158 N. W. 204. 4. To what extent common-law defenses have been abolished- generally. Under the Wisconsin Act the common-law defenses are abolished as to those who do not come under the Act and it is held in this respect that the rule that legislation in derogation of the common-law should be construed strictly against a purpose to change it, has little application, and that the statute should be construed liberally in favor of its purpose. Sadowski v. Thomas Furnace Co., 157 Wis. 443 ; 146 N. W. 770. Under the Illinois Act of 1911, where the employer has elected not to come under the Act, he cannot escape liability for injuries sustained by an employe because of the employe's assuming the risk, or because the injury or death was proximately caused by contribu- tory negligence of the employe. Bell v. Toluea Coal Co., 272 111. 576; 112 N". E. 311; Deiheikus v. Link-Belt Co., 261 111. 454; 104 N. E. 211 ; 5 N. C. C. A. 401. On this point the Court states in the Deiheikus case: "To deprive an employer " (under an elective act) . " of the right to assert those defenses is not an exercise of the police power, but is merely a declaration by the Legislature of the public policy of the State in that regard. The right of the Legislature to abolish these defenses cannot be seriously questioned. The rules of law relating to the defenses of contributory negligence, assumption of risk, and the effect of negligence of a fellow servant were established by the courts, and not by our Constitution, and the Legislature may modify them or abolish them entirely, if it sees fit to do so." Where an employer has elected not to be bound by the provisions of the Act he loses his common-law defenses even though the employe has elected to come under the Act, because, under the Illinois Statute of 1911, an employe e^^^no^^Ie^^to con|^^ander the Act where the 26 bkadbuey's workmen's compensation law To what extent common-lavY defenses have been abolished employer had elected not to be bound by it. Dietz v. Big Muddy Coal & Iron Co., 263 111. 480 ; 105 IST. E. 289 ; 5 IST. C. C. A. 419. - Where counsel for a receiver of a railroad, appointed as such "by an order of the court, filed a letter with the Illinois Board rejecting the Compensation Act, it was held that the authority of the counsel was sufficient to make this election for the receiver, and that in an action by the employe against the receiver, for negligence, the receiver would not be permitted to set up the common-law defenses of assumption .of risk and contributory negligence. Devine v. Delano, 272 III. 166; 111 ]Sr. E. 742. Where an employe had not accepted the provisions of the Illinois Act of 1911, it was held that a complaint because of an injury to a workman need not allege that the employe had not accepted the Act, since the rejection by the employer precluded the employe from the right of election. Favro v. Superior Coal Co., 188 111. App. 203; N. E. . Where an employer was not a subscriber under the Massachusetts Act the only question in an action for personal injury to an employe is the negligence of the employer, and the defenses of assumption of risk and contributory negligence and negligence of fellow servant are not involved. Pope v. Hey wood Bros. & Wakefield Co., 221 Mass. 143; 108 IST. E. 1058; Dooley v. Sullivan, 218 Mass. 597; 106 N. E. Eep. 604. But the doctrine of the early Massachusetts cases has been materially modified by a later decision. Thus in allowing an employer who had not adopted the compensation prin- ciple to defend a case on the assumption of risk by the employe, with- out pleading this defense, the Supreme Judicial Court of Massa- chusetts drew a distinction between the assumption of a risk which grew out of the negligence of the employer and the assumption of a risk which the employe assumed by virtue of his contract of em- ployment. The latter the court denominates a contractural assump- tion of risk and describes it as the risk which is necessarily incident to the employment itself even though such employment may be dan- gerous. Such an assumption of risk is not one which the employer is precluded from setting up by the Workmen's Compensation Act where he has not elected to operate under that Act. The other assumption of risk which the employer will not be permitted to set up under such circumstances is where an employe suffers an iniurv Digitized by Microsoft
Under the Wisconsin Act where an employer has elected to come under the Act and an employe has not so elected, the employer may rely on the defenses of assumption of risk, negligence of fellow servant and contributory negligences. Earny v. Northwestern Malleable Iron Co., 160 Wis. 316 ; 151 IST. W. 786. The use by a servant of a stepladder which was visibly defective, but which he was specifically commanded by his master to 'us«, was held to constitute an assumption of risk which was not a defense and not contributory negligence under the Wisconsin Act. Puza v. C. Henneche Co., 158 Wis. 482 ; 149 IST. W. 223. Even under, the Workmen's Compensation Act a master is not Digitized by Microsoft® COMMON-LAW DEFENSES 29 Negligence of employer must still be shown in action for damages bound to furnish servants with a safe place to work where such place is being changed from time to time and the servants make their own place of work. Salus v. Great Northern Ry Co., 157 Wis. 546; 147 K W. 1070. Under the Wisconsin Act it was held that any violation of the Act of 1911, whereby a penalty of $100 was imposed, did not make such violation a crime to the extent of depriving the employer of the defense of contributory negligence by the employe. Besnys v. Her- man Zohrlaut Leather Co., 157 Wis. 203 ; 147 N. W. 37. Under the Texas Act where an employer has less than five employes and is a non-subscriber the employe may bring an action for common- law damages against the employer, but the provisions of section 1 of the Act abolishing common-law defenses does not apply in such a case. Hodges v. Swastika Oil Co.. Tex. Civ. App. ; 185 S. W. 369.. 5. When contributory negligence pleaded only in mitigation of damages. Under the Iowa Act in an action against an employer who has rejected the Act contributory negligence or negligence resulting from intoxication can be pleaded only in mitigation of damages and on this defense the employer has the burden of proof. Hunter v. Colfax Consolidated Coal Co., Iowa ; 157 N. W. 145. Under the Texas Act where a man elected to sue for common-law damages the jury found that the damages were $4,000, but that they should be reduced by the sum of $2,000 because of the contributory negligence of the employe and this recovery was sustained. Postex Cotton Mill Co. V. McCamy, 184 S. W. 569. 6. Common-law defenses available as against casual employ6. Under the Connecticut Act the common-law defenses are available to an employer of a casual employe who is not protected by the Act. Thompson v. Twiss, Conn. ; 97 Atl. 328. 7. Negligence of the employer must still be shown in action for damages. The abolition of defense of assumption of risk asi to an employer who has rejected the Iowa Act does not prevent the employer from showing that he was ^^f^tSi^/WSr^d^k)^^ ^^^°^ ^^^^ ^^^^® ^^° 30 Arizona be no recovery by the employe Hunter v. Colfax Consolidated Coal Co., Iowa ; 154 IST. W. 1037. The same rule is applied under the Massachusetts Act as against an employe who is not a subscriber. Walsh v. Turner Center Dairying Ass'n, 223 Mass. 386; 111 ]Sr. E. 889. Where an employe sues an employer who has. failed to adopt the compensation act the employe must both allege and prove negligence before he can recover. Spivok v. Independent Sash & Door Co. (1916); Cal. ;160Pac.565; IST. C. 0. A. ; Stornelli V. Duluth 8. a. & A. Ry. Co. {IQIQ), Mich. ; 160 N. W. 415; W, C. C. A. ; Williams v. Southern Pac. Co. ( 1 9 1 6 ) , Cal. ; 160 Pac. 660 ; K C. C. A. ; Price v. Clover Leaf Coal Mining Co., 188 111. App. 27. ARTICLE B — SPECIFIC PROVISIONS OF VARIOUS STATUTES 1. Alaska. If the employer does not elect to adopt the oompensation principle the defenses of assumption of risk, negligence of fellow servant and contributory negligence (unless willful or due to intoxication) are abrogated and the employer's negligence is presumed to be the proxi- mate cause of the injury. L. 1915, c. 71, §§ 29, 36. If the employer adopts the compensation principle and the employe elects to reject the Act the common-law defenses of the employer are available, except the assumption of risk growing out of the employer's violation of a safety statute. Id. § 33b. 2. 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 neces- sarily be read together. The Workmen's Compensation Act proper, which is Chapter VII of the codification of the Laws of 1913, relating to Employer and Employe, provides that employei-s in certain speci- fied trades shall pay compensation to their employes according to a schedule contained in that chapter. By section 68 of Chapter VII, it is further providedcl%«(?^^b3J8iy<»©©'(SSo]5t@mploye or his personal COMMON-LAW DEFENSES 31 Arizona representative shall refuse to settle for such compensation (as pro- vided 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 Constitu- tion) he may so refuse to settle and may retain said right." Therefore, the above section gives the employe the right to elect, after the accident, whether he will claim under the compensation law or will sue for damages under the Employers' Liability Act, which is Chapter VI of the revision of 1913. Of course, if he accepts com- pensation no question of common-law defenses arises. But by Chap- ter 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 hazardous occupations speci- fied in Chapter VI are exactly the same hazardous occupations that are specified in Chapter VII, which latter chapter is the Compensa- tion 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." Erom 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 negli- gence and asisumption of risk these defenses are so strictly regulated in section 61 of Chapter VI as to be of little value to the employer. While the section last mentioned speaks of the question of whether or not the employe " assumed the risk," there is nothing else in the statute that would indicate that assumption of risk is a defense in any case, although there is such a provision in the Constitution. Section 57 of Chapter VI provides that the employer shall pay damages in all cases except where the injury or death is caused by the negligence of the employe killed or injured. It would seem, therefore, that the defense of contributory negli- gence 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 assiiSsg/tHecfctfyBMlCAiasMgrto the jury in all cases. California 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 employe against an employer whether or not the parties are engaged in the so-called hazardous employments specified in Chapters VI and VII. 3. California. The Compensation Act (L. 1913, c. 176 ; am'd L. 1915, cs. 641, 607, 662), is a compulsory workmen's (compensation law as to all employers and employee except those excluded by section 14, and an elective law as to the occupations specified in section 14. The man- ner of electing to adopt the compensation principle by those in the excluded occupations is specified in section 87. Where both employer and employe have adopted the compensation principle the right to demand compensation is exclusive except when the injury is caused under the circumstances specified in section 12 (b) relating to gross negligence or willful misconduct on the part of the employer, in which case the employe may " at his option, either claiib compensation under this Act or maintain an action at law for damages." .Under the law as it now stands, the common-law defenses of the employer are abolished when an action is brought under section 12 (b), or by an employe in the excepted classes specified in section 14 when the employer has failed to signify his election to adopt the compensation principle. There is nothing in the Act of 1913, as amended in 1915, relating to the abolition of common-law defenses. The Eoseberry Act of 1911 was elective, but applied to all occupations and specified that such employers as failed to adopt the compensation principle should not be permitted to set up the common-law defenses in actions against them by their employes. The Act of 1913, in section 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 aboli- tion of defenses in common-law actions it is not in all respects incon- sistent with that portion of the Eoseberry Act of 1911, which abolishes common-law defenses under certain circumstances. Following this reasoning the California Industrial Accident Commission has held that an employer's common-law defenses axe abolished as to both of Digitized by Microson® COMMON-LAW DEFENSES 33 Connecticut these classes of employers. That is if employers employing workmen in the excepted classes specified in section 14 do not elect, under sec- tion 87, to adopt the compensation principle, they are .deprived of theip common-law defenses in actions by their workmen against them. Actions under section 12 (b) rest on a somewhat different basis. Subdivision (c) of section 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 Commission that when an employe has a right to sue for damages, under section 12 (b), that " the conditions of compensation do not concur," and therefore the employe's rights revert back to so much of the Eoseberry Act as has not been repealed by the Act of 1913. Under section 3 (3) of the Eoseberry 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. 4. Colorado. As to employers who do not adopt the compensation principle, or who have adopted the compensation principle and have not secured compensation payments by insurance, the common-law defenses are abolished. Senate Bill No. 99, Act approved April 10, 1915, §§ 5 and 9. If the employer has elected to come under the Compensation Act and has secured compensation payments by insurance and the em- ploye has rejected the Act then the employe has the benefit of the common-law defenses. Id. § 7. The Act does not apply to domestic servants or to farm or ranch laborers, nor to casual employes, nor to employers who employ less than four employes regularly in the same business. As to the em- ployers of such employes, therefore the common-law defenses are not abolished by the Compensation Act. 5. Connecticut. Under the Connecticut Compensation Act, if the employer elects to accept the compensae<8^/?efcfeJl)M/(af!©^C4@©plies with Part B, f c- 3 34 Illinois tion 30, he lias 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, section 30, then his common-law defenses are abolished in any action which an employe may bring against him based on negligence causing per- sonal injury. Part B, §§ 4, 42. If the employer accepts the com- pensation principle and the employe rejects it, then the employer has the benefit of the common-law defenses. Part B, § 4. Such defenses are not abolished, however, as to employers " hav- ing regularly less than five employes." Nor in relation to suits by casual employes or outworkers. Part A, § 2. If an employer who has otherwise elected to adopt the compensa- tion principle fails to effect proper insurance, or to satisfy the com- pensation commission of his financial ability to carry his own in- surance, 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 ; L. 1913, c. 138; am'd L. 1915, c. 288. 6. Hawaii. The Act of Hawaii is compulsory and therefore it is not necessary to abolish the common-law defenses in order to compel the employer to adopt the compensation principle. Acts of 1915, No. 221, ap- proved April 28, 1915, effective July 1, 1915. 7. 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 section 3 (b) 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 employ^ 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 section 3 (b) they may or may not adopt ^0/S2giPg|^|i^A%J0-^iple as they please, and COMMON-LAW DEFENSES 35 Illinois if tbey 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 com- pensation principle and any of their employes refuse to accept com- pensation and stand on their common-law rights, 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. Section 1(c). In Illinois it is very difficult to determine just which employers come within the provisions of class One. Section 3 (b) specifies certain trades, the employers of which are included in class One, and then the following three paragraphs are added : " 6. Any enterprise in which explosive materials are manufac- tured, handled or used in dangerous quantities ; " 7. In any enterprise wherein molten metal, or explosive or inju- rious 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 employes or the public therein; each of which occupations, enterprises 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 im- possible 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 Illinois which might, come within the provisions of section 3 (b) 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. Digitized by Microsoft® 36 Iowa "Any person whose employment is but casual or who is not en- gaged in the usual course of the trade, business, profession or occupa- tion of his employer " is excluded from the operation of the Act. § 5, subd. second. Farm laborers and those engaged in stock raising are also specifically excluded from the operation of the Act. § 3 (b) 8. As to actions by such employes therefore the common-law de- fenses are not abolished. 8. Indiana. If the employer does not elect to adopt the compensation principle his common-law defenses are abolished. L. 1915, c. 106, § 10. But if the employer elects to adopt the compensation principle and an employe rejects it, then the common-law defenses are available to the employer to the same extent " as such dfenses exist at common law." Id. § 11. In order to limit the liability to the amounts provided in the Act the employer must insure compensation payments. Id. §§ 5, 6. The Act does not apply to casual employes nor to farm or agricul- tural laborers or domestic servants. Id. § 9. 9. Iowa. If an employe rejects the terms of the Act as to an employer who has elected to pay compensation " the employer shall have the right to plead and rely upon any and all defenses including those at com- mon 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." L. 1913, c. 147, § 3 (b). If both the employer and employe reject the Act the liability of the employer is the same as though the employe had not rejected it. Id. § 5. If the employer fails to insure compensation claims he is liable under section 1 of the Act without the right to set up the common-law defenses. Id. Part III, § 42. As the Act does not apply " to any household or domestic 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. Digitized by Microsoft® COMMON-LAW DEFENSES 37 Kansas 10. Kansas. The Kansas Act applies primarily to the employers engaged in the occupations specified in section 6 who have employed 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. L. 1911, c. 218, as am'd by L. 1913, c. 216, § 8. All other employers mcuy adopt the compensation principle. Id. § 8. As to the first class, if they do not adopt the compensation prin- ciple they will not be permitted in actions against them by their employes to 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 such employe was guilty of contributory negligence but such contributory negligence of said employe shall be considered by the jury in assessing the amount of recovery." Id. § 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 iip 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 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." Id. § 47. "Agricultural pursuits and employments incident thereto 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 em- ployed 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 defense^j^^^^^o^^abi^ated.^^ 38 BEADBWEY^S WOHKMEn's COMPENSAtlON LAW Maine 11. Kentucky. If the employer does not elect to adopt the compensation principle he is liable for damages, and in such actions he is deprived of the defenses of contributory negligence, negligence of fellow servant and assumption of risk. Senate Bill No. 40, L. 1916, § 76a. If the employer elects to adopt the compensation principle and the employe rejects it, the common-law defenses are available to the employer. Id. § 76b. / The Act does not apply to domestic servants, farm laborers or to employers who regularly employ less than five employes. Id. §§ 1-2. If the employer fails to secure insurance in a manner provided for in the Act, the employer is liable in the same way that he would have been if he had failed to adopt the compensation principle and in such a case if the employe elects to sue for damages the employer is deprived of the common-law damages. Id. § 63. 12. Louisiana. Common-law defenses are abolished as to employers who do not elect to adopt the compensation principle. Act N"o. 10, Session Acts 1914, § 4. If an employer elects to adopt compensation and an employe re- jects it, then the employer has the benefit of the common-law defenses. Id. § 5. The act only applies to certain hazardous employments which are enumerated in the statute, and therefore the common-law defenses are not abolished as to employers not engaged in these hazardous employments. Id. § 1. 13. Maine. Common-law defenses are abrogated except in actions by domestic servants, those engaged in agricultural or logging operation or against employers who regularly employ not more than five employes in the same business. L. 1915, c. 295, §§ 2-4. As to employes who reject the Act when employed by employers who have adopted the compensation principle the employers retain the common-law defenses. 7cZ. § 5. Employers must insure compensation claims in order to comply with the statute in adopting the compensation principle. Id. § 6. Digitized by Microsoft® COMMON-LAW DEFENSES 39 Massachusetts 14. Maryland. The Maryland Act is compulsory and therefore it is not necessary to abolish the common-law defenses to induce employers to adopt it. L. 1914, c. 800. 15. Massachusetts. The Massachusetts Act abolishes absolutely the three oommon-law defenses as to employers who do not electa to come under the com- pensation feature of the statute, except in actions " by domestic servants and farm laborers." L. 1911, c. 751. 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 Su- preme Court of Massachusetts have held that this exception does not render the Act unconstitutional. Opinion of Justices, 209 Mass. 607; 96 K E. 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 contribu- tory negligence or negligence on the part of a fellow servant which falls short of the serious and willful 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 inti- mate any opinion whether it would be unconstitutional if otherwise 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 legis- lature 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 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.' See Missouri Pacific Railway v. Machey, 127 U. S. 205 ; lAnnesota Iron Co. v. Kline, 199 U. S. 593." It would seem, therefore, that serious and willful misconduct on the part of an employe would defeat his cause of action against an employer in a common^^y^^ga jf^^gg^^j e^en though the em- 40 BEADBtTEY's WOEKMEn's COMPENSATION LAW Minnesota ployer 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, ' business or profession or occupation of his employer " nor to masters or seamen on vessels engaged in interstate or foreign commerce (Part V, § 2), in actions by such employes the common-law defenses are not abolished. See discussion, p. 25j as to when defense of assumption of risk is abolished. 16. Michigan. Employees who fail to adopt the compensation principle are de- prived of their common-law defenses except willful negligence. As the portion of the Workman's Compensation Act that abolishes these defenses does not apply to employers who have adopted the compen- sation principle it does not make any difference what action an em- ploye takes. If an employer has adopted the compensation principle and an employe 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 abolishing them does not apply to such an employer at all. " Household domestic servants and farm laborers " are specifically excluded from the provisions of the Act abolishing the common-law defenses. § 2. A person " whose employment 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 therefore the common-law defenses are not abrogated. 17. Minnesota. If the employer elects not to operate under the compensation statute, he loses the right to set up the defenses of assumption of risk, negligence of fellow servant and contributory negligence of the plain- tiff, but he may set up willful 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 compensatimi statute. See sections COMMON-LAW DEFENSES 41 Nebraska quoted below: L. 1913, c. 467; as am'd L. 1915, cs. 193, 209; Part I, §§ 1-6. L. 1913, c. 467; as am'd L..1915, cs. 193, 309; Part I, §§ 1-6. " This Act shall not be construed or held to apply to any common carrier by steam railroad, domestic servants, farm laborers or per- sons whose employment at the time of the injury is casual, and not in the usual course of the trade, business, profession or occupation of his employer." Id. Part II, § 8. In actions by such employes, therefore, the common-law defenses are not abrogated, *^ 18. Montana. Common-law defenses are abolished except as to domestic servants, farm laborers and casual employes. L. 1915, c. 96, §§ 3a and 3b. If an employer adopts the compensation principle and an employe rejects it, then in an action by the employe the employer has the benefit of the common-law defense. Id. § .3c. The employer must furnish security either by showing that he is financially responsible or must deposit such bonds as are approved by the Industrial Accident Board to secure compensation payments. Id. Part II, § 30. 19. Nebraska. The defenses basea on assumption of risk and the fellow-servant rule are abolished as to employers who fail to adopt the compensa- tion principle. The defense of contributory negligence is greatly modified as to such employers. If, however, the employe refuses to follow the employer in adopting the compensation principle the de- fenses are restored to the employe. L. 1913, c. 198 ; Part I, §§ 2-5. " The following are declared not to be hazardous occupations and not within the provisions of this Act: employers of household domestic servants, employers of farm laborers and all employers em- ploying le^ than five employes, in the regular trade, business, pro- fession or vocation of such employer. Kailroad companies engaged in interstate or foreign commerce are declared subject to the powers of Congress and not within the provisions of this Act." Part I, ■ § 6 (2). In actions by employes in the excepted classes above, there- fore, the common-law defenses are not abrogated. ' Digitized by Microsoft® 42 BEADiUKY's "WOEKMEn's COMPENSATIOjST LAW New HampsMre 20. Nevada. If the employer fails to adopt the compensation principle the de- fenses of assumption of risk, negligence of a fellow servant and con- tributory negligence are entirely abolished, although the employer may still plead that the negligence of the plaintiff was willful and with intent to cause the injury, or that the injury was the result of intoxication on the part of the injured party. L. 1913, c. Ill, § 1. If the employer accepts the compensation principle and the employe rejects it, then the employer may set up any of the common-law de- fenses in an action brought by such employe. Id. § 2 (b). If, how- ever, the injury is due to a violation of a safety statute the defense of assumption of risk is not available to the employer, even though the employe rejects the compensation principle after his employer has adopted it. Id. § 2, (b). " Where the employer and employe elect to reject the terms, con- ditions and provisions of this Act, the liability of the employer shall be the same as though the employe had not rejected the terms, conditions and provisions thereof." Id. § 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 negligence of the employer; and that such negligence was the proximate cause of the injury; and in stich case the burden of proof shall rest upon the employer to rebut the presumption of negligence." 7d § 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. Id. § 1 (a). It does not apply to domestic servants or farm laborerb. Id. § 43. Therefore, in actions by domestic servants or farm laborers, or an employe of an employer M'ho does not have two or more employes the common-law defenses are not abrogated. 21. New Hampshire. The New Hampshire Act applies to a limited number of employ- ments only. L. 1911, c. 163, § 1. As to employes in the occupation specified it is provided that " the workman shall not be held to have assumed the risk o^i^j^^^jflj^;pgsm®nj cause specified in this COMMON-LAW DEFENSES 43 New Jersey section ; but there shall be no liability under this section for any in- jury to which it shall be made to appear by a preponderance of evi- dence 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 section 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 Commissioner of Labor and furnish- ing the bond required by section 3. It is provided, however, " that the employer shall at the election 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 willful 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 section 1 of the Act. By section 4 of the Act it is provided in effect that the workmen may elect after the accident to either claim compensation or sue for damages. If, however, the employer has elected to pay compensa- tion and filed the bond required by section 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. 22. New Jersey. Under the ISTew Jersey Act the defenses of assumption of risk and negligence of fellow servant are absolutely abolished. L. 1911, c. 95, § 1 (2). The defense of contributory negligence is modified prac- tically to the point of abolition. In its place there is provided a defense of willful negligence, and "the question of whether the employe was willfully negligent shall be one of fact to be submitted to the jury, subject to the usual superintending powers of a court to set aside a verdict rendered contrary to the evidence." Id. § 1 (1). " In all actions at law brought pursuant to Id. § 1 of this Act, the burden of proof to estajblish willful negligence in the injured employe shall be upon the defen^^'gc/^ kihr^h® 44 New Jersey " For the purposes of this Act, willful 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." Id. § 3 (23). While the iN'ew 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 re- ject 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 actions. Of course, the employes must indicate a rejection before the accident happens or they will be bound by the purely campensa- tion feature of the statute. " § 1-4. Application of Act in case of death. The provisions of paragraphs one, two and three shall apply to any claim for the death of an employe arising under a-a act entitled ' An Act to pro- vide for the recovery of damages in cases where the death of a per- son is caused by wrongful act, neglect or default,' approved March third, eighteen hundred and forty-eight,^ and the ajnendments thereof and supplements thereto." L. 1911, c. 95, as am'd by L. 1913, c. 174. 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 per- sons who perform service for another for financial considerations, exclusive of casual employments." By the provisions of section I, subds. 1 and 2, the defenses of negli- gence 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 section I are very broad in this 'respect. Inasmuch as subd. 23 of section III provides, in effect, that the 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 ^^j^ffiMfSJ^I^mf^SOft® COMMON-LAW DEFENSES 45 Ohio word employe as used in the Act shall not apply to those in casual employments, it would seem that casual employes 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 em- ployers may set up the common-law defenses, in any event, in actions for personal injuries due to negligence. 23. New York. The ISTew York Act of 1913 is compulsory in form as to certain specified employments and elective as to those engaged in employ- ments other than those enumerated therein. There is no necessity, therefore, of abolishing the common-law defenses as to those engaged in hazardous employments. There are certain circumstances, how- ever, under which the ordinary common-law defenses are abrogated as to employers. If any employer who is brought under the Act either by compulsion or election fails to assure the compensation payments, as provided in section 50, then his employes have a right to elect, after an accident, whether they will claim compensation or demand damages. Should 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. L. 1913, c. 816 ; as re-enacted and am'd, L. 1914, c. 41, and further am'd L. 1914, e. 316; L. 1915, cs. 167, 168, 615, 674, § 11. 24. Ohio. The Ohio statute is .compulsory in form and applies to all em- ployers 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 compensation principle and be re- lieved 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 ^{)}§jMd%^l^hr8mlW^^ ^^^ damage suffered 46 beadbuey's workmen's compensatioi^ law Ohio by reason of personal injuries, and in such a case the employer can- not 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 Industrial 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 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. § 1465—69. The principal section of the Ohio Act abolishing common-law defenses provides as follows : " 1465-73. § 26. Employers mentioned in subdivision two of sec- tion thirteen (§§ 1465-60) hereof, who shall fail to comply with the provisions of section twenty-two (§§ 1465-69) hereof, shall not. be entitled to the benefits of this act during 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 personal 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 assump- tion 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 abrogajted. Digitized by Microsoft® COMMON-LAW DEFENSES 47 Oregon 25. Oklahoma. The Oklahoma Act is compulsory and therefore it is not necessary to abolish the common-law defenses in order to compel employers to adopt the compensation principle. The employers are required to secure compensation payments by insurance and if they fail to do so actions for common-law damages must be maintained, in which actions the employers are not per- mitted to set up common-law defenses. House Bill 106, Session of 1915, approved March 22, 1915, Art. 2, § 2. 26. Oregon. The Oregon law is an elective State insurance plan relating to certain specified hazardous employments, and is modeled, to a con- siderable extent, on the Washington law, except that the latter is a compulsory statute. Unless any employer in the trades or occupa- tions 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 willful act of the workman for the purpose of sustaining the injury. L. 1913, c. 112, § 15. If the workman elects to reject the provisions of the compensation statute " such workman shall in no wise be subject to the pro- visions or entitled to any of the benefits hereof." Id. § 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 provisions of this Act and become subject thereto and entitled to the benefits thereof by filing with the Commission their written election to that effect." Id. § 31. This appears to require joint action on the part of em- ployers and workmeuj but there does not appear to be any penalty as to either employers or workmen, if they fail to elect to operate under the compensation principle when they are engaged in non-hazardous employments. Digitized by Microsoft® 48 beadbdey's woekmen's compensation eaw Rhode Island. 27. Pennsylvania. The common-law defenses are abolished as to employers who do not elect to come under the Act. Act 338, L. 1915. It would seem that this abolition of defenses applies in all oases where both employers and employes have not elected to come under the Act because there is no provision in the Act limiting the application of section 201 where the employer has elected to adopt the compen- sation principle and the employe has elected to reject it. The act, however, does not apply to casual employes nor to out- workers. Id. § 104. Domestic servants and those doing agricultural- service are also excluded by a special Act. Act 343, L. 1915. If the employer fails to comply with the requirements as to insur- ing compensation the employes may either claim compensation or bring actions for damages in which event the common-law defenses are abolished. Act 338, L. 1915, § 305. 28. Rhode Island. The Ehode 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 become subject to the provisions of this Act." L. .1912, c. 831, Article I, § 3. Nor does the Act apply to employes engaged in domestic service or agriculture. As to other employers and employes the three common-law de- fenses are abolished unless the employer adopts the compensation principle, in which case the employer retains such defenses, as to any employes who reject the compensation feature of the statute. Sections 1 and 4 of Article I of the Ehode Island statute reads as follows: "Art. I, § 1. Removal of defenses. In an action to recover dam- ages for person injury sustained by accident by an employ^ 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 : (a) That the employe was negligent; (b) that the injury was caused by the negligence of a fellow employe; (c) That the employe has assumed the risk of th^ injury." ******** « § 4. ^""P^oygi^^fo^^ft^i^o^p^^^^^pensation. The provisions COMMON-LAW DEFENSES 49 Vermont 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." 29. Texas. Employers subject to the Act who do not adopt the compensation 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. L. 1913, c. 179, Part I, § 1 (1). The Act does not apply to domestic servants, farm laborers, rail- road employes, workmen engaged in cotton gins, nor to the employes of any employer having in his employ not more than five employes. Id. Part I, § 2. 30. Vermont. If the employer fails to adopt the compensation principle he is prohibited from setting up the common-law defenses in actions for damages by employes. L. 1915, c. 164, § 2. If the employer adopts the compensation principle and the em- ploye rejects it then the common-law defenses are restored to the employer. Id. § 3. The Aot does not apply to casual employes or those not engaged in the employer's trade or business or to domestic servants or to em- ployes whose remuneration exceeds $1,500 per year and therefore in an action by such employes the common-law defenses are not abolished. Id. §§ 4, 5 and 58. Employers must secure compensation payments by insurance. Id. §45. While the act provides that an injunction may issue against an employer if he fails to secure insurance, it does not provide that the common-law defenses shall be abolished as to such employers who fail to secure insurance. It is possible, however, that the Act may be constructed to provide that securing compensation insurance is a pre- requisite to a proper election to come under its provisions. ^ Digitized by Microsoft® 50 beadbuey's woekmen's compensatioit law West Virginia 31. Washington. The Washington Act applies to certain hazardous employments. 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 compensa- tion from the State insurance fund. Should the employe elect to sue for damages in such a (jase, or should the State sue the defaulting employer (as it may) after the employe has elected to take compensa- tion, in " any suit brought upon such a cause of action the defense of fellow servant and assumption of risk shall be inadmissible, and the doctrine of comparative negligence shall obtain." L. 1911, c. Y4, §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 tljie Act as to compensation, but there is no penalty if they fail to do this. Id. § 19. 32. West Virginia. The West Virginia Act is an elective State insurance plan appli- cable to all employes except domestic servants and farm laborers. Employers can adopt the compensation principle by either contribut- ing to the State insurance fund or becoming self -insurers. L. 1913, c. 10; as am'd L. 1915, c. 9; L. 1915 extra session, c. 1. "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 suifered by reason of personal injuries sus- tained in the course of employment 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 or personal representative thereof such defend- ant shall not avail himself 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 further shall not avail himself of any defense that the negligence in question was that of someone whose duties^ are prescribed by statute." § 36. Digitized by Microsoft® COMMON-LAW DEFENSES 51 Wisconsin But they may carry their own risks upon furnishing satisfactory security, in which event the defenses are not abolished. Id. § 54. • The Act does not apply to casual employes ; nor to domestic ser- vants, agricultural laborers, persons prohibited by law from being employed, traveling salesmen, employes who are employed wholly without the State, nor to members of a firm of employers, nor to any officer of an association or of a corporation employer, and this excep- tin excludes managers, superintendents, assistant managers and assistant superintendents. Id. § 9. 33. Wisconsin. The Wisconsin Act is elective and as to all employers who do not adopt the compensation principle they are not permitted to set up the defense " that the employe either expressly or impliedly assumed the risk or the hazard complained of," and where such employer " has at the time of the accident in a common employment four or more employes " it shall not be a defense " that the injury or death was caused in whole or in part by the want of the 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 oare was not willful." L. 1911, c. 50; am'd L. 1913, e. 599, L. 1915, cs. 121, 241, 316, 369, 378, 462 and 582. 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 com- mon employment and who fail to adopt the compensation principle. If an employer has fewer than four employes he is deprived of the denfense 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, employers may set up the common-law defenses in any action which such employes may bring against them, because the provisions abolishing the com- mon-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 occupation of his Digitized by Microsoft® 52 bbadbuey's woekmen's compes-sation law Wyoming einployer " is eyoepted from the operation of the Wisconsin Act. Id. § 2394-7, subd. 2. In actions by employes in the excepted class, therefore, the common-law defenses are not abrogated. ,It will be observed that under the Wisconsin Act two distinct classes are excluded by reason of the disjunctive conjunction " or," which is used between the 'two phrases. That 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 con- junctive conjunction " 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 -occupation 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. Switching crews on railroads are excluded unless they voluntarily adopt the Act. § 2394-8 (3). 34. Wyoming. The Wyoming Act is a compulsory State insurance plan and, therefore, the abolition of common-law defenses is no part of the schpme. L. 1915, c. 124. Digitized by Microsoft® CHAPTER IV. BRIEF HISTORICAL REVIEW OF COMPENSATION LEGISLATION IN AMERICA PAGE PAGE Abticle a — General View 53 2. Brief review of tlie Ameri- 1. Efforts to pass compensation can laws thus far passed. 55 acts in the United States . . 53 ARTICLE A— GENERAL VIEW 1. Efforts to pass compensation acts in the United States. In the United States a very limited 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 de- cision 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. Cunninghum v. Northwestern Improvement Co., 44 Mont. 180; 119 Pac. 554; 1 K C. C. A. 720. The decision of the Montana court was on very narrow grounds. Many of the principles underlying compensation statutes were sus- tained 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 com- pensation under the Act or sue for damages under the common law as modified by statutes other than the compensation law. It is to be observed that the British Act still permits this election. That is, an employe may sue for common-law damages on the ground of negli- gence and if he fails in the action he may ask the court in which the action is brought to assess the compensation which may be payable, under the Act. Congress passed a compensation act in 1908 applicable to certain specified employes of the United States government. (Act of May 30, 1908.) This has been extended from time to time to cover other employs, but is not yet universal in its application. (Acts of March 4, 1911; March 11, 1912; July 27, 1912, and September 7, 1916.) Digitized t^^icrosoft® 54 beadbuky's woekmen's pompensatiox law Efforts to pass compensation acts in the United States !N^ew York passed a compensation act in 1910, which law was made Article l4a of the Lahoi- Law, being Chapter 674 of the Laws of 1910. This was a compulsory workmen's compensation act applying tp certain hazardous employments. This law was declared to be unconstitutional by the Court of Appeals in January, 1911, in the case of Ives v. South Buffalo Railway Co., 201 IST. Y. 271 ; 94 N. E. 431 ; 1 ]Sr. C. C. A. 517 ; 34 L. E. A. (IST. S.) 162n. The particular point of that decision was that a law which imposed upon an employer who had not been guilty of any fault, the obligation to pay compen- sation for injuries occurring by reason of a danger which was inherent 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 Constitution and under section 6, Article I, of the State Constitution. In the same year that the compulsory law, which was held to be unconstitutional, was passed, the Legislature of iN'ew 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 Legislature passed a constitutional amendment permitting the enactment of a compulsory law and the amendment was adopted by a 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 to which reference is made 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 legis- lation. 'New Jersey was the first to hit upon a plan of adopting an elective or optional workmen's compensation law. That is, em- ployers were permitted to elect whether they would accept the prin- ciples of the Compensation Act and agree to pay their workmen the schedule of compensation provided in the law in all instances where they were inj-ured or killed, by an accident arising out of and in the course of their employment, or would elect to stand on their common- law rights, in which latter event the law provided that all the com- mon-law defenses of assumption of risk, contributory negligence and negligence of fellow servant should be denied to the employer. Other States followed ^^pi^j^^j^eS'^yterolo/^ "^^^ '^^'^^^^ ^'^^'^' ^* ^^ BKIEF HIST. BEVIEW OF COMPENSATION LEGISLATION IN AMERICA 55 Brief review of the American laws thus far passed present writiiig, there are compensation laws of various kinds in Alaska, Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, itfevada, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Philippines Islands, Porto Pico, Ehode Island, Texas, Vermont, Washington, West Virginia, Wisconsin and Wyoming, and in various other States the matter is under consideration. The principal constitutional questions have been settled by the Federal Supreme Court. (See chapter on Constitutional Law.) 2. Brief review of the American laws thus far passed. All the laws thus far passed in the United States, with the excep- tion of those in Arizona, California, Hawaii, Maryland, New York, Ohio, Oklahoma, Washington and Wyoming, are elective. In Nevada, Ohio, Oregon, Washington and West Virginia the statutes are founded on the State insurance plan to 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 and West Virginia, can the employer adopt the workmen's compensation principle at all without also adopting the State insurance plan. In Ohio and West Virginia, under amended laws, employers are given the option in certain cases to carry the risk themselves or to become members of mutual associations. The State insurance statutes, except in West Virginia and 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 Compensa- tion Act, or on a State insurance fund, which the employer has the option of joining in a few commonwealths. In twenty-six States and one territory, viz : Colorado, Connecticut, Hawaii, Illinois, ' In- diana, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Ehode Island, Texas, Vermont, Washington, West Virgj^z^jj^^jj^c^^yoming, the employer 56 bbadbtjey's woekmen's compensatiow law Brief review of tlie American laws thus far passed must secure the compensation payments hy insurance, or, in some of them, demonstrate Ms ability as a self -insurer. Massachusetts has a law which, until very recently, was peculiar to that State. Texas has now adopted a statute similar in many respects to the Massachusetts law. In Massachusetts the Act pro- vides 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 and there- after it became purely a private mutual insurance company. Other mutual associations authorized to do business under the laws of Massachusetts and also stock liability insurance companies author- ized by the laws of Massachusetts to do business in that State stand on the same basis that the State company occupies. Claims for com- pensation are paid directly by any of the insurance companies carry- ing particular 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 insui^ ance lapses they are deprived of the benefits of the limitations con- tained in the Compensation Act. As before stated, the new Texas Act is constructed very much on the principles of the Massachusetts statute. To Michigan belongs the credit of creating the plan of permitting various kinds of insurance. There employers 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 associa- tions 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. Somewhat similar statutes with important modifications have been passed in California, ColoracJy^g^^gg^^^^^^Jg^a, Iowa, Kentucky, Maine, BEIEF HIST. EEVIEW OF COMPENSATION LEGISLATION IN AMERICA 57 Brief review of the American laws thus far passed Maryland, Montana, New Jersey, New York, OklaHoma, Pennsyl- vania, Rhode Island, Vermont and Wisconsin. In Nevada, Oregon, Washington and' Wyoming insurance is com- pulsory in a fund administered hut not guaranteed hy the State. In Ohio and West Virginia there are State insurance funds, hut em- ployers are permitted to become self-insurers under very stringent regulations. In Alaska, Arizona, Connecticut, Hawaii, Illinois, Indiana, loava, Kansas, Louisiana, Maine, Minnesota, Nebraska, New Hampshire, New Jersey, Oklahoma, Rhode Island, Vermont and Wisconsin insur- ance is written solely by private stock or mutual insurance companies which must be approved by the proper authorities. In Massachusetts and Texas there are semi-private insurance asso- ciations created by the compensation acts in those States. These companies were first organized by public officers and as soon as they became operative control passed to the employers, who took policies therein. Insurance is also allowed in private stock and mutual companies. The requirement that an employer must insure compensation pay- ments is, of course, for the benefit of the workmen. The conditions under 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 deferred and are distributed over a large num- ber of weeks, months, or years in some instances. An employer who is perfectly 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 protecting 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 a\Bi^itaatkbyMiim)i(Sftrk- man's wages for a specified number of weeks. In some of the statutes this specific allowance is in addition to other eompensiation for dis- ability 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 dependents amounting to from 15 per cent, to 66 2/3 per cent, of the wages of the workman, with maximum limits of from $10 to $15 per week and minimum limits of from $4 or $5 a week over a specified number of weeks. There is usually also a limitation on the total amount to 'be paid in death cases as well as in all cases of disiability, except where such disability is permanent and total, ranging from $3,000 to $5,000. In some of the statutes, however, a death benefit is paid to the widow for life or until she remarries. In rare instances death benefits are paid t^^g^r^^g^ei^entg^i^lj life or during dependency. BEIEF HIST. REVIEW OF COMPENSATION LEGISLATION IN AMEEICA 59 Brief review of the American laws tim& far passed 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 under some statutes and in a few instances. 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 leberal schedule under which a very large percentage of the wages earned would be paid in case of disability. l^Taturally, also, employers have endeavored to keep the schedule within reasonable bounds. This subject is of much greater importance than is generally sup- posed. 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 limitations which rest on expediency. International industrial competition prevents the employers of the American States generally from paying compensation which is pro- portionatelji higher than is paid in the industries of foreign countries, the products of which are sold in competition with the output of the American manufacturers. 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 production 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 adjoin- ing 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 production a sum which is appreciably more than is borne by the industries in the sister commonwealth. Interstate com- petition is often very much more keen than international competition. 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. £5^'teeEf 8b)lW;c»£i^e«fe which it will be fool- 60 beadbuey's workmen's compensation law Brief review of tlie American laws thus far passed hardy to disregard, however humamtarian miglit be the considera- tions inducing the adoption of a liberal schedule of compensation. For where the compensation rate is high as compared with that of an adjoining state, the wages must he reduced or the employers in the competitive industries will be compelled to move to the State where the lower compensation rate prevails, 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 thai in a number of the foreign laws where a liberal schedule is found that the workmen themselves contribute a considerable portion of thft 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 con- tribute 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 compensa- tion 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 tke purely accident associations which are sup- ported and administered solely by the employers. Under the so-called State insurance plans, however, no such safeguards exist. Therein neither workmen nor employers now have a personal interest in ferreting out and preventing fraud and malingering among the work- men in a particular establishment. That such fraud and malingering exist to a considerable extent, even in Germany with all its safe- guards, has been shown by much 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 tp dollars a week^an work for twenty dollars BEIEF HIST. REVIEW OE COMPENSATIOK LEGISLATION IN AMEBIC A 61 Brief review of tlie American laws thus far passed a week. This number increases when the compensation is made almost the same as the wages. This small class will always take ad- vantage of excessive liberality in the scale of compensation and simulate disability where none exists, or exaggerate injuries which are really trivial.^ 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 pro- ceeding 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 provisions. 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 installments in the same manner that wages are paid, but there are provisions that, under special circumstances, all compensation pay- ments 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 boards that collect the funds from the employers in a few instances disburse it to the employes, and determine practically all the questions arising under the different acts. Notices of accidents and of claims for compensiation are required by most of the acts within particular periods of time, although these provisions are very liberal and generally devoid of technical require- ments. There are also provisions for the physical examination of claimants for compensation. Keports from various States where compensation acts are in force show that litigation over compensation claims between employers and 1 In Germany a professional acrobat on the stage had been discovered draw- ing compensation for physical disability. In another case a man supposed to be disabled by reason of an injury to his elbow was found talking part in professional prize fights. ^ Digitized by Microsoft® 62 beadbuby's woekmen*s compensation law Brief review of ttie American laws thus far passed workmen has been trivial in comparison ■with the enormous mass of litigation in actions for damages under the common law and the old employers' liability acts. The largest volume of litigation arises in those States where the compensation principle is limited in its appli- cation to particular occupations. This is due to fact that under such limited acts it is difficult often to determine to whom the statutes ^PPb^' ^ut with the constantly broadening of the scope of these acts this difficulty is also disappearing. Apparently, the American States have taken a long step in advance on this subject within the last two years and are still advancing rapidly. Digitized by Microsoft® CHAPTER V. CONSTITUTIONAL LAW PAGE PAGH Article A — Statutes Are Con- 1. Federal court decisions 63 STiTTJTioNAL Genebally ..63 2. State court decisions 63 ARTICLE A— STATUTES ARE CONSTITUTIONAL GENERALLY 1. Federal court decisions. On the general constitutional questions involved in the workmen's compensation acts the Federal Supreme Court has sustained all the forms of such acts with which we are familiar. Thus they have sus- tained the compulsory act of New York, which was adopted under a constitutional amendment. New York Central Railroad Co. v. White (1917), 243 U. S. 188; Sup. Ct. ; 61 L. Ed. . It has also sustained the elective act of Iowa. Hawkins v. Bleakly (1917), 243 U. S. 210; Sup. Ct. ; 61 L. Ed. . It has also sus- tained the monopolistic State insurance plan of the State of Wash- ington, Mountain Timber Co. v. State of Washington (1917), 243 U.S. 219; Sup. Ct. ; 61 L. Ed. . The Court reserved the question as to whether or not any of these statutes were unreason- able in regard to the amount of compensation, and remarked in New York Central Railroad Co. v. White: " This, of course, is not to say that any scale of compensation, how- ever insignificant on the one hand or onerous on the other, would be supportable. In this case no criticism is made on the ground that the compensation prescribed by the statute in question is unreasonable in amount, either in general or in the particular case. Any question of that kind may be met when it arises." The court holds that the Legislature has full authority to abolish the so-called common-law defenses and sustains the compensation acts generally as within the police power of the Legislature. 2, State court decisions. Since the Xew York Court of Appeals held the compulsory act of 1910 invalid^ a large number of elective laws and several compulsory 1 Ives V. South Buffalo Ry. Co., 201 N. T. 271 ; 94 N. E. 431 ; 1 N. C. C. A. 517 ; 34 L. R. A. (N. S.) 162; Ann. Cas. 1912 B, 156. Digitized by Microsoft® 64 BEADBUEY S WOEKMEN S COMPENSATION LAW State court decisions statutes have been passed. Only one State court of last resott has followed the Ives case, while in a large number of oases both com- pulsory and elective acts have been sustained. Specific features of the compulsory acts of Ohio and Washington had been sustained by the Federal Supreme Court,^ prior to the decisions cited above, in which the three principal forms of compensation acts have been sus- tained by the Federal Supreme Court. The decisions of State courts in which compensation acts have been sustained are collated below : California. Western Indemnity Co. v. Pillsbury, 170 Cal. 686; 151 Pac. 398 ; 10 N. C. C. A. 1 ; Western Metal Supply Co. v, Pills- lury, 172 Cal. 407; 156 Pac. 491. As the California constitutional amendment, authorizing the com- pensation law, did not authorize the Legislature to delegate to the Commission, as was attempted in subdivision 6 of section 75 of the Act of 1913, power to regulate and prescribe the nature and extent of the proofs in evidence, such attempted delegation is invalid. Engle- bretson v. Industrial Accident Commission^ 170 Cal. 793 ; 151 Pac. 421 ; 10 N. 0. C. A. 545. Under the California Act the Legislature has no power to create a board having judicial powers to determine any question except an award of compensation to employes for injuries arising in the course of their employment. Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319 ; 153 Pac. 24. The Supreme Court of California has the constitutional right to review a proceeding before the Industrial Accident Board by way of 2 Limiting the application of ttie Ohio Workmen's Compensation Act to shops with five or more employes is not an arbitrary or unreasonable classification rendering the Act void for that reason. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571; 35 Super. Ct. 167; 7 N. C. C. A. 570; 59 L. Ed. 364; afC'g 90 Ohio St. 370 ; 108 N. B. 465. The above decision was made in relation to the Ohio Workmen's Compensation Act, which is compulsory. The court, however, was not requested to pass upon anything except the one point stated above and distinctly refrained from passing upon any other point The provision of the Washington Act making the claim for compensation exclusive, even where the injury is caused by the negligence of a third person, is constitutional, and the construction of the Washington courts holding that the remedy for compensation is exclusive was adopted by the Federal Supreme Court. 'Northern Pacific Ry. Co. v. Meese, 239 U. S. 614; 36 Sup. Ct. 223; 60 L. Ed. — ; 10 N. O. C. A. 939: rev'2,211 Fed. 254. Digitized by mcroson® CONSTITUTIONAL LAW 65 State court decisions certiorari and this jurisdiction cannot be defeated except by constitu- tional amendment. Oreat Western Power Co. v. Pillshury, 170 Cal. 180 ; 149 Pac. 35 ; 9 N. 0. C. A. 466. While the California Act is valid for the enforcement of claims between master and servant the Industrial Accident Commission has no authority to make an award against the owner of property in favor of an employe of an independent contractor, who was injured, as siieh liability must be enforced, if at all, in an ordinary court of law. Carstens v. Pillshury (1916), Oal. ; 158 Pac. 218. Connecticut. Appeal of Hotel Bond Co., 89 Conn. 143 ; 93 Atl. 245. Illinois. DeibeiUs v. Link-Belt Co., 104 N. E. 211 ; 261 111. 454 ; 5 K C. C. A. 401 ; Crooks v. Tazewell Coal Co., 263 111. 343 ; 105 K E. 132 ; 5 ?^. C. C. A. 410; Dietz v. Big Muddy Coal & Iton Co., 105 K E. 289; 263 lU. 480; 5 IST. C. C. A. 419; Strom v. Postal Telegraph-Cable Co., 271 111. 544; 111 IST. E. 555; Dragovich v. Iroquois Iron Co., 269 111. 478 ; 109 N. E. 999 ; 10 K C. C. A. 475 ; Frey v. Kerens-Donnewald Coal Co., 271 111. 121; 110 N. E. 824; Richardson v. Sears, Boebuck & Co., Ill W. E. 85; 271 111. 325; Devine v. Delano, 272 111. 166 ; 111 N. E. 742 ; Lauruszka v. Empire Mfg. Co., Ill isr. E. 82 ; 271 111. 304 ; Strom v. Postal Telegraph- Cable Co., 271 111. 544; 111 K E, 555 ; 12 IST. C. C. A. 843 ; Victor Chemical Works v. Industrial Board of Illinois, 274 111. 11; 113' 'S. E. 173; Chicago Railways Co. v. Industrial Board (1916), 111. ; 114 N. E. 534. The provision in the Illinois Act for an attorney to represent the Industrial Board is unconstitutional as the Attorney General is the chief law officer of the State and the only officer empowered to repre- sent the people in any suit or proceeding in which the State is the real party in interest, except where the Constitution or a constitu- tional statute may provide otherwise. Fergus v. Russel, 270 111. 304; HON. E. 130. Under the Illinois Act the liability for compensation " is a con- tract liability not different in its nature from any other liability arising out of contract. It is true that the right to the compensation fixed is a statutory right, but it is not of any different character from the right to compensation for an injury within the limits of the law g Digitized by Microsoft® 66 beabbuey's woekmen's compensation law state court decisions as it previously existed." Lavin v. Wells Bros. Co., 272 111. 609 ; 112 N. E. 271. Iowa. Hawkins v. Bleahley (TJ..S. Dist. Ct., S. D. Iowa), 220 Fed. 378 ; Hunter v. Colfax Consolidated Coal Co., Iowa ; 154 N. W. 1037; 11 N. C. C. A. 636. Kansas. Hovis v. Cudahy Refining Co., 95 Kan. 605 ; 148 Pac. 626. Kentucky. Tie Kentucky Elective Act of 1914 (L. 1914, c. 73) was held to be unconstitutional, particularly on the ground that it was in conflict with section 54 of the Kentucky Constitution, pro- hibiting the Legislature from limiting the amount to be recovered for injuries resulting in death or for injuries to persons. Kentucky State Journal v. Workmen's Compensation Board, 161 Ky. 562; 170 S. W. 1166; L. K. A. (1916) B 389; rehearing denied 162 Ky. 387;172S. W. 674. The Kentucky Act of 1916 (L. 1916, c. 33) is constitutional. Greene v. Caldwell (1916), 170 Ky. 571; 186 S. W. 648. Maryland. B. H. Frazier & Son v. Leas, 127 Md. 572 ; 96 Atl. 764; American Coal Co. v. Allegany County Commissioners (1916), 128 Md. 564; 98 Atl. 143. Massachusetts. While the Massachusetts statute had been held to be constitutional prior to its enactment {Opinion of Justices, 209 Mass. 607; 96 IST. E. 308; 1 N. C. C. A. 557), it was held that inas- much as such a decision was made without argument it was not such an adjudication as required the application of the rule of stare decisis, and therefore the court reconsidered the whole question and affirmed the constitutionality of the Act on all grounds. Young v. Duncan (In re Young), 218 Mass. 346 ; 106 N. E. 1. Michigan. Mackin v. Detroit-Timkin Axle Co., Mich. ; 1 53 N. W. 49 ; Wood v. City of Detroit, 188 Mich. 547 ; 155 K W. 592. Minnesota. Matheson v. Minneapolis St. By. Co., 126 Minn. 286 ; 148 N. W. 71 ; 5 W. C. C. A. 871 ; State ex rel. Nelson-Spelliscy Co. V. District Court of Meeker County, 128 Minn. 221 ; 150 N. W. 623 ; UN. C. C. A. 636. Montana. Lewis and Clark County v. Industrial Accident Board of Montana, 52 Mont. 6 ; 155 Pac. 268. Digitized by Microsoft® COTTSTITUTIONAL LAW 67 State court decisions New Hampshire. Wheeler v. Contootuck Mills Corporation, 77 K H. 551 ; 94 Atl. 265. New Jersey. Huyett v. Pennsylvania B. Co., 86 IN". J. Law 683 ; 92 Atl. 58; Sexton v. Newark District Telegraph Co., 2 Bradbury's PI. & Pr. 221 ; 84 IST. J. L. 85 ; 86 Atl. 451 ; S N. C. C. A. 569 ; afE'd 86 N. J. Law 701 ; 91 Atl. 1070 ; 11 N. C. C. A. 633 ; Troth v. Mill- ville Bottle Works, 86 N. J. Law 558; 91 Atl. 1031; Brost v. Whitall Tatum Co. (1916), N. J. Law ; 99 Atl. 315. Where an employe in New Jersey is subject to the provisions of the Compensation Act of that State, which provides that where the de- pendents are non-resident aliens, no claim for compensation can be allowed and that the Compensation Act affords exclusive remedy in cases where the employe is subject to the Act, it was held that Article 3 of the Treaty between the IJnited States and the Kingdom of Italy, proclaimed Nov. 23, 1871 (17 Stat. 845), which provides that the citizens of each country shall receives in the States and territories of the other " the most constant protection and security for their per- sons and property and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives," does not confer on the non-resident alien relatives of a citizen of Italy a right of action for his death under the laws of a State which give such right of action to native relatives, but expressly deny it to non-resident aliens. De Biasi v. Normandy Water Co. (Fed. Dist. Ct., N, J., December, 1915), 228 Fed. 234. A suit to recover compensation under the New Jersey statute does not sound in tort. It is an obligation thrust upon the employer as a part of the contract of hiring. Berton v. Titjon & Lang Drydock Co., 219 Fed. 767. The right to compensation under the New Jersey law rests upon a contractual obligation. Winfield v. Erie B. Co., 88 N. J. Law 619 ; 96 Atl. 394; rev'd U. S. (May 21, 1917). New York. Jensen v. Southern Pacific Co., 215 N. Y. 514; 109 N. E. 600; 9 N. C. C. A. 286; L. E. A. (1916) A, 403; aff'g 167 App. Div. 945 ; 152 Supp. 1120 ; rev'd U. S. (May 21, 1917). The presumption contained in section 21 of the New York law, that in the absence of substantial evidence to the contrary, it shall be presumed that a claim comes within the provisions of the Act doea not infringe upon thg,^|ig<:^^U^^^^|g-/j^aranteed by the Constitu- 68 BEADBUEy's WOEKMEN's COMPEiS'SA'flON LAW state court decisions tion. McQueeney v. Sutphen & Myer, 167 App. Div. 528; 153 Supp. 554; 11 ]Sr. C. C. A. 326. Ohio. Porter v. HopUns, 91 Ohio St. 74; 109 N. E. 629; 9 N. C. C. A. 839. The court followed the reasomng of the previous decision uphold- ing the earlier compensation acts in Ohio. State ex rel. Yaple v. Creamer, 85 Ohio St. 349; 97 K E. 602; 1 K C. C. A. 30; 39 L. K. A. (1^. S.) 694. See also Jeffry Mfg. Co. v. Blagg, 235 U. S. 571; Sup. Ct. ; 7K C. C. A. 570; aff'g 90 Ohio St. 376; 108 ]Sr. E. 465. Oregon. Evanhoff v. State Industrial Accident Commission, 78 Ore. 503 ; 154 Pac. 106. Pennsylvania. Anderson v. Carnegie Steel Co. (1916), Pa. St. ; 99 Atl. 215. Rhode Island. Sayles v. Foley, E. I. ; 96 Atl. 340. Texas. Postex Cotton Mill Co. v. McCamy, Tex ; 184 S. W. 569 ; 11 N". C. 0. A. 884 ; Memphis Cotton Oil Co. v. ToTbert, Tex. Civ. App. ; 171 S. W. 309 ; 7 N. 0. C. A. 547 ; Conr sumers' Lignite Co. v. Grant, Tex. ; 181 S. W. 202 ; 11 N. C. C. A. 881 ; Middleton v. Texas Power & Light Co., Tex. ; 185 S. W. 556; 11 N. C. C. A. 873. Washington. Stall v. Pacific Coast Stemship Co. (TJ. S. Dist. Ct., Dist. Wash.), 205 Fed. 169. See also NoHhem Pacific By. Co. v. Meese, 239 U. S. 614; 36 Sup. Ct. 223; 60 L. Ed. 467; 10 K C. C. A. 939; rev'g 211 Eed. 254; State v. Montain Timber Co., 75 Wash, 581 ; 135 Pac. 645 ; 4 N. C. C. A. 811 ; aff'd 243 U. S. 219. A contract between the city and the contractor was entered into after the Washington Act was passed, but before it took effect. The work was begun before the Act took effect and was finished after it took effect. The contract between the municipality and the con- tractor did not mention the Workmen's Compensation Act. It was held that the Workmen's Compensation Act applied to all the work which was done after the Aot took effect, and that the premiums could be collected by the State from the municipality and the contractor after the work was finished, and that this result did not have the effeot of violating the obligation of a contract. State ex rel. Pratt v. City of Seattle, 73 Wash. 396 ; 132 Pac. 45. The Washington ^ji^^s^r^o^^nconst^gtiomal because it provides CONSTITUTIONAL LAW 69 State court decisions for compensation for Avorkmen for injuries due to acts of third pe]> sons. Stertz v. Industrial Insurance Commission (1916), 91 Wash. 588 ; 158 Pac. 256. The Washington Act of 1911 is constitutional. Raymond v. Chicago, M, & St. P. R. Co. (1916), 233 Fed. 239. West Virginia. De Francesco v. Piney Mining Co., W. Va. ; 86 S. E. TY7 ; 10 JST. C. C. A. 1015 ; Watts v. Ohio Valley Elec- tric By. Co., W. Va. ; 88 S. E. 659. Wisconsin. Borgnis v. Falh Co., 147 Wis. 327; 133 K W. 209; 3 K C. C. A. 649 ; 37 L. K. A. (N. S.) 489. Digitized by Microsoft® PAGE Article A — DEriNiTioN AND Description 70 1. Importance of the subject. . 70 2. The meaning of the term " State Insurance " in America . . . 70 CHAPTER VI. STATE MANAGED INSURANCE FUNDS PAGE Article B — Premiums and the Rates Thereof 76 1. Actuarial principles under- lying State Insurance laws 76 2. Basis of premium 79 3. Collecting premiums from delinquents 80 3. Some of the merits and de- 4. Liability of employer for merits of State managed premium on contract work funds as compared with begun before act took stock and mutual insur- effect 81 ance companies 71 5. Necessity of legislative ap- propriation to pay award. 81 AETICLB A — DEFINITION AND DESCRIPTION 1. Importance of the subject. N"o treatise on the workmen's compensation laws in America would be complete without a discussion of the so-called State insurance funds, which have arisen and been developed in connection with these statutes. In their present form they are entirely new to the legis- lation of this or any other country. While very little judicial light has been shed upon them as yet, nevertheless the extensive and some- times heated discussion which their advent has caused makes it possi- ble to consider them from, many view points in comparison with the stock and mutual insurance companies, with the interests of which they sometimes come in conflict. 2. The meaning of the term " State Insurance " in America. The meaning of the term " State Insurance " or " State Insurance Fund " as applied in the workmen's compensation acts of New York, Ohio, Oregon, Washington, West Virginia and a few other States is somewhat of a misnomer. In each instance it is a " State Fund " by virtue of the fact that it is supervised by State officials instead of by private individuals. The State in no case guarantees the com- pensation payments. In some instances the expenses of administra- tion are paid hy the State by appropriations from general taxation 70 Digitized by Microsoft® STATE MANAGED INSUEANCE FUITOS 11 Some of the merits and demerits of State managed funds and in some instances these expenses are paid frona the fund collected from employers. 3. Some of the merits and demerits of State managed funds as compared with stock and mutual insurance companies. While conoededly these institutions are yet in the experimental stage there are undoubtedly some advantages connected with them as well as some evils. They have been attacked violently and in some instances senselessly by the old insurance companies. On the other hand, virtues have been claimed for these institutions which they never possessed and which from the very nature of things they could not possess. The advantages which are usually claimed are the saving in expense of administration and the saving to the employers (and, therefore, indirectly to the industries which the employers represent) of the profits which are derived by the stock insurance companies from the workmen's compensation insurance business. The first item in the saving of administration expense is the acqui- sition cost or agents' and brokers' commissions which are invariably paid by the stock companies. This is undoubtedly a point in favor of the State funds but not to the degree that it is frequently urged. The State fund must pay employes to do much of the work in plac- ing insurance that is done by stock company's agents. Even if it was assumed that the State fund had a monopoly and the element of soliciting was entirely eliminated there is still the arranging of schedules the classification of pay-roll and other work of that nature which must be done by some one and is now done largely by agents and brokers. It is undoubtedly true that under a monopolistic State fund with the necessity for soliciting eliminated all the work done by agents and brokers could be done more cheaply by clerks and accountants, provided the State employes were as efficient as the agents and other representatives of the companies. On the question of profits this it€m. would, of course, be saved to the employers instead of being enjoyed by the stockholders of the insurance companies. The insurance companies reply that their underwriting profit on workmen's compensation business is small and frequently there is a loss. Of course, this is no answer at all so long as there is a profit on tiie business as a whole. The insurance oom- Digitized by Microsoft® 72 beadbtjby's woekmen's compensation law Some of the merits and demerits of State managed funds panies collect the premiums in advance of the time they are required to pay them out and while these large sums are in their possession they derive what is generally termed a " banker's profit " on this money. The only test that is important arises from the question of whether the underwriting profit (or loss) combined with the banker's profit shows a net profit. A. discussion on any other basis would be, of course, irrelevent and inconsequential. The question of officers' salaries and extraordinary expenses has also been a ground of attack by the managers of State funds against the insurance companies. Probably this ground had more founda- tion a few years ago than it has now. In any event it is extremely doubtful whether State funds can be administered efficiently by public employes at any less expense, as a whole, than this work can be done by private corporations. All experience seems to point to the contrary. From the viewpoint of the employe it is contended that they re- ceive more liberal treatment from the State funds than they do from the insurance companies. There is surely a chapter in the history of at least a few of the liability insurance companies which is a dis- graceful one, but of course it was under the old laws which frequently made it necessary to defend exorbitant claims. It was marked sometimes by sharp practices often amounting to actual fraud, the recollection of which the companies will not soon outgrow. Of course, there was fraud and perjury on the other side also. Stricter supervision undoubtedly has eliminated many or most of the fraudu- lent practices on the part of those companies whioh indulged in them. With the change in the law the companies have shown a rather com- mendable spirit in complying v^th the workmen's compensation statutes. Undoubtedly the most serious complaint against the old order of things was the indirect liability of the insurance companies. They were merely indemnitors of the employers for money actually paid by the employes. Employes could not enforce any direct liability against the companies, except in one State. If an injured employe should get a large judgment against the employer and the employer was unable to pay it the insurance company escaped all liability. This is true yet in a very few jurisdictions, but, generally speaking, the employer's insurance carrier has been made directly liable to Digitized by Microsoft® STATE MANAGED INSUEANCE FUNDS 73 Some of the merits and demerits of State managed funds his employes for compensation, payments. In public liability cases, and even in employer's liability cases, as distinguished from com- pensation claims, the old rule generally holds good. That is, if an employe who is not covered by a compensation act recovers a judg- ment against his employer for common-law damages, he cannot enforce the judgment against the employer's insurance carrier. In such cases the insurance company is still merely an indemnitor for money actually paid, and if the employe is unable to collect from the em- ployer he is without remedy and the insurance company escapes* all liability. * But the stock insurance companies have been able to offer to em- ployers complete coverage, as against workmen's compensation claims, suits for damages under the old employer's liability principle, either at common law, or under statutes relating to such employes as were not governed by compensation acts, and also the liability of the employer to the public. The stock companies have also done much to foster accident pre- vention measures. One of the handicaps of the State insurance funds has been their inability to give employers complete coverage. Usually these funds have been limited to writing policies covering the workmen's com- pensation liability alone. In rare instances they have been author- ized to extend the coverage to employers' liability cases. But so long as they cannot give complete coverage and employers must still go to the stock companies for employers' liability and public liability coverage, the duplication will inevitably, to a very great extent, nullify any advantage in rates which the State funds may possibly eventually be able to offer. One of the most serious criticisms against the monopolistic State funds is that they d-ecid© cases against themselves with no power of review, in many instances, except by their own consent. However wisely or honestly the funds are administered this principle appears to be fraught with danger. Under our governments these commis- sions are political bodies. They make awards of money furnished by employers. An appropriation even by a legislative body is not necessary. Tet the employer has no standing to object to a payment or to appeal from a decision allowing an award. There is no check or audit except that supplied by the commission itself in supervising ^ Digitizecl by Microsoft® 74 bbadbuey's woekmen s compensation law Some of the merits and demerits of State managed funds its own proceedings. This is a power possessed by no court and certainly by no other administrative body with which we are familiar. Such absolute and indeed dictatorial power will lead inevitably to serious abuses, unless human nature has changed to a greater degree than is indicated by any evidence which we now possess. While State insurance plans are undoubtedly valuable and act as a wholesome check on the stock companies, the time will surely come when the administration of the fund itself will be separated from the co'Jnmission which tries contested cases. Moreover, there will be some I^ooeeding similar in effect to right of a taxpayer under other laws to intervene to object to improper payments. In any event the word " monopoly," in whatever connection it is used, does not sound attractive to American ears. The idea of being compelled to take what monopoly offers and of paying what monopoly demands, presents an unattractive prospect, no matter how many times we are told that this monopoly is benign, charitable and necessary. One other matter deserves attention before the subject is dismissed. The advocates of the State fund idea have urged, with considerable warmth, that employers who protected themselves by insurance in the fund were in a much more advantageous position, in some respects, than those who secured insurance in stock or mutual companies. Much of this contention has developed around the provision of section 53 of the New York Act, providing that : " An employer securing the payment of compensation by contribut- ing 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 employer. An employer shall not otherwise be relieved from the liability for com- pensation prescribed by this chapter except by the payment thereof by himself or his insurance carrier." The above quoted provision was copied from the Ohio Act. The managers of the State funds in both Ohio and New York have con- tended, somewhat vehemently at times, that this advantage was not to be neglected by employers except to their very great disadvantage. At the outset it might be answered that a great advantage to em- ployers in being relieved from liability to their employes must neces- sarily result in an equal disadvantage to employes. Only on the Digitized by Microsoft® STATE MANAGED INSUEANCE FUNDS 75 Some of the merits and demerits of State managed funds theory that the State fund is stronger than the stock or mutual com- panies can this disadvantage to the employes be offset. But as we have already seen, the State does not guarantee payments under the State funds, hut each must depend for its income upon collections from employers. As the manager of the New York Eimd at least has declared that no right of assessment exists under the !N"ew York Act to replenish the fund if the advance collections of premiums is insufficient to pay losses (an opinion with which the author disagrees), it is difficult to understand wherein the superior strength of that fund lies. It follows, therefore, inevitably that whatever advantage ac- crues to employers, in so far as they are relieved from additional lia- bility to their employes, by joining the State fund, must of necessity result in an equal disadvantage to their employes. But the truth of it is the advantage claimed does not exist. At least so far as the matter has been determined judicially employers are in no better condition in the respect mentioned, when they join the State fund, than they are by securing stock or mutual insurance or becoming self-insurers. While the question has not been deter- mined by courts of last resort there is an extremely well considered opinion by the Supreme Court in New York which holds that no such advantage exists. Thus it is held that under the New York law the employer has the same immunity from claims by employes where he insures in a private insurance company that he does if he insures in the State fund. Connors v. Semet-Solvay Co., 94 Misc. 405 ; 159 Supp. 431. In the last-mentioned case the Court said, in relation to section 53 of the New York Act: " It is not possible that a dis- tinction, without reason, is here soTight to be mad« between one who insures in the State fund and others who insure as the statute equally permits. The purpose of insurance is to secure a fund which will protect the servant. In either case this is equally accomplished. There is no purpose to be served in holding the servant may not recover for pain and suffering, if the State is the insurer, yet may do so if a corporation is the one liable." See also Matter of Post v. Burgess & QoMTce, 216 N. Y. 544; 10 N. C. C. A. 888. Moreover the amendments to sections 25 and 26 of the New York Act in 1915 and 1916 apparently nullify section 53. These sec- tions (25 and 26) asihua amended are ^olutely inconsistent with 76 bbadbuey's woekmen's compensation law Actuarial principles underlying State insurance laws section 53, and as they are later in date than section 53 it would seem that their provisions would prevail over the older section of the Act. Indeed, it would seem that it would be difficult to support the law at all on this point, against an attack on the ground of class legisla- tion, if the contention is sound that aa insurer in the State fund gains an important advantage over his employes, as compared with an employer who takes out other permitted kinds of insurance. ARTICLE B — PREMIUMS AND THE RATES THEREOF 1. Actuarial principles underlying State insurance laws. The actuarial principles underlying the State insurance laws thus far enacted are of great importance to both employers 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 commonwealth in which it is enacted. Considerable danger lies in the fallacy which wrecked so many of the old mutual and fraternal life and accident insurance companies and associations. There is always a tendency to collect small pre- miums to pay for current losses only, and not accumulate sufficient reserves to pay deferred claims. So long as those old mutual com- panies 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 member- ship, or when the membership began to fall off, then they invariably had trouble. One of the greatest problems which the American States have had, in relation to insurance, has been to compel such associa- tions 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 ani- mated the establishment 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 payments. Of course, the stock liability insurance companies Mve been forced by law to do State MAiSTAGEI) iN-StTRANCE ETTNDS 77 Actuarial principles underlying State insurance laws business on an entirely different basis. They have been compelled to collect sufficient premiums to lay aside reserves to meet all the claims outstanding, 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.^ It is the easiest thing in the world to start an insurance company, provided rules for an adequate reserve 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 involved 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 sufficient 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, there are constant additions to them by reason of current losses and the sums which must be collected in premiums must, naturally, be constantly 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 i"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 worth- less insurance to credulous people. But, of course, it is impracticable to draw any line of distinction between companies, which might safely be allowed to paddle their own canoes and companies which have to be 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 companies find that the co-operation they get from the stronger State insurance 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, 19ia, Digitized by Microsoft® 78 beabbuey's woekmbn^s compensation tAW Actuarial principles underlying State insurance laws has found it absolutely essential in some occupations, such as the building trades, -for example, to abandon the old plan and collect ptemiume 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 prevails over the entire country in the German Government 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 boundaries. 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 insurance average. Any increase in subsequent years, due to insuffi- cient premium collections in the earlier years, falls on the entire trade. Even in Germany there has been bitter complaint by employers who continued in business 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 exists ing in Germany. There is such a small representation 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 pur- poses in a State insurance fund, it means that these two or three establishments in that particular trade are, to all practicable purposes, carrying their own insurance. If premiums sufficient to pay cur- rent losses only are collected from these few establishments the time will come, within a few years, when the premium rate will be so high that it will be almost impracticable to create new establishments or for the old ones to continue in the same line of business in that par- ticular 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 sufficient 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 common- wealths where only sufficient has been collected to pay current losses. In other words, in ^^|ta^|^ wh^re^a j^^l premium has been main- STATE MANAGED INS0EANCE FUNDS 79 Basis of premium tained 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 suflBcient 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 per- fectly obvious. The industries 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 capitalized 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 segregated 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 considerable 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 difiiculty 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 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 experi- ment will be watched vnth interest. 2. Basis of premium. IJnder the Nevada Act disability is fixed at fifty per cent, of the average monthly wage jeith a maximum limit of $60 per month, and ^ , •' ° Digitized by Microsoft® 80 beadbttky's woekmen's compensatiow law Collecting premiums from delinquents in view of this the Nevada Industrial Oominission has ruled that in fixing the premiums to be collected for the State insurance fund the maximum rate of $120 a month is fixed for such premium on the payroll of employes. Eeport of Nevada Ind. Com., July 1, 1913, to Dec. 31, 1914, p. 27. Under the Washington Act, where a premium of six and one-half per cent, was charged on tunnel construction and five per cent, on railroad construction, it was held that where a railroad did tunnel work, it should pay the increased price on the payroll for the tunnel work. State v. Chicago, Milwaukee & Puget Sound By. Co., 80 Wash. 435 ; 141 Pac. 897. 3. Collecting premiums from delinquents. The Nevada Commission had a problem which, according to the latest report received, does not seem to have been solved. One em- ployer had paid premiums for a short time and then failed to pay any further premiums until he became in default to the extent of about $2,000. In the meantime compensation was paid to his em- ployes amounting to over $500. It appeared also that this employer refused to give notice of an election not to be bound by the Com- pensation Act, but stated that he was satisfied to be under the Act The Commission stated that it had a cause of action against this employer for these back premiums, but was advised that such an action would be of no avail, as this employer was judgment proof. The Commission acknowledged its inability to solve the' problem. Report of Nevada Ind. Com., July 1, 1913, to Dec. 31, 1914, p. 27. A notice was given to an employer at the end of a year, requiring additional premium to be paid, under the Washington Act, which payment was required to be made within thirty days. Before the thirty days had expired and before the additional premium was paid, an employe was injured. But before the. expiration of the thirty days the employer had paid the additional premium. It was held that the employe, under such circumstances, could not maintain an action against the employer as if such employer was in default, as the default did not arise until the expiration of the thirty days re- quired by the notice for the payment of additional premium. Barrett V. Grays Harbor Commercial Co., (U. S. Dist. Ct., Dist. Wash.), 209 Fed. 95, Digitized by Microsoft® STATE MANAGED INSUEANCE FUNDS SI Necessity of legislative appropriation to pay award 4. Liability of employer for premium on contract work begun be- fore Act took effect. A contract between a municipal corporation and contractors, to do certain municipal work, was entered into after the Washington Com- pensation Act was passed, but before it took effect. The work was commenced before the Act took effect, but completed after it took effect. The contract between the municipality and the contractors did not mention the Compensation Act. It was held that the munici- pality could retain from the contractors a sum sufficient to pay the premiums required by the State insurance fund, based on the wages paid during the time the Compensation Act was in effect, after the work was begun, and that the State could collect the same from the municipality and the contractor after the work was completed and that the right to collect such premiums was not waived where they were not paid or demanded in advance, as the State had a right to wait until the contract was completed and then collect the premium on the entire payroll. State ex rel. Pratt v. City of Seattle, 73 Wash. 396 ; 132 Pac. 45. 5. Necessity of legislative appropriation to pay award. Under the N'evada Constitution which provides that funds paid by the State can only be paid upon the approval of a Board of Examiners and after an appropriation, it was held that this did not apply to com- pensation claims which could be paid upon the approval of the In- dustrial Commission, without either an appropriation from the Legis- lature or an approval from the Board of Examiners who passed upon ordinary claims against the State. State of Nevada ex rel. 0. H. Beele v. William McMillan, as Treasurer of the State of Nevada, 36 Nevada 383 ; 136 Pac. 108 ; filed ISTovember 15, 1913. The above ease is also reported in full in the report of the Nevada Ind. Com. covering the period from July 1, 1913, to Dec. 31, 1914, p. 11. 6 Digitized by Microsoft® CHAPTER VII. EXTRA-TERRITORIAL EFFECT OF WORKMEN'S COM- PENSATION ACTS PAGE PAGE ABTictE A — Division of the Abtici,e D — Eulings of Ameri- SUBJECT AND POWER OF CAN CODHTS, BOABDS AND THE Legislatubb 82 Commissions 102 1. Division of tlie subject 82 1- Preliminary 102 2. Power to give extra-terri- torial effect to act 83 Article B — - Principles of British and American Acts Compaeed ^ 83 2. California 102 3. Connecticut 105 4. Iowa 107 5. Massachusetts 107 6. Michigan 108 7. Minnesota 108 1. The limited application of g Mjggourj 109 the decisions under the . g Montana . . 109 British Act to the Ameri- ^q Nevada 109 can statutes ,83 ji_ j^g^ jg^gey 109 Article C — Conflict Under 12. New York 113 State Laws 95 13. Ohio 117 I. To what extent will the 14. Rhode Island 117 courts of one State enforce 15. West Virginia 117 the laws of another State? 95 16. Wisconi5in 117 ARTICLE A — DIVISION OF THE SUB.TECT AND POWER OF THE LEGISLATURE 1. Division of the subject. The qjiestion of the extra-territorial effect of the workmen's com- pensation acts naturally is subdivided into two parts : I.' When may the authorities of a State enforce the Compensation Act of their own State in relation to accidents which happen beyond the borders of their own State ? II. When may the courts of one State enforce the compensation laws of another State, in" relation to accidents which happen, (a) Within the boundaries of the State the law of which is sought to be enforced; (b) Within the boundaries of the State where the proceeding is brought; or (c) Within the boundaries of a third State ? Digitized by IvMosoft® EXTEA-TEEEITOEIAL EFFECT OF WOEKMEN's COMP. ACT 83 The limited application of decisions under Britsh Act to Amercan statutes 2. Power to give extra-territorial effect to act. The answer to the question in subdivision I appears to depend, very largely at least, upon the provisions of the statute which is thus sought to be enforced, as it seems that a State has power to pass an Act which will apply to injuries suflFered by an employe in another State than that in which the contract of employment was made. Gould v. Siurievant {In re American Mutual Liability Ins. Co.), 215 Mass. 480 ; 102 IST. E. 693 ; 4 JST. C. C. A. 60 ; North Alaska Salmon Co.v.PiUsbury, Cal. ,162Pac. 93; JST. 0. 0. A. When the question was first raised in the courts, industrial com- missions and accident boards in America, an inclination was shown to follow the decisions of the British courts, to the effect that the British Compensation Act did not apply to accidents happening outside of the United Kingdom, even though the contract of employment was made in the United Kingdom. Hichs v. Maxton (1907), 1 B. W. C. C. 150; Tomalin v. 8. Pearson & Son (1909), 100 L. T. 685; 2 B. W. C. C. 1; Schwartz v. Indiaruhher, Guttapercha and Telegraph Works Co. (1912), 2 K. B. 299; 5 B. W. C. C. 390. But it was recognized that Parliament had power to give extra-territorial effect to the British Act, because there is a special provision making the statute applicable to British seamen in whatever part of the world they may be when meeting with either a fatal or a non-fatal accident. 6 Edw. VII, c. 58, § VII. This section has been enforced quite frequently. The question seems to be, therefore, whether or not the Legislature of any particular State intended the Compensation Act of that State to have extra-territorial effect. Gould v. Sturtevant (In re American Mut. Liability Ins. Co.), 215 Mass. 480; 102 li. E. 693; 4 ^. 0. 0. A. 60 ; Kennerson v. Thames Towboat Co., 89 Conn. 367 ; L. K. A. (1916) 436n; 94 Atl. 372; Matter of Post v. Burger & Gohlke, 216 K T. 544; 111 K E. 351 ; 10 K C. C. A. 888; aff'g 168 App. Div. 403 ; 153 Supp. 505 ; American Radiator Co. v. Bogge, 86 N. J. Law 436 ; 92 Atl. 85 ; 7 K C. C. A. 144. ARTICLE B — PRINCIPLES OF BRITISH AND AMERICAN ACTS COMPARED 1. The limited application of the decisions under the British Act to the American Statutes. The principle of tl©/^i^lb^Wfg^/^t the Act had no extra- 84 beadbuey's woekmen's compensation law The limited application of decisions under Britsh Act to Amercan statutes territorial effect except a& specifically provided in relation to seamen, has been followed by the Supreme Judicial Court of Massachusetts, the Michigan Industrial Accident Board and the Wisconsin Industrial Commission. Gould v. Sturtevant (In re American Muttial Liability Ins. Co.), 215 Mass. 480; 102 N. E, 693; 4 N. C. C. AT 60-, Eeyes Davis Co. V. Allerdyce, Michigan Industrial Accident Board, April, 1913; Ruling of Wisconsin Industrial Commission, but not in an actual litigation. But as will appear hereafter a majority of the American courts have reached a different conclusion. In the latest British case a workman was sent out of England, by British employers, in a British ship, to do work at Teneriffe. The ship was lost with all hands, in the Bay of Biscay. It was held that the Compensation Act did not apply to accidents happening outside the territorial limits of the United Kingdom, or on a British ship, except as provided under section 7 of the Act. Schwartz v. India- rubier, Guttapercha and Telegraph Works Co. (1912), 5 B. W. C. C. 390. Section 7 of the British Act, referred to in the last-mentioned case, applies to the crew of a ship but not to other persons on board. In Ilichs V. Maxton (1907), 1 B. W. C. C, 150, a charwoman re- siding in Dover, England, was taken by her employer, a French woman, to Calais, France, on two occasions, to do work in the em- ployer's house, and while at Calais she suffered an injury. It was held that the Compensation Act did not apply when the action was brought in the County Courts at Dover. In Tomalin v. 8. Pearson & Son (1909), 100 L. T. 685; 2 B. W. C. C. 1, it was held that the dependent of a workman who was a domiciled Englishman employed by English employers under a con- tract of service entered into in England, who was killed by an acci- dent arising out of and in the course of his employment while work- ing in a place beyond the limits of the United Kingdom, was not entitled to compensation under the Act. In all the foregoing cases it was held that the British Act had no effect in relation to accidents happening in foreign countries. But of course the British Act does apply to an accident happening in any one of the various countries composing the United Kingdom. Con- sidering England, Scotland, Wales and Ireland as different States of a federal union the Compensation Act applies in the same way that Digitized by IVIicrosoTt® BXTRA-TEEEITORIAl EFFECT OF WOEKMEN's COMP. ACT 85 The limited application of decisions under Britsh Act to Amercan statutes an Act of Congress would apply to all the States of the American Union. Thus far the analogy is perfectly clear. But the British Act rests on the plenary power of Parliament to enact a compulsory law binding on all the subjects of the United Kingdom, whereas the power of Congress is limited, under the Federal Constitution, to the enactment of such a statute in relation to employes and employers engaged in interstate commerce only. All the great majority of employes and employers are governed by State laws. Many of these interstate employes are frequently sent to States other than the ones of their residence or their principal employment, and yet are not engaged in interstate commerce, within the rules laid down by the Federal Supreme Court. The question which the American courts are called upon to decide, is, therefore, whether the law of the place of employment or the place where the accident happens governs the rights and liabilities of employes and employers in regard to em- ployes not engaged in interstate commerce, and also as to those en- gaged in interstate commerce, until such time as Congress shall pass a general act applicable to all interstate employes.^ As it is im- possible, therefore, for any American legislative body to pass a com- pensation act creating uniform rights and liabilities in relation to all employes and employers in all the States, how far should the State legislatures and the courts, both Federal and State, go in applying the principles of comity, so essential to the harmonious blending of the conflicting laws of forty-eight States, in fixing the rights and liabilities of employers and employes according to the law of the residence of such employers and employes or the place where the contract of employment is made ? It must be conceded that the basis of recovery under compensation acts is somewhat different from that which underlies the old em- ployers' liability acts, or the enabling statutes permitting damages to be recovered in death cases. The older statutes regulated actions for 1 Congress has not yet passed a purely compensation act applicable to Inter- state employes. The Federal Employers' Liability Act applies solely to actions for negligence by interstate employ^ of railroads, and the so-called Federal Workmen's Compensation Act applies solely to certain employes directly in the service of the government. The effect of the Federal Employers' Liability Act on the State workmen's compensation statutes is discussed in under the title of Interstate Commerce, and the Federal Workmen's Compensa- tion Act is discussed in a separate chapter. Digitized by Microsoft® 86 beadbuey's woekmen's coMPENSATioisr law The limited application of decisions under Britsh Act to Amerean statutes torts. "Workmen's compensation statutes usually, althougli not uni- versally by any means, have been understood to create contractual relations between employers and employes. In other words, there is, at least an implied contract, that the employer will pay compensation to the employe for injuries, whether or not there is any negligence or other wrongful act on the part of the employer. This is exemplified very clearly in the case of employes who are injured while entirely away from the premises of their employers, although remaining in the State of the residence of their employers. Thus where a driver of a horse attached to a wagon is injured by reason of the vehicle being hit by a street car, the master must pay compensation for the injuries, even though they were due to the wrongful act of a third person, providing only that the injury arose out of and in the course of the employment. Eecovery of compensation in such a case must depencj either on the force of the statute alone, or upon an implied contract between an employer and the employe. There is absolutely no element of tort or wrong of any kind, so far as the employer is con- cerned. In those States where compulsory acts are in force, it may, perhaps, be said_ that there is no contract between the employer and the employe, but that a specific duty is imposed upon the employer by force of the statute. In those States where elective laws are in force it would appear that the right to compensation depends upon an im- plied contract between the employer and the employe. The very first of the elective compensation statutes, thait of New Jersey, provides in the initial section of the compensation part of the law: " When employer and employe shall by agraement, either express or implied, as hereinafter provided, accept the provisions of Sec- tion II of this Act," etc. The very foundation of the compensation principle is based on con- tract in the New Jersey statute, and, as shown hereafter, it has been so held by the courts of 'New Jei-sey so far as they have considered the matter. Section 78 of the Arizona Workmen's Compensation Law provides that : "The employer and the workman shall alike be bound by and shall have each and every benefit and right given in this chapter the same as if a mutual contract to that effect were entered into Digitized by Microsoft® EXTEA-TEEEITOEIAL EFFECT OF WOEKMEn's COMP. ACT 87 The limited application of decisions under Britsh Act to Amercan statutes between the employer and the worhman at any time before the hap- pening of any accident. It shall be lawful, however, for the employer and workman to disaffirm an employment under the pro- visions of this chapter by written contract between them or by writ- ten notice by one to and served upon the other to that efEect before the day of the accident." The Connecticut Act provides in section 1 of Part B that : " The acceptance of Part B of this Act by employers and eraployes shall be understood to include the mutual renunciation ' , and waiver of all rights and claims arising out of injuries sustained in the course of employment," etc. It is provided in section 9 of Part 2 of the Minnesota Act that ; " If both employer and employe, shall, by agreement express or implied, or otherwise, as herein provided, become subject to Part 2 of this Act," etc. Section 10 of Part II of the Nebraska Act provides : "When employer and employe shall by agreement, express or implied, or otherwise as hereinafter provided, accept the provisions of Part II of this Act," etc. Section 1 (c) 4 of the Nevada Act provides: " Where the employer and employe have not given notice of an election to reject the terms of this Act, every contract of hire express or implied, shall be construed as an implied agreement between them and a part of the contract on the part of the employer to provide, secure and pay, and on the part of the employe to accept compensation," etc. Section 1 (c) 4 of the lovra Act provides: " Where the employer and employe have not given notice of an election to reject the terms of this Act, every contract of hire express or implied, shall be construed as an implied agreement between them' and a part of the contract on the part of the employer to provide, secure and pay, and on the part of the employe to accept compensation," etc. In New Jersey it is held that tie right to compensation is based on a qmsi contract. American Radiater Co. v. Bogge, 86 N. J. Law 436; 92 Atl. 85; 7 N. C. C. A. 144; aif'd 87 N. J. Law 314; 93 Atl. 1083. In California it is ?5/^,ygJ>B//{^f^^,^*^U^^^ ^^^^^^ ^^^" •'°^- 88 The limited application of decisions under Britsh Act to Amercan statutes tractual. North Alaska Salmon Co. v. Pillshury, Cal. ; 162 Pac. 93; N. C. C. A. In Minnesota it is held that it is based on contract. Johnson v. Nelson, 128 Minn. 158 ; 150 N. W. 620 ; JST. C. 0. A. The provisions of the New York Act enter into the contract of em- ployment. Shanahan v. Monarch Engineering Co., 219 E". Y. 469 ; 114 ]Sr. E. T95. Viewing the right to compensation as being based on a contract, it does not appear to be important whether the accident happened in- the State under the law of which compensation is claimed or in an- other State, any more than it is important in an action for services that the services should have been performed in the State where the con- tract was made rather than in an adjoining State, when the contract itself provides that an employer will pay the employe for services rendered in the adjoining State. The establishment of the dioctrine that the rights and liabilities of employers and employes under such acts are based on contract would avoid much difficulty and conflict which would arise should it be de- teiTnined eventually that compensation claims are based on torts, like common-law or statutory actions for damages resulting from injuries caused by negligence. In the event of the establishment of the doc- trine of contract, employers and employes would always be able to determine their rights and liabilities. There are hundreds of estab- lishments which are sending men constantly to various States to perform work, and if, in each instance, the liability of the employer depends upon the conflicting provisions of the various compensation statutes, wherever the employe may happen to be when he is injured, the confusion will be burdensome. In Oould v. Sturtevant (In re Am. Mut. Liability Ins. Co.), 215 Mass. 480; 102 N. E. 693; 4 '^. C. C. A. 60, the Court points out the conflict and inequalities which might ensue should " employes and employers from different States carry their domiciliary personal injury law with them to other jurisdictions." This seems to assume that the relation brought about by the compensation laws is not con- tractual. The moment it is admitted that the liability for compensa- tion rests on contract, the inequality and conflict almost entirely dis- appear. Moreover, there are many practical and apparently insur^ mountable difficulties in the way of working out the compensation Digitized by Microsoft® EXTEA-TEEEITOEIAL EFFECT OF WOEKMEN's COMP. ACT 89 The limited application of decisions under Britsh Act to Amercan statutes 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 Wis- consin statute? If it is answered that the courts of Massachusetts would enforce the Wisconsin law as to Massachusetts employers and employes, the reply is that there are serious obstacles in the way of such a procedure. This difiSciilty arises from the provisions of these various statutes as to the manner in which questions arising there- under 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 qthers give certain accident boards, or industrial commissions, exclusive jurisdiction to hear and determine such con- troversies. Ifaturally, 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,^ or in New York, such as is created by the Wisconsin statute. In this con- nection the decision in a comparatively recent case in the New York Court of Appeals becomes very important. It was therein declared : "■ WJien the statute creating the right provides an exclusive rem- edy, to he 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 B. B. Co., 208 N. Y. 312. The decision from which the above quotation was taken did not arise under a Com- 1 There is an Industrial Accident Board in Massachusetts, and an Industrial Commission in New York, which somewhat resemble the Industrial Commis- sion of Wisconsin, but there are important differences in the powers of these bodies There is a much greater departure when it comes to questions of practice. The Wisconsin Act provides that exclusive jurisdiction is conferred upon the Wisconsin Industrial Commission and, therefore, even if the juris- diction and practice of that body were identical in relation to cases arising under the Wisconsin 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. Digitized by Microsoft® 90 The limited application of decisions under Britsh Act to Amercan statutes pensation Act. The plaintiff sued the railroad company to recover the cost of fitting cars, provided by the company, so a^ fo make* them suit- able 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 Eederal statutes. It was in that connection that the language quoted was used. The court itself italicized the words to emphasize their importance. It may be that the doctrine of the Loomis case is modified some- what by the decision of the Federal Supreme Court in Tennessee Coal Co. V. George, 233 U. S. 354; 34 Sup. Ct. 587; 58 L. Ed. In that case an Alabama statute provided that rights thereunder could be enforced in the courts of Alabama only. A Georgia court took jijrisdiction of a case under the Alabama statute and this pro- cedure was upheld. One of the lower courts in New York has refused to enforce a claim for compensation under the New Jersey Act on the ground that such claim can be enforced only by a particular court in New Jersey, under the specific provision of the New Jersey statute. Lehman v. Ramo Films, Inc., 92 Misc. 418 ; 155 Supp. 1032. A somewhat similar doctrine was announced in another New York case, McCarthy v. McAllister Steamboat Co., 94 Misc. 692 ; 158 Supp. 563. The ques- tion was discussed, but left undecided, in the case of Pensabene v. Auditore Co., 2 Bradbury's PL and Pr, 197 ; same case on appeal, 2 Id. 212 ; 155 App. Div. 368 ; 140 Supp. 268. A few of the compensation acts of the various States leave the determination of controversies arising thereunder to the courts. Many of them, however, create either 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 seem to be a very practical difficulty tending to the impossibility 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. TY^'f^^^jvi^^j^p^iii^fff^reason why the rights and 91 The limited appiication of decisions under Britsli Act to Amercan statutes remedies under a compensation law should l^e considered a^ resting upon contract. For should the employe, who is this injured in Wis- consin, or Ohio, or Michigan, endeavor in the courts of Massachu- setts to enforce his rights under the Wisconsin, the Ohio, or the Michi- gan Act, he will be met with the difficulty that Massachusetts has no legal machinery corresponding to that of Wisconsin, Ohio and Michi- gan, 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 Compensation Act at all of a State foreign to that of his residence. This is particularly true in those instances where the employer must take some affirmative action to indicate his adoption of the compensation principle. Sup- pose a Massachusetts employe is sent to a State where he can claim compansation from the State fund only, and then only when his em- ployer 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 have a right to enforce all the penalties of the law of the State where the accident happened relative to those who have failed to contribute to the State insurance fund, and enforce those penalties in the courts of Massachusetts, against a Massachusetts employer who had adopted the compensai- ' tion law of his own State and had fully complied with its provisions, but who had not adopted the compensation provision of the law of the other State? There are many practical difficulties in the way of an employer 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 employer has or has not adopted the laws of States other than 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 administering 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 W^9Me of his own business TO WHOM ACTS APPLY 165 Teamsters and that lie was not an employe of the man for whom he was drawing the coal. Cheevers v. Fidelity & Deposit Co., 1 Mass. Ind. Ace. Bd. 365; aff'd, holding employment casual; In re Cheevers, 219 Mass. 244; 106 N. E. 861; .IST. C. C. A. 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 meaning of the British Act. Ryan v. County Council of Tipperary (S. B.) (1912), 48 Ir. L. T. 69; 5 B. W. C. 0. 578. Where the plaintiff was employed 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 de- fendant's instructions while unloading. (E. L.) See v. Leidecker, 152 Ky. 724; 154 S. W. 10. The plaintiff hired a coach at a public stand near a hotel, and directed the driver where to go. While crossing a railroad track the carriage was struck by the engine of a passing 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. (b) Driver of team owned hy another and hired to a third person. A driver of a team owned by A, which is hired to B, with the services of the driver, at a stipulated sum for both, remains the employe of A, Bongo v. B. Waddington & Sons, N. J. Law ; 94 Atl. 408 ; 9 N". C. C. A. 402 ; Jones v. Liverpool, 14 Q. B. D. 890. The owner of several horses supplied teams with a driver for each at a stipulated sum for each team and driver, and also drove one of the teams himself. It was held that he was not an employe of the person to whom the teams were hired, but the relation was that of an independent contractor, under the California Act. Western In- demnity Co. V. Pillsbury, 172 Oal. 807; 159 Pac. 721. The owner of a team and wagon hired out the team and wagon, with a driver, at a stipulated sum to A, who in turn contracted them to B at a slight increase, the driver being paid by the owner, and it was held that the owngj^gj^j^^ye^W^J^g^® McLeod v. Kirhpatrick, 166 Teamsters 3 Cal. Ind. Ace, Com. 19 j aff'd Kirkpairick v. Industrial Accident Commission (1916), Cal. App. ; 161 Pac. 274; K C. 0. A. . Where a man with a team, "was sent to work for the city of Spring- field to do such work as he was directed to do by the officers of the municipality in charge of the work, but the driver was still under the direction of his immediate employer as to the care of the horses and also after work ceased each day, it was held that the driver was an* employe of the owner of the horses. Pigeon v. Employers' Lia- bility Assurance Corporation^ 216 Mass. 51 ; 102 N. E. 932 ; 4 i^. 0. C. A. 516. Where T furnished to the city of New Haven a team with a driver, at a specified sum per day, and F furnished such driver as he pleased, and the city could not discharge such driver, but the driver with the team did such work as was required of him by the city, it was held that the driver of the team was an employe of F and not of the city. Fiorio v. Ferrie, 1 Conn. Comp. Dec. 459. In the last-mentioned case the Commissioner distinguished the case of O'Neill v, Sperry Engineering Co., Id. 387./ Contra. Where an owner of a team hires out a team and driver to a third person, for a specific sum, the driver being paid by the owner of the team, and the employe being injured while doing the work of the third person, such third person is the employer and liable for compensation by reason of the injury of the employe. Gimber V. T. P. Kane Co., 2 N. Y. St. Dep. Eep. 475 ; Nolan v. Cranford Co., 4 'N. Y. St. Dep. Eep. 337 ; Junker v. Lorimer & Gallagher Con- struction Co., 1 Bull. 111. Ind. Bd. 28; (E. L.) Christiansen v. Me- Lellan, 133 Pac. 434; 74 Wash. 318. Where a truckman owning a number of trucks rented to a corpora- tion a number of trucks with drivers, at a stipulated price for each truck and driver, the trucks and drivers so rented performing work in connection with the business of the corporation renting them, and me of the drivers was injured in such employment. It was held that the driver for the time being was the employe of the corporation biring the trucks and that such corporation and its insurance car- rier was liable for the compensation. O'Neill v. Sperry Engineering Co., 1 Conn. Comp. Dec. 387. In the last-mentioned case the con- troversy was really bet©^'ztedjBs!MKSXP(S©*a'riers of the truckman TO WHOM ACTS APPLY 167 Teamsters and the corporation hiring the trucks. The driver was carried on the pay-roll of the truckman and not on the pay-roll of the corpora- tion hiring the trucks, but it was held that the corporation and its insurance carrier were liable and not the truckman. A firm of brickmakers had more teams than they could use for the time being. One of the teams was sent to draw sand for another man, whose business was in no way "connected with the making of bricks, at a stipulated sum for the man and team. The man was injured by a fall of sand in the sand pit while he was helping to load the sand. It was held that compensation could be awarded against either the owner of the team as the general employer or against the owner of the sand pit as the special employer. Matter of Dale v. Saunders Bros., 171 App. Div. 528; 157 Supp. 1062; aff'd 218 N. Y. 59 ; 112 ]Sr. E. 571. Where D, the owner of a team, rented the team with a driver to S, to do such work as S might require, at a stipulated sum per day, D paying the driver his wages, it was held that S was the employer of the driver for the time being. Hartell v. T. H. Simonson & Son Co., 218 N. Y. 345 ; 113 K E. 255. In the last-mentioned case the court distinguished the case of Kellogg v. Church Charity Foundation of L. I., 203 K Y. 191; 96 K E. 406; 38 L. E. A. (JST. S.) 481n; 3 IST. C. C. A. 444. In the Kellogg case the defendant was the owner of an ambulance and had made an arrangement with a livery stable keeper to furnish horse and driver to answer ambulance calls, and it was held that this was an independent contract, which made the livery stable keeper the employer of the driver. In the Hartell case the Court remarked : " The principles of law which control in this class of cases are quite well settled. A servant in the general employment of one person, who is temporarily loaned to another person to do the latter's work, becomes, for the time being, the servant of the bor- rower, who is liable for his negligence. But, if the general employer enters into a contract to do the work of another, as an independent contractor, his servants do not become the servants of the person with whom he thus contracts, and the latter is not liable for their negligence." In the Hartell case the court also approves the doctrine of the case of Schmedes v. Deffaa, 214 N. Y'. 675 ; 108 IST. E. 1107, rev'g 153' App. Div. 819; 138 Supp. 931, in which a livery stable keeper who Digitized by Microsoft® 168 beadbuey's woekmbn s compensation law Volunteer had an order from an undertaker to furnish carriages for a funeral, and not having a sufficient number of carriages of his own applied to another liveryman for an additional carriage and driver. The sec- ond liveryman sent a carriage and driver as requested. The court remarked that this clearly was a case where the first liveryman pro- cured additional facilities for doing his own work, and it was held in the Court of Appeals that the first liveryman was liable for the driver's negligence. The A Co. hired teams and drivers from B for a specific sum per day for each team and driver. B not having sufficient teams to supply the A Co. engaged more teams from C, and C not having sufficient teams to meet the requirements engaged further teams from D, all to be used in the service of the A Co. A driver of one of the teams of D was injured by the horses running away, and it was held that the A Co. was a special employer and was liable for the compensa- tion to the driver, under the New York Act. Dale v. Hual Con- struction Co. (1916), 9 ISr. Y. St. Dep. Eep. 282. A and B who jointly owned a team and wagon were employed by C to haul fruit, one being engaged as a teamster and the other as a helper, the wages for both being paid to either one, no particular agreement being made as to a specific sum for drawing a particular amount of fruit, and it was held that A was an employe of C and not an independent contractor. Johnson v. Corralitos Fruit Growers Assn. (1916), 3 Cal. Ind. Ace. Com. 205. 31. Vendor and purchaser. As between a person who has entered into a contract to sell a piece of real estate and a purchaser who has taken possession and is build- ing a house thereon, the liability for compensation to workmen em- ployed on the house rests on the purchaser and not on the vendor. Anderson v. I. C. Mickelson and Charles E. Hughes, 1 Cal. Ind. Ace. Com. (Part II), 189. 32. Volunteer.^ Where a carpenter voluntarily started to work on a church in the course of construction, without being hired, in the hope and on the chance that he might be hired later if seen on. the job, it was held 1 See Emergency '"^^"EhiMmfWicrosoft® TO WHOM ACTS APPLY 169 " Usual course of the trade, business or profession " of the employer that the relation of master and servant did not exist and compensa- tion was refused. Steiman v. Anshi Sfard, 2 Cal. Ind. Ace. Com. 944. ARTICLE B — APPLICATION OF STATUTES GENERALLY 1. Classification of statutes. None of tie compensation acts thus far passed in the United States apply to all employers and employes. A number of them apply to limited classes and permit the excepted classes to adopt the compensation principle, either by the mutual .agreement of the em- ployers and employes, or by the election of the employer and the implied acquiescense of the employe by his failure to affirmatively reject the compensation principle. Among the elective laws 'New Jersey is probably the broadest in its application. It applies to all employers and employes, except casual employes. The compulsory statutes, as a rule, apply to specific occupations, usually termed " hazardous " or " extra-hazardous " employments, and permit em- ployers and employes in the excepted classes to adopt the compensa- tion principle in the same manner as in the case of elective laws. Certain of the statutes, however, where an exclusive State fund is created, apply to certain so-called hazardous employments only and there is generally no way in which employers and employes can adopt the compensation principle, unless they are engaged in these specified employments. But there are exceptions even here, and under some of the State managed insurance plans employers and employes may elect to adopt the compensation principle. 2. " Usual course pf the trade, business or profession " of the em- ployer. Many, although not all, of the compensation acts contain pro- visions limiting the application thereof to workmen who are engaged in the course of the trade, business, profession or occupation of the employer. The phraseology by which this is done is not uniform. In New York, for example, those are excluded who are not engaged in an occupation carried on " for pecuniary gain." Only a few, like that of New Jersey, apply generally to domestic servants and all other employes, whether or not they are engaged about the mas- ter's trade or business. D^WScf4y^}iM'(^^^^^^^ compulsory as to 170 " Usual course of the trade, business or profession " of the employer certain employes engaged in the master's trade, or business, or, if they are elective, they provide penalties against the master in rela- tion to employes engaged in his trade or business, if he does not elect to adopt the compensation principle ; while as to other employes no penalty is imposed if he does not adopt the compensation principle. Thus it is held that an ordinary private chauffeur is not covered by the Workmen'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; but the chauffeur of a business concern is like any other employe, and is covered by the Act. Ruling of Massachusetts Industrial Accident Board, Bulletin ISTo. 2, page 1. Employment in a refreshment room at a railway station 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. Eebuilding stations is work " merely ancillary or incidental to and is no part of or process in the trade or business carried on by " a railway company. Pearce v. London and Sowth Western By. (1900), 82 L. T. 487; 2 W. C. 0. 47. Under the New York Act the employe's actual work or occupa- tion, not the employer's business, is the test of liability. Lyons v. Windsor, 173 App. Div. 377; 159 Supp. 162. But under the amendment of section 3 of. the IsTew York Act made by L. 1916, c. 622, an employe is covered by the Act if the " principal business " of the employer is one of those designated in the Act as hazardous. A carpenter engaged in making alterations in a portion of a build- ing used as a macaroni factory was killed by the collapse of the building, and it was held that he was not protected by the ISTew York Act either under group 42 of section 2 covering the construction, repair and demolition of buildings, or group 33 of section 2 covering the preparation of food supplies, on the ground that the cai-penter was not engaged in the preparation of food stuffs at the time he was killed and the employer was not engaged in the construction, repair and demolition of buildings for pecuniary gain as is required, as the basis of compensation by subdivision 5 of section 3 of the New York Act. Matter of Bargey v. Massaro Macaroni Co., 218 E". Y. 410 ; 113 N. E. 407 ; K C. C. A. ; aff'g 170 App. Div. 103 ; 155 Supp. 1076 ; 11 N. C.£%/#5fee^y Microsoft® TO WHOM ACTS APPLY 171 " Usual course of the trade, business or profession " of the employer It seems impossible to harmonize the principle announced in the last-mentioned case with the doctrine found in the case of Lyons v. Windsor, 173 App. Div. 377; 159 Supp. 162, cited supra. In the Lyons case it was held that the nature of the work being done by the employe was the test of whether or not he was under the Act Under this test, of course, the employe in the Bargey ease would be protected. The express mention of the matters embraced in the several groups of hazardous employments in the New York Act necessarily excludes those not enumerated. Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34; 155 Supp. 916; 11 N. C. C. A. 330; 12 K C. C. A. 311. Thus a person engaged by a cheese manufacturer solely for the pur- pose of harvesting ice is not engaged in a hazardous employment, as cheese manufacturing is covered by the Act and ice harvesting is not. Id. But by an amendment to the 'New York Act ice harvesting is now covered. The doctrine of ejusdem generis prevents any general language in the !N"ew York Act to be extended beyond the special language used. Aylesworth v. Phoenix Cheese Co., 170 App. Div. 34; 155 Supp. 916; 11 ]Sr. C. C. A. 330; 12 IST. C. C. A. 311. If an employe's duties are exclusively or predominantly within an enumerated employment or employments and he is injured while doing work fairly within the scope of the ordinary and accustomed fulfillment of such duties, he has a rightful claim even though the particular act he was doing when mishap befell him, would not of and by itself ordinarily be described by the use of phraseology con- tained in the statute or as the doing of work enumerated in the stat- ute. Oleisner v. Gross & Herhener, 170 App. Div. 37; 155 Supp. 946. But if the employe's ordinary duties do not come exclusively within the category of enumerated employments his right to com- pensation depends on a finding that he sustained injury while actually and momentarily doing work named in the statute. Id. An employe in a meat market who was in the habit of delivering meat in a wagon was injured while delivering meat on foot, the wagon having been put up for the night. Compensation was refused under the ]^ew York Act on the ground that the employe was not protected by the Act while making the delivery on foot, even though he would have been prota|Bdzbi8flbJi:Q^ePOS©!/?^iig delivery by means 172 " Usual course of the trade, business or profession " of the employer of a horse and wagon. Matter of Newman v. Newman, 218 ~S. Y. 325 ; 113 ]Sr. E. 332 ; K C. 0. A. ; aff'g 169 App. Div. 745 ; 155 Supp. 665. In the last mentioned case the court said : " The injury must be sustained in connection with or incidental to the hazardous employ- ment." The court also held that the delivering of meat from the meat market was carrying on the business of a market man as a trades- man and not as a manufacturer of meat or meat products, as specified in Group 30 of § 2 of the l^ew York Act. The court left undecided the question of whether or not the cutting and preparing of meat for the purpose of retail sale came within the definition of Groups 30 of § 2. Such business was later added to the New York Act by an amendment. Any work furthering the occupation of farming or assisting in the construction, maintenance or repair of instrumentalities of such occu- pation is in the usual course of the business of the farm, even though the person engaged is not a farm hand. Meily v. Newhall Lumber and Farming Co. (1916), 3 Cal. Ind. Ace. Com. 208. A lessee of a house contracted with another to have the house over- hauled and redecorated and it was held that the employe of the decorator could not recover compensation from the lessee of the house as the contract was not for the purpose of the lessee's trade or busi- ness. Brine v. May, Ellis, Grace & Co. (1913), 6 B. W. C. C. 134. A captain who was employed by a barge owner to do the annual work of overhauling the barge, had the free choice of employes and employed the mate to help him. The mate was injured in the course of the work. It was held that the work of overhauling was not the trade or business of the barge owners and that therefore the work of overhauling was not work undertaken by them within the meaning of the British Act and that compensation should not be awarded to the mate as against the barge ovmers. Hayes v. 8. J. Thompson & Co. (1913), 6 B. W. 0. C. 130. Under the Alberta Act an employe of a contractor who had agreed to level a railroad crossing, was held not to be entitled to compensa- tion from a railway company when he was injured by one of the com- pany's trains, as such employe was not engaged " in the way of their (railroad company's) QiS»9!«4^AHiMtf¥!ftf5/i^thin the meaning of the TO WHOM ACTS APPLY 173 Definition of the word " employ^ " or a " workman " Alberta Act. Bingwood v. Kerr Brothers (1914), (Alberta Supreme Court), 1 B. W. C. C. 1056. A man employed by an electric light company to trim trees, through which the wires of the company passed, and was injured in this work, was held to be employed in the " usual course of the trade, business, profession or occupation " of the employer and entitled to compensa- tion. In re Howard, 105 N. E. 636 ; 218 Mass. 404. A person who, for the purpose of speculation outside of his regular business, purchased the pipe which had been used in a portion of an exposition ground, was held for the time being to be engaged in that particular business so that he became liable to an employe who was injured while removing the pipe. Kelly v. Scougall (1916), 3 Cal. Ind. Ace. Com. 226. 3. Definition of the word " employS " or a " workman " under Com- pensation Acts. The old nomenclature of " master and servant," while still retained by courts and law writers, has been abandoned, to a very consider- able extent, by the various legislative bodies, in favor of the terms " employer and employe," in adopting workmen's compensation statutes. The change does not appear to have any Special signifi- cance, except that, as hereafter shown, possibly the word " employe " may have a somewhat broader application than the word " servant " as heretofore used. There is a distinction, however, 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 was held in Great Britain that a certified manager of a colliery receiving £400 a year with house rent free, who did no manual labor, was not a workman. Simpson v. Ehhw-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 connection 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 & law writer was within the Act, but that the luncheon hour was not part of his period of employment, and therefore com- pensation was refused. DMit'i^lhffiMpsmi^ /ones j( 1909), 2 B. 17i beadbuey's woekmen's compensation law Definition of the word " employ^ " or a " worliman " W. C. C. 460. It has also been held that a professional football player was a workman within the meaning of section 13 of the British Act. Walker v. Crystal Palace Football Club (1909), 101 L. T. 645; 3 B. W. C. C. 53. The British Act, however, is limited to employes who are earning less than a specified sum, unless they are engaged in manual labor, in which latter event the amount of their wages is of no importance. § XIII. Such limitations are not found in many of the workmen's compensation statutes of the various American States. Usually the word " employ^ " is used, and the exceptions relate to those engaged in particular employnaents, without regard to the sum received as wages or salary. In a very few States, however, compensation is payable to those only who receive less than a specific sum as wages or salary. No distinction is made between those en- gaged in manual and other kinds of labor, except that in a very few of the statutes an attempt has been made to make a distinction be- tween those subject to the hazards of a particular occupation and those who are engaged in a clerical or executive capacity and are not subject to the dangers incident to those operating machines, for example. Thus, as showing the broad application of the word " employe " even before the Compensation Act was passed, it was held in New York that the superintendent of a knitting mill was an " employe " within the meaning of the Employers' Liability Act, since it did not assume to make any distinction between different classes of employes. (E. L.) Aken v. Bamet & Aufsesser Knitting Co., 118 App. Div. 463; 103 Supp. 1078. So a person who renders ser^dces as general manager of a corporation upon a salary is an employe within the meaning of the California Compensation Act. Head v. Fidelity and Deposit Co., 1 Cal. Ind. Ace. Com. (Part II) 451. The word " employe " under the New York Act means a person engaged in a hazardous employment, as specified in the Act, in the service of an employer carrying on or conducting the same upon the premises or at the plant, or in the course of his employment away from the plant of his employer. Be State Workmen's Compensa- tion Commission (Dale v. Saunders), 218 N. Y. 59; 112 N. E. 571. Manual labor is not necessary in order to bring a party under the Connecticut Act. Skinner v. Connecticut School for Imbeciles, 1 Conn. Comp. Dec. 10@'P'lHe(f ^^tiperior^ourt, Id. 110. TO WHOM ACTS APPLY 175 Contracts of employment existing at pasage of Compensation Act The Nevada Industrial Commission has held that an expert min- ing engineer retained for the purpose of making examinations as to the physical condition of the property and to advise the manager regarding existing physical condition and future work, is not an employe. Report of N^evada Ind. Com., July 1, 1913, to Dec. 31, 1914, p. 26. Under the California Act the term " employe " means the same as the word " servant " in the law of master and servant. Western Indemnity Co. v. Pillsbury (1916), 172 Cal. 807; 159 Pac. 721; N. C. 0. A. 4. Subscriber. The word " subscriber " under the Massachusetts Act means an employer who has insured under the Act either in a private company authorized to do business in the State or in the mutual company ^ created under the Act. In re Cox (1916), Hass. ; 114 N. E. 281; KC. C. A. 5. Agreements between employer and employ^ to waive Compensa- tion Act. I^Tearly all the compensation acts have express provisions to the effect that they cannot be waived. Thus far these provisions have been sustained. Thus it is held that an agreement by an employe to waive his right to compensation under the New York Act is not only void as against public policy, but also under the express provision of section 32 of that Act. Powley v. Vivian & Co., 169 App. Div. 170; 154 Supp. 426; 10 K C. C. A. 835. An employer cannot, by private contract with an employe, relieve * himself from liability under the Illinois Act of 1913. Chicago Bail- ways Co. V. Industrial Board (1916), 111. ; 114 IST. E. 534; N. C. C. A. 6. Contracts of employment existing at time of passage of Com- pensation Act. The Minnesota Act was held to apply to contracts of employment existing at the time of the passage of the Act and which continued after its passage, and thit^'fi^^^jtol#arasfiSPimpair the obligation 176 BEADBTJEy's WOEKMEn's COMPENSATlOIir LAW Number of employes as affecting application of Act of such contracts. State ex rel. Nelson-Spelliscy Co. v. District Court of Meeker County, 128 Minn. 221; 150 ^. W. 623; 11 N. C. C. A. 636. 7. Death occurring after statute goes into effect by reason of in- jury happening before statute effective. A death claim is distinct from a claim for compensation by an injured employe, and therefore where an accident happened before the Minnesota statute went into effect, but the death occurred after the statute became effective, it was held that a claim for compensa- tion by dependents should be sustained. State ex rel. Carlson v. Dis- trict Court of Hennepin County, 131 Minn. 96; 154 K W. 661; :N". 0. C. A. . But in cases of occupational diseases a somewhat different doc- trine has been announced. Thus a stereotyper 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 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 taking effect of the Act in the employment of the respondents, or of anyone else. Oreenhill v. The Daily Record, Glasgow (1909), 46 Scotch L. R. 483; 2 B. W. 0. C. 244. 8. Injuries occurring prior to passage of Act. The Compensation Act of Arizona was held not to apply to an action for injuries which occurred prior to the passage of the Act. Arizona & N. M. By. Co. v. Clarh (U. S. Circuit Ct. of Appeals, 9th Circuit), 207 Fed. 817. 9. Number of employ6s as affecting application of Act. Several of the compensation statutes are limited in their applica- tion to employers who have a particular number (usually four or five) of employes engaged in the same general employment. This feature has been sustained by the Federal Supreme Court.* The original Connecticut Act was held to apply to an employer, even though he did not employ five employes, and to avoid the lia- bility for compensation it was necessary for him to give notice under - See discussion under ^Mf/^C^iii/^^ii^&S^M .ONAL Law. TO WHOM ACTS AtfLY Itt Number of employes as affecting application of Act the Act. Bayon v. Beckley, 89 Gomi. 154; 93 Atl. 139; 8 K C. C. A. 588; aff'g 1 Coim. Comp. Dec. 69. The Connecticut law was amended, however, by L. 1915, c. 288, so that the presumptive adop- tion of the compensation law does not now apply to employers regu- larly employing less than five employes, but such employers may adopt the compensation principle by giving the proper notice. Brewer V. Belcher, 1 Conn. Comp. I>ec. 111. The phrase " having regularly less than five employes " refers to the number of employes actually on a job or in the service of an employer at the time of the injury. Gorse v. Caplin, 1 Conn. Comp. Dec. 60!r. Thus where an employer has only three or four employes during a considerable portion of the year, but at times has a con- siderably larger number than five, and the injury occurs while more than five are employed, the Compensation Act applies even though the employment is in and about the improvement of real estate by one not residing permanently in the State of Connecticut. Gorse v. Caplin, Superior Court, Hartford County, Conn., June 27, 1916 (unreported). Where an employer employing five or more employes temporarily loaned one of his employes to an employer who employed less than five employes, it was held, under circumstances indicating that the original employer was endeavoring to efcape liability by showing that the employment was by the employer to whom the employe was loaned, that the original employer was the one who was liable for the compensation to the employe injured in such temporary employment. Grischuch v. 8. Borden '& Co., 1 Conn. Comp. Dec. 633 ; aff'd by Superior Court, Id. 686. The owners of an amusement park employed three musicians on holidays, Wednesdays and Saturdays throughout the season, a night watchman regularly, a man to assist in running boats and in in- structing others how to operate boats, besides the deceased, who operated a small power boat. It was held that all these employes could be taken into account in determining the number of employes regularly employed. Boyle v. Mahoney, Conn. Comp. Com. ; Beers Comr. Fourth Dist, March 19, 1917 (unreported). A master plumber, a master carpenter and a master mason entered into a joint venture to buy land and build houses thereon for sale. They raised money fot)je^f^j!^ffi^^g§c(?ffetheir joint and several 12 178 beadbuey's woekmen's compensation law Number of employes as affecting application of Act note. One did the plumbing work, one the carpenter work and one the mason work at cost price for material and labor, the bills for which were audited and approved by all three. Each one had con- trol of his own men. A man employed by the plumber was killed, and at the time the plumber did not have five men employed, but there were employed by the plumber and the carpenter on the build- ing more than five men. It was held that the question of whether or not more than five men were employed must be determined by the number of men employed by the plumber alone, and as he did not have five men the man who was killed was not protected by the Con- necticut Act and compensation was refused. Coady v. Igo (1916), Conn. ; 98 Atl. 328 ; W. C. C. A. ; aff'g 1 Conn. Comp. Dec. 576. Where an employer was a member of a copartnership, in which a number of employes were engaged, and one member of the firm had a farm in connection with which there were three employes, one of whom was injured, it was held that the men in the employ of the partnership ooul,d not be considered in determining whether or not the member of the partnership, in his individual capacity, had more than five employes. Sidlivan v. Fitzgerald, Conn. Comp. Com., Fifth Dist; Williams, Comr., Oct. 26, 1916 (unreported). The employes of the individual members of a firm cannot be taken into account in determining the number of employes of the partner- ship. Boyle V. Mahoney, Conn. Com. ; Beees, Comr., Fourth Dist., March 17, 1917 (unreported). In considering whether or not a church had more than five em- ployes, it was held that choir boys who practically donated their services, receiving only twenty-five cents a mont^, in the nature of a reward for moral and disciplinary purposes, should not be con- sidered. But it was held in this case that the church was under the Connecticut Act, having accepted its provisions, even though there were less than five employes. Loveland v. Parish of 8t. Thomas' Church, 1 Conn. Comp. Dec. 14. In determining whether or not a farmer employs regularly five or more persons, the members of the family cannot be considered and the word " family " does not necessarily mean standing in the rela- tion of parent and child, but may include brothers and sisters. Young V. Eolcomb, 1 Conn. CsdgpvzPsKfej^SScroso/?® TO WHOM ACTS APPLY 179 Wages of employ^ as determming application of Act Where a fanner during certain seasons necessarily employed men to dig potatoes, to fill a silo, to deliver milk at the railroad station and to do other farm work of that nature, and had more than four men employed at the time of the accident, it was held that when a man was injured by a runaway horse while delivering milk he was entitled to compensation. Vojaceh v. A. J. Schlaefer (1915), Fourth Annual Report Wis. Ind. Com. 8. But the foregoing decision seems to have been to some extent nullified by a later doctrine established by the Supreme Court. Thus it is held that a farmer who has not regularly employed four or more men in running his farm is not an employer, within the meaning of the Wisconsin Act, because he tem- porarily, at more or less regularly recurring times, employed four or more men for specific work. Kelley v. Hayloch (1916), 163 Wis. 326; 157 K W. 1094; 11 K C. C. A. 382. A corporation which owns and operates a saw mill, which is not in operation on all the working days of the year, but when in operation requires five or more workmen to operate, is an employer, having regiilarly five or more employes, within the meaning of the Ohio Act. Clements v. The Columbus Saw Mill Co., 1 Bull. Ohio Ind. Com. 161. The provision of the Texas Act abolishing the common-law de- fenses does not apply to an employer having less than five employes who is a non-subscriber. Hodges v. Swastika Oil Co., Tex, Civ. App. ; 185 S. W. 369. 10. Wages of employ^ as determining application of Compensation Act. A few of the American compensation acts are limited in their ap- plication to those workmen who earn less than a specified amount. But this is not the general rule. Under the British Act, however, only employes earning less than £250 a year are covered, unless they are engaged in manual labor, and then the amount of the salary or wages earned is immaterial. Thus a manager of a colliery who received £400 a year and rent free, but did no manual labor, was held not to be a " workman " within the meanpg of the British Act. Simpson v. Ebbw-Vale Steel, Iron & Coal Co. (1905), 92 L. T. 282; 7 W. C. C. 101. The same principle was establish^-^g/^ 6^fl^#si^S®iist, even though he did 180 beadbuey's woekmen's compensation law Presumption that employes covered by Act considerable manual labor, Bagnall v. Levinstein (1906), 96 L. T. 184; 9 W. C. C. 100. But where the salary of a ship's captain was in excess of £2/50 a year, which would preclude him from claiming compensation as a workman under the British Act, but in case of damage to the ship his salary was to be reduced to a sum which would have made him a workman, it was held that upon the loss of the ship in very bad- wheather the court must consider the wages at the reduced amount and that therefore the dependents of the captain were entitled to com- pensation. Williams v. 8. 8. "Maritime" (1915), 8 B. W. C. C. 267. 11. Pecuniary gain. The owner of a farm employed men temporarily to make repairs on a dairy farm and it was held that the man making the repairs was not covered by the New York Act as the employer was not en- gaged in " the construction and repair of buildings " for pecuniary gain. Coleman v. Bartholomew (1916), 175 App. Div. 122; 161 Supp. 560. In the last mentioned case the court followed the rule laid down in Bargey v. Massero Macaroni Co., 218 IN". Y. 410; 113 K E. 407; 11 JST. C. C. A. 322. It was also held under the New York Act that as public employes were not employed for the pecuniary gain of the employers that they did not come under the Act, prior to an amendment bringing them in. 12, Presumption that employes covered by Act. The New York Act should be construed as compelling the Com- mission and the Court of Appeals to presume that the business con- ducted by the employer was within the provisions of the statute defining hazardous employments in the absence of some substantial evidence to the contrary. In re Larsen v. Payne Drug Co., 218 N. Y. 252 ; 112 N. E. 725 ; 11 N. 0. 0. A. 327 ; afF'g 169 App. Div. 838 ; 155 Supp. 759. A night watchman in a furniture plant was allowed to recover under the presumption created by section 21 of the Act where there was no evidence in the case that the plant was not in operation, the court holding that the burden was, on the employer to show that the 1 , , . Diaitized by Micrpsofm ■;, plant was not m operanon m order to relieve the employer of lia- TO WHOM ACTS APPLY 181 Action for damages against third person causing injuries bility. Kobyra v. Adams (1916), App. Div. ; 162 Supp. 269. As a general proposition watchmen are not covered by the New York Act.^ 13. Action for damages against third person causing injuries.* The Wisconsin Aot does not apply to an action between a work- man who is sent by his employer to do work at a shop of a third person and is injured in such shop and makes a claim against the third person for damages. Smcde v. Wrought Washer Mfg. Co., 160 Wis. 331 ; 151 K W. 803 ; N. 0. C, A. . That is, the por- tions of the Wisconsin Act. relating to the abolition of common-law defenses in actions at law do not apply to such cases. A workman for a city contractor, engaged in constructing a man- hole in the street near a railroad track, was injured by one of the cars of a traction company, and it was, held (under the Washington Act) that he could maintain a common-law action against the cor- poration owning the car through which his injury was occasioned. Puget Sound Traction, Light & Power Co. v. Schleif (U. S. Circuit Court of App., 9th Circuit), 220 Fed. 48. The court followed the doctrine laid down in Meese v. Northern Pacific By. Co., 211 Fed. 254, and the case prcceeded apparently on the theory that the injury occurred through the negligence of a third person while the employe was " away from " the premises of his employer. This question, however, is not discussed at length in the Schleif case, the court merely holding that the defense based on the Compensation Act could not be maintained and cited the Meese case as authority for the proposition. The headnote, No. 5, in the Federal Reporter in the Schleif case states that it was held that the work which this employe was doing was not " extra-hazardous " within the meaning of the Washington Act, but the court does not Seem to determine that question. Under the Washington Act, if the workman is injured on the premises of his employer from the act of a third person, he has an absolute right to compensation from the State fund, but if so injured off the premises of the employer lie mlxst elect whether to sue the 1 See title Watchmen, post, page 262. 2 See Common law defenses;, Election pf.remedn after accident; Subrogation. Digitized by Microsoft® 182 Apprentices third person or claim from the fund. Stertz v. Industrial Insurance Commission (1916), 91 Wash. 588; 158 Pac. 256; JST. C. C. A. In most of the compensation statutes, however, the workman has an election whether to proceed against the third person causing the injury or to claim compensation from his employer. Usually, also, if he claims compensation from his employer the employer is sub- rogated to the rights of the employe to sue the third person for damages, 14. Taking effect of Act postponed by referendum. The Oregon Act was passed February 25, 1913, being chapter 112 of the Laws of 1913. It contained a provision that it should take effect on the 30th day of June next "following the passage of the Act. Under the Constitution of Oregon a referendum petition was filed and under the Consititution, under such circumstances, an Act does not take effect until " it is approved by a majority of the votes cast thereon." The election approving the Act was held iN'ov. 4, 1913. As the Act provided on its face that it should not apply to injuries occurring before the 30th day of June after the Act took effect, it was held that it applied only to injuries which occurred until after June 30, 1914. Salem Hospital v. Olcott, 67 Oreg. 448 ; 136 Pac. 341 ; 4 N". C. C. A. 614. ARTICLE C— SPECIFIC INSTANCES ILLUSTRATING THE EXTENT OF THE COVERAGE UNDER COMPENSATION ACTS 1. Apartment house. The business of owning and operating an apartment house is not a hazardous empLoyment within the ISTew York Act. Matter of Sheri- dan V. P. J. Groll Construction Co., 218 N. Y. 633; 112 IST. E. 568; ISr. 0. C. A. ; rev'g 172 App. Div. 916; 156 Supp. 1146. 2. Apprentices. A person who, under authority from a railroad company, goes upon an engine to learn the duties of a fireman, performing the services to gain the experience, is a servant of the company, although he receives no pay during his apprenticeship. (E. L.) Smith v. Western & A. R. Co., 67 S. E. 818; i^^/^^|y^^/v?;c9(9S)W@'^^ion was awarded to TO WHOM ACTS APPLY 183 Alien non-residents an apprentice engaged in manufacturing spring balance scales under the New York Act. Kilberg v. Vitch, 4 N. Y. St. Dep. Eep. 434. An apprentice on a ship who, under the articles of apprenticeship, is entitled to maintenance and expenses when injured, cannot claim compensation under the British Act so long as the articles of appren- ticeship are in force. Turner v. 8. 8. " Haulwen" (1915), 8 B. W. C. C. 242. A minor under 18 years of age was being instructed in the operation of an elevator and while operating the elevator, in the absence of the instructor, was killed by an accidental injury; and it was held that his dependents were entitled to compensation, even though he had not yet been licensed as an elevator operator and he was performing the work in the absence of the instructor. Pettee v. A^02/es (1916), 133 Minn. 109; 157 KW. 995; K 0. C. A. 3. Artificial flower manufacturer. An employe making artificial flowers tripped over a parcel on the factory floor and fell receiving disabling injuries and compensation was awarded under the New York Act. Oray v. DeJong, 5 N. Y. St. Dep. Eep. 404; 12 N. 0. C. A. 662. 4. Alien non-residents. An administratrix of a deceased workman cannot maintain an action, under the New Jersey Act, for damages because of the death of the workman, upon showing that all the dependents are alien non- residents who are barred from a recovery under that Act. Gregutis V. Waclarh Wire Works (N. J. Court of Err. and App.), 38 N. J. Law J. 11 ; 86 IST. J. Law 610; 92 Atl. 354; 9 N. 0. 0. A. 595n. A very few of the compensation acts, like that of New Jersey, deny compensation where the dependents are non-resident aliens. Some of them allow reduced compensation in such cases. The opera- tion of the New Jersey Act in this respect, as determined in the Gregutis case, has the effect of denying all right to recovery for the death of a workman where his dependents are alien non-residents. There had been considerable conflict on the point prior to the adop- tion of the compensation acts. In some States alien ' non-residents were allowed to recover in actions for damages for the death of an employe to the same e^^z^h^W^BhdlkW'^^^ ^^^^^ exercise that 184 beadbuey's woekmen's compensation law ^ Automobile drivers right. In other States such actious could not be maintained by alien non-residents. Therefore where compensation is denied to alien non- residents by the provisions of a particular Compensation Act, the right to recover damages depends upon statutes and decisions of the courts which are entirely independent of the compensation acts. The Illinois Act, applies to non-resident aliens when they are de- pendents in accordance with the terms of the Act. Victor Chemical Works V. Industrial Board of Illinois, 274 111. 11; 113 N. E. 173; N". C. C. A. 5. Automobile driver. A demonstrator of automobiles employed by those who made a business of selling automobiles was held to be covered by the New York Act. Todd v. Drouet & Page Co., 3 IST. Y. St. Dep. Eep. 351. An automobile driver for an employer engaged in the business of sell- ing automobiles, participated in a race, under an arrangement with his employer that he should drive the employer's car and receive fifty per cent, of the money won by him in any race in which he might take part and that he was to have a drawing account to be deducted from any winnings made by him. The cars were entered in the race for the purpose of demonstrating the quality of the cars so that the fact of any winnings could be advertised by the employer. It was held that the driver was an employe and his dependents were entitled to compensation when he was killed by the car skidding across the track while participating in a race. Dearborn v. Feugeoi Auto Co. (1916), 7 K Y. St. Dep. Rep. 413. An employe of a local agent of a manufacturer of motor cycles was permitted to take part in a race with one of the machines made by the manu- facturer. The manufacturer was to furnish the machine and pay certain expenses, but the immediate employer paid no part of the expenses and had no control over the driver. Any money which the driver won in the race was to be his own property. His wages for the local agent were not stopped for the time he was away. He was injured in the race and it was held that the accident did not arise out of the employment. In re Evans, Ohio Ind. Com. No. 53,227, Nov. 29, 1915 ; 12 N. C. C. A. 183. Chauffeurs of drygoods stores ate not under the Montana Apt. Eeport (1915) Montana Ind. Ace. Bd. 214, A private cl©^eeiy(iq^?Wft9tiS0lSi%^ft^ business of the employer 13 194 bkadbuey's "woekmbn's compensation law Casual employes and that the work was not casual. Cowles v, Alexander <& KeUogg, 2 Cal. Ind. Ace. Com. 589. Where a property owner undertaking to complete the building of his house hired a cement finisher to make a cement walk and while at work the owner called upon him to help carry into the house a heavy ice box, which slipped and injured the Cement finisher, it waa held that the employment was not casual. Whitloch v. Mahoney, 3 Cal, Ind. Ace. Com. 122. A person employed to clean out a cellar of a restaurant, taking out abandoned boxes and goods and pumping out water which had seeped in to a considerable amount, was held to be entitled to compensation even though it was conceded that the employment was casual, it being held that it was in the usual course of the business of the restaurant. McDermoti v. Fanning, 3 Cal. Ind. Aec. Com. 14. A carpenter was engaged to do repair work On the building of a private school, run for profit, and it was held that the work of repair and upkeep of the building was part of the usual business of the employer. Anderson v. Los Angeles Military Academy (1916), 3 Cal. Ind. Ace. Com. 309. A retired merchant secured the services of the applicant to repair a roof at the employer's house and the man was injured while per- forming the work. It was held that the workman was a casual em- ploye and not entitled to compensation, for the reason that the^ em- ployment was both casual and not in the usual course of the business of the employer. Trenholm v. Hough, 1 Cal. Ind. Ace. Com. (Part II), 260; 11 N. C. C. A. 373. A porter in a saloon was sent upstairs by a proprietor to wash the windows in an apartment above where the employer resided with his family. The porter received extra pay when he did such upstairs work. It was held that the porter was not entitled to compensation when injured by falling to the sidewalk, as he was engaged in house- hold domestic service and also that he was a casual employe and not employed in the usual course of the business, trade, profession or occupation of his employer. Castellotti v. McDonnell, 1 Cal. Ind. Aec. Com. (Part II), 351; 11 K C. C. A. 375. Where a rooming-house keeper employed a plasterer for a period of less than one week to lath and plaster certain rooms in his house, it was held that such work was both casual and outside the usual Digitized by Microsoft® TO WHOM ACTS APPLY 195 Casual employes course of the business of the employer. Augustine v. Cotter, 2 Oal. Ind. Ace. Com. 59 ; 11 N. C. 0. A. 373. A rough carpenter, who was employed to put a roof on a newly con- structed concrete reservoir, which had been built to store water for the stock of a dairy, after doing some work on the roof, was put to work repairing a leak which had sprung in the side of the reservoir, in which occupation he was injured. It was held that he was a casual employe and was not engaged in the usual course of the occu- pation of the employers. Beed v. Winn, 2 Cal. Ind. Ace. Com. 675. A machinist was employed to repair a tractor used for farm work, and it was held that this employment was casual and not in the usual course and occupation of the employer. Maryland Casualty Co. v. Pillsbury (1916); 172 Cal. 748; 158 Pac. 1031. Where a carpenter sustained an injury while constructing a small barn or chicken house on land being set out to lemon and other trees, the business of the employer being that of horticulture, and the job was finished within four days, it was held that the employment was both casual and not in the usual course of the business of the em- ployer. Brockman v. Sheridan, 2 Cal. Ind. Ace. Com. 986. A carpenter hired temporarily by a laundry company was killed while repairing the house of a stockholder of the company. It was held that the employment was casual and not in the usual course of the business of the company. LaGrande Laundry Co. v. Pillsbury (1916), Cal. ; 161 Pac. 988. A paper hanger employed as such by a farmer to paper the walls of a farm house used as a dwelling is engaged in an employment which is both casual and not in the usual course of the employer's business. Hedger v. Williams (1916), 3 Cal. Ind. Ace. Com. 340. The question of whether or not a supernumerary in the staging of a pioneer scene, by a moving picture company, was an employe, was raised, but not decided under the California Act, it being held that the employe had not suffered injury which caused disability for more than two weeks and, therefore, the other questions were ^eft \indecided. Barcham v. Universal Film Mfg. Co., 1 Cal. Ind. Ace. Com. (Part II), 487. Where a contractor is liable for an injury to his employe his prin- cipal is also liable, although the employment while in the usual course of business of and rfiM^^^l^^%e coutflctor is both casual and not 196 beadbuet's woekmen's compensation law Casual employes in the usual course of the business of the principal. Neel v. White, ^ 2 Cal. Ind. Ace. Com. 458. The immediate employer whose regular business was that of paint- ing, employed a painter to assist him in painting the house of the principal. The job being for two days only was casual as to both the principal and the immediate employer. Although in the usual course of the business of the immediate employer, it was not so as to the principal. It was held that the immediate employer being liable the principal was also liable notwithstanding the fact that he would not have been liable if the workman had been employed directly by him. Wallace v. Pratchner, 2 Cal. Ind. Ace. Com. 644. In the last-mentioned case the Commission distinguished the liability of a principal and direct employe under the British and the California Acts. The Commission points out that under the California Act the principal must pay any compensation which the immediate em- ployer is liable to pay, while under the British Act the principal is liable only in the event that he would have been liable if the workman had been immediately employed by him. (d) Connecticut. Casual employment means occasional or acci- dental employment, which comes without regularity. If the em- ployment be upon an employer's business for a definite time, as for a week, or a month, or longer ; or if it be for a part of one's time, at regular recurring periods, it is not a casual employment, whether the contract of service or the nature of the service be regarded. Thompson v. Twiss, Conn. ; 97 Atl. 328 ; N. C. C. A. The employer had bought an old farm upon which he lived and was engaged in the process of improving it for his own pleasure and convenience. He was constructing a pond, in doing which work an employe was injured. It was held that the employe was engaged in the business of the employer. Gorse v. Caplin, 1 Conn. Comp. Dec. 607. Employment is not casual merely because it is brief and an em- ploye is injured soon after beginning work, if it is to be presumed that his employment might have been continued until the job upon which he was employed had been completed. Gorse v. Caplin, 1 Conn. Comp. Dec. 607. A man engaged to cut ice without any definite period as to when the employment shall cease is not a casual employe. Coffey V. Borden^ CondfimedMilkCo.. 1 ^nn. Comp. Dec. 167. TO WHOM ACTS APPLY 197 Casual employes The employment of a man, by the owner of several tracts of land engaged in developing the land, which employment, if he satisfied his employer, would remain to the end of the work, requiring at least a number of weeks, and which work was one of the businesses, though not the main business, of the employer, was held not to be casual em- ployment. Thompson v. Twiss, Conn. ; 97 Atl. 328 ; K C. C. A. A woman engaged to clean house once a week on a specified day of the week is not a casual employe. Bayon v. Bechley, 1 Conn. "Comp. Dec. 69; afF'd 89 Conn. 154; 93 Atl. 139 ; 8 K C. C. A. 588. ^ov is a janitor of a public school. Penfield v. Town of Glastonbury, 1 Conn. Comp. Dec. 637; (e) Illinois. Under the Illinois Act of 1913 the burden of proof is on the defendant to show that a claimant for compensation is a casual employe. Victor Chemical Worhs v. Industrial Board of Illinois, 274 111. 11 ; 113 N. E. 173 ; K 0. C. A. .A driver on municipal road work who worked when weather permitted was held not to be a casual employe. Winn v. Town of Methuen, Mass. Ind. Ace. Com., No. 1647; Aug. 5, 1915; 11 K C. C. A. 369; ffiZer v. Younger, 111. Ind. Bd., No. 626 ; Jan. 19, 1915 ; 11 N. C. C. A. 369. (f ) Indiana. While remodeling a room to put in a pool table the defendants employed a boy to tear up and carry out the old floor for the sum of $2, the work occupying about a day, and it was held that this employment was casual under the Indiana Act. Davis v. Mais, Ind. Ind. Bd., No. 6, Nov. 29, 1915 ; 11 N. C. C. A. 370. (g) Massachusetts. Under the Massachusetts Act prior to the aniendment of 1914 it was held that a waiter who was employed by a caterer, whenever the employer had a job to do, and was paid for each job separately, was a casual employe and not entitled to compensa- tion. In re Gaynor, 104 N. E. 399, 217 Mass. 86 ; L. K. A. (1916) A, 363n ; 4 N. C. C. A. 502. At the time the above decision was rendered the Massachusetts Act excluded from its operation "one whose employment is but casual, or is not in the usual course of the trade, business, profession or occupation of his employer." The court discussed at some length the difference between the Massachu- setts Act and the English statute from which it was largely taken and called attentidn to the fact that in the English Act the conjunction Digitized by Microsoft® 198 Casual employes between the two clauses was " and," whereas in the Massachusetts Act it was " or," so that while in the English statute only such casual employes as were not engaged in the employer's business were ex- cluded while under the Massachusetts Act there were two classes of employes which were excluded, namely, casual employes and as a separate class those not engaged in the usual course of the employer's trade, etc. Part 5, section 2, of the Massachusetts Act was amended by Chapter 708 of the Act of 1914, so that casual employes are not now excluded from the operation of the Act so long as they are engaged in the usual course of the trade, business, profession or occu- pation of the employer. In fact the Massachusetts Act as amended does not say anything about casual employes, but merely excludes those who are not engaged in the usual course of the employer's trade, etc. The principle of the Gaynor case, cited above, is therefore no longer applicable in Massachusetts. 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 employe Grogan v. Frankfort General Ins. Co., Mass. Ind. Ace. Bd. Where a coal dealer employed a man with a team whfenever he needed him to deliver coal, paying him a stipulated sum for the use of the team and his own services, it was held that this was a casual employment and not covered by the Massachusetts Compensation Act, prior to the amendment contained in Chapter 708 of the Acts of 1914. In re Cheevers, 219 Mass. 244 ; 106 IST. E. 861 ; N. C. C. A. . Where a brewery employe was assisting in digging a well on his employer's premises at his employer's instructions it was held that he was not a casual employe. Coyle v. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Aoc. Bd. 704; 11 IS^. C. C. A. 380, 502. A substitute employe is not a casual employe. Fletcher v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd. 689 ; 11 N. C. C. A. 379. A mason's helper was employed temporarily to pick apples and it was held that the employment was casual. Murphy v. Jones, Mass. Ind. Ace. Bd., No. 1508, Feb. 2, 1915; 11 IST. C. C. A. 374. (h) Michigan. A. per son was employed to superintend the un- loading of glass brought to a building as the work progressed, although he was not employed at .^efinite intervals, and it was held that his TO WHOM ACTS APPLY 199 Casual employes employment was not casual under the Michigan Act. Dyer v. James Blade Masonry and Contracting Co. (1916), Mich. ; 158 KW.959; N. C.C. A. The provision of section 7, subdivision 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. Michi- gan Agricultural College, Mich. Ind. Ace. Bd., No. 3, 1913; The In- dicator, Nov. 5, 1913, p. 442. (i) New Jersey. A laborer was engaged to perform certain ser- vices 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 thcvarticles 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 coming down the pole gave way precipitating him to the ground and injuring him somewhat severely. It was held that the employ- ment was of a casual nature under the New Jersey Workmen's Com- pensation Act. Huhbe v. Lynch (Essex Common Pleas, Jan. 23, 1913),36N. J. Law J. 87. A longshoreman is not a casual employe. Where one is employed to do a particular part of a service, recurring somewhat regularly, with a fair expectation of the continuance for a reasonable period, such employment is not casual. Sahella v. Brazileiro, 86 N. J. Law 505 ; 91 Atl. 1032 ; 6 N. C. C. A. 958. A man employed to assist in filling an ice house is not a casual employe. McNeil v. Mountain Ice Co. (Morris Common Pleas, 1915), 38 N. J. Law J. 109; 11 N. C. C. A. 238; aff'd in 38 N. J. Law J. 346. The fact that an employment is temporary does not necessarily make it casual, and it is not casual when the employment is in the regular course of business of the employer, even though it may be temporary. Thompson v. Parker and Coleman (Morris Common Pleas, 1915), 38 N. J. Law J. 368. Where a workman was employed to come Monday morning to do piece work, with the understanding that if he did the work properly he would receive additional compensation over the amount of the first Digitized by Microsoft® 200 bhadbuky's wobkmeh's oompensation law Casual employes agreement, and he was injured at eleven o'clock on tlie same day, it was held that he was not a casual employe, as the court might find that the intent was to give the employe permanent employment at piece work in the defendant's regular business. Schaeffer v. De- Grottoh, 85 N. J. Law 444; 89 Atl. 921; 4 K C. C. A. 582. 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 with- out 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 not a casual employe. Mueller v. Oelkers Mfg. Co. (Essex Common Pleas, February, 1913), 36 N. J. Law J. 117. A person employed at a specific sum per day for an indefinite period on a contract for the erection of a structural steel building was held not to be a casual employe under the N'ew Jersey Act. Scott v. Payne Bros., 85 N. J. Law 446, 89 Atl. 927; 4 IST. C. C. A. 682. A laborer employed to remove snow from the tracks of a railway, who was not a regular employe of the railway company, was held to be a casual employe. Laspada v. Public Service By. Co. (Essex Common Pleas, 1915), 38 N. J. Law J. 102; 11 W. C. C. A. 373; 12 N". 0. C. A. 311. ( j ) Ohio. Casual employes, although engaged in the usual course of the trade, business, profession or occupation of the employer, are excluded from the protection of the Ohio Act of 1913. In re Cle- ments V. The Columbus Saw Mill Co., 1 Bull. Ohio Ind. Ace. Com. 161. . Casual employes are entitled to compensation when injured while in the course of their employment. In re Michaels, 1 Bull. Ohio Ind. Com. 156. An employe was paid by the hour and was not employed for any specified length of time. He was injured three hours after he entered upon his employment and it was held that he was not a casual em- ploye. In re McAuliffe, 1 Bull. Ohio Ind. Com. 144. Where a sawmill was not operated every day of the year and some of the employes were not employed for any very definite period, it was held that they were not casual employes. Clements v. The Co- lumbus Saw Mill Co., 1 Bull.. Ohio Ind. Com. 161. The proprietor of a small Dusiiress was employed to put in a flue TO WHOM ACTS APPLY 201 Charitable institutions in a boiler, which, employment continued about two days, and it was held that this was casual employment. In re Pryor, Ohio Ind. Com., ISTo. 65,068, Jan. 15, 1915; 11 IST. C. C. A. 3Y2. The proprietor of a machine shop was employed by a construction company to repair a gas engine, which work only consumed a short time, and it was held that it was casual employment. In re Hirsh- berger, Ohio Ind. Com., E^o. 54,626, Oct. 14, 1914; 11 W. C. C. A. 372. (k) Pennsylvania. Whenever an employer contends that an em- ploye is an agricultural worker, a home worker, a casual employe not engaged in the regular course of the master's business or a domestic servant, the burden is on the employer to prove that the claimant falls within one of these clauses under the Pennsylvania Act. Marsh v. Groner, Pa. "Work. Comp. Bd., May 29, 1916 (unreported). 17. Chciritable institutions. Charitable institutions are subject to the Iowa Act. Leg. Op. Iowa Ind. Com. (1915), 13. Work furnished by a county as a charitable proposition, to certain unemployed persons, at a definite rate of pay, was held to constitute employment, within the meaning of the California Act. Garcia v. County of Los Angeles (1916), 3 Cal. Ind. Ace. Com. 330. A charitable institution which had instituted a labor yard, and which, in return for work done therein by persons out of employ- ment, 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. The question whether or not the institution carried on a trade or business was left open. Bums v. Manchester & Salford Wesleyan Mission (1908), 1 B. W. C. C. 305; 11 JST. C. C. A. 77. A distress com- mittee, which provides temporary work for an applicant, is an em- ployer within the meaning of the Act. Gilroy v. Machie and Others (Leith Distress Committee) (1909), 46 Scotch L. K. 325; 2 B. W. C. C. 269; 11 ]Sr. C. C. A. 78. The Central Body under the Unem- ployed Workmen Act of 1905, are " employers " VTithin the meaning of the Compensation 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 Digitized by IVIicrosoft® 202 beadbuey's woekmen's compensation law Commission agents B. .W, 0, 0. 296 J 11 ]Sr. C. G, A. 78. A blind man was injured while employed in the industrial department of an institute for the blind. This department was supported partly by charitable con- tributions received by the institute. The institute gave the man, in respect of his services, board, lodging and five 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 North- ern Counties Institute for the Blind (1911), 48 Scotch L. R. 811; 4 B. W. C. C. 429 ; 11 N. C. C. A. 77. 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 the meaning of section 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 in- mate of a charitable institution, even though the inmate does work about the building in which he has a home, and the institution re- ceives a small sum each month under the agreement by which the institution cares for such person. Cunningham v. Sheltering Arms, Gl Misc. 501; 115 Supp. 576; aff'd 135 App. Div. 178; 119 Supp. 1033. 18. Churches. A church pastor is not an employe under the Iowa Act. Leg. Op. Iowa Ind. Com. (1915), 15. 19. Commission agents. An employe working on a commission basis is nevertheless an employe and subject to the provisions of the Iowa Act. Leg. Op. Iowa Ind. Com. (1915), 20. And also under the Connecticut Act. Beed v. The Booth & Piatt Co., 1 Conn. Comp. Dec. 121. An em- ploye who was engaged as a collector for a real estate and insurance agent and was allowed a commission on new business which he secured and whose total time was at the dispogal of the employer, was held to 1 1 ' ..• Digitized by mcro^u® -, be an employe acting wirnin the scope oinis employment while en- TO WHOM ACTS APPLY 203 Convict gaged in securing new business. Trobitz v. Hugh M. Cameron, 1 Cal. Ind. Ace. Com. (Part II), 550. Where a salesman with his own motor cycle was engaged to solicit business on a commission basis, but was at all times subject to the employer's order as to collections to be made and business to be sought, the sole wtirk of such salesman being for said employer, it was held that the salesman was an employe and entitled to compensa- tion when injured. Lewis v. Garratt-Callahan Co., 2 Oal. Ind. Aoc. • Com. 666 ; aff'd Garratt-Callahan Co. v. Industrial Accident Com- mission, 171 Cal. 334; 153 Pac. 239 ; K C. C. A. 20. Commission merchant. . A commission merchant dealing in fruit and produce is an extra- hazardous occupation under the Washington Act. State v. Powells & Co., Wash. ; 162 Pac. 569. 21. Convict. The fact that a workman has been convicted to hard labor in prison is not ground for discontinuing compensation payments where the injury occurred before the conviction and where the disability has not ceased. McNally v. Furness, Withy & Co. (1913), 6 B. W. C. C. 664. The fact that an employe, who is totally disabled, is committed to jail for an offense committed after the injury is not a ground for discontinuing compensation so long as the actual disability exists. H anion v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 716. A prisoner in jail was injured while working in a chair factory conducted by a contractor with the coimty, and it was held that the prisoner was not under a contract of employmept with the contractor and that the Compensation Act of Connecticut did not apply. Byan V. The Metropolitan Chair Co., 1 Conn. Com. Dec. 37. Hoboes who are serving sentence at hard labor for the violation of municipal ordinances and are forced to work on the city streets, are not employes protected by the Compensation. Act. Eeport (1915) Montana Ind. Ace. ^Mfl^ ^3^ '"'''''''f^® 204 BEADBUET's WOEKMEn's COMPElSrSATION LAW Delivery wagon driver delivering on foot 22. Counties. The word " workman " as used in the Montana Act of 1915 in- cludes employes of counties as well as of individuals. Lewis and Clark County v. Industrial Accident Board, 52 Mont. 6; 155 Pac. 268; N". C. C. A. 23. Dairies. The Department of Labor of Minnesota expressed the opinion that dairies probably come under the Compensation Act and that the employes of such dairies are not farm laborers. Bulletin No. 11, Minnesota Dep. Labor & Ind. 22. A rough carpenter who was employed to put a roof on a newly con- structed concrete reservoir which had been built to store water for the stock of a dairy, after doing some work on the roof, was put to work repairing a leak, which had sprung in the side of the reservoir, in which occupation he was injured. It was held that he was a casual employe and was not engaged in the usual course of the occu- pation of the employers and compensation was refused. Beed v. Winn, 2 Cal. Ind. Ace. Com. 675. An employe constructing a building for a dairy does not come under the Vermont Act. Packett v. Moretown Creamery Co., Vt. ; 99 Atl. 638. 24. Delivery helper in department store. A delivery helper in a department store, whose duty it was to load goods on a truck and draw it by hand to a place in the store where it was to be unloaded, was held not to be covered by Group 41 of sec- tion 2 of the New York Act as amended by L. 1916, c. 622, and com- pensation was refused. Holtz v. Greenhut & Co, (1916), 175 App. Div. 878; 162 Supp, 359. 25. Delivery wagon driver delivering on foot. A driver of a delivery wagon stumbled over a bucket of broken, glass while he was making delivery on foot, after having put up his horse for the night, and it was held that he was not covered by section 2, Group 30, of the ]^ew York Act, as he was not engaged in a hazard- ous employment stated in the Act at the time of the injury. Newman V. Newman, 169 App.'i^^!^l'5^^1^ Supp. l65 ; 12 N. C. 0. A. 193. I'd WHOM ACTS APPLY 206 Domestic servants 26. Department store. Department stores come within the provisions of the Illinois Act. Stevens v. Hilman's Department Store, 1 Bull. 111. Ind. Bd. 17. 27. Director of bank.^ A director of a bank who performed no duties in connection there- with except to attend directors' meetings, for which he received $5, in accordance with the custom of the bank, for each meeting, was held not to be an employe and, therefore, not subject to the Connecticut Act. Burnham v. The Thames National Bank, 1 Conn. Comp. Dec. 339. 28. 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 laborers employed out-of- doors. 5 Binn. Penn. 167; Merlin, Keport. 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 station, and who per- formed services for him. Voltaire, in writing to the French Queen, in 1748, says : ' Deign to consider, 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 companion, that you may profit by his conversation and learning, 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 domestic, but your ser- vant. 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." 1 See Officers of corpEii0msd by Microsoft® 206 beadbubt's workmen's compensation law Domestic servants Domestic servants are included in the ISTew Jersey x\ct, but are ex- cluded 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 chamber- maids, cooks, etc., were domestic servants. The decisions on the sub- ject are very meagre and unsatisfactory. 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 Tex. 656. A farm hand who eats and sleeps outside the master's house is not a domestic servant. Water- house V. State, 21 Tex. App. 663 ; 2 S. W. 889. A person hired for an hour to carry wood is not a domestic servant. Williams v. State, 41 Tex. 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 employment in a public hotel or tavern. CooJc 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 merchandise as fitting surplus dairy products for market. In re Cummings, 32 Fed. 75. l^Tor an under-coachman who boards with his employer's coachman and sleeps in a room over the coachhouse. In re Howard, 03 Fed. 263. In a will directing the testator's executor to pay each 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 cannot be construed 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 sum from his employer in addition to his employer's wages, Vaughan v. Booth, 13 Eng. L. & Eq. 351, 354. A chauffeur employed to operate a private automobile, but who does not live with the employer, is hot a domestic servant, under the Iowa Act, and is subject to the provisions of the compensation statute. Leg. Op. Iowa Ind. mgH/z^tldtml^iQl^.somt the Massachusetts In- TO WHOM ACTS APPLY 20Y Dry goods and clothing merchant dustrial Accident Board made a contrary ruling. See Bulletin No. 2, Jan. 13, page Y. The Labor Department of Minnesota has ruled that a man em-' ployed to take care of a furnace, and who makes his entire living by taking care of furnaces for different people, is a domestic servant. Bulletin No. 9, Minnesota Dep. Labor & Ind. 21. A man employed to attend the furnace, mow the lawn and perform various services about the house and premises, who is provided with a room in the house and eats at the family table, is a household domestic servant and is not covered by the Iowa Act. Leg. Op. Iowa Ind. Com. (1915), 16. An employe engaged to perform incidental services around the premises and residence of the employer, but who is not required to do any work within the house and does not live upon the premises, is not a household domestic servant. Cleveland v. Hastings, 2 Cal. lud. Ace. Com. 18. Nor is a cook employed in the boarding hoiise. Comaskey v. Coleman, 3 Cal. Ind. Ace. Com. 95. A porter in a saloon was sent upstairs by a proprietor to wash the windows in an apartment above where the employer resided with his family. The porter received extra pay when he did such upstairs work. It was held that the porter was not entitled to compensation when injured by falling to the sidewalk, as he was engaged in house- hold domestic service. Castellotti v. McDonnell, 1 Cal. Ind. Aec. Com. (Part II), 351; 11 N. C. C. A. 375. 29. Driver of brewery wagon. A driver of a brewery wagon was delivering beer to a saloon owned and controlled by the brewery and he was injured by reason of the collapse of an elevator on the saloon premises, and it was held that he was entitled to claim compensation from his employer under the New York Act. Winter r. Peter Doelger Brewing Co. (1916), 175 App. Div. 796; 162 Supp. 469; rev'g 95 Misc. 150; 159 Supp. 113. 30. Dry goods and clothing merchant.^ The business of dry goods and clothing does not come within the terms of the Illinois Act as a hazardous employment. Christianson V. Barber, 1 Bull. 111. Ind. Bd. 71. ~7^^^artment MP^^^ by Microsoft® 208 beadbuey's woekmen's compensation law Dual business enterprises conducted by one employer 31. Dual employers. While a particular employer is liable for the -wages of the employe, he is also liable for compensation, even though, under a contract be- tween several employers, some other employer may be eventually lia- ble for the compensation, under the J^ew York Act. Oallagher v. New York Central Railroad Co. (1916), 9 K Y. St. Dep. Kep. 33'5. A number of firms, individuals and corporations were compelled by law to repair a dam on a stream, the waterpower rights of which were owned by them jointly. By a court decree they were required to make these repairs and three referees were appointed by the court to cause the work to be done. These referees employed the workmen and the present claim arose out of the death of one of the workmen thus employed. It was held that the referees were the agents of the various owners and that all the owners were jointly liable for the compensation by reason of the death of an employe. Sayres v. Ogdenshurg Power & Light Co. (1915), 8 N. Y. St. Dep. Eep. 393. In the last-mentioned case the amount payable by each one of the employers was proportionate to the amount of his water right in the stream where the dam was to be built. A night watchman employed to patrol the outside of the premises of several firms watching for fires and other unusual occurrences, is employed jointly by all of said firms, and they are all liable for his compensation under the California Act. Frohn v. Bayle, La Coste & Co. (1916), 3 Cal. Ind. Ace. Com. 274. A delivery man engaged by two employers to deliver packages had delivered all the packages belonging to A and was on his way to de- liver a package belonging to B, when he was injured, and it was held that B alone was liable for compensation, under the California Act. Mitchell V. Alfred Stahel & Sons (1916), 3 Cal. Ind. Ace. Com. 303. 32. Dual business enterprises conducted by one employer. A corporation conducted a seed business' in a city, which was extra- hazardous, under the Illinois Act, and also conducted a farm. It had made no election concerning compensation and it was held that an employe on the farm was not covered by the Act of 1913. Vauglians Seed Store v. Simonini, 111. ; 114 E". E. 163 ; N. C. C. A. . Digitized by Microsoft® TO WHOM ACTS APPLY 209 Dual business enterprises conducted by .one employer Where an employer engaged in both hazardous and a non-hazardous employments, under the Illinois Act, has elected not to adopt the compensation principle, he cannot be held liable under the Com- pensation Act in relation to an employe in the non-hazardous employ- ment. Marshall v. City of Pehin (1916), 111. ; 114 N. E. 497 ; N. C. C. A. When an emlpoyer, under the Massachusetts Act, becomes a sub- scriber, all the branches of his business come under the Act and he cannot accept the Act as to a part of his business and reject it as to another. In re Cox (1916), Mass. ; 114 N. E, 281; IST. C. C. A. . It was, therefore, held that where a corporation was a manufacturer and also a retail dealer in shoes, and was a subscriber, that the business of conducting this retail store came under the Act. Id. An employe who was engaged for all of his business time as a rental and insurance agent and also received commissions on renewals and new business, was held to be an employe, whether engaged in the regular work or under his commission contract. Cameron v. Pills- bury (1916), Cal. ; 159 Pac. 149 ; IST. 0. C. A. One who is edgaged in managing business buildings for the owners, including the collection and disbursement of rentals, but who, as a department of that business, employs a maintenance force, including painters, engineers and carpenters, is subject to the Washington Act, since the liability under the Act is not determined by the character of the principal business engaged in, but attaches if any department of the business is extra-hazardous, as defined in the Act. State v. Business Property Security Co., 87 Wash. 627; 152 Pac. 334; 11 K C. C. A. 323. Where a market gardener insured certain of his employes who were engaged in driving teams which carried produce to market, but did not insure the employes who worked on the farm, it was held that under such circumstances he could bring a portion of his 'employes under the Massachusetts Act, which excludes farm laborers from the provisions of the Act, so long as the employer did not attempt to exclude employes who came within its provisions. In re Keaney (Keaney v. Tappan), 104 K E. 438; 218 Mass. 5; 4 IST. C. C. A. 556. 14 Digitized by Microsoft® 210 Erection of ranch cottages 33. Elevator operator. An elevator is not a " vehicle," as used in Group 41 of section 2 of the New York Act, and an operator of an elevator is not entitled to the benefits of the Act, even though he is employed by an employer " engaged in the business of selling glassware." Matter of Wilson V. Dorflinger & Sons, 218 IST. Y. 84 ;' 112 '^. E. 567 ; N. C. C. A. ; remittitur amended, 218 IST. Y. 734; 113 K E. 454; rev'g 170 App. Div. 119; 115 Supp. 857. The court states in the last-men- tioned ease that if an elevator is used in an occupation classified under the New York Act as hazardous then the elevator operator would be included in the statute by reason of- that fact; but that elevators were not included under any special classification and that the busi- ness of " selling glassware " was not covered either, and therefore this employe did not come under the terms of the Act. The Act was amended in 1916 to cure this defect. An elevator operator in a department store opened the elevator door to allow a scrub woman to enter the car which he supposed was behind the door within the shaft. The car, however, was on the si^th floor at the time being repaired. The operator walked into the shaft and fell receiving disabling injuries and compensation was awarded under the IsTew York Act. Miller v. Stern Brothers, 4 N. Y. St. Dep. Eep. 447, An elevator operator in a hotel was awarded compensation under the N'ew York Act. Foley v. Bretton Hall Co., 4 IST. Y. St. Dep. Eep. 339. While Miller v. Stern Bros, supra, and Foley v. Bretton Hall Co., supra, were both overruled by Wilson v. Dorflinger & sons, supra, the amendment to the Act in 1916 made them both applicable to the present statute. The Washington Act does not apply to operators of passenger and freight elevators in mercantile establishments. Guerrieri v. Indus- trial Insurance Commission, 84 Wash. 266 ; 146 Pac. 608 ; 8 N. 0. C. A. 440." Elevator operators in drygoods stores are not protected by the Montana Act. Report (1915) Montana Ind. Ace. Ed. 214. 34. Erection of ranch cottages. The erection on a ranch of cottages for the employes of a eomnanv Digitized by microsoft® ^ •' TO WHOM ACTS APPLY 211 Family engaged in the business of wholesale and retail butcher, wholesale and retail merchandising, farming, horticulture, and real estate, is a work which is in the usual course of its business and occupation. Eligh V. Miller & Lux (1916), 3 Cal. Ind. Ace. Com. 339. 35. Express agent. Where the proprietor of a store, who was also the local express agent, was killed by robbers while defending his store from their attack, and it did not appear that the robbers were endeavoring specifically to steal the property of the express company, but were merely looking for any valuables they could find in the store, it was held that the injury did not arise out of the employment as agent of the express company and compensation was denied. Herrich v. Wells, Fargo & Co., 2 Cal. Ind. Ace. Com. 105; 11 K C. C. A. 251. 36. Factory using power. 'J'he Kansas Act covering a factory wherein power is used, in manu- facturing was held not to apply to premises wherein no mechanical power was employed, but men were engaged in making and repairing barrels, each workman using his own hand tools. Menke v. Hauler (1916), Kans. ; 160 Pac. 1017 ; N. C. C. A. 37. Family. The employers consisted of a partnership and an injured workman was a son of one of the partners and lived with his father, but re- ceived wages regularly from the partnership. It was held that he was entitled to compensation under the Connecticut Act and did not come under section 43 of the Act, excepting " a member of the em- ployer's family dwelling in his house," for the reason that in this instance the employer was the partnership and not the father of the employe. McNamara v. McNamara & Qreenierg (Jan. 1917), Conn. ; 100 Atl. 31 ; 1^. C. C. A. Under the Connecticut Act it was held that a farm hand was an employe of his father and was entitled to compensation when injured while working in his employment, the claimant being more than twenty-one years of age. Bristol v. Bristol, 1 Conn. Comp. Dec. 368. The owner of a farm performed small offices for his son who ran the farm, but received no pay, and it was held that the father was not an employe under the Connecticut Act. Lynch v. Abel, 1 Conn. Comp. Dec. 520. Digitized by Microsoft® 212 beadbttet's woekmen's compensation law Farm laborers A son, employed by Ms father, lived witli 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 em- ployer's family, dwelling in his house, and was therefore not a work- man within the Act. M'Dougall v. M'Dougall (1911), 48 Scotch L.E.315;4B.W.C. 0.373. 38. Farm laborers.^ Farm laborers are included in New Jersey and in some of the other States, but not generally. In American law a farm means a portion of land used for agricultural purposes. Winn v. Cabot, 18 Pick. (Mass.) 553; Wheeler v. Bmdall, 6 Mete. (Mass.) 529; Com- monwealth 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 workman in agriculture. Bmith V. Coles (1905), 93 L. T. 754; 8 W. 0. C. 116. The right to compensation is to be determined by the character of the labor actually being done when an accident is sustained, and the fact that a carpenter sometimes did farm labor when there was no carpenter work to be done, is not sufficient to classify him as a larm laborer when he is injured while doing carpenter work. Feehan V. Tevis, 2 Cal. Ind. Ace. Com. 452 ; 11 N. 0. 0. A. 377. An em- ploye whose regular occupation was farm laborer was injured while engaged in making repairs on a dairy barn on which he was employed temporarily and it was held that he was a farm laborer at the time. Coleman v. Bartholomew (1916), 175 App. Div. 122; 161 Supp. 560. A carpenter engaged by a farmer to build a corn crib was held not to come under the Illinois Act. Uphoff v. Industrial Board of Illinois, 111 K E. 128 ; 271 111. 312 ; IST. C. C. A. .A car- penter constructing a cottage for a large corporation on one of its ranch properties is not engaged in farm labor. Griswold v. City of Wichita, Kansas ; 162 Pac. 276 ; IST. 0. C. A. . An employe engaged* by a farmer to erect a building on a farm remains, under section 3 (b) of the Illinois Act, one engaged in the erection of a structure, in spite of the fact that farming is not mentioned in the Act as a hazardous industry. Uphoff v. Bruner, 1 Bull. 111. Ind. . See Dairies, StockraiM0BQSI ^M,i}ATMiS(am^ms company who also acted * TO WHOM ACTS APPLY ^39 Partners as foreman received injuries in the course of his employment and compensation was awarded under the New York Act. Koslowitzky V. Koslow Iron \Yorhs, 4 N. Y. St. Dep. Rep. 360, An officer of a corporation, as such, is not an employe, within the meaning of the Ohio Act. But where an officer of a corporation who, in addition to performing the duties imposed upon him as such officer, renders other serviceto the corporation and is paid an annual salary by it, such salary being paid for the rendition of such services rather than for performing duties devolving upon him as an officer, he is an employe within the meaning of the Ohio Act. In re Moseley, Jr., 2 Bull. Ohio Ind. Com. 19. 81. Outworkers.^ It has been felt that employers should not be held liable for injuries to workmen who come to the employer's establishment merely for the purpose of securing material upon which the work is to 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 outworkers from their operation, but these provisions are not uniform and very few of them have been interpreted by the courts or administrative commissions. An award was made under the New York Act to a tailor who took the clothing to his own home and cut his hand with a pair of scissors while he was doing the work in his own home. Fiocca v. Dillon (1916), 7 K Y. St. Dep. Eep. 399. As the New York Act contains no provisions excluding outworkers they are doubtless covered if engaged in any of the occupations speci- fied in the statute. 82. Partners. When partners entered into an agreement that one of their num- ber should act as a working foreman and he received 33s. a. week for his services as such, in addition to his share of the prbfits, it was held that his widow was not entitled to compensation from the other Digitized by Microsoft® 1 See Pieceworkers. 240 BKADBUEy's WOEkMBN*S COMPENSATION LAW Partners partners because of the death of such foreman partner by accident, as he was not a workman within the meaning of the Act. Ellis v, Ellts & Co. (1905), 92 L. T. 718; T W. C. C. 97. Where A was the owner of several teams and agreed with B that ■B might take a team and find work for it with himself as driver, the team to be fed by A, and the earnings of such team and driver to be divided equally between B and A, and the losses to be divided equally, it was held that A and B stood in the relation to each other as co- partners and not as employer and employe, and A was not liable for compensation to B when the latter was injured. Bayers v. E. N. Girard, 1 Cal. Ins. Ace. Com. (Part II), 352. An amateur photographer took photographs and turned the nega- tives over to a professional photographer who made and sold prints therefrom, the profits being divided two-thirds to the professional photographer and one-third to the amateur, and it was held that the amateur was not an employe of the professional photographer, but that they were in partliership relation. Bhaw v. D. J. Foley, 1 Cal. Ind. Ace. Com. (Part II), 629. A member of a partnership cannot be treated as and assume the status of an employe of the partnership, even though in addition to his share of the profits he receives wages for his labor as teamster for the firm; and the partnership not being liable the insurance carrier of the partnership has no greater liability than the partnership itself to the members of the firm. BeinJcing v. Aetna Life Ins. Co., 3 Cal. Ind. Ace. Com. 82. Where the' claimant and defendant had entered into an agreement to do a particular piece of mason work for $75, the claimant to re- ceive union wage® as a helper and ths de/endant to receive union wages as a mason, during the time actually employed, and if there was any surplus it was to: be divided between them, it was held that this was a partnership arrangement and that no contract of employ- ment existed between the claimant and the respondent. Ferranti v, Kennedy, 1 Conn. Comp. Dec 196. A member of a partnership who performed services for the partner- ship for which he received money designated as wages is not an em- ploye of the partnership under the Ohio Act. In re Cooper, 1 Bull. Ohio Ind. Com. ISODigitized by Microsoft® TO WHOM ACTS AttLTT 241 Picture hanging 83. Patent experiments. Experimenting with products made under a patent may be pre- sumed to havp been carried on for pecuniary gain under the New York Act. Oalelli v. Magnesite Products Co. (1916), 7 N. Y. St. Dep. Eep. 416. 84. Pecuniary gain. Experimenting with products made under a patent for the purpose of perfecting the product was held to be a business carried on for pecuniary gain under the New York Act even though there was no direct pecuniary income from the work which was done. Galelli v. Magnesite Products Co. (1916), 7 N. Y. St. Dep. Kep. 416. 85. Physician.* A physician employed on a salary by another physician, who was under contract to supply medical services to all incapacitated em- ployes of manufacturing concerns, was held to be an employe of the physician who had the original contract and not an independent con- tractor, even though allowed to follow private practice when his ser- vices were not required on contract cases. Getzlaff v. Dr. N. T. Enloe, 3 Cal. Ind. Ace. Com. 18. A physician is not an employe under the Iowa Act. Leg. Op. Iowa Ind. Com. (1915), 15. 86. Piano manufacturer. In moving a piano at his employer's plant a porter of a piano manu- facturer strained himself causing a hernia resulting in his death after an operation and compensation -jvas awarded under the New York Act. Mooney v. Webher Piano Co., 5 N. Y. St. Dep. Kep. 396. 87. Picture hanging. An employe of a retail furniture and picture store was hanging a picture sold by his employer and while standing on a rug in the house of a purchaser he slipped and fell injuring his head and it was held that he was not engaged in decorating at the time within the meaning of Group 25 of section 2 of the New York Act, nor did he come under the Group 17 of section 2, and therefore compensation I See Physician attSHgiHgetSi b9nfifiie00U0ft@tses. 16 242 beadbuey's woekmen's compensation law Policeman was refused. Grasell v. Broadhead (1916), 175 App. Div. 874; 162 Supp. 421. By the amendment contained in L. 1916, c. 622, how- ever, picture hanging was added as a hazardous occupation, but this amendment was not retroactive. In discussing this amendment the Court in the last-mentioned case said : " It is not clear that this employe, who was merely hanging a picture which had been sold by the employer, the hanging being a mere incident of the sale, would come within the group as amended." 88. Piece worker.^ The British Act was held to apply to a workman who T^as employed to break stone for which he received a certain sum per ton. Ryan v. Tipperary North Riding County Council (1914) (Irish Court of Appeal), 8 B. W. C. C. 415. A man engaged with his team to haul logs at two dollars per thou- sand feet is an employe under the Michigan Act. Tuttle v. Embury- Martin Lumber Co. (1916), Mich. ; 158 K W. 875; ^^. C. C. A. 89. Pile driving. An employe engaged in driving piles on the beach and assisting in driving sheeting comes under Group 11 of section 2 of the New York Act and is entitled to compensation when injured. Mazarrisi v. Ward & Tully, 170 App. Div. 868 ; 156 Supp. 964; aff'g 4 N. Y. St. Dep. Eep, 443. 90. Policeman.'' Where a police constable was acting as a fireman under an Act of Parliament, it was held that he was acting as a member of a police force, and was not a workman v^ithin the meaning of section 13' of the Act. Sudell v. Blackburn Corporation (1910), 3 B. W. C. C, 227. A speed officer was injured by a fall from a motor cycle while pur- suing a speeding automobile and compensation was awarded in his \ 1 See Independent contractors, and sub-title, Pieceworkers, at pages 143 and 153. See also Outworkers. 2 See Marshal, Munici/pal employ^, National Guardsman, Public offlcer, Sheriff, State. Digitized by Microsoft® TO WHOM ACTS APPLf 24^ Porter la oflBce building favor against the county by which he was employed. Donohue v. County of Marin, 2 Cal. Ind. Ace. Com. 137. Where a police officer of the city of Oakland was entitled to the benefit of a disability in- demnity system provided for in the city charter it was held that the Act did not apply. Gilbert v. City of Oakland, 3 Cal. Ind. Ace. Com. 58. Under the Illinois Act of 1913 it was held that the Industrial Board did not have jurisdiction to make an award against a municipal corporation for the death of a special policeman due to the accidental discharge of his revolver. Marshall v. City of Pekin (1916), 111. ;114KE. 49Y; N. C. C. A. A police officer is not covered by the Michigan Act. Blynn v. City of Pontiac, 185 Mich. 35 ; 151 IST. W. 681 ; 8 IS. C. C. A. 793. A policeman of the city of Duluth is an employe under the Minne- sota Act. State, ex rel. City of Duluth v. District Court of Si. Louis County (1916), Minn. ; 158 IST. W. 790; K C. C. A. Police officers are not employes under the Montana Act. Report (1915) Montana Ind. Ace. Bd. 214. A lieutenant of police of a city which does not maintain a police- men's pension fund is an employe under the Ohio Act, § 14, par. 1. In re Lyman, 1 Bull. Ohio Ind. Com. 182. Where a city marshal had in custody a man who had been arrested for a violation of the criminal law and the marshal called upon a citizen, who was not an officer, to help in the arrest and the prisoner shot and killed such citizen when starting to copiply with the marshal's request, it was held that the citizen had the status of a policeman and that his dependents were entitled to compensation from the municipality represented by the marshal, based on the wages of a policeman, but not on the wages which the citizen earned as a plumber. Village of West Salem v. Industrial Commission of Wis- consin, 162 Wis. 57; 155 K W. 929; 11 N. C. C. A. 248, 369. 91. Porter in office building. Compensation was awarded under the New York Act to a porter in an office building who was injured while cleaning an elevator shaft, it being part of his duties to operate the elevator. Bellisario v. Eyde Real Estate C(J?^M<^7p,i^immcmT)^. Rep. 357. 244 beadbuky's woekmen's compensation law Railroads 92. Process server for railroad. A process server for a railroad was injured while returning to the office and while riding on one of the defendant's cars and it was held, under the 'New York Act, before the amendment of 1916, that the Act did not apply to him. In re Brown (1916), 173 App. Div. 432 ; 159 Supp. 1047. 93. Public officer.^ A policeman of the city of Pontiac, Michigan, was held to he an " officer " holding an office of public trust, and not an " employe " within the meaning of the Michigan Act, and therefore was not cov- ered by the compensation statute. Blynn v. City of Pontiac, 185 Mich. 35 ; 151 IT. W. 681 ; 8 N. C. C. A. 793. 94. Publishing company. A pressman of a publishing company who was injured in the course of his employment was awarded compensation under the New York Act. Boesenberg v. Butterich Publishing Co., 4 ]!T. Y. St. Dep. Rep. 367; 12 N. C. C. A. 553. 95. Rag picker. A man who picks rags upon a dump at the foot of a street' from which the garbage and other refuse is carried out to the sea in scows is not engaged in longshore work within section 2, Group 10, of the New York Act, nor does he come within Group 28, which includes the manufacture of drugs, chemicals, fertilizers and garbage disposal plants. TomassiY. Christensen, 171 App. Div. 284; 156 Supp. 905. But see the amendment of the New York Act in 1916. 96. Railroads/ Eailroads in Ohio engaged only in intrastate commerce are sub- ject to the provisions of the Compensation Act, but those engaged in interstate and intrastate commerce are subject to the Act only when they and their employes voluntarily come within the provisions of the Act, with the approval of the Industrial Commission. Blevins V. The Dayton Union By. Co., 2 Bull. Ohio Ind. Com. 30. 1 See Municipal emplnyin, Marshal, National Guardsman, Policeman, Sheriff, State. 2 See Interstate commeiQigitized by Microsoft® TO WHOM ACTS APPLY 245 Salesman The Wisconsin statute of 1911, Chapter 50, was held to include all employes of railroads and not merely office and shop employes. Minneapolis, 8t. P. & 8. S. M. By. Co. v. Ind. Com. of Wis., 141 K W. 1119 ; 153 Wis. 552 ; 3 K C. C. A. 307. 97. Renovating building. Where a building had become covered with paraffine and discolored and the claimant was engaged in washing off the paraffine with gasolene in order to restore the building to its original color it was held that he was engaged in renovating a building under the New York Act. Kramer v. Schalk (1916), 8 K Y. St. Dep. Kep. 444. 98. Salesman.^ Where an employer was not insured under the Massachusetts Act it was held that a salesman who was injured in the course of his em- ployment could not maintain a proceeding for compensation. Max- well V. Ocean Accident and Guarantee Corp., 1 Mass. Ind. Ace. Bd. 364. An employe whose principal duty is to sell women's clothing is not engaged in a hazardous occupation within the meaning of section 2, Group 38, of the New York Act merely because in the course of his duty as salesman he incidentally goes to the factory to obtain com- pleted garments. Lyon v. Windsor, 173 App. Div. 377; 159 Supp. 162 ; rev'g 5 IS. Y. St. Dep. Kep. 389. A salesman residing in New York was employed iij. New York by a New York employer and went to' a place in Pennsylvania at his employer's factory to familiarize himself with the machinery which was being manufactured and which he was to offer for sale. While watching a demonstration of the machinery a piece of metal fell on his foot causing disability and compensation was awarded under the New York Act. Benton v. Fraser, 5 N. Y. St. Dep. Eep. 392. A salesman who made a sale of steel was required to act as super- intendent of the forging of the steel so as to advise the purchaser of the proper working of the material. Such a salesman while superin- tending of the forging of steel sold was injured by a punch which was being used to forge rings out of a bar of steel, struck the drift pin a 1 See Traveling salesman. Digitized by Microsoft® 246 beadbttby's wobkmen's compensation law Scbools glancing blow causing the pin to fly from the work and striking him in the right leg, causing a fracture, the injury happening at the plant of the purchaser in Ohio, and compensation was awarded under the E'ew York Act where the employer and the employe were both resi- dents of New York and the contract of employment was made in that State, Tompkins v. Darwin & Mil}er, 6 IsT. Y. St. Dep. Eep. 325. Compensation was awarded to the dependents of a sales manager of manufacturing chemists who received injuries arising out of his employment from which he died under the New York Act. Nichol- son V. Elipstein & Co., 4 IST. Y. St. Dep. Rep. 412. A salesman and stockkeeper for manufacturing tailors was on a ladder in his employer's stock room when the ladder gave way, caus- ing him to fall, resulting in disabling injuries and compensation was awarded under the New York Act. Berliner v. Bitchie & Cornell, 4 N. Y. St. Dep. Eep. 446. . 99. Salesman in automobile.^ A salesman of a New York corporation was using an automobile in performing his diities and while cranking the automobile the engine back fired and he was injured and compensation was awarded under the New York Act. Markham v. United Breeders' Co., 4 N. Y. St. Dep. Eep. 390. 100. Schools.' Where a school teacher after dismiissing school for the day re- mained upon the school premises to finish her work and going to the telephone for a moment to send a message upon private business she was injured by tripping over the telephone cord and falling, it was held that the accident arose out of the employment and compensation was awarded. Bieff v. City of Sacramento, 2 Cal. Ind. Ace. Com. 251 ; 12 N. C. C. A. 901. A school teacher is an employe under the Connecticut Act. Skin- ner V. Connecticut School for Imbeciles, 1 Conn. Comp. Dec. 106 ; aff'd by Superior Court, Id. 110. The Board of Trustees of the University of Illinois has such legal entity as to be included within the term " employer " und^r the 1 See Traveling salesman. 2 See Students. Digitized by Microsok® TO WHOM ACTS APPLY 247 Sliareworkers Illinois Act, and is brought within the terms of the Act by reason of the fact that it operates a freight elevator in its building and conducts a business or enterprise wherein is used moulten metal and explo- sives, so that the curator, when injured, is entitled to compensation under the Act. North v. University of Illinois, 1 Bull. 111. Ind. Bd. 63;11N. C. C. A. 80. The Department of Labor of Minnesota has ruled that school teachers and janitors in the public schools come under the Act. Bulletin No. 9, Minnesota Dep. Labor & Ind. 24. School districts in Montana do not come under the Act. Report (1915) Montana Ind. Ace. Bd. 129. A principal of a public school was required to select a basketball team each year to represent his school at a meet of the various schools in the city. For the purpose of making the selection he supervised test exercises on the school grounds, during school hours, and while so engaged he was struck by a basketball and sustained injuries from which he died. It was held that the injuries arose out of and in the course of the employment. City of Milwaukee v. Industrial Com- mission, 160 Wis, 238 ; 151 K W. 247. 101. Shareworkers. Shareworkers on vessels are specifically excluded from the opera- tion of the British Act, Thus in Boon v. Quance, No. 1 (1909), 102 L. T. 443 ; 3 B. W. 0. C. 106, the Court of Appeal of England held that the master was not the employe 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 remaining 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 compensation. It was held that there was no contract of service between the captain and the owners and consequently the dependents were not entitled to com- pensation. In the subsequent case of Jones v. Owners of the Ship " Alice and Eliza " (1910), 3 B. W. 0. C. 495, the crew of a small schooner con- sisted of the captain, a mate and sometimes a boy. The master, in Digitized by Microsoft® 248 beadbuey's wobkmen's compensation law Shareworkers 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 ser- vices. The owner did not submit any evidence, but contended that under the doctrine announced in the case of Boon v. QiMnce, No. 1, supra, there was no contract of hiring and that therefore the captain's dependents could not maintain a right to compensation. The court awarded compensatioji nevertheless, distinguishing the two cases. The line of demarcation 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 hy 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 dis- tinction 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 between any ports he pleased, the owner having no control over him in this matter. The owner re- ceived 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 of service be- tween the ovvTier and the captain, and that the latter's widow was not entitled to compensation. Hughes v. Postlethwaite (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 ratesi charged being the same aa those paid by the o-€>apfE*«Eft3je/btortofo#igiti^elrbff Mm^S&M) 262 BEADBUEy's workmen's COMPElirSATIOBr LAW Watchman another when a board standing against a column fell against her caus- ing disabling injuries and compensation was awarded under the New. York Act. McManus v. Lord & Taylor, 6 N. Y. St. Dep. Kep. 393. 128. Warehouseman. A foreign corporation receiving provisions, and distributing them to dealers, after storing such provisions a certain length of time awaiting distribution, comes within the provisions of the Illinois Act of 1913, involving the operation of a warehouse or storehouse. Armour & Co. v. Industrial Board (1916), IIL ; 114 IS. E. 173; N". C. C. A. 129. Watchman. A watchman engaged in a concededly hazardous employment did not come under the New York Act prior to the amendment in 1916. Kehoe v. Consolidated Telegraph and Electrical Subway Co. (1916) _ 176 App. Div. 84 ; 162 Supp. 481. A watchman on a dock is not engaged in longshore work and is not covered by the New York Act. Oberg v. McBoberts & Co. (1916), 175 App. Div. 1; 161 Supp. 934. Watchmen were not specifically added to the New York Act by the amendment of 1916, but if their employers are engaged in hazardous employments doubt- less they would come under the Act by reason of the amendment to subdivision 4 of § 3 contained in L. 1916, c. 622. A night watchman in a bakery is not covered by Group 34 of § 2 of the New York Law. Fogarty v. National Biscuit Co. (1916), 175 App. Div. 729 ; 161 Supp. 937. It is possible that a night watch- man in a bakery might be included under Group 34 of § 2 by the amendment to subdivision 4 of § 3 by L. 1916, c. 622. Where it appeared that the employer's factory was sometimes in actual operation during the watchman's hours of labor and that he was at times called upon to perform services other than those strictly of a watchman, it was held that the New York Act applied. Fogarty V. National Biscuit Co. (1916), 7 N. Y. St. Dep. Eep. 415. A night watchman in a sandpaper factory who also acted as night fireman and did considerable other work about the establishment was held to be an employe engaged in a hazardous employment within the meaning of sectig^^/zgf/ B^^-^m§m^ of the New York Act. TO WHOM ACTS APPLY 263 Wood pipe manufacturer Uellman v. Manning Sandpaper Co., 176 App. Div. 127; 162 Supp. 235. An outside watchman of a munitions lactory while patroling around the factory building at night fell into a canal and was drowned. On the night in question it had rained and the canal ran by the build- ing which the employe was patrolling. The employe had tripped over certain obstructions. Compensation was awarded under the New York Act. Porter v. Remington Arms & Ammurdtion Co. (1916), 8 N. T. St. Dep. Kep. 489. Compensation was awarded under the New York Act to a night watchman on subway construction work, who in going into a shanty to get his coat, stumbled over some debris in the dark and from which he suffered disabling injuries. Birn v. Bradley Contracting Co., 6 N. Y. St. Dep. Eep. 319. A watchman in a planing mill is covered by the Illinois Act. Chi- cago Dry Kilm Co. v. Industrial Board, 111. ; 114 N. E. 1009. 130. Wholesale grocer. Under the New York Act an employe of a wholesale grocery which maintained a storage warehouse does not come within Group 29 of § 2 of the Act, which includes warehousemen as a hazardous employ- ment. Mihm V. Hussey, 169 App. Div. 742; 155 Supp. 860; 11 N. e. C. A. 328. 131. Wholesale hardware dealer. A shipping clerk of a wholesale hardware dealer fell down an elevator shaft receiving disabling injuries and compensation was awarded under the New York Act. Garry v. Hardware Bargain House, 5 N. Y. St. Dep. Kep. 415. 132. Wood lamp manufacturer. An employe using a circular saw in the manufacture of wooden lamps was injured by the cutting off of the fingers of the right hand and compensation was awarded under the New York Act. Marhoffer V. Marhoffer (1916), 8 N. Y. St. Dep. Kep. 438. 133. Wood pipe manufacturer. A handy man employed in the manufacture of wood pipe and wooden steam pipe covering was injured by a ripsaw and compensa- tion was awarded under the New York Act. Wanch v. A. Wychoff & Son Co., 5 N. Y. St. Dep. Rep. 414. Digitized by Microsoft® CHAPTER IX. LIABILITY OF PRINCIPALS FOR COMPENSATION TO EMPLOYES OF CONTRACTORS AND SUB- CONTRACTORS PAGE PAGE Aeticle a — Liability Depends 4. Connecticut 271 Upon Statute Alone 264 5. Illinois 272 1. Definition of the new rela- 6. Massachusetts 273 tion 264 7. New York 273 2. British Act 265 8. Wisconsin 273 3. California 268 ARTICLE A — LIABILITY DEPENDS UPON STATUTE ALONE 1. Definition of the new relation. The compensation acts have created an entirely new relation be- tween principals and principal contractors and the employes of con- tractors and subcontractors. Heretofore, under certain circum- stances, it has been held that those who held themselves out to be principals or principal contractors in relation to contractors and sub- contractors were really the employers of workmen who ostensibly were employed by contractors and subcontractors. In those cases it was held that the relation of master and servant was really created between the principal or the principal contractor and the employes who were directly employed by contractors or subcontractors. That question is still important under compensation acts and is discussed in Chapter VIII under the subdivision " Independent contractors." But imder many of the compensation acts principals and principal contractors are liable directly to employes of contractors and subcon- tractors, without regard to the question of whether or not the relation of master and servant is created between such principals or principal contractors and the employes of contractors and subcontractors. ITot all of the compensation acts contained provisions of this char- acter. In many of them the liability is conditional. That is, in many instances, if the contractors or subcontractors have insured their liability to their employes then the principals or principal con- tractors are relieved from liability. But if a contractor or subcon- tractor, who is the direct employer, has failed to secure compensation 264 Digitized by Microsoft® LIABILITY OF PRINCIPALS TO EMPLOYES OF CONTEAOTOES 265 British Act payments by insurance, then the liability attaches to the principal or the principal contractor. Usually the primary liability rests on the direct employer and the principal or principal contractor is only secondarily liable. This question again rests on the wording of the particular statute under consideration. 2. British Act. Section 4 of the British Act provides as follows: " (1) Where any person (in this section referred to as the principal), in the course of or for the purposes of his trade or business, contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any com- pensation under this Act which he would have been liable to pay if that workman had been immediately employed by him." By an agreement entered into between the defendant and one L., the latter was to keep an airship on exhibition on the defendant's grounds, and pay the wages of the turnstile man who was to be a servant of the defendant. Admission to the inclosure to view the air- ship was to be obtained by ticket and the moneys were to be paid, one-half to L., who agreed to pay the persons engaged by him, the defendant receiving the remainder of the receipts. For the purpose of carrying out the agreement L. engaged a lecturer whose duties were to explain the various parts of the airship and the exploits of L. After the airship had been on exhibition for some time it exploded and the lecturer was so severely burned that he died as a result of the in- juries. In a proceeding by the widow of the lecturer for compensa- tion, it was held that the lecturer was not a "workman" within the meaning of section 13 of the Compensation Act of 1906 ; and even assuming that the lecturer was a workman, his remedy was against L. and not against the defendant. Waites v. Franco-British Exhibi- tion (Incorporated) (1909), 2 B. W. 0. C. 199. Two men named J. and A. determined to open a skating rink. They bought an existing iron building and contracted with H. to remove it for them to its new position. In the course of the work, a man employed by Ti^i^fuS^W^iSi^Skm^^ compensation from J. 266 beadbuby's workmen's compensation law British Act and A., as principals, within the meaning of section 4 of the Act. It was held that J. and A. were not principals within the meaning of the section. Skates v. Jones & Co. (1910), 3 B. W. C. C. 460. The deceased was a farm laborer who was in the habit of working for different farmers at 2s. 6d. a day, coming and going when and as he wished. He came to work for the respondent at hay harvest in June, 1907, and worked for him until July 4th of that year, when he worked for another farmer for a week ; after which he came back and worked for the respondent until October 10, 1908,- except on three days at different times, when he absented himseK without notice, getting no wages for the days when he was away. On the morning of October 12th, 1908, the deceased came to the respondent's house with another laborer of the same kind prepared to work, and was told by the respondent's servant to go to a neighboring farmer, Andrews, who had sent a message to the respondent asking him to lend him a man to help in thrashing, to which the respondent had answered that the deceased could go. The deceased therefore went to Andrews, and while thrashing met with an accident which caused his death. It was held that the deceased was a workman within the meaning of sec- tion 13 of the Act, but that there was no contract of service between the workman and the respondent at the time of the accident, and therefore dependents were not entitled to compensation from the respondent. Boswell v. Qilbert (1909), 2 B. W. C. C. 251. A municipal corporation being desirous of clearing land of old buildings for the purpose of extending a market advertised for bids to remove the buildings and accepted the proposition of one T. who offered to remove the buildings and pay £15, provided he could have the bricks in the buildings. This offer was accepted. During the progress of the work a man employed by T. was killed. It was held that the widow of the deceased could recover compensation from the municipal corporation under sections 4 and 13 of the Act. Mulrooney v. Todd and the Bradford Corporation (1908), 100 L. T. 99; 2 B. W. C. C. 191. Where C purchased some standing timber and contracted with M to fell the timber and M employed his son to help do the work, and the son was injured, it was held that the son could not recover compensa- tion from C as the ^n .^g:^^w^no^^g,^rkman of O's within the LIABILITY OF PEINCIPALS TO EMPLOYES OF CONTEACTOES 267 British Act meaning of section 4 of the Act. Marks v. Carne (1908), 100 L. T. 950;2B. W. C. C. 186. The registered owner of a steam.' tug chartered her to another. Under the charter-party the owner was bound to provide and pay a crew of two men, including the deceased, and he alone had power to dismiss them. The possession, control and management of the vessel under the charter-party belonged to the person to whom it was char- tered. It was held that the owner and not the charterer was the de^ ceased's employer. Mackinnon v. Miller (1909), 46 Scotch L. K. 299; 2B. W. C. 0. 64. A shipowner contracted with W. to clean the boilers in one of his vessels. W. engaged a number of boiler scalers to do the work, and one of them, S., was injured while so employed. S. was subject to the orders of W. in the performance of the work, a certain super- vision over him and the other workmen being exercised by a foreman in the employment of the shipovnier. S. received his wages from W., who in turn received the money in installments from the shipovmer as desired for payment of the wages. It was held that S. was not in the employment of the shipowner. Spiers v. Elderslie Steamship Co. (1909), 46 Scotch L. K. 893 ; 2 B. W. C. C. 205. The work of boiler scaling on a ship is not undertaken by the shipowner in the course or for the purposes of his trade or business within the meaning of section 4 of the Workmen's Compensation Act. Id. The respondents were owners of a thrashing machine which they let out on hire to farmers. They were bound by statute to have three men to attend the machine, two to look after the engine and a third as a road man. At farms the road man acted as assistant in trashing, being paid for this by the farmer and not by the respendents. While engaged in the threshing the road man was injured. The County Court judge held that the owners of the machine, not the farmer, were the employers. On appeal it was held that the County Court judge had decided a question of fact, and that there was evidence to support his decision. Reed v. Smith, Wilkinson & Co. (1910), 3 B. W. 0. C. 223. A farmer arranged with W. for the services of a thrashing ma- chine, which was owned by W.'s father, it being understood that 25s. was the sum to be paid for the use of the machine, and from this the sum of 20s. should ER0^ if^'mbt9^3® ^^ *^^ ^^"^'^ "* *^^ ^""^^ 268 BEADBUEy's WOEKMEN's COMPElJSATIOBr LAW California W.'s hand got caught in the machine and had to be amputated. It was held that the farmer was not liable to W. under section 4 of the Act. Walsh V. Hayes (1909), 43 Irish L. T. 114; 2 B. W. C. 0. 202. A workman was drowned while mooring a ship belonging to the respondents. He was paid by a stevedore who worked for the re- spondents and other firms. The stevedore gave evidence that the money was paid through him merely for the convenience of the re- spondents. The County Court judge held that the man was employed directly by the respondents and not by the stevedore. On appeal it was held that this was a question of fact and the court could not interfere, as there was some evidence to support the decision. Pol- lard V. Goole and Hull Steam Towing Co. (1910), 3 B. "W. 0. C, 360. Drug manufacturers employed A to unload a cargo of sulphur, agreeing to pay him a stipulated sum per ton for doing the work. A employed his own men with whom he divided the total amount re- ceived, except a small sum which was allowed to him for the use of ladders. It was held that the drug manufacturers could not be held liable for compensation to a member of the gang, as this was not "work undertaken by the principal." Bohhey v. Crosbie (1915), 8 B. W. C. C. 236. Employers engaged in manufacturing wood moulding were held liable to an employe of a contractor, engaged to collect and stack the wood in the employer's yard for use in the employer's business, under section 4 (1) of the British Act. Hockley v. West London Timber & Joinery Co. (1914), 7 B. W. C. C. 652. Where an employe has made claim for compensation against a contractor he cannot thereafter make claim against the principal after the contractor has gone into bankruptcy, where no notice of the acci- dent has been given to the principal. Meier v. Dublin Corporation (1912), Irish Court of Appeal, 6 B. W. C. C. 441. 3. California. The Industrial Accident Commission of California has no au- thority to enter an award against a principal or the principal's in- surance carrier, because of injuries to an employe of an independent contractor working on the principal's premises. Western Indemnity Co. V. State IndustriaDi^itmli^rttyCMim&ii^^ (1916), 172 Cal. 766; LIABILITY OP PEINCIPALS TO EMPLOYES OE CONTEAOTOES 269 California 158 Pac. 1033; Sturdivant v. Pillsbury (1916), 172 Cal. 581; 158 Pac. 222. But such liability must be enforced in ordinary courts of law. CarstensY. Pillsbury (1916), 1Y2 Cal. 572; 158 Pac. 218. Under the California Act an award was made against a general contractor, a subcontractor and the insurance carrier, where the em- ploye was employed by the subcontractor and the subcontractor was not insured, but the general contractor was insured. Thaxter v. F. W. Thaxter, E. A. Janssen and Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II) 196. The owner of a house and the contractor who is building it are jointly liable for compensation to a workman of the contractor who was injured in such employment. Feiling v. H. Hanson, 1 Cal. Ind. Ace. Com. (Part II) 599 ; Ainsworth v. B. Drouillard, 2 Cal. Ind. Ace. Com. 14. A municipal corporation is liable to an employe of a contractor who was injured while in the service of the contractor where such contractor does not secure his liability for compensation to be insured. Forbes v. County of Humboldt, 2 Cal. Ind. Ace. Com. 882. Where a contractor is liable for an injury to his employe his princi- pal is also liable, although the employment while in the usual course of business of and not casual to the contractor is both casual and not in the usual course of the business of the principal. Neel v. Ed. White, 2 Cal. Ind. Ace. Com. 458. A janitor of a public school employed a window washer to clean the windows. He had no express authority from the Board of Edu- cation to employ help to clean the windows, but to the knowledge of the board he regularly employed a window washer twice a year. The janitor paid the window washer out of his own salary without reim- bursement by the board. It was held that the window washer was an employe of the janitor and not the employe of the Board of Edu- cation under the California Act. Sabini v. Loura (1916), 3 Cal. Ind. Ace. Com. 354. Where a purchaser of window frames to be made up, gave an order to a millman for a definite number at a definite price, the work to be done on the premises of the millman, it was held that such purchaser was not the principal and was under no liability for comf ensation to a carpenter employed by the millman to fill Ae order. Hale v. John- son, 2 Cal. Ind. ^G|^y|fe^jb>%«i^??fe ^''^ *^'° "°'^^^ compensa- 280 beadbuey's wokkmbn's compensation law Illinois tion unless the contrary is shown. McAvin v. City Electric Co., 1 Cal. Ind. Ace. Com. (Part I) 13. Where an employer of a minor under sixteen years of age, on a farm, was also the guardian of the minor and the guardian had elected affirmatively as an employer to come under the Act, it was held that such employer was not required to give a written notice to herself as guardian, as this would he an idle ceremony, and under such circumstances a written notice on behalf of the employe was not necessary. VascJie v. Vasche, as Executrix, 3 Cal. Ind. Ace. Com. 89. Under the California Act of 1911, where an employer had signi- fied his intention of adopting the compensation principle, but before the thirty days allowed to the employe to make his election had elapsed an employe was injured and such employe had not made any election at all, it was held that the employe was not protected by the Act during the thirty days allowed to him to make an election. Mc- Avin V. City Electric Co., 1 Cal. Ind. Ace. Com. (Part I) 13 ; Brach- rog V. Macauley Foundry Co., 1 Cal. Ind. Ace. Com. (Part I) 148. A filing of acceptance of the California Act by the employer, after an accident, does not relate back to the time of the accident. Andrus V. Atkinson (1916), 3 Cal. Ind. Ace. Com. 224. 5. Connecticut. The rejection of the Connecticut Act is not accomplished by filing notice with the Compensation Commissioner only, but notice also must be served on the employer. Mazura v. Klingon, 1 Conn. Comp. Dec. 296, Where the employer had posted notices that it had elected not to pay compensation and the employe had signed a contract acknowl- edging the receipt of the notice of the employer not to be bound by the Compensation Act, it was held that the employe could not main- tain a proceeding for compensation, where no steps had been taken to disavow the contract, even though the employe had not read the contract before signing it. O'Bourhe v. Cudahy Packing Co., 1 Conn. Comp. Dec. 8. 6. Illinois. Under the Illinoic^2!^^^MJk^AF;S©/feld that where an employer HOW BROUGHT UNDEE THE ACTS 281 Kansas elected uot to come under the Act that the employe had no election whatsoever. Favro v. Superior Coal Co., 188 111. App. 203 ; N. E. ; N. C. C. A. . Municipal corporations have the same right of election as private employers have. Marshall v. City of Pekin (1916), 111. ; 114 N. E. 497. A contract modifying or annulling the Compensation Act has no force or effect. Chicago Savings Bank & Trust Co. v. Chicago Rail- ways Co., 1 Bull. 111. Ind. Bd. 104. An employe cannot bring an employer within the provisions of the Act where the employer has elected not to become subject to its pro- visions. Dietz v. Big Muddy Coal & Iron Co., 105 N. E. 289; 263 111. 480 ; 5 ISr. C. C. A. 419. Where one 'brings himself under the provisions of the Act as an employer in an extra-hazardous employment, either by direct elec- tion or by operation of law, he remains under its provisions and is bound thereby until he elects to the contrary according to the specific methods provided in the Act. Flash v. Pattridge Metal Equipment Co., 1 Bull. 111. Ind. Bd. 46. When an employer files notice of election to operate under the Act he takes with him all his employes without regard to the de- partment in which they are employed, or whether or not they are located in the same building. Garls v, Pekin Cooperage Co., 111. Ind. Bd. 561; Oct. 5, 1914; 11 N. C. C. A. 322; Bostedo v. Fair, 111. Ind. Bd. 506; May 6, 1914; 5 IST. C. C. A. 791; Oylfe v. Subur- ban Ice Co., 111. Ind. Bd., No. 1305, Apr. 10, 1915 ; 11 N. C. C. A. 325. 7. Kansas. Under the Kansas Act where an employe brings a court proceed- ing to recover compensation, it will be presumed that the compensa- tion Act applies unless the defendant shows affirmatively that the statute does not apply. Gorrell v. Battelle, 93 Kans. 370 ; 144 Pac. 244; KC. C. A. Where an action is based on negligence, no reliance can be placed on the Compensation Act, unless it appears by the pleading that the parties are subject to the provisions of tlie Act by having adopted the compensation principle. Spottsville v. Western States Portland Ce- ment Co., 94 KanO/gMf d*^ Kas»S5fr@ I^- C. C. A. 282 beabbuey's woekmbn's compensation law Michigan The Factory Act of Kansas has not been repealed by the Work- men's Compensation Act and an employe may sue thereunder where his employer has not elected to accept the Compensation Act, even though the employe has filed notice of acceptance of the compensa- tion principle. Smith v. Western States Portland Cement Co., 94 Kans. 501 ; 146 Pac. 1026 ; IST. C. C. A. In an action in Missouri it was held that under the Compensation Act of Kaneas, providing that all employers who shall elect to come within the provisions of that Act shall do so by filing a statement to such effect with the Secretary of State, that the statement need not be in any precise or technical form and did not have to be evidenced with the same formality as a deed or other document which transfers property. Piatt v. Swift & Co. (Kansas City Court of Appeals), 176 S. W. 434. 8. Massachusetts. When an employer has actually taken the steps necessary to bring himself within the provisions of the Act, by properly insuring his liability for compensation to his employes, his employes are bound by the provisions of the Compensation Act, unless they take affirma- tive steps provided for in the statute, and it is immaterial whether or not the employes had notice of the employer's election; but the question whether or not the employe is bound by the provisions of the Compensation Act must be tried by a jury, where the proper steps are taken to secure the determination of that question in that manner. Young v. Buncam, (In re Young), 218 Mass. 346; 106 K E. 1 ; ]Sr. C. C. A. Where a market gardener insured certain of his employes who were engaged in driving teams which carried produce to market, but did not insure the employes who worked on the farm, it was held that under such circumstances he could bring a portion of his em- ployes under the Act, which excludes farm laborers from its pro- visions, so long as the employer did not attempt to exclude employes who came within its provisions. In re Keaney (Keaney v. Tappan), 217 Mass. 5 ; 104 K E. 43p ; 4 N. C. C. A. 556. 9. Michigan. An employer can hBi^ikeeL^^iMmti^WSb Michigan Act only by HOW BEOTTGHT trNDEE THE ACTS 283 Minnesota the means provided in the statute and the fact that an employe has accepted compensation provided in the Act, or has made statements indicating that he was under the Act, is not sufficient to compel the employe to be bound by the provisions of the Act in relation to dam- ages for an acidental injury. Before an employer can bring him- self under the Act the notice of election by the employer must be approved by the Accident Board. Bernard v. Michigan United Trac- tion Co., 188 Mich. 504; 154 K W. 565 ; IsT. C. C. A. The fact that an employer elects to come under the Act after an accident happens does not give the employe a right to claim com- pensation for that accident. Shevchenko v. Detroit United By., Mich. ; 155 N. W. 423 ; ' K C. C. A. The fact that a railroad company paid part of the hospital expenses of an employe who was injured while engaged in interstate com- merce is not conclusive on the employe as an acceptance of the Act. Orand Trunk By. Co. v. Knapp (1916), 233 Fed. 950. 10. Minnesota. Under the Minnesota Act if an employer desires to take advantage of the provisions of section 31 (a) relating to insurance, he must post the notices required by the Act. In the case of a contractor, for example, it would be necessary to post such a notice on each dredge, or office, or barn, or repair shop. And where the employes are working in different gangs a separate notice should be posted for each gang. In some cases it is posted on the inside cover of the tool box or the top of a shanty. They must be posted at all points where it is customary for employers to post notices for their em- ployes when they want every employe to see the notice. The Labor Department also suggests that the notices might be put in the pay envelopes. Bulletin No. 9, Minn. Dep. Labor & Ind. 10. The Minnesota Act allowed an employe to make his election within thirty days after October 1st, the date on which the employer's elec- tion became operative. It was held that an employe injured on October 15th, who perfected his election not to be bound by the Act of October 29th, was, until the date of such election, bound by the Act and could not, under such circumstances, maintain a common- law action for his injury. Harris v. Hobart Iron Co., 127 Minn. 399; 149 N. W. 6e3igtfi£Sel^y^i(h>^® 284 bkadbuky's woekmbit's compensatioist law New York 11. Montana. Where the principal business of the employer is not hazardous as a matter of law, the mere fact that a few of his employes may be engaged incidentally in hazardous pursuits, will not operate to enable him to elect to become bound by any other than Plan No, 3, Class 27, under the Montana Act. Where, however, the employer carries on two or more distinctive occupations, the one non-hazardous and the other hazardous, such as general merchandising and the opera- tion of grain elevators, he will be permitted to elect to become bound by the Act as to the latter business alone. Eeport (1915) Montana Ind. Ace. Bd. 214. Municipal corporations, such as cities, are brought under the Montana Act without any election on the part of the city. City of Butte V. Industrial Accident Board of Montana, 52 Mont. 75; 156 Pac. 130. 12. New Jersey. Parties to a foreign contract of employment to be performed partly in l^ew Jersey cannot by such contract prevent the applica- tion of the New Jersey Act, in the absence of notice given by the employer under section 2 of the statute that he elected not to be bound by such Act. American Radiator Co. v. Rogge, 86 N. J. Law 436; 92 Atl. 85; 7 N. C. C. A. 144; aff'd 93 Atl. 1083. Where it is intended that the Act shall not apply to a minor the notice of non-acceptance of the Act must be given to the parent or guardian of the minor and notice posted in the works or by means of the pay envelope is not sufficient. Troth v. Millville Bottle Works (1916), N.J.Law ; 98 Atl. 435; N. C. C. A. ; aff'g 86 N. J. Law 558 ; 91 Atl. 1031 ; N. C. C. A. ; Brost v. Whitall Tatum Co. (1916), N. J. Law ; 99 Atl. 315; ]Sr. C. C. A. ; Hoey v. Superior Laundry Co., 85 N. J. Law 119; 88 Atl. 823; N. C. C. A. 13. New York. The New York Act is compulsory as to all classes of employes specified in section 2 as modified by section 3 without either em- ployer or employe taking any steps. As to employes not included' in these sections theyc^j^-^^Qt^yim^^flf^et by election. That is HOW BEOUGHT UNDER THE ACTS 285 West Virginia if the employer elects to pay compensation his employes are bound by the Act unless they file notice of rejection. It should be ob- served, however, that unless the employer insures compensation pay- ments in the manner specified in the Act his employes may elect after an accident whether to sue for common-law damages or claim compensation. 14. Rhode Island. A notice posted, which is in the English language, was held to comply with the Rhode Island statute, where such notice was a copy of the one filed with the Commissioner of Industrial Statistics. Be Pasquale v. Mason Mfg. Co. (1916), E. I. ; 97 Atl. 816; N. C. C. A. . In the last-mentioned case the treasurer of a corporation filed an acceptance with the knowledge and acquiescence of the directors of a corporation, but without any formal resolution having been passed authorizing the treasurer so to act, and it was held that the filing of the acceptance was ratified through the acquiescence of the directors. 15. Washington. In an action by an employer for negligence a defense that the em- ploye is bound by the Washington Act is insufficient unless the em- ployer pleads that he has taken all the steps in compliance with the Act to bring himself thereunder. Acres v. Frederick & Nelson, 79 Wash. 402 ; 140 Pac. 370 ; 5 IST. C. 0. A. 557. 16. West Virginia. Under the West Virginia Act an employer must not only have paid the premiums provided thereby, but the injured employe must have had actual notice that his employer had elected to pay into the work- men's compensation fund the premiums provided by such Act; but typewritten or printed notices thereof when duly posted in con- spicuous places about his place or places of business, as provided by said Act, will, as provided thereby, constitute sufficient notice to all his employes that he has made such election. Daniels v, Charles BoldtCc, W.Va. ;88S. E. 613; K C. 0. A. . For sufficient posting of notices, etc., under the West Virginia Act, see Rhodes v. J. B. B. Coal Co. (1916), W. Va. ; 90 S. E. Y96. Digitized by Microsoft® 286 beadbuby's ■woekmen's compensation' law Wisconsin 17. Wisconsin. Where an employer becomes subject to the Act an employe in the absence of notice does not become subject thereto until thirty days later. Wiesdeppe y. Zwirfel, Wis. ; 160 N. W. 1038; ]Sr. C. C. A. ; Green v. Appleton Woolen Mills, 162 Wis. 145; 155 ]Sr. W. 958; 11 K C. C. A. 600; Selsus v. Case Threshing Ma- chine Co., Fourth Annual Eeport (1915), Wis, Ind. Com. 22; Wamhold v. Fox Ice Co., Fourth Annual Keport (1915), Wis. Ind. Com. 36; Puddi/ v. Fitch, Fourth Annual Eeport (1915), Wis. Ind. Com. 17. A notice filed by a railway company, which states that it accepts the provisions of the Act, and the nature of the employment of its men at its office and shop is sufficient to include all employes of the railway company if the statute authorizes their inclusion. Minne- apolis, St. Paul & 8. 8. M. By. Co. v. Industrial Commission of Wis- consin, 153 Wis. 552; 141 N. W, 1119; 3 N. C. C. A. 707. Where an employer gave notice of acceptance of the Act and con- tested a proceeding before the Industrial Commission, it is held that the employer was estopped from asserting on appeal that the employe had not elected to adopt the compensation provision in the statute. Milwaukee Western Fuel Co. v. Industrial Commission of Wisconsin, 159 Wis, 635; 150 IST. W, 998; 12 K C. C. A. 76. A decision of the Wisconsin Industrial Commission that an em- ploye has not brought himself within the terms of the Compensation Act is binding on the parties where no appeal is taken from such decision. Kamy v. Northwestern Malleable Iron Co., 160 Wis. 316; 151 N. W. 786. Digitized by Microsoft® CHAPTEE XI. ELECTION OF REMEDY AFTER ACCIDENT AND ACTIONS FOR DAMAGES AGAINST ASSENTING EMPLOYERS PAGE PAGE Abticke a — Scope of Chapteb. . 287 16. Texas 303 1. Two subjects dependent 287 17. Washington 304 Akticle B — Election of Remedy 288 18. West Virginia 305 1. In general ; right to ' elect 19. Wisconsin 305 Irrespective of statutory Abticle C — Action fob Dam- provision 288 ages Against Assenting 2. British rule 290 Emploteb . . 306 3. Arizona 292 1. In general 306 4. California 293 2. Connecticut . . . , 307 5. Connecticut 294 3. Illinois 307 6. Illinois 295 4. Massachusetts 308 7. Kansas 295 5. Michigan , 308 8. Maryland 296 6. New Jersey 308 9. Massachusetts 296 7. New York 309 10. Michigan 298 8. Ohio 311 11. Minnesota 298 9. Oregon 312 12. New Jersey 299 10. Rhode Island 312 13. New York 299 11. Texas . . 312 14. Ohio 302 12. Washington 313 15. Oregon 303 13. Wisconsin 313 ARTICLE A— SCOPE OF CHAPTER 1. Two subjects dependent. The two subjects included in the title to this chapter are closely allied, for unless the employe has some election of remedies after the accident there can be no cause of action against an assenting em- ployep. Under the British Act the employe has the right in all cases to sue for damages and if he is defeated in that action to ask the same court to assess compensation. This extremely liberal rule has not been adopted in any of the American States, however. Very few of the American acts are as broad in their application as is the British statute, but as to the occupations covered usually the remedy by way of compensation is exclusive, so far as claims against the employer are concerned. A few, like the Ohio Act, provide that where the employer has been guilty of what amounts to gross negli- gence then the employe may, at his election, maintain an action for Digitized by^/^rosoft® 288^ beadbtjey's ■woekmen's compensatiott law In general ; right to elect irrespective of statutory provision damages in lieu of claiming compensation, and in such an action, of course, the damages which may be recovered are not limited, as they are under the Compensation Act. Moreover, in such actions the employer is often prevented from setting up the defenses based on contributory negligence, assumption of risk and negligence of fellow servant. Under the British Act the employer is not thus hampered in his defenses if the employe brings an action for dam- ages. The result is that few actions succeed at common law in Great Britain and they are rarely brought, the employes as well as the dependents of those who are killed generally preferring to accept prompt payment of a certain amount rather than suffer the delay and uncertainty of a common-law action. When the injury is caused by the negligence of a third person, if it occurs in the course of the employe's employment the employe usually has an election whether to sue the third person or claim com- pensation, but, generally speaking, he cannot pursue both remedies. In some instances if his recovery of damages from the third person is less than the statutory compensation the employer must make up the difference. If he claims compensation in the first instance usually the right of action against the third person is subrogated to the employer. This topic is discussed in the chapter on Subeogation. There are a few other instances in which an employer finds him- self subjected to an action for damages in a case where the employe would normally be limited to a claim for compensation. These ex- ceptional cases are duscussed in the succeeding pages of this chapter. ARTICLE B — ELECTION OP REMEDY 1. In general; right to elect irrespective of statutory provision.^ A very few of the compensation statutes give the employe an abso- lute right, after an accident has happened, to determine whether he will demand " damages " or " compensation." A very few of them 1 Of course there is a clear distinction betvreen an election of remedies by an employ^ after an accident has happened, and the election v?hich both the employer and the employ^ may exercise under some of the statutes as to whether they, or either of them, will come within the provisions of the com- pensation features of the statute at all. In the text of the present chapter is considered merely the election which the employ^ may make after the accident, presuming, of course, that both employer and employ^ have signified their intentions. In proper legal form, to. accept and be bound by the features of a particular act relating toQiffl^fifiififan, on that tlt§ statute is compulsory. Electioit of remedy aftee accident 289 In general ; right to elect irrespective of statutory provision give him a right to pursue both remedies at once ; but in such cases an actual recovery under one form of action usually precludes further proceedings in the other. In several of the acts " damages " may be recovered in cases where an employer is guilty of a violation of a safety statute, or a willful act, or of gross negligence, and injury is caused thereby. Some of them go so far as to permit the recovery of " double damages " or " double compensation," when the injury is caused by a disregard of a statute relating to safety devices. A considerable percentage of the laws provide that where the employer and the employe are both bound by the compensation provisions of the statute that the right to " compensation " shall be exclusive of all other rights. In some instances a workman while employed in his master's busi- ness is injured through the wrong of a third party. Suppose, for example, a driver of A's team is injured by the negligence of B, who is operating an automobile. The driver can recover compensation from A. He also has a cause 'of action against B for damages. Usually, under the various statutes, he may elect which remedy to pursue. Speaking generally, the employe can have only one recovery of damages or compensation for a single injury. But under a set of circumstances such as described above, where the employe recovers compensation from his employer, the latter usually is subrogated to the rights of the workman as against the third person who caused the injury. When the damages recovered are greater than the statutory amount allowed for compensation the balance usually goes to the employe. Just how far the doctrine of estoppel by election, or the rule that a release of one joint tort feasor releases all, applies to the compensa- tion statutes, is left in considerable doubt. Some of the acts contain specific provisions on one or both of these subjects while others are entirely silent on both. When the statute gives the employe the right to elect between one of two remedies, as, for example, to claim "damages" or "compensation," from his employer, and is silent as to the effect of the election, doubtless the general doctrine of estoppel by election would apply. That is, if in such a case the employe should sue for "damages" and should fail he would be estopped from claiming " compensation." Vice versa if he should claim " compensationi!J;^zeT!]s. and the employe had ELECTION OF REMEDY AFTEE ACCIDENT 311 Ohio made a claim for compensation whicli had been denied by the Work- men's Compensation Commission, on the ground that the injuries were not the result of an accident, it was held, in a subsequent action by the employe against the employer for common-law damages, that the decision of the Commission was res adjudicata as to whether or not there had been an accidental injury; but the court expressed the opinion that the employe had in fact suffered an accidental injury. The court therefore overruled a demurrer to the answer setting forth the decision of the Commission as res adjudicata and held that the defense was good. Naud v. King Sewing Mach. Co., 95 Misc. 676; 159 Supp. 910 ; Supreme Court, Erie Special Term, June 20, 1916. An employe of a gas company who was required to assist in moving stoves and ranges in the company^s building and to and from its works, was injured when the tailboard of a wagon, from which he was removing a stove, gave way, and it was held that he was not en- gaged in longshore work, under section 2, Group 10, of the New York Act, and where, therefore, the employe brought an action for com- mon-law damages and the defendant set up the defense that the rights of the employe were governed by the New York Act, it was held that this was not a good defense. Outheil v. Consolidated Gas Co., 94 Misc. 690; 158 Supp. 622. 8. Ohio. Under the Ohio Act the remedy of the employe or his dependents is limited to the amounts provided in the Act unless the injury has arisen from " the willful act of such employer or any of such em- ployer's ofl&cers or agents or from the failure of such employer, or any of such employer's officers or agents, to comply with any munici- pal ordinance or lawful order of any duly authorized officer, or any statute for the protection of the life or safety of the employes," in which event a suit for common-law damages can be maintained against the employer. Under this provision a verdict for $14,000 against an employer was sustained where the employe had been made a cripple for life by reason of the falling of a derrick after the fore- man had several times been warned of the dangerous condition of the derrick and had ordered the work to proceed without endeavoring to remedy the defect. McWeeny v. Standard Boiler & Plate Co. (U. S. Dist. Co., Dist. C&mi^^^l^rmn<^ ^- 0. C. A. 919. In the 312 Texas last mentioned case the charge of the trial court as to what constituted willful acts, which charge was approved on appeal, was as follows : " To constitute a willful act in this ease, you must find that the action of Fisher (the foreman) was such an action as to evince an utter disregard of consequences so as to inflict the injuries com- plained of. In other words, the negligent action was such reckless- ness reaching in degree to utter disregard of consequences which might probably follow. If the action of Fisher in ordering McWeeny to work on this soafEold and in connection with this der- rick was done imder such circumstances as to evince an utter dis- regard for the safety of McWeeny and the other employes working there in connection with him, then that action was a willful act." 9. Oregon. Under the Oregon Act an employe can maintain an action against an assenting employer for damages where the injuries are due in whole or in part to the failure of the employer to maintain safety appliances required by the statute, or the employe may maintain an action for damages in addition to any payments from the accident fund if the injury results from the deliberate intention of the em- ployer to produce injury, and in such a case the deliberate intention mentioned in the statute implies that the employer must have de- termined to injure the einploye; mere carelessness or negligence, however gross, is not sufficient. Jenkins v. Carman Mfg. Co., 79 Ore. 448; 155 Pac. 703; 11 N. C. C. A. 547. 10. Rhode Island. Where an employer posted a notice, in the English language, and the employe contended that he did not understand the English lan- guage, the question of whether or not the notice posted was sufficient under the Act, was held to have no merit, as it appeared that the notice posted was a correct copy of the one filed with the Commis- sioner of Industrial Statistics. Be Pasquale v. Mason Mfg. L^. (1916), E. I. ; 97 Atl. 816. 11. Texas. Where an employer has complied with the Act an employe cannot maintain an action against him for damages. Consolidated Kansas City Smelting and Refining Co. v. Dean (1916), Tex. Civ. App. ; 189 S. W. U7Digitized by Microsoft® ELECTIOlSr OF EEMEDT AFTER ACCIDENT 313 Wisconsin 12. Washington. An employe who has a right to claim in admiralty against a ship waives such right by accepting compensation from the State Fund, The Fred E. Sander (Fed. Dist. Ct., Western Dist., Wash., March, 1914), 212 Fed. 545; 5 N. C. C. A. 97. The above entitled case came up on a question of pleading in the same court in October, 1913 (208 Fed. 724; 4 K C. C. A. 891), where it was held that the Washington Compensation Act did not abolish the remedy of a mari- time employe to claim against the ship, but left that remedy open to him. Thereafter an answer was put in in which it was set up that the employe had already accepted compensation under the Washing- ton Act, and it was held (212 Fed. 545) that this was a waiver of any claim against the owner of the ship, where it appeared that such shipowner had paid premiums to the accident fund under the State law. Where an employer was subject to the provisions of the Act and the employe had received an award for injuries suffered by accident under the Act, it was held that he could not maintain an action against the employer for an aggravation of the injuries by reason of the negli- gence of a physician engaged by the master and paid out of sums deducted from the wages of employes, although such an action could have been maintained if the employer had not been under the Act. Ross v. Erickson Const. Co., 89 Wash. 634; 155 Pac. 153; 11 IST. C. C. A. 755. A helper of a dxiver of an automobile truck does not come under the Act. Collins v. Terminal Transfer Co. (1916), 91 Wash. 463; 157 Pac. 1092. 13. Wisconsin. If both employer and employe have elected to come under the Act the sole liability of the employer is to pay compensation. MilwavJcee V. Althoff, 156 Wis. 68; 145 N. W. 238 ; L. K. A. (1916), A, 327. The fact that an infant is prohibited by statute from being em- ployed in certain hazardous employments does not prevent the infant from claiming compensation when injured while in such employ- ments and it does prevent him from claiming damages in an action at law as the infant's sole remedy is for compensation. Foth v. Macomber & Whytea^E^db;!/mkMsBfM:^ ; 154 IST. W. 369 ; 11 N. 314 bbadbuey'i Wisconsin C. C. A. 559, But see Stetz v. F. Mayer Boot & Shoe Co., 163 Wis. 151 ; 156 N. W. 971. In the last mentioned case it was said that the employment of a child under the circumstances stated constituted a criminal violation of the statute and was classed with gross negli- gence, making the employer liable in a civil action for injury resulting from such a violation of the law. Digitized by Microsoft® CHAPTER XII. WHAT IS AN " INJURY " OR AN " ACCIDENTAL INJURY " WITHIN THE MEANING OF COMPENSATION ACTSP^ PAGE Abticlb a — General View of 8. THE Subject 317 9. 1. In general ; distinction be- tween the word " injury " 10. and ttie term " accidental injury " as found in the 11. various statutes 317 12. 2. Aggravation of pre-existing 13. disease 326 14. 3. Aggravation of disability by 15. illness or other contribut- ing cause 341 16. 4. Reducing compensation pay- ments when an occupa- 17. tional injury accelerates 18. or aggravates a pre-e?;ist- 19. ing subnormal physical 20. condition, or when the 21. period of disability is pro- longed by a disease subse- 22. quently contracted or by other subsequently inter- vening cause Aeticie B — Specific Rulings AS TO What is ob is not AN Accidental Injury 1. Alcoholic meningitis and de- 342 351 351 352 352 352 354 354 354 23. 24. 25. 26. 27. 2 Anpiirism 28. 3 Anthrax 29. 4. Apoplexy 30. 31. 7. Artificial leg broken. PAGE Artificial teeth broken 354 Asthma and heart trouble from breathing dust 355 Bandages on wound catch- ing fire 355 " Bends " 355 Blood poison 355 Boils 355 Bright's disease 356 Bronchitis and intestinal tuberculosis 356 Burstitis; an infection from working on knees 356 Cancer 357 Cataract 357 Cerebral abscess 358 Cerebral hemorrhage 358 Cerebral oedema and de- lirium tremens 358 Chemical poisoning applied externally 359 Concussion of brain 359 Constant jarring and jolt- ing of machine 359 Continuous strain 360 Copper poisoning 360 Death not natural or proba- ble consequence of injury. 360 Delirium tremens 361 Dementio praecox 362 Dermatitis 362 Disease contracted in hos- pital after accidental in- jury 362 1 This question is so closely related to the subject of the succeeding chapter on "When Does an Injury 'Arise Out of or in 'the Course of the employ- ment," that they often overlap. Frequently it is difficult to tell under which topic a case should be placed. Nevertheless, they are two distinct topics. By numerous cross-references the author has endeavored to facilitate the search for authorities on any given question under either head. Digitized by^krosoft® 316 BEADBUEY S WOEKMEN'S COMPENSATION LAW Summary PAGE 32. Disease following injury as distinguislied from occu- pational disease 363 33. Dislocation from strain 364 34. Displacement of cartilage of knee 365 35. Dizziness caused by first accident 365 36. Drinking poison by mistake for drinking water 365 37. Drowning 366 38. Dust 366 39. Eczema 366 40. Embolus following amputa- tion 366 41. Emergence of floating carti- lage 366 42. Epilepsy 367 43. Erysipelas following frost- bite 367 44. Erysipelas following trau- matism 367 45. Exciting and contributing cause of death -. 368 46. External manifestation ab- sent 368 47. Eye injuries 368 48. Facial paralysis from work- ing in cold room in choco- late factory 369 49. Palls from fits, vertigo or other like causes 370 50. Fibroid tuberculosis ; stone grinder's phthisis 372 51. Pits 372 52. Flat foot from traumatism. 372 53. Floating kidney 373 54. Friction Injuries 373 55. Frostbite 375 56. Gangrene from wound 377 57. Gastric cancer 377 58. Gastric ulcer ; aggravating pre-existing condition .... 378 59. Glaucoma 378 60. Headaches from eye injury. 378 61. Heart diseases 378 62. Heat stroke _,...,.... ...^ 383. ^standing in 63. Hemorrhage int^MP.'j'.^i'si'^^^g.Oglrwork . . PAGE Hemorrhoids becoming ex- ternal from exertion 386 Hernia 386 Housemaid's knee 392 Hydrocele 392 Hypostatic pneumonia 392 Hysterical blindness 392 Hysterical paralysis 393 Infectious disease 393 Infection from brealt in skin 394 Infection in a different part of the body from the in- jured member traced to in- fection at the seat of the wound 395 Infections and other ail- ments contracted by rea- son of lowered vitality due to previous injuries 396 Inflammation of kidneys from standing in water. . . 398 Inhalation of dust 398 Inhalation of noxious gases 398 Insanity 401 Insect bite 403 Intestinal ulcers 404 Ivy poisoning 404 Lead poisoning 404 83. Lightning 406 84. Lighting up inflammatory condition 407 85. Medical treatment causing disability 407 Meningitis following acci- dent 410 Mental shock or fright and nervous troubles 410 Mine gas poisoning 414 Neurosis 414 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 86. 87. 88. 89, 90. Nephritis 416 91. 92. 93. 94. 95. Occupational diseases 417 Operation (surgical) 419 Optic neuritis 420 Osteosarcoma from fall 421 Overheated employ^ be- comes incapacitated by draught 421 421 WHAT IS AN " INJURY *' OE AN " ACCIDENTAL INJURY " SlY In general ; distinction between word " injury " and term " accidental injury ' PAGE 97. Palmar abscess 421 98. Paralysis 422 99. Paresis, after injury but re- sulting from other causes. 423 100. Periarthritis 423 101. Peritonitis, caused by elec- trical shock 423 102. Peritonitis from traumatism 423 103. Pleurisy 423 104. Pimple opened in unsani- tary manner 424 104a. Pneumonia 424 105. Recurrence of condition due to former injury 428 106. Refusal of workman to per- mit operation to be per- formed 429 107. Rheumatism 430 108. Rupture of blood vessel ,from strain 430 109. St. Vitus dance 430 110. Sarcoma 431 111. Scarlet fever 431 112. Sciatica 431 113. Secondard effect of injury. . 431 114. Second operation required PAGE by condition produced by first 432 115. Septicaemia cases generally 432 116. Skin affection from acids and other irritants 436 117. Sprains and strains gener- ally 438 118. Suicide due to mental condi- tion caused by accident. . . 443 119. Sunstroke 443 120. Surgical scarlet fever 448 121. Sympathetic affection of one eye by injury to the other. 448 122. Tetanus 448 123. Trachoma 449 124. Tuberculosis 449 125. Tumor 451 126. Typhoid fever 451 127. Ulcers 453 128. Ulcers of stomach 453 129. Vaccination by order of su- perior 453 130. Varicose veins 454 131. Vertigo 455 132. Wood alcohol poisoning 456 ARTICLE A — GENERAL VIEW OP THE SUBJECT. 1. In general; distinction between the word " injury " and the term " accidental injury " as found in the various statutes. Some of the compensation acts provide for compensation when a workman receives an " injury " in the course of his employment,, while others specify an " accidental injury " or an " injury by acci- dent " as the foundation for such a claim. As interpreted by the courts, accident boards, industrial commissions and Federal authori- ties the distinction seems to be an important one. Speaking gen- erally, it is held (but not universally), where the word " accident " is omitted, that worlgnen who suffer from what are known as " oc- cupational diseases " are entitled to compensation. On the other hand, it is decided where the word " accident " is used that those contracting occupational diseases have no claim for compensation. The latter doctrine was established early under the British Compen- sation Act in which the word " accident " was found. Marshall v. East Holywell Coal CoP/^*^^J^/W?/'©o®!®L9; Walker v. Hochney 318 EBADBUEy's workmen's COMPENSATIOIir LAW In general ; distinction between word " injury " and term " g.ccidental injury " Brothers (1909), 2 B, W. C. C. 20; Steel v. Cammell, Laird & Co. (1905), 7 W. 0. 0. 9; Williams v. Duncan (1898), 1 W. C. C. 123. Subsequently a provision was added to the British Act specifically allowing compensation to those contracting certain occupational dis- eases and authorizing the Secretary of State, by proclamation, to enumerate other diseases of that character to be added to the list originally contained in the statute. There is still some uncertainty on the subject under the American statutes. Where the word " injury " only is used some of the authori- ties whose duty it is to administer the compensation laws have de- cided that it includes occupational diseases as well as accidental injuries, while others have expressed a contrary, view. In Michigan, for example, while the several portions of the Act are somewhat in- consistent it is nevertheless provided in Part 2, § 1, of that statute, that an employe who " receives a personal injury arising out of and in the course of his employment," etc., shall receive compensation. In Part 1, § 5, subd. 2, of the same Act, in describing the employers who shall be subject to the provisions of the statute, it is provided that " every person, firm and private corporation, including any public service corporation, who has any person in service under any contract of hire, express or implied, oral or written, and who, at or prior to the time of the accident to the employe for which compensa- tion under this act may be claimed shall," etc. Thus the last-quoted section provides for an accidental injury, while Part 2, § 1, specifies merely of a personal injury. The Michigan court of last resort has held that an industrial disease, such as lead poisoning, is not a per- sonal injury witbin the meaning of the statute. The court has further said that if the statute could be construed to include occupa- tional diseases it would be unconstitutional as the fact that it did include occupational diseases was not disclosed in the title of the Act. Adams v. Acme White Lead & Color Worhs, 182 Mich. 157; 148 N". W. 485 ; 6 K C. C. A. 482. The Federal Compensation Act relating to Government employes does not contain the word " accident " in the principal clause, but provides that compensation shall be granted if the employe " is in- jured in the course of such employment." Subsidiary clauses pro- vide for the reporting of " accidents " and otherwise refer to " acci- dental " injuries, fi^^f 4l&pect it is sSnilar to the Michigan Act. 319 In general ; distinction between word " Injury " and term " accidental injury " It was held under the Federal statute that an employe might be " injured " so as to be entitled to compensation without having suffered a definite " accident." Thus, where a plate printer, following his usual occupation, sustained a sprain of the wrist and a rupture of the synovial sac, it was held that he was injured within the meaning of the statute and entitled to compensation. iRe A. E. Clarke, Op. Sol. Dep. C. & L., p. 150. In the last-mentioned case the Solicitor of the Department of Commerce and Labor considered the subject in an exhaustive opinion, which was supplemented by that of the At- torney General. The Attorney General reached the conclusion that " within the language of the statute an employe may be injured in the course of his employment without having suffered a definite acci- dent." The Attorney General noted that the word " accident " was used in several places in the statute in relation to the reporting of disabilities caused to employes, but came to the conclusion that " the word ' injury ' is employed •comprehensively to embrace all the cases of incapacity to continue the work of employment, 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 negligence or misconduct, becomes unable to carry on his work and this condition continues for more than fifteen days." In an earlier case the Solicitor had held that a disease contracted in the course of employment was not an " injury " within the meaning of the Act, although directly attributable to such employment. Be John Treiman,'- Op. Sol. Dep. C. & L., p. 166. In the lastrmen- tioned case the claimant was employed as a laborer in the Boston 'Navy Yard, to scale lead-painted compartments on ships. He became incapacitated by reason of lead poisoning, contracted in the course of his employment. In a later case, and after the decision was made in the Clarice case, the Attorney General had occasion again to consider the question of diseases arising in the course of employment, in the case of John Sheeran. There the employe was a laborer engaged in river and harbor construction. Immediately prior to becoming in- capacitated he was employed in cleaning a building, attending to a heating plant and removing ashes. In the course of his employment, while removing ashes from the furnace room to a pile outside the Digitized by Microsoft® 1 But see post, page 320 beadbtjky's woekmen's compensation law In general ; distinction between word " injury " and term " accidental injury " building, he contracted a severe cold which resulted in pneumonia and he was incapacitated for duty a period of more than fifteen days. The employe's disability was in no way due to negligence or miscon- duct on his part. The Attorney General modified his former views and held that the applicant was not entitled to compensation, saying among other things : • " There is nothing either in the language of the Act or its legis- lative history which justifies the view that the statute was intended to cover disease contracted in the course of employment, although directly attributable to the conditions thereof. On the contrary, it appears that the statute was intended to apply to injuries of an acci- dental nature resulting from employment in hazardous occupa- tions — not to the eSects of the disease." The Attorney G-eneral then referred to his former opinion in the A. E. Clarke case and said, respecting the same : " That opinion, however, was not intended to create the impres- sion that the statute in question covered diseases contracted in the course of employment. The language of the opinion is perhaps broader than it should be, in the light of the committee report on the bill above quoted, which indicates that only injuries of an acci- dental nature were in mind. As, however, the statute is remedial, it should be generously construed, and so construed it might be held to include injuries of the character there referred to, although, , strictly speaking, no definite accident had occurred which gave rise to the injury. The word ' injury,' however, as used in the statute, is in no sense suggestive of disease, nor has it ordinarily any such signification." Re John Sheeran, 28 Op. Atty. Gen. 354; same case reported Op. Sol. Dep. C. & L., p. 169. It has again been reiterated under the Federal Act that acute lead poisoning is not such an injury as entitles an employe to compensa- tion. Be C. L. Schroeder/ Op. Sol. Dep. C. & L., p. 172. Similarly where a workman suffered from cystitis and prostatitis, which he claimed was the result of overwork, it was held that he was merely suffering from disease which was not covered by the terms of the Federal Act, and compensation was refused. Be H. A. Ourand, Op. Sol. Dep. 0. & L., p. lYl. Where disability is referable to no definite accident or occurrence, although arising in the course of employment, involving chiefly a gradual weakening, wearing out, or breaking down of the employe, 1 But see post, page s^igitized by Microsoft® WHAT IS AN " INJURY " OE AN " ACCIDENTAL INJURY " 321 In general ; distinction Detween word " injury " and term " accidental injury " this is not an injury within, the meaning of the Federal Act. Be Elizabeth Hewitt, Op. Sol. Dep. C. & L., p. 210. In the last-men- tioned case while the employe was engaged in making ponchos she was taken ill. Being conducted to an open window she had a faint- ing spell and was unconscious for ahout five minutes. It appeared that previously the employe had had a nervous breakdown while working on comparatively light work. At the time of the injury she was working harder than usual, and had just carried a number of articles, upon which she was working, to other parties. It was held that the claimant's condition was apparently due to causes inherent in the individual, resulting in a gradual weakening and breakdown and that there was no event or occurrence at any definite time which could be referred to as the cause of the collapse. An employe overtaken while at work by disability due, to some un- ascertained internal disorder, not shown to have been caused by any accident or occurrence in the course of the employment, is not entitled to compensation. Re J. V. Trammell, Op. Sol. Dep. C. & L., p. 206. An injury caused by continuous strain due to the nature of the work, and which develops gradually, with no element of accident, is not an injury covered by the Act. Re M. A. Crellin, Op. Sol. Dep. C. & L., p. 195. In this instance the claimant was a woman employed in the Public Printer's Office, folding heavy sheets of paper. The injury was reported to be " ganglion or cystic growth, probably due to con- tinuous strain, causing a degeneration and cystic formation of the tendon sheath." Later determinations first distinguished or modified somewhat the decisions already cited and finally the original holdings were entirely abandoned, and it was held that the Federal Act covered occupational diseases. Re E. L. Hill, Op. Sol. Dep. C. & L., p. 204 ; Re J. B. Irvr ing. Op. Sol. Dep. C. & L., p. 211 ; Re William Murray, Op. Sol. Dep. 0. & L., p. 201 ; Re William M. Lloyd, Op. Sol. Dep, C. & L., p. 209 ; Re Willard E. Jule, Op. Sol. Dep. L., p. 261 ; directly overruling the Treiman and Schroeder cases, supra. The Massachusetts Workmen's Compensation Act does not contain the word " accident," but provides that workmen are entitled to com- pensation who receive-" personal injuries," etc. The Massachusetts Industrial Accident Board has considered this question on a number of occasions and Hon. James B. Carroll, the Chairman of the Board, 21 Digitized by Microsoft® 322 In general ; distinction between word " injury " and term " accidental Injury " in a letter to the author (which is used by permission) summed up tho opinion of the Board as follows : " The words ' personal injuries ' in the Massachusetts law, as com- pared with the word ' accident ' in the English law, appear to give the opportunity in Massachusetts for a much broader application in favor of injured employes. " In practice it has worked out that anthrax is included as a per- sonal injury. The insurance companies have paid disability com- pensation for a sarcoma following a traumatism. In a case now pending before a board of arbitration, blindness, caused by the pass- ing of a workman over a producer gas furnace emitting carbon dioxide, carbon monoxide and other dangerous substances which, after gaining entrance to the body through the digestive or respira- tory tracts, are held to have a direct effect upon the optic nerve and to result in optic neuritis followed by blindness (in this case the whole process from the beginning of manifestation of injury to the time of total blindness was less than four months), will probably be held to be a ' personal injury ' in which, using your own wordsj ' there is no accidental injury to the physical structure of the body.^ "We have also had a ease of a man engaged in extinguishing a fire, who by reason of his exposure to dampness contracted pneu- monia resulting in death. It has been held in this case that this was a personal injury within the meaning of the statute, and the insurance companies, following the decision given ex parte, have settled and paid compensation therefor. " Another case has just been settled by an arbitration committee of incapacity from work caused by hypertrophied heart and sec- ondary tuberculosis, following an injury caused by li;fting a heavy burden. His history and examination showed that, while the man had an enlarged heart and incipient tuberculosis before the injury, his disability was accelerated about two years, and the injured man was awarded two years' disability compensation. " In another case, a man seventy-two years of age has been dis- abled since last December from plumbism or lead poisoning. He had been working at the same business for twenty-two years, and last September lost his wife. It was evident that the shock of the loss of his wife, his age, and other physical conditions surrounding the case caused lowered vitality which brought on this attack of acute lead poisoning. The arbitrators will probably allow the man the disability for personal injury under the Act, and the case will be carried to the Supreme Judicial Court for decision. «frN°'c.'c°"s"re^«5i*t'Msr'' ""* '^^ "^ "■ " OE AN " ACCIDENTAL INJURY '* 323 In general ; distinction between word " Injury " and term " accidental injury " " There are a number of other cases in regard to the question of tuberculosis as a personal injury. The settlement of these cases will present the most serious difficulty. In one case, a boy of twenty years old, working at his occupation of outside painting, was thrown a distance of thirty feet to the ground. He had contusion of the hip and scratches of the neck, chest and back. He was incapacitated from labor for three weeks and two days, and was paid therefor medical and hospital bills for two weeks, and one week and two days' disability compensation. He returned to work for six weeks, and was suddenly stricken with hemorrhage of the lung which proved to be secondary tuberculosis well advanced, the process having extended as low as the third rib. The question is raised in this case and in another case, in which death occurred from pneumonia, that the lowering of vitality due to the injury lighted up a dormant lesion which otherwise might not have affected the individual for years, if ever. In consequence, the existing disability from tuberculosis in one case, and of death from pneumonia in the other, covering this special point, is claimed to have arisen out of and is due to the employment. " It is probable, as these cases occur and a broad interpretation of the words ' personal injury ' made, which will grant compensa- tion in some cases, when proved, and refuse it in others, that the insurance companies may ultimately be driven to the necessity of making tests after every injury to find the condition of the injured person's resistance, to determine claims of this character; in other words, if the theoretical physiologic balance is disturbed because of an accident, and an attack of germ disease follows, and this is allowed as a basis for disability compensation, it will necessarily follow that all of the consequences of an injury must be regarded as a just claim for disability under the law. " An argument which will probably be made before the Supreme Court, however, and which has much force, is that the word ' injury ' in our statute means only those injuries or diseases which arise from a particular occurrence or occasion. See Brintons, Limited, v. Turvey, 7 Minton-Senhouse "W. C. C. 1 (anthrax) ; Steel v. Cammell, Laird & Company, 7 Minton-Senhouse W. C. C. 9 (lead poisoning). " Under the circumstances, while it is exceedingly difficult to give a direct and specific answer to your letter, you may perhaps get an idea from the above how the Massachusetts Accident Board is at- tempting to work out the law. None of these decisions, of course, will be of binding effect until they are finally passed upon by the Supreme Judicial Court." The foregoing letter was printed in the Second Edition of this work and is here Q^^^al§iA^^^iQmsm®ot only sums up the law 324 beadeuey's woekmen's compensation law In general ; distinction between word " Injury " and te rm " accidental injury " admirably, but the Supreme Judicial Court of Massachusetts has substantially sustained the interpretation of the Board as expressed in Chairman Carroll's letter. Thus the court has held that the difference in the phraseology between the British Act and the Massachusetts Act cannot be regarded as immaterial or casual. This difference must be treated as the result of deliberate design by the general court, after intelligent comprehension of the limitation expressed by the words of the British Act. The freer and more comprehensive words in the Massachusetts Act must be given their natural construction and what- ever added force may come from the intention, contrast and phrase- ology. The " personal injury by accident " which, by the British Act, is made the requisite for the award of financial relief, is narrower in its scope than the simple " personal injury " of the Massachusetts Act. In re Madden, 111 IST. E. 379 ; 222 Mass. 487. In the last- mentioned case the court quotes from the case of Trim Joint District School Board of Management v. Kelly (1914), A. C. 667, 679, as follows : " For example, if a workman became blind in consequence of an explosion at the factory, that would constitute an injury by accident ; but if in consequence of the nature of his employment his sight was gradually impaired and eventually he became blind, that would be an injury, but not an injury by accident." The Court, in the Mad- den case, further said: "The wide divergence between a simple ' personal injury,' the standard of our Act, and the ' personal injury by accident' of the English and other acts is exemplified further by reference to some of the decisions. * * * j^ ^.^^ event, decisions made as to workmen's compensation" acts which base compensation upon ' personal injury by accident ' instead of upon ' personal injury ' well may be and may be expected to be divergent from our own and compensation be denied under them which would be awarded under ours." The same court had earlier held that optic neuritis induced by in- halation of poisonous coal tar gases which escaped when the workman uncovered holes to observe the fire, was a personal injury. In re Hurle (Hurle v. Plymouth Cordage Co.), 217 Mass. 223 ; 104 N. E. 336; 4 'N. C. C; A. 527; L. E. A. 1916 A, 279. To warrant the granting of compensation under the ISTew Jersey Act it must appear ii^hiMcPWhl^ds^ff^ was caused bv " acci- 325 In general ; distinction between word " injury " and term " accidental injury " dent " arising " out of " and " in the course of " his employment. Bryant v. Fissell 84 N. J. Law 72 ; 86 Atl. 458 ; 3 N. C, C. A. 585. The House of Lords has held that the' word " accident " is to be used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed. Fenton v. Thorley & Co. (1903), A. 0. 443 ; 5 W. 0. 0. 1. In the last-mentioned case the workman had by overexertion ruptured himself in trying to turn the wheel of a machine in the ordinary course of his employment, and it was held by the House of Lords that he had suffered an accident within the meaning of the Act.^ An accident is an unlooked for and untoward event which is not expected or designed. Bryant v. Fissell, 84 1^. J. Law 72 ; 86 Atl. 458 ; 3 K 0. C. A. 585. In relation to an accident insurance policy the United States Su- preme Court has defined the term " accidental " as follows : " The term ' accidental ' was used in the policy in its ordinary, popular sense, as meaning happening by chance ; unexpecteidly, or as not ex- pected. If a result is such as follows from ordinary means, volun- tarily employed, in a not unusual or unexpected way, it cannot be called a result effected by accidental means. But if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces injury, then the injury has resulted through acci- dental means." Mutual Accident Assn. v. Barry, 131 U. S. 100, 121 ; 9 Sup. Ct. 755 ; 33 L. Ed. 60. Under the Connecticut Act it is not necessary that the injury shall be accidental, as the word " accident " does not appear in the Act. Dependents of Amy F. Blachall v. The Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 183. Originally the California Act contained the word accident and it was held that it did not cover lead poisoning. The word was later eliminated by an amendment. The Commission held that the substitu- tion of the word " injury " for " accident " does not transform the 1 Under the British Act the meaning of the word " accident," when applied to ascertain facts has been decided by the House of Lords to be a question of law. Fenton v. Thorley & Co., 19 T. L. R. 684. The question of whether an employe's injury is an accident within the Workmen's Compensation Act is a mixed one of law and fact but when applied to ascertained facts it becomes one of law. Bryant v. FiQf^tm3ib^.mW6&6m^^^- 458; 3 N. C. C. A. 585. 326 Aggravation of pre-existing disease system of compensation for industrial injuries provided for in the Act in a system of sickness insurance. The Act as amended affords compensation for injuries, but not for sickness unless proximately caused by injuries. Coates v. City of Elsinore (1916), 3 Cal. Ind. Ace. Com. 269. An employe while doing heavy lifting felt a sharp pain in the groin, but sustained no blow. Subsequently an abscess developed in the groin. The medical testimony showed that it was only remotely possible that the abscess could have been caused by the exertion with- out any blow. It was held that the evidence was not sufficient to establish that the abscess was proximately caused by the employment and compensation was refused. BanJcin v. James Rankin & Sons (1916), 3 Cal. Ind. Ace. Com. 370. 2. Aggravation of pre-existing disease. Acceleration and aggravation of a pre-existing disease is an injury caused by accident. Willoughby v. Great Western By. Co. (1904), 6 W. C. C. 28. An injury may be caused by an accident although no injury would have been thereby suffered but for the existence of disease which was aggravated by the accident. Lloyd v. Sugg & Co. (1900), 81 L. T. 768 ; 2 W. 0. 0. 5. A workman, while einployed in a colliery, was injured by a stone falling on his knee. The accident occurred on a cold day, and the applicant took over two hours to get to his home, a distance of a mile and a quarter. Chest trouble and pneumonia supervened, and on an application for compensation medi- cal evidence was given that the applicant suffered from bronchitis and chronic asthma and was unable to work. It was held that the test to be applied was not whether the workman's diseased condition was the natural or probable result of the accident, but whether it was the result of the accident in the sense that it was occasioned by the de- bilitated state of the workman immediately after the accident, or whether the accident had not accelerated an existing tendency to disease, or given life to certain latent causes of disease in the work- man's body. Ystradowen Colliery Co. v. Griffiths (1909), 100 L. T. 869; 2B. W. C. C. 357. An employe had an old hernia which had ceased to trouble him, and although he had formerly worn a truss he had discontinued that practice for some tii£fc*'^f'fiftMf/'gsa|Py cask from a shelf he 327 Aggravation of pre-existing disease strained himself again in the same place and a new hernia was formed. It was held that this was an accidental injury, even though there had been a gradual weakening at the particular spot where the injury occurred as this particular injury was due to a new accident. Brown v. Kemp (1913), 6 B. W. C. C. Y25, A laborer having suffered an accident, an operation was performed from which it was discovered that he had appendicitis of long stand- ing, but he also had a perforation of the bowels which the physicians testified was, caused by the accident and that the injury accelerated the man's death. It was held that this was an injury by accident and that the man's dependents were entitled to compensation. Woods v. Thomas ^Yilson, Sons & Co. (1915), 8 B. W. 0. C. 288; (House of Lords) ; rev'g 6 B. W. C. 0. 750. Where it appeared that latent tuberculosis had been accelerated by an injury, causing the employe's death, it was held that this was an injury arising out of the employment. Beare v. Garrod (1915), 8 B. W. C. C. 474. Where a workman was suffering from an aneurism of the aorta and it was found that the work which he was doing was sufficient strain to accelerate his death by causing the aneurism to burst prematurely, it was held that this was an accidental injury. McArdle v. Swan- sea Harbour Trust (1915), 8 B. W. C. C. 489 ; UN. C. C. A. 175. As a result of an accident in 1902, a rivetter had the index finger of his right hand amputated. He returned to work with his old em- ployers, not as a rivetter, the rivetter's hammer being too heavy for him, but as a caulker, at the same wages. He worked at this for seven years without difficulty, using a light hammer. In ISTovember, 1910, a pneumatic hammer was adopted for caulking, and after work- ing with this for a few days his hand became inflamed and he had to stop work. The direct cause of the inflammation was a piece of dead or diseased bone which was discovered in 1910, but this diseased bone was some distance from the point of amputation, and as the court found, quite unconnected with the effects of the accident. It was held that there was no evidence to support a finding that the original injury had anything to do with the disability which later developed. Noden v. Galloways (1911), 5 B. W. C. 0. 7. A workman lifting a heavy weight involving considerable exer- tion felt a sharp V^-^t^^Uy'^^JlSF®"^ ^''^ ^' ""'' ^'""^ 328 beadbuey's woekmen's compensation i,aw Aggravation of pre-existing disease suffering from advanced heart disease wMcli was bound to manifest itself sooner or later and might do so without any exercise on his part. It was held that the workman had not proved that he had sus- tained an accident arising out of his employment, or that the work which he had done had accelerated the progress of the disease. Spence V. W. Bmrd&Vo. (1912), 49 Sc. L. E. 278 ; 5 B. W. C. 0. 542. A workman with degenerate arteries, whose work was very heavy, fell out of a railway truck on his head. He resumed work in three weeks, but shortly afterward became incapacitated again and was found to be suffering from aneurism. The County Court judge found that the accident had accelerated the aneurism and granted compensation. The Court of Appeal reversed the decision and sent the case back for a rehearing, on the ground that there was no evi- dence that the aneurism had been in existence at the time of the acci- dent. Taylor v. Bolchow, Vaughan & Co. (1911), 5 B. W. C. C. 130. A workman, suffering from heart disease, had to leave work owing to the weakness of his heart. He alleged that he had strained his heart in turning a heavy valve. Compensation was refused on the ground that there was no evidence to support a finding that the work- man had suffered an accident. Beaumont v. Underground Electric Railways Co. of London (1912), 5 B. W. C. C. 247. Where a workman who suffered from an old hernia, suddenly felt a severe pain while at work in a mine and the hernia became strangu- lated and he died as a result, it was held in the absence of evidence that anything which he was doing was likely to cause him a strain, that there was nothing on which the court could found a claim for compensation. Perry v. Ocean Coal Co. (1912), 5 B. W. C. C. 421. Where an employe had suffered from a hernia and there was a recurrence' of this hernia, but the employe stated that there was no accident that caused his injury, and he was unable to give anv specific date when the same was received, it was held that compensa- tion must be denied. Be C. R. Ensey, Op. Sol. Dep. C. & L., p. 592. A coal miner suffering from Bright's disease told a fellow employe that he had hurt himself, and the fellow workman saw marks of an injury. The miner went home and died in a short time from uraemia, as a post mortem examination proved. It was held that Digitized by Microsoft® 329 Aggravation of pre-existing disease there was not sufficient evidence that the man had met with an acci- dent. Ashley v. Lilleshall Co. (1911), 5 B. W. C. C. 85. A miner lost the sight of an eye by accident and received full com- pensation. He recovered and was able to earn full wages as before the accident. On application by the employers to terminate the compensation payments it was admitted that the workman had in- cipient cataract in the other eye which would ultimately totally in- capacitate him, but that it was in no way due to the accident. It was held that the payments should be terminated. Hargreave v. Haugh- head Coal Co. (1912), 5 B. W. C. C. 445. An injury by a fall which lights up or aggravates a previous ail- ment causing incapacity was held to be an injury within the Federal Act. Be Everett Springer, Op. Sol. Dep. L., p. 267; Be Bichard Halloran, Op. Sol. Dep. L., p. 756. A laborer had badly deformed feet, which were mechanically in- efficient and by reason thereof a slight injury caused incapacity. The examining physician certified that " although the injury dam- aged the foot temporarily, it was the old condition which interfered \yith the usual recovery and is responsible for the present state and the necessity of wearing a brace. * * * Of course, the injury precipitated the pain and lameness, and without some mechanical aid the foot was not able to properly functionate." It was held under such circumstances that the injury aggravated a previous ailment and that the workman was entitled to compensation. Be J. S. K. Wite, Op. Sol. Dep. C. & L., p. 183. The claimant was hit by a steel plate on the right lower quarter of the abdomen. The medical officer reported that the man had symptoms of appendicitis ; that it was improbable that the appendicitis was the result of the injury, although the injury may have aggra- vated the already diseased appendix. It was held that the injury aggravated the old disease and compensation was awarded. Re August PoU, Op. Sol. Dep. C. & L., p. 185. The claimant stumbled and fell. He was immediately thereafter incapacitated oh account of a fractured rib, with considerable bruises and contusions of the back. After compensation had been awarded for six months the man complained of pain over the lower ribs and over the heart, with shortness of breath. The attending physician certified that " it woiO^b'eaaffijrdito'dWDSfaQf® definitely how much the 330 beadbuey's woekmen's compensation law Aggravation of pre-existing disease symptoms due to organic heart disease had been aggravated by the fall which he sustained. He is a heavy man, and the concussion must have been considerable. He will never be in condition to per- form any hard labor. Denies rheumatism as a cause for heart dis- ease." It was held that as the man apparently had organic heart disease and that it was probable that this condition was aggravated by the severe fall which the claimant sustained, that he was entitled to further compensation. Be William Bunce, Op. Sol. Dep. C. & L., p. 186. Aggravation of an old hernia is a compensable injury. Be Augustin Miro, Op. Sol. Dep. C. & L., p. 594 ; s. c. p. 595. An employe received an injury which aggravated an existing acute nephritis causing incapacity, the injury itself not being sufficient to produce incapacity. It was held that compensation should be awarded. Be H. Hickman, Op. Sol. Dep. L., p. 751. Applicant slipped and sprained his back and aggravated the con- dition of direct inguinal hernia from which he had suffered for some nine years. He reported the injury to his back and was treated ac- cordingly. On a subsequent visit to the physician he referred to the hernia and later was operated on successfully. It was held that employes take with them into their employment any physical in- firmities which they may possess at the time of entering such employ- ment, and that applicant was entitled to compensation for the full period of disability. Yenne v. Standard Oil Co., Cal. Ind. Ace. Bd., July 28,4913, Disability may properly be established as due to a pre-existing •ondition or ailment if the injury is slight and the condition was known to have existed at the time, but in order to charge a disability to a pre-existing condition such pre-existing condition must be estab- lished to a reasonable certainty. Snyder v. Pacific Tent & Awning Co., 3 Cal. Ind. Ace. Com. 1. It is therefore no defense to a claim for compensation that the injuries would not have been as great except for the effect of prior injury received before entering the em- ployment of the defendant. Bedini v. Northwestern Pacific Railroad Co., 1 Cal. Ind. Ace. Com. (Part II), 312. Where it appeared that peritonitis was caused by the presence of a foreign body in the abdomen which had been there for years without causing trouble, l\Qi0igMMaM.i&m§S<^heTdrom was precipitated 331 Aggravation of pre-existing disease by a blow upon or strain to the abdomen, caused by an injury received in *the course of the employment and that there was no other factor which would have caused the inflammation at that time, it was held that the blow or s.train was the proximate cause of the peritonitis and that the workman was entitled to compensation for the resulting dis- ability. Henne v. J. H. Hjul, 1 Cal. Ind. Ace. Com. (Part II), 133. Where a pre-existing aneurism of the aorta was caused to burst by a severe strain in doing very heavy lifting, it was held that this was an accidental injury. Draper v. Anderson Lore and Company, 1 Cal. Ind. Ace. Com. (Part II), 132. An employe who had an extremely high blood pressure was per- forming extraordinarily heavy muscular work when some oil splashed in his eye. The eye became blurred and finally nearly sightless, and upon closer examination it vras found that the employe had suffered a severe hemorrhage of the vitreous portion of the eye. The physician determined that either the lifting or the irritation in the employe's eye could have caused the injury, especially in view of the very high blood pressure. It was held that the employer accepted the employe in the condition in which he was and that such an injury, although in part due to the high blood pressure, was the proper basis for a com- pensation claim. Oumey v. Los Angeles Soap Co., 1 Cal. Ind. Aec. Com. (Part II), 163. Where a grocer's clerK, suffering from a floating kidney, undertook to lift a heavy sack of coffee from the floor to the shelf, which was very high, and which lifting resulted in a fracture of the ureter, it was held that this was an accidental injury arising out of the employ- ment. Walters v. Brune, 2 Cal. Ind. Ace. Com. 292. The fact that the bones of a workman were more than usually soft is insufficient as a defense to a compensation claim for the breaking of a leg by a fall, such defense being based on the contention that the workman was suffering from a constitutional disease to such an extent that the injury which he received would not have caused the disability had it not been for such disease. Block v. Mutual Biscuit Co., 2 Cal. Ind. Ace. Com. 330. Where it appeared clearly that an employe's condition prior to an accident was such that an operation for hydrocele would be beneficial and was contemplated hj Mm, the fact that he had a fall from a ladder making such ^oPW]«?>'iMifi^gfl^ necessary was held not 332 Aggravation of pre-existing disease sufficient to place the burden of responsibility on the industry for the dis'ability. Baine v. Libhy, McNeil & Libhy, 2 Cal. Ind. Ace. Com. 449. Where disability results from an abnormal physical condition, compensation is not payable merely because the disability develops while the employe is at work, without any accidental injury. Nessel- road V. Castle Bros., 2 Cal. Ind. Ace. Com. 521. Where an employe having a small cancer in the stomach of a char- acter such as not to cause death for many years, received a heavy blow which inflamed the cancer increasing its size to such an extent as to obstruct the ducts of the gall bladder and liver and death fol- lowed one month after the injury, it was held that the accidental blow was the proximate cause of the death. Rose v. City of Los Angeles, 2 Cal. Ind. Ace. Com. 551. Where an employe had been for many years crippled from a dis- ease of the hip joint and disability had not set in for four months after the accident, but it appeared that for nine years immediately prior to the accident he had been well and vigorous and the accident was such as might in itself have caused the disability, it was held that the disability was caused by an accident. McKee v. Southern Elec- trical Co., 2 Cal. Ind. Ace. Com. 802. Where an industrial accident caused a tubercular condition which had long been quiescent to spring into renewed activity by reason of the shock caused by the accident, it was held that the subsequent ill- ness due to the renewed tubercular infection was proximately caused by the accident. Maurmann v. Chirhart & Nystedt, 1 Cal. Ind. Ace. Com. (Part II), 499. Where a bruise to the leg resulted in an ulcer and the disability was greatly extended by reason of a condition of varicose veins, but it appeared that the varicose condition did not in any way contribute to the formation of the ulcer, it was held that compensation should be allowed for the full period of disability. Hojfman v. Max Kom, 2 Cal. Ind. Ace. Com. 183. Where an employe had previously been suffering from tuberculosis of the lungs, which tubercular condition had become quiescent, and upon the happening of the accident, causing a fracture of the rib such tubercular condition was lighted up, it was held that compensa- tion was payable foiCiM«5a§feaydfl^HMl$I^S^ie to the recurrence of the WHAT IS AN " I^JJUEY " OE AN " ACCIDENTAL INJUEY " 333 Aggravation of pre-existing disease tuberculosis. Birh v. Matson Navigation Co., 2 Cal. Ind. Ace. Com. 199. Where following upon an accidental wrench to the back an employe developed osteoarthritis, of which no symptoms had theretofore ap- peared, although investigation showed that a chronic disease of the spine had begun, but disability had been precipitated by the accident and there was no indication of chronic infectious disease to which the osteoarthritis might be attributable, it was held that the employer was liable for compensation on the principle that he accepted his employe in the condition in which the latter was at the time of the employment. Turner v. City of Santa Cruz, 2 Cal. Ind. Ace. Com. 917. An employe in lifting a stone weighing 250 pounds died from peritonitis due to performation of a chronic duodenal ulcer and it was held that the injury arose out of the employment. White v. County of Los Angeles, 3 Cal. Ind. Ace. Com. 83. Where an employe suffered an injury to his left leg and after the cure of such injury his disability was continued by reason of a former injury to his right leg, which was aggravated by the shock and con- finement incidental to the injury to the left leg, it was held that the entire disability was proximately caused by the injury to the left leg. Johnson v. Fogarty (1916), 3 Cal. Ind. Ace. Com. 300. Latent tuberculosis lighted up by a blow on the chest is an indusr trial injury under the California Act. Huffman v. Escondido Bach- dale Co. (1916), 3 Cal. Ind. Ace. Com. 207. An employe had been suffering from a hernia for two years and was wearing a truss. He slipped in the course of his employment and aggravated the hernia so that an operation became necessary. It was held that this was an aggravation of a pre-existing hernia and was not such an injury as permitted an award of compensation under the California Act. Dowell v. Coronado Beach Co. (1916), 3 Cal. Ind. Ace. Com. 238. In the last-mentioned case the Commission said : " A principle of very general application to cases of injury under the Workmen's Compensation, Insurance and Safety Act is that the employer takes the employe subject to the condition he is in when he enters or continues in the employment. But, in the interests of justice, this Commission has found occasions for limiting the uni- versal application of tld)fc)lffili©(i*5en*ftk)ki#®ices, such as injury to the 334 beadbury's wobkmen's compensation laW Aggravation of pre-existing disease spinal column which but for a pre-existing condition of osteoarthritis would have been trivial and where a pre-existing tubercular condition of fractured bone prevented the uniting of the fractured parts. We think also that justice requires the making of the exception that has heretofore been made by the Commission in regard to injury to pre- existing hernia. It is only by a very liberal construction of the terms of the Act that hernias are ordinarily regarded as compensable even when the evidence shows that they did not exist prior to the injury or accident complained of." Where an employe had a piece of steel in his eye as the result of an accident five years previous, but it had caused him no trouble, until the dropping of creosote in the same eye caused an inflammation which would normally have disappeared but for the presence of the steel, it was held that the creosote was the proximate cause of the injury. Shields v. Miller, 2 Cal. Ind. Ace. Com. 957. Although the employe was in a seriously diseased condition prior to an accident, but the condition was aggravated by an injury and he died while undergoing an operation following the administration of ether, it was held that the death was proximately due to the injury. Bozzo v. Pacific Coast Olass Worhs (1916), 3 Cal. Ind. Ace. Com. 247. A night watchman sixty-seven years of age suffering from a pre- existing disease was injured by an assault by highwaymen which so aggravated his pre-existing condition as to cause disability and it was held that the injury was one for which compensation could be awarded. Frohn v. Bayle, La Coste & Co. (1916), 3 Cal. Ind. Ace. Com. 274. An employe's arm was broken while lifting a weight, which was usual and in the course of his routine work. There was no slip, fall or unusual strain on the employe's part. The medical examination disclosed a pathological condition rendering the bones susceptible to spontaneous fracture during any normal bodily movement. It was held that the accident did not arise oiit of the employment. Harding V. Los Angeles Can Co. (1916), 3 Cal. Ind. Ace. Com. 371. Where an employe having been previously crippled by a breaking of the hip bone, five years before, slipped down one step of a stairway and an operation clearly showed that the former fracture had mended only by a fibrous uiO^f/zeM^ Magrst&^ilfeparated, it was held that Aggravation of pre-existing disease the second injury, if any, was but a continuation of the former injury sustained before the employe entered the employment and compensa- tion was refused. Tarr v. Stockton State Hospital, 2 Cal, Ind. Ace. Com. 591. Where a saleswoman developed a fibroid tumor the pain from which was suffered somewhat sooner than it naturally would have been suffered by reason of her straining to take down heavy clothing, but which pain would have occurred sooner or later, without such straining, it was held that this was not an injury arising out of the employment, as the industry could not be charged with such a dis- ability and compensation was refused. Coolc v. Employers' Liability Assurance Corp., 1 Cal. Ind. Ace. Com. (Part II), 420. An aggravation of a pre-existing hernia by strain is such an acci- dental injury as entitles the workman to compensation under the Connecticut Act even though it is impossible to tell the exact time when the strain occurred. Zahoroduy v. Winchester Repeating Arms Co., Conn. Comp. Com., Third Dist., Bebes, Com'r, March 6, 1917 (unreported) ; Coller v. Donohue, 1 Conn. Comp. Dec. 654; Searles V. The Connecticut Co., 1 Conn. Comp. Dec. 97 ; aff'd by Superior Court, Id. 98 ; AquiUmo v. Lamho, 1 Conn. Comp. Dec. 145. In the last-mentioned case Commissioner Williams discusses exhaustively the question of allowing compensation in hernia cases and points out the distinction between " proximate cause " and " causal connection,'' in showing that while a man who has a pre-existing hernia and then receives an injury which aggravates the hernia, it cannot always be said that the proximate cause of the injury was the accident ; it can be said that there was a causal connection between the accident and the injury and th'at under compensation laws this is a good ground for a compensation award. The Commissioner summed up the matter as follows: " In the case at bar I have reached the conclusion that Aquilano's condition is the result of a disease, his employment prior to Novem- ber 19th, and his injury of that date all taken together, and that the employment and the injury had a material effect in producing the condition." Where a claimant suffering from Pott's disease of the spine was injured by lifting a heavy barrel, resulting in complete paralysis of ' the lower' extremities5Ci/&/««TOdlb}dMfe»t.4b»©vas an injury arisng out 336 ' beadbuey's woekmen's compensation law Aggravation of pre-existing disease of the employment. Lynch v. OreMt Atlantic & Pacific Tea Co., 1 Conn. Comp. Dec. 163. Assuming that disability was caused by an aggravation of a rheu- matic condition through a strain, it was held that this was such an injury as entitled the workman to compensation. Auguzzi v. Blaheslee, Conn. Comp. Com., Third Dist, June 28, 1916 (un- reported). Where disability was directly traceable to the pre-exist- enee of rheumatism, the continuous use of muscles and the getting wet in a storm while the employe was on his way to work, it was held that the condition of the claimant was not due to an injury arising out of the employment. Petersen v. The Sperry & Barnes Co., 1 Conn. Comp. Dec. 370. Where an employe suffering from a tubercular condition was in- jured by being burned on the hand with acid, it was held, on the testi- mony of a throat specialist, that a condition of tubercular laryngitis was not due to the burn on the hand and compensation was refused. UnodesTcia v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 32. The mere fact that an employe may have a predisposition to hernia and even a slight or latent hernia is not enough to prevent an award of compensation where a serious hernia is brought on from an acci- dent in the course of the employment. Hasenstab v. Chicago House Wreching Co., 1 Bull. 111. Ind. Bd., 62. Acceleration of previously existing heart disease to a mortal end sooner than otherwise it would have come is an injury arising out of the employment. Brightman v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 765. Where an employe suffering from heart disease was injured by a heavy wheel falling upon him, from which injury he died, and the medical testimony was that the shock of the fall of the wheel might have caused death, it was held that the accident arose out of the employment. Welch v. Employers' Lia- bility Assur. Corp., 1 Mass. Ind. Ace. Bd. 173. Where a carpenter was incapacitated by an injury received in lifting a stove, and it appeared that he had had heart trouble from which he would have been entirely incapacitated from six months to two years in the future compensation was awarded Clements v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 273. An employe in endeavoring to remove emery dust which had lodged in his eye lighted iQ/gtftz«|^|B&*^($sfiS@ioma which had been in Aggravation of pre-existing disease existence in a dormant state for some time, but unknown to the em- ploye, resulting in disability for a considerable period. It was held that this was an injury arising out of the employment. Fleming v. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Aec. Bd. 411, Where by reason of an accidental injury a condition of incipient diabetes was aggravated causing disability, it was held that this was a personal injury arising out of the employment. Oacuzzi v. Em- ployers' Liability Assur. Corp., 2 Mass. Ind. Aec. Bd. 626. The mere fact that a leg which was broken through an accidental injury was in a weakened condition is not ground for refusing com- pensation for the injury caused by the break. Kesler v. Mass. Em- ployes Ins. Ass'n, 2 Mass. Ind. Acc.Bd. 168. Where an aneurism from which an employe was suffering was caused to burst by excessive strain from overwork, it was held that this is such an injury as entitled the employe to compensation. Orove V. Michigan Paper Co., 184 Mich. 449 ; 151 N. W. 554. An aged night watchman had been afflicted with heart disease and on discovering a fire and in giving warning and attempting to extin- guish it he became exhausted and died from heart failure, and it was held that Ms death was due to an accidental injury. Schroetlee V. Jackson Church Co. (1916), Mich. ; 160 N. W. 383. Conceding that a deceased workman was suffering from internal cancer, where it was found that there was a rupture of the cancer while he was pushing a post through a furrowing machine, by press- ing his abdomen forcibly against the end of the post, it was held that this was an accidental injury. Voorhees v. Smith Schoonmdker Co., 86 ]Sr. J. Law 500 ; 92 Atl. 280 ; 7 IST. C. C. A. 646. In the last- mentioned case the Court said : "Even if deceased was suffering from internal cancer, it was quite within th^ province of the court to find that the proximate cause of death was the unusual and forcible pressure on parts weakened by disease, which but for the unusual strain would have held out for a considerable period." The court cited and followed the case of Jones v. Public Service Railway Co., 92 Atl. 397. It seems that if latent tuberculosis germs which are in the system are brought into activity by reason of the decreased power of resistance due to an accidental fl^fifig^cfth^lMferieas/i&Sch an injury as may be 22 338 beadbuey's woeikmen's compensation' law Aggravation of pre-existing disease made the basis of a claim for compensation. White v. Lauter' Com- pany (Essex Common Pleas, 1914), 37 N. J. Law J. 175. In the last-mentioned case compensation Was denied on the ground that it was not proved to the satisfaction of the court that the injury to the hand which the employe received caused the tuberculosis germs to become active. Where a workman while lifting a heavy iron plate suddenly fell over and died shortly afterwards, and it was found that he was suf- fering from some heart trouble which had been accelerated by the extra strain, it was held that this was in injury arising out of and in the course of his employment. Winter v. Atkinson Frizelle Co., (Hudson Common Pleas, 1914), 37 IST. J. Law J. 195 ; 11 IST. C. C. A. 180. In the last-mentioned case the workman had received an injury some time before the one which caused his death, and it was held that this prior injury should be disregarded, because if it was assumed that the workman iad heart trouble at the time of the second injury it did not matter what the cause of the heart trouble was so long as the second injury accelerated it and caused his death. The court also reviewed a large number of English cases on the subject. Where a workman had a hernia and by reason of an injury the hernia was aggravated and he became disabled, it was held that this was such an injury as was contemplated by the Act. Kanglin v. Swift & Co. (Hudson Common Pleas, 1914), 37 'S. J. Law J. 81. In the last-mentioned case the court followed the English case of Clover, Clayton & Co. v. Hughes (1910), A. C. 242 ; 3 B. W. C. C. 275. Where an employe fell causing an injury to the abdomen and bladder, which was followed by septicemia, causing the employe's death, it was held that this was an accidental injury arising out of the employment although it was found that the fatal restilt would not have occurred save for the antecedent condition of the employe. Itazarrisi v. Ward & Tully, 170 App. Div. 868 ; 156 Supp. 964. An employe suffering from cardiac lesion aggravated the lesion by bending heavy bars, causing sudden dilatation of the heart and resulting in death, and it was held that this was an accidental injury. Uhl V. Guarantee Construction Co. (1916), 174 App. Div. 571 ; 161 Supp. 659. An employe sxiSeTlSi^tiiMcbiAM&'&S^Wosis and also mvocaiditis Aggravation of pre-existing disease was assisting in unloading a carload of lath which came in bundles weighing ninety pounds each. While performing his work he was suddenly taken with bleeding of the nose and after stanching the blood attempted to resume his work but found himself unable to do so for the remainder of the day. Subsequently he resumed work for a time and then gave up entirely. It was held that this was an acci- dental injury. Hachford v. Yeeder & Brown (1916), 8 E". Y. St. Dep. Kep. 472. An employe suffering from heart disease received a blow in the abdomen from which he died. The medical testimony was that the blow was a contributing cause of death, the primary cause of which was the heart disease, and it was held that this was an accidental injury. Cook v. New York Central and Hudson River B. Co. (1916), 8 N". Y. St. Dep. Eep. 469. At the time of an injury an employe was suffering from diabetes and kidney trouble. An injury to his foot caused diabetic gangrene which resulted in his death and an award was made. McNamara v. New York Consolidated B. Co. (1916), 8 N. Y. St. Dep. Eep. 423. An employe fell on a stairway fracturing a rib and the injury be- came complicated with a pre-existing pleurisy causing disability for a considerable period and compensation was awarded. Burgess v. Jewett Refrigerator Co. (1916), 8 N. Y. St. Dep. Eep. 411. An inspector on a street railway company was injured by being crushed between two cars. By reason of the injury a pre-existing choreic condition being aggravated to such an extent that he suffered from neurosis which resulted in his death about six weeks later and compensation was awarded. Gilchrist v. Brooklyn Heights R. Co. (1916), 8 ]Sr. Y. St. Dep. Eep. 409. An employe suffering from a sarcoma of the bone of the right leg, above the knee, was injured by a piece of coal falling from a wagon and hitting him on the leg. The blow from the coal aggravated the condition which grew steadily worse so it was necessary to amputate the leg. It was held that compensation should be awarded. Prokopiak v. Buffalo Oas. Co. (1916), 7 N. Y. St. Dep. Eep. 390. An employe had Bright's disease in a latent condition which was aggravated by a traumatic injury thereby causing his death and com- pensation was awarded. Griffin v. Roherson & Son (1916), 9 N. Y. St. Dep. Eep. 303. Digitized by Microsoft® An employe suffering from diabetes fell into a vat of hot water and 340 beadbuey's woekmen's compensation law Aggravation of pre-existing disease was severely scalded. The diabetes was made acute by the injury, leading to the death of the employe, and compensation was awarded. Sampson v. O'Dell & Eddy Co. (1916), 9 N. Y, St. Dep. Kep. 272. An employe delivering milk slipped on the pavement while han- dling a thirty-quart can of milk and the accident resulted in an old hernia becoming strangulated. An operation was performed, but peritonitis set in and he died about a month later. It was held that the injury -arose out of the egiployment. Gartner v. New York Dairy Produce Co. (1916), 9 IST. Y. St. Dep. Eep. 279. Where an employe had an enlarged heart, hardened arteries and an aneurism of the ascending aorta, and was struck on the left side in the region of the heart, which disabled him so that it was not possi- ble for him to continue work for the day and he was unable again to resume work before his death, which occurred sixteen days after the injury, it was held that the injury was the cause of the death. In re McAuliffe, 1 Bull. Ohio Ind. Com. 144. A school principal was supervising test exercises on the school grounds, during school hours, for the purpose of selecting a basketball team, as he was required to do, and was hit in the head with a basket- ball. He died a short time later. It appeared that the deceased was suffering from an advanced stage of arterio sclerosis at the time of the injury. The blow ruptured one of the blood vessels of the head, which was the immediate cause of his death. It was found that he probably would not have died for several years had it not been for the blow. It was held that this was such an injury as formed the basis of a claim for compensation. City of Milwaukee v. Indus- trial Commission, 160 Wis. 238 ; 151 N. W. 247. An employe was injured by an explosion of gas and shortly there^ after developed miliary tuberculosis from which he died. He ap- peared to be in good health prior to the injury. The medical testi- mony was that if the infection existed in a latent condition at the time of the accident that it might have been kindled into an active con- dition by the injury by reason of the lowering of the employe's vitality, thus making him more susceptible to the infection. It was held that the finding of the Industrial Commission that the employe's death was due to the injury had evidence to support it and the finding was affirmed. Heileman Brewing Co. v. Schultz, 161 Wis. 46; 152 W W 446 IN . w . tto. Digitized by Microsoft® OE A:^ " ACCIDEIfTAL INJURY " 341 Aggravation of disability by illness or other contributing cause 3. Aggravation of disability by illness or other contributing cause.^ Where the accidental injury causes disability the injured employe is entitled to compensation even though the disability 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 com- pensation terminates, although the injured person may be still dis- abled by the illness or some other cause wholly unrelated to the acci- dent. Mack V. Pacific Telephone & Telegraph Co., 1 Cal. Ind. Ace, Bd. (Part I), 44. A workman tripped over a piece of iron plate and sustained a fall in the plant of the respond«nt. Disability followed the injury. The arbitration committee held that the injury sustained was responsible for a portion of the disability and awarded twelve weeks' compensa- tion. There was some evidence that the ankle in question had given applicant some trouble prior to the date of the alleged accidental in- jury, and that he had been disabled through said affliction for some time in the spring of 1912. Considerable expert testimony was introduced to prove that the condition of the applicant's ankle was due to tubercular infection. It was held that the claim of the appli- cant that the ankle was injured by the fall over the iron plate was sustained by a fair preponderance of the evidence. Also that the claim of the employe that the disability which still continued was due largely to a tubercular condition of said ankle was sustained by a fair preponderance of the evidence. The Board therefore reached the opinion that the injury sustained by the applicant while in the employ of the respondent was responsible for a portion of the disability, and that the period of twelve weeks allowed by the committee on arbitra- tion was reasonable under the circumstances. Sharf v. Packard Motor Co., Mich. Ind. Ace. Bd., April, 1913. A workman to whom compensation had been paid for some time, for an injury to Ms knee, was still suffering from the effects of the injury when it was found that he was also suffering from heart disease, and would be unable to work by reason of the heart disease, even though he was not suffering from the effect of the accident. It was held that he was entitled to compensation by reason of the accidental injury in 1 See next succeedingQpgJftgeat'fey Microsoft® 342 Reducing compensation payments spitp of the disability caused by tbe heart disease. Harwood v. Wyhen Colliery Co. (1913), 6 B. W. C. C. 225. A subsequent illness caused by overeating, indigestion and un- wonted inactivity following injury cannot be connected with such injury by the law of cause and effect and compensation cannot be awarded for disability resulting therefrom. Simpson v. Paraffine Paint Co. and Employers' Liability Assurance Co., 1 Cal. Ind. Ace. Com. (Part II), 76. A condition of osteo-arthritis found to be in existence for a time after an accident and to be complicating the results of the injury was held not to prevent such disability of the injured employe from being proximately caused by the accident. Carmichael v. Hogrefe, 2 Cal. Ind. Ace. Com. 725. Where serious injury resulted from a slight scratch due to septic infection and the workman who suffered the injury was a Greek, who did not understand English, and it was doubtful whether the in- structions issued by the employer were understood by sucih employe in relation to first aid, and such employe allowed the injury to go without attention for some time, until the septic condition developed, it was held that under such circumstances the neglect of the employe to secure proper attention was not sufficient to warrant refusing com- pensation. Philp v. International Silver Co., 1 Conn. Comp. Dec. 448. Disability payments to an employe cannot be discontinued because the prolongation of incapacity to work is due to pre-existing disease so long as the incapacity results from injury in employment. Hills V. Oval Wood Dish Co. (1916), Mich. ; 158 IST. W. 214. 4. Reducing compensation payments when an occupational injury accelerates or aggravates a pre-existing subnormal physical condition, or when the period of disability is prolonged by a disease subsequently contracted or by other subsequently intervening cause. This subject is a variation merely of those discussed in the two preceding subdivisions. All three are elements of the larger question of proximate cause. In actions for personal injuries caused by negligence, other than workmen's compensa1g9^Y^§^yy-g,^g5^,^^established doctrine that 343 Reducing compensation payments where the injury aggravates or accelerates a previously existing sub- normal physical condition, or the injury caused by the accident is aggravated by a suibsequently intervening cause, not related to tlie accident of which complaint is made, that this fact may be considered in determining the measure of damages, but it is not a complete de^ fense. McCahill v. N. Y. Transportation Co., 201 N. Y. 221 ; 94 N. E. 616 ; 48 L. K. A. (N. S.). 131 ; Louisville & N. R. Co. v. Jones, 83 Ala. 316 ; 3 So. 902 ; 9 Am. ISTeg. Cas. 5 ; Montgomery & E. B. Co. v. Mallette, 92 Ala. 209 ; 9 So. 363 ; Driess v. Frederick, 73 Tex. 460 ; 11 S. W. 493 ; Wheeler v. Milner, 137 Wis. 26 ; 118 IST. W. 187 ; City of Moultrie v. Coolc, 11 Ga. App. 649 ; 75 S. E. 991 ; 8. P. <& W. By. Co. V. Stewart, 71 Ga. 446; Watson v. Binderhnect, 82 Minn. 235; 84 E". W. 798; Boclc Island v. StorTcey, 189 111. 515; 59 N. E. 971; Pomeroy v. Boston & A. B. Co., 102 Me. 497 ; 67 Atl. 561 ; Chicago, B. I. & G. B. Co. V. Groner, 51 Tex. Civ. App. 65 ; 111 S. W. 667; MeeUns v. Norfolk & 8. B. Co., 134 K C. 217 ; 46 S. E. 493. This doctrine was applied in death cases as well as in those in which disability only was the result of the accident. This distinction between oases in which a pre-existing condition has been aggravated by an accidental injury and where the injury has been aggravated by a subsequently intervening cause not con- nected with the injury, is illustrated in two compensation cases in Michigan. Bamlow v. Moon Lake Ice Co. (1916), Mich, ; 158 IST. W. 1027; 1!^. C. C. A. ; McCoy v. Michigan Screw Co., 180 Mich. 454; 147 N. W. 572 ; IST. C. C. A. In the Bamlow case the employe suffered a fracture of the leg and two days later suffered an attack of delirium tremens from which he died and compensation was awarded to his dependents. In the McCoy case the employe suffered an injury to eye and communicated gonorrhoeal germs to the eye by rubbing it, as a result of which he lost the sight of the eye, and compensation was refused. In other words, the doctrine of proximate cause has been applied to compensation cases, but with some limitations. Thus under com- pensation acts it is doubtful whether in a death ease there can be a reduction of the compensation if the injury received in the course of the employment had any connection with the death, irrespective of whether the injury aggravated a pre-existing subnormal physical condition or the resfl%M^&*jnfllfeFo5{^@ggravated by subsequently 344 beadbuky's -workmen's compensatiojst law Eeducing compensation payments intervening causes not connected with the injury. This prior con- dition or subsequent cause would have to be sufficient in itself to have caused the death irrespective of the injury, and then compensation would be refused entirely. A close case on this point was discussed by the English Court of Appeal in Withers v. London, Brighton & 8. C. Ry. (1916), 32 Times L. E. 685 ; B. W. C. C. ; where an engineer sustained an injury to his thumb which took a long time to heal. He suffered from depression and neurasthenia and finally committed suicide. There was no physiological effect on the brain from the injury. The employe had never been insane prior to the injury. As the court below had found as a fact that the insanity was not caused by the injury the appellate court affirmed a judgment denying compensation. In discussing the question of proximate cause in relation to com- pensation cases it has been said: " The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace the resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery. In passing upon this question, an humanitarian emotion ought not to take the place of sound judg- ment in the weighing of evidence. The direct connection between the personal injury as a result and the employment as its proximate cause must be proved by facts before the right to compensation springs into being. A high degree of discrimination must be exer- cised to determine whether the real cause of an injury is disease or the hazard of the employment. A disease which under any rational work is likely to progress so as finally to disable the employe does not become a 'personal injury' under the Act merely because it reaches the point of disablement while work for a subscriber is being pursued. It is only when there is a direct causal connection between the exertion of the employment and the injury that an award of compensation can be made. The substantial question is whether the disease condition was the cause or whether the employment was a proximate contributing cause. In the former case no award can be made; in the latter, it ought to be made." In re Madden 111 N. E. 379 ; 223 Mass. 487. Where disability from a fractured bone is prolonged by another injury or from some cause which is not the only or proximate result of the original injurgA^gC^jJ^cjjjjji^^^^gpission is without juris- 345 Reducing compensation payments diction to grant compensation for the prolonged disability. Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319 ; 153 Pac. 24. In the last-mentioned case, an employe suffered a broken arm while cranking an automobile. The bone was set and it knitted properly, but sub- sequently, from some cause unexplained by the employe, the injury was aggravated so that it became necessary to break and reset the bone, thereby considerably increasing the period of disability. It was held that in the absence of evidence showing that the second in- jury was the proximate and only result of the first one, without any independent intervening cause, that compensation could be awarded only during the period of disability caused by the first injury. Where an employe was suffering from a tubercular condition which prolonged his period of disability, it was held that this was one of the exceptional cases where compensation would be awarded only for the period which it could be determined a man in normal condition of health would have suffered from injury received and- not for the in- creased period of disability due to the tubercular condition. Van Dalsem v. D. Di Fiore and Pacific Coast Casualty Co., 1 Oal. Ind. Ace. Com. (Part II), 229. In the last-mentioned case the Commission stated : " In earlier cases this Commission has held in accordance with the English view that an employer must takes his employes in the con- dition in which they are at the time of the injury, and must com- pensate them for the actual period of disability which the ordinary or average man so injured would suffer. Thus, where workmen are injured by heavy strains or blows which would not affect a workman of average strength, compensation is to be given for the full period of disability suffered. This rule is clearly just in ordinary cases, as it places the actual burden of the accident upon the industry, tid- ing over the injured employe and his family for the entire period of loss of earning power, thus avoiding the impoverishment and chain of evils consequent thereon which it is the policy of the "Workmen's Compensation, Insurance and Safety Act to prevent. There must, however, be some limit to the operation of this rule in cases where the greater part of the disability is due to disease which greatly prolongs recovery from accidental injury, even though, had there been no accident, there would have been no disability whatever. This Commission has already held that, where recovery from injury is delayed by the effect of tuberculosis, syphilis or chronic varicose ulcers, compensation should be allowed only for the period for which the injury compSiSi^ftQfifJb^^'oMii/'dfeafi® a person of average con- 846 bkadbuey's woekmen's compensation law ^ Reducing compensation payments dition not sufiering from any of these diseases. These exceptions. control the present ease, and it is therefore decided that applicant is not entitled to a continuance of the temporary total disability payments from and after the 3d day of August, 1914, this date being the expiration of the longest period clearly indicated by the medical testimony in this case as the period during which applicant's dis- ability would probably have continued if he had been free from tuberculosis." Where an employe who had long been a sufferer from a slow tuber- cular process fell off in front of a handcar and was crushed and bruised, it was held that he was entitled to compensation for the dis- ability proximately caused by the accident, but not for the continuing disability due to decreased vitality, change of habits and surroundings and" poor hygiene incident to failing resources, these not being caused by the accident and only remotely attributable to it. Masich v. Northwestern Pacific Railroad Co., 2 Cal. Ind. Ace. Com. 539. In the last-mentioned case the Commission announced the following as the principle covering its action in such case : " It is a principle of very general application that the industry should be chargeable only with those consequences arising out of accidents which are proximate and direct, and cannot be held chargeable under the law as it now stands for disabilities which are only remotely consequent upon the injuries." Where an employe suffered an injury to his back and also an aggra- vation of an existing hernia which prolonged the disability, it was held that he was entitled to compensation for the entire period of dis- ability from both causes, unless it could be shown that the disability caused by the aggravation of the hernia had ceased and that he was restored to his former condition, in which case he would not be en- titled to disability caused solely by the pre-existing hernia. Yenne v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 135. Where an employe sustained a slight injury which normally would not result in disability lasting more than a few weeks, but because of an infectious disease the injury had resulted in continuing disability, it- was held that such continuing disability was not compensable be- yond the. normal period of flisability resulting from such injury. Johnson v. Lowe, 2 Cal. Ind. Ace. Com. 543. Flagrant disobedience and negligence by the injured employe of the instructions of theC^^gHii/atojAMAdffasg^®^ the case will be deemed 347 Reducing compensation payments a sufficient defense to further liability when the period of normal recovery has expired. Weaver v. Eyster & Stone, 1 Oal. Ind. Ace. Com. (Part II), 563. Where disability was greatly increased by alcoholic excesses con- trary to the directions of the physician in charge, the compensation was reduced from the original award of 74 weeks to 20 weeks. Kelliher v. Great Western Power Co., 2 Cal. Ind. Ace. Com. 371. While compensation will in some cases be awarded where the con- stitutional maladies are aggravated by an accident arising out of the employment, even though such constitutional maladies exist and may become acute and serious at any time, the Commission should be con- servative in concluding that the injury was the proximate cause of such disability where it conclusively appears that the employe is suf- fering from such constitutional maladies at the time of the accident. Ash V. Barker, 2 Cal. Ind. Ace. Com. 40. Where an employe in going up a ladder struck the shin of his leg against a brace, with scarcely enough force to break the skin, but causing a fracture of the tibia, and it appeared that the fracture was caused by reason of the extremely brittle condition of the bone due to a specific disease of great virulence, from which he was suffering, it was held that the injury did not proximately arise out of the employ- ment, but was due to a condition for which neither his employer nor his employer's insurance carrier could be in any way chargeable and compensation was refused. Spangler v. Philbin, 2 Oal. Ind. Ace. Com. 170. In the last-mentioned case the bones did not knit and subsequently an operation was performed by removing a piece of bone from the other leg which was aggravated in the injured leg, thereby prolonging the period of disability to a considerable extent. This operation was performed on a misunderstanding of the employe's physical condition, it being shown that the failure to knit was due to the constitutional disease and not to other causes. It was held that inasmuch as there was no liability for compensation for the alleged injury there could be none for the prolonged disability caused by the mistaken operation. Where the neglect or refusal of the employe to demand or obtain medical treatment causes a slight injury to result in serious disability, the liability of the employer will be limited to that portion of the dis- ability which was prcQptfffiteit^jira/Wfedsigff&e injury sustained and 348 beadbuey's woekmen's compensation law Reducing compensation payments the employer will not be held liable for the prolonged disability caused by such failure of the employe. Telford v. Healy-Tibiitts Construc- tion Co., 3 Cal. Ind. Ace. Com. 41. Where there is serious insubordination and drunkenness, persisted in by an injured employe during his treatment for his injuries, the compensation will be suspended in so far as the disability is continued or aggravated by such intoxication or unreasonable refusal to abide by the medical treatment. Hill v. Guardian Casualty and Guaranty Co., 1 Oal. Ind. Ace. Com. (Part II) 415. An employe who had been injured by being crushed between two logs, had on several occasions violated the instructions given by doc- tors and nurses. At one time he sat up in bed and left it in violation of the instructions and on another occasion jumped from the hospital window and walked several blocks before he was captured and re- turned. There was evidence that these acts had been done while the employe was delirious or apparently crazed by his injuries. It was held that the acts had not been done while he was in a rational state and a death benefit awarded, although the acts of the employe hastened or caused his death. Brogi v. Hammond Lumber Co., 1 Oal. Ind. Aec. Com. (Part II) 137. An employe was injured by a fall causing a severe strain to the left ankle. His disability was prolonged by reason of an arterial disease, it being determined at the date of hearing that the applicant's dis- ability was about equally divided between his general condition and the result of the accident. It was held that the applicant was entitled to compensation during the entire continuance of disability resulting from the accident. Daiila v. Brandon & Lawson and Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II) 239. Misconduct by an applicant during his period of disability, such as drunkenness, getting arrested, etc., is not a defense to his applica- tion for compensation unless it be shown that such misconduct ag- gravated or prolonged his disability, and then only to that extent. West V. City of Pasadena, 1 Cal. Ind. Ace. Com. (Part II) 274. Where a previous condition of tuberculosis, which was unknown to the employe, became active by reason of an injury caused by a fall and it was found, on the medical testimony, that the disability from the accident would last one year and any further disability would be due exclusively to the tuhBigiSiB&djd^ Mord^ftQhat compensation should WHAT IS AN " IN JUEY " OE AN " ACCIDENTAL INJURY " 349 Reducing compensation payments be paid for one year and thereafter discontinued. Hatch v. I. New- man & Sons, 1 Conn. Comp. Dec. 65. Where, after an injury to a hip, the employe refused to comply with urgent requests, made several times, by the employer's physician, the employer personally and the employer's foreman, to go to the hos- pital where he could receive proper treatment and the parts be kept in an immovable position, but on the contrary the employe insisted on disobeying the doctor's orders, moving about the room and attempt- ing to use the injured member and to effect a cure by the application of home remedies, by reason of which the disability was very greatly prolonged, it was held that compensation should be awarded for the period only which it was determined disability would have been caused if the employe had obeyed the doctor's instructions and that compensation should be refused for the prolonged disability occa- sioned by the unreasonable acts of the employe. Bolton v. Bridge- port Brass Co., 1 Conn. Comp. Dec. 515. Where an employe suffered a slight injury to his finger and failed to apply proper medical treatment or to permit the employer's first aid nurse or the employer's physician to properly treat the finger and the result was a loss of the use of the finger, but the medical testi- mony was unanimous that with proper treatment a disability not exceeding four weeks would have resulted, it. was held that compensa- tion should be awarded for four weeks only as this was the only dis- ability arising out of the employment under the Connecticut Act. Chmelaski v. Landers, Frary & ClarJc, Conn. Comp. Com., First District, Chandlee, Com'r, March 29, 1917 (unreported). Where an employe, instead of accepting the services of the em- ployer's physician, applied carbolic acid to a slight wound, and thereby caused a serious injury and thereafter went to his own physician instead of allowing the employer's physician to treat him, it was held that he was not entitled to any compensation nor to an allowance for doctor's bills, as his misconduct in relation to medical treatment was the cause of the disability and not an injury arising out of his em- ployment under the Connecticut Act. Xvadar v. Pratt & Whitney Co., Conn. Comp. Com., First District, Chandlee, Com'r, March 30, 1917 (unreported). An employ^ having a constitutional disease suffered a slight injury which eventually cauifed hioodfi^(MSMgf^®in making an award the 350 Reducing compensation payments Board said that it awarded compensation only for the incapacity for work due to the injury and not for any incapacity due to the disease. " It is the law that an employe must be taken as he is at the time the injury occurs, and if, by reason of a personal injury arising out of and in the course of his employment, a previous diseased condition is materially accelerated and hastened so as to incapacitate him, or if, by reason of an existing condition of disease, his recovery from the effects of the injury are retarded, compensation is due, not for the disease, but for the effect of the injury upon the employe and the incapacity resulting therefrom." Chesler v. Ocean Accident and Guarantee Corp. (1914), 3 Mass. Ind. Ace. Bd., 614; 12 N". C. C. A. 187. Where disability was greatly prolonged by reason of a pre-existing diseased condition, it was held that compensation should be awarded only for the term during which the employe would normally have been incapacitated had the pre-existing diseased condition not existed. Jones v. Fidelity & Deposit Co., 2 Mass. Ind. Ace. Bd. 301. Where disability from an accidental injury was prolonged by rea- son of the presence of paralysis agitans, it was held that compensa- tion should be paid for the period during which the employe would be disabled by reason of the injury, but not for the extended period of disability due to the previous disease. Home v. Maryland Casualty Co., 1 Mass. Ind. Ace. Bd. 34. Where an employe was kicked by a horse on July 20th and was disabled more or less until September 4th when he went to a hospital where he died on October I7th following, and the medical testimony was that his death was due to a constitutional disease, compensation was refused. Boyd v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 180. A carpenter was incapacitated by an injury received in lifting a stove and it appeared that he had had heart trouble, from which he would have been entirely incapacitated from six months to two years in the future. Compensation was awarded for one hundred weeks. Clements v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 273. Where a workman who had received an injury to intestines, re- fused to have an operation at first, but did consent at a later period, and it was not concji^u^jjve^ ^r(}j^d.^tba^^n earlier operation would have saved his life, it was held that the early refusal was not sufficient 351 Alcoholic meningitis and delirium tremens to cause a denial of compensation. Jendrus v. Detroit Steel Products Co., 178 Mich. 265 ; 144 K W. 563 ; 4 N. C. C. A. 864. Where an employe's eyes were injured by a blast aud although his sight was impaired, the medical testimony was that this defect could be almost completely overcome, if the employe would go to a hospital for three months, and the employer offered to pay for such hospital treatment, it was held that compensation should be awarded for three months only, where the employe had refused to go to the hospital. Vishney v. Empire Steel and Iron Co. (Warren Common Pleas, 1914), 37 N. J. Law J. 217. Where an employe was injured on January 5th, but remained at work for fifty-two days thereafter and did not consult a physician and the only noticeable effect of the injury was black and blue spots upon the arm, and on February 26th thereafter he suffered a collapse and died and a post-mortem examination disclosed that the immediate cause of death was the bursting of an aneurism of the ascending aorta and not to an injury resulting in the course of the employment, compensation was refused. In re Stith, 1 Bull. Ohio Ind.' Com. 67. Where by reason of an accidental injury it appeared that an infec- tion had been introduced under the skin, but that it remained qui- escent until the employe, by participating in a boxing bout, so ag- gravated the injury as to cause the germs to become active, with resulting disability and serious injury, it was held that the injury did not arise out of the employment. Kill v. Plankington Packing Co., Third Annual Eeport (1914), Wis. Ind. Cora. 83. The provision of the Wisconsin Act that where an employe is of a certain age the compensation shall be reduced according to the sched- ule contained in the Act, does not apply to a death benefit. Bitzow v. City of Milwaukee, Third Annual Report (1914), Wis. Ind. Com. 56. ARTICLE B — SPECIFIC RULINGS AS TO WHAT IS OR IS NOT AN ACCIDENTAL INJURY. 1, Alcoholic meningitis and delirium tremens. A driver of a beer wagon was delivering beer when a keg rolled off, struck and injured him so that he was taken to a hospital where he died of alcoholic meningitis and delirium tremens, the death oc- curring nine days aft^'M^ffi'jfe'y^fcifS^ff^eld that the meningitis 352 Apoplexy and delirium tremens developed from the injury to the employe's leg and compensation was awarded. Dunn v. West End Brewing Co., 5 N. Y. St. Dep. Eep. 380, 2. Aneurism. Where a workman suffered an injury and was incapacitated for a while and then returned to work, at which time compensation was discontinued, but about three months later he again became incapaci- tated and it was discovered that he had an aortic aneurism, which on the testimony of the doctors it was found did not result from the first injury, but from the f^act that he was working beyond his physical powers after he returned to work and was due to the continued strain, it was held that the disability was not due to an accidental injury arising out of the employment. Paton v. William Dixon (1913) (Scotch Court of Session), 6 B. W. C. C. 882. Where an employe was injured in a runaway of his team by being thrown from the wagon and run over, and died six days later from the rupture of an aneurism of the left ventricle of the heart, it was held, upon conflicting medical testimony, that the death was proxi- mately caused by the runaway. Martin v. City of Sacramento, 2 Cal. Ind. Ace. Com. 692. 3. Anthrax.^ An employe contracted anthrax from the handling of hides and it was held that this was an accidental injury. Hiers v. John A. Hull Co. (1916), 8 N. Y. State Dep. Rep. 486; Henry v. G. Levor & Co., 6 N. Y. St. Dep. Eep. 388. 4. Apoplexy.^ A workman, in the course of his ordinary and usual employment, overexerted himself and brought on an attack of cerebral hemorrhage, and it was held that the occurrence was ah accident within the mean- ing of the Act. M'Innes v. Dunsmuir & Jackson (1908), 45 Scotch L. R. 804 ; 1 B. W. 0. C. 226. See to the same effect, MaHin v. Travelers' Ins. Co., 1 E. & F. 505. 1 See the same title In Chapter XIII wherein there is a discussion of when anthrax arises out of tha^empJoTment.,,. „^ . See same title in ChS^^ft^J" .'^"'^°^°'^® 353 Apoplexy A collier died of apoplexy during working 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 hed, or when walking about, or when overexerting himself. The collier's work on that day was to build a pack, but there was no 'evi- dence that 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, and the onus of proving that it was due to accident rested on the applicants, in this case that onus had not been discharged by them. Barnahas v. Bersham Colliery Co. (1910), 4 B. W. C. 0. 119. Apoplexy brought on by shoveling coal and raking fires in the stoke- hold of a steamship is an accidental injury within the meaning of the British Act. Broforst v. Owners of 8. S. " Blomfield " (1913), 6 B. W. C. C. 613'. Where a ship's stoker, while on duty in the tropics was found in a coal bunker adjoining the stoke hold in a condition of heat apoplexy and it was not proved that the fit had been brought on by the work which the man had been doing, it was held that the apoplexy was not caused by accident arising out of the employment and compensation was refused. Olson v. Owners of 8. 8. "Dorset" (1913), 6 B. W. C. C. 658. An employe wno attended to ambulance appliances, among other duties, and also attended personally to minor accidents, was informed of a scaffold accident to some workmen who were not in the employ- ment of his employer, but were engaged in doing work for them on the premises. He ran to the scene of the accident and back to the telephone for a doctor and an ambulance. While telephoning he had a stroke of apoplexy and died soon thereafter. It was held that the death was due to the accident. Aitken v. Finlayson, Bousfield & Co. (1914) Scotch Court of Session, 7 B. W. C. C. 918. Apoplexy, superinduced by overexertion, is ah injury within the meaning of the Ohio Act. In re Fair, 1 Bull. Ohio Ind. Com. 83. An employe was seized with a stroke of apoplexy while assisting another in lifting a barrel weighing about 200 pounds and an award was made therefor under the New York Act. Fowler v. Bisedorph Bottling Co. (1916), 8 IST. Y. State Dep. Kep. 404. Apoplexy is not a personal injury arising out of the employment 23 Digitized by Microsoft® 354 Bradbury's workmen's compensation law Artificial teeth broken wlien there has been no accidental injury which aggravates or brings on the disease. Ledoux v. Employers' Liahility Assur. Corp., 2 Mass. Tnd. Ace. Bd. 493. 5. Appendicitis.^ Appendicitis from a strain or a heavy blow is an industrial injury. McDonough v. Scott Company (1916),, 3 Cal. Ind. Ace. Oom. 225; Davis V. McDonald & Kahn, 3 Cal. Ind. Ace. Com, 84. A workman slipped from a ladder and was severely bruised and died about a month after the accident. On conflicting medical testi- mony it was held that the appendicitis and peritonitis from which he died was caused by the accidental injury. Euman v. Dalziel <& Co. (1912), Scotch Court of Session, 6 B. W. C. C. 900. Where a workman was disabled by reason of an attack of appendi- citis and alleged that the attack was brought on by reason of a fall, it was found by the Commissioner that as a matter of fact no fall was sustained, and it was held that compensation should be refused as the claimant had failed to sustain the burden of proof of showing that his injury arose out of his employment. Duhe v. Clayton Brothers, Inc., 1 Conn. Comp. Dec. 441. 6. Arterial sclerosis.^ After an accident a workman was found to be suffering from a dilation of the heart and arterial sclerosis. One physician testified it was caused by the accident. It appeared that the workman had en- joyed good health prior to the accident. The expert appointed by the Commission was unable to state whether or not the heart trouble and arterial sclerosis were caused by the accident. Compensation was awarded. AYelch v. C. F. WeMr & Co., 2 Cal. Ind. Ace. Com. 693. 7. Artificial leg broken. The breaking of an artificial leg is not an injury covered by the statute. -Be Eulogio Rodriguez, Op. Sol. Dep. C. & L., p. 189. 8. Artificial teeth broken. The breaking of artificial teeth firmly and permanently attached to I See same title in Chapter XIII. 1 See same title in Chfoti.- Xll^y Microsoft® WHAT IS AN " INJUEY " OR AN " ACCIDENTAL INJUEY " 355 Boils natural roots is a personal injury. Rohinson v. Olendale Hardware Co. (1916), 3 Cal. Ind. Ace. Com. 376. 9. Asthma and heart trouble from breathing dust. Where a claimant developed asthma and heart trouble from breath- ing dust while engaged in scraping pilasters with a wire brush, mak- ing the room in which he was engaged in the work very dusty, it was held, on the medical testimony, that the breathing of the dust might hav6 aggravated, for a period of a few days, existing conditions, but it would not cause the organic changes which had taken place in the claimant's system and therefore this was not a compensable injury. Wetherell v. American Hardware Corporation, 1 Conn. Comp. Dec. 367, 10. Bandages on wound catching fire. Where bandages soaked in turpentine applied to a wound caught fire when the employe was lighting his pipe, it was held that the burns received from this injury were not the resjilt of an accident arising out of the employment. Isaacson v. L. E. White Lumber Co., 2 Cal. Ind. Ace. Com. 815. 11. "Bends." It has been held that "bends" (a condition brought about by working in compressed air), was in the nature of a rupture or lesion of some one of the internal organs, due to the change between high and normal atmospheric pressure, and was therefore an accidental injury. Be William Murray, Op. Sol. Dep. C. & L., p. 201. 12. Blood poison. (See Infection from break in shin, post, page 394; also Infection in a different part of the body from the injured member traced tc infection at seat of wound, post, page 395.) 13. Boils. Where an assistant cook suffered a disability from the breaking out of boils on his hands, but there was no evidence to show that the boils were the result of cuts, scratches, bruises or other injury that would admit of an infection, it was held li at this was not a compen- 356 beadbuet's woekmen's compensation law Bursitis an infection from worliing on knees sable injury. Balph v. Morgan, 2 Cal. Ind. Ace. Com. 537; UN". C. C. A. 500. 14. Bright's disease.^ Acute Bright's disease appearing five days after the accident, was held not due to the accident, but to natural causes, the medical testi- mony indicating that acute Bright's disease is probably never of traumatic origin, and also that the applicant showed no indication of injury to the kidneys. Husvick v. William Simms, 1 Cal. Ind. Ace. Com. (Part II) 266. Where Bright's disease developed after an injury caused by a strain, it was held, on the medical testimony, that the Bright's dis- ease had no causal relation to the injury and compensation was re- fused. Lima v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 800. The deceased developed a blister upon his heel caused by the wear- ing of rubber boots furnished by the employer. The blister became infected and Bright's disease developed which resulted in the death of the employe. It was held that the disease was incidental to the injury and the chain of causation was complete from the injury to the death and therefore compensation was awarded. Wheado v. Red River Lumber Co., 1 Cal. Ind. Ace. Com. (Part II) 640. 15. Bronchitis and intestinal tuberculosis. An employe who was injured by a fall, later developed bronchitis and intestinal tuberculosis, and it was held that there was no causal connection between the injury and the bronchitis and intestinal tuber- culosis and compensation was refused. Swartz v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd, 728. 16. Bursitis; an infection from working on knees. Where an employe had been engaged on his knees in painting the deck of a boat and bursitis, an infection, developed in the knee, and the medical expert testified that the injury could have come only from an accident in such employment, although no accident could be defi- nitely proved, it was held that the cause of the injury was sufficiently connected with the employment as an accidental cause and compen- 1 See vephritis. Digitized by Microsoft® WHAT IS AS " INJUEY " OR AN " ACCIDENTAL INJXJET " 357 Cataract sation was awarded. Porter v. H. P. Anderson, 1 Cal. Ind. Ace. Com. (Part II) 608. 17. Cancer. A man putting up window shades had some tacks in his mouth and his tongue was pricked by the point of one of the tacks. Thereafter cancer developed at the place of the injury. An operation upon the tongue became necessary and the workman died from shock while under the influence of the anaesthetic given to him in preparing for the operation. It was held that death was due to an accidental in- jury. Cramer v. Littell (Essex Common Pleas, 1915), 38 IST. &i^mm^n in the course of his em- "WHAT IS AN- " INJURY " OE AN " ACCIDENTAL INJURY " 377 Gastric cancer ployment later burned his fingers at home by accidentally setting fire to the bandages, and it was held that while he was entitled to com- pensation as to the freezing of his fingers he was not entitled to com- pensation respecting the burn, as this injury was not received in the course of his employment. Re A. M. Rockwell, Op. Sol. Dep. 0. & L., p. 242. Freezing to death. Applicant was the widow of Alec Young, who was frozen to death in a snowstorm while in defendant's employl He was out in the mountains attending to high-power line work, and his death resulted from climatic conditions. The controversy arose as to whether this was an industrial accident. Held that it was, because there was no doubt that Young had been instructed by a superior officer to do necessary work, and the widow was awarded the death benefit of three years' annual earnings, amounting to the sum of $3,060, Young v. Northern California Power Co., 1 Oal. Ind, Ace, Com. (Part I), 88, An electric lineman was called in an emergency to locate trouble and repair an electric line ancj was overco.me in a severe snowstorm and was frozen to death. It was held that this was an accidental injury arising out of and in the court of the employment. Young v. Northern California Power Co., 1 Cal. Ind, Ace, Com, (Part I), 88 ; 12 Isr. C, C, A, 309. 56. Gangrene from wound. A gangrenous condition developed from an injury to an employe's foot from which he died, the immediate cause of death being gangrene, and it was held that the death resulted from the injury. In re Wilson, 1 Bull, Ohio Ind, Com. 84, The employe's great toe was crushed and thereafter gangrene set in which spread to the body and caused the employe's death about three weeks after the accident. It was held that the death was caused by accidental injury, Meyer v. Pacific Light and Power Co., 1 Cal., Ind, Ace, Com, (Part II), 333, 57. Gastric cancer. On the medical testimony that gastric cancer was not due to an injury alleged to have been received compensation was refused, Mc- ElUgott V, FranhfoH'^Sitm!PXs!y&if.9^PMs^. Ind. Ace. Bd. 521. 378 Heart diseases 58. Gastric ulcer; aggravating pre-existing condition. Where a chauffeur was suffering from acute gastric ulcer and medi- cal experts testified that such ulcers often puncture the wall of the stomach, it was held that although the employe suffered a puncture of the wall of his stomach immediately after exertion, in cranking his employer's automobile, that such injury was not proximately caused by the exertion. It was only the occasion and not the cause of the injufy and compensation was refused. Chenoweth v. Mitchell, 2 Cal. Ind. Ace. Com. 96. 59. Glaucoma. An employe developed glaucoma, which he contended was due to some foreign substance getting into the eye. It was held that this was a diseased condition and because of the absence of any evidence of a specific injury compensation was refused. Damerow v. Paine Lumber Co., Fourth Annual Eeport (1915), Wis. Ind. Com. 34. 60. Headaches from eye injury. An award had been made for disability due to an injury to an eye, but there was not a total loss of sight. On a further hearing the claimant demanded compensation for headaches because of the injury to his eye. It was held that it had not been shown that the eye injury caused the headaches and additional compensation was refused. Stampich v. The -American Steel and Wire Co., 1 Conn. Comp, Dec. 474. 61. Heart diseases. Heart failure due to overstrain is an accident arising out of the employment when the strain was due to the work which the man was performing. Doughton v. A. Hiclcman (1913), 6. B ,W. C. C. 77. A workman collapsed at his work and died the same day from angina pectoris. The evidence was that his heart was in a bad state, and that the attack might have been caused by exertion, or might have been due to natural causes. It was held that the dependents had not discharged the onus of proving that the accident arose out of the employment. Hawkins v. Powell's Tillery Steam Coal Co. (1911) 104 L. T. 365 ; 4 B. W. C. C. 178. While a workman mt'm^^'^iem'mioTse fell, the shaft broke, WHAT IS AN " INJUEY " OR AN " ACCIDENTAL INJURY " 379 y Heart diseases and the man apparently was thrown out. He went to a farm to borrow another cart, being unsuccessful in this he walked away with the horse and was subsequently found dead on the road at the top of a hill. The medical evidence was that he died from syncope, but that it was impossible to say for certain what had caused the syncope. It was held that the dependent had not discharged the onus of proving that the death was caused by the accident. Powers v. Smith (1910), 3 B. W. C. C. 470. A workman who, while engaged in work which was too heavy for him, felt a sudden«pain upon his chest and a few days afterward be- came totally incapacitated. The arbitrator found as a fact that the cause of the incapacity was a cardiac breakdown, due to the fact that the work was too heavy for the employe and that he was not injured by any sudden jerk; that the repeated excessive exertions strained the workman's heart until it was finally overstrained. Under these cir- cumstances it was held that the incapacity was not due to a personal injury by accident. Coe v. Fife Coal Co. (1909), 46 Scotch L. E. 325 ; 2 B. W. C. C. 8. A workman had for years been suffering from progressive heart disease. While hurrying to the station with a parcel, in the course of his employment, he was taken ill and died. It was held that the death was attributable to the disease and that there was no evidence of accident. O'Hara v. Hayes (1910), 44 Irish L. T. E. 71; 3 B. W. C. C. 586. A workman suffering from an advanced aneurism of the aorta was doing his work in the ordinary way by tightening a nut with a spanner. This ordinary strain caused a rupture of the aneurism, resulting in death. The County Court judge, on conflicting evidence, found that the workman's death resulted from personal injury by accident within the meaning of the Act. It was held in the House of Lords that there was evidence on which the County Court judge was justified in so deciding. Clover Clayton & Co. v. Hughes (1910), A. C. 242; 3 B. W. C. C. 275 ; aff'g 2 K. B. 798 ; 2 B. W. C. C. 15. The above- entitled case was considered at great length in the various opinions written in the House of Lords and has become a leading case on the subject. Lord Loeebuen wrote the principal opinion, and in the course of it he said: " In this' case a workman, suffering from an aneurism in so advai^M^«^afti( M^Sf^f^that it might have burst 380 -bbadbury's woekmen's compensation law Heart diseases at any time, was tightening a nut with' a spanner, when the strain, quite ordinary in this quite ordinary work, ruptured the aneurism, and he died. This is a mere summary of the facts. * * * In what I am about to say I take the facts as he found them in extenso and rely upon them. * * * It may be said, and was said, that if the Act admits of a claim in the present case, every one whose disease kills him while he is at work will be entitled to compensation. I do not think so and for this reason. It may be that the work has not, as a matter of substance, contributed to the accident, though in fact the accident happened while he was working. In each case the arbitrator ought to consider whether, in substance, as far as he can judge on such a matter, the accident came from the disease alone, so that what- ever the man had been doing it would probably have come all the same, or whether the employment contributed to it. In other words, did he die from the disease alone or from the disease and employment , taken together, looking at it broadly ? Looking at it broadly, I say, and free from over-nice conjectures: Was it the disease that did it or did the work he was doing help in any material degree ? In the present case I might have come to a different conclusion on the facts had I been arbitrator, but I am bound by the findings, if there was evidence to support them. It is found that the strain contributed to the death. There was evidence on which the learned judge was en- titled so to find, as I respectfully think, and I, therefore, advise your Lordships to afiirm the order of the Court of Appeal." There were two dissenting opinions filed by Lords Aekinson and Shaw. Where a workman apparently in good health died suddenly from heart failure while at work, lifting baskets full of corn, and there was no unusual strain or exertion, it was held that the death was not due to accident. Kerr v. Biichias (1913), Scotch Court of Session, 6 B. W. C. C. 419. A waitress in a restaurant, who complained of the heavy work of operating a dumbwaiter, and feeling ill, returned honie. The next day she was found seriously ill from acute dilatation of the heart. It was held that this was not an accidental injury. Hallett v. H. Jevne Co., 2 Cal. Ind. Ace. Com. 259. Where the death of an employe from heart disease was certain to occur within a comparatively short time and such death was hastened by a fall received by the employe in the course of his employment, but 381 Heart diseases no symptoms of heart shock appeared until nine days after the fall and after the noticeable physical injuries caused by the accident had healed, it was held that such accident could not be said to be the proxi- mate cause of the death and the industry was not chargeable with the death benefit therefor, Waldman v. M. D. Hermann and Employers' Liability Assurance Corporation, 1 Cal. Ind. Ace. Com. (Part II), 82. In the last-mentioned case the Commission laid down the follow- ing rule : " That which, lollowiiig in a natural and continuous sequence, unbroken by any new cause, produces an event and without which the event would not have occurred, is the proximate cause of such event. Where the event is certain without the occurrence of the accidental injury, such injury is not a proximate cause of the event (death), even though it accelerated it." An employe suffered two injuries, and between the first and second one, it was found, on the medical testimony, that heart trouble had developed, consisting of a leaky mitral valve. It was held that this was such an injury as entitled the workman to compensation. South- ern V. Joseph Taylor Coal Co., 1 Bull. 111. Ind. Bd. 174. An employe who lived on a boat endeavored to save his personal effects when the boat began to sink and by the over-exertion aggra- vated a pre-existing heart disease causing death. It was held that this was an injury arising out of and in the course of the employment. In re BrigUman, 220 Mass. 17 • 107 E". E. Ret). 527 ; 8 N. C. C. A. 102. A man who was suffering from heart disease died suddenly after carrying heavy pails of water and heavy bags of coal. The medical testimony was to the effect that the extra exertion caused a strain which caused the heart to dilate and brought about the death earlier than it would have been brought about in the ordinary course of the disease. It was held that this was an injury arising out of the em- ployment. In re Fisher, 220 Mass. 581 ; 108 S. E. 361 ; 11 N. C. C. A. 177. A woman in a manufacturing establishment was compelled to pull a carpet and in doing so she so aggravated a condition of weak heart so that she suffered total incapacity for work. It was held that this was an injury arising out of the employment. In re Madden, 111 N. E. 379 ; Mass. Digitized by Microsoft® 382 Heart diseases An employe after suffering an accidental injury died from acute dilatation of the heart due to uremic poisoning. It was held that the injury having no causal relation to the death compensation was re- fused. Lynch v. Travelers Ins. Co., 2 lEass. Ind. Ace. Bd. 591. As the evidence showed that the condition of valvular heart trouble from which the employe suffered was not caused by an accumulation of strains in carrying and lifting heavy materials compensation was denied. Nolan v. New England Casualty Co., 2 Mass. Ind. Ace. Bd. 417. An employe suffered an injury causing the fracture of a rib from the slipping of a beer barrel and the striking of his left side against the tailboard of a wagon. The injury brought about a lesion of the heart which grew progressively worse, no new catise intervening, and the employe died sometime later. It was held that the death was due to an injury arising out of the employment. O'Hare v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 369 ; 11 N". C. C. A. 178. Death from heart failure where there has been no injury does not form any basis for a claim for compensation. Lightiown v. Ameri- can Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Dd. 243. A woman of frail physique, who had been able to perform her work in a mill for a number of years, fell and was disabfed from the fall for a long time and then developed heart weakness, by reason of which she was unable to do any work. It was held that there was a causal connection between the injury and the heart weakness which constituted total disability so long as the heart weakness continued. Otot V. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 254. An electrotype finisher, who, after the close of his day's work, went into a saloon, bought a cigar, sat down, and half an hour afterward was found dqad in his chair, was found, on the medical testimony, to be suffering from angina pectoris caused by overwork and the climb- ing of many stairs throughout the year, and it was held that death was due to an injury arising out of the employment. McMurray v. J. J. Little & Ives Co., 3 IST. Y. St. Dep. Bep. 395. An employe was engaged in taking barrels of oil, weighing about 350 pounds each, out of a cellar to be put into a car. He had to raise the barrels a distana'gJ/ffz«tobfayM(CfQteftiKte^ ^^° "^^^^^ lifting 388 BEADBTJET S WOEKMEN S COMPENSATION LAW Hernia a trunk received a strain causing a left inguinal hernia. United States Fidelity & Guaranty Co. v. Emil Kurschner, 1 Cal. Ind. Ace. Com. (Part II), 136. Where a hernia developed by reason of an accidental injury, at the exact place where an operation had been performed for a previous hernia, eight years before, it was held that the later hernia was caused by accident for which compensation should be awarded. Boggelyn v. Coronado Hotel and Frankfort General Insurance Co., 1 Cal. Ind. Ace. Com. (Part II), 276. An employe was working with a heavy electric boring machine, he being required to hold it against his groin in boring horizontal holes in the woodwork of a building. After twelve days of such work a small hernia resulted from the violence of the machine and it was held that this was an accidental injury. Mandell v. Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 265. An employer takes an employe as he finds him and the fact that he has a predisposition to hernia which is aggravated by a strain is not sufficient to bar a claim for compensation, but when disability results from a hernia brought on by such a strain compensation should be awarded. McDougal v. W. J. Bush & Co., 3 Cal. Ind. Ace. Com. 57. The decision as to whether or not a hernia was an old one will be resolved in accordance with the testimony of the physician who per- forms an operation to cure the same where there is a conflict as to what occurred when the accident happened. Kavas v. Northern Elec- tric Railroad Co., 2 Cal. Ind. Ace. Com. 221. A woman employe, in poor health, while operating an addresso- graph machine by a foot lever felt a sudden pain in her side and had to stop work and soon thereafter a hernia on the right side developed. It was held that this was the result of an accidental injury. Bertram Y. H. 8. Crocker Co., 2 Cal. Ind. Ace. Com. 392. A hernia was held to arise from trauma where a janitor felt pains and became disabled immediately after lifting a carpet weighing over 500 pounds. Poppos v. Silver Palace Theatre Co., 2 Cal. Ind. Ace. Com. 387. Where an incomplete hernia found to have been sustained by an employe in the course of his employment was subsequently rendered complete by the rough handling of an examining physician of an em- ployer's insurance cag^jj^g^^ ^Ij^^^^e resulting disability was WHAT IS AN " INJtTEY " OB AIT " ACCIDENTAL INJTTET " 389 Hernia an injury arising out of the employment. Clark v, Kennedy, 3 Cal. Ind. Ace. Com. 125. Where a strong, able-bodied workman, under strain of a heavy burden, sustained a small hernia, but other than suffering a dull pain he continued at his daily work without any disability, it was held under the new liberal construction of the law in hernia cases that the applicant was entitled to an alternative award of an operation or a permanent partial disability indemnity. Gordon v. Western Metal Supply Co., 3 Cal. Ind. Ace. Com. 101. Six months after an operation for hernia an employe, who was still weak at the site of the old hernia, developed a new hernia, as the proximate result of a strain undergone in the employment, and it was held that the injury arose out of the employment. Dean v. California Fruit Canners Ass'n, 3 Cal. Ind. Ace. Com. 80. A stock and receiving clerk in a store, whose duties consisted of continual heavy lifting, fell from a ladder and struck his side on the floor and a few days later received a severe blow in the abdomen. Shortly thereafter a hernia developed without pain and it was held that this was an injury for which compensation should be awarded. Heinv. Bosenthals, Incorporated (1916), 3 Cal. Ind. Ace. Com. 228. Where a hernia has its inception on a certain date and its comple- tion on a considerably later date, the limitation as to notice of injury and beginning proceedings dates from the time the hernia became completed. Parle v. Beese (1916), 3 Cal. Ind. Ace. Com. 23'i;. "A hernia may or may not be ' a personal injury arising out of and in the course of the employment.' Hernia is ordinarily a disease; genuine traumatic hernia is very rare. A sudden or severe strain incident to an employment may be and frequently is ' an exciting cause' of a hernia. When a man who has to all appearances pre- viously been in good health, gives a history of a sudden pain follow- ing some unusual strain incident to his occupation and immediately thereafter the tumor of hernia is found where no such condition ex- isted before, there may fairly be said to be such a causal connection between the employment and the hernia as to justify an award." Machay v. American Brass Co., 1 Conn. Comp. Dec. 526. A hernia which is manifested by sharp pains at the time of the in- jury from a strain, and which, upon examination by a physician, is determined to be a h&MUzg^ ^M(mSO^m, is such an injury as 390 beadbttet's woekmew's compbitsation law Hernia entitles the workman to compensation, under the Connecticut Act. Massa v. Crowe, 1 Conn. Comp. Dec. 86. In the last-mentioned case the Commissioner discussed the conflict of opinion as to whether or not hernia is of traumatic origin or is invariably the result of disease and came to the conclusion that there was sufficient authority for the ruling that it might he of traumatic origin in certain instances. Compensation was awarded for disability due to hernia and also an operation to cure the same where it appeared that the hernia was ' caused by a strtain in the course of the employraent. Dufrene v. Ris- don Tool & Machine Co., 1 Conn. Comp. Dec. 411. If a hernia cannot be found to have been caused by strain at a par- ticular time it is not such an accident as entitles a workman to com- pensation. Donchian v. Harare, Conn. Comp. Com., Third Dist., Beees, Com'r, Oct. 6, 1916 (unreported). The mere fact that a locomotive engineer has been caused to undergo a severe physical strain, is not sufficient to support a claim for injury for hernia. Chicago & A. R. Co. v. Industrial Board of. Illinois (1916), 274 111. 336; 113 N. E. 629. Where an employe in getting out of an elevator was thrown some- what violently against the opposite wall of the hallway and a strangu- lated hernia subsequently developed causing the employe's death, it was held that the injury arose out of the employment. Herrick V. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 405. An ^ward was made for a hernia caused by a strain while lifting, as being an accidental injury arising out of the employment. Pappa V. Contractors Mutual Liability Ins. Co., 1 Mass. Ind.. Ace. Bd. 11. Compensation was awarded for hernia caused by reason of a truck, which was being hauled or shoved by another workman, coming "in violent contact with the employe O'Gonnell v. American Mutual Liah. Ins. Co., 1 Mass. Ind. Ace. Bd. 314. Compensation for hernia to a mason who was engaged in laying terra cotta, was awarded, where it was determined that the hernia was brought on by the work which he was doing, although he was in a weakened condition before the injury occurred. Hurley v. Selden- Brech Construction Co. (1916), Mich. ; 159 K W. 311. Compensation was awarded for disability caused by a hernia said to have been occasioned by lifting a window. Bell v. Hayes-Ionia Co. (1916), MiQigitizei^timibrmQmQ. Hernia A fireman of a municipality was allowed compensation during actual disability and during the time of recovery from an operation where a hernia was produced by his slipping and falling. O'Brien V. Holmes (Passaic Common Pleas, 191), 3Y IST. J. Law J. 116, An employe pushing a truck slipped and fell to the floor, straining himself severely in the groin resulting in a hernia and compensation was awarded. Nani v. JoJm T. Clark & Son, 6 ~S. Y. St. Dep. Eep. 382. In moving a piano at his employer's plant a porter of a piano manufacturer strained himself causing a hernia, resulting in his death after an operation and compensation was awarded. Mooney v. Wehher Piano Co., 5 IST. Y. St. Dep. Kep. 396. Compensation was awarded for a hernia wheieh developed from a sudden strain. Kr.en- zien V. Jasper, Inc. (1916), 1 N. Y. St. Dep. Kep. 373. A section hand on a railroad slipped and fell while lifting a rail producing a hernia and compensation was awarded. Ceraza v. Lehigh Valley R. Co. (1916), 7 N. Y. St, Dep. Rep. 423. Two hernias developed several weeks after an injury which re- sulted in the fracturing of two ribs and compensation was awarded, Mike V. Glens Falls Portland Cement Co. (1916), 7 N. Y. St. Dep. Eep. 435, An award was made for a hernia caused by lifting a heavy barrel, Harrison v, American Cooperage Co., Inc. (1916), 8 N, Y. St. Dep, Eep. 402. A hernia resulting from a strain is a " fortuitous event " within the meaning of the "Washington Act. Zappala v. Industrial Insurance Commission, 82 Wash. 314; 144 Pac. 54; L. E. A. (1916) A, 295. A rupture caused by a strain while "at work is an accident arising in the course of employment. Poccardi v. Public Service Commission, 75 W. Va. 542 ; 84 S. E. 242 ; 8 K C. C. A. 1065. Compensation cannot be awarded for hernia which is produced gradually by reason of the nature of the work unless there has been some accidental injury. Beseburg v. Hamilton Mfg. Co., Fourth Annual Eeport (1915), Wis. Ind. Com. 14. Where an employe suffered a hernia, but there was no accident other than a strain from heavy work, this was not an accidental injury. Lichtenherger v. I Strack, Fourth Annual Eeport (1915), Wis. Ind, Com. 13, Where, at the time of the alleged injury the workman made no complaint, but later made a claim for disability caused by hernia from a strain, it was^i^l^^^h^^^^t^^evide^^e was insufficient to show 392 Hysterical blinflness that the hernia was the result of an accidental injury and compensa- tion was refused. Wilson v. Allis-Chalmers Co., Third Annual Ee- port (1914), Wis. Ind. Com. 70. In the last-mentioned case the Commission said: " We think a traumatic hernia is accompanied with sufBcient pain to make its appearance known to the workman at the time it hap- pens, and complaint or evidence of such an injury should be dis- closed to someone at the time." 66. Housemaid's knee. " Housemaid's knee," which was contracted by a plumber by reason of performing work which compelled him to rest on his knees for a large portion of the time, was held to be an injury under the Con- necticut Act, which entitled the workman to compensation. Roberts V. Hitchcock Hardware Co., 1 Conn. Comp. Dec. 213. 67. Hydrocele. Where a delivery boy, after several falls from his bicycle, was operated upon for hydrocele, the existence of which was observed by the physician at the time of the first accident, it was held that the proof of an accidental origin of the injury was insufficient and com- pensation was refused. Young v. Ville de Paris, 2 Cal. Ind. Ace. Com. 507. 68. Hypostatic pneumonia.^ A brewery employe slipped and fell, dislocating the clavicle. He was operated upon three days later and died of hypostatic pneumonia caused by the weakening of his system by reason of the operation and it was held that this was an injury arising out of the employment. Cantwell v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 246. 69. Hysterical blindness.^ Where a girl employe was knocked dovm by a swinging door and became totally blind from a disability known as hysterical blindness, it was held that the injury was approximately caused by the accident and an award for total disability was made pending the determination 1 See title Pneumonia. 2 See Mental shook o'-f^f^^e^^tf mr(5S«W^- Infectious disease of the continuance of the disability after further medical treatment. Boyd V. Young Men's Christian Ass'n, 3 Cal. Ind. Ace. Com. 62. 70. Hysterical paralysis. Hysterical or functional paralysis, as distinguished from real or organic paralysis, to such an extent as to cause actual total disability, may be a basis for compensation. Santini v. Mammoth Copper Min- ing Co., 1 Cal. Ind. Ace. Com. (Part I) 161; 11 N. C. C. A. 31. Where the disability immediately caused by an accident had long since been cured, but it was found that by reason of a profound shock a condition of hysterical paralysis and nervous spasm, amounting to a condition of traumatic neurosis, existed, compensation was awarded pending disability, with the condition that if the insurance carrier should offer proper hospital and medical treatment for thirty days to cure the employe and he should refuse should treatment, compensa- tion payments should be discontinaed. Beam v. Sutter Butte Canal Co., 2 Cal. Ind. Ace. Com. 187. 71. Infectious disease.^ While an employe was operating a lathe several small pieces of steel from the machine on which he was working lodged in his eye. This resulted in an irritation which caused him to rub his eye. At the time of this happening the employe was being treated for an infectious disease and the physician who removed the pieces of steel discovered that the eye had become infected from this disease. Sub- sequently the employe lost the sight of the eye bcause of the infection. It was held that this was not an injury arising out of or in the course of the employment, and compensation was refused. McCoy v. Michi- gan Screw Co., 180 Mich. 454; 147 W. W. 572 • 5 K C. C. A. 455 ; L.'K. A. (1916) A, 323n. If a germ causes a bodily ailment without an abrasion of the skin the general rule is that the result is a disease and not an accidental injury, within the meaning of an accident insurance policy. Bacon V. U. S. Mutual Accident Assn., 123 N. Y. 304 ; 9 L. E. A. 617. In the last-mentioned case the deceased died from anthrax and it was held that the cause of death was a dise'ase and not an accident. A . See titles of various B/^tteU* JSjs^fJepoSO/?® 394 beadbuey's woekmen's compensation law Infection from break in skin contrary ruling has been made under the British Compensation Act, where a workm^an contracted the disease of anthrax by a germ settling on his eye while sorting wool which was infected with anthrax. It was held that he had suffered injury by accident and was entitled to compensation. Brintons, Limited, v. Turvey (1905), A. C. 230 j 1 W. C. C. 1. See also li. P. Hood & Son v. Maryland Cos. Co., 206 Mass. 223; 92 N. E. 329; 30 L. E. A. (N. S.) 1192n, holding that contracting glanders from handling hides was an accident within the meaning of an accident insurance policy. (See also title Anthrax.) 72. Infection from break in skin. A mason's laborer using a hammer and chisel left home without any injury to his hand and returned home later with an abrasion on the thumb of the left hand that held the chisel where the hammer would most probably have hit him had it slipped. Two weeks later an abscess formed in the armpit, and the man died from blood poisoning, due to the abscess. There was medical evidence that the incubation period was consistent with the theory that a microbe had entered the wound in the thumb on the day of the injury and started the abscess. There was no evidence to support any other theory. It was held that this was an^accidental injury from which death resulted. Fleet v. Johnson & Sons (1913), 6 B. W. C. C. 60. Claims for disability resulting in infection are limited to those where there has been some well defined accident in which it was ex- tremely probably that the infection originated. McDonald v. Dunn, 2 Cal. Ind. Ace. Com. 91. An employe who was shaving and painting poles, bruised a hand and knocked a small piece of skin off the back of the hand. Infection and blood poisoning followed causing disability, and it was held that this was an accidental injury arising out of the employment. Oreat Western Power Co. v. Pillsbury, 111 Cal. 69 ; 151 Pac. 1136 ; 11 N. C. C. A. 493. An infection arising from an abrasion of the skin on the wrist, which caused the death of the employe, was held to be an injury aris- ing out of the employment. Marsters v. Employers' Liability Assur. Corp., 1 Cal. Ind. Ace. Com. (Part II) 360. A bookkeeper received a slight scratch of a thrumb and three days later the pain heoanBigiti^cit^MEmsdU^ction and it was held that 395 Infection traced to the seat of the wound this was an accidental injury. Jameson v. W. E. Bush, 1 Cal. Ind. Ace. Com. (Part II) 507. An infection following a bruise of a finger, causing disability, was held to arise out of the employment. ' Dreyer v. Great Western Power Co.. 1 Cal. Ind. Ace. Com. (Part II) 489. The applicant claimed compensation for an amputated finger which amputation was alleged to have been made necessary as the result of a burn suffered while striking a match to light the gas for a body ironer in the employer's laundry, the wound afterward becoming in- fected. It was held that the evidence was insufficient to establish the fact that the injury to the finger occurred in the course of employ-, ment. Wells v. Metropolitan Laundry Co., 1 Cal. Ind. Ace. Com. (Part II) 66. Where a crack in a calloused hand of an employe became infected, but the employe could not tell exactly how the injury happened and could not say that the hand was bruised while he was working, it was held that the evidence was insufficient to show that an injury arose out of the employment. Netherland v. Contra Costa Construction Co., 1 Cal. Ind. Ace. Com. (Part II) 440. 73. Infection in a different part of the body from the injured mem- ber traced to infection at the seat of the wound. An injury consisted of a fracture of the left femur at a point at about the juncture of the middle and lower thirds. The injury oc- curred on April 17, 1914. There developed on the left leg below the knee certain ulcers shortly after the injury. These ulcers had dis- appeared by September 1, 1914. About December 1, 1914, a deep- seated infection developed in the lower leg below the knee and it was held that this infection could be traced to the original injury, in view of the improbability of the existence of any other cause, and compen- sation was awarded. Melia v. The Race BrooJc Country Cluh, 1 Conn. Comp. Dec. 549. An employe suffered an injury to his foot which produced such a physical condition that it was susceptible to infection from a slight injury, and thereafter, probably from a chafing of his shoe, a break of the skin was caused which resulted in blood poisoning and death. It was held that this/9fpgg#ij!^/ekj^ff^entitled the dependents to 396 bbadbuey's workmen's compensation law Infections and other ailments contracted by reason of lowered vitality compensation. Maroney v. A. C. Gilbert Mfg. Co., Conn. Comp. Com., Third Dist., Beers, Com'r, Feb. 17, 1917 (unreported). Where a boy riding a bicycle was injured in his hip by a fall from the wheel and infection developed causing serious injury and long disability, it was held, on conflicting medical testimony, that the in- jury was due to traumatism and not to an infectious disease which the boy had suffered four years previously. Lannin v. Simphins, 3 Cal. Ind. Ace. Com. 127. Where a workman suffered an injury to the hand and after the in- jury had healed he died from septicaemia, which a post-mortem ex- amination showed to be in the shoulder, it being impossible to trace the infection from a distance greater than the elbow, but the medical testimony being that it was possible for the infection to have come from the wound in the hand and not be traceable at the time of the death, it was held that this was an injury arising out of the employ- ment. Engstrom v. The L. Cmidee & Co., 1 Conn. Comp. Dec. 691. Where blood poisoning resulted from a very small injury to a finger by some sharp object in a sponge which the employe squeezed with his hand, resulting in the loss of a finger and serious disability on account of the septic infection extending to other portions of the body, compensation was awarded for the total disability and also for the specific disability for the loss of the finger. Foley v. A. T. De- marest & Co., 1 Conn. Comp. Dec. 661. Where a workman suffered from blood poisoning through a wound in the hand and shortly thereafter developed internal abscesses from which he died, it was held that the dependent had failed to prove that the injury causing the blood poisoning had also been the proximate cause of the internal abscesses and compensation was refused. Olney V. West side Lumber Co., 2 Cal. Ind. Ace. Com. 272 ; 11 1;^. C. C. A. 328. 74. Infections and other ailments contracted by reason of lowered vitality due to previous injuries. After recovering from the direct effects of an accident a workman did not regain his normal health, but continued in a weak and de- bilitated condition. Eventually he died, thirteen months after the accident, from bronchitis following influenza. It was held that the bronchitis proved fat^'Sfefif^^^fTne condition to which the accident "WHAT IS AN " INJTJEY " OK AN " ACCIDENTAL INJURY " 39Y Infections and other ailments contracted by reason of lowered vitality had reduced the deceased, and that death resulted from the injury. Thoburn v. Bedlington Coal Co. (1911), 5 B. W. C. C. 128. Where the employe developed a condition of tuberculosis, which condition was said by the physicians to be due to shock and low vital- ity, resulting from the original injury, it was held that he was entitled to compensation. Re L. F. Perron, Op. Sol. Dep. C. & L., p. 579. A workman who had undergone an operation returned to work be- fore the operation wound was completely healed, with instructions not to strain hihiself. He worked at the lever of a machine. A fel- low workman, noticing that the machine was stopped, looked for the man and saw that he was talking to the foreman some yards away. It was then seen that blood was flowing freely from the operation wound and soaking into his boots. Septic poison followed, and the man died. In the absence of direct evidence as to what had hap- pened the court drew the inference that the wound had burst open through the strain of working the lever, and awarded compensation to the dependents. Groves v. Burroughes & Watts (1911), 4 B. W. C. C. 185. A severe accidental injury which, although it does not incapacitate the employe, exposes him to an infectious disease, and so weakens him that he is unable to withstand it, may thus give rise to a disability for which compensation is payable. Re J. B. Atkinson, Op. Sol. Dep. C, & L., p. 197. In the course of his employment, the claimant in this case came in contact with a live electric wire which caused him to fall from the ladder on which he was working a distance of about thirty-two feet. He was badly bruised, the ligament of his right shoulder was torn loose, and he was unable to use his lower limbs. ^Notwithstanding the seriousness of his injury the decedent continued work for a time, when he was compelled to give up, at which time his condition was diagnosed as typhoid infection, from which disease he died a short time later. The examining physician testified that the deceased was very susceptible to infection from typhoid fever, his system not being able to withstand an attack of that disease, by reason of the fact that he had never recovered from the effects of the injury. It was held that under such circumstances he was entitled to com- pensation-. Applicant claimed compensation for indigestion which he alleged had resulted from an ^^^JeWyii/l}jro%M&''^ ^°^* '^^'''^ '*'"''^' ^™ 398 BEADBUEy's "WOEKMEn's COMPENSATIOlir LAW Inhalation of noxious gases on the head ten months previously to the date of the claim. The original injury had necessitated an operation. Compensation was denied, on the ground that the applicant had fully recovered from injuries which were the proximate result of the accident. Kawalhi v. Wausau Sulphate Fibre Co., Wis. Indus. Ace. Bd., Aug. 24, 1912. Where an employe was kicked by a horse in July and he died in October following, it was held that there was no causal connection between the kick and the death, and the claim of the widow for com- pensation was denied. Boyd v. Travelers Insurance Co., Mass. Indus. Ace. Bd. 75. Inflammation of kidneys from standing in v^ater. A workman stood for a fortnight up to his knees in water in work- ing in a millrace. He died from inflammation of the kidneys and it was held that this was an accidental injury. Sheeran v. Clayton & Co. (1909), 44 Irish L. T. 52; 3 B. W, C. C. 583. 76. Inhalation of dust.^ Incapacity caused by the inhalation of fine dust into the lungs in the course of employment is held to be an injury under the Federal Act. Re Edward Edmonds, Op. Sol. Dep. L., p. 259. Pneumoconiosis (the condition resulting from the deposit of dust or foreign material in the lungs) is not such an accidental injury as is covered by the Connecticut Act, even assuming that there was evi- dence to support a finding that the death or disability of an employe was caused by such occupational disease. Herstfelt v. Hartford ■ Faience Co. and Boyal Indemnity Co., Conn. Comp. Com'r, First Dist., June 23, 1916 (unreported). The Commissioner followed the decision of the Court in the case of Miller v. American Steel and Wire Co., 90 Conn. 349 ; 97 Atl. 345. 77. Inhalation of noxious gases. Involuntary inhalation of gas has been held to be an accidental injury within the meaning of a policy insuring an individual against accidental injury. Paul v. Travelers Ins. Co., 112 N". Y. 472 ; Ficheti V. Pacific Mut. Life Insurance Co., 144 Pa. St, 79 ; Polloch v. United 1 See title Dust. Digitized by Microsoft® 399 Inhalation of noxious gases States Insurance Co., 102 Pa. St. 230; United States, etc.. Associa- tion V. Newman, 84 Va. 52 ; Sinclair v. Maritime Passengers Ins. Co., 8 Ellis & Ellis 476. Optic neuritis caused by noxious gases and resulting in total loss of vision was held to be a personal injury entitling the employe to compensation for total permanent disability and specific indemnity for loss of eyes. Hurle v. Am. Mut. Lia. Ins. Co. (1914), 217 Mass. 223 ; 104 K E. 336 ; 4 N. C. C. A. 527. A miner employed in a mine died from pneumonia caused by the inhalation of gas generated by an explosion. It was held that the death was the result of the accident. Kelly v. Auchenlea Coal Co. (1911), 48 Scotch L. R. 768; 4 B. W. C. C. 417. A workman contracted the disease of enteritis from inhaling sewer gas in the course of his employment. The result was to accelerate long standing heart disease, and to incapacitate, the man from work before the time at which such heart disease would otherwise have incapaci- tated him. It was held that this was not a personal injury by acci- dent. Broderich v. London County Council (1908), 1 B. W. C. C. 219, A caretaker of an empty, house was told to lay open the drains, man- holes and cesspools for inspection. He did this on several occasions in July, and becoming ill, died in the following October, from poison- ing contracted from the drains. The County Court judge found that it was not possible to specify the date when he contracted the disease. It was held that the workman had not died from a personal injury by accident within the meaning of the Act ; that a disease, although arising out of and in the course of the employment, is not a personal injury by accident, if it cannot be shown to have been contracted at a particular time and place. Ehe v. Sir William Hart Dyhe (1910), 3 B. W. C. C. 482. A gas fitter inhaled some coal gas, and three days later suffered from paralysis due to cerebral hemorrhage, from which he died shortly after. Seven months previously he had had a transient attack of paralysis from the same cause. On his death his widow contended that the death was due to the gas poisoning, but the County Court judge decided against her. On appeal it was held that it was a ques- tion of fact for the County Court judge to decide. Dean v. London & North Western Bailw(iy^l^ei^^(t^iph'^M- 0. C. 351. 400 Inhalation of noxious gases The contraction of acute bronchitis and lead poisoning, as the re- sult of the inhalation of gas fumes from an oxyacetylene-burning ma- chine was held to be an injury under the Federal Act. Be C. M. Arata, Op. Sol. Dep. L., p. 264. Where a man working in a caisson became incapacitated by inhaling minute particles of red lead, it was held that this was a compensable injury. -Be. Randolph A. Thayer j Op. Sol. Dep. L., p. 266. An employe developed cardiac hypertrophy, causing death, as a result of the inhalation of the fumes of ether, in the course of employment in a mixing house at the Naval Proving Ground and compensation was awarded. Re Basil E. Clark, Op. Sol. Dep. L., p. 270. A laundry worker on opening a bundle of laundry smelled an offensive gas and immediately became dizzy and faint. On the third day thereafter the employe was found to be suffering from heart trouble of a kind which the physician testified could not be produced in a few days by any known cause, and it was held that this was not such an injury as entitled the employe to compensation. Bennett v. San Bamardino Laundry Co. (1916), 3 Cal. Ind. Ace. Com. 229. A workman employed in cleaning a wine vat became dizzy and sick, which he attributed to carbon monoxide poisoning, but upon expert testimony to the effect that such gas was never produced from fer- mentation compensation was denied. Oustafson v. Parlier Winery, 2 Cal. Ind. Ace. Com. 122. Where an employe was killed by breath- ing carbon monoxide gas in a beer tank where charcoal had been burnt to dry the tank, it was held that this was an accidental injury. MarTct V, National Brewing Co., 2 Cal. Ind. Ace. Com. 876. See also Bur- gess V. Oeorge Star and Empire Mines and Investment Co., 2 Cal. Ind. Ace. Com. 86 ; affirmed on rehearing Burgess v. Star and Empire Mines and Investment Co., 2 Cal. Ind. Ace. Com. 88. An auto- mobile mechanic while employed in a well-ventilated garage suffered anaemia and general debility, but no other employe working in the same place was affected. It was held that the injury did not arise out of the employment. Titus v. Arnold (1916), 3 Cal. Ind. Ace, Com. 282. A plumber who was doing repair work discovered the odor of gas, and upon lighting a match an explosion followed. After the fire had been extinguished by the municipal firemen he again began to search for the leak by the seo^/(9^|p][^l/i^fe(^Ji#®uddenly toppled over and 401 Insanity died. The death seemed to have been caused by the combination of asphyxiation frpm the smell of the gas and the excitement caused by the explosion and it was held that death was due to an injury arising out of the employment. Coady v. Igo, 1 Conn. Comp. Dec. 576. Where it appeared that a blacksmith inhaled gas fumes from a forge, by reason of the fact that combustion of the coal burned in the forge was incomplete, and the sickness that followed was a gradual develop- ment covering a period of several years, it was held that this was not such an injury as entitled the workman to compensation. Ilayden v. The Connecticut Co., Conn. Comp. Com'r, Third Dist., June 16, 1916 (unreported). Where the death of a miner was caused by inhaling poisonous gases known as " black damps " or " white damps," it was held that this was an injury which arose out of the employment. Giacohhia v. Kerno-Domewald Coal Co., 1 Bull. 111. Ind. Bd. 196. Where a workman was disabled by reason of poisonous gas fumes which he inhaled and which had been allowed to accumulate and re- main in a place where he was required to work, and the employe had made a claim for compensation, which had been denied by the Work- men's Compensation Commission, on the ground that the injuries were not the result of an " accident," it was held in a subsequent ac- tion by the employe against the employer for common -law damages that the decision of the Commission was res adjudicata as to whether or not there had been an accidental injury, but the court expressed the opinion that the employe had in fact suffered an accidental injury. The court therefore overruled a demurrer to the answer setting forth the decision of the Commission as res adjudicata and held that the defense was good. Naiid v. King Sewing Mach. Co., 95 Misc. 676; 159 Supp. 910. 78. Insanity. An accidental injury to the eyes resulting in total blindness, pro- duced a condition of mind upon which softening of the brain super- vened, causing death. It was held that death resulted from the injury. Mitchell V. Grant & Aldcroft (1905), 7 W. C. C. 113. A workman who had previously lost the sight of one eye received injuries to the other in the course of the employment. He became almost blind. In con3Et[gJiixedlb^ Mktrass^^stem broke down and 26 402 BKADBUEy's workmen's COMPENSAfldN LAW Insanity insanity followed. He later committed suicide. His widow applied for compensation and the application was dismissed by the arbitrator. It was held on appeal that, without saying whether or not the claim could eventually be made out, the claimant was entitled to go to proof, and the arbitrator ought not to. have dismissed the case as irrelevant upon its face. Malone v. Cayzer, Irvine & Co. (1908), 45 Scotch L. E. 351 ; 1 B. W. C. C. 27. An employe sustained an injury in the course of his employment resulting in temporary total disability. Before he had completely recovered from the injury he suddenly became insane and was com- mitted to an asylum. The wound received had healed at the time of his becoming insane and there was nothing to indicate that the in- sanity resulted from the wound. It was held that the disability re- sulting on account of fhe insanity did not result from an injury sus- tained in the course of the employment. Re Charles Edner, Claim No. 1320, Ohio Indus. Ace. Bd. 1913. A motorman was operating an elevated train in New York City when his train collided with another train, as the result of which the motorman received a shock which caused insanity and compensation was awarded. McMahon v. Interhorough Rapid Transit Co., 5 !N". Y. St. Dep. Eep. 371; additional decision. Id. 374. In the last- mentioned case there was a dissenting opinion by two of the Commis- sioners on the ground that the insanity of the motorman was due to the fact that he was arrested and locked up on a charge of homicide and that he lost his position, and these Commissioners were of the opinion that the cause of the mental condition of the motorman was too remotely connected with the accident to justify an award of compensation. Where, after an accidental injury, an employe became insane, but there was no causal connection between the injury and the insanity, it was held that the insanity did not result from an injury. In re Elner, 1 Bull. Ohio Ind. Ace. Com. 47. Insanity proximately caused by an accidental injury is a proper basis for compensation. Thomas Francis Hayes v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I) 218. Where an employe was present at the scene of the death, by acci- dent, of several nf his fpllow workmen, and such employe attempted to aid in the rescue apT/^^sli^o/Vfcggfii/i^ the result of the mental 403 Insect bite and emotional shock, incident to the excitement, peril and sense of duty to aid in the rescue, it was held that such insanity was a disability caused by accident. Reich v. City of Imperial, 1 Cal. Ind. Ace. Com. (Part II) 337. An employe was in a hospital because of blood poisoning following an accidental injury. By reason of the blood poisoning his niind became unbalanced and during the night he ran out of the hospital and disappeared. On the following morning his dead body was found on the railroad track. It was held that there was sufficient connection between the injury, the infection of the hand and subsequent death so that the death could be said to be the direct resiilt of the accident. Chiesa v. United States Crushed Stone Co., 1 Bull. 111. Ind. Bd. 82. A blistered hand became infected requiring two operations. By reason of the suffering of the employe and the previously impaired nervous state he became insane, and it was" held that the connection between the personal injury and the insanity being unbroken, this was a personal injury arising out of employment. Whalen v. United States Fidelity & Guaranty Co., 2 Mass. Ind. Ace. Bd. 318 ; 11 IST. C. C. A. 498. Eight days after an operation for the cure of a hernia the patient began to show signs of nervousness, which rapidly developed into insanity, culminating in death four months later. It appeared that the patient had a hereditary predisposition to insanity. It was held that the shock of the accident, operation and anesthetics did not cause the insanity and compensation was refused. Kato v. Godin (1916), 3 Cal. Ind. Ace. Com. 333. Where after an accidental injury an employe ^became insane, but it was found that the insanity was due to constitutional disease, com- pensation was refused as the disability was not caused by the injury. Hansen v. Patterson Ranch Co., 2 Cal. Ind. Ace. Com. 76T. 79. Insect bite. A claim of a dependent that death was due to infection from the bite of an insect was held not to be proved and compensation was re- fused. Campbell v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 701. Where an employe working in a cannery was bitten by a spider while eating luncheon upon the employer's premises, and it was not shown that the canner j)!^igi^q§$e4^>|fe§B^ers to any degree greater 404 Lead poisoning than any other building in the same community, it was held that the accident did not arise out of the employment and compensation was refused, on the ground that the employe was not specially exposed to the danger of such injury. Sterling v. Inderredian Co., 2 Cal. Ind, Ace. Com. 192. In the last-mentioned case it is said by way of dictum that if the spider had been concealed in the fruit being handled, and h'ad bitten the person sorting or handling the fruit com- pensation might have been awarded. It was also said, by way of dictum, that the fact that the accident occurred at the noon hour would not prevent an award if there was evidence that the employe was exposed to any special risk of being so bitten by reason of the character of the premises or the nature of the work being done. Disability caused by an infection following an insect bite was held to be an accidental injury. In re Drave, Ohio Ind. Com., !N^o. 110,- 808, Sept. 24, 1916 ; 11 IST. C. C. A. 497. 80. Intestinal ulcers. Compensation was denied for disability caused by intestinal ulcers, it being held that the evidence was insufficient to show that there had been any injury sufficient to cause such ulcers. Hyland v. D. Wi- nant. Inc., 6 N. Y. St. Dep. Eep. 304. 81. Ivy poisoning. A section laborer on a railroad was mowing grass on the right of way and became infected with poison ivy resulting in blood poison- ing from which he died. It was held that this was an accidental injury. Plass v. Cmtral New England By. Co., 169 App. Div. 826 ; 155 Supp. 854; aff'g 4 N. Y. St. Dep. Eep. 331. 82. Lead poisoning.^ Lead poisoning is not an accident. Steel v. Cammell, Laird & Co. (1905), 7 W. C. C. 9. ISTor is an attack of colic through lead poison- ing. Williams v. Duncan (1898), 1 W. C. C. 123. Where an applicant for compensation contended that the death of the workman had been caused by lead poisoning, or its consequences, and it appeared in this particular case that the immediate cause was 1 See Copper poisoning; also general discussion of application of acts to in- jnrles from lead Polson^.p|g^^^.^.p^^^^^@ WHAT IS AN " INJURY " OE AN " ACCIDENTAL INJURY " 405 Lead poisoning granular kidney, which might have been hrought aboout by gout, alcoholism, heart-pressure, or other complaints, it was held that the claimant had not maintained the onus of proving that the death was caused by lead poisoning, Hayleti v. Vigor & Co. (1908), 1 B. W. C. C. 282. This case arose under the amendment to the British Act allowing compensation for certain industrial diseases, including lead poisoning. Under the British Act compensation cannot be awarded for lead poisoning as an occupational disease unless it was contracted within the previous twelve months of the workman's death. Dean v. Butiian Art Pottery Co. (1914), Y B. W. C. C. 209. Lead poisoning was held to be an injury under the Federal Act. Re Willard E. Jule, Op. Sol. Dep. L., p. 261 ; overruling Re John Treiman, Op. Sol. Dep. L., p. 204 ; and Re C. L. Schroeder, Op. Sol. Dep. L., p. 210. Compensation cannot be awarded for lead poisoning under the Cali- fornia Act unless the employe was exposed to lead poisoning in the course of his employment by the defendant from whom he claimed compensation. Clay v. Joe Goeiz (1916), 3 Cal. Ind. Ace. Com. 202. Under the California Act, before it was amended eliminating the word " accident," lead poisoning was not an industrial accident. Johnson v. Bauer Pottery Co. and Fidelity and Casualty Co. of N. Y., 1 Cal. Ind. Ace. Com. (Part II) 12. Lead poisoning from the fumes of lead inhaled by an employe who worked in a room containing moulten metal was held not to be a per- sonal injury as used in the Connecticut Act and compensation was refused. Miller v. American Steel & Wire Co., 90 Conn. 349 ; 97 Atl. 345 ; rev'g 1 Conn. Comp. Dec. 345. Lead poisoning is a personal injury vdthin the meaning of the Massachusetts Act. Johnson v. London Guarantee and Accident Co., 104 K E. 735; 217 Mass. 388; 4 IST. C. C. A. 843. Where an em- ploye, who worked in a printing establishment, suffered from lead poisoning, but there was no evidence to show that lead fumes or lead dust or any compounded lead is given off in a printing office, or in such handling of type as that engaged in by the employe in question, to such an extent and in such form as to be liable to be taken into the human system and to cause plumbism, it was held that the court could not take judicial noti®/^#y|feg ;^}Wj^ife5TO a fact, and the case was 406 BEABBUEX'S -WOEKMEn's COMPENSATION LAW Lightning sent back for a new hearing. In re Doherty, 222 Mass. 98 ; 109 IS. E. 887. Lead poisoning is not an accidental injury within the meaning of the Michigan Act, and if the Act could be construed so as to include occupational diseases, it would be unconstitutional as the fact that it did include occupational diseases was not disclosed by the title of the Act. Adams v. Acme White Lead & Color Worhs, 182 Mich. 157; 148 ]Sr. W. 485 ; 6 ]Sr. C. C. A. 482. Lead poisoning is not an injury under the Ohio Act as passed in 1911 nor as amended by the Act of March 14, 1913, for although the constitutional amendment authorized the Legislature to include occu- pational diseases as injuries under the Compensation Act, this had not been done up to August, 1913. Industrial Commission of Ohio v. Brown, 92 Ohio St. 309; 110 N. E. 744; In re Peters, 1 Bull. Ohio Ind. Com. 25. Lead poisoning is not an accidental injury under the "Wisconsin Act. Derkinderen v. Bundle Mfg. Co., Fourth Annual Keport (1915), Wis. Ind. Com. 16; Mrez (Mross) v. Pfister & Vogel Leather Co., Third Annual Eeport (1914), Wis. Ind. Com., p. 46, 83. Lightning.^ A section foreman on a railroad took refuge in a barn during a thunder storm, at the direction of the foreman, and he was struck by lightning and killed, and it was held that this was not an accident arising out of the employment. Klawinski v. Lake Shore & M. 8. By. Co., 185 Mich. 643 ; 152 N. W. 218. Compensation was denied where the death of the employe was due to a stroke of lightning, while he was at work on a river dam. Iloenig V. Industrial Corrlmission of Wisconsin, 159 Wis. 646; 150 N. W. 996 ; 8 ISr. C. C. A. 192. In the last-mentioned case the court did not declare that compensation would be denied in every instance where death was due to lightning, but affirmed a decision of the In- dustrial Commission holding that the workman, in this instance, was not exposed to any extra hazard by reason of his occupation and seems to assume that if the workman had been in a specially dangerous posi- tion that compensation might have been awarded. In this connection 1 See same title in (Bfapts^SWlf Microsoft® WHAT IS AN " INJURY " OR AN " ACCIDENTAL INJURY " 407 Medical treatment causing disability the court cites and distinguishes the British case of Andrew v. Fails- worth Industrial Society (1904), 90 L. T. 611 ; 6 W. C. C. 11. 84. Lighting up inflammatory condition.^ An 'employe was struck on the ankle with a twelve-pound sledge hammer which lighted up an inflammatory condition of the ankle which later necessitated the amputation of the leg. It was held that this was a personal injury arising out of the employment. Gariella v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 237. 85. Medical treatment causing disability.^ It seems that a workman is entitled to compensation, although his condition is attributable to defective medical treatment. Beadle v. Milton & Others (1903), 114 L. T. 550; 5 W. 0. 0. 55. Whether present incapacity for work results from the injury or from neglect of medical or surgical advice is a question of fact. Smith v. Cord Taton Colliery Co. (1900), 2 W. C. 0. 121. A workman's hand was caught between two rollers and severely injured. In the ordinary course the hand would have been ampu- tated, but the surgeon endeavored to save the hand by thoroughly cleansing the wound. This being very painful, an anaesthetic was administered, and this operation, which was described as a "bold experiment," was successful, but two months after the first operation, in order to prevent contraction, which would have rendered the hand rigid and practically useless, it became necessary to graft some skin on the hand. This operation being painful, though not dangerous, an anaesthetic was again administered, and the man died under it. It was held that death resulted from the original injury and the widow was entitled to compensation. Shirt v. The Calico Printers' Ass'n (1909), 100 L. T. 740; 2 B. W. 0. C. 342. Blood poisoning through use of a hypodermic needle is an acci- dent. Bailey v. Interstate Cos. Co., 8 App. Div. 127 ; 40 Supp. 513 ; aff'd 158 ISr. Y; 723 ; 53 JST. E, 1123 ; Marchi v. Aetna Life Ins. Co., 205 ISr. Y. 606. Pneumonia following an operation necessitated by the employe's 1 See aggravation cases. 2 See Refusal of workmam to permit operation to he performed; also Aggrava- tion of injury 2>y «M6«e®(g»fi«e«^^Wtolti8®ff@- 408 Medical treatment causing disability injury, was the immediate proximate cause of death, and it was held that this was a personal injury which entitled the employe's widow to compensation. Raymond v. United States Casualty Co., Mass. In^us. Ace. Bd. An employe whose leg had been broken by reason of an accident was taken to a hospital by other employes, over his objection, but it was not shown that the employer authorized this action or employed the physician. It was held that the master was not liable for the negligent treatment by the physician in the public hospital. (E, L.) Allegar v. American Car & Foundry Co., 206 Fed. 437. Where the real cause of disability was the negligence of the surgeon who set a broken arm it was held that compensation could not be awarded as the injury of which complaint was made did not arise out of the employment. Rocca v. Stanley Jones & Co. (1914), 7 B. W. C. C. 101. The last-mentioned case was decided by the Court of Appeal of England. The court cited and followed the case of Hum- her Steam Towing Co. v. Barclay (1911), 5 B. W. C. C. 142; 11 ]Sr. C. C. A. 759, and followed and approved the following language from that case : " In this case we have been asked by Mr. Owen to say not only that the employer is liable, in the Words of the Act, for personal injury by accident arising out of and in the course of the employment, but that he is an insurer of the medical man, the chemist, and the nurse who attended the man, and is liable, in the event of any of them being guilty of gross negligence, which gross negligence might be found as a fact to be the real cause of the dis- ability at the time the matter came before the County Court judge. The question before us to-day is really a simple one. The man met with an accident, which resulted in his arm being badly broken. He went to a bonesetter, who made what was called a * vicious union,' the bones being badly united. Nothing was done by the bonesetter to put this right at the time when it would have been easy to rectify. That went on until a much later stage, with the result that the man has now got an arm which cannot turn. The employers after a time sought to reduce or terminate the payments to the man on the ground that the present condition of the man was not due to the original acci- den, but was substantially due to the want of skill and negligence of the bonesetter. It was said that, in ordinary circumstances, if the bone had been propfi^'^^cJi'XlMferQS^i^ he would have been quite 409 Medical treatment causing disability right. That poiut was distinctly raised before the judge, and it is evident that he did not make any finding with regard to it, which was the only real issue in the case, namely, whether or not the man's present condition is due to the original accident or to the negligence of the honesetter, against whom the man brought an action and re- covered damages." A workman fell aud iujured his knee and was attended at a local hospital for several weeks with little improvement. An X-ray ex- amination was then made from which it was found that there was a broken bone and proper treatment was administered. The conten- tion of the employer that the incapacity was due to improper medical treatment was overruled and compensation was awarded. Harrison V. Ford (1915), English Court of Appeal, 8 B. W. 0. C. 429. An extended disability resulting from a wrong diagnosis of the physician, furnished by the employer or insurance carrier, is such an injury as entitles the workman to compensation for such extended disability. Johnson v. Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 560. Where an injury was aggravated by inefficient attention by an un- licensed physician in a case where the employer had had the oppor- tunity of furnishing medical attention, but had failed to do so, it was held that this was such an injury as entitled the employe to compen- sation. Stockwell V. E. M. Waymire, 1 Cal. Ind. Ace. Com. (Part II), 225. "Where disability was aggravated by conscientious but improper treatment given to the injury by the injured employe herself, result- ing in an infection which could have been avoided by the employer promptly furnishing medical services, it was held that the employer was liable for the medical expenses consequent upon such aggrava- tion. Forgues v. Southern Pacific Co., 2 Cal. Ind. Ace. Com. 964. Where an employer failed, after notice, to furnish medical atten- tion, and the employe went first to one physician and then to another in uncertainty as to what to do, and because of this neglect an in- fection to a wound in the hand eventually required the amputation of the arm at the elbow, instead of amputation of the finger, it was held that the employer was liable for the disability resulting from the loss of the arm as well as for the medical expenses. Sams v. Romas & Dorros. 2 Cal. IndiPI^l^-^ MiBCOSOft® 410 BRADBtTEY's WOEKMBn's COMPElSrSATIOlSr LAW Mental shock or fright and nervous troubles Where an injured employe did not consider the injury sufficiently serious to require medical treatment and for a few days endeavored to treat it himself and thereby burned the skin so that infection set in and it appeared that disability had been prolonged by reason of the faulty treatment, it was held that inasmuch as the employe had not been guilty of gross or willful negligence in thus treating his own injury, that the entire disability was caused proximately by the in- jury. Stark V. Bates, Borland & Ayre (1916), 3 Cal. Ind. Ace. Com. 280. Where a prolonged disability is due to inadequate medical attention the employe is entitled to compensation. Schofield v. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 95. Where an employe failed to follow the directions of a physician as to the treatment of an injury, compensation was allowed for such time as it was e&timated' the workman would have been incapacitated if he had followed such directions. Reiner v. Morris Plains State Hospital (Morris Common Pleas, 1914), 37 N. J. Law J. 179. 86. Meningitis following accident. An employe suffered an accident by having the great toe injured to such an extent that it was necessary to amputate it. Some weeks after the employe was discharged by the physician he was afflicted with a series of boils and still later he died from meningitis, due, presumably, to infection from the boils. It was held, however, that the dependents had not sustained the burden of proof of showing that the meningitis was due to the injury. Stephens v. Clark, 2 Cal. Ind. Ace. Com. 178; 11 N". C. C. A. 715. 87. Mental shock or fright and nervous troubles.^ A workman has been held to have suffered an accidental injury by witnessing the effects of an accident to a fellow workman whereby nervous shock resulted. Ywtes v. South Kirhy Featherstone & Hems- worth Colliers (1910), 103 L. T. 170; 3 B. W. C. C. 418; 3 K C. C. A. 225. In the last-mentioned case the Court said : " When a man in the course of his employment goes to a place and sustains a nervous shock producing physiological injury, not a mere transient . See Insanity; NeurSSISlitized by Microsoft® WHAT IS AN " IN JUET " OE AW " ACCIDENTAL INJURY " 411 Mental shock or fright and nervous troubles emotional impulse, it is an accident arising out of and in ttie course of his employment. It is something unexpected, no doubt, in this sense, that I do not suppose the man thought for a moment or knew when he was doing what was plainly his duty in going to the rescue of the other party, that it would have this physiological effect on his sustem. It had that effect. There was no malingering here. It was a perfectly genuine case. Mr. Simon has not suggested anything to the contrary; and I should not myself. I think this is a case which falls within the Act of Parliament on the same principle and in the same way as if the man, on going to the rescue of the other collier, was injured by this fall, or had stumbled or fallen on his way there. That, undoubtedly, would have been a case within the Act, and I can see no real difference in principle (when once you get rid of the danger of malingering), between that case and the case where a physiological injury — physiological damage — is produced' by rea- son of what happened to this man when he went in the course of his duty to the neighboring stall, and saw what had happened to this workman." In this case a man, while at work, heard an outcry from an adjacent chamber. He found a miner severely injured and so badly wounded that he died. Subsequently the rescuer alleged that he was so affected by the appearance of peril of the miner that he was incapacitated from further employment and this was held to be a personal injury by accident. Neurosis following an injury entitles an employe to compensation when incapacity for work is due to the neurosis. Lata v. American Mutual Liability Ins. Co., Mass. Ind. Ace. Bd. Applicant was badly injured as the result; of a fellow employe allowing an axe to fall 45 feet and strike applicant's right shoulder. The collar bone was severed and a ghastly wound inflicted. There was no infection, but the applicant was not, up to the time of filing the application, able to use his arm in any degree and professes, as a result of the injury, a total paralysis of the arm and a partial paralysis of the entire right side. He had performed no labor for nearly a year following the accident. Defendant paid $393.75, and then discontinued further payments on the grounds that applicant was not totally disabled as claimed, but only partially so. Applicant refused to accept a reduced payment and instituted the proceeding. The only issue was tEfc'aalat3f*jaMoB»ISBift®f the injury, and the de- 412 beadbuey's workmen's compensation law Mental shock or fright and nervous troubles termination of this point was left to expert medical and surgical practitioners. Held that it was a clear case of hysterical paralysis, in accord with the expert medical testimony of the defendant, and that there was no malingering. The compensation awarded was for $231.25, this sum being the balance due of a total sum of $626, and it was further ordered that $12.50 be paid for each and every week duriiig the continuance of said total disability or until the total pay- ments on account of such disability shall equal three times his average annual earnings, or $3,000. Saniini v. Mammoth Copper Mining Co., Cal. Ind. Ace. Bd., Oct. 14, 1913. Compensation was denied on the application of a railway conductor who contended that he had suffered a nervous breakdown as a result of the employment in the service of the company, Campbell v. De- troit United Railway, Mich. Ind. Ace. Ed,, Oct. 15, 1913; The Indicator, Oct. 20, 1913, at page 417. Where a personal injury is caused to a workman by accident, his right to claim compensation continues so long as the nervous effects remain, if they produce total or partial incapacity for work. Eaves V. BUenclydach Colliery Co. (1909), 100 L. T. 747; 2 B. W. C, 0. 329. A relief stamper crushed her finger, and after a period of time had physically recovered from her injury, but dreaded to return to her old work for fear she should again injure herself. It was held that the total incapacity for work had ceased and an award of Id, a week was all she was entitled to have. Pimms v. Pearson (1909), 2 B. W. C. C. 489. Althongh nervousness may be the result of an accident, if it is such as an average reasonable man could overcome it is not sufficient ground for compensation. Turner v. Brooks & Doxey (1909), 3 B. W. 0. C. 22. In the last-mentioned case the workman had suffered an injury of a not very serious nature. He returned for a short time and then went to a convalescent home and after that returned to work and continued in it for a period of eighteen months. Then he complained that because of nervousness due to the accident he was unable to work. The County Court judge denied compensation and this decision was affirmed by the Court of Appeal. Among other things the County Court judge saidt "It is one of the most difficult tasks we have in the working of tne'X^if neMing fairly with employers 413 Mental shock or fright and nervous troubles and men, to deal with cases which are partially neurasthenic, and where the man does not desire to go back to work for a variety of reasons which have really nothing much to do with the original acci- dent. I make a finding that the man if he desires further rest can have it at his own risk. I think that the applicant is fit for his work, and that his refusal to continue working is due to nervousness which an average reasonable man would overcome. * * * j cannot help saying that these neurasthenic claims are on the increase. I know that the better class of working men will take the same view that I do of them. They are not good for the general body of the working community at all. It is not good that these neurasthenic cases should be continually up before the country." The Court of Appeal drew a distinction between this decision and the case of Eaves v. Blaen- clydach Colliery Co. (1909), 2 K. B. 73; 2 B. W. C. C. 329. An applicant for compensation was working in a loft when a plank on the floor broke and he hurt his leg. As he was unable to walk he was taken to the hospital and was put under a high frequency electrical treatment, which was so efficacious that in five minutes the man seemed to be completely cured and was able to wajk about. He was discharged as cured, but when he went back home he became as bad as ever. Again he returned to the hospital and had the electrical treatment administered, with the result that in a few minutes again he was apparently as well as ever. Within a few days after return- ing home he once more broke down and became as bad as before. The man alleged that he was unable to do any work. A physician giving evidence for the employe said he did not think Osband was malingering. He was suffering from traumatic hysterical para- plegia, and was unfit to do any work. Witness had told the man that a cure might be effected if his house suddenly caught fire, because he would then probably make a rush for the stairs and go down all right. The County Court judge decided that the man was suffering from traumatic hysterical paraplegia, and that it was not an imaginary paralysis, because he was not suffering from any paralysis at all. That his condition was one of hysteria, and in the opinion of himself and the medical referee the man could not exercise his will to com- mence work. He was, therefore, entitled to compensation. Osband V. Tahor (1912), " The Policy Holder," April 10, 1912, p. 296. Where an elevator ©p&fftfl^^i&pfiiJfig/i® saw a fellow workman 414 beadbdet's woekmbn's coMPEirsATioiir law Neurosis about to be killed sustained a stroke of paralysis resulting later in his death, and it appeared that the paralysis was due to hemorrhage of the brain caused either by severe mental shock or by a cerebral embolism, due to a former diseased condition of the heart, it was held that such evidence was insufficient to prove that the paralysis and death were caused by an accident arising out of the employment. Eech V. Morehouse, 2 Cal. Ind. Ace. Com. 311. 88. Mine gas poisoning.^ While it was assumed that mine gas poisoning would be an injury arising out of the employment, it was held in the present case that the evidence was insufficient to show such an injury. Burgess v. Empire Mines and Investment Co., 2 Cal. Ind. Ace. Com. 86. 89. Neurosis." Traumatic neurosis causing actual disability is ground for com- pensation. Hahala v. JacohsenrBade Co., 1 Cal. Ind. Ace. Com. (Part II), 328. Traumatic neurosis which follows a fall and injury to the spinal column is such an injury as warrants a claim for com- pensation. Manfredi v. Union Sugar Co., 2 Cal. Ind. Ace. Com. 185. The belief of a workman that he continues to be disabled and that he is in a serious condition so as to incapacitate him from perform- ing his usual labor is to be attributed to traumatic neurosis and where the weight of the testimony is overwhelmingly in favor of the findings that the workman has ceased to suffer any real disability compensation should be discontinued. Pendo v. Mammoth Copper Mining Co., 1 Cal. Ind. Ace. Com. (Part I), 80. Traumatic neurosis which arises from an accidental injury is a real ailment and is to be distinguished from malingering and during its persistence constitutes a disability for which compensation should be awarded. Kelley v. Facile Electric Railway Co., 1 Cal. Ind. Ace. Com. (Part II), 150. Where an employe received a blow on the head, causing no apparent serious injury, but from which injury resulted, a sincere belief on his part that he was incurably injured, which belief incapacitated him for work, it was held he, was entitled to compensation until his mental 1 See Inhalation of noxious ga^es. 2 See Mental shocJc ofirlyhi; irUM^''°^°'^® WHAT IS AN " INJtiEY " OE AN " ACCIDENTAL INJURY " 415 Neurosis balance was regained; the Commission deciding that in such a case they must rely on the best judgment and scientific knowledge of medical practitioners in guiding them in arriving at a decision as to whether or not the employe was really disabled. Bollnih v. /. B. Lankershim and Fidelity and Casualty Co., 1 Cal. Ind. Ace. Com. (Part. II), 45. Traumatic neurosis constitutes a definite disability for which com- pensation may be awarded. Where, however, it is shown that such traumatic neurosis may be cured by a proper scientific treatment an award may be made allowing compensation upon the basis of a tempo- rary partial disability, with the provision that if the employer shall tender proper hospital and medical treatment for at least thirty days to effect a cure, with full compensation during the period of deten- tion in the hospital, and if such treatment shall result in a cure com- pensation may be thereupon discontinued ; provided, also, that if the employe who is injured refuses to accept such hospital treatment, or if the employe and employer shall agree upon the kind of settlement of future disability payments to the satisfaction of the Commission, compensation may thereupon cease. Finley v. San Francisco Steve- doring Co., 2 Cal. Ind. Ace. Com. 195. Where a man suffered a blow over the eye and developed traumatic neuritis, which it would found might be caused by an aggravation of a pre-existing condition, it was held that the evidence was suflBcient to warrant the awarding of compensation. Roman v. The American Steel & Wire Co., 1 Conn. Comp. Dec. 566. Where after a severe burn from acid the employe suffered a nervous irritation from the scar compensation was allowed for a considerable period for disability thereby resulting. Ginshurg v. Hettrick, Conn. Comp. Com., Second Dist., July 31, 1916 (unreported). A " nervous upset and neurotic condition which is purely func- tional " causing " a condition of hysterical blindness and neurosis," following an injury to the workman's eye, after the physical injury had entirely healed, was held to be such an injury as entitled the workman to compensation while the condition continued. In re Hunnewell, 220 Mass. 351; 107 N. E. Eep. 934; aff'g 1 Mass. Ind. Ace. Bd., 463. l^eurosis following an accidental injury causing actual disability is such an injury as en8aB&'z^J^toP6^igsO/?@)mpensation. Boucher 416 BEADBUEY*S WOBKMEn's COMPENSATION LAW Nephritis V. London Guarantee and Accident Co., 1 Mass. Ind. Ace. Bd. 327 ; Cox V. Massachusetts Employes Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 177. Compensation was awarded for a condition of neurosis, on the report of the medical referee, after other examining physicians had certified positively that the employe was malingering. Cottam v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 428. Where a cigar maker suffered a condition of neurosis in his hands and arms with consequent inability to use them in making cigars, which condition was brought about by the unusual degree of strain upon certain groups of muscles for a long period of time and because of the rapidity with which he performed his work, it was held that this was a personal injury for which compensation should be awarded. Lee V. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 753. N^ervousness as the result of an accident may be such a disability as to warrant the award of compensation where it is found that the workman is not malingering. Kendall v. Tietjen & Lang Dry dock Co. (Hudson Common Pleas, 1915), 38 N, J. Law J. 309. Where a night watchman by reason of hearing shots fired was in a highly nervous state for ten days, at the end of which time he died, and a post-mortem examination disclosed that he was suffering from heart disease, it was held that the evidence was not suffieient to show that the fright had accelerated the disease so as to cause the work- man's death at an earlier period and compensation was denied. But it was assumed that if such fright had accelerated the disease and caused, an earlier death that a case would have been made in which compensation could have been awarded. Wilson v. Lake Hopatcong (Hudson Common Pleas, 1915), 38 N. J. Law J. 172. Total permanent disability was claimed for traumatic neuresthenia, but disallowed, and an award made for temporary disability, a part of the time, it would seem, for the disability caused by such neu- resthenia. Coslett V. Shoemaker (Morris Common Pleas, 1915), 38 ISr. J. Law J. 116. 90. Nephritis.* Nephritis, or Bright's disease, following a fall from a trestle and exposure to severe cold was held to be an injury entitling the claimant 1 See BrighVs diieaseDigitized by Microsoft® WHAT IS AN '' INJURY '' OR AN " ACCIDENTAL INJURY " 417 Occupational diseases to compensation. Gale v. Petroleum Development Co. (1916), 3 Cal. Ind. Ace. Com. 363. An employe suffered disability for less than two weeks from breath- ing sulphuric acid fumes and subsequently suffered disability from nephritis, but on the medical testimony it was held that while dis- ability might be caused by the inhalation of sulphuric acid fumes, it did not cause the nephritis and compensation was refused. Costain y. Carson Chemical Co. (1916), 3 Cal. Ind. Ace. Com. 334. Where an employe on a construction car was hit by a trolley pole when the trolley wire broke, and the blow, together with the shock of electricity, brought on a condition of acute nephritis and loss of vision, it was held that this was a personal injury arising out of the employ- ment. Cooper V. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 573. 91. Occupational diseases. Where a workman was engaged as a surface laborer at a coal mine , and suffered from nystagmus, it was held that he was not employed in any process of mining within the meaning of Schedule 3 of the British Act and that, therefore, it was necessary to prove that the disease was due to the nature of the employment and that the workman was not entitled to the statutory presumption. Scullion v. Cadzow Coal Co. (1913), 1 B. W. C. C. 833. A workman who had been in partnership with another discontinued the partnership and a trustee was appointed of the partnership busi- ness to wind it up. The workman then became employed by a coach painter and contracted lead poisoning. During the period that he was employed by the coach painter he spent a portion of an hour every day assisting the trustee of the partnership business in winding up its affairs. He claimed compensation from the coach painter who brought in the trustee of the partnership as a third party. It was held that there was no contract of employment between the workman and the trustee and that the coach painter alone was liable for the- compensation. Pears v. Oibhons (Nelson, Third Party, 1913), 6 B. W. C. C. 722. Where a certifying physician fails- to fix the date of the disable- ment the workman hasQ/gSj^filCftdia^ii^ealstffli/Hfee medical referee to fix 27 418 Occupational diseases said date. Birks v. Stafford Coal and Iron Co. (1913), 6 B. W. C. C. 617. Where a workmaii has been employed by several employers and suffers from an occupational disease compensation is recoverable under the British Act in the first instance from the employers who had last employed him during the twelve months immediately pre- ceding the disablement. Merry & Cuninghame v. M'Gowan (1914), 8 B. W. C. C, 344. Where a workman had been employed by several employers and it appeared that the disease was progressive during the entire employ- ment, it was held that the amount of compensation should be assessed as against each employer in accordance with the findings as to the progress of the disease during each employment, which was to be determined after hearing all relevant evidence as to the working con- ditions under the various employers and not by mere mathematical calculation in accordance with the time which the workman spent in each employment. Barron v. Beaton Burn Coal Co, (1915), 8 B. W.. C. C. 218. Where a workman does not suffer from an industrial disease until eight months after leaving the employment in which he contended it was contracted, the burden is on him of proving that the disease was contracted in such employment, as there is no presumption unless the disease manifests itself while the workman is still employed. M'Taggart v. William Barr & Sons (1914), 8 B. W. C. C. 376. Where a workman has suffered from an industrial disease and has been paid compensation up to the time he recovers from the disease, and subsequently takes similar employment, and by reason of his condition he is more susceptible to a fresh attack and he does have such fresh attack under the new employment, he cannot recover com- pensation from the old employer alone, but in any event should take proceedings against the new employer and in that event the old em- ployer may be brought in and the question of the liability for com- pensation from both employers be determined in one proceeding. 'Timpson v. John Mowlem & Co. (1915), 8 B. W. C. C. 178. Under a claim for compensation for an occupational disease it is not necessary that at the date of disablement the workman should have been in the service of the employer, but where the disability begins after leaving^^'^^l^iMnt he iffay still be entitled to com- WHAT IS AN " INJURY " OK AN " ACCIDENTAL i!nJTJEY " 419 , Operation (surgical) pensation. Archibald Russell v. Keary (1915) (Scotch Court of Session), 8 B. W. C. C. 410. Where a workman has received compensation on account of an occupational disease, but proceedings are taken to terminate the pay- ments on the ground that he has fully recovered, the workman's con- tention that he is liable to a recurrence of the disease must be sup- ported by the workman as to which he has the burden of proof. Dar- roll V. Glasgow Iron and Steel Co. (1912), Scotch Court of Sessions, 6 B. W. C. C. 354. An employe engaged in snapping and stripping string beans in a cannery, after working two weeks, noticed a blister or sore upon her thumb, which became worse, and within two or three days became in- fected, which subsequently required the amputation of the thumb, and it was held that the injury was accidental arising out of the employ- ment .and it was not an occupational disease and compensation was awarded accordingly. Pettit v. Mendenhall, 2 Cal, Ind. Ace. Com. 238. Where a prescription pharmacist, by reason of the poor lighting of his working quarters, and the fumes arising from the chemicals, suffered a constant irritation of his eyes, resulting in terrjporary dis- ability, it was held that this was rather an occupational disease than an accidental injury and compensation was refused. Boehme v. Owl Drug Co., 2 Cal. Ind. Ace. Com. 520. The Maryland Act does not cover occupational diseases. King v. Morgan Millivorlc Co., First Annual Eeport State Ind. Com. of Mary- land (1914-1915), 20. The Labor Department of Minnesota rules that occupational dis- eases do not come under the Minnesota Act. Bulletin No. 11, Minne- sota Dep. of Labor & Ind. 24. 92. Operation (surgical). Through an accidental injury a hernia was caused which necessi- tated an operation. The workman was suffering from another old hernia at the time. In order to perform the operation on the new hernia it was necessary to operate on both. By reason of the opera- tion the employe showed signs of heart failure from which he died and it was held that iM^I^^Sl ^Mm)iofm. accident arising out of 420 Optic neuritis the employment. Mutter, Howey & Co. v. Thomson (1913), Scotch Court of Session, 6 B. W. C. C. 424. A perfectly healthy dock laborer, fifty-one years of age, was struck in the lower part of the back by a heavy piece of timber. He was incapacitated three months and then returned to work for six months, but was never again strong and healthy. After complaining of in- creasing kidney trouble he was operated on for cancer of the kidney. He died from a clot of blood on his lungs, being the after-effects of a subsequent operation performed in order to heal more effectively the scar caused by the first operation. On conflicting medical testimony it was found that the death resulted from the injury by accident. Lewis V. Port of London Authority (1914), 7 B. W. 0. C. 577. An infection from an operation necessarily performed to set a broken bone is an accidental injury. Peck v. San Francisco-Oakland Terminal Railways, 1 Cal. Ind. Ace. Com. (Part II), 462. The deceased received an accidental injury which included a laceration of one of his fingers and gangrene set in necessitating amputation of the finger. Subsequently amputation of the forearm was required. The second operation resulted in pneumonia caused immediately by the effect of the anaesthetic and the surgical shock, and the pneumonia caused the death. It was held that this was an accidental injury. Favero v. Board of Public Library Trustees, The City Council of Richmond, and The City of Richmond, 1 Cal. Ind. Ace. Com. (Part II), 225. 93. Optic neuritis. The Massachusetts Act does not contain the word " accident," but provides compensation for personal injuries, and it was held that th-e term " personal injury " was much broader than " personal injury by accident " and included a case where the employe lost the total vision of both eyes, from an acute attack of optic neuritis, induced by the inhalation of poisonous coal tar gases, which escaped from a furnace through several holes, when the workman uncovered the holes to watch the fire to observe whether or not it was burning evenly. In re Hurle (Hurle V. Plymouth Cordage Co.), 104 N. E. 336; 217 Mass 223- 4N.C.C.A527;l>/^2 WHAT IS AN " INJTJEY " OR Als" " ACCIDENTAL INJUKY " 421 Palmer abscess 94. Osteosarcoma from fall. An employe alleged that he slipped on the stairs and osteosarcoma to the bone of the knee developed within twenty-four hours. On tbe medical testimony, however, compensation was denied, especially as the workman had failed to give notice of the injury, it being held that under the circumstances the employer was prejudiced. Marcontonio v. Charles Francis Press (1916), 9 IST. Y. St. Dep. Kep. 390. 95. Overheated employe becomes incapacitated by standing in draught. An employe was working at an oil-burning furnace near an open door when a rainstorm came up blowing the damp cold air on him while he was in an overheated condition. He was stricken with severe pains between the shoulderblades and elbow, so that he was unable to use either hand or elbow, shoulder or leg, and the nature of the injury was diagnosed as multiple neuritis, and it was held that this was a compensable injury. Be Charles J. Withy, Op. Sol. Dep. L., p. 273. 96. Overwork. An officer superintending the loading of a ship working ahnost continuously day and night for several days died of heart failure six days after the S'hip left port. The medical testimony was that the death was due to heart failure caused by the continuous strain of overwork. It was held, however, that there was no evidence of an accident and compensation was refused. Black v. New Zealand Shipping Go. (1913), 6 B. W. C. C. 720. Where a girl of subnormal physical condition was required to lift heavy crates and do other heavy work beyond her physical powers so that Sibe suffered a physical and mental breakdown and an old injury- was aggravated, it was held that this was an injury arisipg out of the employment. Pidgeon v. Maryland Casualty Co., 2 Mass. Ind. Ace. Bd. 348. 97. Palmer abscess. An employe received a personal injury by reason of the extreme pressure from the shears which he used in cutting a coil of wire, from which resulted a palio^f/gfeasg^ /Hjftfc^ofi^tic condition without a 422 Paralysis visible external wound. It was held that this was a personal injury for which compensation should be awarded. Erickson v. Massachu- setts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 149 ; 11 N. 0. C. A. 496. Where an abscess formed as the result of a break in the callous on the palm of the hand at some time during an employment in which an employe was in continuous handling of a hammer, but the injured employe was not aware of the exact time when such break occurred, it was held that this was an accidental injury. Zavella v. Naughton, 2 Cal. Ind. Ace. Com. 688. A palmar abscess caused by the kicking back of an engine of a truck while the employe was attempting to crank it was held to be an accidental injury. Judson v. Southern California Gas Co., 2 Oal. Ind. Ace. Com. 254. 98. Paralysis. ' Paralysis resulting from the rupture of a small blood vessel from unusual heat and over-exertion by an employe who had arterial sclerosis for two years was held to be an accident. La Veck v. Parhe, Davis <& Co., Mich. ; 15T N. W. 72; 12 N. C. C. A. 325; L. E. A. (1916) D, 1277. A miner was struck on the head by a mine prop and thereafter developed paralysis which was held to be the result of the injury and compensation was awarded for total disability. Frey v. Kerens- Donnewald Coal Co., 271 111. 121 ; 110 IST. E. 824. Paralysis from an em'bolism where it was not shovm that the em- ploye had suffered traumatism was held not to be an accidental in- jury. Mohr V. Cranford, Inc. (1916), 7 IST. Y. St. Dep. Eep. 376. A telephone switchboard operator suffered from paralysis of the left side of the face and head and adjacent organs, accompanied with great pain. The paralysis lasted for several months. The illness was attributed by the operator to continual pressure upon the seventh or facial nerve caused by the wearing of the telephone headpiece over the left ear. The California Commission denied compensation on the ground that the medical testimony showed that the paralysis was not due to the wearing of the switchboard apparatus. Wilson v. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part II), 414. Digitized by Microsoft® ■WHAT IS AN " INJUET " OE AN " ACCIDENTAL INJURY " 423 Pleurisy 99. Paresis, after injury but resulting from other causes. Where an employe was suffering from paresis after an injury, but it was found as a fact that the paresis was due to other causes than Ijie injury, compensation was denied. Mahay v. BamesovrHibberd Warehouse Co., 2 Cal. Ind. Ace. Com. 141. 100. Periarthritis. Periarthritis of the right elbow caused by being struck with a fall- ing board was held to be such an injury as entitled the employe to compensation. Jirgens v. State Compensation Ins, Fund, 2 Cal. Ind. Ace. Com. 134. 101. Peritonitis caused by electrical shock. An employe who had suffered an electrical shock died from septic peritonitis and on the medical testimony it was held that there was a failure of proof to establish that there was a causal connection between the shock and the peritonitis and compensation was refused. Merri- man v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 596. 102. Peritonitis from traumatism. Traumatic peritonitis necessitating the performance of an opera- tion for the removal of the appendix was held to be a personal in- jury arising out of the employment. Gregg v. Franhfort Oeneral Ins. Co., 2 Mass. Ind. Ace. Bd. 581. 103. Pleurisy. Compensation was awarded for pleurisy which it was found re- sulted from an accidental injury. Bias v. American Mutual Lia- hility Ins. Co., 1 Mass. Ind. Ace. Bd. 430. "Where an employe had, some time previously, an operation per- formed whereby two ribs were removed and then received an acci- dental injury which caused pleurisy and the aggravation of the con- dition of empyema which caused disability for a considerable period, it was held that this was an accidental injury. Bakiewicz v. National Brake and Electric Co., Fourth Annual Keport (1915), Wis. Ind. Com. 11. A canvasser and collector who to get his work done in time hurried up many flights of siemUSi ^WMiSSft^^^^^ *°*'^ ^ ^'^^v^^ '^^'°^ 424 Pneumonia developfid into pleurisy and incapacitated him from work. It was held that this was not an accidental injury. M'Millan v. The Singer Sewing Machine Co. (1912), 6 B. W. C. 0. 345. • 104. Pimple opened in unsanitary manner. An employe was trouble with pimples and at his request a fellow employe opened a pimple in an unsanitary manner, resulting in blood poisoning. It was held that such injury was not the result of an accident. Rebello v. Marin County Milk Producers, 1 Cal. Ind. Ace. Com. (Part II), 87. 104a. Pneumonia. A healthy and steady workman was employed to pick up cotton waste on the decks of a ship in dock. He went to work at one o'clock and at three p. m. climbed up the ladder of the hold, apparently in great pain, and he was sent home. He received medical attention and marks were found on his ribs. Three days later he developed pneumonia from which he died. The doctor who attended him at- tributed the pneumonia to the injury to his sides. It was held that there was evidence that the workman had died from personal injury by accident. Lovelady and Others v. Berrie (1909), 2 B. W. C. C. 62. The dependents of a workman who died of pneumonia contended that the pneumonia resulted from lowered vitality caused by an acci- dent. The only evidence that there had been an accident consisted of several inconsistent statements made by the workman, to various persons, on the day after the alleged accident, which were admitted without objection being taken. The medical referee gave a report that the pneumonia could not have been caused by the alleged acci- dent. It was held that there was no evidence that there had been an accident. Langley v. Reeve (1910), 3 B. W. C. C. 175. Miners working in a pit were ordered to ascend by shaft Wo. 1 to the surface by reason of a breakdown in the machinery of No. 2 where they ordinarily ascended. They could not go up shaft No. l^until all the men who usually went up that shaft had gone. They were kept waiting about an hour and a half at the foot of the shaft during which time they were exposed to a down draught of cold air. They were ho) and sweatiigjjfggyt^^jl^g^g^/jprk. One of the. men cou- WHAT IS AiSr " ITSTJUEY " OR AN " ACCIDENTAL INJUEY " 425 Pneumonia tracted a chill and subsequently died from pneumonia. It was held that the man's death resulted from an injury hy accident. Brown V. Watson (1914), 1 B. W. C. C. 259. In consequence of the injury to a pump miners were compelled to stand in. water for some time before being taken out of the mine in consequence of which an employe contracted pneumonia from which he died. It was held that this was an accident. Alloa Coal Co. v. Drylie (1913), 6 B. W. C. 0. 398. Pneumonia caused by an accidental fall on the floor by reason of which the employe suffered a blow upon the chest was held to be an industrial injury justifying an award of compensation. , Cledou v. Hof Brau Cafe (1916), 3 Cal. Ind. Ace. Com. 233. "Where an em- ploye who was in impaired physical condition due to overindulgence in intoxicants was knocked off a wharf into the water, and contracted pneinnonia from the exposure while waiting for an ambulance, al- though the injury was not a serious one, it was held that this was an accidental injury and compensation was awarded. Smith v. McPhee Stevedoring Co. and Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 19Y. Where a lumberman suffered a fracture of the leg and was confined to the hospital, thereafter coming down with pneumonia, and he died as a result thereof, the death being caused by his poor physical condition, it was held that such pneumonia was the result of the confinement and inaction due to the fractured leg and that the death was the proximate result of the accident. Majeau v. Sierra Nevada Wood and Lumber Co., 2 Cal. Ind. Ace. Com. 443. Where following an accident a workman was exposed to stormy weather for an hour and a half in seeking medical assistance and while in the hospital he developed pneumonia within a few days, it was held that the accident was the proximate cause of the pneumonia. Decormier V. Western Indemnity Co., 2 Cal. Ind. Ace. Com. 756 ; 12 IST. C. C. A. 326. Where an employe fell a distance of about three feet from a plank, striking the ground in a sitting position, complained of pain and stiffness for a few days, was taken with convulsions a week later and died ten days thereafter from pneumonia, it was held that such evi- dence was insufficient to show that the pneumonia and death were proximately caused by the accident. Senter v. Klyce, 2 Cal. Ind. Ace. Com. 695. A st43'i^<6JE^fWy« Mjga^a*®. storing frozen meats in 426 beadbuby's woekmen's compensation law Pneumonia a refrigerating room on a ship and was thus exposed to extreme cold in such room. He contracted pneumonia from which he died. It was held that this was not an industrial injury within the meaning of the Act. ' Iloefer v. Matson Navigation Co. (1916), 3 Cal, Ind. Ace. Com. 194. Where an employe died from streptococcic pneu- monia, but there was no evidence of an injury at a time sufficiently preceding the developments of the disease to indicate that it had had its origin in an accident which happened in the course of the employ- ment, it was held that the dependent applicant had not sustained the burden of proof of showing that the death was due to an accidental injury. Lucien v. Judson Manufacturing Co. and California Casualty Indemnity Exchange, 1 Cal. Ind. Ace. Com. (Part II), 59. A brewery foreman was forced to walk some distance through a heavy snowfall to get to his work, from which he was somewhat ex- hausted, and he was compelled to work an extra long shift thereafter, during which he was exposed to severe changes of temperature. Sub- sequently he contracted pneumonia and died, and it was held that the injury did not arise out of the employment. Linnane v. Aetna Brewing Co. (1916), Conn. ; 99 Atl. 507; rev'g 1 Conn. Comp. Dec. 677. Where pneumonia developed without any physical injury, although it was assumed that it might have been caused by the nature of the man's work and his exposure, it was held that no causal connection had been shown between the employment and the disease and com- pensation was refused. Shay v. Christian Feiginspan, Corp., 1 Conn. Comp. Dec. 232. Where a telegraph lineman had been exposed to bad weather and developed pneumonia from which he died, compensation was refused, on the ground that the dependents had not sustained the burden of proof in showing that there was any causal connection between the exposure to which the employe was subjected and the disease which caused the employe's death. Bockwich v. Housatonic Power Co., 1 Conn. Comp. Dec. 266. Pneumonia due to exposure is not a personal injury under the Iowa Act. Leg. Op. Iowa Ind. Com. (1915), 26. Lobar pneumonia contracted through inhaling damp smoke and in receiving a '^.''enchin^ W a^ emdoje^i^^^ to extinguish a fire on premises nearnnose or the employer where the employe was WHAT IS AN " INJURY " OE AN " ACCIDENTAL INJUKT " 427 Pneumonia engaged as a fireman to protect the employer'si premises was held to be an injury within the meaning of the Massachusetts Act. In re McPhee, 222 Mass. 1 ; 109 N. E. 633 ; 10 N. C. C. A. 257. Where a teamster slipped and fell, a wheel of the wagon passing over his right ankle and fracturing it and he developed pneumonia and died in the hospital twelve days later, and the medical evidence established a direct connection between the injury and the pneu- monia, it was held that the death was due to an accident arising out of the employment. Costello v. United States Casualty Co., 1 Mass. Ind. Ace. Bd. 265. Septic pneumonia following a scratch on the hand from a rusty pipe was held to be an injury for which compensation should be awarded. Coyle v. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 704. Where an employe got his feet wet in a leaky boat and pneumonia followed causing incapacity, it was held that this was a personal injury arising out of the employment. Stone v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 470. Compensation was claimed for death from pneumonia alleged to have been caused by wet feet, but it was held, on the medical testi- mony, that the employe was suffering from pneumonia before the day on which his feet became wet and that the pneumonia was not due to a personal injury. Waiswell v. General Accident Assur. Corp., 1 Mass. Ind. Ace. Bd. 307. Where by reason of an accidental injury an employe became partially paralyzed and for a year was totally incapacitated for work and then contracted pneumonia and died in consequence thereof, it was held on the medical testimony that because of the exhausted vitality and reduced power to resist the attack of pneumonia that there was a causal connection between the death and the injury and that the death was caused by a personal injury arising out of the employment. Merritt v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 635. Where the ether which was administered to an employe for the purpose of performing a surgical operation, made necessary by an accidental injury, caused pneumonia from which he died, it was held that the death was due to an industrial injury. Raymond v. Vmted States Casualty Co., iCm^^tM MimmS&II. 428 beadbuky's woekmen's compensatioit law Recurrence of condition due to former injury Where an employe died from pneumonia following an attack of acute mania and it was alleged that the mania was due to lead poison- ing, it was held that the kind of work which the employe was doing would not cause lead poisoning and compensation was refused, on the ground that the injury did not arise out of the employment. Baiona V. Employers Liability Assur. Corp., 1 Mass. Ind. Ace. Ed. 252. An employe received a pin prick by reason of a scratch from a price tag on April 2 and died on May 1, following, as the result of pneumonia. It was held that there was no causal connection between the pneumonia and the injury. Currie v. Royal Indemnity Co., 2 Mass. Ind. Ace. Ed. 1Y4; 11 N. C. C. A. 507. A night watchman stumbled and fell fracturing the neck of the right femur and in the hospital developed static pneumonia and pleurisy from which he died. It was held that the death was due to an injury arising out of the employment. Oberg v. W. J. McBoberts & Co., 6 N. Y. St. Dep. Eep. 386. An employe was trying to open a window, which stuck, by reason of having recently been painted, when the window suddenly fell upon him and knocked him out into the street, causing severe fractures, and his death resulted from pneumonia caused by the in- jury. Compensation was awarded. Dodd v. Lancashire Corpora- tion (1916), 9 K Y. St. Dep. Eep. 281. An employe suffered an injury to his finger requiring the amputa- tion of the finger and after returning to work he contracted pneu- monia from which he died. It was held that there was no proof of any connection between the injuries and the pneumonia and com- pensation was denied. Stanley v. Wood, 6 IST. Y. St. Dep. Eep. 383. 105. Recurrence of condition due to former injury. A recurrence without accompanying trauma of the displacement of a semilunar cartilege of the knee, which has been cured by a radical operation and which is, therefore, likely to happen without trauma, and while moving about ordinarily, as in everyday life, does not arise out of the employment. Giampolini-Lombardi Co. v. Raggio (1916), 3 Cal. Ind. Ace. Com. 324. Where after the splints were removed from a fractured collar bone the bone came apart at the place where the original fracture had been, but there was nPigi^^^/Mifmsg^^sLTei from the evidence WHAT IS AN " IN JUET " OE AN " ACCIDENTAL INJURY " 429 Refusal of workman to permit operation to be performed of a physician that the splints were removed too quickly, it was held that this extension of the dieahility was merely a continuation of that due to the earlier accident and compensation was awarded accord- ingly. Stormont v. BaJcersfield Laundry Co., 1 Oal. Ind. Ace. Com. (Part II), 533. 106. Refusal of workman to permit operation to be performed.^ Incapacity may none the less result from an injury, should the workman refuse to undergo a surgical operation, which, although attended with risk, would probably be successful. Bothwell v. Davies (1903), 5 W. C. C. 141. A workman was injured at one o'clock in the afternoon on Feb- ruary 14, 1913. He could not speak English and communication was had with him through an interpreter. The physician diagnosed the injury as probable rupture of the intestine and advised an opera- tion. When this was communicated to the workman through the interpreter the injured man shook his head indicating a refusal to have the operation performed. The next morning at about 11:30 the physician again advised the operation and the workman then con- sented and the operation was performed at about 1 :30 on February 15. The operation disclosed, a rupture of the intestine which was sutured. During the operation the patient vomited and some of the vomit was drawn into the lungs causing pneumonia and resulting in his death a few days later. The post-mortem examination showed that the intestine was in process of healing at the time of death. The employer contested the payment of compensation on the ground of the refusal of the workman to be operated on when the physician first advised such an operation. The Board, however, held that it was by no means certain that an earlier operation would have saved the life of the workman, nor was it certain that the operation performed would not have resulted in his recovery were it not for the other com- plications which appeared in the case, and compensation was awarded. Detroit Steel Products Co. v. Jendrus, Mich. Ind. Ace. Bd., June, 1913 ; aff'd Jendrus v. Detroit Steel Products Co., 178 Mich. 265 ; 144 'E. W. 563 ; 4 N. C. 0. A. 864. In the case of John McNally v. Hudson and Manhattan B. Co. ■ See same title in chapGjgSira:/ by Microsoft® 430 St. Vitus dance (Hudson Common Pleas, December, 1913), 87 N. J. Law J. 455; 10 ]Sr. C. C, A. 185, the workman's hips were crushed by being caught between two cars. The physician advised that a resulting rupture could probably be cured in six months by an operation, which he recommended, and which would be attended with some danger to the workman's life. The workman refused to tindergo the operation. The court limited the compensation to six months, although the dis- ability continued a longer time, because of the refusal of the workman to permit the operation to be performed. 107. Rheumatism.^ A miner having engaged in baling out water in a mine, in con- sequence of a breakdown of a pump, contracted sub-acute rheumatism, and it was held that this was an accident. Glasgow Coal Co. v. Welsh (1915), Scotch Court of Session, 8 B. W. G. C. 635. Where an employe had siiffered an accidental injury and also suf- fered from rheumatism and it was found by the medical referee that the present disability was not due to the accidental injury, further compensation was refused. Warden v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 153. 108. Rupture of blood vessel from strain. The rupturing of a blood vessel from strain in lifting a heavy weight, the blood filtering through into the abdominal cavity and causing death, is an injury arising out of the employment. Oreenherg v. New Leather Goods Co. (1916), 3 Cal. Ind. Ace. Com. 328. A man 63' years of age, after doing some heavy lifting, was in- disposed for a week and then was taken ill with paralysis due to a rupture of a blood vessel in the brain, it being shown at the time of the injury that he was suffering from hardening of the arteries to an extent not greater than is usual in men of his age. It was held that this was an injury arising out of the employment and compensation was awarded. Jones v. Berheley Undertaking Co. and Royal In- demnity Co., 1 Cal. Ind. Ace. Com. (Part II), 251. 109. St. Vitus dance. An employe was seated at a table with her back to a door. The 1 See Sciatica. Digitized by Microsoft® WHAT IS AN " INJURY " OE AN " ACCIDENTAL INJURY " 431 Secondary effect of injury door fell and struck her on the head. Subsequently she developed St. Yitus' dance. Medical referee stated that the accident as described seemed to be a sufficiently exciting cause in a person disposed to nervous debility to cause "St. Vitus' dance. It was held that this was a personal injury arising out of the employment. Cristoforo v. Emr players' Liability Assurance Corp., 2 Mass. Ind. Ace. Bd. 364. 110. Sarcoma. After an empioye sustained a strain in the groin, sarcoma de- veloped, which was removed by an operation. The medical testimony was that sarcoma caused in the manner claimed was extremely rare and that in view of the history and evidence of the employe it was determined that this was a pre-existing sarcoma, to which the injury had merely called attention. It was held that the injury did not arise out of the employment. Monsoulis v. London Gxiwrantee and Acci- dent Co., 1 Mass. Ind. Ace. Bd. 154. 111. Scarlet fever.^ Where an injury wnich a workman had received was aggravated and the disability made much greater by reason of scarlet fever which he contracted in the hospital, it was held that the incapacity was the result of the accident. Brown v. Kent (1913), 6 B. W. C. C. 745. 112. Sciatica.2 A boatman acting as an unlicensed pilot, after piloting a small ketch out of a harbqr, on a rough day in January, jumped to his ovm boat, which was fastened to the ketch, and in so doing partly upset his boat so that the water nearly filled it. The captain immediately pulled him out of the water. Subsequently the man developed sci- atica and he was thereby incapacitateH. It was held that this was an injury caused by accident. Barbeary v. Chugg (1915), 8 B. W. C. C. 37. 113. Secondary effect of injury. The second mate of a ship in port fell and injured' his elbow on January I7th and while the elbow was sore for a day or two, it ceased 1 See surgical scarlet ^r^^.^^^ Microsoft® 2 See Bheumattsm. ^ ■' 432 BeadBtjet's woekmen's compbHsation law Septicaemia cases generally troubling him seriously until the 27th of March following, when a bursa developed which necessitated an operation for drainage and re- duction, which operation was performed on April 9th. The man was incapacitated until June 15th, It was held that he was entitled to compensation. Johnson v. Sudden & Christenson, 1 Cal. Ind. Ace. Oom. (Part II), 422. 114. Second operation required by condition produced by first. Where, an operation for a hernia necessitated a second operation for, a paralysis of the bowels following the first operation and cul- minated in death, it was heljj that the death was caused by an acci- dent. Hartford Accident and Indemnity Co, v. Josephine Bono, 2 Cal. Ind. Ace. Com. 651. 115. Septicaemia cases generally. A workman has been held to have suffered an injury by a germ or poison getting into the system through a break in the skin. Higgins V. Campbell & Harrison and Turvey v. Britons Limited (1904), 1 K. B. 328; 6 W. C. C. 1; affirmed by the House of Lords (1905), A. C. 230;7 W. C. C. 1. Blood poisoning through the intentional use of a hypodermic needle is an accident where it appeared that the germ must have been on the outside of the needle and the contents of the needle itself did not cause the injury. Bailey v. Interstate Cas. Co., ,8 App. Div. 127 ; 40 N. T. Supp. 513, aff'd 158 K Y. 723 ; 53 K E. 1123 ; Marchi v. Aetna Life Ins. Co., 205 N. Y. 606. Shortly after a fall of coal from the roof exactly where a collier was working he complained that his foot hurt him. Twelve days later he died of tetanus. Two days after the fall he showed his foot to his wife, who found it swollen and with a sore on the outer side. Six days after the fall his foot was seen by a physician, who found an abrasion on the outer side and a scar on the sole ; both wounds were healing and in much the same state. On the day before his death there was no trace of the wound on the side of the foot, but the small scar on the sole of the foot was still to be seen — healed. The County Court judge found that there was an accident at the colliery as a result of which twelve ia.j^]^^^%pq^fy^ifi^Tom tetanus. It was held WHAT IS AlSr " INJURY " OE AN " ACCIDENTAL INJUET " 433 Septicaemia cases generally on appeal that there was evidence to support the finding. Stapleton V. Dinnington Main Coal Co. (1912), 5 B. W. C. C. 602. Where death results' from erysipelas, which follows as a natural, though not as a necessary consequence of an accidental wound upon the cheek, it may be deemed the proximate result of the wound and not of the disease, within the requirements of an accident policy that death must result solely from accidental means. Caldwell v. Iowa State Traveling Men's Association, 156 Iowa 327; 136 N. W. 678. An infection of the hand and a secondary infection of the leg, re^ suiting from an abrasion of the skin and the accidental introduction of a foreign substance, is an injury within the meaning of the Federal Act. Re L. B. Green, Op. Sol. Dep. C. & L., p. 199. In the last- mentioned case the workman was overhauling a pump from the United States Ship " Vigilant " when his hands became infected. The at- tending physician made an incision and removed pieces of hard ma- terial resembling spicula of coral. It appeared that the pump had come from a vessel which had been in service in Oriental waters, which accounted for the foreign material. It was held that under such circumstances he was entitled to compensation. Applicant was unloading sugar. In the middle of the morning he complained that his left arm was hurting him and showed his asso- ciates that it was swollen and stiff. On the following morning he was unable to work and had to proceed to San Francisco for medical treat- ment, but the arm suppurated and applicant was disabled for four and three-sevenths weeks. His application for compensation was denied on the ground that the injury was the result of an occupational disease, commonly known as " sugar poisoning," which does not come within the provisions of the Act and that therefore no personal injury was accidentally sustained by the applicant. Held that there was no evidence to sustain the contention that disability resulted from an oc- cupational disease, but that the evidence and the circumstances war- ranted the decision that applicant's arm had been scratched by one of the sharp comers of a bag of sugar and compensation was awarded. Miller v, California Stevedore -and Ballast Co. and The Fidelity and Deposit Co., Cal. Indus. Ace. Bd., Oct. 2, 1913. Applicant had to split a piece of fire-wood which caused a sliver to " bark " his left leg just above the ankle. The accident was not at first reported because i^/^SfeeoA/^lfflgj^J^erious. After working 28 434 Septicaemia cases generally two or three days the leg became so swollen and so painful that he was unable to do any work. The medical testimony corroborated the statement of the applicant. Erysipelas developed, followed by ulcers. Held that there was an accident and that applicant was entitled to compensation. Nash v. General Petroleum Co., Cal. Indus. Ace. Bd., June 26, 1913. • ' A gardener while digging in his employer's garden, was injured by a nail piercing his foot through his boot and died subsequently from tetanus. It was held that the accident arose out of and in the course of his employment. Walker v. Mullins (1908), 42 Irish L. T. 168;1B. W. C. C. 211. A collier died of blood poisoning due to an abscess of his knee. There was no evidence as to how the abscess was caused. His work was in a very narrow seam, and necessitated his working on his knees. It was held that there was no evidence of personal injury by accident. Howe V. Fernhill Collieries (1912), 5 B. W. C. C. 629; 11 N. C. C. A. 610. But see Thompson v. Ashington Coal Co. (1901), 3 W. C. 0. 21 ; 11 N. C. C. A. 505 ; where a miner was injured by a piece of coal digging its way under the skin of his knee and it was held that this was an accidental injury entitling the workman to compensation. A workman knocked his elbow at work, and afterwards suffered from eczema in the forearm. On the medical evidence the judge found that the eczema was not caused by the knock and compensation was refused. Swinhank v. Bell Bros. (1911), 5 B. W. C. C. 48. There was a dispute between the medical experts as to whether or not a wound in the hand on April I7th could cause erysipelas of the face on July 7th, following. The medical rei^eree was asked the ab- stract question as to whether or not the diseased organisms could have been latent for so long a time. He said it was possible that the organisms might have lain dormant and subsequently sprung to life if the injured workman was in a devitalized condition. It was held that there was no evidence to justify a finding of accidental injury. Hugo V. H. W. Larhins & Co. (1910), 3 B. W. 0. C. 228. A miner returned from a night shift with a red patch on his wrist. This was found to be the sign of commencing blood poisoning, from which he died. The evidence showed that this blood poisoning was due to an abrasion on his thumb. There had been a fall of stone in the mine during hi£)^itg|^ck6artA?4arefi^iE®rs before he got home, and WHAT IS AN " INJUEY " OE AN " ACCIDENTAL INJURY " 435 Septicaemia cases generally the dependent claimed compensation on the ground that the abrasion had been caused at work during this shift. The medical evidence showed that twelve hours at the least, and probably two or three days, must have elapsed between the abrasion and the appearance of the red patch. It was held that there was no evidence to support the in- ference that the abrasion occurred at work. Jenkins v. Standard Colliery Co. (1911), 5 B. W. C. C. 71; 11 N. C. 0. A. 509. An injury caused to one of an imperfect physical condition while working in the ordinary way with the usual materials and appliances is not an injury by accident. Therefore, where an engine fitter was fixing steampipe joints for which purpose red lead was used, and in consequence of a blister on his finger the red lead poisoned the finger, it was held that the injury was not caused by an accident. Walher V. Lilleshall Coal Co. (1900), 81 L. T. 769 ; 2 W. C. C. 7. Where a workman was incapacitated by reason of the pressure of a boot which had become too tight for him and his foot became sore and blood poisoning set in, it was held that the accident did not arise out of the employment. White v. Sheepwash (1930), 3 B. W. C. C. 382. A railway fireman cut his finger at home. Blood poisoning super- vened and necessitated the amputation of the finger. It was held that there was no evidence to support a finding of accidental injury. Chandler v. Great Western Railway Co. (1912), 5 B. W. C. C. 254. A workman fell downstairs causing an injury to his ribs and side. After being in the hospital for some time he was discharged. About three weeks later he went to the hospital again where he died from general septicaemia, which it was held, on conflicting evidence, was the result of the accident and compensation was awarded. Dependents of Charles Biero v. The New Haven Hotel Co., 1 Conn. Comp. Dec. 52. An employe was thrown off a wagon which he was driving when the horses became frightened. It was first thought that he had sus- tained only a severe shaking up and that the injury was not serious. Subsequently general septicaemia developed from which he died and it was held that the septicaemia was the result of personal injury aris- ing out of the employment and compensation was awarded. Silva v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 597. Where the immediate ^M^^^^i^aM/'^A^S^flicaemia, which, it was 436 beadbuby's workmen's compensation law Skin affections from acids and other irritants held, naturally, actually and unavoidably was caused from injuries to the abdomen and bladder, occasioned by a fall of the workman, it was held that this was an accidental injury arising out of and in the course of the employment, even though it appeared that there was a diseased condition before the injury and it might have been that death would not have been caused from the injury had not the diseased condition existed. Mazzarisi v. Ward & Tully, 170 App. Div. 868; 156 Supp. 964. An employe was injured on the nose by a heavy abject falling a few inches. No disability followed. About a month later blood poison- ing developed in the vicinity of the nose causing his death a month or six weeks after the accident. It was held' on the medical testimony that there was insufficient proof to show that the injury was the cause of the blood poisoning and compensation was refused. Partridge v. Norwich Pharmacol Co., 6 IvT. Y. St. Dep. Kep. 336. 116. Skin affections from acids and other irritants.^ While an employe working on a steamship was removing an old water closet, his face and hands were poisoned by coming in contact with loose cement, iron rust, old dry lead and probably some disin- fectant, and it was held that he was entitled to compensation for the time he was disabled. Re F. J. Coumoyer, Op. Sol. Dep. C. & L., p. 582. A scullion in a hotel was the subject of a disease affecting his skin and making it abnormally sensitive. On the day he commenced work he washed up crockery for a number of hours in a tank contain- ing hot water, soft soap and caustic soda. His hands became greatly inflamed, his nails came off, and he was disabled for four and a half months. The Court of Appeal of England held that this was an accident and the mere circumstance that a perfectly healthy man would not have met with it was no answer at all. Doizauer v. Strand Palace Hotel (1910), 3 B. W. C. C. 387. A workman, employed to dip rings into a basin of carbon bisul- phide with his fingers, was affected with eczema caused gradually by the exposure to fumes or splashes from the chemical. It was held that this was not an accident and compensation was refused. Evans V. Dodd (1912), 5 B. W. 0. C. 305. 1 See Dermatitis. Digitized by Microsoft® OR A]S' " ACCIDENTAL INJURY " 437 Skin affections from acids and otlier irritants Dermatitis brought on by washing out ink cans with a solution of caustic soda without the use of proper gloves is not an accident. Cheelc v. Harmsworth Bros. (1901), 4 W. 0. C. 3. Where a workman had eczema which he contended had been ag- gravated by coming in contact with salt water, while working about a ship, the solicitor decided, on somewhat conflicting evidence, that the eczema had not been aggravated and compensation was denied. The question of whether or not compensation would have been granted had it appeared that the eczema had been aggravated by the salt water, was not decided, but the inference to be derived from the case is that under such circumstances compensation would have been granted. Re C. B. Scanlan, Op. Sol. Dep. C. & L., p. 590 ; s. c. p. 591. Where a teamster was employed to load rough tanbark on his wagon and unload it on the cars at a railway station and as a result of the daily contact of his hands with the rough bq^k his hands be- came bruised and poisoned, there being no time at which any acci- dent happened, it was held that the disability was an injury arising out of the employment and compensation was awarded. Seward v. Sunset Trading and Land Co., 3 Cal. Ind. Ace. Com, 49. A workman's hands and face became affected from an irritant in the form of a lacquer which he was required to use, but the condition was of gradual development and it was held that this was not such an injury as entitled the workman to compensation. Maura v, Sar- gent & Co., Conn. Oomp. Com., Third Dist, June 27, 1916 (un- reported). A leather cleanser which an employe was required to use caused an acute inflammation of the skin, accompanied by blisters, which frequently broke out and left the places sore and raw on his hands. The use of gloves did not prevent this effect. It was held that this was a personal injury arising out of the employment. Boris v. Frank- fort Oen. -Ins. Co., 1 Mass. Ind. Ace. Bd. 276. An employe after ten days' service in a bleachery, was affected with a rash which was pronounced to be a condition of eczema which might have been caused by acids. The trial judge found that the workman's condition was caused by contact with the dampened goods. It was held that this was not an injury by accident within the mean- ing of the I^ew JeT&^it^sMf'Mi&mklk Bleach, Dye & Paint 438 BBAbBTJEY's WOEKMEN's COMPENSATION LAW Sprains and strains generally Works V. Biker, 85 N, J. Law 426; 89 Atl. 929; 4 N. C. C. A. 713; rev'g 36 IST. J. Law J. 305. 117, Sprains and strains generally. An internal injury, caused to a person in a normal state of health, by a fortuitous and unforeseen event, in the usual course of his busi- ness, is an accident. So held in a ease where a workman, while lift- ing a heavy beam, suddenly tore several fibers of the muscles of his back. Boardman v. Scott & Whitworth (1901), 3 W. C. C. 33, aff'd (1901), 85 L. T. 502; 4 W. C. C. 1. A man was employed in moving heavy planks from one pile to another. During the night the planks were all frozen together so that there was some difficulty in separating them. The lower planks in the pile were more firmly stuck together than those above, but the man was not aware of this. He sustained an injury owing to the diffi- culty of moving one of the lower planks. It was held that there was evidence of an accident. Timmins v. Leeds Forge Co., 2 W. C. C. 10. A workman in his master's field, finding that the grain had been trodden down by bullocks, stooped to raise it and sprained his left leg ; or, as the workman explained it, " wrung his left leg." This injury subsequently developed into traumatic phlebitis (inflamma- tion of the walls of the veins from a physical injury) and it was held that this was a personal injury by accident. Purse v. Hay ward (1908), 1 B. W. C' C. 216. In the last-mentioned case the court remarked that there was " no sound distinction between torn muscles or ruptured fibres and fractured bones." A carpenter strained himself moving a heavy radiator and was afterwards operated upon, death being caused by appendicitis and intestinal obstruction which, supervened. It was held that this was an injury within the meaning of the Massachusetts Act and the widow was entitled to compensation. McGuigan v. Maryland Cas- ualty Co., Mass. Indus. Ace. Bd. A workman, rising from a kneeling position, in which he hiad been at work, felt a pain in his knee. The cartilage was found to be rup- tured. "He had wrenched his knee three years before, and had been incapacitated for a time, but had thereafter worked without difficulty until this occasion, although at times he :felt pain when getting up Digitized by Microsoft® WHAT IS AJf " IN JTJEY " OB AK " ACCIDENTAL INJUBY " 439 Sprains and strains generally from kneeling. It was held that the workman had suffered injury by accident. Borland v. Watson, Gow & Co. (1911), 49 Sc. L. E. 10; 5 B. W. C. C. 514. Rupture caused by overexertion in the course of a man's work is an accident. (House of Lords), Fenion v. /. Thorley & Co. (1903), 5 W. C. C. 1. The court disapproved of the cases of Hensey v. White (1900), 1 Q. B. 481; 2 W. C. C. 1; Boper v. Greenwood (1901), 83 L. T. E. 471 ; 3 W. C. C. 23, and approved of the decision of the Court of Session's in Scotland reported in the case of Stewart v. Wilsons & Clyde Company (1903), 5 Falc. 120. The court also cited in support of the doctrine announced the following American cases: United States Mutual Accident Ins. Ass'n v. Barry (1888), 131 U. S. 100, and North American Life & Accident Ins. Co. v. Bur- roughs, 69 Penn. 43. A workman who was slightly ruptured at the time he entered the employer's service, in the course of his work had to subject himself to an unusual though not to a unique strain. The result of this strain was to increase, the rupture and incapacitate the workman from fol- lowing his employment. It was held that although from a purely medical or surgical view, the injury could not be said to be an un- toward or unexpected event, it was nevertheless an accident within the meaning of the Act. Fulford v. Northfleet Coal & Ballast Co. (1907), 1 B. W. C. C. 222. A workman who ruptured himself while lifting some planks in the usual course of his employment was held to have suffered an injury by accident. Timmins v. Leeds Forge Co., 16 T, L. E. 521. A workman who had been operated on for a hernia, subsequently was compelled to wear a truss because of the reappearance of the hernia. Several months after he began wearing the truss, while he was driving cows over some moorland country, the rupture came down and became strangulated. He was operated upon again but died from exhaustion. It was held that there was no evidence to support an inference that the deceased met with an accident. Walker v. Murrays (1911), 48 Scotch L. E. 741; 4 B. W. C. C. 409. The word " accident " involves the idea of something fortuitous and unexpected. A man who was not in a sound condition of health injured Jjimself wbpij^'*SK|el54l'JOil*te»!^''^i"k which wa§ somewhat 440 beadbtiey's woekmen's compeh-sation law Sprains and strains generally harder than usual. It was held that the injury was not caused by accident. Hensey v. White (1900), 81 L. T. 767; 2 W. C. C. 1. A man at work called out that he had hurt his back. No one saw what had happened. He was taken home complaining of pains in the back and stomach. He died a week later of intestinal obstruction. There was evidence of previous illnesses and pains in the stomach. It was held that the onus of proving an accident had not been dis- charged. Farmer v. Stafford, Allen & Sons (1911), 4 B. W. C. C. 223. A woman suffering from an ailment which she knew would be aggravated by lifting boxes which were too heavy for her, notwith- standing continued the work and strained herself. It was held that this was not an accident. Roper v. Greenwood (1900), 3 W. 0. C. 23. An injury caused by strain from rushing work under a time-record efficiency system, whereby a strong, healthy man was kept under a high nerve-racking tension during every minute of an eight-hour workday, was held to be an injury under the Federal Act. Be D. C. Manning, Op. Sol. Dep. L., p. 279. Where a hernia to which an employe is predisposed is brought on by a strain, it is not necessary that there should be evidence showing a slipping or falling or an unforeseen happening which precedes unexpectedly so long as the cause of the disability appears while the employe is undergoing a strain. McDougal v. W. /. Bush & Co., 3 Cal. Ind. Ace. Com. 57. Compensation was awarded to an employe who received a severe strain and wrench of the back caused by slipping while lifting a piano. Sharp v. Colyear Van and Storage Co. and Olobe Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II) 149. Prior to the amendment of the California Act of 1915, eliminating the .word " accident " it was held that a man who while piling lumber from a pile slipped and wrenched his back, was injured by accident, Southwestern Surety Ins. Co. v. Pillshury (1916), 172 Cal. 768; 158 Pac. 762. Compensation was awarded for injuries caused by torn tissues of the muscles of the back, resulting from heavy lifting of timbers. Vernon v. A. E. Keyes, 1 Cal. Ind. Ace. Com. (Part II), 526. A strain in the b|Lck from lifting heaiCT articles was held to be an injury justifying an award of compensation. Flaherty v. LocomoUle 441 Sprains and. strains generally Company of America, 1 Conn. Comp. Dec, 354. An employe became incapacitated after lifting an unusually heavy weight, but on conr flicting testimony it was found that the incapacity was due to previous physical condition and not to the strain and compensation was re- fused. Rogers v. Winchester Repeating Arms, Conn. Comp. Com., Third Dist, Beees, Com'r, Jan. 17, 1917 (unreported). The claim- ant alleged that by reason of the strain in shoveling dirt the liga- ments were torn from the scapula. But on the medical testimony it was held that the burden of proof had not been sustained by the em- ploye in showing that such an injury had happened and compensa- tion was refused. Sinsigalli v. Suzio, 1 Conn. Comp. Dec. 455. A scrub woman suffered a sprain from a fall on a slippery floor and it was held that this was an injury entitling her to compensa- tion, Welch V. American Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 119, Where by reason of a continued strain a condition of arterial sclerosis was aggravated and accelerated resulting in dis- ability, it was held that this was an injury arising out of the employ- ment. Homan v. Frankfort General Ins. Co., 2 Mass. Ind. Ace. Bd, 775. Where a workman after lifting a very heavy object complained of a kink in his back and shortly thereafter became ill and died from pneu- monia, and there was conflicting evidence by experts as to whether or not the strain caused the pneumonia from which he died, it was held that there was sufficient evidence upon which the Board was justified in finding that the injury arose out of and in the course of the employment. Bayne v. Riverside Storag & Cartage Co., 181 Mich. 378; 148 N, W. 412; 5 K C. C. A. 837. Compensation was granted for " severe straining of the lumbar muscles and bruising the third and fourth vertebra." Gross v. Marshall Butters Lumber Co., Mich. Indus. Ace. Bd., Oct. 15, 1913. An employe whose duty it was to paint gas engines, while attempt- ing to lift a 600 pound engine, with the help of a fellow employe, was. subjected to an unusual strain by the temporary sticking of the en- gine to the floor whereby a rupture was caused and it was held that this was an accidental injury arising out of the employment for which compensation should be awarded, even though the strain would not have caused the rupture to physically sound tissues, but was sufficient to cause the rupture iP'^^^SbMM^QS'^e weakness and want of 443 BEADBUIir's WOEKMEn's COMPENSATIOJSr LAW Sprains and strains generally- physical integrity in the parts where the injury was manifested. Bobbins v. Original Gas Engine Co., Mich. ; 157 N. W. 437. A cerebral hemorrhage as the result of an unusual strain in lifting a heavy weight is an accidental injury. Fowler v. Bisedorph Bot- tling Co. (1916), 175 App. Div. 224; 161 Supp. 535. A woman employe suffered a severe abdominal strain in lifting a heavy weight, thereby aggravating a pre-existing condition which subsequently caused her death and compensation was awarded. Owens v. New York Mills Corporation (1916), 9 N". Y. St. Dep. Eep. 367. A freight handler, in attempting to replace a door on a car, which had been removed for the purpose of getting access to the car, received a severe strain causing severe muscular soreness from which he was disabled. It was held that this was an injury for which compensa- tion should be awarded. Fidele v. Erie B. Co. (1916), 8 IS. Y. St. Dep. Eep. 454. A concrete worker was springing a steel bar in order to insert another bar for reinforcing concrete and after spring- ing the bar he fell over and had a hemorrhage from the nostrils. The strain was a very severe one. He died! a few minutes after the col- lapse and it was held that this was an accidental injury. TJhl v. Guarantee Construction Co. (1916), 8 IST. Y. St. Dep. Eep. 479. An employe while wheeling a wheelbarrow was seeking to prevent the barrel from tipping on an elevated track, wrenched his back ruptur- ing a muscle and nerve of the spine, disabling him for a considerable time and it was held that this was an accidental injury. Sinclair v. Bamapo Iron Works, 4 IST. Y. St. Dep. Eep. 418. An inspector and car repairer for a railroad was getting off the car and the distance being greater than usual he strained the muscles and ligaments in the inguinal region causing disabling injuries for which compensation was awarded. Schrieber v. New York Central B. Co., 6 N. Y. St. Dep. Eep. 331. Where an employe was engaged in laying cement blocks under a fiorch. and while attempting to lift a block weighing approximately eighty pounds, on to the foundation wall, while in a sitting pasition, he strained the muscles of his right side, resulting in a muscular spasm, without external evidence of the injury, but causing pain and temporary disability, it was held that this was an accidental injury. Bystrom Bros, v, JcRidJtl^^flltml^iS?^^^ 155 IST, W. 919. 443 Sunstroke 118. Suicide due to mental condition caused by accident.^ A workman was injured in his head by a fall. Traumatic neu- rasthenia supervened and gradually became worse. About eight months after the accident he was found drowned in a canal 400 yards from his home. The County Court judge found that he committed suicide, and that the suicidal tendency was the result of the accident. It was held on appeal that there was no evidence to justify the find- ing, and compensation was refused. Southall v. Cheshire County News Co. (1912), 5 B. W. C. C. 251. " Where there follows as the direct result of a physical injury an insanity of such violence as to cause the victim to take his own life through an uncontrollable impulse or in a delirium of frenzy ' with- out conscious volition to produce death, having knowledge of the physical consequences of the act,' then there is a direct and unbroken causal connection between the physical injiiry and the death. But where the resulting insanity is such as to cause suicide through a voluntary willful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicidal act even though choice is dominated and ruled by a dis- ordered mind, then there' is a new and independent agency which breaks the chain of causation arising from the injury." In re Sponat- ski, 220 Mass. 526; 108 E". E. 466; 8 IST. C. C. A. 1025. The In- dustrial Accident Board had held that where an employe, while in the hospital suffering an accidental injury from moulten metal hav- ing been spattered into his eye, became insane and threw himself from the window of the hospital causing his death, that there was a causal connection between the injury and the insanity leading to the suicide and compensation was awarded. Sponatsici v. Standard Acci- dent Ins. Co., 2 Mass. Ind. Ace. Bd. 445. 119. Sunstroke.^ The weight of authority seems to be in favor of holding that " sun- stroke " is an accidental bodily injury, although the question is not definitely settled in all jurisdictions in this country. Sunstroke, although classed as a disease, is not such a disease as may be contracted in the same sense as ordinary diseases may be, 1 See Insemitv. 2 See Beat stroke. Digitized by Microsoft® 444 beadbuey's woekmen's compensation law Sunstroke but is au injury of an accidental nature, and is covered by tlie Federal Act. Be J. J. Walsh, Op. Sol. Dep. C. & L., p. 193. The Solicitor stated that he had formerly been of the opinion that sunstroke was not an accident, but was a disease, and that he had based his decision on the cases of Sinclair v. Maritime Passengers' Assurance Co., 30 L. J. Q. B. 77; 4 L. T. 15; Dozier y. Fidelity & Casualty Co., 46 Fed. 446; Be Sheeran, 28 Op. At. Gen. 254; but that more recently he had come across some English cases under the British Workmen's Compensation Act, to wit, the cases of Isrnay, Imrie & Co. v. Wil- liamson, 99 L. T. 595 ; 1 B. W. C. C. 232, and Morgan v. Owners of 8. 8. " Zenaida," 25 T. L. K. 446 ; 2 B. W. C. C. 19, in which it was held that incapacity caused by sunstroke was covered by the English Compensation Act and therefore he was compelled to change his views. The case of Morgan v. Owners of 8. 8. " Zenaida " (1909), 25 T. L. E. 446; 2 B. W. C. 0. 19, was decided by the Court of Appeal of England. The applicant, an ordinary seaman, while engaged in painting the vessel when she was lying at a port on the coast of Mexico was incapacitated by sunstroke. The medical evidence was to the effect that a seaman painting the outside of a ship is running a greater risk of sunstroke than when employed on deck, because he not only gets the direct rays of the sun, but he also gets the reflected rays from the ship's side. It was held, therefore, that he was entitled to compensation. A seaman employed as a trimmer on board the steamship Majestic while engaged in drawing ashes from the ship's furnace, had a " heat stroke " and died therefrom about two hours afterwards. The sea- man was in a weakly state of health and of low vitality when he en- tered upon his duties, and consequently liable to such attack. It was held by the House of Lords, upholding the decision of the Court of Appeal in Ireland, that the " heat stroke " was a personal injury by accident. Ismay, Imrie & Co. v. Williamson (1908), 42 Ir. L. T. 213; 1 B. W. C. C. 232. In the last-mentioned case the Lord Chan- cellor said : " To my mind the weakness of the deceased which pre- disposed him to this form of attack is immaterial. The fact that a man who has died from a heat stroke was by physical debility more likely than others so to suffer can have nothing to do with the question whether what \ieiM^i^'\^^W?kga.r^BA as an accident or not. WHAT IS AN " INJtTEY " OR AN " ACCIDENTAL INJUHT " 4:4:6 Sunstroke * * * In my view this man died from an accident. What killed him was a heat stroke coming suddenly and unexpectedly upon him while at work. Such a stroke is an unusual effect of a known cause, often, no doubt, threatened, but generally averted by precautions which experience, in this instance, had not taught. It was an un- looked-for mishap in the course of his employment. In common language, it was a case of accidental death. I feel that, in constru- ing this Act of Parliament, as in other cases, there is a risk of frus- trating it by excess of subtlety, which I am anxious to avoid." Citing Fenton v. Thorley & Co. (1903), A. C. C. 443; 5 W. C. C. 1, with approval. A fireman on board ship was seen frequently drinking water while in the stoke hole. Soon after he was found to be very ill. He next became unconscious and died. No post-mortem was held and the medical evidence as to the cause of death was conflicting. The County Court judge granted compensation, and on appeal it was held that the question as to whether or not the workman did, in effect, sustain a personal injury by accident, arising out of and in the course of the employment, was one of fact for the County Court judge to decide. Johnson and Others v. Owners of Ship " Torrington" (1909), 3 B. W. C. C. 68. A seaman was on duty on a blackened steel deck for some hours in the blazing sun with no shade, in a port in Hayti, at a tempera- ture of 108 degrees to 120 degrees Fahrenheit. He suffered from blindness, due to exposure to the sun. It was held that the employ- ment involved special exposure to the risk of sunstroke and that the accident arose out of the employment, and the man was therefore entitled to compensation. Davies v. Gillespie (1911), 5 B. W. C. C. 64. In the last-mentioned case the court said: " I do not desire in the least to depart from what I said in Warner v. Couchman, 4 B. W. C. C. 32 ; 1 N". C. C. A. 51. We ought to be very careful to avoid saying anything which might be held to mean that anyone whose occupation exposes him to the roughness of the weather more than some other occupation, was entitled to compensation for injury thus incurred. The only question is whether this man was in such ex- ceptional circumstances that he was more exposed by reason of his occupation than other people would have been. That is a question of fact. The judge says, QL^t^ lOiy ^/MomMM.& duties, he was com- 446 bkadbuey's workmen's compensation law Sunstroke pelled to be on a steel deck where there was no awning from 6 A. M. until 11 A. M. with only half an hour for breakfast, and leaning over a hatchway. The medical referee informs the judge that he attached importance to the fact that the exposure was prolonged; that that materially increased the risk. I cannot say that the judge is wrong in the conclusion at which he arrived. It is a question of fact, not of law. There was evidence to justify the inference he has drawn." A man of impaired vitality was at work laying and jointing pipes in a trench in a road, during excessive summer heat. The work in- volved his stooping a good deal. He suffered from sunstroke. It was held that this was not an accident and did not arise out of the employment and compensation was refused. Bohson^ Echford & Co. V. Blakey (1911), 49 Sc. L. E. 254; 5 B. W. C. 0. 536. In the last-mentioned case it was urged that because the man had to bend at his work in the excessive heat of the sun, he was subjected to a peculiar danger. In reply to this argument the court said : " Now, since the days when Adam was expelled from Eden, I think every outdoor laborer has had to bend at his work, and I think it would be the very climax of absurdity to say that because a man had to go into the open air, and because he had to stoop, he was exposed to a peculiar danger because of his employment. * * * We all know that July, 1911, was a hot month; but to say that any one who works, as it has been called, ' Neath the baleful star of Sirius,' is necessarily exposed to an excessive or peculiar danger, is a proposition which has no foundation." Sunstroke or heat prostration, contracted by decedent in the course of his ordinary duty as a supervising architect, is a disease and does not come within the terms of a policy of insurance against bodily injuries sustained through external, violent and accidental means. Dozier v. Fidelity & Casualty Co., 46 Fed, 446; (Circuit Court, Western Dist. of Mo., June, 1891). It seems that sunstroke, if caused by working conditions, is an injury for which compensation may be awarded under the Connecti- cut Act. Tillman v. Sperry Engineering Co., 1 Conn. Comp. Dec. 408. Where a man was working in a very hot warehouse near the roof upon which the sun ^^at d^n^witWeat force, it was held that he was subjected to especiaFrisks and ^erefore the accident arose WHAT IS A^T^ " INJTTEY " OE Al^ " ACCIDENTAL INJURY " 447 Sunstroke out of the employment and compensation was awarded. Fensler v. Associated Supply Co., 1 Cal. Ind. Ace. Com, (Part II), 447; 12 N. C. C. A. 309, 321. In the last-mentioned case the Commission stated, by way of dictum : "As a general rule injuries which are suffered from so-called ' acts of God,' such as sunstroke, freezing, lightning, wind, etc., are not compensable under compensation laws inasmuch as such casual- ties are risks which the whole citizenry takes and seldom arise out of or happen in the course of the employment, but in this case the risk of the applicant was clearly greater than that of the common citi- zenry of Maricopa." Where the contributing proximate cause of the decedent's death was heat exhaustion due to . arduous and exacting work under con- ditions of heat more severe than those prevailing in the community at large, or than those to which the general run of workmen in the open air were on that date subjected, it was held that the death was due to an injury arising out of the employment and compensation was awarded. McGarva v. Hills, 1 Conn. Comp. Dec. 533 ; aff'd by Superior Court, Id. 540. In the last-mentioned case a bricklayer was working on a brick wall during very hot weather, under con- ditions which were described as particularly trying, in a place where he was shut off from the prevailing breeze and where the sun beat in with especial severity. A furnace tender in a foundry was overcome by the heat and died lifter working 11% hours one day and it was held that by reason of the unusual conditions under which he was working that the death was due to an injury arising out of the employment. Wdjteniak v. Pratt & Cady Co., Inc., 1 Conn. Comp. Dec. 545. Where a ship's carpenter was working in the hold of a barge diiv- ing bolts in the keelson and suffered a sunstroke, compensation was refused where it was found that the working conditions prevailing where this employe was working were not especially different from those prevailing in the locality where he was employed. Jaskulka v. Hartford & New York Transportation Co., 1 Conn. Comp. Dec. 542. Sunstroke received under normal conditions is not an injury en- titling the employe to compensation under the Iowa Act. Leg. Op. Towa Ind. Com. ( 1 91 59/S«izecf by Microsoft® 44:8 beadburt's woekmen's compensation law Tetanus 120. Surgical scarlet fever.^ After an operatioii for hernia an employe developed scarlet fever from which he died. It was contended that this was a surgical scarlet fever, hut upon a review of the authorities and the medical testimony in the case the Commissioner came to the conclusion that the existence of a surgical scarlet fever was doubtful, and in any event the evidence showed that the employe was not suffering from surgical scarlet fever, if such a thing existed, and as there was no causal connection shown between the operation and the scarlet fever from which the man died compensation was refused. Corcoran v. Farrel Foundry & Machine Co., 1 Conn. Comp. Dec. 42. 121. Sympathetic affection of one eye by injury to the other. Where an employe suffered a traumatic cataract from an accidental injury which sympathetically affected the other eye, causing com- plete incapacity for work, it was held that this was an injury arising out of the employment, which entitled the employe to compensation for an indeterminate period. Stachuse v. Fidelity and Casualty Co., 2 Mass. Ind. Ace. Bd. 324. 122. Tetanus.'' Where an employe was struck by the bucket of a dredger and received, among other injuries, a lacerated wound, and nine days later tetanus developed, it was held that such tetanus was an injury caused by such accident. Oaks v. Berkeley Steel Co., 1 Cal. Ind. Ace. Com. (Part II), 218. A man shoveling dirt from the ground to a wagon stepped on a nail which punctured his foot resulting in lockjaw from which he died and compensation was awarded under the ISTew York Act. Put- nam V. Murray, 6 IST. Y. St. Dep. Kep. 355. A longshoreman had his right foot crushed with lacerations and contusions resulting in tetanus which caused his death and com- pensation was awarded. Broderick v. Southern Pacific Co., 4 N". Y. St. Dep. Eep. 371. 1 See Scarlet fever. 2 See Infections; seilSi^ized by Microsoft® 449 Tuberculosis 123. Trachoma. Trachoma is a disease and not an injury within the meaning of the Ohio Act. In re Leware, 1 Bull. Ohio Ind. Com. 100. Where disability followed the blowing of cement dust in the eyes of a workman previously suffering from trachoma, it was held that an award could not be made for the continued disability arising out of the disease of trachoma, which is a highly infectious disease and is ordinarily contracted without the intervention of any accident whatsoever. Beauchamp v. Chanslor-Canfield Midway Oil Co^ 2 Cal. Ind. Ace. Com. 485. 124. Tuberculosis. Where disability was caused by tuberculosis which it was found had been superinduced by brass poisoning, it was held that. this was an injury under the Federal Act. Be Edward Devine, Op. Sol. Dep. L., p. 277. Tubercular pleurisy which results from and is approximately caused by an accidental injury is such an injury as entitles the em- ploye to compensation. But in thie particular case it was held that the evidence failed to show that the present condition of tubercular pleurisy developing three weeks after the accident was caused by the accident. Gomez v. South Eureka Mining Co., 1 Cal. Ind. Ace. Com. (Part I), 180. Where several months after an injury to a wrist tuberculosis of the bone developed and there was no evidence that such tuberculosis existed before the injury, it was held that this was such an injury as entitled the workman to compensation. Soria v. Marshall, 3 Cal. Ind. Ace. Com. 96. Tuberculosis of a particular organ of the body may be caused by an accidental injury so as to entitle an employe tp compensation. Stone V. F. L. Smith Co. (1916), 3 Cal. Ind. Ace. Com. 365. Tuberculosis has no recognized status as an occupational disease and in the absence of proof that a tubercular condition was proxi- mately caused by an injury it caimot be considered as an industrial injury. Coates v. City of Elsinore (1916), 3 Cal. Ind. Ace. Com. 269. Compensation was awarded for disability caused by traumatic tuberculosis of an emflB!ffeefe(% iWfeVtJIsDgt^rom the dropping of a 29 450 beadbuby's woekmbn's compensatiou" law Tuberculosis heavy article on the foot. Lorenzo v, Bigelow-Hartford Carpet Corp. J 1 Conn. Comp. Dec. 216. Compensation was awarded for disability caused by tiibercnlosis which became active by reason of an injury from a fall. Hatch v. I. Newman & Sons, 1 Conn. Comp. Dec. 65. ' Tuberculosis which develops as an occupational disease and not from traumatism is not such an injury as entitles a workman to com- pensation. Dependents of William Francis Kane v. The New Haven Union Co., 1 Conn. Comp. Dec. 492. After receiving an accidental injury an employe contended that a condition of tuberculosis was due to the injury, but upon the medi- cal testimony it wasiield that the employe had failed to show a causal relationship between the trauma and the tuberculosis and compensa- tion was. awarded only for the disability directly due to the injury. Frahbie v. Freehurg, 1 Conn. Comp. Dec. 614; aff'd by Superior Court, Id. 615. A furniture polisher received an injury to his ankle and several months later became incapacitated for work, his physician diagnosing the case as tubercular meningitis due to some organism. In the opinion of the medical experts the tubercular condition was due to traumatism as the predisposing cause. It was held that the injury arose out of the employment. Black v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 319. Compensation was denied where an employe suffering from tuber- culosis contended that the disease was accelerated by exposure in an unoccupied house, but it appeared from the medical testimony tliat the disease had not been accelerated by any exposure which he had suffered, ^ralin v. United States Casualty Co., 2 Mass. Ind. Ace. Bd. 758. Where an employe was overcome in the press room and died some time later, it was claimed, from lead poisoning, causing tuberculosis, but the medical testimony showed the absence of lead poisoning and that the cause of death was tuberculosis, compensation was refused. Leary v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 184. An employe was operating a crane when one of the timbers of the crane broke and to save himself from being injured he jumped into the river a distance of ten feet on September 3rd. The water came up to his knees an^Dkptiwsdii^ 'MiekaselWiid contracted a heavy cold WHAt IS AN " INJUEY '' OR AN " ACCIDENTAL INJURY '' 451 Typhoid fever frotn which pleurisy developed which in its turn developed into pul- monary tuberculosis, and it was held that this was an injury arising out of the employment. Bist v. Larkin & Sangster, 5 N. Y. St. Dep. Eep. 381. All employe with others was lifting a concrete form when the men at the other end left the form drop, striking the employe in the groin, inflicting a small wound. Subsequently a tuberculous infection re- sulted in the wound and compensation was awarded. Testa v. Burns Co. (1916), 9 K Y. St. Dep. Kep. 277. Pulmonary tuberculosis from an unusual strain was held to be such an injury as entitled the workman to compensation even though the employe may have been suffering from latent tuberculosis before the injury. Nelson v. McLarnon & Co., Inc. (1916), 9 IST. Y. St. Dep. Kep. 325. A piece of stone from a bursting grindstone struck an employe in the chest, not making an abrasion of the skin, but dis- coloring the flesh. Shortly thereafter he.developed tuberculosis and compensation was awarded, even though it appeared that he may have been suffering from tuberculosis in a mild state prior to the injury. Backman v. Devine & Sons (1916), 9 K Y. St. Dep. Kep. 322. A claim for tubercular peritonitis alleged to have been caused by the fracture of a leg was denied, on the ground that the evidence was not sufficient to show that the injury had caused the tubercular peri- tonitis from which the employe died. Cappelli v. Cranford, 6 N. Y. St. Dep. Kep. 349. 125. Tumor. Where a fatty tumor under the knee cap was aggravated by reason of a strain causing prolonged inflammation of the tumor, it was held that this was an injury arising out of employment. Glohe Indemnity Co. and Byron Z. Terry v. West, 2 Cal. Ind. Ace. Com. 665. 126. Typhoid fever. A workman employed by a Board of Guardians as a machineuy attendant contracted typhoid fever from the handling of sewage from time 'to time. It was held that as it was not possible to indi- cate a time and place at which there was an accident, which caused the injury to the wovBtgm^dk^yvmctwkiM&itled to compensation. 452 beadeuet's wobkmen's compensation law Typhoid fever Pinlay v. Guardians of Tullamore Union (1914), Irish Courf of Appeal, 7 B. W. C. C. 973. Typhoid fever which was claimed to have been caused by drinking water which had been contaminated and which was furnished by the government was held not to be of an accidental nature and compensa- tion was refused under the Federal Act. Re Robert K. Potter, Op, ■ Sol. Dep. L., p. 272. Where an employe was operated upon for hernia and within a few days of leaving the hospital he returned suffering from typhoid fever, it was held that such typhoid fever would not be presumed to have been caused by the hernia or the operation and that compensa- tion would be allowed only for the normal period of disability which had resulted from the operation if no disease had intervened. Vig- lione V. Montgomery Garage Co., 2 Cal. Ind. Ace. Com. 107. Where a nurse in a hospital contracted typhoid fever, but it was not shown how or where she contracted the disease, it was held that the evidence was insufficient to establish that the typhoid fever and disability were proximately caused by or arose out of the employ- ment. Tobin V. Oity and County of San Francisco (1916), 3 Cal. Ind. Ace. Com. 314. Typhoid fe\^r if not shown to have been contracted by any con- ditions concerning the work is not such an injury as entitles the workman to compensation. Tillman v. Sperry Engineering Co., 1 Conn. Comp. Dec. 408. Where an employe suffered a sprain of his wrist and the disloca- tion of a finger and twelve days later came down with typhoid fever, it was held that no causal relation between the injury and the dis- ease was shown and compensation was refused. Johnson v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd. 170. An employe of an express wagon fell from the wagon and received injuries to his head. Subsequently in the hospital he developed typhoid fever and on conflicting testimony of medical experts it was held that there was sufficient evidence to show that the employe had suffered from walking typhoid, which had been aggravated by the injury and resulted in his death and an award was made to his de- pendents. Banks v. Adams Express Co. (1916), 7 N. Y. St. Dep. Kep. 471. Where it appear^'afe^(?;|eatfljsfiM/e/1teoaShiination of the injury.' " CHAPTER XIII. ARISING " OUT OF " AND IN " THE COURSE OF " THE EMPLOYMENT. PAGE Abticle a — Definitions 461 1. In general ; distinction be- tween terms " arising out of " and " in the course of" 461 Aeticle B — Going To and Fbom Place of Employment . . 468 1. Away from employer's prem- ises on employe's own time 468 (a) Exceptions 470 2. While on employer's prem- ises Ln going to and from work 473 (a) Exceptions 475 3. Going to and from work in conveyance furnished by employer, or supplied by the employe, with the ac- quiescence of the employer 480 (a) Licensees 484 (b) Exceptional cases in which compensation was refused 486 4. Pieceworker carrying bun- dles to and from factory. . 487 5. Moving picture actress go- ing to and from studio . . . 488 6. Messenger on way home. . . 488 7. Police judge returning from luncheon 489 8. Newspaper reporter injured while riding bicycle- on his way home 489 9. Train baggage solicitor in- jured on way to railroad ^ station 489 10. Returning to place of em- ployment to work over-' time 490 11. Policeman killed by train . . 490 12. Taxi-cab starter 490 13. Physician attending com- I)ensation cases 490 14. Traveling between different places of work 491 15. Seamen and mechanics get- ting on and off vessels. . . 491 16. Entering employer's prem- ises to apply for work 499 17. Reporting for work 499 18. Going after time slip 499 19. Returning to employer's premises to secure pay . . . 500 20. Standing in line to get pay check 501 21. Returning to employer's premises to secure tools.. 501 22. Workmen whose duties take them away from the em- ployer's premises 502 Article C — Nonwobking Time Injuries 510 1. Scope of article 510 2. Workmen injured on em- ployer's premises before work begins, after work ceases, or during cessation of work 511 3. Injuries at mealtime 523 4. Going to portions of em- ployer's premises other than those necessarily used by the workman, for his own convenience or pleasure 528 Article D — Serious and Will- ful Misconduct 531 1. Origin and general applica- tion of the term 531 2. Definition of generally 531 3. Burden of proof 535 4. Accidental shooting in being mistaken for robber 536 5. Actress riding spirited horse 536 6. Appeal 536 ly Microsoft® 458 BEADBUEY S WOEKMBN S COMPENSATION LAW Summary 36. 37. 38. 39. 40. 45. 46, 47. 48. 49. 50. 51. PAGE 7. Assault on foreman 537 8. Aviator exploding bomb .... 587 9. Boy on bicycle catching on motor car 537 10. Cleaning machinery in mo- tion 538 11. Deviating from route 538 12. Disobedience of general rules and specific orders . . 539 13. Doing work for own benefit 547 14. Doing work in unusual man- ner 547 15. Emergency 547 16. Error of judgment 547 17. Exhibition of poisonous rep- tile 548 18. Failure to use goggles 548 19. Failure to use guys in build- ing operation 548 20. I'ailure to use safety guard. 549 21. False representation as to age by minor in securing work 550 22. False statement to physician as to drinking habits by in- jured workman 550 23. Following custom 551 24. Going in wine vat without testing for poisonous gases 551 25. Idle curiosity 552 26. Intoxication 552 27. Jumping on moving car. . . . 557 28. Kerosene oil used to build fire 557 29. Riding on top of cars 557 30. Leaving machine in opera- tion 558 31. Lineman failing to use safety belt 558 32. Lineman working without rubber gloves 558 33. Lineman working on elec- tric light poles when cur- rent turned on 558 34. Neglect of suggestion not amounting to an order. . . 559 35. Neglect to secure proper medical treatment 559 Digitized by Microsoft® ' PAGE Obeying direction of su- perior 560 Picking finger with unsani- tary knife 560 Picking up live wire 560 " Purposely self-inflicted " . 561 Racing with motor cycles . . 561 41. Removing flour sacks from middle of pile 561 42. Resisting robbers 561 43. Resting in working hours . . 561 44. Riding in dangerous place on mine bucket 561 Seaman returning to wrecked vessel 562 " Taking a Chance " 562 Unloading car when con- tents frozen 562 Violating safety statutes and rules 562 Violating sijeed law in auto- mobile or motor cycle 563 Willful negligence 563 Without scope of employ- ment 564 Abticle B — -The Doctrine of Proximate Cause as Illustrated in the So- called " Aggravation " Cases 564 1. Introduction 564 2. Aggravation of pre-existing condition 566 (a) Cases in which compensa- tion awarded 566 (b) Gases in which compensa- tion denied 574 3. Aggravation of injury from subsequently intervening, causes 575 (a) Cases in which compensa- tion awarded 575 (b) Cases in which compensa- tion refused or reduced'. . 582 Article F — Assaults 587 1. Personal altercation 587 2. Quarrels between workmen 587 AIUSING " OUT OF " AND IN " THE COUESE OF " EilPLOYMENT 459 Summary PAGE (a) Cases In which compensa- tion denied 582 (b) Cases in which compensa- tion awarded 589 3. Maintaining discipline 591 4. Altercation between work- men and foremen or others in authority 591 5. Felonious assault by em- ployer 593 6. Maintaining order on em- ployer's cars or premises. 593 7. Ejecting trespassers 594 8. Assault by irate customer of employer 595 9. Assaults by strangers in course of employment. . . . 595 10. Assaults by strangers in no way connected with em- ' ployment 596 11. Strikebreakers assaulted . . 596 12. Attacks by intoxicated per- sons 596 13. Assaults by insane persons. 598 14. Murder of chauffeur on hired car 598 15. Robbery 598 16. Peace officers 600 17. Citizen temporarily im- pressed as peace officer. . . 601 18. Gamekeepers repelling tres- passers 601 19. Prison guard killed by es- caping convict 601 20. Accidental shooting 601 Abticle G — Specific Rulings AS TO When an Injubt Arises Out or the Em- ployment 601 1. Acting on unauthorized orders 601 2. Anaesthetic causing death during surgical operation. 603 3. Answering telephone call . . 603 4. Anthrax 603 5. Apoplexy 604 ll^C:::.::m'??Mm& a steam ^ovel on the cars at one 484 Going to and from work station, was expected to be at another station to help unload the shovel early the following morning. He had been in the habit of traveling on his own motor cycle with the knowledge and approval of his employer. On his way from the station where the shovel was loaded to the place where it was to be imloaded, on his motor cycle, he met with an accident and suffered a severe injury. He was paid by his employer for his time while going to and from the stations. It was held that the injury arose out of the employment. Cummings V. Johnson Construction Co. (1916), 9 IST. Y. St. Dep. Kep. 369. The employer furnished a tugboat to transport employes to and from work in the Oswego Harbor. This tugboat was the only means by which the men could reach and return from their work. While the men were crossing a scow alongside the work to reach the tugboat, on the way home, the deceased fell into the water and was drowned. It was held that the accident arose out of the employment. Angelo Diciaiulo v. H. 8. Eerhaugh, Inc., 1 N. Y. St. Dep. Kep. 424; 12 N. C. 0. A. 73. Where a railroad provides hand-cars for transporting employes from the place of work to a point convenient to their homes, though the journey is commenced after the usual work of the day has ceased, the relation of master and servant contimies until the employes have reached their destination. (E. L.) Cicalese v. Lehigh Valley R. Co., 69 Atl. 166; Y5 N. J. Law 897; (E. L.) Arkadelphia Lumber Co. V. Smith, 78 Ark. 505 ; 95 S. W. 800. (E. L.) Wilson v. Banner Lumber Co., 32 So. 460 ; 108 La. 590. (a) Licensees. If an employe is permitted to ride in the em- ployer's conveyance as a mere licensee without any obligation on the part of the employer to carry him, then the employer is not liable for injuries received on the trip. Thus a farm laborer, upon first going to work, was permitted to use a horse to take his personal belongings to the place of his em- ployer. The horse became frightened by a motor and the man was seriously injured. It was held that he was using the employer's horse merely as a licensee and the accident did not arise out of the employment. Whitfield v. Lambert '(1915), 8 B. W. C. 0. 91; 12 N. 0. 6. A. 905. A man who was employed as a shepherd was on his way to the place where he was fe,Jf y^^^i^y^^/^affPSO^ furnished by his em- ABISING "out of" AND IN " THE COURSE OF " EMPLOYMENT 485" Going to and from work ployer, and when at a distance of forty yards from the cottage which he was to occupy, the wagon was suddenly jerked and the shepherd thrown off, receiving injuries which proved fatal. It was held that the injury did not arise out of the employment, as the employment had not commenced. Whithread v. Arnold (1908), 99 L. T. 103; 1 B. W. 0. 0. 317. Where the giving to the workman by the employer of a return rail- way ticket was merely a gratuitous concession by the employer, and the workman was in no way obligated to go or return from work on the train, it was held that an accident while the workman was on the way to the place of employment, but before he reached the same, did not arise out of the employment. Nolan v. Porter & Sons (1909), 2 B. W. C. 0. 106. A street car motorman after returning from his home, where he had gone to eat his evening meal, in attempting to get on a car of the company by which he was employed to go to the place where he was to relieve another motorman, missed the handrail and fell, injuring himself severely. Motormen in going to and from their work were permitted to ride without charge. It was held that as the employer was not under obligation to carry the .workman he was merely a licensee and not having reached the place of work, the accident did not arise out of the employment. -Crow v. Los Angeles Railway Cor- poration, 1 Cal. Ind. Ace. Com. (Part II), 449 ; 12 IST. 0. 0. A. 376. A telegraph lineman was in the habit of riding between the work and the nearest point to his home on a supply truck, but the employer did not agree to furnish transportation and in fact required the work- men to report at the place of employment. The wages of those who rode on the conveyance was the same as those who reached the place of employment by their own conveyance. It was held that the in- jury did not arise out of the employment, when the accident hap- pened while the lineman was on the truck returning home from his work. Cook v. Home Telephone and Telegraph Co., 2 Cal. Ind. Ace. Com. 150; 12 K 0. C. A. 379. Where an employer allows an employe to ride on a conveyance of the employer's, going to and from the place of work, merely as a con- venience to the employe, but it is not regularly furnished, nor agreed to be furnished, an injury which occurs during the time of such conveyance does not aB^tai^clSyoMiardbeft^iarse of the employment. ■f'^fi BEADBUKy's WOEKMEN's COMPENSATIOA^ LAW Going to and from work lienson v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 383; 12 K C. 0. A. 379. A building superintendent whose automobile with which he went to work each morning was out of repair, requested permission to go with the contractor in. the employer's automobile to the work twenty miles away, and while so going the employer's automobile turned over and killed the employe. It was held that the accident did not arise out of the employment. Upton v. Stahlhuth, 2 Cal. Ind. Ace. Com. 531. An employe of a contractor engaged in road construction fell off one of his employer's wagons on which he was riding and died as the result of the injuries. The employer did not furnish transportation for \he employes to and from their work. The employe had not reported for work at the time he received the injuries and he was about a mile away from his place of employment. It was held that the injury was not sustained in the course of the erriployment. In re Schmitt, 1 Bull. Ohio Ind. Com. 81. An employe injured by falling off a conveyance on which he was riding from his place of employment toward his home, such con- veyance not being provided by his employer and the contract of em- ployment being silent in reference to means of a conveyance to and from work, although the employer paid the employe for the time necessarily consumed in going to and from his work, is not injured while in the course of the employment. In re Anderson, 1 Bull. Ohio Ind. Com. 90. An employe who was permitted to ride from his house to the work and back in a buggy owned by the employer, merely as a convenience to the employe, was in the habit of carrying a shotgun, for the pur- pose of shooting game on the way home. Upon getting into the buggy, when about to depart for home, the shotgun was accidentally discharged and he received a serious injury. It was held that the accident did not arise out of the employment. Cleland v. Smifh Brothers, Third Annual Eeport (1914), Wis. Ind. Com. 85. (b) Exceptional cases in which compensation was refused. Em- ployers furnished to an employe a bicycle with which to go to and from different places in the course of his work and also to travel between the place of work and his honje, a distance of six miles. It was not necessary ^fll!'%§Gti§^ Mg^/R«9^, but he would not have AKISINO " OUT OF " AND IN | THE COUKSE OF " EMPLOYMENT 48T Pieceworker carrying bundles to and from factory taken the employmeiit had not the employer supplied him with one. He was killed by being run down by a motor car on his way home. It was held that the accident did not arise out of the employment. Edwards v. Wingham Agricultural Implements Co. (1913), 6 B. W. C. C. 511. A section hand on a railroad was returning home on one of the cars of the employer and as he was alighting from the same he was struck and injured by a passing automobile. It was held that the injury did not arise out of the employment. In re Thimmes, Ohio Ind. Com., 1^0. 94,071 ; July 20, 1915 ; 12 N. 0. C. A. 381. A coal company contracted with the railway company to provide free train passage to take miners from the coal pit to the town. It was strictly against the company's rules for anyone to alight from the train while in motion, and there had been prosecutions against miners for doing this. An employe going home on this train attempted to alight at a place nearer his home by 100 yards, before the train reached a special platform provided, so as to save himself the time of walking back. As he was jumping oil another workman accidently trod on his coat, with the result that instead of the man jumping clear of the train he fell under it and both legs were so injured that they had to be amputated. It was held that the accident did not arise out of his employment. Price v. Tredegar Iron <& Coal Co. (1914), T B. W. C. C. 387. To the same effect see Davies v. Rhymney Iron Co., 2 W. C. 0. 22. An injury to an employe, while riding home in a conveyance owned by a fellow employe, when transportation was not furnished by the employer, does not arise out of the employment. In re Oillis, Ohio Ind, Com. No. 98,526, July 30, 1915; 12 N". C. C. A. 388. 4. Pieceworker carrying bundles to ana from factory. A pieceworker worked in a factory and also took bundles of ma- terial home at night upon which to work, returning the completed articles to the factory in the morning. While proceeding on foot to the factory she tripped and fell upon a curb, injuring her knee. It was held that the injury did not arise out of the employment. Malott V. Eealey, 2 Oal. Ind. Ace. Com. 127 ; 12 N. C. C. A. 391. In the last-mentioned case the Commission stated that the issue was a close one and said among otlB@i«iac(gfaiy Microsoft® 488 beadbuky's- wokkmen's cJmpensatiojn i.aw Messenger on way tioiue "If employes are sent upon special missions for their employers they are under the protection of the Act while upon the highways engaged upon such mission, but in such cases the mission itself must be the major factor in the employment and not merely incidental to the being upon the street. That is, if a person is going to his place of employment and would not otherwise be performing a service growing out of the employment, the mere fact that he carries a parcel to be delivered incident to the main purpose of going to or coming from the place of employment, would not bring such person under the protection of the Act, but if the main purpose of going was to deliver a package, such employe would be under the protec- tion of the Act although, incidental to such delivery, he might be going to or coming from his own home. In our judgment, in the case under consideration, the carrying of the parcel was incidental to the act of returning to the factory to work and was not the proxi- mate cause of the accident and injury and, therefore, the possession of the package did not suflBce to bring the injured employe under the protection of the Act. Her risks were the risks of the commonalty and there was nothing in the evidence to show that the package was a factor in her stubbing her toe against the curbing and falling upon the walk." 5. Moving picture actress going to and from studio. A moving picture actress had been sent from the studio, with the other members of the company, to produce a scene, half a mile away. She was injured while returning to the studio on horseback, to put on her strlet clothes. It was held that such injuries arose out of the em- ployment. Jansen v. Balboa Amusement Producing Co., 1 Cal. Ind. Ace. Com. (Part II), 477. 6. Messenger on way home. A messenger of a gas company whose duty it was to read meters, shut off the gas when patrons of the company moved, collect accounts and deliver orders from the ofBce of the company, used a motor cycle belonging to himself, but the upkeep of which was paid by the com- pany. His hours of duty were not fixed. He had made the last call and was on his way home when he met with an accident, on the public street, by a collision with another vehicle. It was held that the acci- dent arose out of the employment. Ferguerson v. Royal Indemnity Co. and Southern California Gas Co., 1 Cal. Ind. Ace. Com. (Part jjN j-^ Digitized by Microsoft® Train baggage solicitor Injured on way to railroad station 7. Police judge returning from luncheon. A police judge was expected to give only a part of his time for such work, being allowed the remainder of the time for his private practice as a lawyer. He had no understanding with the city as to the exact number of hours he was to give it, what hours of the day he was to be available for public business, or what hours should be reserved for his private affairs. In fact, he set his own hours for holding court, and allowed himself to be interrupted at any time of the day or night to dispose of judicial duties arising outside the court room. He was ac- customed to draw papers, fix bail, hear small cases, etc., at his private office or elsewhere, whenever called upon. At the time of the acci- dent, he was returning to his private office from luncheon at his home, intending to get some police court papers at his office, where they had been prepared, and, about an hour afterwards, to go di- rectly to the court room to call his calendar. While crossing the street in going toward his own office he was struck by an automobile and severely bruised and injured. It was held that the injury did not arise out of the employment. Gallup v. City of Pomona and the State Compensation Insurance Fund, 1 Cal. Ind. Ace. Com. (Part II), 242 ; 12 ]Sr. C. C. A. 395. 8. Newspaper reporter injured while riding bicycle on his way home. A newspaper reporter whose duties required the gathering of news in the town in whch he lived and in a town two miles away, where the paper was published, was injured while returning, at the close of his day's work, to his home, on the usual and best bicycle route, on a bicycle furnished by the employer, his leg being crushed by a passing automobile. It was held that he was not performing a service as reporter at the time of the injury and compensation was refused. State Compensation Ins. Fund v. Lemon, 2 Cal. Ind. Ace. Com. 482. 9. Train baggagtf solicitor injured on way to railroad station. A baggage solicitor, whose sole duties were to solicit on incoming trains, and whose employment each morning began when he arrived at the station and boarded the train, fractured an arm from a fall on the sidewalk while ]Pf I'^ji^K™ A^® earlv morning to the station to catch an outgoing tfaX^^ "^as held that the accident did not 490 Physician attending compensation cases arise out of the employment. Lawton v. Los Angeles Transfer Co., 2 Col. Ind. Ace. Com. 988. 10. Returning to place of employment to work overtime. An employe, after doing two hours' overtime work, was ordered to go home to supper and return for more overtime work. He was to be paid for the time consumed in going home to supper and returning to the factory. He was killed by a railroad train on his way back to the factory. It was held that although the employe was paid for the time consumed while on his way to the factory that the accident did not arise out of the employment. Leite v. Paraffme Paint Co., 2 Cal. Ind. Ace. Com. 948 ; 12 N. C. C. A. 392. 11. Policeman killed by train. A policeman who was required to be on duty during certain hours of each day and who was subject to call at any time of the day or night, was run down and killed by a train while walking along the right of way of a railroad company. At the time he was killed he had been on duty the number of hours specified by the rules of the depart- ment and had left police headquarters to go home. The reason for his presence on the right of way of the railroad company was not satisfactorily explained. It was held that he was not killed in the course of the employment. In re Lyman, 1 Bull. Ohio Ind. Com. 182. 12. Taxicab starter. A taxicab starter was descending the steps of a hotel to respond to a cab call when he slipped on a rubber mat, falling down the stairs and receiving disabling injuries. It was held that the injury arose out of the employment. David v. Town Taxi Co., Inc. (1916), 7 N. Y. St. Dep. Eep. 464. 13. Physician attending compensation cases. A physician who was under contract to attend t?) all compensation cases of a manufacturing concern, while attending to one of such cases, intended to and did avail himself of the same trip as a convenient occasion to treat a private patient. It was held that the trip derived its character fromj^s.^^^fjji^^p^l^^ an accident thereon was within the scope of me employment, namely, the treatment of the ARISING "out of" AND IX " THE COUESE OF " EMPLOYMENT 49J Seamen and mechanics getting on and off vesseis compensation case, and compensation was awarded to the physician. Getzlaff V. Dr. N. T. Enloe, 3 Cal. Ind. Ace. Com. 18. 14. Traveling between different places of work. A deckhand on a barge employed to help load and unload the barge at its termini, was drowned on a trip and it was held that the accident arose out of the employment, although the man had no duties to per- form during the trip. Bideout Co. v. Pillshury (1916), Cal. ; 159 Pac. 435 ; 12 K C. C. A. 1032. 15. Seamen and mechanics getting on and off vessels. A seaman, when off duty, left his vessel on his own business. Tlie vessel was then alongside the quay, but on his return, two hours afterward, it was some five or six feet from tl^ pier, the top of the rail being about three' feet lower than the quay. The vessel had iio gangway, but a ladder was used for getting on board. On his ar- rival at the pier, the seaman, seeing no ladder, hailed, and, having got no answer, he jumped from the pier to the vessel, with the result that his leg struck against the rail, and he was permanently injured. It was held that the accident arose out of the employment. Kearon V. Kearon (1911), 45 Irish L. T. 96 ; 4 B. W. C. C. 435. A workman was descending the side of a ship by a rope ladder. The' ladder twisted suddenly, he gave a cry, and then fell into the water. He was dead when picked up. The medical evidence was that death was due to heart failure and not to drowning and that the heart was in such a state that any slight exertion might have caused failure. The County Court judge found that death was due to accident arising out of and in the course of the employment, and awarded compensation. It was held on appeal that there was evi- dence to support the finding. Trodden v. J. McLennard & Sons (1911), 4B. W.^C. C. 190. Where a watchman on board ship whose duty it was to attend to the ship and its moorings was found drowned in the morning be- tween the dock and the ship, an award of compensation by the County Court, based on the inference that the death arose out of the employ- ment, in the absence of direct evidence, was sustained by the Court of Appeal. Richardson v. Owners of Ship " Avonmore" (1911\ 5 B W C C 34 Digitized by Microsoft® 492 bradbuky's woekmen's compensation law Seamen and mechanics getting on and off vessels A riveter working on a ship in dock, was about to go ashore for his breakfast. When he came on deck he found the vessel was being removed to a dry dock, and was already a short distance from tha quay. The gangway had been removed, and there was no means of getting ashore except by slipping down a rope, which still held the vessel to the quay. By means of this rope a fellow workman got ashore safely, and the applicant attempted to follow him. The rope gave way, and he was thrown against the quay wall and injured. It was held by the Court of Appeal that there was evidence to support the finding of the County Court judge that the accident arose out of the man's employment. Eeyser v. Burdich & Co. (1910), 4 B. W. C. C. 87. The deceased was a seaman on board a steamship and had gone ashore with leave for purposes of his own. The ship was moored to another vessel, which was made fast to the quay, so that, in order to board his own ship, the deceased had first to cross the deqk of the other vessel. There was evidence that the deceased, on his return, safely boarded the other vessel, and got on to the gangway between the two ships. The gangway gave way and he fell into the water and was drowned. It was held that the deceased met his death by an accident arising out of his employment. Leach v. Oakley, Street & Co. (1910), 4 B. W. C. C. 91. A workman was employed to watch trawlers as they lay in a harbor. He was on duty for twenty-five hours, during which time he had to provide his own food, and in connection with his duties it was occasionally necessary for him to be on the quay to which the trawlers were moored. In the course of his watch he left the boats and went to a hotel near at hand for some refreshments. He was absent a very shot time, had returned to the quay, and while descending a fixed ladder attached to the quay to go on board one of the trawlers, he fell into the water and was drowned. The arbitrator found that the accident to the deceased arose out of and in the course of his employment within the meaning of the Act of 1906. It was held by the House of Lords that there was evidence \ipon which the arbitrator could so find. Jackson v. General Steam Fishing Co. (1909), A. C. 523; 101 L. T. 401; 2 B. W. C. 0. 56. A fireman on board a steamship lying off South Brooklyn, went on shore for the purpose of obtaining for himself certain neces- saries which were not provided by the owners of the ship. On re- turning to the ship He-fell oft" -a ladder, which was the only means of AND IN " THE COTTESE OF " EMPLOYMENT 49^ Seamen and mechanics getting on and off vessels access from the quay to the ship and was drowned. It was held by the House of Lords that the accident arose out of the man's employ- ment. Moore v. Manchester Liners (1908), 3 B. W. 0. 0. 52Y; reVg 1 K. B. 417 ; 2 B. W. C. C. 87. A seaman in returning to his ship passed over a gangway from the wharf, and had one foot on the rail of the ship and the other on a ladder leading from the rail to the deck, when he overbalanced and fell over the side of the ship and was drowned. It was held that the accident arose out of, the employ- ment. Canavan v. Owners of the Steamship " Universal" (1910), 3 B. W. C. C, 355. A steward of a steamship discharging at the port of Montreal, Canada, went on shore in the evening, as he was permitted to do. Returning late in the evening to his ship, as was alleged, in a state of intoxication or semi-intoxication, he attempted to board the ship by using the cargo skid or stage, instead of the gangway. In doing so he slipped and fell and received injuries from the effect of which he died. It was held that the injury arose out of the employment. Robertson v. Allan Brothers & Go. (1908), 98 L. T. 821 ; 1 B. W. C. C. 172. "When a ship was lying in Glasgow harbor a seaman went ashore without leave and returned to his ship later in the evening in a state of intoxication. He went to his hunk and was found next morning lying injured at the bottom of the hold of the ship and from these injuries he subsequently died. There was no evidence as to how the man got to the place where he was injured. To reach the place it was necessary for him to pass through a door which was broken or forced open, by whom there was no evidence to show. It was held that there was no evidence that the accident arose out of the employ- ment. O'Brien v. Star Line (1908), 45 Scotch L. R. 935; 1 B. W. C. C. 177. A seaman employed on a small coasting vessel and living at the vessel's home port, finished work for the day and left the ship for home, crossing by a plank to an iron ladder permanently fixed against the side of the dock, which was usually available to the general public, but as long as the board was on it, it was only of use to get on this ship. While ascending the ladder he slipped and fell into the harbor and was injured. There was no other means of access to the dock. It was held that the injury arose otit of the employment. Webber v. Digitized by Microsoft® 494 beadbttey's woekmen's compensation law Seamen and mechanics getting on __and off vessels Wansborough Paper Co. (1914), 1 B. W. C. C. 795; rev'g 6 B. W. C. C. 583. A workman engaged upon a ship, working overtime, went ashore between 9 :30 and 10 a. m. to buy some bread. He was told by the foreman not to go, and could previously, during the interval allowed for tea, have procured the bread. Upon his return, while attempting to jump from the quay to the ship, he fell and was killed. It was held that the accident did not arise out of the employment. Martin V. FuUerton & Co. (1908), 45 Scotch L. E. 812; 1 B. W. 0. C. 168. The second engineer of a steam trawler which was in dry dock at the time, went ashore to his home for dinner. As he returned to the ship he fell into a dry dock and was killed. It was held that the accident did not arise out of the employment. Gilbert v. Owners of the "Nizam" (1910), 3 B. W. C. C. 455. In the last-mentioned case the court said : "I decline to assent to the view that a ship is in a different position from a factory for this purpose. This is a simple case where a man has been to his own home to get his dinner, and has met with an accident on his way back to the scene of his labors. That question has been raised and decided against the work- man, not once, but again and again by this court." The captain of a vessel left his ship in Bangor Eoads and went to a hotel a hundred yards away from the- dock. He returned to the dock at about 11 p. m. and hailed his ship for a boat. He was not heard for some time, but eventually a boat put off. Before the boat reached him he fell over the dock side and was drowned. The evidence was consistent with his going to the hotel for his own pleas- ure, or in the course of his employment. It was held that the de- pendents had not discharged the onus of proving that the accident arose out of the employment. Hewitt and Others v. Owners of the Ship "Duchess" (1910), 102 L. T. 204; 3 B. W. C. C. 239. See also Fletcher v. Owners of Steamship " Duchess " (House of Lords) 1911, 4 B. W. 0. C. 317. " A sailor left his ship and went for a week-end to his son's house, which was some considerable way down the river at Poplar. He took his dinner and tea there and he slept there. On Monday morning he started to rejoin his vessel. On his way he slipped on some steps at the riverside and injured himself. We certainly cannot go the length of saying that this was an accident arising out of and iff W^^oime^f this man's employment. The OF AND IJSr " THE COURSE OF " EMPLOYJUENT 495 Seamen and meelianics getting on and off vessels case would be exactly the same if he had slipped on the pavement in the street before he came to the steps. We have pointed out not once or l^iee, but often that, save in certain exceptional circum- stances, the Act does not extend to and protect the workman when on his way from his house to his employment. Still less does it pro- tect him when out for his own pleasvire for a week-end." Kelly v. Owners of the "Foam Queen" (1910), 3 B. W. C. C. 113. Where an employer gave to an employe a railway ticket and ordered him to report on board ship for work at 7 a. m., and while the workman was on his way to the ship he fell off the dock and was injured, which dock was not under .the control of his employer, it was held that the giving of the railway ticket was merely a gratuitotis concession by the employers and that it was in no way obligatory on the workman to go or return from his work by train as provided in the ticket, and that therefore the accident did not arise out of and in the course of the man's employment. Nolan v. Porter and Sons (1909), 2 B. W. C. C. 106. A steward on a steamship had gone ashore with leave. At about 10 p. M. he was passed onto the wharf by the doorkeeper who saw him make his way toward the ship. He was not seen board- ing the gangway, nor was there any evidence that he ever reached it, but the watchman heard a splash in the water and a cry of " Man overboard." When the body was recovered life was extinct. It was held that the applicant for compensation had not discharged the onus of proving that the accident arose out of the employment. Kitchen- ham V. Owners of S. S. "Johannesburg " (1910), 4 B. W. 0. C. 91, aff'd by the House of Lords, 4 B. W. C. C. 311. A sailor was seen about eight p. m. about to leave his ship, which was at a dock, to get provisions. Early next morning he was found drowned in the dock, ten or fifteen feet from the gangway of the ship and three feet from the side of the dock. His cap was found on the dock and there was a fresh wind blowing. It was held that the acci- dent did not arise out of the employment. Mitchell v. 8. 8. " Saxon " (1912), 5 B. W. C. C. 623. A seaman had been ashore with leave, for medical attendance. On his way back to the ship, he found that the small boat in which he had come ashore had been removed, and that there was nothing at the jetty except a 27-foot lifeboat, with a rudder, but no oars. It was a boat that should lfi««'^^^^fM4Sg9S6»f ®x oarsmen. The ship 496 beadbuey's workmen's- compensatioi? law Seamen and meclianics getting on and off vessels was one hundred yards from the shore, and the wind was strong and squally. The wind and tide were running more or less in the direc- tion in which the ship lay. The seaman attempted to get ip the ship by going alone in the lifeboat, using the rudder as a paddle. He was blown out to sea and drowned. It was held, that the accident did not arise out of the employment. Halvorsen v. Salvesen (1911), 49 Sc. L. E. 27; 5B. W. 0. C. 519. A seaman who had been on shore returned to the dock hopelessly drunk. He was thrown, like a sack of sand, on the deck of the ship just as it was moving off. He fell on his hands and knees and shortly after staggered to his feet and rolled overboard and was drowned. It was held that the accident did not arise out of the employment, but was due entirely to his hopeless state .of intoxication. Frith v. S. S. " Louisianian" (1912), 5 B. W. 0. C. 410. A seaman went ashore with leave for his own purposes. "When he returned late at night he found that the ship had meanwhile been moved to another part of the dock. He proceeded to make his way to the ship along the dock side, which had many railway lines upon it. He was injured by a train on the docks, about 200 yards from his ship. It was held that the accident did not arise out of the em- ployment. Biggart v. ;S'. 8. " Minnesota " (1911), 5 B. W. C. C. 68. _A sailor, returning on board his ship after a trip on shore, not con- nected with his employment, fell into the water from steps leading from the gangway, of which they formed part, and was drowned. It was held that this was not an accident arising out of the employ- .ment. Hyndman v. Craig & Go. (1910), 44 Irish L. T. 11 ; 4 B. W. 0. C. 438. A seaman while returning on board ship from the shore, when the ship was lying in port, slipped on the gangway and fell over the gangway ropes, striking his head in falling, and received injuries which proved fatal. There was no evidence to show why the de- ceased had gone there, whether on the service of the ship or for his own purposes, or with or without permission. It was held that the evidence being equally consistent that the deceased was or was not on the ship's business, the applicant for compensation had not dis- charged the. onus resting upon her of showing that the injury arose out of the employment. McDonald v. Owners of Steamship " Ban- ana" (1908), 1 B.^^^*?31MF0S0/?® AND IN " THE COURSE OF " EMPLOYMENT 497 Seamen and mechanics getting on and ofE vessels A seaman who slept aboard a ship had left to go on shore. In returning to the ship, and while still on the quay, he stumbled and fell into the water and was drowned. It was held that the accident did not arise out of the employment. Craig v. 8. 8. " Calabria, " (1914), Scotch Court of Session, 7 B. W. 0. 0. 932. In the last- mentioned case the court said that the case would have been mate- rially different if, at the time of the accident, the man had reached the gangway of the ship and had fallen off it into the water. A seaman was discharged at 11 p. m. at the end of a voyage. He climbed dovm the ship's ladder on to the " dolphin" to get ashore. The " dolphin " was part of the quay itself. He fell from the " dol- phin " into the water and was drowned. It was held that the acci- dent did not arise out of the employment. Cook v. 8. 8. " Montreal " (1913), 6 B. W. C. C. 220. Kepair work was being done on a ship in dock and in consequence a part of the dock was roped off as dangerous, notices being put up to that effect. Men going to the ship to work often went under the ropes and across the dangerous area, a-s it was the quickest way. The deceased was employed as a boiler scaler on the ship, but had nothing to do with the repair work. After his dinner hour he was returning to the ship across this dangerous area. He stood for some minutes watching the repair work and was killed by a rope attached to the ship which snapped and hit him. It was held that the accident ' did not arise out of the employment. Murray v. Allan Bros. & Co. (1913), 6 B. W. C. C. 215. Seamen had been specifically instructed not to sleep on board the ship when it was in port, and accommodations had been provided for them outside. A seaman while returning to his ship at the quay- side at 11 p. M. met with an accident which caused his death. It was held that the accident did not arise out of the employment. Origgs V. 8. 8. " Gamecock " (1913), 6 B. W. C. C. 15. A steward on a ship was permitted to go to his home when he went on shore to buy supplies, and he was injured before he reached the store, on returning from his home It was held that the accident did not arise out of his employment. Lee v. Steamship 8t. George (1914), 7 B. W. C. 0. 85. Where a contract between a ship owner and a seaman stipulated that the seaman shou#'^'^^fii^>y^'95'^^P)visions and, returning 33 498 beadbuey's woekmen's compensation law Seamen and meclianics getting on and off vessels from a trip ashore where he had gone to secure such provisions, on a dark and stormy night, he fell from the dock and was drowned, it was held that the accident did not arise out of the employment. Parher v. Steamship " Black Boch " (1914), 7 B. W. C. C. 152. In the last-mentioned case the court followed the decision in Mitchell V. Steamship "Saxon" (1912), 5 B. W. C. C. 623. The court fol- lowed the rule that a seaman who is ashore on his own business and is injured is not entitled to compensation, but that if he is ashore on the ship's business and injured, he is entitled to compensation. There was a dissenting opinion in the Parher case and it was con- ceded that the case was a close one. An engineer on a tugboat by mistake in the location of his own boat went to another boat and while attempting to reach his own boat he was drowned. It was held that the_ accident did not arise out of the employment and compensation was refused. Ocean Acci- dent & Guarantee Corp. v. Industrial Accident Commission (1916), Cal. ; 159 Pac. 1041; 12 IT. C. C. A. ^73; rev'g SMtery v. Ocean Accident & Guarantee Corp., 2 Cal. Ind. Ace. Com. 511. A marine fireman, oiler and water tender left his ship at 6 p. m. and after attending a dance and going to other places, near midnight returned to the ship, as he had a right to do, in order to be sure to be there to put on steam in the morning. On going up the side of the ship on a ladder, he fell, sustaining severe injuries. There were two ladders leading from the dock up against the side of the ship, one of these being the regular ship's ladder and there was a lantern hung against the end of the gangway to light the way of the ladder. About 60 or 80 feet away was a painter's ladder, which had been used to work at the bottom of the ship, and which did not reach withn 8 or 10 feet of the ship's rail. It was at the bottom of this latter ladder that the employe was found and from which he had fallen. It was held that the injury arose out of the employment. Boucher v. Olson & Mahony Steamship Co., 1 Cal. Ind. Ace. Com. (Part II), 248. In the last-mentioned case the court stated that a writ of review was taken to the Supreme Court, but the matter was finally settled and the settlement approved by the Commission and the appeal was dismissed. The captain of ^r'UM^eWWhiS^s^^ ^* ^ dock went on shore in the evening and remained until twelve o'clock at a nearby cafe. Going after time slip In getting from the dock to the barge it was necessary to cross three intermediate boats. The captain parted from a friend near the cafe at about one o'clock in the morning and started toward the barge. The captain of one of the intermediate boats was awakened between one and two o'clock in the morning by a cry for help and upon going outside h^ was unable to see anything. Later in the morning, how- ever, the body of the captain who had been on shore was found in the water near the second boat from the dock. Compensation was awarded. Countryman v. Newman (1916), 7 IsT. Y. St. Dep. Rep. 421. 16. Going to employer's premises to apply for work. A laborer passing into a building under construction to apply for work, in response to information that men were needed, was held not to be an employe as aifecting liability of the contractors for his injury. (E. L.) Dicherson v. Bornstein, 137 S. W. 773; 144 Ky. 19. An employe residing in a different town from that in which the office of the employer was located was discharged, and on his way to the employer's office to request reinstatement, was drowned in the wreck of the ship upon which he had taken passage. It was held that the accident did not occur in the course of the employment. Merritt v. North Pacific Steamship Co., 2 Cal. In-d. Ace. Com. 273; 12 N. 0. C. A. 82. A longshoreman had finished his work for the day and had made an unsuccessful application for work the next day. He was killed by a railroad train off the employer's premises. It was held that the injury did not arise out of the employment. Ganley v. Em- ployers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 159. 17. Reporting for work. An employe reporting for work stepped on a- piece of scrap iron and injured his foot. It was held that the injury occurred in the course of the employment. In re Bircia, Ohio Ind. Com., No. 169,702, Dec. 20, 1915 ; 12 IST. C. C. A. 662. 18. Going after time slip. A pressman worki^^r^a^ gul^shin^^^paiiy left his press to go 500 beadbuey's woekmen's compensati6n law Returning to employer's premises to secure pay to another part of the building to get his time slip. In passing a fellow employe, who was asleep at a table, the claimant slapped the latter on the shoulder to wake him up and then went back to see if the other employe had awakened. At the time he was passing some presses where the light was dim, and he collided with a corner of the press rack, sustaining a severe injury to his eye. It was held that the injury arose out of the emplojTnent. Boesenberg v. But- terick Publishing Co., 4 JST. Y. St. Dep. Kep. 367; 12 N. C. C, A, 553. 19. Returning to employer's premises to secure pay. A workman will be held to be acting in the course of his employ- ment 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; Riley v. W. Holland & Sons (1911), supra; Molloy v. South Wales Anthracite Colliery Co. (1910), 4 B. W. C. C. 65; Nelson v. Belfast Corporation (1908), 42 Irish L. T. 223; 1 B. W. C. C. 158; Riley v. W. Holland & Sons (1911), 104 L. T. 371; 4 B. W. C. C. 155; Lowry v. Sheffield Coal Co, (1907), 24 T. L. E. 142; 1 B. W. C. C. 1; In re Phillips, 1 Bull. Ohio Ind. Com. 49. A collier received his pay-note on Saturday. Being dissatisfied 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 accident did not arise out of the employment. Phillips v. Wil- liams (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 work- man 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 em- ployment. Parker v. Pont (1911), 5 B. W. C. C 45 A railway employ^^«fq(^if'ms?,^man he wished to discon- ARISING " OUT OB" " AND IN " THE COUESE OF " EMPLOYMENT 501 Returning to employer's premises to secure tools tinue work was told by the foreman that he had iio identification ticket to give the workman to enable him to draw his pay. He told the workman to call next day at the office for the ticket and payment. The next day, just before the appointed time, the workman was seen walking along the line to the section house and while in this position he was knocked down by one of the employer's trains and killed. It was "held that the accident did not arise out of the employment. Lasturka v. Oranh Trunk Pacific Ry. Co. (1913), Alberta Supreme Court, 7 B. W. 0. C. 1031. In the last-mentioned case there was some evidence that the employe was told to go to the section house for payment, but the foreman denied this and apparently the court held that this fact had not been proved. An employe on the employer's premises going to get his pay slipped on a polished floor and was injured. It appeared that the employe who was injured was running a race to the office with another em- ploye after work had ceased in a contest as to which should first get paid. It was held that the injury did not arise out of the employ- ment. In re Atwell, Ohio Ind. Com., No. 1,384, Sept. 20, 1915; 12 K C. C. A. 662. 20. Standing in line to get pay check. An employe was injure'd while standing in line to get his pay check and it was held that the injury arose out of the employment. Garls V. Pekin Cooperage Co., 111. Ind. Bd., Oct. 5, 1914; 12 N. C. C. A. 552. 21. 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 plain- tiff 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 plaintif'f|fqti^'^fiP?l^d Me in the floor and 502 beadbuey's woekmen's compensatiox law Workmen whose duties take them away from employer's premises was seriously injured. The plaintiff recovered a verdict which was affirmed by the New York Court of Appeals. (E. L.) Lynch v. Pierce, 1 Bradbury's PI. & Pr. 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 gi'ound that the appellate court had no jurisdiction to interfere with the findings of f^ct of the County Court. Molloy v. South Wales Anthracite Col- liery 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.) Broad- way Coal Mining Co. v. Robinson, 150 S. W. 1000; 150 Ky. 707. A miner went to a mine which had been closed down to get his tools to go to another mine operated by the same employer. Miners had been instructed not to go into the mine unless the superintendent was with them. This rule was violated and it was held that the injury did not arise out of the employment. In re Orodel, Ohio Ind. Com., No. 103,845, Oct. 21, 1915; 12 N". C. C. A. 661. 22. Workmen whose duties take them away from the employer'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. E. 67. A canvasser and collector, employed to go round calling on cus- tomers, 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 ARISING " OUT OF " AND IN " THU C'OUJiSE OF " ICMPLOYMENT 503 Workmen whose duties take them away from employer's premises employment. M'Neice v. Singer Sewing Machine Company (1911), 48 Scotch L. E. 15 ; 4 B. W. 0. 0. 351. A railway policeman, a part 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 railway track over a way which was sometimes used by the employes. An engine being shunted down these tracks hit and killed the policeman. It was held that the accident arose out of the employment. Grant v. Glas- gow & South Western By. Co. (1907), 45 Scotch L. K. 128; 1 B. W. C. C. 17. A coachman, a portion of whose duty it was to call at a post office somewhat distant to secure mail matter, traveled on a bicycle in per- forming this duty, with the knowledge and consent of his employer, and was injured through a strange man lurching against and up- setting his bicycle. It was held that the accident arose out of Jiis employment. Bett v. Hughes (1914) (Scotch Court of Session), 8 B. W. C. C. 362. A driver, driving towards his employers' yard, in the course of his employment, was asked by a fellow workman, going in the same direction, for a lift. He consented and stood up to fix the seat at the back of the cart. The horse suddenly started and the driver fell out and was killed. There was evidence that the employers knew of and permitted the practice of giving lifts. It was held that the accident arose out of the employment. Evans v. Holloway (1914), 7 B. W. C. C. 248. A driver of a brewery wagon employed all day in driving about the streets delivering goods and taking orders, without any definite intervals for meals or refreshments, stopped at about two o'clock in the afternoon opposite a public house where he had a glass of beer and left the public house in less than two minutes. He was knocked down and killed by a motor car as he was crossing the road to get on the wagon. It was held that the accident arose out of the employ- ment. Martin v. Lovihond & Sons (1914) , 7 B. W. G. C. 243. A workman in an iron works went from his furnace to the black- smith'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 direct evidence as to how the man canf3/M'3tecl43tM©BQiad/?feierred that the accident 504 Workmen whose duties take tbem away from employer's premises 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 driver of a horse and cart while driving out of his employer's yard in the course of his employment was struck by a piece of cur- rugated iron blown by a high wind from the roof of a building ad- joining the employer's yard and it was held that the accident did not arise out of the employment. Kinghorn v. Outhrie (1913) (Scotch Court of Session), 6 B. W. C. 0. 887. The court distinguished the ease of Anderson v. Adamson^ 6 B. W. C. 0. 874, and stated: " The two facts which were admitted there, and which seem to me to differentiate this ease entirely from that of Anderson, are, ia the first place, that the man there was stooping over his work and was therefore unable to avoid a danger from above; and, in the second place, that other workmen who were in the same place, but who were not compelled to stoop, were able to avoid, and did in point of fact avoid, exactly the same danger to which he succumbed. It was held by the First Division that the workman's special employment had appreciably increased the risk of accident of this particular kind; and upon that ground, although the court thought it was a narrow case, they did not interfere with the decision at which the sheriff had arrived." A builder's laborer was directed to go, in the breakfast hour, to a place about 100 yards from where he was working and obtain a supply of whitening «nd mix it before he went to his own breakfast. It was necessary for him to cross the road and in doing so in a hurry he was knocked down and injured by an electric tramcar. It was held that the accident did not arise out of the employment. 8ym- monds v. King (1915), 8 B. W. 0. 0. 189. A driver of a cart in returning to his employer's place of business went out of the ordinary course and stopped at a public house for a drink. Eesuming the journey the horse ran away and he was thrown out of the cart and was killed. It was held that the accident did not arise out of the employment. Everitt v. Eastaff & Co (1913) 6 B. W. 0. 0. 184. An assistant superintendent of a firm of credit tailors used his own bicycle in traveling about, without the knowledge of his em- ployers. After la&;y&§iM^iW'M^im-6h olll he was on hi$ way back ARISING ' OUT OF " AND IN " THE COURSE OF " EMPLOYMENT 505 'sVorkmen whose duties take tliem away from emijloyer's ijvemises to the place of business and stopped at his own home, which was on the route, to secure a bicycle lamp, and then started for the place of business. By reason of a fall from the bicycle he was killed. It was held that the accident did not arise out of the employment. Butt V. Provident Clothing and Supply Co. (1913), 6 B. "W. C. C. 18. A manager of one branch shop was required to take his books for inspection every Saturday to another branch two miles away. He used his bicycle for this purpose, at the suggestion of the manager at the other branch. When returning, after one o'clock, his closing hour, the wheel slipped and the man fell and injured himself. It was held that the risk was not one to which he was exposed more than other members of the public and the accident did not arise out of the employment. Blade v. Taylor (1915), 8 B. W. C. 0. 65. Claimant was on his way from the cut, where he was at work, to the field office, for the purpose of securing a commissary book. His route lay parallel between two railroad tracks. Just before reach- ing 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 blind- ing 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 employment. Be Popanx Papius, Op. Sol. Dep. C. & L., p. 249. A surveyor was in a surveying party, which party was engaged in work along the Mississippi river. The entire party occupied boats furnished by the government for living quarters, taking their meals and sleeping thereon. After supper the decedent left the boat and proceeded to a nearby town for the purpose of getting his pay check cashed and making some purchases. Upon returning to the boat he was met at the gangplank by the watchman with a lantern. In attempting to pass around a person who had stopped on the gang- plank, he lost his balance, fell overboard and was drowned. It was held that the accident arose in the course of tb? employment. Be C. R Eott, Op. Sol. Dep. 0, & L., p. 237. Digitized by Microsoft® 506 bkadbuuy's woekmeh's compensation law Workmen whose duties take them away from employer's premises A messenger boy employed at a navy yard fell from a bicycle and was injured while in the yard and death resulted from the injury. It was held that the injury arose in the course of the employment. Re John F. McSorley, Op. Sol. Dep. L., p. 331. Where the employe owned an automobile and was engaged by a creamery to collect cream and deliver butter and was accustomed daily to take a wagon load of butter in the afternoon from the creamery to his home in another town, delivering a portion of the butter on his way home and storing the rest overnight at his home to be delivered the following day, and such employe was killed on the way home by the overturning of the automobile, it was. held that the accident arose out of the employment. Golden v. The Delta Creamery Co., 2 Cal. Ind. Ace. Com. 734; 12 N. C. C. A. 385. A bill collector employed irregularly by a merchant, was riding his own motor cycle in the course of his work, when he was run into by an automobile, suffering a fracture of the left arm. It was held that the injury arose out of the employment. Shouler v. Jacob Qreenberg, 1 Cal. Ind. Ace. Com. (Part II), 146; 11 IST. C. C. A. 382. A collector killed in a street car accident was awarded com- pensation. White V. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part II), 148. A salesman of athletic goods was invited by friends to take an automobile trip. He consented if they would go to a place where there were prospective buyers. The friends agreed. He was in- jured while riding in such automobile. It was held that the injury arose out of the employment. Travelers Insurance Co. v. A. G. Spaulding & Bros., 1 Cal. Ind. Ace. Com. (Part II), 575. A civil engineer was sent from San Francisco to Eureka to survey a quarry and to bring his notes back to the home office for inspection and consultation, and he was drowned on the wrecking of the steam- ship while he was returning to San Francisco. It was held that, th^ accident arose out of the employment. Hutchinson v. Pacific Engi- neering and Construction Co., '2 Cal. Ind. Ace. Com. 574 ; 12 K C. C. A. 82. A person who had done occasional errands was permitted hj the owner to drive an automobile. A parcel was given to him to deliver, nothing being said about payment therefor. It was held that an in- jury sustained by the overturning of the^ automobile while on the AND IN " THE COURSE OF " EMPLOYMENT 507 Workmen wliose duties take them away from employer's premises errand arose out of the employment. Smith v. Hayashi Floral Store, 2 Cal. Ind. Ace. Com. 516 ; 11 JST. C. 0. A. 375. Where it is the duty of an employe during working hours to go to places away from her employer's office and then to return thereto to make a report, she is at all such times acting in the course of her employment and is entitled to compensation if injured by accident at such time. Turgeon v. Fox Company, 1 Cal. Ind. Ace. Com. (Part II), 68. A mechanic was sent from the shop on an errand and in returning to the shop while boarding a street car he met with an accident and it was held that this injury arose out of the employment. Brodie v. Beo Pacific Co., 1 Cal. Ind. Ace. Com. (Part II), 415; 12 K C. C. A. 389. Where a State highway patrolman was drowned in attempting to drive his carriage across a swollen stream, it was held that the death arose out of the employment. Sevey v. Department of Engineering of the State of California, 2 Cal. Ind. Ace. Com. 568. A mechanic upon being instructed llo go about nine blocks to get an electric motor weighing about twenty pounds, stopped the driver of a passing delivery wagon and asked to be taken to the shop and then to be taken to the employer's plant. On the way the horse became frightened and kicked the employe. It was held that the injury arose out of the employment. Sayers v. Corona Foothill Lemon Co., 2 Cal. Ind. Ace. Com. 714. A superintendent of drivers who acted also as salesman and col- lector, was required to be present at the yard of his employer from 7 A. M. to 8 A. M, to superintend the drivers, after which he went out in the field, by automobile, in pursuit of his employment as salesman and collector, finishing his services when he reached home at the end of the day. While on his way from his home to the yard, before seven o'clock in the morning, his automobile collided with an electric trolley car and he was seriously injured. It was held that the acci- dent did not arise out of the employment. Zbinden v. Union Oil Co., 2 Cal. Ind. Ace. Com. 590 ; 12 N. C. C. A. 371. In the last- mentioned case the Commission held that the employe was under the protection of the Compensation Act until he reached home at night, but that it did not covQ'Mggc^]*?'6£P$fl^^ay to the premises of 508 BEADBUEt's WOEKMEn's compensation lAW Workmen whose duties take tbem away from employer's premises the employer in the morning, in the absence of tasks to be performed by him before reaching such premises. An industrial' insurance agent was allowed to write policies and collect premiums and to solicit insurance at any hour of the day or night which might best suit his convenience. He was struck by an automobile on a public street at about 7.17 p. m. The agent had collected one premium shortly before the time he was killed and was going in the direction of a place where it was necessary for him to call to collect another premium. It was held that the injury arose out of ^he employment. McKay v. The Metropolitan Life Ins, Co., 1 Conn. Comp. Dec. 380. A teamster was endeavoring to raise the top' of a wagon to get pro- tection from the cold when the frame came loose, precipitating him to the ground and under the wheels of the wagon, causing his death. Compensation was awarded. Oates v. Gibson and Bulpit, 111. Ind. Bd., No. 1,873, Jan. 13, 1916 ; 12 N. 0. C. A. 190. A driver deviated from the usual road of travel and in attempting to drive under a subway his head was caught between the lower beams of the bridge and the oil tank wagon which he was driving, resulting in his death, and compensation was awarded. Hamang's Estate v. Paragon Refining Co., 111. Ind. Bd., May 14, 1914; 12 N". 0. 0. A. 191. A salesman, while crossing a driveway on his way to the home of a prospective customer, slipped and fell sustaining a fractured shoulder. It was held that the injury arose out of the employment.' Oaffney v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 339. A life insurance agent was riding in an automobile at the invita- tion of a prospective customer when he was injured by the overturn- ing of the automobile, and it was held that the injury did not arise out of the employment. Hewitt v. Casualty Co. of America (1916), Mass. ; 113 IST. E. 572 ; E". C. 0. A. A traveling salesman started to go to a place where he intended to meet a customer, but he abandoned the intention and decided to go home. After passing the point where he intended to leave the car and meet the customer he met with an accident. It was held that the injury did not arise out of the employment. Muir v. Ocean Accident & Guarantee Corp., 2 Mass. Ind. Ace. Bd. 172. A tree trimmer and planter, employed by the week as a foreman Digitized by Microsoft® ARISING " OUT OF " AND IN " THE COtTESE OP " EMPLOYMENT 50& Workmen whose duties take tliem away from employer's premises by a shade tree company, to go about trimniiiig trees, etc., while about to take a car to go from one inspection job to another, as required by his work, was fatally injured by an automobile. It was held that the accident arose out of his employment. Kunze v. Detroit Shade Tree Co. (1916), Mich. j 158 N. W. 851; K C. C. A. The duties of an employe consisted, among other things, in setting up and repairing automobiles and farm machinery, and driving automobiles in his employer's auto livery business. He was killed by the overturning of the car which he was driving, and it was held that the injury arose out of the employment. State ex rel. Nelson- Spelliscy Co. v. District Court of Meeker County, 128 Minn. 221 ; 150 K W. 623 ; 11 N. C. C. A. 636. It was contended in the last- mentioned case that the employe was intoxicated and had gone beyond the point where he properly should have gQue, and the ease was con- tested on that ground, among others. The court held that the evi- dence of intoxication was not sufficient and also held that although the employe had gone toward the place where he should have gone, that nevertheless when injured he was in a spot where he properly should be. The court remarked that if he had been injured after having gone beyond the place where he properly should have gone another question would have been raised. Where a driver of a wagon was killed by the falling of material from a building under construction on a public street, it was held that the injury arose out of the employment. Mahowald v. Thomp- son-Starrett Co. (1916), Minn. ; 158 IST. W. 913. A driver of an express wagon while crossing the street to deliver a package was struck by an automobile and it was held that the acci- dent arose out of the employment. Miller v. Taylor (1916), 173 App. Div. 865 ; 159 Supp. 999 ; 12 N. 0. C. A. 192. A truck driver was injured by a street car hitting the truck which he was driving and it was held that the injury arose out of the em- ployment. Burtschell v. Cross, Austin & Ireland Lumber Co., 3 K Y. St. Dep. Eep. 381 ; 12 N. 0. C. A. 184. A driver of a delivery wagon in going from the wagon to the side- walk was struck by an automobile and killed and compensation was awarded. Miller v. Taylor (1916), 7 N". Y. St. Dep. Eep. 396; 12 ISr. C. C. A. 192. „. ... . . ... Digitized by Microsoft® • 510 BEADBtTEY S WOBKMEn's COMPENSATION LAW Scope of article An outside salesman was riding in a public bus for the purpose of going to the place where goods were to be sold, when the bus collided with a coal wagon and the salesman was injured, and it was held that the accident arose out of the employment. Handle v. A. Steinhardt & Bros., 6 E", Y. St. Dep. Kep. 390. An employe had gone to a storeroom and was on his way from the storeroom to his place of work. He stepped on a passing wagon, which was not owned by the employe or by the employer, and was injured. It was held that the injury arose out of the employment and that the act of the claimant in stepping upon the wagon was not inconsistent with any feature of his employment, but merely inci- dental to it and that he had chosen' a reasonable means of transporta- tion. In re Tilton, Ohio Ind. Com., ISTo. 1,207, Aug. 27, 1915; 12 K C. C. A. 388. Under the Washington Act it is held that if a workman is injured otherwise than by disease on the plant of his employer it is not neces- sary to show that the injury was by accident or that it arose out of the employment. But if the workman is injured away from the premises of the employer then it must be shown that it is an injury " arising out of the employment." Btertz v. Industrial Insurance Commission (1916), 91 Wash. 588; 158 Pac. 256. ARTICLE C— NONWORKING TIME INJURIES 1. Scope of article. In a previous paragraph (page 473) there was discussed the ques- tion of liability of an employer for compensation when an employe was injured on his employer's premises when he was actually on his way to or from his employment. A number of other questions have arisen which are somewhat analagous to the one there treated but which nevertheless may be distinguished from it slightly. Not in- frequently, as the cases show, an employe arrives at his place of em- ployment before it is time to begin work or he remains there before starting for home after work ceases. In other instances there are temporary cessations of work for one cause or another. Injuries have occurred not infrequently in these intervals and the liability of the employer in such instances is discussed in this article. Digitized by Microsoft® Workmen injured on employer's premises 2. Workmen injured on employer's premises before work begins, after work ceases, or during cessation of work. When an employe arrives at the place of work shortly before the regular time to begin work and is doing anything relating to the em- ployment and is injured, he is entitled to compensation. Sharp v. Johnson & Co. (1915), 7 W. C. 0. 28. A sailor washing his clothes in a dark alleyway fell down a half open hatchway and was injured. It was found that it was necessary for the sailor to wash his clothes, and that he was doing it in a rea- sonable place and manner. It was held, therefore, the accident arose out of the employment. Coholon v. Ship " Kentra" (1912), 5 B. W. C. C. 658. A miner descended -into his pit by the cage and got out at the wrong level. He then descended by a shaft near the cage, and instead of proceeding to his work, he walked to a place some 700 feet along a road, which by its nature was very different from his proper road. At this point he was found dead, having been scalded to death by the steam which escaped from the colliery engines. There was no evi- dence to show why he went there. It was held that the accident arose out of the employment. Sneddon and others v. Greenfield Coal and Brick Co. (1910), 47 Scotch L. E. 337 ; 3 B. W. C. 0. 557. A workman had to come to the place of his work by a train arriving twenty minutes before work actually commenced. It was the prac- tice of the workmen, recognized by the employers, to deposit their tickets on the ledge of the office pigeonhole, and then, if so minded, to breakfast at a mess cabin provided by the employers. A work- man, while depositing his ticket, was injured by falling into an excavation. It was held that he was entitled to compensation. Sharp v. Johnson & Co. (1905), 92 L. T. 675 ; 7 W. C. C. 28. In the case of Jackson v. General Steam Fishing Co. (1909), A. C. 523 ; 2 B. W. C. 0. 56, a workman was employed to watch trawlers as they lay in a harbor. He was on duty for twenty-five hours, dur- ing which time he had to provide his own food, and in connection with his duties it was occasionally necessary for him to be on the quay to which the trawlers were moored. In the course of his watch h6 left the boats and went to a hotel near at hand for some refresh- ment. He was absent a very short time, had returned to the quay, and while descending ^J^^^lj§d(j|^r,^atta^d to the quay to go on 512 Workmen injured on employer's premises board one of the trawlers, lie fell into the water and was drowned, It was held by the House of Lords that the accident arose out of the employment. A workman employed by a farmer, returning home temporarily during a storm, was injured while crossing a plank laid over a dyke, and it was held that the accident arose out of his employment. Taylor v. Jones (1907), 1 B. W. C. C. 3. A fruit picker on piecework was told to stop what she was doing and go to work at another part of the farm. While proceeding as instructed she met with an accident and it was held that it arose out of the employment. Jesson v. Bath (1902), 4 W. C. C. 9. A brakeman was killed while crossing the tracks of a railway to couple a shunted car to the engine, and it was held that the accident arose out of his employment. Kennedy v. Grand Trunk Pacific By. Co. (1913) (Saskatchewan Supreme Court), 1 B. W. C. 0. 1046. A railway employe during the time of his employment, with per- mission of his employers, went to the railway yard for some clothes and bedding which had been conveyed there in one of the employer's trains from his last place of residence, which he had recently left, and while engaged in getting the clothes he was injured. It was held that the accident arose out of the employment. Conyea v. Canadian Northern Bailway Co. (1913) (Saskatchewan Supreme Court), 7 B. W. C. C. 1029 ; aff'd 7 B. W. C. C. 1041 ; 12 N. C. 0. A. 897. A train guard who was waiting at a station until the time arrived for him to take a return train was seen sittng on a buffer stop to rest himself, and subsequently was found lying on the ground between the rails with a wound on his head from the effects of which he died the following day. There was evidence that the buffer stop was a safe place to sit. It was held that the accident arose out of the employ- ment. Sheehy v. Oreat Southern and Western By. Co. (1913) (Irish Court of Appeal), 6 B. W. C. C. 927. A girl who was helping with a threshing machine received from her employer some refreshments and she sat down a moment to take them. In arising her hand slipped and passed in the mill and was injured. It was held that the accident arose out of the employment. Carinduff v. Oilmore (1914) (Irish Court of Appeal), 7 B. W. 0. C. 981. An employe had living quarters on a boat of the government. Digitized by Microsoft® AEISIl^G " OUT OF " ANB IJS^ " THE COTTESE OF " EMPLOYMENT 513 Workmen injured on employer's premises "While off duty at about 5.30 a. m. he left his bedroom for some un- known reason, fell overboard and was drowned. It was held that the accident arose in the course of the employment. Re Samuel Jenkins, Op. Sol. Dep. L., p. 334. The claimant was employed in the carpenter shop of the Eock Island Arsenal. A time clock was there installed for recording the time of the employes. While the claimant was in the act of " ringing out " at the end of the day's work he was pushed by some person behind him. In trying to keep from falling he slipped and tore the ligaments of his left leg. It was held that the accident arose out of the employment. Re E. A. Rugan, Op. Sol. Dep. C. & L., p. 220, A workman injured by an explosion while on the premises of the government waiting for work to begin, is injured in the course of employment. Re Pinna Oiovanni, Op. Sol. Dep. C. & L., p. 222. In the last-mentioned case the claimant being warned by the blowing of a whistle that a blast was to go off, got under a car for protection, and was struck on the elbow by a stone hurled by the blast. The claimant was employed as a laborer in the Reclamation Ser- vice, and incidental to his employment there was furnished to him, along with other employes, a bunk house for lodging purposes, which was located at the site of the employment. These bunk houses were occupied by several men, each taking a turn supplying the wash water for all. At about six o'clock in the morning the claimant was in the act of taking his turn at supplying the water and while doing so he slipped on the ice and was injnired. The accident happened during the interval between working hours. It was held that the injury happened while performing an act in connection with and incidental to the employment. Re Gottloh Joos, Op. Sol. Dep. C. & L., p. 238 A laborer employed in road construction, residing in a camp fur- nished and maintained by the employer, was injured while chopping firewood to be used for the purpose of drying his tent and clothes and keeping himself warm during a period of a workday when rain caused a cessation of labor, wages not being paid for such period. It was held that the injury arose out of the employment. Sullivan V. Raisch Improvement Co. (1916), 3 Oal. Ind. Ace, Com. 262. "Where an employe, after the regular time, went around to another portion of the works in accordance with a custom, to ascertain whether or not overtime would ife reciuirea and was li^ured while on his way, 33 514 beadbuey's woekmen's compensation law Workmen injured on employer's premises it was held that the accident arose out of the employment. Seywald V. Ford Motor Co., 1 Cal. Ind. Ace. Com. (Part I), 112; 12 N. C. C. A. 381. An employe is under the protection of the Compensation Act even after his discharge, provided he be injured upon the premises of the employer while remaining there for reasons connected with his former employment. Goering v. The Brooklyn Mining Co., 2 Cal. Ind. Ace. Com. 124; 12 N. C. C. A. 245. A Chinese cook in a construction camp was subject to call at any hour and was permitted to sleep between meals, in a tent provided by the employer. While asleep at 8 p. m. in the sleeping tent the cook was injured by a rock from a blast. It was held that the injury arose out of the employment. Sam v. Robert Sherer & Co., 3 Cal. Ind. Ace. Com. 99. Where a workman arrived early and began work on the premises of his employer a few minutes before the hour of 8 a. m., which was the usual hour for beginning the work, and sustained an accidental injury while so engaged, it was held that the accident arose out of the employment. Findley v. The E. 0. Judah Co., 2 Cal. Ind. Ace. Com. 752 ; 12 N. C. C. A. 657. Where a motorman of a street car company was required to report at the car barn five minutes before taking his car out, and he had to walk several blocks from the car barn to the place where he was to take his car, and was injured by a street accident while walking from the car bam to his car, it was held that the injury occurred in the course of the employment. Ketron v. United Railroads of San Francisco, 1 Cal. Ind. Ace. Com. (Part II), 528; 12 IsT. C. C. A. 668. An employe was discharged and within a few minutes thereafter, while cleaning up his work, in preparing to leave the premises of the employer, he was injured by accident. It was held that such injury arose out of the employment. Booth v, Burnett, 2 Cal. Ind. Ace. Com. 162. The quitting time varied to some extent as the requirements of the work necessitated. An employe was injured a few minutes after the regular hour for quitting work, while on the premises of the employer, ARISING OUT OF AlHJ} IN " THE COUESE OF EMPLOYMENT 515 Workmen injured on employer's premises was held he was entitled to compensation for disability as the result of the injury suffered by him. Gordon v. A. Ehy and W. T. Mvssel- man, 1 Cal. Ind. Ace. Com. (Part II), 16. A girl on arrival at the laundry at which she was employed, prior to commencing her regular duties, was attempting to open a window and was caught in the machinery and injured. It was held that the injury arose out of the employment. Van Wetsel v. The Manhattan Hand Laundry, 3 Cal. Ind. Ace. Com. 100. Where a moving picture actress remained at the studio after hours, to arrange her, wardrobe, and while, calling at the room of another actress for a moment, accidentally fell over the door sill, and suffered an injury to the shoulder, it was held that such injury arose out of the employment. Bolles v. New York Motion Picture Corporation, 2 Cal. Ind. Ace. Com. 477 ; 12 E"/ C. C. A. 665. Where a school teacher, after dismissing school for the day re- mained upon the school premises to finish her work, and going to the telephone for a moment to send a message, upon private business, she was injured by tripping over the telephone cord and falling, it was held that the accident arose out of the employment. Bieff v. City of Sacramento, 2 Cal. Ind. Ace. Com. 251 ; 12 N. C. C. A. 901. Where an engineer employed to install machinery on a dredge was required by his employers, for their benefit, to live on board and while preparing breakfast was injured by the explosion of a gas stove, it was held that the injury arose out of the employment. McLean v. Shields, 2 Cal. Ind. Ace. Com. 971. A mine superintendent entered the mine at 7.30 p. m., work hav- ing ceased for the day, for the purpose of noting the result of blasts set off earlier and to see if the mine was ready for the next day's work and was injured. It was held that the accident arose out of the em- ployment. Angus v. White Gulch Mining Co., 3 Cal. Ind. Ace. Com. 87. The fact that an employe is injured while resting during working hours is not of itself sufiicient to establish the defense of willful mis- conduct. Goering v. The BrooTelyn Mining Co.,'2 Cal. Ind. Ace. Com. 124; 12 K C. C. A. 245. A miner having come to the surface was waiting assignment of other work and was temporarily resting in the shade of an ore bin, when he was killed hjDalgitizeEli&sMixtdtlseMn, and it was held that 516 beadbuey's -woekmen's compensation law Workmen injured on employer's premises the injury arose out of the employment, Broohlyn Mining Co. v. Industrial Accident Commission (1916), Cal. ; 159 Pac. 162. Upon the arrival of a ship in port a seaman, whose maritime con- tract then expired, voluntarily remained on board, until the next voyage should begin. It was the custom for seamen thus to remain on board. Upon the sailing of the ship a new contract would be signed, usually dating back to the time of arrival in port. Until the next voyage began, however, the seaman was unemployed. He was thus on the ship on a holiday when he was accidentally injured. It was held that the injury arose out of the employment. Base v. Great Northern Pacific Steamship Co. (1916), 3 Cal. Ind. Ace. Com. 331. A cook went out on a porch, attached to the cottage, to smoke a pipe. In returning to the kitchen to continue his work he fell down the basement stairs and suffered a fracture of the wrist. It was held that the accident arose out of the employment. Espy v. Mrs. C. Crossman, 2 Cal. Ind. Ace. Com. 326 ; 12 N. C. C. A. 900. An employe being carried on a motor truck to assist in unloading pipe, dismounted and remained on the road, when the motor truck had stopped to get a supply of water for the engine, and upon the order to mount was slow or clumsy in making a quick mount, result- ing in an injury to his foot. It was held that the injury arose out of the employment. Oganesoff v. Southern California Gas Co., 3 Cal. Ind. Ace. Com. 128. The mate of a steamship, who lived on the vessel, was accidentally killed in going to his stateroom for the purpose of retiring, after the performance of his duties. It was held that the accident arose out of the employment. Davis v. Farmers' Transportation Co., 3 Cal. Ind. Ace. Com. 93. A deckhand, on a freight steamer proceeding on its journey, hav- ing just finished his evening meal and not working, or having any duties to perform, accidentally fell overboard, while going forward, and was drowned. It was held that the accident arose out of the employment. Olsen v. Hale, 2 Cal. Ind. Ace. Com. 581 ; 12 N. 0. 0. A. 73. Where an employe kept on his employer's premises his bicycle, which was used in going to and from his place of employment, in going to the room ^SmMm!> IfSclj^f^Sff^^t discovered the presence EMPLOYMENT 517 Workmen injured on employer's premises of ammonia fumes and was injured in poking his head through a window to escape from the fumes, it was held that the injury arose out of the employment. Ouiseppe v. The New Haven Dairy Co., Conn. Comp. Com., Third Dist., June 27, 1916 (unreported). Workmen were accustomed to place their coffee and tea bottles at noon in the mouth of a galvanized pipe discharging heated air in the dry room. The claimant was injured when his hand containing a bottle came in contact with the revolving fan inside the pipe when he attempted to place the bottle therein to heat, not where it was the custom to do so, but through a door in the pipe in an adjoining room. It was held that the injury did not arise out of the employment. Mann v. Glastonbury Knitting Co., 90 Conn. 116 ; 96 Atl. 368. During a short suspension of work an employe stepped from the car on which he was working to the tracks of the railroad company and with other employes sat down near some cars on the track. A switch engine moved the cars and one of the employes was injured. Compensation was awarded under the Illinois Act, it being held that the relation of master and servant was not suspended under the cir- cumstances. Robinson v. Kahl Construction Co., 111. Ind. Bd., April 9, 1914; 12 N". C. C. A. 244' Where an accident occurs while an employe is on his employer's premises just before work begins usually it will be held to have oc- curred in the course of his employment. Casparson v. Munn, 111. Ind. Bd., March 4, 1915; 12 K C. C. A. 654. A workman for a city water works department was directed to bring his rubber boots and assist other employes in repairing a leak. While sitting on a hand car on railroad tracks, taking off his shoes and putting on the rubber boots, the car was hit by a train and he was killed, and it was held that the accident arose out of his employment. Brown v. City of Decatur, 188 111. App. 147 ; , N. E. A fireman on a steam lighter, at night, while seeing a fellow em- ploye off the vessel, stumbled and fell overboard, meeting death by drowning, and it was held that this was an injury arising out of the employment. Booth v. Aetna Life Ins. Co., 1 Mass. Ind. Ace. Bd. 117; 12 K C. C. A. 72. A waitress living in a hotel was in the habit of going to work at seven o'clock. She arose at 4.45 in order to go to church and in ^tempting to get out oWf ^^^d^W^we mi M out of a 518 beadbuey's woekmen's compensation law Workmen injured on employer's premises window near which she was sleeping. It was held that the accident arose out of the employment. Queenan v. Travelers Insurance Co. (1914), 3 Mass. Ind. Ace. Bd. 525; 12 N. 0. 0. A. 250. Where a newspaper company had ceased to enforce rules against compositors leaving the composing room and it was a well-established custom with them to seek air on the roof, it was held where an em- ploye feel from the roof while seeking fresh air on a hot night and was killed that the injury arose out of the employment. In re Von Ette, 223 Mass. 56; 111 IST. E. 696; 12 K 0. C. A. 551. When the whistle blew at noon an employe ran to a time clock to register his time of leaving before going to his dinner and in doing this he collided with another employe and sustained injuries, which resulted in his death, it was held that the accident arose out of the employment. Bayner v. Sligh Furniture Co., 180 Mich. 168 ; 146 ]Sr. W.' 665 ; 4 ]Sr. C. C. A. 851 ; L. R A. (1916) A, 22n. A woman employe employed by the manufacturers of worsted and silk yarns, had charge of two machines 'known as " spindle gill boxes." Just before noon she left her machine's and went to the other side of the, factory to speak to the boss. She was not feeling well and wanted to tell him that she would not return to work in the afternoon. Not finding the boss she went to an alleyway formed by two rows of machines to dress and comb her hair. It appeared that in the manu- facture of yarns, under certain conditions, small pieces of wool were constantly falling into the air and settling on the girls' hair. On the morning in question the petitioner, for the purpose of removing the wool from her hair, went to the place mentioned and removed her combs and hairpins and bending forward, her hair, hanging down over her head, was caught by and became entangled in a revolving wheel eighteen inches above the floor. She was suddenly pulled from the floor and her scalp almost entirely torn from her head. It was held, under the principles established in Bryant v. Fissell, 86 Atl. 458 ; 84 N. J. Law 72 ; 3 N. 0. 0. A. 585 ; and Brice v. Edward Lloyd (1909), 2 K. B. 804; 2 B. W. 0. 0. 26, that the accident arose out of and in the course' of the employment. Terlechi v. Straiiss & Co., 36 ]Sr. J. Law J. 185 ; 85 N. J. Law 454 ; 89 Atl. 1023 ; 4 N. C. 0. A. 584. A watchman on a pier and a ship lying alongside was about to knock off work for W SSf. ^Wnile he was ascending the ladder in ARISING " OUT OF " AND IN " THE COUESE OF " EMPLOYMENT 519 Workmen injured on employer's premises the sliip he fell and received such injuries as to cause his death and compensation was awarded, Bodgers v. Oceanic Steam Navigation Co., Ltd. (1916), 7 K Y. St. Dep. Eep. 393. An employe in a subway had ceased work and had picked up some tools ready to depart, when he was killed by a subway train, in a sub- way which was still partially under construction. It was held that the injury arose out of the employment, the l^ew York Commission laying down the rule that the compensation law should apply to any accident which is the result of subway work from the time the work- man enters the subway until he reaches the street. Di Paolo v. Crim- mins Contracting Co., 5 N. Y. St. Dep. Rep. 428. A night watchman around a stone crushing plant, whose duty it was to clean up and who usually quit work at 4 a. m., was told by the fore- man, at about 12 o'clock, that the work was slack and that he could do as he pleased until almost quitting time, when he should finish what was to be done. The stone crusher was not operated that night up to four o'clock a. m. It was a chilly night and in order to keep warm during the period of waiting the workman climbed into the, drum of the stone crusher. At about 4 o'clock in the morning the crusher was started and the man was crushed to death. Compensa- tion was awarded. De Gazio v. Kerbaugh, 6 N. Y. St. Dep. Kep. 373 ; 12 ]Sr. C. C. A. 245. An employe was assigned to assist other men on a color machine. The machine was stopped temporarily and the chief operator and assistant went to another room to get some material. An employe was left at the machinery with nothing to do until they should return. While waiting for the chief operator to return, the employe went to the elevator shaft, a few feet away from where he was working, and looked down to see if the elevator was coming up. The elevator came down, striking him on the head, fracturing his skull, and he died immediately. Compensation was awarded. IluhinaJe v. Endicott, Johnson & Co. (1916), 8 N. Y. St. Dep. Eep. 507. In consequence of rainy weather concrete workers on a new build- ing had not yet begun work. There was a conflict in the testimony as to whether the men were told that no work would be done or whether they were told that they might begin work at ten o'clock. Some of the men went on the building and one of them fell and received in- juries which caused ^Mm^ ^MFMQ^d that the accident arose 520 beadbuey'b wokkmen's compensation- law Workmen injured on employer's premises out of the employment. Campenella v. Stola Construction and Build- ing Co. (1916), 9 ]Sr. Y. St. Dep. Rep. 385. After work had ceased, an employe was cleaning the mud from his shoes before starting home when he slipped and fell, spraining the ligaments of his knee, and it was held that the injury arose out of the employment. In re Campbell, Ohio Ind. Com., No. 71,569, July 1, 1915;121\r. C. 0. A. 665. Negligence of an employe dtiring a brief interval of rest is not a sufficient reason for denying compensation, or for a finding that be- cause the accident happened while he was resting, he was not, during that interval, still in the employment of his employer. Northwestern Iron Co. V. Industrial Commission, 160 Wis. 633 ; 152 N. W. 416. A miner while waiting for the man who hauled the coal to return, went to some other miners to learn the time and on his way back to his place of work was killed, by the falling of coal. It was held that there was a temporary interruption of the employment and that the accident did not arise out of the employment. Warren, v. Hedley's Colliery Co. (1913), 6 B. W. C. C. 136. A workman entered into an agreement to ocucpy a house attached to the office of his employer's works and to be responsible for certain cleaning operations in the house and other duties, for which he was to have the house rent and rates free, and also have free coal and light. The cleaning duties were performed by his daughters. He was killed by gas escaping from a stove in the office, where it had been lighted by a night watchman. He was compelled to sleep on the premises to see that the duties were performed. It was held that this was merely a tenancy agreement and embodied no contract of service, and that the accident did not arise out of the employment. Wray v. Taylor Brothers and Company (1912), 6 B. W. 0. C. 529 • 4 K 0. 0. A. 935. A workman was employed to attend to spinning-mules in a cotton mill. Before commencing work it was necessary for him, on account of the wet floor, to remove his socks. In doing so he strained the tendon of his middle finger, and became incapacitated thereby. It was held that the accident did not arise out of the employment. Peel V. Lawrence & Sons (1912), 5 B. W. 0. C. 274. A collier, after he was suspended from work, remained in a por- tion of the mines, w}QmfE§(iM l\§[KOS0% be, and there met with AEISING " OUT OF " AND JN " THE COURSE OF " EMl'LOYMENT 521 Workmen injured on employer's premises an accident about two hours after Ms suspension. It was held that the accident did not arise out of the employment. Smith v. South Normanton Colliery Co. (1902), 88 L. T. 5; 5 W. C. C. 14. Decedent was. assigned to the night shift which commenced work at about 4 p. M. At the time of his death he was not on duty. He went to the works to talk with another employe about going home on the • following Sunday. As he was in the act of leaving the works a box of gravel was raised for the purpose of being emptied by the man to whom decedent had been talking. Instead of passing on and allow- ing the man on duty to empty the box, claimant took hold of it for that purpose, and in doing so fell overboard and was drowned. It was held that the death of the decedent did not occur in the Course of his employment. Re H. G. Simpson, Op. Sol. Dep. C. & L., p. 251. The claim in the above-entitled matter was refused by the Attorney General who affirmed the decision reached by the Solicitor of the De- partment of Commerce and Labor. Be H. G. Simpson, Op. Sol. Dep. 0. & L., p. 253. An oil well pumper while proceeding to his work from his dwelling, which was provided by the employer upon the employer's premises, was injured before time to begin work, by falling over a cable on the employer's premises. It appeared that the employe knew that the cable was there but did not use ordinary care in avoiding it and it was held that the injury did not occur in the course of the employment. BennettY. Western Union Oil Co. (1916), 3 Cal. Ind. Ace. Com. 279. A painter was permitted to sleep on the employer's premises as an accommodation to the painter. The premises caught fire and the painter was burned to death. It was held that the injury did not arise out of the employment. Webster v. Steddom (1916), 3 Cal. Ind. Ace. Com. 265. A ranch cook, who accompanied a harvesting outfit as it moved from ranch to ranch, was injured after the termination of her em- ployment and while harnessing a horse preparatory to moving her personal effects to her home. It was held that the accident did not arise out of the employment. Betty v. Allen mid Nelson (1916), 3 Cal. Ind. Ace. Com. 279. Where a night watchman left his employer's premises for reasons which were not explained and in returning thereto was accidentally killed before he had re-entered upon bis duties, it was held that the Digitized by Microsoft® 522 beadbuey's workmen's compensation law Workmen injured on employer's premises accident did not arise out of the employment. Connolly v. Southern Pacific Co., 2 Cal. Ind. Ace. Com. 930; 12 K 0. C. A. 393. Where board and a place to sleep were furnished by an employer upon his own premises and an employe was injured outside of work- ing hours in going from the cook house to the bunk house after supper, it was held that such injury did not arise out of the employment. Mahoney v. Sterling Borax Co., 2 Cal. Ind. Ace. Com. TOO ; 12 IT. C. C. A. 668. An employe, who had been boarding at a shanty on the premises of the employer, had ceased work for several days, but was still liv- ing at the shanty. While splitting wood for the cook, who was sick at the time, he was injured. It was held that the injury did not arise out of the employment. Varine v. Sargeant, 1 Conn. Oomp. Dec. 194. Where a petition was being circulated in a factory against a pro- posed change in hours of work and one employe in taking the petition to another slipped, her hand caught in the belt and she was injured, it was held that the injury did not arise out of the employment. Stevenson v. Union Metallic Cartridge Co., Id. 621. A newsboy on a railroad having missed his regular train was waiting at the railroad station for another train. While so doing he attempted to get on a freight elevator in the station, where he had no business to be, and was fatally injured. It was held that the accident did not arise out of the employment. Cohen v. Union News Co., Id. 62. An employe left his place of work and went to a saloon to get a drink and was injured before he returned, and it was held that the injury did not arise out of the employment. McDonald v. Travelers Ins. Co. (1914), 3 Mass. Ind. Ace. Bd. 361; 12 N. C, C. A. 554. A dishwasher in a hotel whose working hours were from 7 a. m. to 5 p. M. also received room and board from her employer. After finishing work she went out for her own purposes and upon returning to the hotel and while on the way to her room, she fell and broke her arm. It was held that the injury did not arise out of the employment. Doherty v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 450; 12]Sr. C. 0. A. 312. A railroad track constructi,on employe, after the day's work, was walking on the t^acks^e^J^^^a^^^^^j^ured by a train. It was held that the injury djuTnot arise out of the employment. Ouastelo Injuries at mealtime V. Michigan Central E. ii. Co. (1916), Mick ; 160 K W. 484. Where a non-resident employe was sent to a boarding house con- ducted by the employer and he was injured by falling downstairs in the boarding house, before he actually began work, it was held that the injury did not arise in the course of the employment. In re Tucker, 1 Bull. Ohio Ind. Com. 86. A section foreman on a railroad whose duties ended at 5 o'clock on Saturday evening and who was not required to be on duty again until the following Monday at 6 a. m., was walking across the trestle on the employer's premises on Sunday, at 11 :30 A. M., and fell and was fatally injured. The regular duties of the foreman related to track work only and not to bridges or tres- tles. It did not appear that he was doing anything which he was required to do when the injury occurred. It was held that the injury did not arise in the course of the employment. In re WathinSj Id. 135. An employe after quitting his day's work, instead of leaving 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 purpose of seeing an employe of another department, on some personal matter, and while so doing was injured. It was held that the accident did not occur in the course of the em- ployment. In re Mitchell, Id. 56. An employe, after suspending work for the dayj and while preparing to leave his employer's premises, negligently walked over a pile of spindles, to a place where his coat and hat were hanging, for the purpose of obtaining those articles of wearing apparel and was injured by the spindles turning, spraining his ankle. It was held that he was injured in the course of the employment. In re Shroeb, Id. 132. An employe was engaged to load trucks. "While waiting for another truck to arrive he got on a truck which was loaded and rode a mile to meet the returning truck. In endeavoring to jump from the truck on wihch he was riding to the returning truck he fell and was injured. It was held that the injury did not arise out of the employment. In re Studer, Ohio Ind. Com., No. 109,262, Nov. 16, 1915; 12 N. C. C. A. 906. 3. Injuries at mealtime.^ Injuries at mealtime.^. ... , . ... „_^ Where an employer pFovi^es ^ place^forTiis employes to eat, or 524 beadbuky's wokkmew's compensation law Injuries at mealtime directs or permits them to go to a place for that purpose, 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. Cobhs, 96 111. App. 315; aff'd 62 K E. 853; 195 111. 172; (E. L.) Carnegie Steel Co. V. Rowan, 39 Ohio Oir. Ct. 202. The relation of master and servant, in so far as it involves 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 By. Co., 122 N. W. 456; 108 Minn. 485; 23 L. K. A. (K S.) 954; (E. L.) Riley v. Cudahy Packing Co., 117 IST. W. 765 ; 82 Neb. 319 ; (E. L.) Heldmaier v. Cobhs, 96 111. App. 315 ; aff'd 62 ]Sr. E. 853; 195 111. 172; (E. L.) Evansville R. R. Co. v. Maddux, 134 Ind. 571; 33 JST. E. 345; (E. L.) Adams v. Southern By. Co., 51 So. 987; Ala. ; (E. L.) Boyle v. Columbian Fire Proofing Co., 182 Mass. 93 ; 64 K E. 726 ; (E. L.) Murphy v. Colum- bian Fire Proofim,g Co., Id.; (E. L.) Duncan v. Columbian Fire Proofing Co., Id. An employe in charge of a printing machine put a can of con- densed milk on a ledge on the under part of the machine, which milk was to be used by him for his tea. The can was so placed as to pre- vent pilfering by other employes. In placing the can on the ledge his hand was cut on the machine and injured so badly that he lost three fingers. It was held that the accident did not arise out of the employ- ment. Keen v. St. Clement's Press (1914), 7 B. W. 0. 0. 542. 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 em- ployers provided a dining room for their workmen, but they were not boimd to take their meals there. In getting off the tank the work- man 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 tak, but the evidence was that, he had no right to be there, and if found there he would have been dismissed. It was held that the accident did not arise out of the employment. Brice v. Ed- ward Lloyd (1909), 2 K. B. 804 ; 2 B. W. C. C. 26. The court dis- 1 The cases marked (E, LJ are emcloyers' liability cases and did not arise under compensation acS'S'^'zecfibyW/cfoso/f® Injuries at mealtime tinguislied the case of Blovelt v. Sawyer (1904), 1 K. B. 2Y1; 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 ahsolute rule as to the workmen going, or staying in the building, dur- ing 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 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 having 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 the employment. Earnshaw "v. Lan- cashire & Yorkshire By. 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 injuerd by the falling of the shanty, was held to have been injured by accident arising out of his employment. Morris v. Lambeth Borough Council (1905), 8 W. C. C. 1. A law writer was injured in the street during the luncheon hour. It was held that the luncheon hour was not part of the period of his employment and compensation was refused. McKrill v. Howard & Jowe/(1909), 2 B. W. ,C. C. 460. An employe who was running, with others, to ring the time clock at the noon hour, after having been engaged in playing ball, was in- jured, and it was held that the injury did not arise in the course of the employment. Re David Kramer, Op. Sol. Dep. L., p. 322. An employe on the premises during the noon hour stopped to pick up a baseball from the street, to return it to players in the field, when he was struck by an automoible. It was held that the injury did not occur in the course of the employment. Be John J. Schlechter, Op. Sol. Dep. L., p. 331. The claimant was in the flag loft of the Mare Island ISTavy Yard during the noon hour. She was looking out of the window and then Digitized by Microsoft® 526 beadbuey's workmen's compensation law Injuries at mealtime 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. In re Mrs, B. Hawes, Op. Sol. Dep. C. & L., p. 220. The claimant was walking hurriedly down a railroad track to din- ner when he stumbled and fell on a cross tie. The accident occurred on the premises under the control of the Isthmian Canal Commis- sion, and under the peculiar circumstances of the case and under the rule established in the case of Joseph Chambers, it was held that com- pensation should be awarded. Be John Joseph, Op. Sol. Dep. C. & L., p. 229. A laborer employed on a river barge on which he and other mem- bers of the crew ate and slept, was, after close of the day's work, pro- ceeding from the shore to the boat, to secure his evening meal, and fell off the boat and was drowned. It was held that the accident oc- curred in the course of the employment. Valente v. Captain N. Fay, 2 Cal. Ind. Ace. Com. 502 ; 12 K C. C. A. 73. An employe was permitted to collect refuse kimber on the em- ployer's premises during the noon hour, when he had no duties to perform, and in so doing was drowned. It was held that the accident did not arise out of the employment. Florence v. Hunt, Hatch & Co., 3 Cal. Ind. Ace. Com. 80. An injury occurring during the noon hour while the employe was not doing any work in connection with his employment, was held not to arise out of the employment. Cavagnero v. American Mills Co., 1 Conn. Comp. Dec. 163. Where an injury occurred at the noon hour while the employes were at play, it was held that it did not arise out of the employment. Socquet v. Connecticut Mills Co., 1 Conn. Comp. Dec. 653. An employe whose usual occupation was that of turning down laces in boxes, received an injury while operating a box-lacing machine for purposes of her own, during the noon hour, and it was held that the accident did not arise out of the employment. St. John v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 377; 12 N". C. C. A. 904. A piece worker ate his luncheon at any time most convenient and while getting down from a high stool, after eating his luncheon, he slipped and fell. ItRim'^wr^Mihe iniiny arose out of the employ- ARISING " OUT OP " AND IN " THE COURSE OF " EMPLOYMENT 621' Injuries at mealtime ment. Grouch v. Massachusetts Employes Ins. Ass'n, 1 Mass. Ind. Ace. Bd, 401 ; 12 K C. C. A. 559. 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 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 deceased told the man in charge of the street sweepers that he would take one horse and cart and go to dinne;r and on the way to dinner he would water the horses. The decedent's home was in the direction of the nearest watering through, 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 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 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 horses. Pigeon v. Employers' Liability Assurance Cor- poration, 216 Mass. 51 ; 102 K E. 932 ; 4 K 0. C. A. 516. An employe received her meals as part of her remuneration and such meals were furnished on the premises of the employer. She was injured while going up a flight of steps, on the employer's premises, on her way to the dining room to eat her morning meal, before the time set before beginning actual work. It was held that the injury arose out of the employment, Driscoll v. London Guarantee and Ac- cident Go., 2 Mass. Ind. Ace. Bd. 570 ; 12 IST. 0. C. A. 667. A member of a section crew on a railroad started for his home for his midday meal, walking upon the track, and while on his way he Digitized by Microsoft® S28 beadbttey's workmen's compensation law Going to portion of premises other than those necessarily used walked too closely to a passing train and was struck and thrown against a switch standard, receiving injuries from which he died. It was held that the injury did not arise out of the employment. Hills V. Blair, 182 Mich. 20 ; 148 ]Sr. W. 243 ; 7 K C. C. A. 409. Where several employes were shooting sparrows during the noon hour and one of the workmen was accidentally shot, it was held that the accident did not arise out of the employment. Bulletin No. 11, Minnesota Dep. Labor & Ind. 51. A workman employed on a steamship knocked off at 12 o'clock to return to work at 1 o'clock. Frequently only those first to arrive were employed. While the men were in line waiting to have their tickets punched, to return to work, some scuffling occurred among the men and one of them was injured. It was held that the injury did not arise out of the employment. Sokol v. Clyde Steamship Co., 6 N. Y. St. Dep. Rep. 339. An injury arising to an employe while returning from lunch does not arise out of the employment. In re Ellison, Ohio Ind. Com., No. 119,734, Dec. 13, 1915 ; 12 K C. C. A. 391. A janitor upon being told to hurry back to the City Hall, after lunch, entered a street car in returning to the place of work and was injured. It was held that the accident did not arise out of the em- ployment. In re Frisch, Ohio Ind. Ace. Com., No. 1,138, Aug. 16, 1915; 12 N. C. C. A. 389. A miner was injured by the falling of a piece of slate while eating his luncheon at the regular luncheon hour and it was held that the injury arose out of the employment. In re Frame,' Ohio Ind. Com., No. 79,673, June 11, 1915; 12 N. C. C, A. 561. 4. Going to portions of employer's premises other than those neces- sarily used by the workman, for his own convenience or pleasure. A master's duty to furnish his servant a safe place for work ex- tends 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 ough 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. New York Central (&'^'/W.^/(fo:, 144 App. Div. 664; 129 Supp. Going to portion of premises other than those necessarily used 666 ; (E. L.) Pioneer Mining & Mfg. Co. v. Talley, 43 So. 800 ; 152 Ala. 162; (E. L.) Button v. Wabash B. Co., 152 111, App. 138; (E. L.) Lynch v. Texas & P. By. Co., 133 S. W. 522 ; Tex. Civ. App. ; (E. L.) O'Brien v. Western Steel Co., 13 S. W. 402 ; 100 Mo. 182; (E. L.) Mitchell-Tranter Co. v. Ehmett, 65 S. W. 805; 23 Kj. Law Kep. 1788 ; 55 L. E. A. 710 ; (E. L.) Kennedy v. Chase, 52 Pac. 33; 119 Cal. 637; (E. L.) Brown v. Shirley Hill Coal Co., 94 N. E. 574; 47 Ind, App. 354; (E. L.) Ellsworth v. Metheny, 104 Eed. 119; 51 L. E. A. 389; (E. L.) Southern Bailway Co. v. Bentley, 56 So. 249 ; 1 Ala. App. 359 ; (E. L.) Bussell v. Oregon Short Line B. Co., 155 Fed. 22; (E. L.) Pittsburg Vitrified Pav. & Build. BricTc Co. v. Fisher, 100 Pac. 507; 79 Kans. 576; (E. L.) , Northern Coal & Cohe Co. v. Altera, 104 Pac. 197; 46 Colo. 224; (E. L.) Oooch V. Citizens Electric St. By. Co., 88 K E. 591 ; 202 Mass. 254; 23 L. E. A. (N. S.) 960ii.; (E. L.) Ellsworth v. Metheney, 104 Eed. 119 ; 51 L. E. A. 389. A peach cutter in. a canaing factory moved a few feet toward another employe to hear what the other employe was attempting to say to her and her clothing was accidentlly caught in the machinery and she was injured. It was held that the accident arose out of the employment. London and Lancashire Guarantee and Accident Co. V. Bomierger, 2 Cal. Ind. Ace. Com. 48; 12 N. C. C. A. 896. Where an employe was using a jointer not for preparing lumber for his employer, but was shaping boards to make himself a guitar, which was entirely outside of his duty, it was held that the injuries did not arise out of the employment. Cavero v. Hipolito Screen Co., 1 Cal. Ind. Ace. Com. (Part II), 193. An assistant in a blacksmith's shop was learning the trade of black- smithing. He was grinding his own axe on the employer's emery wheel for his own purposes. He was permitted to do this by the employer. ' It was held that the injury arose out of the employment. Howe V. Bennett, Indiana Ind. Bd., l^o. 92, Feb. 16, 1916 ; 12 N. C. C. A. 904. Where an employe was injured while visiting the employer's prem- ises for piirposes of his own, but for no purpose in connection with his employer's business, it was held that the injury did not arise out of the eniployment. Lynn v. Employer's Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 50^'9itized by Microsoft® 34 530 beadbuet's workmen's compensation law Going to portion of premises other tlian those necessarily used. An employe working on a sewing machine went to another part of the room in which her sewing machine was situated to speak to an- other girl employe. In passing an unguarded revolving pulley her skirt was caught and she was seriously injured. She contended that she went to the other girl, who was an older employe, to get some information about the work which she was doing, and the employer contended that persons were employed especially for the purpose of instruction and it was the duty of the plaintiff to make inquiries of such instructor. The court, however, found that it had been the custom of employes to inquire from each other about the manner of doing the work and held that under such circumstances the accident arose out of and in the course of the employment, saying that if the girl had left the machine and had gone to another part of the room on her own business, or for her own pleasure, apart from the work upon which she was engaged for her employers, she could not have recovered. Vreeland v. Cogswell & Boulter Go. (Essex Common Pleas, 1913), 37 N. J. Law J. 57. A driver, after completing work for the day, borrowed his em- ployer's horse to draw a load of wood for his, the employe's, own use, and while going in the direction of his home the horse ran away and the employe was injured. It was held that the injury did not arise out of the employment. Totten v. Irish (1916), 9 IsT. Y. St. Dep. Kep. 333. An employe left the employer's premises for the purpose of posting a letter for a fellow employe and while crossing a railroad was injured. It was held that the injury did not occur in the cour.se of the employment. In re Deavers, 1 Bull. Ohio Ind. Com. 62. An employe left his place of employment to watch a fire on adjoin- ing premises and in trying to climb to the roof of a shed to get a better view of the fire he fell and received injuries from which he died. It was held that the injury did not arise out of the employment. In re Evanof, Ohio Ind. Com., No. 48,359, Sept. 10; 1915; 12 K 0. C. A.,895. An employe, who was not permitted to smoke in the portion of the premises where he worked, went to an elevator to smoke a cigarette and while there received injuries causing his death. It was held that the injury did not arise out of the employment. In re Waldech, Ohio Ind. Com., T^oPi^ii?m6pi()Mi(2Q^m& ; 12 IST. C. 0. A. 899.' AEISING " OUT OP " ANb IN " THE COUESE OF " EMPLOYMENT 53l Definition of generally ARTICLE D— SERIOUS AND WILLFUL MISCONDUCT 1. Origin and general application of the term. All of the compensation acts have provisions by the terms of which compensation is denied when injuries are due to misconduct of a more or less serious nature. Such provisions are somewhat akin to the old doctrine of contributory negligence, with this important difference, that contributory negligence might be designated as nega- tive misconduct, while the new doctrine relates to positive miscon- duct. That is there must be an element of willfulness about it. Mere carelessness or negligence is not enough. The doctrine came from the British Act. In that statute compensation is denied if the injury is caused by serious and willful misconduct, unless it results in serious and permanent disablement or death. JSTone of the Ameri- can acts has the saving, clause expressed in the words in italics. Only a few of them contain the same language that is found in the British Act, But practically all of them contain a saving clause under which compensation is denied where the injury is intentional, or is caused by such a reckless disregard of life as to amount to willfulness as dis- tinguished from mere carelessness. 2. Definition of generally. No general rule of law can be established defining acurately what constitutes willful misconduct. The question is one of fact and must be determined by the facts presented in each particular case. The conduct must be willful, which means that it must be intentional, that is, deliberate, with an exercise of the will as opposed to accident, negligence, inadvertence, and thoughtless acts on the spur of the_ moment or an error of judgment. Belknap v. Mervy-Elwell Co., 1 Cal, Ind. Ace. Com. (Part I), 82. " It is perhaps impossible so to define ' willful misconduct ' as to make such definition applicable to all cases, but it may be stated in a general way to consist in the ' willful violation of a rule or order made for the employe's own safety, or the safety of others, such rule being prescribed by a power having authority to make such rules, and en- forced with diligence." Lutz v. Gladding, McBean & Co., 1 Cal. Ind. Ace. Com. (Part II), 8. In the last-mentioned case it was further held that a T\iWf^^B>isi^$Mrmdfl^& no chances " did not 532 BEADBUEY*S WOEKMEw's COMPENSATlOlsr LAW Definition of generally arise to the dignity of being a rule, order or command, the violation of which would constitute willful misconduct, especially where it appeared that whatever this warning might be it was not enforced as a rule. " It is a wdll-settled principle that an employe is not, like a part of the machine he operates, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function. He is a sentient being, and may do all the things that a human being may reasonably do while in the performance of his duty, without such acts taking him outside of the course of his employment. To step to one side to spit is undoubtedly such an act." Bode v. Shreve & Co., 1 Cal. Ind. Ace. Com. (Part II), 6. In the last-mentioned case the employe was a minor and he placed his hand on an uncovered gear and was severely injured. The Commission adds : " Even though the lad had not looked where he put his hand, it could be considered only as an act of negligence, not one of misconduct. Compensation is payable without regard to negligence." Willful misconduct consists of the deliberate, willful, premeditated violation of a rule made for the protection of the employe himself against the consequences of an accident. Smith v. Munger Laundry Co., 1 Cal. Ind. Ace. Com. (Part I), 168. Inexcusable carelessness, which ordinarily would be termed negligence, does not necessarily amount to willful misconduct. Rainey v. W. McClain, 1 Cal. Ind. Ace. Com. (Part II), 5Y; Rees v. Powell-Duffryn Steam Coal Co. (1900), 4 W. C. C. 17; McAndrew v. Aetna Life Ins. Co., 1 Mass. Ind. Ace. Bd. 322. Not even negligence of a gross character. Dal- ton V. Connecticut Co., 1 Conn. Comp. Dec. 142 ; Sirici v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 171 ; In re Nicherson, 218 Mass. 158; 105 ]Sr. E. 604; 5 N. C. C. A. 645. Error of judgment does not amount to willful misconduct. Pon- der V. Adams & McBratney, 1 Cal. Ind. Ace. Com. (Part II), 207. It connotes deliberation and intention as applied to some wrongful set. It carries the notion of reflection and forethought, something closely akin, indeed, to stubbornness. Mere carelessness or negli- gence, committed on the spur of the moment or from lapse of memory, is not sufficient, however serious the results of the fault to the doer or others. Sanford v. The Connecticut Co., 1 Conn. Comp. Dec. 485. Willfulness is the DSfepto^bjelbJfeBiifeo^ich must be established. ARISING OUT OF " AND IH " THE COUESE OF " EMPLOYMENT 533 Definition of generally Eraljlvich v. Yellow Aster Mining and Milling Co., 1 Cal. Ind. Ace. Com. (Part II), 554. To prove willful misconduct the evidence must show either such wanton and reckless disregard of possible danger as to amount to foolhardiness, or a perverse and obstinate breach of safety rules made by the employer, for the safety of the employes, and enforced by the employer with reasonable diligence. Haffemayer v. United Keanograph Film Mfg. Co., 1 Cal. Ind. Ace. Com. (Part II), 620. 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. E. 565. Misconduct is not serious merely because the actual consequences in the particular case are serious ; the misconduct must be serious in itself. Any neglect is serious which, in the view of reasonable persons in a position to judge, expose anybody, includ- ing 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 Consolidated Mines (1906), 12 B. C. 118 ; 1 B. W. C. C. 436. The word ." willful " 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. A boy working at a machine used for cutting screws leaned over a circular 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 negligence, but not of serious or willful misconduct. Reehs v. Kynoch (1901), 4 W. 0. C. 14. Whether an employer would be justified in dismissing a workman without notice is a test of whether or not misconduct is serious and willful. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828; 8 W. C. 0. 10. It is not every breach of a rule that will constitute serious and willful misconduct. The question is one purely of fact to be deter- mined by the arbitrator in each case. (House of Lords) Oeorge v. Glasgow Coal Co. (1908), 99 L. T. Y82 ; 2 B. W. C. C. 125. A bare breach of regulation from which no injury could reasonably be antici- pated is not serious misconduct,^ Johnson v. Marshall, Sons, & Co. ■(1906), 94 L. T. 828 ; W^^&f & Wr^'''"^ Microsoft® 534 bbadbuey's woekmeist's compensation law Definition of generally If a workman unnecessarily breaks an express and emphasized order made solely for his own protection, and which he fully under- stands and appreciates, he is guilty of serious and willful misconduct. Jones V. London & South Western By. Co. (1901), 3 W. C. C. 46. 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. BrooTcer v. Warren (1907), 23 T. L. E. 201; 9 W. C. C. 26. In the last-mentioned case a fatal accident was caused by the act of the deceased in removing a guard from a circular saw. Compensa- tion was refused. A flagman at a street crossing signaled a train to proceed but did not attempt to get out of the way until the train was so close that he was struck and killed. It was held that while he had been guilty of negligence he had not been guilty of willful misconduct. Smith v. Southern Pacific Co., 3 Cal. Ind. Ace. Com. 76; Bolfe v. Southern Pacific Co., Id. 78. Mere negligence on the part of a driver of an automobile in approaching a railroad crossing by reason of which he is struck by a car and killed does not amount to willful misconduct. Clark v. Los Angeles County, 1 Cal. Ind. Ace. Com. (Part II), 623; 12 N. C. C. A. 177. A deckhand on a barge was last seen leaning against a post near the barge's edge, apparently asleep, and shortly thereafter he fell off the barge and was drowned. It was held that the man was not guilty of willful misconduct. Bideout Co. v. Pillshury (1916), Cal. ; 159 Pac. 435 ; 12 K C. C. A. 1032 ; aff'g sub-nom. Coelho v. Bideout Co., 2 Cal. Ind. Ace. Com. 771. The Commission remarked that the man was undoubtedly guilty of negligence, but as he had not violated any safety rule he was not guilty of willful misconduct. An employe, whose duty it was to check up automobiles as. they were loaded on a car, climbed over some cars on a side track running along the side of the employer's premises without waiting to ascer- tain whether or not the train was about to be moved and the train being moved suddenly, his foot was caught and crushed on a coupling. It was held that he was not guilty of such intentional and willful mis- conduct as would defeat a claim for compensation. Gignac v. Stude- haher Corporation, 186 Mich. 574; 152 N. W. 1037. Where a carpenter on a building nineteen or twenty feet high was instructed to comeTlSwS ro^'li^cii, and Instead of descending by a AEISING " OUT OF " AND IK " THE COUESE OF " EMPLOYMENT 535 Burden of proof ledder attached to the side of the building he came down by a rope and in doing so fell and was fataly injured, it was held that this was an injury arising out of and in the course of the employment and that the workman was not guilty of intentional and willful miscon- duct. Clem V. Chalmers Motor Co., 178 Mich. 340 ; 144 IST. W. 848 ; 4 K 0. C. A. 8Y6 ; L. E. A. (1916) A, 352n. Where by an understanding, according to the custom, two motor- men on different cars agreed to meet and pass at a certain place and one motorman ran past the meeting place, causing a collision, biit there was no rule of the company regarding the practice, it was held that while this was negligence it was not willful and serious miscon- duct. Dalton V. The Connecticut Co., 1 Conn. Comp. Dec. 142. Where a workman employed to do cleaning, painting and white- washing near machinery, was told to do the work at the noon hour when the machinery was stopped, but he began the work a short time before the machinery was stopped and received injuries from which he died, it was held that this was not serious and willful misconduct, within the meaning of the statute, and his dependents were entitled to compensation. In re Nickerson, 105 N. E. 604; 218 Mass. 158; 5 IST. C. C. A. 645. In discussing the case the court said that serious and willful misconduct was " a very different thing from negligence, or even from gross negligence. It resembles closely the wanton or reckles misconduct which will render one liable to a trespasser or a bare licensee." It is " a deliberate, not merely a thoughtless act on the spur of the moment." t 3. Burden of proof. In establishing serious and willful misconduct the burden of prooi rests upon the employer and in the case of an injury resulting in the death of the employe this proof should be more conclusive than in the case of a living claimant. Sanford v. The Connecticut Co., 1 Conn. ^ Comp. Dec. 485 ; Zanotti v. Aquilino & Lagomarsino Co., 3 Cal. Ind. Ace. Com. 53 ; Maffia v. Aquilino, 3 Cal. Ind. Ace. Com. 15 ; Hedges V. City of Los Angeles, 1 Cal. Ind. Ace. Com. (Part II), 394; RuprecM v. Bed Biver Lumber Co., 2 Cal. Ind. Aco. Com. 860 ; 12 K C. C. A. 79 ; Jansen v. Balboa Amusement Producing Co., 1 Cal. Ind, Ace, Com. {'P^^SBti^&^^SPMn4^*'^ ^f^ ^'^^' ^°' '^'^ 536 bbadbuey's woekmen's compejn'sation law Appeal Lindgren Co., 1 Cal. Ind. Ace. Com. (Part I), 204; 12 K C. C. A. 660. It is presumed that the death of an employe did not occur from willful intention or from intoxication and evidence must be adduced to sustain such a contention on the part of the employer. American Ice Co. Y. Fitzhucfh (1916), 128 Md. 382; 97 Atl. 999. In a death case the evidence must be clear, unequivocal and of the highest character; in fact such evidence must approach the point of proof beyond reasonable doubt, for the reason that the workman's lips are closed by death and he cannot be heard in his own defense. Freid v. 0. A. Smith Lumber Co., 2 Cal. Ind. Ace. Com. 143. 4: Accidental shooting in being mistaken for robber. Where a night watchman of a construction company knew that escaping robbers were near the plant and together with another fired upon two deputy sheriffs, under the mistaken belief that they were the robbers, and after the deputies, through a similar error, had ordered the employe and his companion to throw up their hands and had shot them, thus causing the employe's death, it was held that the condvict of the employe was not serious and willful. In re Harbroe, 223 Mass. 139; 111 N. E. 709. But compensation was refused be- cause it did not arise out of the employment. 5. Actress riding spirited horse. The fact that a moving picture actress rides a horse which she is unable to control in going from the scene where a picture had been produced to the studio is not slifficient to charge her with willful mis- conduct, especially' where there is some co^fusion about the directions which has been given about riding the horse. Jansen v. Balboa Amusement Producing Co., 1 Cal. Ind.' Ace. Com. (Part II), 477. 6. Appeal. The question whether or not an employe has been guilty of willful misconduct is a jurisdictional question and subject to review by the Supreme Court under the California Act. Fidelity & Deposit Co. V. Industrial Ace. Com., 171 Cal. 728; 154 Pac. 834; 12 K C. C. A. 495. But if a finding by the Commission in relation to the willful misconduct of the ei^^^lgjj ^W&'^M) evidence, the finding is AEISING " OUT OF " AND IN " THE COUBSE OF " EMPLOYMENT 537 Boy on bicycle catching on motor car not reviewable by the Supreme Court on certiorari. Great Western Power Co. v. Pillsbury, 170 Cal, 180; 149 Pac. 35; 9 N. C. C. A, 466. A finding of serious and willful misconduct is a finding of fact not of law. Donnachie v. United Collieries (1910), 47 Scotch L. R. 412. The finding of the Industrial Commission under the Wisconsin Workmen's Compensation Act that the death of an employe was not caused by his willful misconduct is conclusive where, under the evi- dence, it might have found that he did not intentionally become dan- gerously or helplessly intoxicated. Nehoosa-Edwards Paper Co. v. Industrial Commission, 154 Wis. 105 ; 141 N. W. 1013. 7. Assault on foreman.^ A foreman of a railroad section gang discharged a laborer because of inefficient work and in discharging him attempted to take his tools away and a fight ensued and the foreman was hurt. It was held that even though the foreman acted in excess of zeal or want of tact and was technically guilty of assault and battery, nevertheless he was not guilty of misconduct. Rudder v. Ocean Shore Railroad Co. and Western Indemnity Co., 1 Cal. Ind. Ace Com. (Part 11), 209. 8. Aviator exploding bomb. Where an aviator operating an airplane in making films for a moving picture production was thrown to the earth with his machine, by reason of a vacuum created in the air by the explosion of a bomb below his machine, and received injuries from which he died, it was held that he was not guilty of such foolhardiness or daredeviltry as would constitute willful misqonduct. Stites v. Universal Film Mfg. Co., 2 Cal, Ind. Ace. Com. 653 ; 12 N. C. C. A. 1033. 9. Boy on bicycle catching on motor car. A delivery boy riding a bicycle caught on the rear end of a motor truck going in his direction and was struck by another motor truck and injured and it was held that he was not guilty of intentional and willful misconduct. Beaudry v. Wathins (1916), Mich. ; 158 K W. 16. 1 See title Assmlts in'^Sfe^iMl/iaiSraSQff^is chapter. 538 beabbuet's woekmen's compensation law Deviating from route 10. Cleaning machinery in motion. A workman attempted to pick a piece of cotton from a carding machine while it was in motion and received injuries from which he died. There were signs posted on the machines " Hands Off " and also signs posted in the room reading " Cleaning Machinery While in Motion is Positively Forbidden." It appeared, however, that the signs " Hands Off " were posted because any interference with the machine would interfere with its operation and not because of the danger involved. It also appeared that the picking of the cotton from the machine did not come under the head of " cleaning," but was one of the things which the employes were compelled to do. It was held, therefore, that under the circumstances there had been no disobedience of orders and that the accident arose out of the employ- ment. Bedfield v. Michigan WorJcmens Compensation Mut, Ins. Co., 183 Mich. 633 ; 150 K W. 362 ; 8 JST. C. C. A. 889. Where an employe impulsively and without reflection attempted to clear sand off from a moving belt without first stopping the motor, it was held that such conduct was not such a violation of general rules of safety as to constitute willful misconduct. Swank v. Chanslor- Canfield Midway Oil Co., 2 Oal. Ind. Ace. Com. 318. 11. Deviating from route. . A driver of an auto truck was given instructions to go straight to a particular place and hurry back, but instead of doing so he deviated from his course and was killed at a railroad crossing. It did not appear that the violation of the instructions was the proximate cause, of death and it was held that the employe had not been guilty of willful misconduct. Vollmar v. E. C. Rockwell and-Sackett (1916), 3 Cal. Ind. Ace. Com. 195. A driver of a pony advertising wagon of a moving picture show was directed to take a pony to a livery stable each noon to be fed, but instead of doing this the driver went to the livery stable and secured the feed and took the pony to her own home where it was fed. No order had been issued not to take the pony to her home. Upon starting from home and when leaving the driver's premises the cart was overturned and the driver was killed. It was held that the accident arose out of the employment and that the driver had not been guilty of willful misconduct. Mrs. Theo. Wilson v. Parra, 3 Oal. IniDMi^^^ m?rosoft® Disobedience of general rules and specific orders 12. Disobedience of general rules and specific orders. Thus where a workman knowingly breaks a rule made by the em- ployer 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 willful misconduct. Bist v. London S South Western By. Co. (1907), 96 L. T. 150; 9 W. C. C. 19. The last-mentioned case was decided by the House of Lords. The accident occurred on March 4, 1905, prior to the enactment of the present 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 \ip. The company had issued a rule forbidding the driver or fireman to leave the run- ning board while the engine was in motion. The court held that the violation of this rule was such serious and willful misconduct as pre- cluded the- dependents of the driver from recovering compensation. The section of the British Compensation Act under which this de- cision was made was amended in the revision of 1906, § 1 (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 attributable to the serious and willful 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 for- bidden 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. Compensation was awarded because the accident resulted in death. Mawdsley v. West Leigh Colliery Co. (1911), 5 B. W. 0. C. 80. Where an employer has published a great number of safety rules of a general character and no one of which has been brought to the special attention of an employe with reference to his specific duty, the refusal to obey such rules must be premeditated, deliberate and designed in order to constitute willful misconduct. Swanh v. Chanslor-Canfield Midway Oil Co., 2 Cal. Ind. Ace. Com. 318. Mere disobedience of an order does not necessarily constitute willful misconduct. There must be evidence that W^mlMM^'W^^mvl and premeditated 540 BKADBUEY^S WOEKMEn's COMPENSATION LAW Disobedience of general rules and specific orders and was prompted by a bad state of mind, and it must also be shown that orders given by the employer were accompanied by such dis- ciplinary measures as were necessary to entitle them to respect. Collins V. Bodin, 2 Cal. Ind. Ace. Com. 156; 12 K 0. C. A. 475. Where it appears that the disobedience of an oral instruction was not actuated by willful desire to disobey an order, but by a wish to further the employer's interests, the misconduct, if any, is not willful so as to defeat a claim for compensation for the disability resulting from the accidental injury suffered by the employe Sugar v. Atlas Taxicab Co., 1 Cal. Ind. Ace. Com. (Part II), 34; 12 JST. C. C. A. 486. An elevator constructor was riding on a dummy elevator when he was injured. The employer contended that the employe was violating a rule forbidding employes to ride on such elevators. It was found, however, that the rule had never been printed or written and was not enforced and it was held that the workman was not guilty of serious and willful misconduct.' Miller v. Otis Elevator Co., Indiana Ind. Ed., No. 7 (1916), 12 N. C. C. A. 472. A rule that employes work- ing with certain machines are not to repair them but must leave the repairing to be done by a mechanic. specially detailed for that purpose, usually is not a safety rule, the violation of which will constitute willful misconduct, as such a rule is rather one for the division of labor among the employes than a safety rule. Winter v. Johnson- Pollock Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 387. A workman who violates a reasonable rule made for his own protection from serious bodily injury or death is guilty of misconduct, and where such workman deliberately violates a rule with a knowledge of 'its existence and of all the dangers accompanying the said violation, he is guilty of willful misconduct. Coelho v. W. B. Bideout Co., 2 Cal. Ind. Ace. Com. 771 ; 12 N. C. C. A. 81. A distinction should be drawn between the intentional operation of a machine without the safety guard provided by the employer and the careless removal of said safety guard too soon after the shutting off of power, such re- moval being necessary for the purpose of repair. The former is willful misconduct, as it is done solely for an improper purpose, namely, the operation of the machine in a forbidden manner; the latter is merely negligence, as done for a proper purpose, but care- lessly. Southern California Hardwood & Manufacturing Co. v. Adams, 1 Cal. Ind. A^^gom^ f,'^Mlc}o^d^i^- ^^ ""^P^^^^ ^^« ^^^ ARISING " OUT OP ** AND IN " THE OOTJSSE OF " EMPLOYMENT 54:1 Disobedience of generai ruies and specific orders been instructed not to make any repairs to machinery while in motion, went into a pit under a handsaw a few minutes after the signal to stop the machinery had been given, but before the motion of the saw had heen entirely ceased and was cut to pieces. It was shown that the employe knew that the saw was still slowly rotating, and it was held that while he was negligent he had not been guilty of willful misconduct. Winter v. Johnson-Pollock Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 387. A boy under fifteen, who was engaged to oil machinery, had been instructed not to oil it while in motion. He violated this instruction on one occasion to save time. While it was held that he was guilty of negligence it was further held that this thoughtless action did not constitute willful misconduct. Bollinger V. Diestelhorst (1916), 3 Cal. Ind. Ace. Com. 368. Where a horse trainer drove horses over a crossing contrary to his instructions, but which instructions had been disobeyed habitually to the knowledge of the employer, it was held that this was not such willful misconduct as would defeat a claim for compensation. Cleveland v. Hastings, 2 Cal. Ind. Ace. Com. 18. A workman was cautioned by a foreman not to use a freight elevator until he was acquainted with it. He, nevertheless, 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 opportunity 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 willful misconduct. Granick v. British Columbia Sugar Refinery Co. (1910), 15 B. C. K. 193; 4 B. W. C. C. 452; rev'g (1909), 14 B. C. E. 251; 2 B. W. 0. 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 he was forbidden by special rule to cut any, and he thereby undermined some props, and caused a fall, which killed him. It w;as held that the accident did not arise out of the employment. The Court said : " If a workman is doing something, outside the scope of his employment, the proof of serious and willful 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. Digitized by Microsoft® 542 beadbuey's woekmen's compensation law Disobedience of general rules and specific orders 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 willful misconduct. 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 charge 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 willful misconduct. The House of Lords held that the employers had not sustained the burden of show- ing such serious and willful misconduct as would defeat the right to compensation. Johnson v. Marshall, Sons & Co. (1906), 94 L. T. 828 ; 8 W. C. 0. 10. The special rules of a mine imposed upon the miner working 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 brotight 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 before 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 dis- ablement, and that the miner was guilty of serious and wilful mis- conduct. George Y. Glasgow Coal Co. (1908), 45 Scotch L. E. 687; 1 B. W. 0. C. 239. A special rule applicable to a mine pit provided that " a workman shall not permit 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 position that it ignited the guBpfeM/5*4M'M^flf bailed to establish any cir- Disobedience of general rules and specific orders cumstances justifying his doing so committed a breach of said special rule, and that therefore his injuries were attributable to his serious willful misconduct," and compensation was denied. The Court of Sessions of Scotland, on appeal, held that this was a finding on a ques- tion of fact and affirmed the ruling. Donnachie v. United Collieries (1910), 47 Scotch L. K. 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 willful misconduct of the workman, but that it resulted in serious and permanent dis- ablement, 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 judge could find that the disablement was serious. Hopwood v. Olive & Partington (1910), 3 B. W. C. C. 357. It is serious and willful misconduct for a workman to deliberately meddle with new and unfamiliar machinery contrary to an express order given immediately before. Forster v. Pierson (1906), 8 W. C. C. 19. Disobedience of an order of a deputy amounting to a breach of a general rule of a mine is serious and willful misconduct. 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 willful and serious misconduct and was not entitled to com- pensation. Leishman v. William Dixon (1910), 47 Scotch L. E. 410 ; 3 B. W. C. C. 560. So also it was held to be serious and willful misconduct where 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 and he disregarded the advice and was overtaken and killed by the cars. John v. Albion Coal Co. (1901), 4 W. C. C. 15. Where by a special rule enforced in a coal mine it was provided that if a shot had been lighted and did not explode, no person should be permitted to enter the place until thirty minutes had elapsed after the fuse was lighted, and a, miner lighted the fuses of two shots eR^'PmMyt^'ff''fM'%i safety, and one shot 544 ekadbtjey's workmen's compensation law Disobedience of general rules and specific orders exploded but the other did not, and thinking he had failed to light the other fuse the miner returned, when the other shot exploded and he was injured he was held to be guilty of serious and willful miscon- duct. Waddell v. The CoUness Iron Co. (1912), 6 B. W. C. C. 306. A traveling inspector of scrap iron was required in the course of his duties to visit railway stations, to examine goods consigned to his employers, and to give instructions ,as to what was to be done with them. At one station there were a number of side tracks over which pedestrians and vehicles might pass when switching operations were not going on. When switching was being done there was a rule of the company prohibiting passage over the tracks, at which time there was a way around the end of the side tracks. The employe, attempt- ing to cross these tracks, reached a place where a train had just been placed on one of the side tracks. He waited until the train was un- coupled and as the engine pulled away he; started to pass between the cars, when there was a space of about five or six feet. The engine suddenly stopped and the rebound caused the cars to come together and he was crushed to death. It was held that the employe was guilty of serious and willful misconduct, but as death resulted compensation was awarded. Sanderson v. Henry Wright (1914), 7 B. W. C. C. 141. While convincing proof of the deliberate, intentional violation of a rule, formulated, brought to the attention of those whom it is de- signed to govern, and diligently enforced, will establish willful mis- conduct, an infraction of rules and orders issued and promulgated with less form and enforced with little or no diligence, will not estab- lish willful misconduct as a defense. Fisco v. Hazel Gold Mining Co., 1 Cal. Ind. Ace. Com. (Part II), 30. In the last-mentioned case the workman was riding on a car loaded with timbers and other supplies used in working a mine, which car was drawn by an electric motor. There were oral instructions not to permit riding on these cars, but these instructions were not in printed form, nor had they generally been brought to the attention of the employes of the mine, nor had they been diligently enforced. It was held, under the cir- cumstances, that there was no willful misconduct and compensation was awarded. Where an employe was killed by an electric shock by climbing upon a crane used for th£)feaSfffl4h^oflf?/lttafe^^pon a wharf, within close AJBiSlNG " OUT OF " AND IN " THE COUESE OF EMPLOYMENT 545 Disobedience of general rules and specific orders proximity to power lines, and it is shown that the employe had been cautioned not to go near such power lines without shutting off the power, but there was no regular order in relation to the matter, no danger signals had been erected and the men had been in the habit of doing exactly what this man was doing when he was killed, it was held that willful misconduct had not been established. Freid v. C. A. Smith Lumber Co., 2 Cal. Ind. Ace. Coni. 143. Where an employe in loading lumber upon a temporary truck dis- obeyed instructions not to get out over the wheel in getting off the truck, and in disobeying this order was injured, but there was evi- dence that the other way of getting off was blocked, it was held that while this was misconduct it was not willful misconduct Lanker v. County of Los Angeles, 1 Cal. Ind. Ace. Com. (Part II), 107. Where signs were put upon an elevator of " Danger, keep off " and " This elevator for freight only. Anyone riding on it does so at their own risk," and workmen were warned personally that if they used such elevator they would do so at their own risk, and were occa- sionally ordered off the elevator, but no one was ever fined or dis- charged for using it, and it was shown that the workmen used it frequently on the understanding that they did so at their own risk, compensation was awarded to an employe who was injured while using such elevator. Nelson v. Aetna Life Insurance Co. and Lind- gren Company, 1 Cal. Ind. Ace. Com. (Part I), 204; 12 IST. C. C. A. 660. Where an employer of errand boys made and enforced a rule that boys should not operate an elevator in one portion of the build- ing, but without the knowledge of the -employer the boys had been in the habit of operating an elevator in another portion of the building and while so doing one of the boys was killed, it was held that he was not guilty of willful misconduct as having deliberately violated a rule made for his own protection, with knowledge of its existence and the dangers accompanying such violation, and compensation was awarded. Cassell v. Simon Millinery Co., 2 Cal. Ind. Ace. Com. 996; 12 K C. C. A. 491. The violation of a rule that a boy under sixteen should not operate an elevator was held not to constitute willful misconduct where it appeared that the rule had been violated frequently by the boys working about the establishment, under the California Act. Cassell v. Simon Millinery Co. (1916), 3 Cal. Ind. Ace. Com. 230 ; 12 ^".^'^.^^(^pji^/crojgfif^ last-mentioned case it 35 546 beadbuet's woekmew's compensation law Disobedience of general rules and specific orders was said that in order to constitute willful misconduct there must be not only a violation of a reasonable rule made for the employe's own protection against serious bodily injury or death, but also a deliberate violation with knowledge of the existence of such rule and of the dangers accompanying such violation. Where a rule had been pro- mulgated that errand boys could not use a freight elevator, but this rule was frequently violated, and a newly employed errand boy, aged thirteen, was killed while using such elevator^ it was held that he was not guilty of willful misconduct. Crowley v. Davis-Schonwasser & Co. (19l6), 3 Cal. Ind. Com. 242. An employe was told by a night watchman not to run an elevator, but it appeared that similar em- ployes had been in the habit of running the elevator and there was no general rule prohibiting it, and it was held that the death of the employe, while so operating the elevator, was not caused by willful misconduct. Chepa and Nick v. Portola-Louvre Cafe (1916), 3 Cal; Ind. Ace. Com. 306. A boulder had been drilled and charged with dynamite on the day previous but one of the holes had failed to explode and applicant, a foreignor, struck the boulder with a sledge hammer for the purpose of breaking it up, with the result that the missed charge exploded and blew out both of his eyes. It was held that this was not willful mis- conduct on the ground that he had violated a safety rule forbidding employes from handling or tampering with any rock in which there was any undischarged blast, as under the circumstances disclosed it appeared that the workman knew very little English and may not have understood the rule upon the violation of which the employer relied as a defense. Kraljlvach v. Yellow Aster Mining and Milling Co., 1 Cal. Ind. Ace. Com. (Part II), 554. Where it appears doubt- ful whether instructions had been given to foreign workmen who did not understand the English language thoroughly, and it was doubtful whether they understood the safety orders they are expected to obey, it was held a finding of willful misconduct would not be made for the disobedience of such an order, unles extreme care was taken that the barrier of an unknown tongue did not stand between them and a clear knowledge of the rules and regulations, which they were ex- pected to obey. Cruz v. California Portland Cement Co., 2 Cal. Ind. Ace. Com. 159. Where a brakem^'9!i{Ftct§ili'l^H'qfSfi^as injured as a result of AKISING " OUT OF " AND IN " THE COUESIO OF " EMPLOYMENT 547 Error of judgment using his foot to aid in making a coupling, and such act was dangerous but not extremely so, and while it was in violation of instructions ' given by his superior officer, such instructions were not peremptory or specific nor generally or vigorously enforced but were often violated by such employe and others withoxit protest or discipline from such employers, it was held that the employe was not guilty of willful mis- conduct. Conners v. Sugar Pine By. Co., 2 Cal. Ind. Ace. Com. 874. 13. Doing work for own benefit. Where a clerk was using a buffing machine to polish a ring belong- ing to himself, it was held that he was engaged in work entirely for- eign to his duties and was therefore guilty of serious and willful mis- conduct. Maynard v. New London Ship & Engine Co., 1 Conn. Comp. Dec. 47. 14. Doing work in unusual manner. Where a woman engaged to clean house once a week was shaking rugs over a railing of a veranda was injured by the breaking of the railing against which she was leaning, precipitating her to the ground . and it appeared that she usually shook the rugs in the back yard, which was available, or in a space of eight feet which was given to her on a porch for this purpose, it was held that this did not amount to serious and willful misconduct. Bay on v. Bechley, 1 Conn. Comp. Dec. 69, aff'd 89 Conn. 154; 93 Atl. 139 ; 8 IST. C. C. A. 588. 15. Emergency. Willful misconduct cannot be predicated on the act of an empioye on a launch for jumping overboard in attempting to reach a place of safety when the boat catches fire. Ruprecht v. Bed Biver Lumber Co., 2 Cal. Ind. Ace. Com. 860 ; 12 E". C. C. A. 79. 16. Error of judgment. An error of judgment does not amount to willful misconduct. Ponder v. Adams & McBratney, 1 Cal. Ind. Ace. Com. (Part II), 207. Where a man filling carboys with concentrated nitric and sul- is of acid in a put in 100 648 beadbtjet's woekmen's compensation law Failure to use guys in building operation pounds and the carboy broke and the acid was splashed on him caus- ing extensive burns, it was held that the man had not been guilty of serious and willful misconduct and compensation was awarded. Oinsburg v. Hettrick, Conn. Comp. Com., Second Dist., July 31, 1916 (unreported). A youth of seventeen driving a team Ox horses drawing a loaded wagon not equipped with brakes, down a steep grade, could have driven his team across a plowed field with greater safety, but he did not do so and the horses got out of his control and believing he was in danger he jumped from the wagon and was killed, and it was held that he was not guilty of willful misconduct, but had merely exer- cised poor judgment. Chegloff v. B orchard & Petit Bros., 3 Cal. Ind. Ace. Com. 68. 17. Exhibition of poisonous reptile. The exhibiting of a poisonous reptile by a " spieler " to attract a crowd was not positively forbidden and if objection was made it was not because the employer believed the bite of the monster to be dan- gerous and the continuation of such exhibition was tacitly acquiesced in. It was held that the employe was not guilty of willful miscon- duct. Merritt v. Clark & Snow, 2 Cal. Ind. Ace. Com. 910; 12 ~S. C. 0. A. 474. 18. Failure to use goggles. Where an employer testified that he purchased protecting goggles for his employes and posted printed notices that the employes should be required to use them, but the employe testified that he had never heard of the notice or order and it appeared that the order had not been enforced, it was held that the employe was not guilty of willful misconduct in failing to use the goggles. McClelland v. Massachu- setts Employes Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 122. 19. Failure to use guys in building operation. An employe was injured while removing temporary guys from a steel tower, a sudden gust of wind arising causing the tower to col- lapse. The superintendent testified that he had called the employe's attention to the toWer and that it was unsafe, but the employe did not use the steel guys wnSffi^^fy^ifvailable for use. It was held that I AEISING OUT OF Failure to use safety guard this was not serious and willful misconduct and compensation was awarded. Cochran v. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 93. 20. Failure to use safety guard. The provisions of the Kansas Act that compensation shall be denied where the injury is caused by the willful failure to use a safety guard does not apply where the safety guard was removed for the purpose of cleaning machinery, it being necessary for such purpose to remove the guard. Messich v. McEntire, 97 Kans. 813; 156 Pac. 740. Where it appeared that a safety guard had been provided for a " buzz planer," but there was no evidence that the employe had been instructed to use it and it was shown that the guard had been im- proved since the injury, it was held that the employe was not guilty of serious and willful misconduct. Hindon v. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 106. 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 attributa- ble to serious and willful misconduct. Darbon v. Oigg (1904), 7 W. C. C. 32. Where a workman contended that a safety guard on a screw making machine flew off and in pushing the rod upon which he was at work in the machine his hand slipped and came in contact with cogwheels, causing injury, and the court, upon an inspection of the machine, concluded that it was impossible for the guard to fly off, or for the employe to cut his fingers in the machine, in the way in which he stated, compensation was denied, the court remarking that it could not tell whether or not the workman voluntarily injured himself for the purpose of claiming compensation, but that in any event he could not have been injured with the guard in place. Predale v. Berntz (Essex Conmion Pleas, 1914), 37 'N. J. Law J. 60. Under the Wisconsin Act compensation is reduced for failure of the employe to use a safety device and where by reason of the failure of the employe to usP'M'?i§'iAiftMQfe^fi^ received a shock which 550 y False statement to physician as to drinking habits caused his death, it was held that the death benefits should be reduced by 15 per cent. Buseh v. Wisconsin Gas & Electric Co., Fourth Annual Report (1915), Wis. Ind. Com. 38. Where an employe fails to tise a safety device placed for his own protection on the machine on which he is working and it is a rule of his employer, diligently enforced, that employes must never use the machine without using the protection provided, the employe is guilty of wiUful misconduct 'and compensation will be refused. Gordon v. San Francisco-Oakland and Terminal Railways, 1 Cal. Ihd. Ace. Com. (Part II), 232. In the last-mentioned case the Commission remarked that the employe's excuse that he wished to get the work done more quickly as a reason for dispensing with the safety device was insuflScient. An employe was held to be guilty of willful misconduct for failure to use a safety device where it appeared that strict orders had been given to the employes and notices conspicuously posted in the mill requiring the use of such device. Bax v. Buss Lumber & Mill Co. (1916), 3 Cal. Ind. Ace. Com. 199. 21. False representation as to age by minor in securing work. An infant made a false representation to the effect that he was of full age in ord^er to secure employment. It did not appear that the accident in question was attributable solely to such misrepresentation. Subsequently having been injured 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 willful misconduct, and that the release was not a bar to the re- covery of compensation. Darnley v. Canadian Pacific By. Co., 14 B. O.E. 15 ; 2 B. W. C. C. 505. 22, False statement to physician as to drinking habits by injured workman. Where after an injury the employe told the attending physician that he was not in the habit of drinking alcoholic liquors to excess and two days later he died from delirium tremens, it was held that the question of whether or not he was guilty of willful and intentional misconduct in answ6C?i|i^'zflrfst^M83tf'@s«pi5®tion was one of fact and 551 Going In wine vat wittiout testing for poisonous gases when determined hj the Industrial Accident Board in favor of the claimants it was not subject to review on appeal. Bamlow v. Moon- lake Ice Co. (1916), Mich. ; 158 N. W. 1027. 23. Following custom. A miner was attempting to jump upon a moving skip, which he missed, and fell to the bottom of the shaft. The deceased was follow- ing a custom of the other employes which had never been forbidden by any diligently enforced order of the employer. It was held that he had not been guilty of willful misconduct. Pintus v. South Eureka Mining Co., 2 Cal. Ind. Aoc. Com. 186 ; 12 IST. C.'C. A. 1037. Where a stevedore instead of climbing over and down a pile of lumber to get on a ship, htmg on the hoisting gear, and was injured by the careless handling of a winchman causing a sudden jerk by which the employe was thrown to the deck, and it appeared that this method was fre- quently used by stevedors in getting on deck, it was held that the em- ploye had not been guilty of willful misconduct. Soderstrom v. Hart- wood Lumber Co., 2 Cal. Ind. Ace. Com. 676. The proper and safe way to proceed from a lower to a higher level of a mine was by a ladder, although the miners 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 af the employment, and was not due to serious and willful misconduct. Douglas v. United Mineral Mining Co. (1900),2W. C. C. 15. A baker was injured in scraping the dough from a dough-mixing machine while the machine was running, contrary to warnings and posted notices. It appeared that the habit of scraping the mixer without stopping it was constant and practically universal in the plant and it was held that the employe was not guilty of willful misconduct. Bauer Y. Pacific Baking Co. (1916), 3 Cal. Ind. Ace. Com. 337. 24. Going in wine vat without testing for poisonous gases. "Where an employe of a wine company went to an empty wine tank to clean it out and it was well known to all experienced wine men that there was risk from poisonous gases in giong into a wine tank with- out first having burned a candle therein to determine the purity of the air, and it did not ^1^0?^^ M^mSMe that this employe had 552 BEADBUEy's WOBKMEN's COMPENSATIOlf LAW Intoxication ever been informed of sucli danger, or that lie actually knew of such risk, or that he did not first burn a candle therein before entering, it was held that the employe had not been guilty of willful miscon- duct. Zanotti v. Aquilino, 3 Cal. Ind. Ace. Com. 53; Majfia v. Aquilino, 3 Cal. Ind. Ace. Com, 15. 25. Idle curiosity. Where a carpenter engaged in a moving picture production de- liberately touched off the fuse of a bomb with a lighted match " to see what it would do," after such bomb had failed to explode by electric apparatus, and the carpenter was injured in the explosion which fol- lowed, it was held that the accident did not arise out of the employ- ment and the act of the carpenter constituted willful misconduct as it amounted to willful disregard for the employe's own life and safety. Downer v. Jesse L. Lasky Feature Play Co., 2 Cal. Ind. Ace. Com. 353; 12 ISr. CCA. 1032. 26. Intoxication. In some of the statutes injuries resulting from intoxication are not compensable. In others intoxication is declared to be serious and willful misconduct. Even where the statute is silent on the subject, it is usually, but not universally, held that if an accident occurs by reason of the intoxication of an emplojre, it does not arise out of the employment. Nearly all the acts cover the point in some way, so that injuries resulting from intoxication are not compensable. Intoxica- tion, therefore, is tantamount to serious and willful misconduct whether or not it is specifically so declared to be in a particular statute. Drunkenness when it occasions the injury may amount to serious and willful misconduct. Bradley v. Salt Union (1906), 122 L. T. J. 302 ; 9 W. C C 31. Mounting a ladder while drunk, with a long piece of timber on one shoulder, and out of bravado, was held to be serious and willful misconduct. Burrell y. Avis (1898), 1 W. C. C. 129. An engine driver while driving a traction engine, fell off the foot- plate and was fatally injured. At the time of the accident he was under the influence of drink. Compensation was awarded, because it was a death case. QMmd^.yM^mOMU & Co. (1913), Scotch AND IN Intoxication Court of Sessions, Y B. W. C. C. 841. Likewise where a stableman while under the influence of liquor attempted to ascend to a loft by a vertical ladder and in doing so he slipped and fell causing injuries from which he died. Williams v. Llandudno Coaching and Carriage Co. (1915), 8 B. W. C. C. 143; 9 N. C. C. A. 245. Where a sailor, returning to a ship, was in such a state of intoxica- tion that he fell off the gangplank and was killed, it was held that this was not serious and willful misconduct, but that the accident was due to the drunkenness and did not arise out of the employment. Nash V. S'.S. "Bangatira" (1914), Y B. W. C. C. 590. A mate of a ship was ordered off the bridge by the captain because of the drunken condition of the mate. While standing at the head of the ladder leading from the bridge to the deck he fell to the deck. It was held that the accident did not arise out of the employment. Murphy and Sandwith v. Cooney (1913), Irish Court of Appeal, 7 B. W. C. C. 962; Where a second mate of a ship was ordered to go to his room be- cause he was intoxicated and not fit for work and instead of doing so he went in an opposite direction to speak to a seaman on a personal matter and fell down an open hatchway, it was held that the accident did not arise out of the employment. Horsfall v. 8. 8. " Jura " (1913), 6 B. W. C. C. 213. ' A commercial traveler went to a town where he had customers, but made no attempt to transact business. He became intoxicated and was found at the railroad station so badly injured that he died shortly after a railroad train, which did not stop at that station, had passed. It was held that the accident did not arise out of the employment. M'Crae v. Renfrew (1914), Scotch Court of Session, 7 B. W. C. C. 898. Compensation was denied for an injury on the ground that it was caused by the defendant's intoxication, under the California Act, without stating the facts. Brown v. Boca Mills Co., 1 Cal. Ind. Ace. Com. (Part II), 40. Where by reason of intoxication a driver per- mitted horses which he was driving to run away, compensation was denied on the groimd that the injury was proximately caused by in- toxication. Feus V. /. 0. Wichham, 1 Cal. Ind. Ace. Com. (Part II), 464; 12 N. C. G-^^tklhyWcrkpt^^' ^" employe is in- e of an miury is not a defense unless the mtoxica- toxicated at the time of an injury : 554 beadbuby's woekmen's compeh^satioh law Intoxication tion contributes to the happening of the accident or to the disability resulting therefrom. Summerville v. Jack De Bella & Co., 1 Cal. Ind. Ace. Com. 558; 12 JST. C. C. A. 189. Where an indulgence in intoxicants results in the impairment of the workman's faculties which he would ordinarily use to safeguard himself against danger, when he is working with dangerous appliances, or necessarily work- ing in a dangerous place, and it is plain that the impairment of these faculties as the result of the intoxication is the major contributing cause of the accident, such intoxication will be held to be the proxi- mate cause of the accident and compensation will be denied. But intoxication does not mean a condition of drunkenness necessarily resulting in helplessness. Arnold v. /. D. Benjamin, 1 Cal. Ind. Ace. Com. (Part II), 411. Intoxication is not sufficient to defeat a claim for compensation unless it appears that such intoxication proxi- mately caused the accident and, therefore, where a man was thrown from a wagon by reason of the bending of the kingbolt of the wagon, it was held that compensation should be awarded even though he was intoxicated at the time, where the intoxication had nothing to do with the accident. Summerville v. Jack De Bella & Co., 1 Cal. Ind. Ace. Com. (Part II), 558; 12 E". C. C. A. 189. Where a workman in building a silo fell and was killed by reason of intoxication, compensation was denied. Boyington v. Stoddard, 1 Conn. Comp. Dec. 103. Also where a painter fell from a ladder, because of intoxication, and received a serious injury. Spencer v. Scanlon, 1 Conn. Comp. Dec. 280. Where an injury to a driver of a team was due to intoxication compensation was refused on the ground of serious and willful misconduct. Filliger v. Allen, 1 Conn. Comp. Dec. 35. Where a teamster by reason of his intoxicated condition drove a team and wagon with a heavy load into a barn, with which he was entirely familiar, so that he was jammed between the load and the ceiling of the barn, it was held that the injury was due to his serious and willful misconduct and compensation was refused. White v. Fidelity and Deposit Co., 2 Mass. Ind. Ace. Bd. 567. An employe who was working on a roof, was told by his employer to come down, because the employer thought he was intoxicated. The employe replied : " You thigj^yJ^-^ggijy^j^^^jSjj^^ will show you that I am not," and thereupon began to dance upon the top of the roof and lost AEISING " OUT OF " A^D IN " THE CO0ESE OF " EMPLOYMENT 555 Intoxication his footing, sliding down the roof to the edge and then falling to the ground, the injury resulting fatally. It was held that the employe was guilty of serious and willful misconduct and compensation was refused. Lee v. Fidelity and Casualty Co., 1 Mass. Ind. Ace. Bd. 316. Where it was found that a driver was intoxicated and would not have fallen had it not been for such intoxication, it was held that he was guilty of serious and willful misconduct and compensation was refused, under the Massachusetts Act. Truesdale v. Employers' Lia- bility Assur. Corp., 1 Mass. Ind. Ace. Bd. 360 ; Bochville v. General Accident Assur. Corp. (1914), 3 Mass. Ind. Ace. Bd. 153; 12 N. 0. C. A. 188. Where a man working on a bridge fell overboard and was drowned by reason of intoxication it was held that the accident did not arise out of the employment and compensation was denied. Ronca, Admr. v. DeGrave (Mercer Common Pleas, 1915), 38 IST. J. Law J. 56. The presumption under section 21 of the New York Law, that in any proceeding for compensation the claim comes within the pro- visions of the Act, may be rebutted, and where an employe who lived on a dredge, went ashore for purposes of his own, became intoxicated and on returning fell off a dock, which dock was not owned by the master, before a small boat came to take him to the dredge, it was held that the accident did not arise out of the employment and com- pensation was refused. Berg v. Great Lakes Dredge and Dock Co., 173 App. Div. 82 ; 158 Supp. 718 ; 12 K b. C. A. 74. An inspector of gas pipes testified that he became dizzy from' the smell of leaking gas and a friend invited him to have a drink of liquor. Somewhat later he fell and when he was found he was in a state of very marked intoxication. He contended that the gas which he inhaled caused him to fall, but the Commission determined, as a fact, that the in- toxication and not the gas, caused his fall and this resulted in the injury and compensation was refused. Minnaugh v. Brooklyn Union Gas Co. (1916), 8 IST. Y. St. Dep. Kep. 466. An employe in a rail- road section gang was on his way to the place of employment when he sat down on a rail and paid no attention to the whistle of the ap- proaching train. There was evidence that he was intoxicated at the ' time. Compensation was denied upon the ground that the deceased either intended to coim&9'M?6i^ M^^^W^^ intoxicated to know 556 beadbuey's woekmen's compensation law Intoxication ^ what he was doing. Dowling v. New York Central & Hudson River R. Co. (1916), 9 N. T. St. Dep. Eep. 320. Under the Wisconsin statute an employe is not entitled to com- pensation if an accident is caused by willful misconduct. There is nothing in the law about intoxication. The Industrial Commission made a finding that " the death of Pat Smith was proximately caused by accident and was not caused by willful misconduct; that at the time of such accident Pat Smith was in an intoxicated condition which proximately caused the accident." The Industrial Commission awarded compensation, holding that intoxication was not willful mis- conduct. The Supreme Court affirmed the award holding that in- toxication was not necessarily willful misconduct and that therefore the findings of the Commission were final under the statute. It is remarked in the opinion that if the court was authorized to review the evidence it might come to a different conclusion, but that the statute was mandatory to the effect that the award should not be set aside on such a ground. Nehoosa-Edwards Paper Co. v. Industrial Commission, 141 IST. W. 1013 ; 154 Wis. 105. There was a strong dissenting opinion by three of the justices of the Supreme Court in the last-mentioned case in which it is said, among other things : " The plain, unvarnished tale in this case is that Smith, an habitual toper, left his work, went to a saloon some distance from his place of employment, got a partial ' jag ' on, started back with a bottle of whiskey, and got so drunk that thereafter, while he was driving his team over a smooth road, he fell off the wagon and broke his neck. There is no suggestion that the whiskey was injected into him by force or by stealth or artifice. He bought it himself and drank it alone. It was an offense under the law of Wisconsin for him to get so drunk that he could not provide for his own safety or the safety of others, for which he might have been punished had he. survived. Of course if the act of drinking was accidental or automatic or a mere mechanical exercise unconsciously performed, then intent would be lacking. But the're is neither finding nor evidence that such was the fact. The deceased was a seasoned veteran, having a penchant for getting drunk, who through his long experience must have known and appreciated his capacity. The Commission did not find that the deceased got drunk by accident. There was no evidence in the case to warrant any such/jqig/^^r^ b}W^cmffmraxdi. damages on any such AND IN " THE COUESE Ol' " EMPLOYMENT SST Laborer riding on top of cars theory. It plainly says so in its decision. After holding that the claimant was drunk at the time he fell off the wagon and that the drunkenness caused his death, it says : ' The question we have to decide is whether or not such intoxication is a defense against com- pensation.' And in conclusion the Commission says : ' If the Legis- lature had so intended, we believe that it would have specifically so provided in the Act.' " Burden of proof. The burden of establishing intoxication and that it caused the injury is on the employer. Buprecht v. Bed Biver Lumber Co., 2 Cal. Ind. Ace. Com. 860 ; 12 IST. C. C. A. 79 ; Phillips V. Chanslor-Canfield Midway Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 580; 12 ]Sr. C. C. A. 176; Brennan v. Patrick Mortell, Conn. Superior Court, of New Haven County, July 19, 1916 (unreported). Where it appeared that an employe was a man of intemperate habits and that he had been drinking to some extent on the day of his injury, but the proof was lacking to show that such intemperance was the proximate cause of the injury, it was held that the employer had not sustained the burden of proof of showing intoxication and com- pensation was awarded. Brennan v. Mortell, 1 Conn. Comp. Dec. 659. 27. Jumping on moving car. An employe hired to unload coal cars jumped on a moving car contrary to directions and was injured and it was held that the injury arose out of the employment under the Illinois Act. Mulverhill v. Decatur By. and Light Co., 111. Ind. Bd. 2168, Jan. 14, 1916 ; 12 1^. C. C. A. 476. 28. Kerosene oil used to build fire. By way of dictum the Connecticut Commissioner ruled that the use of kerosene oil to build or replenish a fire, if contrary to the clear and explicit orders of the employer, would constitute serious and willful misconduct. Pelham v. Burstein, 1 Conn. Comp. Dec. 49. 29. Laborer riding on top of cars. A laborer in the road department of an interstate railroad was riding on top of a car in going to the place of work when the train went into a tunnel and §i9'$i§A^MM^9S% become dizzy and he 558 beadbuet's woekmen's compensation law Lineman working on electric light poles wlien current turned on fell off the car and was run over and badly injured. There was a caboose on the train, but no objection was made at the time to the men riding on top of the cars. Compensation was awarded under the ISTew York Act. Caccavano v. New York, Ontario & Western By. Co., 6 N'.'t. St. Dep. Eep. 380; 12 K C. 0. A. 471. 30. Leaving machine in operation. Where an employe operating a machine in a factory was directed not to leave the machine while in operation, but disregarding this rule he attempted to get on a moving elevator to go to the floor above, leaving the machine in operation and he fell from the moving ele- vator and was seriously injured, it was held that he was guilty of serious and willful misconduct and compensation was refused. Keyser v. Gilbert & Bennett Mfg. Co., 1 Conn. Comp. Dec. 636. 31. Lineman failing to use safety belt. The disobedience by an electric light lineman of a positive rule that all such linemen must use safety belts was held to constitute willful misconduct which would bar a claim for compensation. Lochwood V. Bacific Gas & Electric Co., 3 Cal. Ind. Ace. Com. 26. 32. Lineman working without ruober gloves. A lineman of an electric light and power company was directed never to work with live wires without the use of rubber gloves, which gloves were supplied by the company. The employe disregarded this instruction and received a shock which caused his death and it was held that he was guilty of willful misconduct and compensation could not be awarded. Great Western Bower Co. v. Billsbury, 170 Cal. 180; 149 Pac. 35; 9 N. 0. C. A. 466; rev'g 1 Cal. Ind. Ace. Com. (Part I), 208 ; 11 N. C. C. A. 548 ; Lines v. Bacijic Gas and Electric Co., 2 Cal. Ind. Ace. Com. 835. 33. Lineman working on electric light poles when current turned on. The fact that an employe worked on electric light poles when the electric current was turned on contrary to directions was held not to be such a violation of such orders as required the refusal of compen- sation. Beynolds v. Mound City Water and Light Co., 111. Ind.' Bd., Dec. 31, 1914; 12 ^ .^ki^keh-i^ll^crosoft® ARISING " OUT OF " AND IN " THE COUESE OF " EMPLOYMENT 559 Neglect to secure proper medical treatment 34. Neglect of suggestion not amounting to an order. Mere negligence or disregard of a suggestion by an employer, which suggestion does not amount to an order or rule, is not enough to constitute serious and willful misconduct. Forbes v. Brown, 1 Conn. Comp. Dec. 202 ; aff'd by Superior Court, Id. 202. 35. Neglect to secure proper medical treatment. The neglect of a trivial injury by an ignorant employe until blood poisoning develops is not such serious and willful misconduct as will warrant the refusal of compensation. Barton v. New York, New Haven & Hartford B. Co., 1 Conn. Comp. Dec. 227; Bradley v. Waterhury Clock Co., 1 Conn. Comp. Dec. 179. An empleye suffered a minor injury to the hand to which he paid no attention until blood poisoning set in about twelve days later and did not giye notice to his employer until shortly before the expira- tion of the thirty day period, when he was suffering from blood poisoning and dermatitis caused thereby. The employer showed that he had a large number of employes and conducted a first aid hospital on the premises with two trained nurses always in attendance. The employer also showed from the employer's own records that out 2,500 injuries more or less similar to that received by the claimant only three resulted in infection when seasonably reported; that of these three one was due to physical peculiarities of the injured person and another to the fact that a Sunday intervened between two treatments. The Commissioner held, therefore, that the employer had sustained the burden of proof of showing that the conduct of the employe had been so unreasonable as to deprive him of any right to compensation and compensation was refused accordingly. Eccles v. Scovill Manu- facturing Co., 1 Conn. Comp. Dec. 241. Under the British Colnmbia Act it is held that the " serious neglect " which will defeat a claim for compensation, does not apply to serious neglect after the accident, in failing to comply with the physician's instructions. Powell v. Crow's Nest Pass Coal Co. (1915), (British Columbia Supreme Court), 8 B. W. C. C. 653. In the last-mentioned case there appeared to have been a mistake be- tween the employe and the physician as to who should visit the other, as a result of which the workman did not receive medical attention and thereby lost the^^?®^%^^,S'^ch was injured, when he 560 BKADBUKt's WOEKMEn's COMPENSATlblt tAW Picking up live wire might, as the physician testified, have had the eye cured had he con- tinued to receive proper medical attention. The court held that there was evidence supporting the decision below in favor of the em- ployer refusing compensation, but it was not on the ground that the workman had been guilty of serious neglect. 36. Obeying direction of superior. Willful misconduct cannot be based upon the conduct of a superior which caused the injury to the subordinate employe. Buprecht v. Bed River Lumber Co., 2 Cal. Ind. Ace. Com. 860 ; 12 IST. C. C. A. 79. The holding of dynamite caps in one hand and a piece of lighted fuse in the other, while the workman was testing the fuse, was held not to constitute willful misconduct, in an application for compensa- tion caused by an explosion of the caps from a spark from the fuse, where it appeared that the workman was following the directions of the foreman. Andreucetti v. California Brick Co., 2 Cal. Ind. Ace. Com. 208 ; 12 N. C. C. A. 1036. Where a deckhand on a boat, upon the failure of the engineer to appear, went to the engine room, at the direction of the captain, and attempted to start the engine, it was held that he was not guilty of willful misconduct even though instructions had been issued that a deckhand should not go to the engine room. Graham v. Bay Counties Express Co., 2 Cal. Ind. Ace. Com. 47. 37. Picking finger with unsanitary knife. The charge of willful misconduct cannot be sustained on the ground that an employe picked his finger with an unsanitary pen knife, in attempting to remove a sliver. Blaine v. L. N. McKinsey, 1 Cal. Ind. Ace. Com. (Part II), 641; 11 N. C. C. A. 368, 379. 38. Picking up live wire. Where in deliberate disregard and disobedience of various rules, which the employe understood, he picked up a live wire contrary to the express instructions in the book of rules, receiving a shock which caused his death, it was held that he was guilty of serious and willful misconduct. Sanford v. The Connecticut Co., 1 Conn. Comp. Dec. 485. Digitized by Microsoft® APJSING " OUT OF '* AND IN " THE COTJESE OP '* EMPLOYMENT 561 Riding in dangerous place on mine bucl^et 39. " Purposely self-inflicted." The words " purposely self-inflicted " as used in the Ohio Act imply the unquestioned design of self -injury, that is, an inward pur- pose of injuring one's self, which must be shown by evidence. In re Stopyra, 1 Bull. Ohio Ind. Com. 92. Proof of acts which at common law constitute gross negligence, raises no presumption that a resulting injury to an employe guilty erf such negligence was purposely self-inflicted. In re Stopyra, 1 Bull. Ohio Ind. Com. 92. 40. Racing with motor cycles. An employe of a firm dealing in racing motor cycles took a machine out on a track to test its engine and speed, as instructed by the em- ployer. While speeding at sixty-two miles an hour he crashed into a fence and received a serious injury. It was held that the accident arose out of the employment. Lawson v. SiocMon Motorcycle and Supply Co., 2 Oal. Ind. Ace. Com. 628 ; 12 IST. C. C. A. 1034. 41. Removing flour sacks from middle of pile. Where the employe was twice instructed in one morning to remove flour sacks from the top of a pile and not from the middle, as it was dangerous to move them from the middle, and he disobeyed the in- structions thereby causing the pile to fall and he was injured, it was held that he was guilty of willful misconduct. Curless v. Peninsula Warehouse, 1 Cal. Ind. Ace. Com. (Part II), 354. 42. Resisting robbers. The act of a bartender in attempting to resist robbers resulting in his being shot to death was held not to constitute willful misconduct, Henning v. Eenning, 2 Cal. Ind. Ace. Com. 724. 43. Resting in working hours. The fact that an employe is injured while resting during working hours is not of itself sufficient to establish the defense of willful mis- conduct. Ooering v. The Brooklyn Mining Co., 2 Cal. Ind. Ace. Com. 124; 12 N". C. C. A. 245. 44. Riding in dangerous place on mine bucket. » Where a miner delib^^ji^gij^j^^^^l^lj^known enforced orders 36 562 beadbuey's woekmen's compensation law Violating safety statutes and rules of the employer took a dangerous position on the bucket ascending from the mine, from which he fell and was killed, it was held that this was willful misconduct and relieved the employer from liability. Lopez and Moreno v. Harvard Mine, 2 Cal. Ind. Ace. Com. 567. 45. Seaman returning to wrecked vessel Where a ship had gone upon the rocks and was in imminent danger of going to pieces. and the order was given by the captain to desert the vessel and the first mate who knew of such order, but for some reason which could not be ascertained, remained on the ship and did not reach the boats and was lost in the wreck, when the ship broke up a few minutes later, it was held that the evidence was insufficient to establish willful misconduct on the part of the mate. Bolger v. North Pacific Steamship Co., 2 Cal. Ind. Ace. Com. 324 ; 12 N. C. C. A. n. 46. " Taking a chance." Where a trustworthy workman was permitted to use his own judg- ment as to the manner in which hazardous work was to be done, and he used a method known by him to be forbidden by the rules of his employer, and it appeared that his action was taken under the ex- igencies of the time and situation and in the spirit of " taking a chance," he might be chargeable with negligence or misconduct, but his act was not willful in the sense of setting up his mind in willful opposition to that of his superior in an act of premeditated dis- obedience to authority, and did not therefore constitute willful mis- conduct. Salmon r. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part I), 190. 47. Unloading car when contents frozen. Disobedience of an order by which an employe was directed not to work at the unloading of a car while the contents was frozen was held not such serious and willful misconduct as required a refusal of compensation. Burgnon v. Edgeiuater Coal Co., 111. Ind. Bd., Nov. 23, 1914; 12 K C. C. A. 4Y7. 48. Violating safety statutes and rules.^ A girl employed in bottling mineral waters and required by regula- tions made under the Factory and Workshop Acts of which she was 1 See paragraph 20, m^iB!&i §j^Micr0S0ft® Willful negligence aware, to wear gauntlets on both arms, was injured in her right arm by the explosion of a bottle. At the time of the accident she was wearing no gauntlets and only wearing a glove on her left hand. It was held that the girl had not been guilty of serious and willful mis- conduct. Casey v. Humphries (1913), 6 B. W. C. C. 520 j 4 JST. C. 0. A. 881. The court remarked that this was undoubtedly a border-line case, but that as the court below had found that the girl had not been guilty of serious and willful misconduct the appellate court should affirm the judgment. 49. Violating speed law in automobile or motor cycle. The driving of an automobile at a speed which is contrary to law constitutes such willful misconduct as will prevent compensation from being awarded when the employe is injured while doing it. Fidelity & Deposit Co. of Maryland v. Industrial Ace. Com., 171 Cal. 728 ; 154 Pac. 834; 12 N. C. C. A. 495. Apparently overruling such cases as Phillips v. Chanslor-Canfield Midway Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 580; 12 IST. C. C. A. 176; Ferguerson v. Royal Indemnity Co., 1 Cal. Ind. Ace. Com. 11 ; Hedges v. City of Los Angeles, Id. 394. Riding a motor cycle along a crowded thoroughfare, by a telegraph messenger boy, in a large city, at a rate between forty and forty-five miles an hour, without extreme necessity, was held to constitute such a flagrant disregard for the rider's own life and limbs and bodily safety, as to amount to willful misconduct. Bohma v. Western Union Telegraph Co., 2 Cal. Ind. Ace. Com. 282 ; 12 K C. C. A. 1035. 50. Willful negligence. Willful negligence of an employe is not a defense to a claim for compensation under the New Jersey Act. West Jersey Trust Co. v. Philadelphia SB. By. Co., 88 N. J. Law 102; 95 Atl. 753; Thompson v. ParTcer and Coleman (Morris Common Pleas, 1915), 38 N. J. Law J. 368; Schelf v. Kishpaugh (Warren Common Pleas, 1914), 37 N. J. Law J. 173, WiUful negligence is not a defense to a claim for compensation . under the New Jersey Act, as section 1, containing the term " willful negligence," applies oT^gjiff^^p^c^^^^f^litj cases. Taylor v. Beabrooh 87 N. J. Law 407; 94 Atl. 399; 11 N. C. C. A. 710; 564 beadbubt's workmen's compensatiOit law Introduction Oarrabrant v. Morris & Somerset Electric Company (Morria Com- mon Pleas, 1913), 37 K J. Law J. 208. 51, Without scope of employment. The intentional and willful misconduct which operates to bar an employe from compensation which he might otherwise receive refers to such misconduct in the scope of his employment and if the injury was not received in the course of his employment it is immaterial whether it was caused by his intentional and willful misconduct or not. Bischoff v. American Car and Foundry Co., Mich. ; 157 N. W. 34. ARTICLE E — THE DOCTRINE OF PROXIMATE CAUSE AS ILLUS- TRATED IN THE SO-CALLED "AGGRAVATION" CASES 1. Introduction. ' This same subject is discussed exhaustively in Chapter XII. In that chapter the topic was considered in its relation to the question of when an aggravation of a pre-existing condition, or an aggrava- tion of a physical condition resulting from an industrial injury by a subsequently intervening cause, was an " accident," or an " injury," within the meaning of the compensation statutes. In this chapter the same question is considered in its relation to Jhe further question of when the aggravated condition thus caused " prises out of and in the course of the employment." In many instanqes the questions dis- cussed in this and the previous chapter are so closely allied that they are really interwoven. Again there are instances in which they are quite distinct and require separate treatment. It has been deemed necessary, therefore, to discuss them separately. That the subject is of growing importance is indicated by the fact that it appears more frequently in the later cases than it did in the earlier ones. As the courts and administrative boards and commis- sions have gained more experience, doubtless they have been im- pressed with the large number of cases in which disability has been prolonged by facts which had nothing whatever to do with the work which employes thus affected were doing when disability was caused. The doctrine early established by the British courts was accepted rather literally that an employer accepted his employes in the con- dition in which they were at the time of the employment, and if a ARISING "out of" AND IN " THE OOUKSB OV EMPLOYMENT 565 Introduction trivial accidental injury aggravated a pre-existing subnormal physical condition so as to cause disability, when little or no disability would have been caused, by the same accident, to a workman who was sound physically, that he was entitled to compensation nevertheless. Also when an employe actually suffered disabling injuries and the period of disability was prolonged by some~ untoward event happening subsequently the courts were slow to discontinue disability payments so long as the original injury could be determined to have any effect on the continuing disability. But a number of aggravated cases arose, where employes, by intoxication, or a refusal to submit to proper medical treatment,' or other extrinsic causes, so greatly ex- tended the period of disability that there seems to have been some- what of a modification of the doctrines originally applied under such circumstances. The problems thus arising cannot be said to be new, but the circumstances under which they arise are new. In negli- gence actions, under the common law as modified by employers' lia- bility acts, the question to be determined at the time of the trial was the then physical condition of the employe and how far that condition was due to the injury. In deciding this question the court and jury took into consideration both the pre-existing physical condition of the employe as well as subsequently intervening aggravating causes for prolonged disability, and, in theory at least, assessed the damages for injuries caused solely by the accident. So while aggravation of a pre-existing sub-normal physical condition by an accidental injury gave rise to an action for damages, such pre-existing condition was a fact which the jury must, in theory, consider in fixing the measure of damages. Subsequently intervening causes prolonging disability might or might not be the proper«basis for increased damages accord- ing to circumstances. If due to untoward complications arising from a surgical operation made necessary by the nature of the accidental injury, or other causes directly connected with the injury, such ag- gravation was usually the proper subject of an award of increased damages. But if the subsequent aggravation came from some un- necessary act on the part of the employe which had a direct effect in prolonging the disability, or from some circumstance totally discon- nected with the original injury, then usually such fact was proper to consider in either decreasing the damages or denying any recovery whatever for such pro8i^6(i^MMi^so/?® 566 Aggravation of pre-existing condition Somewhat the same principles are being worked out in compensa- tion cases. But here the problem must be approached in a different manner than it was treated in actions for common-law damages. In compensation cases the only way in which the amount to be paid can be reduced is by shortening the period for which payments are to be made. The amount paid per week in temporary total disability cases is the same whether the employe is disabled six weeks or six months. Instead, therefore, of allowing a jury to fix a lump sum as the damages probably resulting from the injury, after excluding aggravating causes for which the employer was not legally liable, the courts and administrative boards and commissions must deter- mine, largely from expert testimony, how long the employe would have been disabled by reason of the industrial injuries alone. Then they must determine how many weeks such disability has been pro- longed by either pre-existing or subseqtiently arising conditions which may properly be added to the period of disability, and how many weeks it has been prolonged by circumstances which have no con- nection with the industrial injury and for which compensation should not be paid. Thus the matter has been worked out on a more scientific basis, and, at the same time, it may be asserted with safety, on prin- ciples which are difficult to apply. A verdict of a jury fixing an arbitrary amount was not subject to close analysis as to how the sum was made up. But under compensation acts the courts and adminis- trative boards and commissions must determine what specific periods of disability are caused by particular circumstances and make awards accordingly. Manifestly this is the more difficult proceeding. 2. Aggravation of pre-existing coniiition. (a) Cases in which compensation awarded. An employe had an old hernia which had ceased to trouble him and although he had for- merly worn a truss he had discontinued that practice for some time. In lifting a heavy cask from a shelf he strained himself again in the same place and a new hernia was formed. It was held that this was an accidental injury arising out of the employment even though there had been a gradual weakening at the particular spot where this injury occurred, as this particular injury was due to a new accident. Brown V. Kemp (1913), 6 B. W. 0. C. 725. A workman who ^M'W^kMMlpimf^ existing hernia up died ARISIIMG " OUT OF " AND IN " THE COURSE OF " EMPLOYMENT 567 Aggravation of pre-existing condition from a strangulated hernia after doing heavy work, and the inference of the court below that the injury was caused by an accident arising out of the employment was sustained on appeal. . Scales v. West Nor- folk Farmers Manure & Chemical Co. (1913), 6 B. W. C. C. 188. Disability may properly be established as due to a pre-existing condition or ailment if the injury is slight and the condition was known to have existed at the time, but in order to charge a disability to a pre-existing condition such pre-existing condition must be estab- lished to a reasonable certainty. Snyder v. Pacific Tent & Awning Co., 3 Cal. Ind. Ace. Com. 1. Where a pre-existing aneurism of the aorta was caused to burst by a severe strain in doing very heavy lifting, it was held that this was an accidental injury arising out of the employment. Draper v. An- derson, Lore and Company, 1 Cal. Ind. Ace. Com. (Part II), 132. An employe was suffering from old age, paralysis agitans and heart trouble. The testimony of the physicians was that these diseases were certain to cause death before long, but that, barring accident, the employe might live for many months, or even for some years. Such employe was injured by an accident, receiving a fracture of the femur, and died six weeks later from the combined result of all the causes mentioned. It was held that the accidental injury was the proximate cause of the death. Hughes v. L. P. Degen -Belting Co., 1 Cal. Ind. Ace. Com. (Part II), 203. A man past sixty years of age weighing two hundred pounds, for a considerable period of time had been in so vulnerable a condition that a comparatively slight injury would be followed by a relatively long period of disability. He was disabled by the falling upon him of a heavily loaded wheelbarrow, which caused him to twist and sprain his ankle, this being followed by continuing disability consisting of arterio sclerosis, leg ulcers, varicose veins, eczema of the legs and flat- foot, making it impossible to determine clearly how much of such dis- ability was due to the pre-existing condition. It was held that the employer took the employe as he found him and that the employe was entitled to compensation for such disability. Bouda & Spivock V. Heenan, 3 Cal. Ind. Ace. Com. 36. A man sixty-three years of age, after doing some heavy lifting, was indisposed for a week and then was taken ill with paralysis due to a rupture of a ^'^oodgea^U^^th^Tam^j^^eing shown that at the 568 beadbuet's woekmen's compensatioh' law Aggravation of pre-existing condition time of the in jury he was suffering from hardening of the arteries to an extent not greater than is usual in men of his age. It was held that this was an injury arising out of the employment. Jones v. Berkeley Undertaking Co., 1 Cal. Ind. Ace. Com. (Part II), 251. Where an employe who is in impaired physical condition due to overindulgence in intoxicants was knocked off a wharf into the water and contracted pneumonia from the exposure, while waiting for an ambulance, although the injury was not a serious one, it was held that this was an accidental injury arising out of the employment. Smith V. McPhee Stevedoring Co., 1 Cal. Ind. Ace. Com. (Part II), 197. Where an employe having a small cancer in the stomach of a char- acter such as not to cause death for many years, received a heavy blow which inflamed the cancer, increasing its size to such an extent as to obstruct the ducts of the gall bladder and liver, and death fol- lowed one month after the injury, it was held that the accidental blow was the proximate cause of the death. Bose v. City of Los Angeles, 2 Cal. Ind. Ace. Com. 551. Where an employe suffered an injury to his left leg and after the cure of such injury his disability was continued by reason of a former injury to his right leg, which was aggravated by the shbck and con- finement incidental to the injury to the left leg, it was held that the entire disability was proximately caused by the injury to the left leg. Johnson v. Fogarty (1916), 3 Cal. Ind. Ace. Com. 300. Where a fatty tumor under the knee cap was aggravated by reason of a strain, causing prolonged inflammation of the tumor, it was held that this was an injury arising out of employment. Olobe Indemnity Co. and Byron Z. Terry v. West, 2 Cal. Ind. Ace. Com. 665. An employe had been for many years crippled from a disease of the hip joint. Disability had not set in until four months after the acci- dent. Por nine years immediately prior to the accident he had been well and vigorous. The accident was such as might in itself have caused the disability. It was held that the disability was caused by an accident arising out of the employment. McKee v. Southern Electrical Co., 2 Cal. Ind. Ace. Com. 802. A fireman, who was suffering from a slight inflammation causing a redness of the eyelids and making the eyes vulnerable to heat and smoke, had the wn^iXmigmzM^^ M^Kmsii^ by heat and smoke, in ARISING OUT OF " AND IN THE COUESE OF EMPLOYMENT 569 Aggravation of pre-existing condition attending a fire, that he lost the sight of the eye. It was held that this was an accidental injury arising out of the employment. Mc- Orath V. City of San Jose, 2 Cal. Ind. Ace. Com. 391. Where a grocer's clerk, suffering from a floating kidney, undertook to lift a heavy sack of coffee from the floor to the shelf, which was very high, and which lifting resulted in a fracture of the ureter, it was held that this was an accidental injury arising out of the employ- ment. Walters v. Brune, 2 Cal. Ind. Ace. Com. 292. Where an employe received a blow in the region of the stomach and duodenal and was at once affected with severe pains and continuous disability, the disability being caused apparently by a duodenal ulcer, which the physicians contended had pre-existed and was aggravated by the blow, it was held that the injury arose out of the employment. Snyder v. Pacific Tent & Awning Co., 3 Cal. Ind. Ace. Com. 1. An employe in lifting a stone weghihg 250 pounds died from peritonitis, due to perforation of a chronic duodenal ulcer, and it was held that the injury arose out of the employment. Wlnite v. County of Los Angeles, 3 Cal. Ind. Ace. Com. 83, ■ An employer takes an employe as he flnds him and the fact that he has a predisposition to hernia which is aggravated by a strain is not sufficient to bar a claim for compensation. McDougal v. W. J. Bush & Co., 3 Cal. Ind. Ace. Com. 57. Six months after an operation for hernia an employe, who was still weak at the site of the old hernia, developed a new hernia, as the proximate result of a strain undergone in the employment, and it was held that the injury arose out of the employment. Dean v. California Fruit Canners Ass'n, 3 Cal. Ind. Ace. Com. 80. Under the Connecticut Act whatever physical condition may exist in the workman, predisposing him to injury, if the employment is the immediate occasion of the injury, it arises out of the employment. Hartz V. Hartford Faience Co. (1916), 90 Conn. 539; 97 Atl. 1020. Where a claimant suffering from Pott's disease of the spine was injured by lifting a heavy barrel, resulting in complete paralysis of the lower extremities, it was held that this was an injury arising out of the employment. Lynch v. Great Atlantic & Pacific Tea Co., 1 Conn. Comp. Dec. 163. The Massachusetts Act prescribes no standard of fitness to which the employe must conform and compensation tliereiinder is not based Digitized by Microsoft® 570 BEADBUEY*S WORKMEN'S COMPENSATION LAW Aggravation of pre-existing condition on an implied warranty of perfect health or immunity from latent and unknown tendencies to disease. Where, therefore, an employe, after an injury received in the course of his employment, developed paralysis, paresis and insanity, it was held that he was entitled to compensation, for previous to the injury the diseases had been present but latent, and did not impair his ability to work, and were merely made active by the injury. Crowley v. City of Lowell, 223 Mass. 288; 111 IS". E. 786. In the last-mentioned case the court goes very far in holding that the aggravation or lighting up of a pre-existing diseased condition, where there has been an accident, is suificient to warrant the granting of compensation. Among other things, the court said: " The city contends that no causal connection between his injuries and the general condition of paresis rendering the employe insane, and requiring his commitment to an asylum, is shown by the record and therefore the decree should be reversed. McNicol's case, 215 Mass. 497; 102 N". E. 697; 4 K. C. C. A. 522. But the material evi- dence before the committee on arbitration submitted without the in- troduction of further testimony to the Industrial Accident Board upon review, warranted the findings, that the employe had ' a pre- existing constitutional disease known as syphilis" which, being- dormant, left his ability to perform the arduous work for which he was hired unimpaired, and that because of the nature of the acci- dent arising out of and in the course of employment, his nervous system suffered a shock suflBciently severe to aggravate and accelerate this conditioUj until general paralysis or insanity resulted depriving him of all capacity for work in the future. The statute prescribes no standard of fitness to which the employe must conform, and com- pensation is not based on any implied warranty of perfect health or immunity from latent and unknown tendencies to disease, which may develop into positive ailments, if incited to activity through any cause originating in the performance of the work for which he is hired. What the Legislature might have said is one thing, what it has said is quite another thing, and in the application of the statute the cause or partial or total incapacity may spriag from, and be attributable to the injury just as much where developed and danger- ous physical conditions are set in motion producing such result, as where it follows directly from dislocations ; or dismemberments ; or from internal organic changes capable of being exactly located." A foundry helper received a slight burn by reason of the spattering of hot iron. Later he received a second burn in the same place. He was suffering from a varicose condition, which was aggravated by the Digitized by Microsoft® ^^ '' ARISING " OUT OP " AND IN " THE COUESE OF " E.MPLOYMENT 5Y1 Aggravation of pre-existing condition burns, necessitating an operation. It was held that the injury arose out of the employment. Mustaikas v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd. 547. Where by reason of an accidental injury a condition of incipient diabetes was aggravated causing disability, it was held that this was a personal injury arising out of the employment. Gacuzzi v. Em- ployers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 626. Where by reason of a continued strain a condition of arterio sclerosis was aggravated and accelerated resulting in disability, it was held that this was an injury arising out of the employment. Homan V. Frankfort General Ins. Co., 2 Mass. ind. Ace. Bd. 775. Acceleration of previously existing heart disease to a mortal end sooner than otherwise it would have come is an injury arising out of the employment. Brightman v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 765. A woman in a manufacturing establishment was compelled to pull a carpet and in doing so she so aggravated a condition of weak heart that she suffered total incapacity for work. It was held that this was an injury arising out of the employment. In re Madden, 111 N. E. 379 ; 222 Mass. 487. An employe suffering from heart disease was injured by a heavy wheel falling upon him, from which injury he died. The medical testimony was that the shock of the fall of the wheel might have caused death. It was held -that the accident arose out of the employ- ment. Welch V. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 173. An employe who lived on a boat endeavored to save his personal effects when the boat began to sink and by the overexertion aggra- vated a pre-existing heart disease, causing death. It was held that this was an injury arising out of the employment. In re Brightman, 220 Mass. 17; 107 N. E. 527; 8 N. C. C. A. 102; L. K. A. 1916 A, 321n. A man who was suffering from heart disease died suddenly, after carrying heavy pails of water and heavy bags of coal. The medical testimony was to the effect that the extra exertion caused a strain which caused the heart to dilate and brought about the death earlier than it would have been brought about in the ordinary course of the disease. It was held that this was an injury arising out of the em- Digitized by Microsoft® 572 Aggravation of pre-existing condition ployment. In re Fisher, 220 Mass. 581 ; 108 N. E. 361 ; 11 N. 0. 0. A. 177. An employe in endeavoring to remove emery dust which had lodged in his eye lighted up or aggravated trachoma, which had been in ex- istence in a dormant state for some time, but unknown to the employe, resulting in disability for a considerable period. It was held that this was an injury arising out of the employment. Fleming v. Mas- sachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 411. An employe was struck on the ankle with a twelve-pound sledge hammer, which lighted up an inflammatory condition of the ankle necessitating the amputation of the leg. It was held that this was a personal injury arising out of the employment. Oariella v. Ameri- can Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 237. An employe stepped on a bobbin that lay on the floor in the place of her employment, seriously wrenching her left knee. This knee had been slightly injured from another cause several months prfr viously, incapacitating her for work at the time for two days. It was held that the disability from the later injury arose out of the employ- ment. Toy V. Maryland Casualty Co., 2 Mass. Ind. Ace. Bd. 147. A workman while lifting a heavy iron plate suddenly fell over and died shortly afterwards. It was found that he was suffering from some heart trouble, which had been accelerated by the extra strain. It was held that this was an injury arising out of his employment. Winter y. Athinson Frizelle Co. (Hudson Common Pleas, 1914), 37 ]Sr. J". Law J. 195; 11 IST. 0. C. A. 180. In the last-mentioned case the workman had received an injury some time before the one which caused his death, and it was held that this prior injury should be dis- regarded, because, if it was assumed that the workman had heart trouble at the time of the second injury, it did not matter what the cause of the heart trouble was, so long as the second injury accelerated it and caused his death. The court also reviewed a large number of British cases on the subject. Conceding that a deceased workman was suffering from internal cancer, where it was found that there was a rupture of the cancer while he was pushing a post forward through a furrovsdng machine, by pressing his abdomen forcibly against the end of the post, it was held that this was an accidental injury arising out of the employment,, which entitled his dependents to compensation, Voorhees v. Smith Digitized by IVIicrosoft® ARISING " OUT OP '* AND IN " THE COtJiKSE OF '' EMPLOYMENT 5Y3 Aggravation of pre-existing condition , . Schoonmaher Co., 86 N. J. Law 500 ; 92 Atl. 280 ; 7 N. C. C. A. 646. In the last-mentioned case, the court said : " Even if deceased was suffering from internal cancer, it was quite within the province of the court to find that the proximate cause of death was the unusual and forcible pressure on parts weakened by disease, which but for the unusual strain would have held out for a considerable period." The court cited and followed, in principle, the case of Jones v. Public Service Railway Co., 92 Atl. 397. A driver on an ice wagon, while delivering a piece of ice^ was in- jured by reason of the ice tongs slipping, which caused the cake of ice to come back and strike him in the abdomen. The decedent went home and was taken ill and shortly afterward was taken to a hospital where he died four days later. At the hospital he developed delirium tremens and it appeared that he had been a heavy drinker for many years. But the attending physician gave as a remote cause of death that " 300 pounds of ice struck his epigastrina, causing gastric hemorrhage — rigidity in upper abdomen ; " and as the immediate cause of death delirium tremens. It was held that the death was due to an accident which arose out of his employment. Carroll v. Knicherhocher Ice Co., 169 App. Div. 450; 155 Supp. 1. Some time previously, an operation had been performed whereby two ribs were removed. The employe received an accidental injury, which caused pleurisy and the aggravation of the condition of em- pyema, resulting in disability for a considerable period. It was held that this was an accidental injury arising out of the employment. Bahiewicz v. National Brake and Electric Co., Fourth Annual Keport (1915), Wis Ind. Com. 11. An employe was injured by an explosion of gas and shortly there- after developed miliary tuberculosis from which he died. He ap- peared to be in good health prior to the injury. The medical testi- mony was that if the infection existed in a latent condition at the time of the accident that it might have been kindled into an active condition by the injury, by reason of the lowering of the employe's vitality, thus making him more susceptible to the infection. It was held that the finding of the Industrial Commission that the employe's death was due to the injury had evidence to support it and the finding Digitized by Microsoft® 574 bkadbuey's woekmen's compensation law Aggravation of pre-existing condition was affirmed. Heileman Brewing Co. v. Schultz, 161 Wis. 46; 152 N. W. 446. (b) Cases in which compensation denied. A saleswoman de- veloped a fibroid tumor the pain from which was suffered somewhat sooner than it naturally would have been, by reason of her straining to take down heavy clothing, but which pain would have occurred sooner or later, without such straining. It was held that this was not an injury arising out of the employment, as the industry could not be charged with such a disability. Cooh v. Employers' Liability As- surance Corp., 1 Cal. Ind. Aec. Com. (Part II), 420. A chauffeur was suffering from acute gastric ulcer. The medical experts testified that such ulcers often puncture the wall of the stomach. It was held that although the employe suffered a puncture of the jvall of his stomach immediately after exertion, in cranking his employer's automobile, that such injury was not proximately caused by the exertion ; it was only the occasion and not the cause of the in- jury, and compensation was refused. Chenoweth v. Mitchell, 2 Cal. Ind. Ace. Com. 96. Where illness followed a blow upon the stomach, but it appeared that the workman had theretofore suffered from gastritis, it was held that the evidence was insufficient to show that the ulcers of the stomach from which the disability followed was an accidental injury which arose out of the employment. McLean v. Brooks, 2 Cal. Ind. Ace. Com. 971. An employe had long been suffering from Bright's disease of a mild chronic form. He assisted at night in extinguishing a fire on the employer's premises and by reason of his over-exertion in so doing the disease became severe and for the first time caused disability. It was held that such aggravated ailment did not arise out of the em- ployment and compensation was refused. Stenherg v. Oliver Salt Co. (1916), 3 Cal. Ind. Ace. Com. 295. An employe's arm was broken while lifting a weight, which was usual and in the course of his routine work. There was no slip, fall or unusual strain on the employe's part. The medical examination disclosed a pathological systematic condition rendering the bones sus- ceptible to spontaneous fracture during any normal, bodily move- ment. It was held that the accident did not arise out of the employ- Digitized by Microsoft® AND IN THE COURSE OF EMPLOYMENT Aggravation of injury from subsequently iutervening causes ment. Harding v. Los Angeles Can Co. (1916), 3 Cal. Ind. Ace. Com. 371. The emergence of the floating cartilege of the knee is not an injury for which compensation can be awarded unless it comes from a trau- matic injury. Giampolini-Lomhardi Co. v. Raggio (1916), 3 Cal. Ind. Ace. Com. 324. A hod carrier while carrying a hod up an incline slipped and .fell against a building, from the dirt giving way under his feet. He contended that he felt something give way, and it was found, upon examination, that he was suffering from external hemorrhoids. It was held that even though the exertion might have caused the internal hemorrhoids to become external, that this was not an injury arising out of the employment. Truby v. Jackson, 3 Cal. Ind. Ace. Com. 69. An employe suffering from a tubercular condition was injured by being burned on the hand with acid. It was held, on the testimony of a throat specialist, that a condition of tubercular laryngitis was not due to the burn on the hand, and compensation was refused. Unode- shia V. Scovtll Mfg. Co., 1 Conn. Comp. Dec. 32. An employe developed asthma and heart trouble from breathing dust, while engaged in scraping pilasters with a wire brush making the room in which he was engaged in the work very dusty. It was held, on the medical testimony, that the breathing of the dust might have aggravated for a period of a few days pre-existing conditions, but it would not cause the organic changes which had taken place in the claimant's system and therefore the injury did not arise out of the employment. Weiherell v. American Hardware Corporation, 1 Conn. Comp. Dec. 367. Where disability was directly traceable to the pre-existence of rheiamatism, the continuous use of muscles and the getting wet in a storm while the employe was on his way to work, it was held that the condition of the claimant was not due to an injury arising out of the employment. Petersen v. The Sperry & Barnes Co., 1 Conn. Comp. Dec. 370. 3. Aggravation of injury from subsequently intervening causes. (a) Cases in which compensation awarded. Through an accidental injury a hernia was paused which necessitated an operation. The workman was suffering from another old hernia at the time. In Digitized by Microsoft® 5*76 beadbuey's workmen's compensation law Aggravation of injury from subsequently intervening causes order to perform the operation on the new hernia it was necessary to operate on both. By reason of the operation the employe showed signs of heart failure from which he died and it was held that the death was due to an accident arising out of the employment. MutUr, Howey & Co. v. Thomson (1913), Scotch Court of Session, 6 B. W. C. 0. 424. An employe who suffered an injury by reason of a strain was later disabled from sciatica, and as the physicians testified that the later disability might be due to the former injury, an award of compensa- tion was sustained. Southwestern Surety Insurance Co. v. Pillsbury (1916), 1Y2 Cal. Y68; 158 Pac. 762. Where appendicitis followed a heavy blow and after due treatment irritation and disability continued, which an operation showed to be adhesions as the irritating factor, it was held that this was an injury arising out of the employment. Davis v. McDonald & Kahn, 3 Cal. Ind. Ace. Com. 84. An infection from an operation necessarily performed to set a broken bone, is an accidental injury arising out of the employment. Pech V. San Francisco-OaMand Terminal Railways, 1 Cal. Ind. Ace. Com. (Part II), 462. An employe was injured by a fall causing a severe strain to the left ankle. His disability was prolonged by reason of an arterial disease, it being determined at the date of hearing that the applicant's disability was about equally divided between his general condition and the result of the accident. It was held that the applicant was entitled to compensation during the entire continuance of disability resulting from the accident. Dabila v. Brandon & Lawson, 1 Cal. Ind. Ace. Com. (Part II), 239. Where an injury was aggravated by inefficient attention by an unlicensed physician in a case where the employer had had the oppor- tunity of furnishing medical attention, but had failed tb do so, it was held that this was such an injury as entitled the employe to com- pensation. Stockwell V. E. M. Waymire, 1 Cal. Ind. Ace. Com. (Part II), 225 ; 11 K C. C. A. Y60. Disability which is prolonged by reason of the mistaken diagnosis of the physician in charge, will be deemed to be the result of an acci- dental injury arising out of the employment. Mitchell v. Qccidental Forwarding Co., 3D([§»ft'zd(AayMcro@Qffi©363'; 11 N. 0. 0. A. Y61. Aggravation of injury from subsequently intervening causes An industry is liable for all legitimate consequences following an accident, among which consequences affecting the extent of disability is the disability due to an error of judgment or unskillfulness on the part of any attending physician, whether called in by the employer or employe. Salvatore v. New England Casualty Go., 2 Cal. Ind. Ace. Com. 396. Where after the splints were removed from a fractured collar bone the bone came apart at the place where the original frac- ture had been, but there was no new accident, and it appeared from the evidence of a physician that the splints were removed too quickly, it was held that this extension of the disability was merely a con- tinuation of that due to the earlier accident and compensation was awarded accordingly. Stormont v. Bakersfield Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 533. The deceased received an accidental injury which included a laceration of one of his fingers and gangrene set it, necessitating am- putation of the finger. Subsequently amputation of the forearm was required. The second operation resulted in pneumonia caused im- mediately by the effect of the anaesthetic and the surgical shock, and the pneumonia caused the death. It was held that this was an acci- dental injury arising out of the employment. Favero v. Board of Public Library Trustees, The City Council of Richmond, and The City of Richmond, 1 Cal. Ind. Ace. Com. (Part II), 225. Where a lumberman suffered a fracture of the leg and was con- fined to the hospital, thereafter coming down with pneumonia,, and he died as a result thereof, the death being caused by his poor physical condition, it was held that such pneiunonia was the result of the con- finement and inaction due to the fractured leg and that the death was the proximate result of the accident and arose out of the employ- ment, Majeau v. Sierra Nevada Wood and Lumber Co., 2 Cal. Ind. Ace. Com. 443. An employe had fallen and broken both bones in one leg. While in 'the hospital, in getting up from his bed with a pair of crutches, he fell to the floor and broke the other leg. It was held that the second injury arose out of the employment. BlocTc v. Mutual Biscuit Co., 2 Cal. Ind. Ace. Com. 330. An employer failed, after notice, to furnish medical attention. The employe went first to one physician and then to another in un- ceTtainty as to what to (^'. because of this Neglect an infection to a 3Y 578 beadbuey's woekmen's compensation law Aggravation of Injury from subsequently intervening causes wound in the hand eventually required the amputation of the arm at the elbow instead of amputation of the finger." It was held that the employer was liable for the disability resulting from the loss of the arm as well as for the medical expenses. Sams v. Komas cG Dorros, 2 Cal. Ind. Ace. Com. 203. Where an employe being dissatisfied with the medical treatment furnished by the employer secured his own physician, who performed an operation, which the employer contended was unnecessary and prolonged the period of disability, compensation was nevertheless awarded for the full period of disability. Tennant v. Ives, 2 Cal. Ind. Ace. Com. 188. Where a patient was recovering normally from the ■ amputation of the leg, necessitated by an accidental crushing, followed by a septic condition, which healed, and twenty-four days after the operation he suddenly died, it was found that this employe's death was caused by an embolus, resulting from the septic condition, which in turn was the result of the accident, and compensation was awarded. Ahins v. Pacific Light and Power Corporation, 2 Cal. Ind. Ace. Com. 911. An operation for a hernia necessitated a second operation, for a paralysis of the bowels following the first operation, and culminated in death. It was held that the death was caused by an accident aris- ing out of the employment. Hartford Accident and Indemnity Co. V. Josephine Bono, 2 Cal. Ind. Ace. Com, 651. Where after an operation for hernia an employe developed em- bolism, which caused his death, it was held that the death was due to an injury arising out of the employment, where the hernia was orig- inally caused by accidental injury. Moloney v. Waterhury Parrel Foundry and Machine Co., 1 Conn. Comp. Dec. 220. An employe had been discharged from a hospital as cured from the effects of a wound on the head. Thereafter a straw hat which he wore caused blisters on the wound and erysipelas developed from infection to the wound. It was held that a disability caused by the erysipelas was an injury arising out of the employment. Helms v. The Harris Construction Co., 1 Conn. Comp. Dec. 498. An employe suffered an injury which caused him pain and incon- venience, but he still continued to work. Subsequently by reason of a heavy strain the condition caused by the first injury was aggravated and he became disaiaiSff/zel;%a/fe?/fe§Mq)Sit the disability was due to ARISING " OUT OF '^ AND IN " THE COUESE OF " EMPLOYMENT 579 Aggravation of injury from subsequently intervening causes the first injury and compensation was awarded accordingly. Went- worth V. The Chamberlain Co., 1 Conn. Oomp. Dec. 588. In the last-mentioned case the controversy was in reality between two insur- ance companies, as one company was the carrier when the first injury occurred and another company was on the risk when the second injury happened. The failure of an employe to take advantage of emergency treat- ment, which is furnished free by an employer, is not sufficient to bar a claim for injuries, on the ground that the disability did not arise out of the employment. DemsJci v. The Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 191. A claimant is held only to a reasonable degree of diligence in tak- ing steps to see that efforts are made toward effecting a cure. Man- kind in general is careless in matters of this nature and that fact is to be taken into account in determining rights growing out of in- juries requiring treatment. Great diligence is not to be looked for nor expected. Carlson v. Emanuelson, 1 Conn. Comp. Dec. 139. Where a workman received a slight blow on the eye on July 12th, of which he informed the foreman, but refused medical attention, on the ground that the injury was of no importance, and he did not accept medical attention until July 14th, when the eye pained him, and it was found that infection had set in, which eventually resulted in the loss of the eye, it was held that the failure to give notice was not sufficient to bar a claim and compensation was awarded. Costa V. C. W. BlaTceslee & Sons, 1 Conn. Comp. Dec. 457. Where it appeared from the medical testimony that the result of an operation on the eye of an employe would be doubtful, it was held that the employe was not required to consent to such operation as a condition of having compensation continued. Pumpanelli v. The Aberthaw Construction Co., 1 Conn. Comp. Dec. 620. Where a workman was injured to such an extent that he was con- fined to his bed and the immediate cause of death was blood poisoning, which resulted from a bed sore that came in consequence of his con- finement to his bed, it was held that this was such an injury as arose out of the employment. In re Burns, 105 IST. E. 601 ; 218 Mass. 8 ; 5 K C. C. A. 635. A brewery employe slipped and fell, dislocating the clavicle. He was operated upon three days later and died of hypostatic pneumonia Digitized by Microsoft® 580 BEADBUEt's WOEKMBn's COMPENSATlOlSr LAW Aggravation of injury from subsequently intervening causes caused by the weakening of his system by reason of the operation, and it was held that this was an injury arising out of the employment. Cantwell v. Travelers Ins. Co., 3 Mass. Ind. Ace. Bd. 246. Where an employe suilered an injury which caused a fracture of a bone in the foot, which fracture was not discovered by the physician who attended him at first, and by reason of the improper treatment the disability was prolonged, it was held that he was entitled to com- pensation for the entire time of his disability. Hawosz v. Frankfort General Ins. Co., 1 Mass. Ind. Ace. Bd., 189. Where the ether which was administered to an employe for the purpose of performing a surgical operation, made necessary by an accidental injury, caused pneumonia from which he died, it was held that the death was due to an accidental injury arising out of the employment. Raymond v. United States Casualty Co., 1 Mass. Ind. Ace. M- 277. A furniture polisher received an injury to his ankle and several months later became incapacitated for work, his physician diagnosing the case as tubercular meningitis due to some organism. In the opinion of the medical experts the tubercular condition was due to traumatism as the predisposing cause. It was held that the injury arose out of the employment. Black v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 319. Where an employe suffered a traumatic cataract from an accidental injury, which sympathetically affected the other eye, causing com- plete incapacity for work, it was held that this was an injury arising out of the employment, which entitled the employe to compensation for an indeterminate period. Stachuse v. Fidelity and Casualty Co., 2 Mass. Ind. Ace. Bd. 324. By reason of an accidental injury an employe became partially paralyzed and for a year was totally incapacitated for work and then contracted pneumonia and died in consequence thereof. It was held, on the medical testimony, that because of the exhausted vitality and reduced power to resist the attack of pneumonia, that there was a causal connection between the death and the injury and that the death was caused by a personal injury arising out of the employment. Merritt v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 635. An employe was injured by a piece of steel hitting him In the eye. The eye became ^"^^cted b^^^^inf^c^ioiw^ease, apparently through EMPLOYMENT 581 Aggravation of injury from subsequently intervening causes the efforts of other employes to remove the piece of steel, by reason of which 90 per cent, of vision was lost, which could be corrected so that only 50 per cent, of vision would be lost by the use of glasses, and it was held that this was an injury arising out of the employment and compensation should be awarded at the rate of 50 per cent, of total permanent disability. Cline v. Studehaher Corporation, Mich. ; 155 K W. 519. But see McCoy v. Michigan Screw Co., 180 Mich. 454; 147 K W. 572; 5 N. 0. C. A. 455; L. K. A. (1916) A, 323n. An employe's arm was broken and he was treated at a hospital. The fracture properly united, but there developed an abscess upon the fleshy part of the thumb which resulted in ankylosis of the thumb, making it permanently useless. It was held that the permanent injury to the thumb was one arising by accident in the course of the employment. Newcomb v. Aliertson, 85 N. J. Law 435; 89 Atl. 928 ; 4 N. C. C. A. 783. An employe had fallen against an axe severing an artery. Shortly after the accident while going to the office of his physician he fell on the ice and reopened the cut, which became infected, and blood poisoning supervened, by reason of which he lost the use of his left hand. It was held that the subsequent injury arose out of the em- ployment. Lindsay v. Gallagher (1916), 9 K Y. St. Dep. Eep. 275. An employe suffered a fracture of his leg. When recovering from the injury the physician ordered him to take exercises to prevent ankylosis of the knee joint and while going through these exercises he fell and sustained another fracture, which further disabled him, and compensation was awarded. Pusch v. Sawmiller (1916), 8 ]Sr. T. St. Dep. Eep. 442. An employe suffered from an injury resulting in a hernia on the right side. At the hospital he was operated upon, but in view of his condition only an old hernia on the left side was treated. Later another operation on the right hernia was performed. When re- covering from the results of the second operation he contracted pneu- monia and died, and it was held that the death was due to an injury which arose out of the employment. Moore v. William HarJcin & Sons, 4 'N. Y. St. Dep. Kep. 383. An employe had suffered a dislocation to his shoulder. After he returned to work and after he had finished his work and was putting Digitized by Microsoft® 682 Aggravation of Injury from subsequently intervening causes on his overcoat his shoulder was thrown out of place again, and it was held that the subsequent injury arose out of the employment. Hughes v. Olmstead & Tuttle Co., Mass. Ind. Ace. Bd., No. 1,539, May 29, 1915 ; 12 'N. C. C. A. 664. See to the same effect In re Matermach, Ohio Ind. Com. No. 103,723 (1915); 12 N. 0. C. A. 664. (b) Case in which compensation refused or reduced. Where the real cause of disability was the negligence of the surgeon who set a broken arm it was held that compensation could not be awarded, as the injury of which complaint was xaade did not arise out of the employment. Rocca v. Stanley Jones & Co. (1914), 7 B. W. C. 0. 101. The last-mentioned case was decided by the Court of Appeal of England. The court cited and followed the case of Humber Steam Towing Co. v. Barclay (1911), 5 B. W. 0. C. 142, and followed and approved the following language from the last-mentioned case : " In this case we have been asked by Mr. Owen to say not only that the employer is liable, in the words of the Act, for personal injury by accident arising out of and in the course of the employment, but that he is an insurer of the medical man, the chemist, ,and the nurse who attended the man, and is liable, in the event of any of them being guilty of gross negligence, which gross negligence might be found as a fact to be the real cause of the disability at the time the matter came before the County Court judge. The question before us to-day is really a simple one. The man met with an accident, which re- sulted in his arm being badly broken. He went to a bonesetter, who made what was called a ' vicious union,' the bones being badly united. Nothing was done by the bonesetter to put this right at the time when it would have been easy to rectify. That went on until a much later stage, with the result that the man has now got an arm which cannot turn. The employers after a time sought to reduce or terminate the payments to the man on the ground that the present condition of the man was not due to the original accident, but was substantially due to the want of skill and negligence of the bonesetter. It was said that, in ordinary circumstances, if the bone had been properly set, in three months he would have been quite right. That point was distinctly raised before the judge, and it is evident that he did not make any finding with regard to it, which was the only real issue in the case, namely, whether or not the man's present condition is due Digitized by Microsoft® ARISING OUT OF AST) IN Aggravation of injury from subsequently intervening causes to tlie original accident or to the negligence of the bonesetter, against whom the man brought an action and recovered damages." A weaver got dust in his eye and rubbed the eye. An abrasion resulted in which a microbe subsequently entered causing incapacity. There was no evidence as to when the microbe entered. It was held that there was no evidence showing that the accident arose out of the employment. Bellamy v. /. Humphries & Sons (1913), 6 B. W. C. 0. 53. A workman suffered an injury and was incapacitated for a while and then returned to work, at which time compensation was discon- tinued. About three months later he again became incapacitated and it was discovered that he had an aortic aneurism, which, on the testi- mony of the doctors, it was found did not result from the first injury, but from the fact that he was working beyond his physical powers after he returned to work and was due to the continued strain. It was held that the disability was not due to an accidental injury aris- ing out of the employment. Paton v. William Dixon (1913), Scotch Court of Session, 6 B. W. C. C. 882. An employe suffered a broken arm while cranking an automobile. The bone was set and it knitted properly, but subsequently, from some cause unexplained by the employe, the injury was aggravated so that it became necessary to break and reset the bone, thereby con- siderably increasing the period of disability. It was held that, in the absence of evidence showing that the second injury was the proxi- mate and only result of the first one, without any independent inter- vening cause, that compensation could be awarded only during the period of disability caused by the first injury. Pacific Coast Casualty Co. v. Pillshury, 153 Pac. 24. A recurrence without accompanying trauma of the displacement of a semilunar cartilege of the knee, which has been cured by a radical operation and which is, therefore, likely to happen without trauma, and while moving about ordinarily, as in everyday life, does not arise out of the employment. Oiampolini-Lombardi Co. v. Baggio (1916), 3 Cal. Ind. Ace. Com. 324. A recurrence of the displacement of a semilunar.cartilege of the knee, without accompanying trauma, which might have 'happened at any time in the employment or out of it, and without provocation, other than the oT:\gLnBDi^M^^MiSirAB0St®ot arise out of the em- 584 Aggravation of injury from subsequently intervening causes ployment. Salyer v. Sperry Flour Co. (1916), 3 Cal. Ind. Ace. Com. 321. Where there is serious subordination and drunkenness, persisted in by an injured employe during his treatment for his injuries, the compensation will be suspended in so far as the disability is con- tinued or aggravated by scuh intoxication or unreasonable refusal to abide by. the medical treatment. Hill v. OvMrdian Casualty and Guaranty Co., 1 Cal. Ind. Ace. Com. (Part II), 415. Where a disability is extended by a subsequent accident from an independent cause, not connected with the employment, compensa- tion will be awarded only for the disability caused by the original accident. Woodruff v. B. P. Peterson, 1 Cal, Ind. Ace. Com. (Part II), 516; 12 N. C. C. A. 190. In the last-mentioned ■ case the employe fractured his arm and before the fracture healed he broke it again in the same place from an accident which did not arise out of the employment at all and compensation was refused for the dis- ability caused by the second break. A plaster, sixty-eight years of age, received a fall, resulting in the fracture of some ribs and bruises and contusions. After these in- juries had healed he claimed to be disabled, but the expert medical testimony was that it was : " An example of a minor injury that is the last event in a hitherto useful life. This last tap makes him an old man. He will certainly never be the man he was again. I do not think the injury can be blamed for his present condition. His disability now is that of age, not injury." It was held that as the disability was due to the advanced age and not to the accident com- pensation should be denied. Udell v. /. ^Vagner, Peterson & Wilson, 2 Cal. Ind. Ace. Com. 139 ; 11 K c. C. A. 58. Where bandages soaked in turpentine applied to a wound caught fire when the employe was lighting his pipe, it was held that the burns received from this injury were not the result of an accident arising out of the employment. Isaacson v. L. E. White Lumber Co., 2 Cal. Ind. Ace. Com. 815. Where an employe sustained a fracture of the patella of the left knee and while walking on the sidewalk, on his way from the hospital, after being discharged as cured, he fell and broke the patella again, it was held that the injury did not arise out of the employment. Blusslato V. Ehrhart, Bi^MeMi^ MimD&l^ 621. EMPLOYMENT 585 Aggravation of injuiy from subsequently intervening causes A subsequent illness caused by overeating, indigestion and un- wonted inactivity following injury, cannot be connected with such injury by the law of cause and effect, and compensation cannot be awarded for disability resulting therefrom. Simpson v. Paraffins Paint Co. and Employers' Liability Assurance Co., 1 Cal. Ind. Ace. Com. (Part II), 76. An employe fell from a ladder and injured his arm, but instead of applying to his employer for medical treatment or consulting a phy- sician himself he applied liniment to his injured arm and rested from his labors, expecting every day that the pain would cease. It was held that he should be allowed compensation only for the period he would have been disabled had he secured proper medical attention or allowed his employer to furnish the same. Brown v. Corona Citrus Association, 2 Cal. Ind. Ace. Com. 134. In the last-men- tioned case the Commission announced that it would apply to em- ployes who neglected or refused to have themselves properly cared for, the same principles regarding such neglect that it applied to employers who neglect or refuse to furnish requisite treatment to their injured workmen. An employe having been previously crippled by a breaking of the hip bone, five years before, slipped down one step of a stairway, and an operation clearly showed that the former fracture had mended only by a fibrous union, which was now separated. It was held that the second injury, if any, was but a continuation of the former injury sustained before the employe entered the employment and conpensa- tion was refused. Tarr v. Stockton State Hospital, 2 Cal. Ind. Ace. Com. 565. Where an employe failed to permit an operation to be performed for hernia compensation was refused, except for the period which he would have been disabled had he consented that the operation be performed. Sczerhowicz v. City of New Britain, 1 Conn. Comp. Dec. 671. A mechanical engineer sustained a partial loss of the use of fingers. It was shovni that the condition causing the disability could be cured by an operation, which was not of a dangerous character. It was held that the compensation should be discontinued until the employe submitted to the operation. Slater v. New Britain Trap Boch Co., 1 Conn. Comp. Dec. 501. Digitized by Microsoft® 586 Aggravation of injury from subsequently intervening causes Where an employe was suffering from a hernia an award was made conditionally upon his consenting to undergo an operation to effect a cure and if he refused to undergo the operation then the compensa- tion should he discontinued. Aquilano v. Lanibo, 1 Conn. Oomp. Dec. 145. Where after undergoing an operation for hernia an employe de- veloped malignant scarlet fever from which he died, it was held, on the medical testimony, that the scarlet fever had no causal connection with the injury or the operation and compensation was refused. Corcoran v. Parrel Foundry & Machine Co., 1 Conn. Comp. Dec. 42. A water blister was caused on a workman's hand from using a drill. Subsequently and while at home the workman accidentally punctured the blister from which blood poisoning developed. It was held that the disability resulting from the blood poisoning was not the result of an injury arising out of the employment. Palmeri v. Greist Mfg. Co., 1 Conn. Comp. Dee. 669. Where an extended period of incapacity was due to the refusal of the employe to follow the instructions of the physician, it was held that compensation should be refused for such extended period. Sehestini v. Fred T. Ley & Co., Inc., 1 Conn. Comp. Dec. 569. Where the disabling effects of an injury are increased or prolonged by incompetent or negligent surgical treatment, even where the em- ployer is responsible therefor, compensation cannot be awarded for such disability. Buth v. Witherspoon-Englar Co. (1916), 98 Kans. 179 ; 157 Pac. 403. An employe was operating a lathe when several small pieces of steel from the machine on which he was working lodged in his eye. This resulted in an irritation which caused him to rub his eye. At the time of this happening the employe was being treated for an infectious disease. The physician who removed the pieces of steel discovered that the eye had become infected from this disease. Sub- sequently the employe lost the sight of the eye because of the infection. It was held that this was not an injury arising out of or in the course of the employment. McCoy v. Michigan Screw Co., 180 Mich. 454 ; 147 ]Sr. W. 572 ; 5 ISr. C. 0. A. 455 ; L. E. A. (1916) A, 323n. But see Cline v. Studebaher Corp., Mich. ; 155 N. W. 519. Where an employe failed to follow the directions of a physician as to the treatment oC«S^/lfl4y?y,/V&efiS«gi|ggtion was allowed for such 587 Quarrels between workmen time as it was estimated the workman would, have been incapacitated if he had followed such directions. Reiner v. Morris Plains State Hospital (Morris Common Pleas, 1914), 37 N. J. Law J. 179. Where by reason of an accidental injury it appeared that an in- fection had been introduced under the skin, but that it remained quiescent until the employe, by participating in a boxing bout, so aggravated the injury as to cause the germs to become active, with resulting disability and serious injury, it was held that the injury did not arise out of the employment. Kill v. Planhington Packing Co., Third Annual Report (1914), Wis. Ind. Com. 83. Where continued disability is the result of the refusal of the em- ploye to submit to a minor operation "which is simple, safe and certain and which would cause comparatively little pain and suffering, the continuing disability is not due to an injury arising out of the em- ployment. Lesh V. Illinois Steel Co., 163 Wis. 124 ; 157 W. W. 539. ARTICLE F— ASSAULTS 1. Personal altercation. An assault following a personal altercation in no way connected with the employe's duties does not constitute an accidental injury arising out of employment. Lane v. Sacramento Laundry, 2 Oal. Ind. Ace. Com. 785. 2. Quarrels between workmen. (a) Cases in which compensation denied. One employe 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 in:jured him so badly that he lost the sight of the eye. Com- pensation 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 maliciously throvm by another workman at a third employe, and it was held that the accident did not arise out of the employment. 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 throvm at him by another boy, and it was held that the accident dii^*^a^it^ Mf ??°&^ employment. William 588 bradbuey's woekmen's compbh-sation- law Quarrels between workmen Baird Co. v. Burley (1908), 45 Scotch L. E. 416; 1 B. W. C. C. 7. "Where one of several boys, picking stones out of coal, maliciously threw a stone at another boy and so injured him that his eye had to be removed, it was held that the accident did not arise out of the employment. Clayton v. Hardwick Colliery Co. (1914), 7 B. W. .0. 0. 643 ; 11 K C. C. A. 236 ; 12 K C. 0. A. 791. Where a teamster, whose mules had broken the tongue of his wagon and put him in a frenzy of anger, unexpectedly attacked the foreman, who was standing near, for not having rendered certain assistance which he thought would have prevented it, it was held that such unprovoked assault did not constitute an injury arising out of the employment, there having been no instruction given by the foreman or attempt to discharge or discipline the teamster. Petersen v. Valley Pipe Line Co., 2 Cal. Ind. Ace. Com. 580. Where an assault was committed by former fellow employes by reason of a personal animosity it was held that the injury did not arise out of the employment. Devanzo v. Jarvis, 1 Conn. Comp. Dec. 435 ; aff'd by Superior Court, Id. 440. A carpenter and an- other man working in a barroom got into a private quarrel while doing their respective work, the quarrel culminating when the bar- keeper laid a partly eaten sandwich on the bar and the other man threw it into the garbage pail. Upon the request of the barkeeper that the other man get him another sandwich the quarrel culminated in a personal assault. It was held that the resulting injuries did not arise out of the employment. Loesser v. The East Shore Amuse- ment Co., 1 Conn. Comp. Dec. 449. An employe while intoxicated and in a quarrelsome mood entered into an altercation with another employe and was seriously injured and it was held that the injury did not arise out of the employment. Ross v. Aberthaw Construc- tion Co., 1 Conn. Comp. Dec. 533. An injury resulting from an assault following a personal quarrel between employes does not arise out of the employment. Gorman v. Fidelity & Casualty Co. of New YorTc, 1 Mass. Ind. Ace. Bd. 1. Where an employe received injuries which caused his death from fall- ing in a machine, during a quarrel between employes, which was pre- cipitated by the employe who was killed, it was held that the injury did not arise out of the employment. Malloy v. Fidelity and Casualty Co., 2 Mass. Ind. Ace. Bd. 401. An employe met a boy fourteen or iKISIWG " OUT OF " AND IN " THE COTTKSB OF " EMPLOYMENT 589 Quarrels between workmen fifteen years of age on a crowded stairway and in pushing the boy out of the way caused disability to the boy. It was held that the injury did not arise out of the employment. Tiemey v. Houghton & Button Co., Mass. Ind. Ace. Bd., No. 1,Y64, May 27, 1915; 11 N". C. C. A. 236. An assault by a fellow workman, whether in anger or in play, is not an injury which arises out of the employment. Pierce v. Boyir- Van Kuran Lumber & Coal Co., 99 Neb. 321 ; 156 N. W. 509. An injury received in an assault upon an employe who is the aggressor in a fight with another employe does not arise out of the employment. In re Lutyt Ohio Ind. Com., No. 95,220, Oct. 5, 1915; 11 N. C. C. A. 239; Pease v. Employers' Liability Assurance Corp., Mass. Ind. Ace. Bd., No. 2,202, Dec. 8, 1915; 11 N. C. C. A. 239; In re Chaney, Ohio Ind. Com., No. 118,908, Oct. 29, 1915; 11 N. 0. C. A. 242. Where two employes get into a personal, alter- cation and a fight results, an injury received in such fight does not arise out of the employment. In re Krupyak, Ohio Ind. Com., No. 95,747, July 8, 1915; 11 N. C. C. A. 237. Where one employe was murdered by another by reason of ill-will, which had been of gradual growth between these two employes, it was held that the injury did not arise out of the employment, even though the ill-will grew out of their intercourse in their employment and over the work which they had to do. Arnold v. Holeproof Hosiery Co., Fourth Annual Eeport (1915), Wis. Ind. Com. 32. (b) Cases in which compensation awarded. A newspaper re- porter was directed by his employer to get a first copy of the news- paper off the press to see if the makeup was correct. He was forcibly resisted by the pressman, the reporter repeatedly and properly at- tempting to do as he was instructed. When about to report the matter to his superior the reporter was unexpectedly and without other provocation assaulted. It was held that this was an accidental injiiry arising out of the employment. Brown, Jr. v. Berkeley Daily Gazette, 2 Cal. Ind. Ace. Com. 841. Two workmen had an altercation in which the one who finally committed the assault was the aggressor and the employer observing it told them they would both be discharged unless they desisted. A little later the workman who had originally been the aggressor ap- proached from behind lS^^«^ ^MSfiBfQlSf struck him on the head 590 BEADBUEY*S WOEKMEN's COMPENSATION txW Quarrels between workmen with such force that he subsequently died. The workmaii who was killed had not been fooling or skylarking and the other workman was entirely the aggressor. It was held under such circumstances that the accident arose out of the employment. McNeil v. Mountain Ice Co. (Morris Common Pleas, 1915), 38 K J. Law J. 109; 11 N. 0. C. A. 238. A driver told a fellow workman in a stable that he was using too much water on the horses, when such workman intentionally sprinkled some water on the driver, who was the claimant. The claimant, a moment later, spoke to the fellow workman, who slapped the claim- ant on the shoulder and as the claimant turned around a finger of the fellow workman's struck the claimant in the eye causing injuries by which he lost the sight of the eye. It was held that there was evidence sufficient to sutsain a finding that the injury arose out of the employment. Matter of Heitz v. Ruppert, 218 E". T. 148; 112 N". E. 750; aif'g 171 App. Div. 961; 155 Supp. 1122; reargument denied 218 IST. Y. 702; 113 N. E. 1057. Employe A was passing a place where employe B was at work when a piece of work upon which employe B was working accidentally struck employe A. Employe A became angry over the incident and kicked B, who in turn shoved A, who fell against the corner of a scrap box, thereby fracturing two ribs and eventually resulting in the death of A. It was held that the injury arose out of the employ- ment. Oriffin V. Boberson & Son (1916), 9 IsT. Y. St. Dep. Eep. 303. An unprovoked assault by a fellow employe is an injury arising out of the employment. In re Graham, Ohio Ind. Com., ISTo. 99,303, Nov. 4, 1915; 11 N. C. C. A. 237. An employe while engaged in performing work he was employed to perform was assaulted and killed by a fellow employe and it was held that the injury resulting in the death was sustained in the course of the employment. In re Clarh, 1 Bull. Ohio Ind. Com. 125. In the last-mentioned case it was pointed out by the Commission that the employe who was killed had been attacked by the other employe and in defending himself got into a fight which resulted in his death. A stenographer was feloniously shot and killed by a jealous suitor who was a fellow employe while she was taking shorthand notes at the dictation of \ieS>iS^p^by. M;I/60«Qi%eld that she was killed in 591 Altercations between workmen and foremen or others in autliority the course of her employment. In re Schwenlein, 1 Bull. Ohio Ind. Com. 136. A discharged workman attacked other workmen on a logging train and injured and killed several workmen, including the claimant's husband, and it was held that this was an accidental injury arising out of the employment. Stertz v. Industrial Insurance Commis- sion (1916), 91 Wash. 588; 158 Pac. 256. 3. Maintaining discipline. An assistant master of an industrial school incurred the enmity of some of the boys in his efforts to maintain discipline. He was as- saulted by them in pursuance of a prearranged plan and received injuries from which he died the same day. It was held that the death was due to an accident arising out of the employment. Board of Management, Trim Joint District School v. Kelly (1914), 7 B. W. 0. C. 274. Where the night watchman of an industrial school was set upon and cruelly beaten by three of the inmates of the institution, in an effort to disable the watchman so that those who committed the assault could escape, it was held that this was an accidental injury arising out of the employment. Emmert v. Trustees of the Preston School of Industry, 1 Cal. Ind. Ace. Com. (Part II), 17. 4. Altercations between workmen and foremen or others in authority. A firm of furniture movers employed a foreman whose duty it was to engage men for odd jobs and to rent out vans to men who did their own work and paid a specific amount to the men. A person who had hired such a van for 6 o'clock on the day following the hiring did not come for the van until 8.30 o'clock, when all of the vans had gone out. He was exasperated and returned to the place at 3.30 that afternoon and assaulted the foreman and injured him to such an extent that he died two days later. It was held that the accident arose out of the employment. Weelees v. Stead & Co. (1914), 7 B. W. C. 0. 398 ; 6 K C. C. A. 1010. An employe who, without negligence or misconduct on his part, is struck by his foreman in a fit of anger, and has his arm broken, is injured in the course of his employment. Be Cornelius Flem- Digitized by Microsoft® 592 beadbtjey's woekmen's compensation law Altercations between workmen and foremen or others in autliority mings. 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, stating 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 injured 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. Be 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 in- fected. It was held that no service of the master was being per- formed, and it might be said that, for the time being, the relation of master and servant had been severed; that the claimant had got out of the scope of his employment in taking part in the fight and he assumed the risks incidental thereto, and compensation was denied. Be 0. M. Armstead, Op. Sol. Dep. 0. & L., p. 240. A foreman of a railroad section gang attempted to take a shovel from a Greek workman because of his inability to properly perforni the work. In the altercation which followed the foreman was in- jured. It was held that this was an accidental injury arising out of the employment. Western Indemnity Co. v. Pillsbury, 170 Cal. 686; 151 Pac. 398; 10 K 0. 0. A. 1 ; affg Budder v. Ocean Shore B. B. Co., 1 Cal. Ind. Ace. Com. (Part II), 209. An employe, after drinking to a considerable extent of intoxicat- ing liquors, became quarrelsome and an altercation occurred between him and an officer of the employer, during which the employe was injured, and it was held that the injury did not arise out of the employment. Cooper v. The New Haven Bigging Co., 1 Conn. Comp. Dec. 157. An Injury from S)igiim.&9i:^mi^^@^y7 workmen who had been AEISING " OUT OF " AND IN " THE COURSE OF " EMPLOYMENT 593 Maintaining order on employer's cars or premises discharged was held to be an injury arising out of the employment for which compensation was awarded under the New York Act. Hartnet v. Thomas J. Steen Building Co., 2 N. Y. St. Dep. Kep. 492 ; 11 N. C. C. A. 238. Injuries from an assault by a workman on a foreman by reason of the foreman having reprimanded the workman for not doing his work properly were held to arise out of the employment. Yume v. Knickerbocker Portland Cement Co., 3 N. Y. St. Dep. Kep. 353; 11 K C. C. A. 244. Where a foreman was assaulted by a fellow employe after repri- manding the employe, as it was the duty of the foreman to do, it was held that the resulting injury arose out of the employment. In re Griffin, Ohio Ind. Com., No. 100,558, Sept. 27, 1915; 11 N. C. C. A. 243 ; In re Spellman, Ohio Ind. Com., No. 33,794, Aug. 9, 1915 ; 11 N. C. C. A. 243. A man employed as foreman, while in the discharge of the duties he was required to perform, was shot by an employe whom he had discharged, and it was held that the injury was sustained in the course of his employment. In re Roll, 1 Bull. Ohio Ind. Com. 63. Where an employe got into a fight with a foreman who had dis- charged him, but it did not clearly appear which was the aggressor, compensation was refused. In re Burt, Ohio Ind. Com., No. 82,519, July 6, 1915; 11 N. C. C. A. 244. 5. Felonious assault by employer. 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 compensation 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 possible straining of language be called an accident arising out of and in the course of the employment." 6. Maintaining order on employer's cars or premises. / An intoxicated man entered a hotel and applied for food and a room and was told by the manager that the dining room was closed and there were no vacant rooms. To this the applicant for food and „_ Digitized by Microsoft® 594 beadbuet's woekmbn's compensation law Ejecting trespassers shelter uttered a vile epithet, whereupon the manager struck him in the face and ordered him to leave the hotel, which he did. In striking the man the manager broke a bone in one of his fingers. It was held that the manager in striking the man for using abusive epithets to him was not acting within the line of his duty as he was only required to use such force as was necessary to eject the intruder and compensation was refused. Weston v. Crown Columbia Paper Co., 1 Cal. Ind. Ace. Com. (Part I), 172; 12 N. 0. C. A.^900. Where a bartender knocked down a customer, under the provoca- tion of verbal abuse, and in so doing broke a bone of his own hand, it was held that the accident did not arise out of the employment. Bisotti V. Behlow Estate Co., 2 Cal. Ind. Ace. Com. 912. Where a bartender, part of whose duties it was to prevent a dis- turbance, was forced to eject an abusive and disturbing customer, who shortly thereafter returned and shot the bartender, and the dis- turbance was entirely on the part of the customer, it was held that the injury arose out of the employment. Funh v. CovauU (1916), 3 Cal. Ind. Ace. Com. 330. A street car conductor injured by the assault of a disorderly pas- senger while the conductor is attempting to compel the passenger to obey the company's rules, is entitled to compensation, as the injury arises out of the employment. Ruling of Washington Industrial Commission, First Annual Eeport, p. 476. 7. Ejecting trespassers. Where a mill superintendent, on ordering out a trespasser, was shot and killed by him, it being a part of his general duty to order trespassers from the premises, it was held that the injury arose out of the employment. In re Reithel, 222 ]\Iass. 163 ; 109 JST. E. 951 ; 11 N". C. C. A. 235-254; L. K. A. (1916) A, 304. A foreman carpenter was instructed by his employer not to allow other persons to place building material on the land near where the building operations were going on belonging to persons other than the foreman's employer. Upon this being attempted the foreman drove the parties away and they returning the next day an alterca- tion ensued which attracted the attention of the employer who then took charge of the controversy. A fight ensued and the foreman in endeavoring to assist i^'^tm^hydVlimmbe^Ted by being struck by a AEISING OUT OB" AND IN " THE COUESE OE EMPLOYMENT 505 Assaults by strangers in course of employment piece of iron thrown by one of the attacking party. It was held that the injury did not arise out of the employment, as the employer having taken charge of the controversy the foreman's act amounted to an unsolicited and voluntary service. Clarh v. Clark, Mich. ; 155 ]Sr. W. 50Y; 11 K 0. C. A. 240. An engineer in a brewing plant directed that a man not employed in the brewery be required to depart from the premises. The in- truder heard the remark and a quarrel followed. The employe attacked the intruder with a wrench whereupon the intruder knocked down the employe and in the fall his leg was broken resulting in delirium tremens from which he died. It was held that this was not an accidental injury arising out of the employment, but was occasioned by the willful intention of the employe to injure the intruder and compensation was refused. Ludwig v. M. Oroh's Sons (1916), 8 JSr. Y. St. Dep. Kep. 426. 8. Assault by irate customer of employer. Where, after a dispute over an unpaid bill, an irate customer of the employer assaulted the employe without provocation, it was held that this was a personal injury arising out of the employment. O'Connor v. London Guarantee and Accident Co., 2 Mass. Ind. Ace. Bd. 387; UK C. C. A. 251. Where the secretary and office manager of a company was shot by a customer who had been sued by the company to collect an unpaid account, the assault being entirely unexpected and unprovoked, it was held that this was an accident which arose out of the employ- ment. Craycroft v. Craycroft-Eerrold Brick Co., 2 Cal. Ind. Ace. Com. 633, 9. Assaults by strangers in course of employment. An injury to an engine driver in being hit by a stone throvra Dy boys from an overhead bridge is an accident arising out of the em- ployment. Challis V. London & South Western By. Co. (1905), 7 W. C. C. 23. A carpenter was killed by the fall of a bar of metal 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 the em- ployment. Bryant v. Fissell, 84 N. J. Law 72 ; 86 Atl. 458 ; 3 N. 0. C. A. 585. Digitized by Microsoft® 596 Strikebreakers assaulted 10. Assaults by strangers in no way connected with employment. Where a customer in a hotel went into the kitchen, where he had no biisiness 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, A workman engaged in a mill yard was struck on the back by the lid of a soap barrel, which it was found must have been deliberately thrown out of one of the upper windows and could not accidentally have fallen from it. There was no evidence to show by whom or for what purpose the lid had been thrown. It was held there was no evidence that the accident arose out of the enployment. Bateman V. Albion Combing Co. (1914), 7 B. W, C. C. 47. Where a personal altercation between a person, not a customer, and a clerk, resulted in the clerk becoming the aggressor and the clerk received injuries from which he died, it was held that the injuries to the clerk did not arise out of the employment. Treadwell V. Marks, 3 Cal. Ind. Ace. Com. 3. A driver of a beer wagon left the wagon to attack another driver with whom he got into an altercation and the latter driver shot and killed him. It was held that the injury did not arise out of the employment. In re Chaney, Ohio Ind. Com., ~So. 118,908, Oct. 29, 1915; 12¥. C. C. A. 901. 11. Strikebreakers assaulted. Strikebreakers who are employed during a strike, and who are assaulted by striking workmen and injured are not entitled to com- pensation, as this is not an accident within the meaning of the Com- pensation Act, nor does the injury arise out of the employment. Murray v. Denholm & Co. (1911), 48 Sc. L. E. 896; 5 B. W. C. 0. 496. In the last-mentioned case it was said that' the act of assault- ing 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 employers agreed to com- pensate him for any injury he might receive from the strikers. On going home to lunch he was assaulted, inji3:red and incapacitated by the strikers. FponTnakmg a claim'for compensation it was held ARISING " OUT OF " AND IN " THE COUKSE OF " EMPLOYMENT 597 , Attacks by intoxicated persons that although the agreement gave him a good cause of action at com- mon law, it did not enlarge his rights under the Compensation Act so as to cover the time after he left ofP vsrork, and that therefore the accident did not arise out of the employment. Poulton v. Kelsall (1912), 5 E. W. C. C. 318. 12. Attacks by intoxicated persons. A driver of a horse and cart told a drunken man to leave the horse alone and was attacked by the drunken man and received injuries from which he died. It was held that the accident did not arise out of the employment. Mitchinson v. Day Brothers (1913), 6 B. W. C. C. 190. • An ironmoulder's helper, while working in a stooping position, in close proximity to two boxes of ^noulten metal, was struck by an intoxicated stranger, and in consequence of the blow lost his balance and falling between the boxes sustained injuries by bruising and burning. It was held that the accident arose out of the employment. Shaw {Glasgow) v. Macfarlane (1914), 8 B'. W. C. 0. 382. Where a former employe who was intoxicated accidentally or pur- posely threw a knife so that it cut a foreman, without provocation, it was held that the evidence was insufficient to show that the acci- dent arose out of the employment. Ralm v. Marshall, 2 Cal. Ind. Ace. Com. 579. An assault causing death by a fellow workman who was in " an intoxicated frenzy of passion" was held to be an accident arising out of the employment, where it appeared that such fellow workman 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 superintendent of the employer, who knowingly permitted such condition to continue during the day on which the fatal assault was committed. In re Employers' Liability Assur. Corporation (McNicol) v. Patterson ^¥ilde & Co., 102 N. E. 697 ; 215 Mass. 497 ; L. K. A. 1916 A, 306n ; 4 JST. C. C. A. 522. The court distinguished a number of other cases where assaults were held to be not accidents arising out of the em- ployment, especially those cases where the assaults were committed by strangers. ^-i- v- w », n/i- nrs ^ A bartender was strutty a |»SfWb7 a drunken customer 593 beadbuey's woekmbn^s compensation law Robbery of the saloon, but it was found that the glass was not thrown by reason of any personal altercation between the bartender and the customer and it was held that the accident arose out of the employment. State ex rel. Anseth v. District Ct. of Koochiching County (1916), Minn. ; 158 IST. W. 713. Where an intoxicated workman was the aggressor in an altercation in which the employer hit the workman on the head with a shovel it was held that the injury could not be said to have arisen out of the employment. Gregory v. Chapman (Morris Common Pleas, 1915), 38 ISr. J. Law J. 363. An employe was shot and killed by a discharged employe, who was intoxicated at the time, and it was held that the injury did not arise out of the employment. Cowen v. Cowen's New Shirt Laundry, Inc. (1916), 8 K Y. St. Dep. Eep. 48-1. 13. Assaults by insane persons. A night watchman was shot and'killed by a fellow watchman while the latter was temporarily insane, but neither the employer nor any other person was previously aware of the insanity. It was held that the accident did not arise out of the employment. Allyn v. Fresno Brewing Co., 2 Oal. Ind. Ace. Com. 782. 14. Murder of chauffeur on hired car. A chauffeur on a car rented for hire was found murdered several days after having started out with a party, the circumstances tending to show that he had been murdered by the passengers for some un- known reason, but not that of robbery. It was held that the evidence was not sufficient to show that the murder was due to any risk arising out of his employment. Gibson and Wharton v. Aves, 2 Cal. Ind. Ace. Com. 209; 11 IST. C. C. A. 253. 15. Robbery. "When an assault is committed on an employe for the purpose of robbery in relation to the employer's property, the resulting injury arises out of the employment. Nisbet v. Bayne & Burn (1910), 2 K. B. 689; 3 B. W. 0. C. 507; 3 K 0. C. A. 268; Western Metal Supply Co. V. Pillsbury, 172 Cal. 407; 156 Pac. 491; Mason v. Western Metal Sup^n^j^d h)Pi&cib$i)ft^Gc. Com. (Part II), 284; ABISIJiTG OUT OF Robbery 11 ]Sr. C. C. A. 245; Johnston v. Mountain Commercial Co., 1 Cal. Ind. Ace. Com. (Part II), 100; Henning v. Henning, 2 Cal. Ind. Ace. Com. 724 ; Morrison v. Los Angeles Railway Corporation, 2 Cal. Ind. Ace. Com. 274 ; Newberry v. Los Angeles & Mt. Washington By. Co., 3 Cal. Ind. Ace. Com. 79 ; Frohn v. Bayle, La Coste & Co. (1916), 3 Cal. Ind. Ace. Com. 274; Chicago Dry Eilm Co. v. Indiis- trial Board, 111. ; 114 N. E. 1009 ; Christensen v. Ohio Build- ing Safety Vault Co., 111. Ind. Bd., No. 1,931, Jan. 19, 1916; 11 K C. C. A. 245 ; Wuertz v. Chicago and A. B. Co., 111. Ind. Bd., Dec. 12, 1914; 11 ]Sr. C. C. A. 247; In re Evans, 1 Bull. Ohio Ind. Com. 55 ; 12 N. C. C. A. 183 ; Bellman v. Manning Sandpaper Co. (1916), 176 App. Div. 127 ; 162 Supp. 235. In the last-mentioned case the robbers took a small sum of money from the pockets of the claimant and also his dinner pail, but it did not appear that they took any- thing else from the employer's establishment. A night watchman was killed and robbed by another employe of the same employer, who had no intent to rob the mill or destroy the employer's property, and it was held that the death of the employe was not due to an accident arising out of the employment, and com- ,pensation was refused. Walther v. American Paper Co. (1916), ]Sr. J. Law ; 99 Atl. 263 ; rev'g 98 Atl. 264; N. J. Law Where a brewery agent and collector was murdered while on his employer's business in a district of bad repute, it was held that com- pensation could not be awarded, in the absence of showing that the object of the murder was robbery, or that the employer knew of the dangerous character of the locality and the hazards of sending an employe to such a place, as there must be some evidence to support a finding that the deceased met his death as the result of an accident arising out of his employment. Schmoll v. Weisirod & Hess Brew- ing Co. (K J. Supreme Court, 1916), W. J. Law ; 97 Atl. 723; 11 N. C. C. A. 241; rev'g 38 N". J. Law J. 180. Where the proprietor of a store, who was also the local express agent, was killed by robbers while defending his store from their attack, and it did not appear that the robbers were endeavoring specifically to steal the property of the express company, but were merely looking for any valuables they could find in the store, it was held that the injury MlJi^Sfi^^eMffiTQ^offii) employment as agent of 600 Peace officers the express company. Herrick v. Wells Fargo & Co., 2 Cal. Ind. Ace. Com. 105; 11 K C. C. A. 251. Where the circumstantial evidence indicated that a night watch- man had been murdered and his body thrown into the water, but his body was never found, it was held that the evidence was sufficient to show that the death occurred by an accident arising out of the employ- ment. Shea V. Western Grain and Sugar Products Co., 2 Cal. Ind. Ace. Com. 487. 16. Peace officers. While a premeditated simple assault does not fall either within the commonly accepted or the legal definition of accident, it is the clear intent of the California Act that all public peace officers, as public employes, are entitled to the benefits of the Act, and where injury or death is suffered incidental to the employment of such officers in the course of their employment, and arising out of the employment, an injury by assault under such circumstances is held to be accidental. Emmert v. Trustees of the Preston School of Industry, 1 Cal. Ind. Ace. Com. (Part II), 17. Compensation was awarded to the dependents of a city marshal who was shot and kill-ed while making an arrest. Renaldi v. The Town of Bochlin, 1 Cal. Ind. Ace. Com. (Part II), 206. Where a city marshal was murdered by persons whom he was seek- ing to arrest as suspicious characters, it was held that his death had occurred by accident arising out of the employment. Colson v. City- of Burhanh, 2 Cal. Ind. Ace. Com. 164. Where a deputy marshal in attempting to ascertain the cause of disturbance and to induce the disturber to desist and was, without reason, shot by the disturber, it was held that the accident arose out of the employment.' Acrey v. City of Holtville, 2 Cal. Ind. Ace. Com. 561. An award of a death benefit was made in the case of a fish and game commissioner who was shot and killed by a lawbreaker he was attempting to arrest. Rodolph v. State of California, 2 Cal. Ind. Ace. Com. 568. A sheriff was shot while attempting to arrest persons who had com- mitted a crime and4%'9^^, 3 Cal. Ind. Ace. Com. 66. 32. Corporation employS doing private work for stockholder. A carpenter employed by a laundry to do general repair work had been in the habit, for a long period of time, under the direction of the officers of the laundry corporation, to do repair work on the houses of the individual stockholders. He was thus engaged when killed. It was held that the man was engaged in the usual course of the business of his employer and that the injury arose out of the em- ployment, by reason of the Long established custom of doing such work for individual stockholders, but that the insurance carrier who insured " laundry help " only and did not include carpenters em- ployed by the laundry for outside work, was not liable. English V. Cain, 2 Cal. Ind. Ace. Com. 404; 11 K 0. C. A. 376. 1 See Eye mjwies; For§)j^tli^%^MfSr(SM&ft® 616 beadbuey's woekmen's compensation law Death from unexplained cause The services of an employe regularly employed by a corporation were loaned to one of the officers and directors thereof, to perform temporary service in the private business of such director and officer. While performing such services he was away from his employer's premises and on the premises of the director. The work was done under the director's supervision. While performing such services the employe was injured. It was held that the injury was not re- ceived in the course of the employment for the corporation. In re Jones, 1 Bull. Ohio Ind. Com. 57. 33. Death from inconsequential injury. A workman received what seemed to be a very slight injury to the eye. He remained at work for a considerable time and finally lost the sight of the eye. Gradually growing worse and exhibiting symp- toms of a neurotic condition he died six months after the accident. No evidence of any constitutional difficulty could be discovered upon the most severe tests. It was held that there was evidence to support the probability that the accident was the proximate cause of the injury and death and compensation was awarded. Johnston v. Southern California Box Factory, 1 Cal. Ind. Ace. Com. (Part II), 5YY. 34. Death from unexplained cause. A cook on a ship lying in harbor was resting in his bunk at 4 p. M. when he was told by the captain to prepare tea. At 5 :30 the chief officer, on going to see why he did not bring the tea, could not find him. His body was found next day in the sea near the spot where the ship had been lying in the harbor. There was evidence that he was subject to sudden attacks of sickness. It was held that the accident arose out of the employment. Kerr or Lendrum v. Ayr Steam Shipping Co. (1914), House of Lords, 7 B. W. 0. 0. 801; rev'g 6 B. W. C. C. 326. The chief engineer of a new steamer was, by his direction, called early one morning and was last seen walking aft to observe the pro- peller, which he had stated he thought to be defective. He dis- appeared entirely, probably having fallen overboard, and it was held that the County Court judge properly drew the inference that the engineer's death was£jj^^^y^ M?J4^^©'ising out of bis employ- AND IN " THE COURSE OF " EMPLOYMENT 6lY Death from unexplained cause ment. Proctor v. S. 8. " Serbina" (1915), 8 B. W. 0. C. 572; 10 N. C. C. A. 618. The fact that a workman is found dead In working hours is not sufficient to establish the fact that his death was due to an injury arising out of his employment, especially where the circumstances surrounding the death show that it could not have arisen from an injury, but was probably due to disease. Palama v. Chase Metal Works, 1 Conn. Comp. Dec. 444. An employe was at work on a spur track about eight feet away from the main line of a railroad. This spur track was about four inches below the main line. For some unexplained reason the employe left the car and went upon -the main tracks of the railroad where he was struck by an engine and killed. There was no evidence showing it to be any part of his employment to cross the main track, nor was there any evidence tending to show why he was there. It was held that the burden of proof was on the claimant and that it was not enough to show a set of facts which was equally consistent with no right of compensation as with such right, and there being no evidence to show that the fatality was caused to the workman while he was engaged in the employment, the claimant had not sustained the burden of proof and compensation was refused. In re Savage, 222 Mass. 205; 110 N. E. 283; 12 N. G. C. A. 894. Where it was the duty of an employe to warn stablemen of the arrival of teams, by ringing a bell, and it was his habit to look out of a window to notice whether or not a team had been admitted and after the arrival of several teams the dead body of the employe was found underneath the window from which the employe looked, but there were no witnesses to the fatality, it was held that the injury arose out of the employment. O'Brien v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd. 226. An employe who had remained at a factory all night was found in the morning frothing at the mouth, with other evidence of an ab- normal physical condition. Death occurred in a short time, but no explanation was made as to the cause of the death. Compensation was denied, on the grom^^^m)$m&^dim^7 ^ within the mean- 618 beadbbey's woekmen's compensation law Death from unexplained cause ing of tke Compensation Act, had been proved. Murphy v. Em- ployers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 643. A section foreman, whose duty it was to mail payrolls so they would reach the company's office on the first of each month, and who was also required to keep the switches clear in stormy weather, started 'on the night of the last of the month to go to the postoffice to mail the payroll, and advised his wife that he would probably be late, as it was a stormy night and he would have to keep the switches clear. It was customary for the foreman to walk on the tracks in going to and from his house to tlie station, where he was required to send the payroll. The payroll was sent from the regular station, but the fore- man's body was found on the tracks badly mutilated, about midnight. There was no other evidence as to how the accident happened. It was held that the Board was justified in drawing the inference that the accident arose out of the employment. . Papinaw v. Grand Trunk By. Co. of Canada, Mich. ; 155 K W. 545 ; 12 JST. C. C. A. 243. A railroad employe was found, after a train had gone out, lying some three or four feet from the rails, with his feet toward the track, having an injury in his head, and he died shortly thereafter from a broken neck. It was held that an inference arose that his injury was caused by accident arising out of his employment. Muzik v. Erie B. Co., 85 K J. Law 129 ; 89 Atl. 248 ; 4 IST. C. C. A. 732. A floatman on a pier in Brooklyn was ordered at night to go aboard a float lying at another slip. Some hours later his body was re- covered from the water, it appearing that he had been drowned. It was held that the injury arose out of the employment. Tirre v. Bush Terminal Co., 5 JST. Y. St. Dep. Eep. 427; aff'd 172 App. Div. 386; 158 Supp. 883; 12 K C. C. A. 64. Where an employe is taken ill while at work and dies soon there- after there is no presumption that he was killed " in the course of employment," under the Ohio Act of 1911, and the burden of proof rests upon the person claiming compensation to prove the facts en- titling the claimant to compensation. In re Patterson, 1 Bull. Ohio Ind. Com. 33. It should be observed that the Ohio Act of 1911 does not contain the provision that to justify the payment of compensa- tion an injury ^^l^^^ff^^^^^^ but only that it must occur m the course of ' the employment. AND IN " THE COTIESE OF " EMPLOYMENT 619 Disobedience of specific orders 35. Death occurring two years after alleged injury. An employe received a blow in the head and was more or less dis- abled for two years thereafter, at the end of which time he died. It was held, on the medical testimony, that the death was due to the injury arising out of the employment. Theroux v. Shore Line Elec- tric Railroad Co., 1 Conn. Comp. Dec. 667. 36. Delirium tremens.^ An employe received an injury from a beam striking him on the shoulder. In the hospital he developed delirium tremens and lobar pneumonia from which be died. It appeared that he had been in the habit of drinking moderately, but had not been indulging in liquors prior to the accident, to any considerable extent. It was held that the injury to the shoulder was the cause of the delirium tremens and the development of the lombar pneumonia ,and com'pensation was awarded. Sullivan v. Industrial Engineering Co., 6 N. Y. St. Dep. Eep. 401. 37. Disobedience of specific orders. Disobedience of specific orders may amount to serious and willful misconduct. That phase of the subject is discussed in another para- graph. 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 disobedience continues. This latter phase of the subject is discussed in the present subdivision. But in denying compensation for disobedience of orders or rules it must appear that the employe understood the order or rule and that the rule was regularly enforced by the employer. The mere making of a rule is not sufficient, if it is frequently disregarded, or broken, in such a way that the employer must have been aware of the violations, or could readily have dis- covered them by the exercise of reasonable diligence. Thus, if a workman is injured while doing something which he has been absolutely forbidden to do, he cannot be said to be injured in the course of his employment. Whitehead v. Reader (1901), 3 W. C. C. 40. Compensation was awarded in the last-mentioned case, how- See same title in cfflffitifeectfcy Microsoft® 620 beadbuet's woekmen's compeis'sation law Disobedience of specific orders ever, it being held that the facts did not bring it within the rule stated. The workman, who was sharpening tools 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 liot 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 ijelieve the master from liability. (E. L.) Williamson v. Berlin Mills Co., 190 Fed. 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 punching machine was not running, attempted to turn the lever, or handle, on a rolling machine, with which he had nothing to do, and whil6 making the attempt his left foot slipped between the rollers and he was badly injured. The claimant had been ordered on a number of occasions not to turn the lever on the rolling machine. 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. Be Victorino Morales, Op. Sol. Dep. C. & L., p. 230. . A boy was employed to walk in front of a train of cars and act as a lookout to warn the engine driver of obstacles. Instead of walking in front of the train he got on the end of a car and rode on the buffer. He had been strictly forbidden to do this and was aware that men discovered riding on the buffers would be dismissed. He slipped from the buffer and was seriously injured. It was held that the accident did not arise out of the employment. Herbert v. Fox & Co. (1915), 8 B. W. C. C. 94 ; 12 IST. C. C. A! 469 ; aff'd (House of Lords), 9 B. W. C. C. 164 ; 12 N. 0. C. A. 469. A miner who had been forbidden to ride in the tubs disobeyed the order and was injured while so riding, it was held that the accident did not arise out of the employ- ment. Bates v. Mirfield Coal Co. (1913), 6 B. W. C. C. 165. A miner went to a place where the props had been removed and where he had been expressly ordered not to go and he was killed by a fall of co^l, It was h^||[;ft!ist/%?/llW$ft(JsSi#<^id not arise out of the em- AEISING " OUT OF " AND IN " THE COUKSE OF " EMPLOYMENT 621 Disobedience of specific orders ployment. Tomlinson v. Garratt's (1913), 6 B. W. 0. C. 489; Cook V. Manvers Main Collieries (1914), Y B. W. C. 0. 696. A collier ^?'as found asphyxiated in a stall where men had been warned not to go because of the gas being dangerous. No explanation was made as to how the man came to go there. It was held that the dependents had not discharged the burden of proving that the deceased met his death by an accident arising out of the man's employment, Morgan V. Cynon Colliery Co. (1915), 8 B. W. C. C. 499. A messenger boy employed at a freight station was found killed on the tracks at ten o'clock at night, evidently by a passing engine. There was a rule in force that messenger boys should not cross the tracks at night, except at supper time, which was between 12 and 12 :30, at which time they must secure permission. It was found as a fact that the boy had not secured permission and it was held that the accident did not arise out of the employment. McGrath v. Lon- don & Northwestern Railway Co. (1913), 6 B. W. C. C. 251. A messenger attempted to board a tram car while it was moving at the rate of five miles an hour, contrary to notice on the car of which he was aware, and he was injured. It was held that the accident did not arise out of the employment. Wemyss Coal Co. v. Symon (1912), 6 B. W. C. C. 298. Cleaning machinery while in motion contrary to specific orders not to do so was held to remove a workman from the sphere of his employment so that he was not entitled to compensation when injured. M'Diarmid v. Ogilvy Brothers (1913), Scotch Court of Session, 6 B. W. C. C. 8Y8. A boy, attending a machine, whose duty it was to report any difficulty to the foreman, attempted to adjust the machine himself without calling the fore- man and his fingers were caught and crushed. It was held that the accident did not arise out of the employment. McCahe v. Henry North and Sons (1913), 6 B. W. C. C. 504. An employe 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 the employment. Parker v. Ham- hrooh (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 Digitized by Microsoft® 622 beadbuey's woekmen's compensation law Disobedience of specific orders head was knocked against the roof and he died from the injuries re- ceived. It was held that the accident did not arise out of the employ- ment. Powell V. Bryndu Colliery Co. (1911), 5 B. W. C. 0. 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 machinery he was killed. It was held that the baker was not employed to touch the engine at all and that the accident did not arise out of the employment. 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 fully 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. Revie v. Cum- ming (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. (House of Lords) Barnes v. Nunnery Colliery Co. (1911), 5 B. W. 0. 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 injured 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. K. 430 ; 4 B. W. C. C. 379. The rules of a pit provided that explosives capable only of being fired by detofaators should be used ; that the detonators should be securely kept and issued only to shot-firers ; and that every shot should be fired by a competent person appointed in writing fdi0&zkstisiyiMic6SS,f{t®On the occasion in ques- AJND IN " THE COUKSE OF " EMPLOYMENT 623 Disobedience of specific orders tion, after the shot-firer had left the pit, a miner, who had a det- onator in his possession, which, however, he had not received 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 kiUed. It was held that the acci- dent did not arise out of the employment. Kerr v. William Baird & Co. (1911), 48 Scotch L. E. 646; 4 B. W. C. C. 397. A messenger boy, who was employed in delivering fish at a kitchen situated on the third fioor of an infirmary, was injured 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 to be used by servants of the insti- tution only, and worked only by those specially authorized 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 his employment. M'Daid v. Steel (1911), 48 Scotch L. E. 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 dis- tance away. Here he remained at least an hour. Blasting opera- tions 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. Traynor v. Robert Addie & Sons (1910), 48 Scotch L. E. 820 ; 4 B. W. C. 0. 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. Jenhinson 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 attempted to clean the machinery and was thereby injured. It was held that the accident did not arise out of the employment. Loive V. Pearson (1899), 79 L. T. 654; 1 W. 0. 0. 5. A workman employed in a coal mine as a drawer wks working in a level from which an " upset " was being driven. On the day of the accident the fireman di^^?f(S' fiil ^tbreak% gas in the " upset," 6^4 BEADBUET S -WOBEMEw's COMPENSATIOlf LAW Disobedience of specific orders 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 persons 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. E. 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 employ- ment 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 with- out the order of his employer to do so ; and if he does travel out of the sphere of his employment 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, 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, nevertheless, 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 the employment. Hard- ing V. Brynddu Colliery Co. (1911), 2 K. B. 747 ; 4 B. W. C. 0. 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 asphyxi- ated. The Coun^'geii(ZBBtJ!5t&flg©r(&SQM)that some heating was rea- ARISING " OUT OF " AND IN " THE COUESE OF " EMPLOYMENT 625 ' Disobedience of specific orders sonably necessary, and that the accident arose out of the employment and awarded compensation. It was held on appeal that there was evidence to support the finding. Edmunds v. S. 8. " Peterston" (1911), 5 B. W. 0.0. 157. A quarryman was ramming a cartridge preparatory to blasting. The cartridge exploded prematurely and injured him. The em- ployers 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 load- ing. The explosion occurred while loading. It was held4hat the accident arose out of the employment. Joyce v. Wellingborough Iron Co. (1911), 5 B. W. 0. 0, 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 the employment. Wright v. Scott (1912), 5 B. W. 0. 0. 431. An employe who had been ordered not to sit while attending a particular machine, disobeyed the order and sat on a guard when the foreman was not looking. Turning to speak to another employe his foot was caught in the machine and he was seriously and perma- nently injured. It was held that although the workman was guilty of negligence, he was acting within the sphere of his employment and the accident arose out of his employment. Chilton v. Blair & Co. (1914),7B.W. 0. C. 607. A railway porter whose duty it was to transfer baggage to and from passenger trains jumped on a moving train so as to be ready to remove baggage as quickly as possible and was injured. Jumping on moving trains was strictly prohibited by the rules of the company and the porter had been warned against the practice. It was held that the accident arose out of the employment and compensation was awarded. M'William v. Great North of Scotland Railway Co. (1914), Scotch Oourt of Session, 7 B. W. 0. 0. 875. "Where miners contrary to the rules of the colliery were neverthe- less permitted to ride in the tubs between the pit bottom and the place of work, of which practice the foreman was aware, and took no meas- ures to stop the same, ilt>l^i^i&]Syt)imkim6ftW^ to a workman while 40 626 beadbuey's -workmen's compensation law Disobedience of specific orders riding in a tub arose out of his employment. Richardson v. Denton Colliery Co. (1913), 6 B. W. C. C. 629. While a boy was working around a belt his sleeve caught in the belt and to save himself he put out his hand and was carried into the machinery and seriously injured. The boy denied having touched the belt and the employer contended that the boy was playing around the belt and thus injured. The County Court judge visited the scene and came to the conclusion that the boy was working and that the accident happened as first above stated. It was held that the accident arose out of and in the course of the employment. Durrani Y. Smith & Co. (1914), Y B. W. C. C. 415. Where an order which a workman had disobeyed is not one limit- ing the sphere of this employment, but relates to an act within that sphere, and an accident occurs, it will be held to arise out of the employment. Corlett v. H. 8. Pitt & Co. (1915), 8 B. W. C. C. 466 ; 10 N. C. C. A. 342. In the last-mentioned case the duties of the man who was injured ~were to bore holes for blasting in a mine, and after waiting for the fireman's order to light the fuses he had laid and fire the holes. He bored and charged two holes and then without waiting for further instructions from the fireman, who was temporarily absent, fired both holes, and was killed by the explosion of the second. A bricklayer going up in a hoist was injured by reason of the breaking of the chain, precipitating him to the ground. It appeared that the employer had told the man to use the staircase and not go up in the hoist, but this prohibition was generally disregarded even by the foreman whose duty it was to enforce it, and the hoist was constantly used by many of the men. It was held that the accident arose out of the employment. McGuire v. Oahhott (1915), 8 B. W. C. C. 555; 12^-. C. C. A. 4Y2. A shot firer in a coal mine was in the habit, unknown to the man- agement and in breach of the regulations, of delegating to miners working in his shift the duty of coupling the electric cable to the charge. A miner having coupled the charge to the cable, was making for a place of safety, when the shot firer, thinking all was clear, fired the shot, and the miner was seriously injured. It was held that the accident arose out of the employment. Smith v. Fife Coal Co. (1914), 7 B. W. C. (EH^S^d by Microsoft® Arising oVt of and in " the coitese of employment 627 Disobedience of specific orders The fact that an employe was violating the rules of the defendant, when he was killed by an accident, is not sufficient, in all cases, as a ground for refusing compensation. Chicago Railways Co. v. In- dustrial Board (1916), 111. ; 114 K E. 534. A miller operating an electric crane was instructed not to go on the crane, but that if it got out of order to notify a machinist, whose business it was to make repairs. The crane being out of order he so notified the machinist and then himself went on the crane to point out to the machinist where the trouble was and was injured while descending from the crane. It was held that the injury did not arise out of the employment. Bischojf v. American Car & Foundry Co. Mich. ; 157 N. W. 34. In the last-mentioned case there were dissents by three of the seven justices of the Michigan Supreme Court. The case is a close one and can scarcely be said to be in consonance with the weight of authority on questions of this character. Where a workman was specifically directed not to use an automo- bile belonging to or hired by the employer, but he used it nevertheless on various occasions in spite of these directions, it was held that if this was the only question in the case such disobedience of orders might not have been sufficient to defeat the claim for compensation, but the case was decided on another point. Beimers v. Proctor Pub. Co., 85 ]Sr. J. Law 441 ; 89 Atl. 931 ; 4 IST. 0. C. A. 738. Where an employe was told on several occasions not to work near a circular saw, but to do his work a distance away where it was safe, and he disobeyed the orders and was injured by the saw, it was held that the employe, by his own conduct, exposed himself to a new or added peril, which his contract of service neither directly nor in- directly involved or obliged him to encounter, and that therefore the injury did not arise out of his employment. Schelf v. Kishpaugh (Warren Common Pleas, 1914), 37 JST. J. Law J. 173. The violation by an employe of a rule of his employer does not necessarily take him out of the course of his employment. Skinner V. Stratton Fire Clay Co., 1 Bull. Ohio Ind. Com. 103. A street car conductor was killed by falling from the front plat- form 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, b^ disciplining those who disregarded the rules. The evidence sho-v^'d^fial che deceasef, after the trolley had 628 BEADBUEY*S WOEKMEn's COMPEITSATION LAW Doing work in unusual manner 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 com- pensation. Neumann v. Milwaukee Railway and Light Co., Wis. Ind. Ace. Bd., May 2, 1912. 38. Dislocation from quick movement. A dislocation of the semilunar cartilege of the knee, caused by quickly arising from a stooping position, required by the nature of the employment, was held to be an accidental injury arising out of the employment. Giampolini-Lombardi Co. v. Baggio, 2 Cal. Ind. Ace. Com. 936. 39. Dislocation from strain. Where an elevator operator sustained a dislocation of the sternal end of the collar bone, as the result of raising above his head heavy gates at the elevator opnings, it was held that the injury arose out of the employment. Benin v. California Hawaiian Sugar Refinery (1916), 3 Cal. Ind. Ace. Com. 334. 40. Doing work in unusual manner. ~ A bailiff, acting as a night watchman on a farm, was making a final inspection at night and attempted to go into the poultry shed, but found he had locked it up and left the key in the cow shed. To save himself going home to get the key to the cow shed, he endeavored to climb into the window, and in doing so slipped, fell and was killed. It was held that the accident arose out of the employment. Pepper v. Sayer (1914), -7 B. W. C. C. 616. A foreman, with some other men, was engaged in piling up empty flour sacks by hand in a room through which ran a revolving shaft. When the stack got so high that the men could no longer lift the bundles by hand the foreman put a rope aroimd the shaft and at- tached a bundle to the other end and then by pulling the opposite end of the rope it made enough friction to raise the bimdle to the top of the pile. Oneffi^tftfflshfifjjdMJrfQHosS® resulted in the foreman AND IN Doing work in unusual manner being caught in the rope which wound around the shaft and he was severely injured. It appeared that nothing had been said to shim one way or the other about using the shaft to raise the bundle. It was held that the accident did not arise out of the employment. Plumb V. Cobden Flour Mills Co., House of Lords (1914), A. 0. 62 ; 7 B. W. C. C. 1. In the last-mentioned case the question involved was discussed at some length. A distinction was made between a case where a workman was doing something which he was not em- ployed to do and a case where he was doing something which he was employed to do, but was guilty of serious and willful misconduct in doing the w^ork. Before the serious and willful misconduct provi- sion can apply the workman must show first that he was actually doing the work he was employed to do. The House of Lords ap- proved the doctrine that " it is not enough for the applicant to say, the accident would not have happened if I had not been engaged in that employment or if I had not been in that particular place. He must go further and say the accident arose because of something I was doing in the course of my employment or because I was exposed by the nature of my employment to some peculiar danger. A risk is not incidental to the employment when either it is not due to the nature of the employment or it is an added peril due to the conduct of the servant himself." A woman employed to clean house once a week was shaking a rug from a porch, in an unusual place, and while leaning against the porch railing she fell to the ground and was seriously injured. It was held that the accident arose out of the employment, even though this was an unusual place in which to clean the rugs and she had previously performed this work either in the yard or under a covered porch at another part of the house. Bayon v. Bechley, 1 Conn. Comp. Dec. 69 ; aff'd 89 Conn. 154; 8 K C. C. A. 588. Part of the duties of an employe consisted in replacing broken electric light globes in his employer's establishment, by unlocking a guard, which was placed over the globes to prevent them from being stolen, securing new globes from the store room to put in the place of the broken globes, and again locking the guard. The key to the guard was kept by the foreman and it was necessary for the employe to secure the key from, the foreman whenever it was necessary to change the globes, Anmer employe han(^d to the claimant what 630 beadbuey's workmen's compensation law Ejecting trespassers appeared to be an empty cartridge shell of unusual length. The claimant attempted to make a new key for the guard on the electric light globes, by hammering this shell, so as to save his time and energy in hunting up the foreman and carrying the key back and forth when lights were to be replaced. The shell happened to be an unexploded dynamite cap and it exploded from the blows of the hammer. A fragment therefrom destroyed the sight of the plaintiff's eye. It was held that this was an accident arising out of the employment. State ex rel. Duluth Brewing & Malting Co. v. District Court for St. Louis County, 129 Minn. 423; 151 N. W. 912; 9 IST. C. C. A. 1119. 41. Driver falling from wagon. A truck driver fell from a truck and the rear wheel passed over his head causing immediate death and it was held that the injuries arose out of the employment. Brisco v. Englert, 4 N. Y. St. Dep. Eep. 345. 42. Driver for florist adjusting customer's w^indow box. A driver of a delivery wagon for a florist, whose duty it was to assist in the delivery of goods when necessary, was assisting in ad- justing a window box in a house where some flowers had been de- livered and for that purpose he was working upon a ladder when he lost his balance and fell to the ground, receiving injuries from which he died. It was held that the injury did not arise out of the em- ployment. Matter of Glatzl v. Stumpp, 220, N. Y. 71 • 114 N". E. 1053. 43. Driver kicked by strange horse in blacksmith shop. A driver was leading his team into a blacksmith shop to be shod and while passing a horse there being shod the animal kicked him causing disabling injuries. It was held that the injury arose out of the employment. Kenefick v. Laurer Brewing Co., 4 N. Y. St. Dep. Eep. 350. 44. Ejecting trespassers.* A night watchman in chasing boys from the premises of his em- ployer fell through an opening in the sidewalk and was injured and I See Assaults and s}&mmmmS^iPS^m in this chapter ABISiNG " OUT OF " AND IN " THE COURSE OF " EMPLOYMENT 631 Emergency employe it was held that the accident arose out of the employment. Taylor V. Federal Realty Co., 1 Oal. Ind. Ace. Com. (Part II), 506. Where a porter, employed in another building, was getting hot water for the purposes of his occupation and he ran after some boys who were in the building, and was injured by the slamming of a door, and it appeared that it was no part of his employment to clear the building of trespassers, his work being entirely in another build- ing, it was held that the accident did not arise out of the employment. Hector v. Frankfort General Ins. Co., 1 Mass. Ind. Ace. Bd. 171. A helper on an automobile truck was chasing' boys away who were annoying the chauffeur. As he attempted to jump on the truck he fell and was severely injured. It was held that the injuries arose out of the employment. Hendricks v. Seeman Brothers, 3 N. Y. St. Dep. Kep. 385; 12 K C. C. A. 181. 45. Electrical shock.^ An inspector of work being done by a general contractor in the construction of a tunnel, upon the lights going out, went into the transformer house to ascertain what the trouble was, although he had no knowledge of electricity, his duties requiring him to report any unusual condition which he might find. He was accidentally killed by coming into contact with unprotected wires. It was held that the injury arose out of the employment. Duden v. €ity and County of San Francisco, 2 Cal. Ind. Ace. Com. 993. 46. Emergency employe.^ 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 ser- vant's master. (E. L.) Cannon v. Fargo, 138 App. Div. 20; 122 Supp. 576; (E. L.) Marks v. Rochester Ry. Co., 41 App. Div. 66; 58 Supp. 210 ; (E. L.) Qeibel 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 pre- 1 See Serious cmd willful misQcmdWt, ? See title Sftv^g Ufe- Digitized by Microsoft® 632 BEADBTIEy's -WOEKMEN's COMPENSATIOIir LAW Emergency employ^ serve 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. 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 brake- man, 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. B. Co., 112 S. W. 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 employment and compensation was awarded to his widow. Houghton v. W. G. Boot Construction Co., 35 N. J. Law J. 332. Where the plaintiff, a minor, employed to drive an entry in a mine, was injured while assisting a co-employe in propping a dan- generous portion of the roof which the defendants, although notified, had failed to prop, and such precaution 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 scop^ of his employment at the time of his injury. (E. L.) Ballou v. Potter, 106 S. W. 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 unlocking 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 & 8. F. By. Co. v. Bagwell 124 Pac. 320 ; 33 Okla. 189 ; 40 L. R. A. (N. S.) 1180n. 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 employe and a fellow servant of the driver. (E. '^g^m4^fmiSf(M§fkrn Brewing Co., 71 Misc, 5a9;130Supp. 785, AKISIISTG " OUT OF " AND IN " THE COUESE OF EMPLOYMENT 633 Emergency employe The claimant was employed as a fireman in the fire department 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 tlnited States, in view of the circumstances stated, was not sufficient to exclude him from the operation of the Act, and compensation was awarded. Be James Nellis, Op. Sol. Dep. C. & L., p. 221. A boy was employed to grease the wheels and axles of railway trucks. While waiting for trucks to come up he 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 his employment. Harrison v. WhitaJcer 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 not 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 his employment. Hapelman v. Poole (1908), 25 T. L. K. 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 attempt- ing to stop his master's runaway horse, it was held that the accident arose out of the employment, although his work was wholly uncon- nected with the horses. Bees v. Thomas (1899), 80 L. T. 578; 1 W. C. 0. 9. A man employed by the owner of a canal boat, as driver, who was forbidden by his empl(g^^|;^gt^^e |||^r,t.inj;^^steering or management 634 bbadbuky's woekmen's compensation law Emergency employe of the boat, was drowiied 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 justi- fied the deceased in violating the orders of his employer in steering the boat, and that therefore the accident did not arise out of the em- ployment. 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 the motorman's accommodation, it was held that he was not an emer- gency employe and could not recover for injuries received. (E. L.) Central Eentuchy Traction Co. v. Miller, 153 S. W. 750; 147 Ky. 110; 40 L. K. A. (IST. S.) 1184. 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 direction. It was held that no recovery could be had, although the car ran away because of a defective track, as the proximate cause of the injury was the servant's voluntary act. (E. L.) McGill v. Maine & N, H. Granite Co., 46 Atl. 684; 70 JST. H. 125. Intestate's brother was employed by the defendant railroad com- pany 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 intestate 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 rela- tion of master and servant did not exist between the defendant and the intestate. (E. L.) Grissom v. Atlanta & B. Air Line By,, 44 So, 661 ; 152 Ala. 110; 13 L. K. A. (IST. S). 561n. "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 Digitized by Microsoft® AKISING Emergency employe accordingly got on the wagon and 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 had implied authority to hire this volunteer in this emergency, The court, however, held that there was no such implied authority and denied compensation. Houghton v. Pilkington, 107 L. T. Kep. 235; The Policyholder, Nov. 16, 1912, p. 768. An employe making an effort to escape from a danger incident to his employment against which danger he had been warned, is acting in the course of his employment and is entitled to compensation for an accidental injury suffered by him while so escaping. Bode v. Shreve & Co. and Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 6. A regular employe who volunteers in an emergency to per- form services outside his regular work is entitled to compensation when he meets with an accident arising out of such emergency ser- vice. Young v. Northern California Power Co., 1 Cal. Ind. Ace. Com. (Part I), 88; 12 IST. C. C. A. 309. The chief clerk of the freight accounting department of a railroad, traveling on one of its trains, in the course of his employment, upon the stopping of the train after it ran over and injured a man, alighted, without the request of the conductor or train crew, to make himself available should his ser- vices be useful, and he actually did render assistance. Upon the starting of the train, in some some manner while attempting to get aboard too late, he slipped under the wheels and was killed. It was held that the accident arose out of the employment. Bowdish v. Northwestern Pacific Ed. Co., 2 Cal. Ind. Ace. Com. 776. Where an employe whose duty it was to attend to such matters went into an automobile to discover a leak in an oil pipe, the fact that the accident happened after five o'clock, which was the usual time of quitting, is of no particular consequence in a case where the employe was ex- pected to attend to such emergency matters at any time of the day or night. Phillips v. Chanslor-C an field Midway Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 580; 12 N", 0. C. A. 176. A trained workman may reasonably lend a hand without instruc- tions in case of a breakdown, in expediting repairs in other parts of the mill, so long as he does not violate specific instructions, without stepping outside the general course of his duties, although he is em- Digitized by Microsoft® 636 beadbuey's woekmen's compensation law Erysipelas from Infection of pimple ployed to attend to a particular machine only. Winter v. Johnson- Pollock Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 387. A boy engaged in weighing wire attempted to stop a machine so as to prevent a fellow employe from being injured and in doing so was himself injured, and it was held that the accident arose out of the employment and compensation was awarded. Goodspeed v. American Steel and Wire Co., Conn. Comp. Com., Third Dist., Beeks, Com'r, Dec. 29, 1916 (unreported). An employe had been left in charge of machinery during the temporary absence of a foreman. He endeavored to remove a belt from a pulley when some of the machinery got out of gear to prevent the belt from burning, and he was injured. It was held that the injury arose out of the employment. Blackford v. Green & Pierson (Morris Common Pleas, 1914), 37 N. J. Law J. 279. A demonstrator of an automobile sales agency seeing that a colli- sion with another automobile was imminent, threw out his arm to protect himself, with the result that the arm was broken at the elbow, and it was held that the injury arose out of the employment. Todd V. Drouet & Page Co., 3 IS. Y. St. Dep. Eep. 351; 12 K C. C. A. 178. A laborer was attempting to get away from the danger zone where a blast was to be set off and he tripped and fell causing internal in- juries from which he died and it was held that the injuries arose out of the employment. Catardi v. Bridgeport Contracting Co., 4 N. Y. St. Dep. Eep. 410. 47. Erysipelas following frostbite. An employe of an insurance company who was required to solicit insurance and collect premiums, was compelled to take long rides, regardless of weather conditions. On a very cold day his nose be- came frost bitten. The frost bite produced a lesion of the skin and tissues, through which the employe contracted erysipelas, from which he died. It was held that this was an injury arising out of the em- ployment. Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303 ; 97 Atl. 320 ; 12 N. C. C. A. 308 ; aff'g 1 Conn. Comp. Dec. 113. 48. Erysipelas from infection of pimple. Erysipelas from a pimple on the face, it not being shown that the infection came from anything connected with the employment, was Digitized by Microsoft® AblSING " OUT OP " AND IN " THE COTJKSE OF " EMPLOYMENT 637 Explosions held not to be an injury arising out of the employment. Miller v. Libby & Blinn, 1 Conn. Comp! Dec. 377. 49. Exchanging duties. An employe on road work had no specific duty assigned to him. He started work as a shoveler, but later changed places with a teamster by mutual agreement, without direction from the employer, but pursuant to a custom among road employes, and he was injured while driving a team. It was held that the injury arose in the course of the employment. Lytle v. The County of Modoc (1916), 3 Cal. Ind. Ace. Com. 382. , 50. Exhaustion and death from exposure. An employe in a power house in the performance of his duties in repairing a break in the power line was exposed to extremely cold weather in the work of making repairs. His duties were rendered extremely arduous by reason of deep snow, and the employe died from exhaustion and exposure thereby sustained. It was held that the death arose ovit of the employment. Villet v. Nevada-California Power Co. (1916), 3 Cal. Ind. Ace. Com. 362. 51. Explosions. The third officer of a steamship was injured by the premature ex- plosion 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 accident arose out of the officer's employment, under the British Act. Thompson v. Nautilus Steam- ship Co., The Policyholder, July 10, 1912, p. 553. While a man in a mine was carrying powder from a storehouse to the place where it was to be used the powder exploded and he was killed. There was no evidence as to what caused the powder to explode, but in view of the fact that he was performing his duties at the time of the accident, it was held that the accident arose out of the employment. Pugh v. Earl Dudley (1914), 7 B. W. C. C. 528. An employe's suspender button broke and he picked from off the floor a metal object about the size of a lead pencil and used it to fasten his suspenders. He was subsequently examining the piece of metal" or readjusting the suspender and the article exploded, it proving to Digitized by Microsoft® 638 BEADBUET^S WOEKMBn's COMPENSATIOH' LAW Faintness causing fall have been a fulminating cap. Such articles were not used in the establishment. It was held that the accident did not arise out of the employment, Tamulynas v. U, 8. Fidelity and Guaranty Co. (1914), 3 Mass. Ind. Ace. Bd. 672 ; 12 N. C. 0. A. 898. Employes on steam shovels were in the habit of washing their overalls by dipping them in a solution of gasolene and then subjecting them to an application of live steam. While doing this the foreman on a steam shovel was injured by the gasolene exploding, causing severe burns. It was held that the injury arose out of the employ- ment. Willis V. Guthrie-McDougal Co., Report of Montana (1915), Ind. Ace. Bd. 1^6. 52. Eye injured in cutting brush. Where an employe of a town cutting in brush along the highway received an injury from a piece of brush, which caused 1;he loss of an eye, it was held that the injury arose out of the employment. Sinner V. Town of Colchester and Stephen Brainerd, 1 Conn. Comp. Dec. 286. 53. Eye strain. Disability from eye strain occasioned by work for two or three weeks upon embroidery was held not to be an injury arising out of the employment. Cochran v. Fenton, 1 Conn. Comp. Dec. 690. 54. Faintness causing fall. 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 em- ployment. Rodger v. Paisley School Board (1912), 49 Sc. L. R. 413 ; 5 B. W. C. C. 547. Where an employe entered a cage to descend to a mine and during the descent he sank to the floor for some unknown reason, and he was injured in consequence of his head projecting from the side of the cage, it was held that the injury arose out of the employment. Crase v. North Star Mines Co., 1 Cal. Ind. Ace. Com. (Part I), 68. Where a buyer and department store manager, while in a bath room of a hotel, diwigffi:^iusiMes&.Jjwtt^ecame faint and fell vm- Faintuess causing fall conscious on the bath room floor, striking her face and sustaining an injury thereby, it was held that the accident did not arise out of the employment. Jacobs v. Davis-Schonwasser Co., 2 Cal. Ind. Ace. Com. 938. A traveling salesman, crossing the ferry from San Francisco to Oakland, became nauseated and dizzy, and after reaching Oakland sustained a fall due to such dizziness, such fall causing concussion of the brain. It was held, in the' absence of evidence to show that the bay was rough, or that the weather was bad at the time of crossing, that the applicant had failed to establish a case of accident arising out of the employment. Van Winkle v. G S. Johnson Co., 2 Cal. Tnd. Ace. Com. 212. Where an employe became faint from vertigo and illness and fell injuring herself on a table, it was held that this injury did not arise out of the employment, where it was found that the f aintness was not due to any condition under which she was working, bvit to her own physical condition. Erichson v. Empire Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 612. A painter while working on a scaffold suddenly became ill and fell to the ground and it was held that the injury arose out of the employ- ment. Burke v. Mayer (1916), 3 Cak Ind. Ace. Com. 310. A teamster fell from a wagon and was run over and killed. The post mortem examination indicated a condition which probably would cause dizziness, and there was some evidence of the man having been drinking, but not evidence of actual intoxication. It was held that the injury arose out of the employment. Hanson v. Commercial Sash Door Co., 1 Bull. 111. Ind. Bd. 30. Where a driver by reason of a fainting fit fell from the wagon and fractured his skull, it was held that this was an accidental injury arising out of the employment. Driscoll v. Employers Liahility Assur. Corp., 1 ]\Iass. Ind. Ace. Bd. 125. It was held in the last- mentioned case that the employe was exposed to a substantial and increased risk owing to his occupation and where the fainting fit caused the fall from which the injury was received, resulting in death, there was a distinction between such a case and one where a workman merely fainted and did not directly »receiVe accidental injuries causing death or disatvility. An assistant ioremmgittz^t^mim)§Sff^ street department of a 640 beadbuey's woekmen's compestsation,^ law. Falling object from adjoining building gas company who was sweeping dirt and pebbles off the pavement in the vicinity of the work being done by the gang of men, to which he was attached, suddenly fell to the street. Seventeen days later he died in the hospital and an autopsy revealed that in his fall he evidently had received a fracture, of the skull. The same autopsy disclosed that the fall had in all probability been due to an attack of cardiac syncppe, to which the previous condition of the heart predisposed it. It was held that this was not an accidental injury arising out of the employment. Collins v. Brooklyn Union Gas Co., 171 App. Div. 381; 156Supp. 957. A hack driver suffering from a hernia, hardening of the arteries and Bright's disease, suffered from dizziness, while on his hack, and when the hack lurched into the gutter he fell off and was injured, so that he became permanently disabled. It was held that this was an injury arising out of the employment. Carroll v. What Cheer Stables Co., 96 Atl. 208 ; K. I. 55. Falling ceiling. Just as a domestic servant was arising in the morning a bit of mortar from the roof fell in her eye, with the result that she lost the sight of that eye. It was held that the accident arose out of the employment. Alderidge v. Merry (1912), Irish Court of Appeal, 6 B. W. C. C. 450. ' A restaurant dishwasher was injured by the fall of the ceiling in the place where he was working, due to an overloading of goods, stored on the upper floor, by a person other than the employer. It was held that the injury arose out of the employment. Kimhol v. Industrial Accident Commission (1916), Cal. \ ; 160 Pac. 150. 56. Falling object from adjoining building. A workman engaged in an open yard during a violent gale was in- jured by a slate blown off the roof of an adjoining building and it was held that this was an accident arising out of the employment. Anderson & Co. (1905) v. Adam^on (1913) (Scotch Court of Ses- sion), 6 B. W. C. C. 874. But the above case was distinguished in Kinghom v. Guthrie (1913), 6 B. W. C. C. 887, by the same court. In the Kinghom case the employe was driving out of his employer's yard when he was/5^g^(]f)j5ya/\jfj^g%($j|@orrugated iron blown by a ARISING OTTT OP " AND IN " THE COUESE OF " EMPLOYMENT G41 Fires causing injuries high wind from an adjoining building and it was held that the acci- dent did not arise out of the employment. 57. Fires causing injuries. A ship's carpenter, while at work on board amid shavings and wearing oily trousers, was severely burned, owing to the shavings being set on fire, through a shore laborer, who had come on board, lighting a cigarette and throwing down a match. It was held that the accident arose out of the employment. Manson v. Forth & Clyde Steamship Co. (1913), Scotch Court of Session, 6 B. W. C. C. 830. A servant residing in her mistress's house was suffocated in her bedroom through a fire which broke out in the house. It was held that the accident arose out of the employment. Chitty v. Nelson (1908), 2 B. W, C. C. 496. A salesman was directed to go to a city and remain indefinitely for the purpose of selling goods. A fire occurred in the hotel, where he lived, while he was asleep and he was killed. It was held that the accident did not arise out of the employme^nt. Forman v. Industrial Accident Commission (1916), Cal, ; 160 Pac. 857; rev'g 3 Cal. Ind. Ace. Com. 246. A railroad section hand was assisting in fighting fire on a ranch and was injured and it was held that he was not engaged in the usual course of the business of the ranch owner or the railroad company and compensation was refused. London and Lancashire Guar. & Ace. Co. V. Industrial Accident Commission (1916), Cal, ; 161 Pac. 2. Where a cook was killed by injuries due to her clothing catching fire compensation was awarded for the time between the injury and her death, but a death benefit was refused because her husband was found not to be dependent upon her. Foisy v. Fisher, 2 Cal. Ind. Aec. Com. 149. A cook in a cafe was awarded compensation for disability caused by a burn from hot grease when removing a roast from the oven. Zamero v. Saddleroch Cafe, 2 Cal. Ind. Aec. Com. 138. A bartender of a saloon and clerk of a lodging house, whose duties as clerk extended over the period of twenty-four hours, was aroused from sleep at night, by an alarm of fire, and was injured while escaping from the fire a@.<|'/lH€ifalS«!SiMg"«SC5;ff^ valuables entrusted to 41 642 BEADBUBt's WOEKMEn's COirpENSATIOW XAW Flat foot him as bartender. It was held that the injury arose out of the employment. Mills v. Porath (1916), 3 Cal. Ind. Ace. Com. 360. A janitor in a building, whose hours of service were from 7 a. m. to 6 p. M., had remained in the building until seven o'clock, when, in endeavoring to extinguish a fire which started in the premises, he was overcome with the fumes, from which injury he died. • It was held that there was evidence to support a finding that the injtfry arose out of the employment. Munn v. Industrial Board (1916), 274 III. 70; 113 N. E. 110; 12 K C. C. A. 652. An employe of a private corporation was ordered by the State Fire Warden to go with him and assist in extinguishing a forest fire, under the direction of the Warden, as authorized by the statutes of Mich- igan. His employer paid the man his regular wages during the time he was fightiiig the fire and the employer was reimbursed by payment from the State and county. The employe was injured while fighting the fire. It was held that the injury did not arise out of the employ- ment of the private employer. Kennelly v. Stearns Salt & Lumher- Co., Mich. ; 157 N. W. 378. An employe was killed in a fire in the employer's establishment and it was held the accident arose out of the employment. Newark Hair & Biproducts Co. v. Feldman, N. J. Law ; 99 Atl, 602 ; ^. C. C. A. The burning to death of an employe in the burning building of his employer is an injury in the course of the employment entitling his dependents to compensation. In re Horn, 1 Bull. Ohio Ind. Com. 35. 58. Flat foot. There is a well-defined injury known as traumatic flat foot, which is characterized by crushing or dislocation of the bones of the foot and drawing loose of ligaments and planta fascia. The treatment consists of immobilization and arch support, followed by massage and gradual use, the disability, if much upon the feet, being likely to continue for several months and possibly even several years. There is also a form of injury to pre-existing flat foot which commonly follows disuse caused by any circumstances which puts the injured workman out of commission and off his feet for a number of weeks. Such feet give little or no trouble so long as there is no disuse. Dis- ability caused by distrseWe r^ult of an accidentally injury was heldj ABISING " OUT OF " AND IN " THE C6UESE OF " EMPLOYMENT 648 Foreign substance In eye to be such an injury as arose out of the employment. Freeh v, San Joaquin Light & Power Corporation, 2 Cal. Ind. Ace. Com. 641. 59. Friction injuries. Where an abscess formed as the result of a break in the callous on the palm of the hand at some time during an employment in which an employe was continuously handling a hammer, but the injured employe was not aware of the exact time when such break occurred, it was held that this was an accidental injury arising out of the employment. Zavella v. Naughton, 2 Cal. Ind. Ace. Com. 688. 60. 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 abrasion of the cornea. This resulted in the necessity of removing the eye. It was held that this was an accident arising out of the employment. Adams v. Thomp- son (1911), 5 B. 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 Act. Neville V. Kelly Bros. & Mitchell (190Y), 13 B. C. 125; 1 B. W. C. C. 432. W^here a foreign substance was introduced into the eye and such substance subsequently caused irritation resulting in ulceration and the loss of the sight of the eye, it was held that this was an accidental injury arising out of the employment. Orant v. Narlian, 1 Cal. Ind. Ace. Com. (Part II), 483; 12 N. C. C. A. 386. A street railway conductor, while standing on the running board of an open car collecting fares, got sand or dust in his eye, which incapacitated him for work. Compensation was refused, it being held that there w^as nothing to show that the employment involved a specially added exposure, or that the conductor was exposed to more risk of getting dust in his eye than is usual to anybody who rides in an open car or other open conveyance in the summer. Shaw v. Massachxisetts Employees Insurance Ass'n (1914), 3 Mass. Ind. Ace. Bd., No. 707 ; 12 F. C. C. A. 197. It appeared that tlQ'^^^M'^Sf°§9&feiisation had sore eyes 644 beadbuet's -woekmen's compensation law Frostbite when he went to work on April 1, 1913. A few days later he alleged he got dust in his eyes from a machine. N"othing was said about the accident until June 12 following, when the applicant demanded com- pensation. The application was denied. Wilkie v. Thomas Forman Co., Mich. Ind. Ace. Bd., Oct. 15, 1913 ; The Indicator, Oct. 20, 1913, at p. 417. A night watchman in a furniture plant was closing a window against a storm when some extraneous matter lodged in his eye, which resulted in the loss of the eye, and it was held that the injury arose out of the employment. Kohyra v. Adams (1916), 176 App. Div. 43 ; 162 Supp. 269. 61. Frostbite.^ An employe was required to travel around the country in a con- veyance and make numerous calls on persons with whom his em- ployer did business. He started very early in the morning, one extremely cold day, and made about fifty calls, entering warm build- ings and then going into the cold again, which resulted in severe frostbite to the nose and. the face near the nose, causing a break in the skin. Erysipelas having developed by means of a germ having entered this break in the skin, it was held this was an injury arising out of the employment. Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303 ; 97 Atl. 320 ; 12 K C. C. A. 308 ; aff'g 1 Conn. Comp. Dec. 113. A night watchman in going his rounds had frozen his feet, but was unconscious of the fact at the time, when he stubbed his toe and by reason of the excessive pain in the frozen feet he became uncon- scious and fell, thus injuring his spine. It was held that the acci- dent arose out of the employment. Dorrance v. New England Pin Co., 1 Conn. Comp. Dec. 24 ; aff'd by Superior Court, Id. 28. Where an employe was obliged to work out doors in a coal yarH shoveling coal into wagons, on a very cold day, when the temperature ranged from zero to six degrees below zero, and his fingers were frozen, it was held that this was an injury arising out of the employ- ment, for which compensation was awarded. The Board in this case made the award on the ground that the employe had been subject to 1 See same title In Ch^(&i^Py Microsoft® AKISIWG OUT OF " AND IN " THE COUESE OF " EMPLOYMENT 645 Gas poisoning materially increased exposure. Doherty v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 661 ; 12 JST. C. 0. A. 312. Frostbite was held to be an accidental injury, under the New York Act, where it was suffered by a man carrying coal from a wagon into the house of the customer of the employer on a very cold and stormy day. Days v. Trimmer & Sons (1916), 176 App. Div. 124; 162 Supp. 603. An ice harvester, while harvesting ice and lugging it into cars, was tamping ice witlj a steel tamp, when his mittens accidentally became wet and froze his fingers, the temperature being thirty degrees below zero, and it was held that the injury arose out of the employment. Cole V. Callahan & Sperry, 4 JST. Y. St. Dep. Rep. 348 ; 12 N. C. C. A. 310. Originally ice harvesting was not a hazarcjous employment under the New York Act, but it was subsequently added by an amendment. (a) Freezing to death. An electric lineman was called in an emergency to locate trouble and repair an electric line and was over- come in a severe snowstorm and was frozen to death. It was held that this was an accidental injury arising out of the employment. Young v. Northern California Power Co., 1 Cal. Ind. Ace. Com. (Part I), 88 ; 12 N. C. C. A. 309. 62. Gasolene fumes inhaled. An automobile mechanic while employed in a well-ventilated garage suffered anaemia and general debility, alleging that his condition was ' due to inhalation of gasolene fumes, but no other employe working in the same place was affected. It was held that the injury did not arise out of the employment. Tittis v. Arnold (1916), 3 Cal. Ind. Ace. Com. 282. 63. Qas poisoning. Where the death of a miner was caused by inhaling poisonous gases known as " black damps " or " white damps," it was held that this was an injury which arose out of the employment. Giacohbia V. Kerno-Domewald Coal Co., 1 Bull. 111. Ind. Bd. 196. Where an employe was required to work in a room where there was a large gas jet and the combustion was imperfect and it appeared that death was caused Qf9!S(i?i6(r&y MfiKiMS^ caused by the poison- 646 beadbuet's woekmen's compensation law Heart failure ing from the unburned gas, it was held that this was an accidental injury arising out of the employment. Bishop v. City of Chicago, 1 Bull. 111. Ind. Bd. 96. A night watchman was found dead in a chair in the shanty of the storeyard, and a rubber tube feeding a gas heater in the shanty was disconnected and the gas flowing from the tube. The window of the shanty was open at the time. The cause of death was gas poisoning. It was held that the accident arose out of the employment. Kehoe V. Consolidated Telegraph and Electrical Subway Cfi. (1916), 9 N. Y. St. Dep. Eep. 384. 64. 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, Ind. App. ; 65 N. E. 608; rev'd on another point, 161 Ind. 217; 67 N. E. 1057. While the mere act of getting water is not a part of the duties of the em- ploye, yet it is a physical necessity which must be attended to while the employe 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 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 Boiling Mill Co. y. Bochhold, 143 Ala. 115; 42 So. 96. Where a brakeman on a freight train went into the cab of a loco- motive of another train to secure a drink of water, 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 railroad 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. B. Co., 82 S. W. 567; 26 Ky. Law Eep. 828. 65. Heart failure.^ Heart failure due to overstrain is an accident arising out of the 1 see Heart disease In^ffl^gCfj^ M/croso/?® ARISING " OUT OF " AND IN " THE COUKSE OF " EMPLOYMENT 647 Hernia employment when the strain was due to the work which the man was performing. DougMon v. A. Hickman (1913), 6 B. W. C. C. 77. 66. Heat stroke.^ Death from heat stroke, or sun stroke, is not a ground for com- pensation where the employe was subjected to the same dangers from excessive atmospheric conditions on a humid summer day as was every other person who had to work in the general locality of the place where this particular workman was employed. Burke v. P. Ballan- tine & Sons (Essex Common Pleas, 1915), 38 N. J. Law J. 105; 12 N". C. C. A. 322. Where a man sixty-three years of age was overcome by heat and died while shoveling stone from a car, on a day when the temperature ranged from 74 degrees to 86 degrees, and the humidity from 76 degrees to 77 degrees, it was held that this was not an accidental injury arising out of the employment. Tank v. City of Milwaukee, Third Annual Eeport (1914), Wis. Ind. Com. 80. 67. Hernia." An employe was engaged in doing heavy lifting when suddenly he felt a sharp pain in his groin and left work immediately, making complaint of the happening of an accident. He reached home in con- siderable agony, his condition being diagnosed, by a physician who was called at once, as strangulated hernia. But the testimony of the physician, who later performed an operation, did not definitely estab- lish whether the hernia was new or of older origin. It was held that- the evidence was sufficient to establish a finding that the hernia was proximately caused by accident arising out of the employment. Jorgensen v. Healy-Tibbitts Construction Co., 2 Cal. Ind. Ace. Com. 56. Inguinal hernia is often a matter of slow growth and prenatal tendencies, although it may be caused by a strain or other injury. As it rarely develops in the absence of a prenatal tendency, strong proof is always to be required to establish the industrial accident as its cause. Where the applicant cannot remember any occasion of strain or injury at the time his hernia was developing, the evidence 1 See same title in Chapter XII. 2 See same title in ChapQ^fJtEecf kifeM.mcSi0€^ and strams. 648 Home injuries is insufficient to establish an injury in the course of his employment as the cause thereof, deck v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 135. It is not sufficient to establish as a fact that a hernia or the strangu- lation of a hernia is coincident with lifting or other laborious service, but it must be clearly established that the lifting or other laborious service was the actual and almost unquestioned caused of such hernia or strangulation thereof, and the burden is always on the claimant for compensation. Andre ini v. Cudahy Packing Co. and Casualty Co. of America, 1 Gal. Ind. Ace. Com. (Part II), 157; 6 IST. C. C. A. 390. Later, however, the California Commission modified its views as to hernia and adopted a more liberal policy. See cases cited under this title in Chapter XII. An award was made for a hernia caused by a strain while lifting as being an accidental injury arising out of the employment. Pdppa V. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 11. An employe had been pushing a heavy truck and being ill he was told to gd to the employer's doctor who discovered a hernia, which the employe told the doctor he had received while at work. The hernia caused the employe's death. It was held, under the presump- tion contained in section 21 of the New York Act, there being no substantial evidence to the contrary, that a finding by the Commis- sion that the death resulted from an accidental injury arising out of the employment was proper. Fleming v. Robert Gair Co. (1916), 176 App. biv. 23 ; 162 Supp. 298. A ruptura caused by a strain while at work is an accident arising in the course of employment, for which compensation must be allowed. Poccardi v. Public Service Commission, 75 W. Va. 542 ; 84 S. E. 242 ; 8 ]Sr. C. C. A, 1065. 68. Home injuries. A man employed to run a pump and watch pipe lines was injured while at home, by the explosion of a dynamite cap, caused by a match, lighted either to ignite his pipe or to start a fire to heat some water. The cottage in which he lived was furnished by the employer. It was held that the accident did not arise out of the employment. Edgley v. Emil Firth, 1 Cal. Ind. Ace. Com. (Part II), 651 ; 12 N. C. 0. A, 895. Digitized by Microsoft® AND IN " THE COUESE OF " EMPLOYMENT 649 Horse-play, larking or Joking 69. Horse-play, larking or joking . 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, Sons, Lescher & Webb (1911), i B. W. C. C. 138; following Fumiss v. Oartside & Co. (1910), 3 B. W. 0. C. 411. A domestic servant while engaged 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 section 1 (1) of the Act of 1906. Wilson v. Laing (1909), 46 Scotch L. E. 843 ; 2 B. W. C. C. 118. Some workmen, 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 ware- house. 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 injured. 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, acting in the spirit of horse-play had placed himself in a very dangerous situation, and the claimant going to his rescue, was seriously injured, it was held that the workman who took the risk, was not injured while per- forming 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. K. 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. 0. C. 81, Where in a spirit of horse-play one workman tapped his friend on the back and received^, push in return, from which he fell and was injured, it was held thartne acci^dent dia not arise out of the employ- 650 Horse-play, larking or joking ment. Wrigley v. Nasmyth Wilson & Co. (1913), 6 B. W. 0. C. 90. A fellow employe directed a trick camera toward the claimant and a missile from the camera hit him in the eye and the sight of the eye was destroyed. It was held that the injury did not arise out of the employment. Fishering v. Pillsbury (1916), 1Y2 Cal. 690; 158 Pac. 215; aff'g 2 Oal. Ind. Ace. Com. 607; 12 K 0. C. A. 790. Where an employe who was peculiarly susceptible to being tickled was going down a flight of stairs and a fellow employe punched him in the back with a newspaper, causing him to make a sudden move- ment and fall down, it was held that the injury did not arise out of the employment. Coronado Beach Co. v. Pillsbury (1916), 172 Oal. 682 ; 158 Pac. 212 ; 12 K C. C. A. 789 ; rev'g 2 Cal. Ind. Ace. Com. 384. An injury from a stream of hot water turned on an employe by a fellow employe as a practical joke was held not to arise out of the em- ployment. Vittorio V. California Pottery Co., 3 Cal. Ind. Ace, Com. 26. Where it appeared probable that fellow employes had put a small portion of caustic soda in a bottle of beer, which was furnished to an employe in a brewery, in the spirit of horse-play, it was held that compensation could not be awarded for any injury which might have occurred by reason of the employe drinking the beer with the caustic soda therein. Koch v. Oakland Brewing and Malting Co., 1 Cal. Ind. Ace. Com. (Part II), 373. A bartender fooling in a friendly way with a drunken customer, whom he was serving, was injured, and it was held that the injury arose out of the employment and compensation was awarded as such an injury was incidental to and peculiar to the duties of a bartender. Frandsen v. Rasmussen, 3 Cal. Ind. Ace. Com. 84. An employe in a candy factory making loUypops attempted to get an empty box when she had filled the box in which she was putting the loUypops which she was wrapping. A boy working in the same fac- tory, in a spirit of fun, took hold of the box and resisted her attempt to get it and in the scuffle which followed the claimant was injured. It was held that the injury arose out of the employment. Orandfield v. Bradley Smith Co., 1 Conn. Comp. Dec. 479. A young girl, working in the same room with the claimant, who was a boy, threw a p^^'gf remai& connection between ABISING " OUT OP " AND IN " THE COURSE OF " BlfPLOYMENT 655 Infection from burn the hazard of the employment and the loss, then the liability is not established. Matter of Glatzl v. Btumpp, 220 N. Y. 71; 114 N. E. 1053 ; dist'g Matter of Costello v. Taylor, 217 N. Y. 179 ; 111 N. E. 755 ; 11 K C. 0. A. 320. A driver of a delivery wagon by arrangement with his employer took the horses to his home Saturday afternoon to give the horses pasture over Sunday and then drove them back to the city Monday morning. He was injured on Monday morning while caring for the horses preparatory to driving into the city. It was held that the in- jury was received in the course of the employment. In re Chase, 1 Bull. Ohio Ind. Com. 53. 73. Independent contractor doing extra work. Claimant contracted to furnish a dredge, which he owned, and to make repairs thereto, with the services of himself or a substitute. The person who hired the dredge agreed to furnish supplies. Upon the failure of such person to furnish such supplies, the owner of the dredge found it necessary to go ashore in a motor boat to secure sup- plies. While cranking the engine it back fired and broke his arm. It was held that the owner of the dredge was an employe of the per- son who hired it while performing the duty of going ashore to get supplies and that the injury arose out of his employment, as such, even though as to the operation of the dredge proper, he was in the position of an independent contractor. Powley v. Vivian & Co., 169 App. Div. 170; 154 Supp. 426; 10 K C. C. A. 835; aff'g 3 K Y. St. Dep. Kep. 366. 74. Indigestion. A claimant in shoveling snow contended that he "overdid" and was lame in consequence. But it appeared, from competent medical testimony, that he was suffering from dyspepsia and acute indiges- tion. Compensation was refused on the ground that there was no injury arising out of the employment. Graves v. Connecticut Mills Co., 1 Conn. Comp. Dec. 657. 75. Infection from burn. The applicant claimed compensation for an amputated finger which amputation w^gy^y^lgPj^yt/Jj/fe^lo^^^ ^^^^ necessary as the 656 Infection from splattering water without break of skin result of a burn suffered while striking a match, to light the gas for a body ironer, in the employer's laundry, the wound afterward becom- ing infected. It was held that the evidence was insufficient to estab- lish the fact that the injury to the finger occurred in the course of employment and compensation was denied. Wells v. Metropolitan Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 66. 76. Infection from crack in calloused hand. Where a crack in a calloused hand of an employe became infected, but the employe could not tell exactly how the injury happened and could not say that the hand was bruised while he was working, it was held that the evidence was insufficient to show that an injury arose out of the employment and compensation was refused. Netherland V. Contra Costa Construction Co., 1 Cal. Ind. Ace. Com. (Part II), 440. 77. Infection from opening pimple. An employe was troubled with pimples and at his request a fellow employe opened a pimple in an unsanitary manner, resulting in blood poisoning. It was held that such injury was not received in the course of employment. Behello v. Marin County Milk Producers, 1 Cal. Ind. Ace. Com. (Part II), 87. 78. Infection of pimple by scratching. A switchboard operator in a telephone exchange inadvertently scrtached a pimple on her face while at work and the pimple became infected causing death from meningitis. The germs might have been picked up anywhere and could have been carried by the finger nails for several days. It was held that the injury did not arise out of the employment. Shelby v. Pacific Telephone & Telegraph Co. (1916), 3 Cal. Ind. Ace. Com. 214. 79. Infection from splattering water without break of skin. While an employe was cleaning a closet some water splashed on his face and hands which he wiped off. Subsequently his face began to swell and his hands became infected to such an extent that it became necessary to amputate one finger. This being the only evidence as to the cause of the m^mSe^f'S'^k^&h^ the claimant had not sus- AEISING OUT OF " AND IN " THE COUESE OF " EMPLOYMENT 65Y Infection from traumatic injury tained the burden of showing that his physical condition was due to an injury arising out of the employment. Oaherty v. The Inter- national Silver Co., 1 Conn. Comp. Dec. 403. 80. Infection from traumatic injury. A mason's laborer using a hammer and chisel left home without any injury to his hand. He returned home later with an abrasion on the thumb of the left hand that held the chisel, where the hammer would most probably have hit him, had it slipped. Two weeks later an abscess formed in the armpit, and the man died from blood poison- ing, due to the abscess. There was medical evidence that the incuba- tion period was consistent with the theory that a microbe had en- tered the wound in the thumb on the day of the injury and started the abscess. There was no evidence to support any other theory. It was held that the accident arose out of the employment and that death resulted from the injury caused thereby. Fleet v. Johnson & Sons (1913), 6 B. W. C. C. 60. An employe who was shaving and painting poles, bruised a hand and knocked a small piece of skin off the back of the hand. Infection and blood poisoning followed causing disability and it was held that this was an accidental injury arising out of the employment. Great Western Power Co. v. Pillshury, 171 Cal. 69; 151 Pac, 1136; 11 N. 0. C. A. 493 ; L. E. A. 1916 A, 281. An infection following a bruise of a finger, causing disability, was held to arise out of the employment. Dreyer v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part II), 489. A bookkeeper received a slight scratch on his thumb and three days later the pain became very great from infection and it was held that this was an accidental injury arising out of the employment. Jame- son V. W. E. Bush, 1 Cal. Ind. Ace. Com. (Part II), 507. An infection arising from an abrasion of the skin on the wrist, which caused the death of the employe, was held to be an injury aris- ing out of the employment. Marsters v. Employers' Liability Assur. Corp., 1 Cal. Ind. Ace. Com. (Part II), 360. A workman suffered an injury to the hand and after the injury had healed he died from septicaemia, which a post-mortem examina- tion showed to be in the shoulder, it being impossible to trace the in- fection from a distance greater than the elbow. But the medical testi- 42 Digitized by Microsoft® 658 beadbuey's woekmen's compensation law Insanity mony being that it was possible for the infection to have come from the wound in the hand and not be traceable at the time of the death, it was held that this was an injury arising out of the employment. Engstrom v. The L. Candee & Co., 1 Conn. Oomp. Dec. 691. Where a domestic servant cut the index finger on the broken edge of a tray and blood poisoning resulted, requiring amputation of the finger and resulting in the stiffening of two other fingers, it was held that this was an accidental injury arising out of the employment. Albe V. Puth (Essex Common Pleas, 1913), 37 IST. J. Law J. 9. A janitor, while cleaning cuspidores in a bank, slightly injured his thumb and blood poisoning developed a few days later, causing his death. It was held that this was an injury arising out of the em- ployment. Patch v. First National Bank of Milwaukee, Fourth Annual Eeport (1915), Wis. Ind. Com. 9. 81. Inflammation of pancreas. Where a messenger on a trolley car suddenly died without any accident having happened, and his death was found to be due to an inflammation of the pancreas, it was held that he had not suffered any injury arising out of the employment. Dependents of Alfonso Criscuolo V. The Connecticut Co., 1 Conn. Comp. Dec. 342. 82. Insanity. An employe was in a hospital because of blood poisoning, following an accidental injury. By reason of the blood poisoning his mind became unbalanced and during the night he ran out of the hospital and disappeared. On the following morning his dead body was found on the railroad track. It was held that there was sufficient connection between the injury, the infection of the hand and the subsequent death so that the death could be said to be the direct result of the acci- dent sustained in the course of his employment. Chiesa v. United States Crushed Stone Co., 1 Bull. 111. Ind. Bd. 82 ; 11 IST. C. C. A. 504. A blistered hand became infected, requiring two operations. By reason of the suffering of the employe and the previoiisly impaired nervous state he became insane, and it was held that the connection between the personal. iujurYandthe insanity being unbroken this was a personal injury ansmg out of employment. Whalen v. United Janitor removing aslaes States Fidelity & Guaranty Co., 2 Mass. Ind. Ace. Bd. 318; 11 N. 0. C. A. 498. A motorman was operating an elevated train in j^ew York City when his train collided with another train, as the result of which the motorman received a shock which caused insanity, and compensation was awarded. McMahon v. Interborough Rapid Transit Co., 5 N. Y. St. Dep. Kep. 371 ; additional decision, Id. 374. In the last- mentioned case there was a dissenting opinion by two of the Com- missioners, on the ground that the insanity of the motorman was due to the fact that he was arrested and locked up, on a charge of homi- cide, and that he lost his position. These Commissioners were of the opinion that the cause of the mental condition of the motorman was too remotely connected with the accident to justify an award of com- pensation. 83. Ivy poisoning. A section hand, who was cutting grass and removing poison ivy and other weeds along the right of way of an interstate railway, con- tracted ivy poisoning from coming in contact with the poison ivy, which resulted in blood poison and acute congestion of the lungs from which he died. Compensation was awarded under the New York Act. Plass V. Central New England By. Co., 4 IST. Y. St. Dep. Kep. 331; aff'd 169 App. 826; 155 Supp. 854; 11 IST. C. C. A. 498. 84. Janitor making repairs. Where a janitor, without specific instructions, was using a band- saw to make repairs about the premises, it was held that the accident arose out of the employment. Meaddows v. Smith Bros., 2 Cal. Ind. Aec. Com. 381 ; 12 N. C. C. A. 902. To the. same effect, Ungar v. Supreme BMty Co. (1916), 9 N. Y. St. Dep. Eep. 343. 85. Janitor removing ashes. A janitor had the care of a boiler, which supplied heat to the building, and as an incident to that work it was his duty to raise the ashes coming from the boiler, by means of a derrick, to the sidewalk, so that they could be carted away. While putting the ash cans back into the cellar he fell over a grating, The accident caused a hernia le fell over a gratins. Ihe a( ,. , Digitized by Microspfl® died ana it was hela that c from which he died anaifway^heifaffla^ compensation should be 660 Lightning striking workman awarded. Kiernan v. Schermerhorn Estate (1916), 8 !N". Y. St. Dep. Rep. 483. 86. Landslide on railroad. A conductor on a railroad train was in charge of a train which had been run to the place where a landslide had occurred, and the con- ductor had gone forward to a telephone on the other side of the ob- struction to report the arrival of his train, and while crossing the scene of the blockade was caught in a new landslide and killed. It was the custom or duty of the conductor to report the arrival of his train at thp end of the run, whether an ordinary or extraordinary terminus of the trip. No instructions had been received by the con- ductor at variance with this duty. It was held that the accident arose out of the employment. Clark v. Northwestern Pacific Railroad Co., 1 Cal. Ind. Ace. Com. (Part II), 191. 87. Lesion of heart from broken rib. An employe suffered an injury causing the fracture of a rib, from the slipping of a beer barrel and the striking of his left side against the tailboard of a wagon. The injury brought about a lesion of the heart, which grew progressively worse, no new cause intervening, and the employe died sometime later. It was held that the death was due to an injury arising out of the employment. O'Hare v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 369 ; 11 K 0. C. A. 178. 88. Lighting pipe. An employe who was compelled to use gasolene in cleaning clothing, in attempting to light-his pipe, set fire to the gasolene upon his hands and was burned, and it was held that this was an injury arising out of the employment. Leg. Op. Iowa Ind. Com. (1915), p. 28. 89. Lightning striking workman.^ A workman whose ditty was to clean out the gullies 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 . See same title in (^'fee^AK Microsoft® ARISING " OUT OF " A^"D IN " THE COURSE OF " EMPLOYMENT 661 Lightning stril^ing worlsman by accident arising out of the employment. Kelly v. Kerry County Council (1908), 42 Irish L. T. 23; 1 B. W. 0. C. 194. But see Andrew v. Failsworth Industrial Soc. (1904), 90 L. T. 611; 6 W. C. C. 11, where a bricklayer on a scaffold, twenty-three feet from the ground, was struck by lightning and it was held that this was an acci- dent. 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 lightning. 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 occurred. But it must be shown that the accident arose because of something he was doing in the course of his employment, or because it placed him in a position of peculiar danger, and the risk incurred was therefore incidental to his employment. Crashe v. Wigan (1909), 100 L. T. 8; 2 B. W. C. C. 35. A section foreman on a railroad took refuge in a barn during a thunder storm, at the direction of the foreman, and he was struck by lightning and killed. It was held that this was not an accident aris- ing out of the employment. Klawinshi v. Lake Shore & M. 8. By. Co., 185 Mich. 643 ; 152 K W. 213. An iceman, who was required to follow a fixed route in substantial disregard of weather conditions, when a severe rainstorm was in progress, left his team and went to a tall tree just within the lot line, either for protection or in the performance of his duties in soliciting orders. Lightning struck the tree and he was killed. It was held that the evidence sustained a finding that the death of the decedent was the result of an accident arising out of his employment. State ex rel. People's Coal & Ice Co. r. District Court of Ramsey County, 129 Minn. 502; 153 K W. 119; 9 K 0. 0. A. 129; L. R. A. (1916) A, 344n. In the last-mentioned case the court said : " If the deceased was exposed to injury from lightning by reason of his employment, something more than the normal risk to which all are subject, if his employment necessarily acentuated the natural hazard from \ight^f^^^i^wM^^!^^e natural to the employ- 662 beadbuey's workmen's compensation law Mental sliock ment, though unexpected or unusual^ then a finding is sustained that the accident from lightning was one ' arising out of employ- ment.' An injury, to come within the Compensation Act, need not be an anticipated one; nor, in general, need it be one peculiar to the particular employment in which he is engaged at the time." The court cited a number of British and American cases on the subject and came to the conclusion that the decision of the court below, that the accident arose out of the employment, was warranted. Where a carpenter while engaged in taking planks out of the water above a dam was struck by lightning and killed, it was held that this was not such an accidental injury as arose out of the employment. Lindauer O'Connel Co. v. Hoenig, Third Annual Keport (1914), Wis. Ind. Com. Y9. 90. Loaned employ6.^ A firm of brickmakers had more teams than they could use for the time being. They sent one of their teams to draw sand for another man, but the work was in no way connected with the operation of making bricks, at a stipulated sum for the man and team. The man was injured by a fall of sand in the sand pit while he was helping to load the sand. It was held that compensation could be awarded against either the owner of the team, as the general employer, or against the owner' of the sandpit, as the special employer, and that the accident arose out of the employment. Matter of Dale v. Saund- ers Bros., 218 ]Sr. Y. 59; 112 IST. E. 571; aff'g 171 App. Div. 528; 157 Supp. 1062, 91. Mental shock. An elevator operator, imagining he saw a fellow workman about to be killed, sustained a stroke of paralysis, resulting later in his death. It appeared that the paralysis was due to hemorrhage of the brain, caused either by severe mental shock, or by a cerebral embol- ism, due to a former diseased condition of the heart. It was held that such evidence was insufficient to prove that the paralysis and death were caused by an accident arising out of the employment. Eech v. Morehouse, 2 Cal. Ind. Ace. Com. 311. 1 See same title in Wi??a-in rf^TP '' TiiTVTTlT r»"V"Rf Tji-MTft 67 li ARISING OUT OF AND IN THE COURSE OF EMPLOYMENT Sunstroke Hhe resulting insanity is such as to cause suicide through a voluntary, willful choice, determined by a moderately inteligent mental power which knows the purpose and the physical efEect of the suicidal act even though choice is dominated and ruled by a disordered mind, then there is a new and independent agency which breaks the chain of causation arising from the injury." A workman's eye was injured to such an extent that he was advised by a specialist to stop work for awhile, or he might loose the sight altogether. The man seemed much depressed and complained in the evening that the pain in his eye was worse than ever. The next morn- ing, after working about an hour, as usual, he went some distance away and shot himself with a revolver which he had brought with him. It was held that there was no evidence to support the contention that the man committed suicide during insanity which was brought about by the accident and compensation was refused. Grime v. Fletcher' {1916), 8 B. W. C. C. 69. 132. Suicide; presumption against. Where an employe was drowned while going to a toilet and the reason for his falling into the water was unexplained, it was held that there was a presumption against his having committed suicide which the employer had not overcome and therefore compensation was awarded. Hartman v. Milwaukee Western Fuel Co., Third An-' nual Keport (1914), Wis. Ind. Com. 64. 133. Sunstroke.^ Where the contributing proximate cause of the decedent's death was heat exhaustion due to arduous and exacting work under con- ditions of heat more severe than those prevailing in the community at large, or than those to which the general run of workmen in the open air were on that date subjected, it was held that the death was due to an injury arising out of the employment and compensation was awarded. McOarva v. Hills, 1 Conn. Comp. Dec. 533 ; aff'd by Su- perior Court, Id. 540. In the last-mentioned case a bricklayer was working on a brick wall during very hot weather, under conditions which were described as particularly trying, in a place where he was shut off from the prevailing breeze and where the sun beat in with especial severity. 1 See Heat stroke an(Pi0fi^eie(ifeytftIie«asol5S@ter XII. 678 beadbuey's woekmen's compensation law Teamster suffers infection to eye while disinfecting stable A furnace tender in a foundry was overcome by the heat andMied after working eleven and one-quarter hours one day, and it was held that by reason of the unusual conditions under which he was working that the death was due to an injury arising out of the employment an4 compensation was awarded. WajteniaJc v. Pratt & Cody Co., Inc., 1 Conn. Comp. Dec. 545. 134. Teamster injured in stable.* Where a teamster was killed while watering an extra team belong- ing to his employer, when he returned early from his afternoon's work, it was held that the accident arose out of the employment, where it appeared that it was the teamster's duty to care for any extra team in the ham. Suburban Ice Co. v. Industrial Board (1916), 274 111. 630; 113 ]Sr. E. 979. Where a teamster whose duty it was to take care of his team and make deliveries to customers of his employers, after his day's work took his team to the stable, and while unharnessing and feeding the team passed behind the team of a fellow employe and was kicked by one of the horses, it was held that the injury arose out of the em- ployment. Gylfe v. Suburban Ice Co., 1 Bull. 111. Ind. Bd. 167; 11 ]Sr. C. C. A. 325. An employe employed by a brewing company to care for and drive a team of horses attached to a beer wagon, was injured by falling out of a door in the second story of a building, in which the horses were kept, while he was preparing to feed them, and it was held that the injury was sustained in the course of the employment. In re Puter- haugh, 1 Bull. Ohio Ind. Com. 143. 135. Teamster suffers infection to eye while disinfecting stable. A driver while disinfecting a stable suffered an infection of his eye, destroying his sight, and it was held that this was an injury arising out of the employment. Walker v. M. Mosson Co., 3 'N. Y. St. Dep. Eep. 362. In the last-mentioned case the workman had lost the sight of one eye prior to his employment and upon losing the sight of the eye in the accident mentioned he became totally blind. The Commission awarded compensation as for the loss of one eye and 1 See title Teamsten t?/&M^W^roso/?® AEISIBTG OTTT OF " AND IN " THE OOtTRSE 01" " EMPLOYMENT 679 Temporarily departing from sphere of employment reserved the case pending the determination as to whether or not he was entitled to compensation for permanent total disability. 136. Teamster neglecting team so horses run away. An owner of a team was hired with his team at a certain wage per day. He was directed by the foreman to take two workmen to a station some distance away and bring material which was on a car. While the team and wagon were standing alongside the car and the wagon was being loaded by the other two men the driver stood on the car doing nothing, when a train came along and frightened the horses so they ran away. In attempting to stop the horses the driver was injured so that he died. It was held that the accident did not arise out of the employment. Oliver v. Smith (Morris Common Pleas, 1915), 38 !N^. J. Law J. 148. In the last-mentioned case the court said : " It is an unwarranted interpretation of the statute to say that an em- ploye, during the period of his employment, may engage himself in his own business or devote himself to idleness, physically separated from his work, and, while thus engaged or devoted, the circimistances at the place of his service becoming changed, and because of which an accident happens and injuries are sustained by the employe while he is endeavoring to resume his place of duty, that under such a sit- uation he may be properly said to have been at the time of the acci- dent * doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time.' " ' See also paragraph 114 in this article. 137. Temporarily departing from sphere of employment. When a workman so far disobeys specific orders, or does something for his own convenience or pleasure, or unnecessarily assumes a risk which has no connection with his duties, it will be held usually that he has so far departed from the sphere of his employment that a re- sulting injury does not arise out of the employment. Thus where a workman goes outside the sphere of his employment to an obviously dangerous place he cannot recover compensation from his employer if injured. Davies v. Crown Perfumery Co. (1913), 6 B. W. C. C. 649. Where a workman arrogates to himself duties which he is neither en^^SaSiStlm^T^ioipBrioTm. and he is injured, 680 BKADBTIEY's WOEKMEn's COMPEWSATIOBr LAW Temporarily departing from sphere of employment such injury does not arise out of his employment. Bums v. Summer- lee Iron Go. (1912), 6 B. W. C. C. 320. A boy who was employed to stand behind a machine and take skeins of wool as they came through some rollers and put them in a basket, one day, contrary to express orders, went to the front of the machine and picked off the bits of fluff from the rollers, and in doing this his hand was drawn in between the rollers and his arm so crushed that it had to be amputated. It was held that the picking of fluff from the rollers was an act entirely outside the sphere of the boy's employment and compensation was refused. Hopley v. Pool, Lor- rimer & Tahberer (1915), 8 B. W. 0. 0. 512. A carter employed by a firm of contractors, who were engaged upon building operations at several railway stations, was directed to go from one of the stations to another to fetch some mortar from the mortar mill there. He was told at the mortar mill that he could not take the mortar without a permit from the foreman. His duty was to remain with his horse and cart, but the carter left them and went to the railway lines to see if he could find the foreman. He was there killed by a passing train. It was held that the accident did not ,arise out of the employment. Morris v. Bowbotham (1915), 8 B. W. C. C. 157. A elevator operator was not employed to oil the elevator, but he was killed while he was oiling it, and it was held that the accident did not arise out of the employment. Dougal v. Wesibrook (1913), 6 B. W. C. C. T05. The last-mentioned case is very briefly reported. It appears also that the claimant was not in fact a dependent, which was one of the grounds in the decision. The part of the decision relating to oiling the elevator was as follows : " In this case there was no contract to do the oiling. It was gratuitous work. There is no scrap of evidence that oiling the lift was any part of the de- ceased's employment." An engine driver while his engine was on a siding waiting for an express train got down from his engine and left the stoker in charge. A, short time later he was found dead, apparently having been killed by a light engine. As it was not shown why the driver had got down from the engine, and as it was held that the burden was on the de- pendents to prove thsP'&i&^il^^iM'SfS^Mi of the employment, com- 'AEISING " OUT OF " AND IN " THE COURSE OF " EMPLOYMENT 681 Temporarily departing from sptiere of employment pensation was refused. Dyhouse v. The Great Western By. Co. (1913),6B.W. C. C. 691. A boy employed in a spinning mill injured himself while cleaning machinery in motion. The judge found, as a fact, that he was not em- ployed 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. O. 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 the man's employment within section 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 railway 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. E. 38 ; 2 B. W. C. C. 99. A domestic servant, who was outside the door of her employer's house drying her hair, returned 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 continued 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 by the girl herself after the happening of the occur- rence, her clothes caught fire while she was drying her hair. It was held that the accident did not arise out 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 pfei^M^% tim^sW^ the result that his hand 682 BEADBUEy's WOEKMESt's COMPBISrSATION LAW Temporarily departing from sphere of employment 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. Qartside & 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 pass- ing 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. TU Wigan Coal and Iron Co. (1909), 3 B. W. 0. C. 65. A work- man 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 accident, and it was held that it did not arise.out of the employment. Bates v. Davies' Executors (1909), 2 B. W. 0. 0. 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. International 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 in starting the engine, and it was held that the accident did not arise out of the employment. Lash v. Evans & Co. (1902), 5 W. C. 0. 17. A boy, employed to control an electric engine by means of a switch- board eighteen feet away from the engine, which was fenced off, for some reason unexplained, left his place of employment near the switchboard and climbed through the fence, while the engine was in motion, and was injured so badly that he died. It was held that the claimant for compensation had not discharged the onus of showing that the accident arose out of the employment. Smith v. Stanton Ironworks Company Collieries (1913), 6 B. W. C. 0. 239. An assistant porter in a hospital was attempting to dust the top of an elevator when he was fatally injured. His general duties were Temporarily departing from sphere of employment cleaning and it appeared' that he had never heen told to dust the elevator. It was held that the accident did not arise out of the em- ployment. Whiteman v. Clifden (Viscount) and others (1913), 6 B. W. C. C. 49. A laborer or fire patrolman in the Forest Service, while in quarters furnished by the government for living purposes, attempted to clean a pistol belonging to a fellow employe. It was held that the injury did not occur in the course of the employment, under the Federal Act. Re William P. Brown, Op. Sol. Dep. L., p. 328. Where a boy was taking a course of instruction before being put in charge of the saw, and during the absence of his instructor he ven- tured to operate the saw on his own account and suffered accidental injury, it was held that he was not acting within the line of his duty at the time of the accident, but was adventuring upon an enterprise fraught with hazard, without the knowledge and consent of his em- ployers, and compensation was refused. Mederos v. Essex Lumber Co., 1 Cal. Ind. Ace. (Part I), 70 ; 12 1^ . C. C. A. 482. The duties of a laborer on a scow, in the operation of a sand pump- ing apparatus, did not require him to go near or touch the engine. He called the attention of the engine operator to the need of dressing on the belt of the engine and was told by the engineer that no dressing was needed and not to put any on. Thereafter the laborer was found in the engine room in a dying condition the result of an injury re- ceived while apparently attempting to put dressing on the belt. It was held that the injury did not arise out of the employment. Carlsen V. Moe, 3 Cal. Ind. Ace. Com. 73. Where the operator of a milling machine went to an adjourning room without orders and without the knowledge of anyone in control of the workmen, for the purpose of shaping, on a circular saw, a block of wood to be used in repairing the automatic feed on the milling machine, it was held that the injury did not arise out of the employ- ment. DuJce v. E. Ilorton & Son, 1 Conn. Comp. Dec. 673. Where a clerk in using a buffing machine to polish a ring belonging to himself was injured it was held that the injury did not arise out of the employment. Maynard v. New London Ship & Engine Co., 1 Conn. Comp. Dec. 47. Where an engineer who was employed to operate an engine and dynamo in the basement, went to one of the upper floors and there 684 beadbury's wokkmen's compensation' law Temporarily departing from sphere of employment volunteered to take some other workmen' to the next floor in the elevator, as a personal favor to them, and was killed while doing so, it was held that his injuries did not arise out of his employment. Spooner v. Detroit Saturday Night Co., 187 Mich. 125; 153 JN". W. 657 ; 9 JSr. C. C. A. 647. The burden of proof is on the dependent to show that the death of the decedent was caused through an injury arising out of and in the course of his employment. Phillip v. Hamburg-American S. S. Co. (Hudson Common Pleas, 1914), 37 'N. J. Law J. 167. In the last- mentioned case an employe was told to go to a particular part of a dock to get some blocks and falls, but was not told to go on the steam- ship which was lying alongside the dock. He was seen to fall into the water while going from the dock to the steamship, but the reason for his going on the ship was unexplained. It was held that the acci- dent did not arise out of the employment. A messenger after having delivered a package observed a horse, not belonging to his employer, on the street, suffering from the heat. In endeavoring to render assistance the horse fell and injured him. It was held that the accident did not arise out of the employment. In re Yerhamp, Ohio Ind. Com., No. 39,943, Sept. 3, 1914,- 12 E". C. C. A. 907. An employe who was employed to operate a truck stopped work and pursued a rat, which ran down an elevator shaft, and while looking down the shaft he was injured by the descending elevator, and it was held that the injury was not sustained in the course of the employ- ment. In re Procknau, 1 Bull. Ohio Ind. Com. 66. Where an employe was injured by the explosion of a dynamite cap, which he was picking, and it was found that it had nothing to do with the employer's business, it was held that the injury did not arise out of the employment. Arndt v. Illinois Steel Co., Third Annual Re- port (1914), Wis. Ind. Com., p. 47. Exceptional cases. A boy who had specific duties to perform, temporarily had- nothing to do. One of his employers seeing him standing idle told him to find a job. The boy began to do something entirely different from his ordinary work and in doing so was in- jured. It was held that the direction of the employer extended the sphere of the boy's work so that he was entitled to compensation for the injury. Lane V, W. Lusty & Son (1915), 8 B. W. C. C, 518. Digitized by Microsoft® Temporarily departing from spliere of employment A mason's laborer was engaged to clean down the ceiling of an arch of a doorway from the inside. There was some ecaffolding erected on the oiitside of the archway. For some unexplained reason the workman took his pail and brush onto the scaffold, and fell front the^ scaffold with the brush in his hand and received injuries from which he died. It was held that the accident arose out of the employment. Roberts v. George Trollop & Sons (1914), 7 B. W. C. C. 678. A belt on a coal carrier became clogged and the belt was thrown off the pulley. It was the duty of the chief engineer to adjust the belt> on such occasions, but on this occasion he happened to be absent. The fireman, in order that his supply of fuel should continue, attempted to adjust the belt and was injured. It was held that the accident arose out of and in the course of the employment, under the British Columbia Act. McCormichv. Kelliher Lumber Co. (1913), British Columbia Court of Appeal, 7 B. W. C. C. 1025. Where a property owner undertaking to complete the buildings of his house hired a cement finisher to make a cement walk and while at work the owner called upon him to help carry into the house a heavy ice box, which slipped and injured the cement finisher, it was held that the accident arose out of the employment. Whitloch v. Mahoney, 3 Cal. Ind. Ace. Com. 122. A surveyor laying out a wagon road about a mile ahead of the construction work was requested by the instruction foreman to inspect an uncompleted bridge and in doing so was injured. There was no direct proof of specific authority of the foreman to make the request on the engineer. It was held that^the injury occurred in the course, of the surveyor's employment, as the act of inspection and consulta- tion was within the general scope of the duties of a surveyor under such circumstances. Brackins v. Trinity Asbestos Mining Co., 3 Cal. Ind. Ace. Com. 22. Where a deckhand on a boat went to the engine room, upon the failure of the engineer to appear, and at the direction of the captain, started the engine and was injured, it was held that the accident arose out of the employment. Graham v. Bay Counties Express Co., 2 ■ Cal. Ind. Ace. Com. 47. Where a shipping clerk departed temporarily from his usual voca- tion to lift a barrel, an act necessary to be done by some one, it was held he did not cease^to.be acting in the course of his employment. Digitized by Microsoft® beadbuey's workmen's compensation law Testing racing motorcycle Hartz V. Hartford Faience Co. (1916), 90 Conn. 539; 97 Atl. 1020; rev'g 1 Conn. Comp. Dec. 318 ; and aff'g Id. 314. A chief engineer whose duty it was to make repairs to the engine .andlio the plumbing and steamfitting throughout the plant went to a buzz planer to shape a piece of wood to make repairs on the engine and was injured. It was held that the injury arose out of the em- ployment. Lane v. Aeolian Co., 1 Conn. Comp. Dec. 32. If it is the duty and the custom of an employe to do whatever he found necessary to be done in a shop and he is injured in the per- formance of his work, he is entitled to compensation as, under such circumstances, the accident arises out of and in the' course of the employment. Whaley v. Hudson, 1 Bull. 111. Ind. Bd. 186; 12 N. CCA. 479. - Whfere an employe of a manufacturing establishment was tempo- rarily performing work for the employer, at his private residence, it was held that the employe was entitled to compensation for an injury arising out of the employment. Foreman Brothers Banking Co. v. George Lanz & Co., 1 Bull. 111. Ind. Bd. 81. Where a man employed to wftsh wagons was injured while cranking an automobile and it appeared that he had cranked automobiles in the presence of the foreman on a number of occasions, it was held that the injury arose out of the employment. Cromowy v. Sulz- berger & Sons Co., IBull. 111. Ind. Bd. 37 ; 12 N. C C A. 485. Where an employe in a laundry, whose usual duties were not con- nected with machinery, operated one of the machines, at the direction of the foreman, and was injured, it was held that the accident arose out of the employment. Woodman v. Travelers Ins. Co., 1 Mass. Ind. Ace. Bd. 142 ; 12 N. C C A. 482. Where a boy who was oiling machinery in motion suffered a broken leg, it was held that the accident arose out of the employment, even though the employer contended that the boy had not been directed to do this particular work, where it appeared that the boy understood he was doing work which he was expected to do. Crowley v. Lange Canning Co., Third Annual Report (1914), Wis. Ind. Com., p. 45. 138. Testing racing motorcycle. Where an employg,,-^y^g§r^j|^^|3^^ racing motorcycles took a machine out on a track to test its engine and speed, as instructed by ARISING " OUT or " AND IN " THE COTTKSE OF " EMPLOYMENT 68Y Tuberculosis the employer, and while speeding it sixty-two miles an hour crashed into a fence resulting in a serious injury, it was held that the acci- dent arose out of the employment. Lawson v, Stockton Motorcycle and Supply Co., 2 Cal. Ind. Ace. Com. 628. 139. Tetanus. Where an employe was struck by the bucket of a dredger and re- ceived, among other injuries, a lacerated wound, and nine days later tetanus developed, it was held that such tetanus was an injury caused by such accident and therefore arising out of the employment. Oaks V. Berkeley Steel Co., 1 Cal. Ind. Ace. Com. (Part II), 218. A driver of a wagon was shoveling dirt from the street into the wagon when he stepped on a rusty nail and tetanus was developed in the wound. It was held that the injury arose out of the employ- ment. Putnam v. Murray (1916), 7 N. Y. St. Dep. Rep. 407. 140. Toxic amblyopia. A photographer in making moving pictures suffered from toxic amblyopia which was due to some poison taken into the body. He had been slightly burned about the face and head by an explosion in the course of his employment, but suffered no injury to his eyes thereby. It was held under the circumstances of this particular case that there was no evidence to show that his condition was due to any accidental injury arising out of his employment. Diebels v. Lasky's (1916), 3 Cal. Ind. Ace. Com. 351. It was held also in the last- mentioned case that toxic amblyopia was not an occupation disease due to the use of metol or wood alcohol. 141. Tuberculosis.^ An employe was operating a crane when one of the timbers of the crane broke and to save himself from being injured he jumped into the river a distance of ten feet, on September 3rd. The water came up to his knees and he waded to shore and contracted a heavy cold from which pleurisy developed which in its turn developed into pul- monary tuberculosis and it was held that this was an injury arising out of the employment. Bist v. Larkin & Sangster, 5 N. Y. St. Dep. Eep. 381. 1 See same title in Chapter XII. Digitized by Microsoft® bbadbuey's woekmen's compensation law Unintentional injury by fellow employe 142. Turning corner too short. Where by reason of the driver of a milk wagon turning the corner too short the wagon overturned and he was thrown out and killed, it was held that the injury arose out of the employment. KoTb v. Borden's Condensed Milk Co., 4 IST. Y. St. Dep. Kep. 347 ; 12 N. C. C. A. 188. 143. Typhoid fever. Twenty days after an employe had occupied a construction camp he developed typhoid fever. It appeared that no other workman occupying the camp had contracted typhoid fever within the preced- ing five years, and no evidence was offered to show that the water was contaminated with typhoid germs. It was held that the evidence failed to show that the employment proximately caused the typhoid fever. Collins v. Oahdale Irrigation District (1916), 3 Cal. Ind. Ace. Com. 344. Where a nurse in a hospital contracted typhoid fever, but it was not shown how or where she contracted the disease, it was held that the evidence was insufficient to establish that the typhoid fever and disability were proximately caused by or arose out of the employment. Tohin V. City and County of San Francisco (1916), 3 Cal. Ind. Ace. Com. 314. Where it appeared that the employer had been negligent in allow- ing the supply of drinking water to become contaminated with typhoid fever germs and one of the employes thus contracted typhoid fever which resulted in his death, it was held that this was an accidental injury arising out of the employment. Vennen v. New Dells Lumber Co., 161 Wis. 370; 154 JST. W. 640; 10 N. C. C. A. 729; L. K. A. (1916) A, 273. 144. Unintentional injury by fellow employ6. An employe was leaning over some work which he was inspecting when another employe came from another room to ask for instruc- tions and in doing so put his arm over the shoulder of the first em- ploye. In doing this a pencil in the pocket of the employe who was seeking instructions pierced the eye of the first employe causing pro- tracted disability and it was held that the injury arose out of the employment. MarTcell v. Oreen Felt Shoe Co. (1916), 8 N'. Y. St. Dep. Kep. 487. Digitized by Microsoft® ARISING " OUT OF " AND IN " THE COTTESE OF " EMPLOYMENT 689 Unnecessarily going to a place of danger 145. Unnecessarily going to a place of danger. Where an employe voluntarily puts himself in a place of 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, YO Pac. 600; 65 Kans. 861; (E. L.) Baker's Adm'r v. Lex- ington & E. By. Co., 28 Ky. Law 140 ; 89 S. W. 149. The duty of a master to furnish his employe a safe place to work has no reference to places at or about which the employe has no business to be. (E. L. ) Montgomery Cotton Mills v. Bowdoin, 58 So. 732 ; 4 Ala. App. 314. The mere fact that an employe engaged to do safe work at a safe place is injured while attempting to do a dangerous act not con- nected 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.) Pfejfer v. Stein, 26 App. Div. 535 ; 50 Supp. 516. The doctrine thus announced in employers' liability cases has been adopted with some modification in workmen's compensation cases. In compensation cases, however, mere negligence is not enough to defeat a recovery. But, as will appear from the cases cited here- after, if the employe deliberately and unnecessarily puts himself in a place of danger, it will usually be held that the resulting accident does not arise out of the employment. 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 employment. Ruling of Washington In- dustrial Commission. Water had accumulated at the pit bottom of a mine to the depth of about eighteen inches at the cage, gradually shallowing back for 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 ascend 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 compensation. The court held that the workman had failed to prove that his incapacity was due to accident, 44 Digitized by Microsoft® 690 beadbuey's woekmen's compensation law Unnecessarily going to a place of danger or that it arose out of his employment, and compensation was refused. M'Luchie v. Watson (1913) (Scotch Court of Sessions), 6 B. W. C. C. 850. An employe of a contractor to electrify the lines of a railroad com- pany 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 contractor 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 elevator voltm- tarily 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 not liable. (E. L.) Lax-Fos Co. v. Rowlett, 139 S. W. 836 ; 144 Ky. 690. Where an employe, at the time of an injury, was not engaged in the discharge of his duty, but he had placed himself in a known situa- tion 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. 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 ma- chinery being started and it was held he could not recover. (E. L.) Schmnoske v. Asphalt Beady 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 contended that the second fall caused the injury and that therefore 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. Mileia V. Newport Mining Co., Mich. Ind. Ace. Bd., July, 1913. A section hand was injured by being struck by an engine while Digitized by Microsoft® Unnecessarily going to a place of danger 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. By. Co. v Troxell, 137 S. W. 543; 143 Ky. Y65. 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 was so generally used by the employes as a passageway as to become known to the officers and superintendent of defendant, though an adequate passage had been provided elsewhere, 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. Div. 446 ; 122 Supp. 797. A girl was engaged to work at a hand press. On a lower floor a number of girls were engaged at power presses. The girl working at the hand press went to the lower floor to get further material and not finding the foreman for whom she was looking went to one of the power presses and attempted to help another girl and while so doing was injured. The power presses were much more dangerous than the hand presses and could be properly worked by one person alone. It was held that as the girl had never been employed to use a power press that the accident did not arise out of the employment. Brinch- man v. Harris (1916), W. C. & Ins. Eep. 45 ; 12 N. C. C. A. 484. An employe whose duty it was to go to a nearby town to supervise building operations went to a railroad station and crossed over the tracks in front of an engine attached to the train. He was struck by an engine on another train behind the one which he was passing and was killed. It appeared that there was a foot bridge over the track and a notice requiring passengers to use the foot bridge and not cross the tracks. Nevertheless, there was one place on the tracks where passengers were in the habit of crossing which place was used for unloading baggage. This was not the spot, however, where the work- man crossed. It was held that the workman had exposed himself to an added risk which was not incidental to his employment and that Digitized by Microsoft® 692 beadbuey's woekmen's compensatiokt law Unnecessarily going to a place of danger the accident did not arise out of his employment. Pritchard v. Torhington (1914), 7 B. W. C. C. 719. A foreman carpenter, superintending work out of town, , was re- quired to report at the office in town every night at six o'clock. The men quit work at five o'clock. In endeavoring to catch a train start- ing at 5.26 he was a little late and reached the station while the train was in motion.. In endeavoring to get on the train while in motion he slipped, fell under the cars»and was killed. It was held that the workman had exposed himself to an additional risk by doing an unauthorized and illegal act and that therefore the accident did not arise out of the employment. Jibh v. Chadwick & Go. (1915), 8 B. W. C. C. 152. A farmer had two pieces of land on opposite sides of a river. There was a bridge across the river and the workmen in crossing also had the use of a boat. One evening the boat not being available a work- man wishing to cross the river in the course of the employment, in- stead of going some distance to the bridge, attempted, contrary to the advice of his employer, to cross by swimming and was drowned. It was held that the accident did not arise out of the employment. Guilfoyle v. Fennessy (1912), Irish Court of Appeal, 6 B. W. C. C. 453. A seaman was assisting in unloading fish from a trawler alongside a pontoon. As the tide rose and fell it was necessary to readjust the sloping board down which baskets of fish were slid from the boat to the pontoon. This workman was on the board and when it became necessary to adjust it, instead of going off at either end, he stepped to the stem of another trawler alongside and for some unexplained reason he fell into the water and died as the result. It was held that the accident arose out of the employment. Oallant v. 8. S. " Gahir " (1913), 6 B. W. 0. 0. 9. Where a private, chauffeur had taken a car to a repair shop and while the car was in the hands of the repairmen he attempted to crank it and it broke his arm, it was held that while this accident might have arisen out of the employment it was not a service growing out of and incidental to his employment while acting within the course of his employment, and compensation was refused. DeLong v. Ahhie E. Krebs, 1 Cal. Ind. Ace. Com. (Part II), 592. In the last-men- tioned case there "^^^■.S^^^^JJj^f^jWX'^^^- The repair men had Unnecessarily going to a place of danger advised the chauffeur not to crank the machine as it was dangerous and not necessary, but he did take hold of the crank nevertheless and the injury resulted. Moreover, the repair men were entirely re- sponsible for the car, at the time, and the chauffeur had no real duty to perform in connection therewith. An employe engaged in driving floating brush down stream away from a railway bridge after a heavy rain was last seen along the bank down stream, where he had gone for some reason unexplained, and later his body was recovered some distance away from the bridge, the marks showing that he had slipped into the river from the bank. It was held that the evidence was not sufficient to show that the acci- dent arose out of the employment. Peroni v. San Francisco, Napa & Calistoga By., 2 Cal. Ind. Ace. Com. 814 ; 12 N. C. C. A. 70. Where a carpenter on a building nineteen or twenty feet high was instructed to come down to lunch, and instead of descending by a ladder attached to the side of the building he came down a rope and in doing so fell and was fatally injured, it was held that this was an injury arising out of and in the course of the employment and that the workman was not guilty of intentional and willful misconduct. Clem V. Chalmers Motor Co., 178 Mich. 340 ; 144 IS". W. 848 ; 4 N. C. 0. A. 876 ; L. R A. (1916) A, 352n. An employe was not walking in the usual passageway supplied by a railroad company, between the tracks and a trestle, but was walk- ing on the railroad tracks voluntarily, at the time he was struck and killed. It was held that the accident, did not arise out of the de- cedent's employment and compensation was refused. Siemienthowski V. Berwind White Coal Mining Co., N. J. Law ; 92 Atl. 909. Where a workman is unloading coal to a coal yard from a car standing on a trestle, disobeyed specific instructions in walking on a narrow way on the side of the trestle, where there was a drop of twenty feet to the street below, and he fell off and received injuries from which he died, it was held that the injury did not arise out of the employment. Lynch v. Newman (Warren Common Pleas, 1913), 37 ]Sr. J. Law J. 17. A boy fourteen years of age who was employed to carry spools on a truck from one portion of a building to another, was found with his head crushed near an elevator, in a place in which he had no business to be, and no reason Sflg3«id!!!feJb|es(4ginejferfft®his presence in this par- 694 BEADBTTET's workmen's COMPEWSAXIOIir LAW Using machinery other than that employed to use ticular spot, and it was held that his dependents had not sustained the burden of proof showing that the accident arose out of the em- ployment. Smith V. Crescent Belting & Packing Co. (Mercer Com- ■ mon Pleas, 1914), 37 K J. Law J. 292. A delivery wagon man while on his route and after having nearly completed his work stopped to go in swimming in Jamaica Bay, the day being a very hot one. The man was drowned and it was held that the accident did not arise out of the employment. McManus v. R. H. Macy & Co., 6 N. Y. St. Dep. Rep. 344; 12 IST. C. C. A. 82. An employe in the performance of his duty of unloading coal went under a coal car and was killed and it was held that the accident arose in the course of the employment. Mercer v. Ott (1916), W. Va. ; 89 S. E. 952. 146. Using elevator contrary to instructions. An employe was directed by a foreman to bring some goods from another floor and in doing so he attempted to use the elevator and his foot was crushed. It appeared there was a notice in the elevator that no one should use it except the regular elevator man, but it ap- peared in the testimony that other employes had used the elevator on various occasions and that the regular elevator man was not at his post when the plaintiff was carrying out the directions of the fore- man. It was held under the circumstances that the accident arose out of the employment. Kreutz v. B. Newmann Hardware Co. (Essex Common Pleas, 1914), 37 W, J. Law J. 58 ; 12 IST. C. G. A. 486. 147. Using machinery contrary to directions. An employe was sent to have a piece of wood shaped on a band saw and instead of having it done by another employe he attempted to do it himself and was injured and it was held that the injury arose out of the employment. Euminga v. Wilson and Bennet Mfg. Co., 111. Ind. Ed., ISTo. 1,434, Jan. 10, 1916 ; 12 IST. C. C. A. 481. 148. Using machinery other than that employed to use. A blacksmith was injured while using a circular saw. It appeared that the employe had been in the habit of doing this and it was held that the injury arose out of the employment. Whaley v. Hudson, 111. Ind. Ed., May iPm^fh^yMi^P^.ftM 479, Volunteers 149. Vaccination. Where following vaccination, as required by the Board of Health, infection followed an ulcer resulting from the vaccination and the employe was incapacitated for work, it was held that this was a per- sonal injury arising out of the employment. Fewore v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 332. An employe vaccinated by direction of superior officer upon recom- mendation of local health authorities and the Public Health Service is injured within the Act if incapacity follows. Re Joseph D. Haley, Op. Sol. Dep. L., p. 255. 150. Violation of safety statute by fellow employe. The fact that an injury is caused by reason of a violation of the Factory Act by a fellow employe, on whom a fine has been inflicted because of such violation, is no ground for denying compensation to the employe thus injured. Gibson v. Dunherley Bros. (1910), 3 B. W. C. C. 345. 151. Volunteers. A volunteer is one who introduces himself- into matters which do not concern him, and does, or imdertakes to do, something which he is not bound to do, or which is not in 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. 636; 103 Minn. 176; aff'g 114 W. W. 750; 103 Minn. 176 ; 17 L. E. A. (N. S.) 334n. A master is not liable for injuries to his 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. 391; 169 Mo. 489; (E. L.) Chamlee v. Planters Hotel Co., 134 S. W. 123 ; 155 Mo. App. 144. If a servant undertakes work of his own motion outside the scope of his employment, without the authority of the master, or his superintendent, he acts as a mere volunteer and cannot recover for an injury resulting therefrom. '(E. L.) Lewis V. Coupe, 85 K E. 1053; 200 Mass. 182. (E. L.) Punkosshi v. New Castle Leather Co., 57 Atl. 559 ; 4 Penne- will (Del. Super.) 544; (E. L.) Ce^iro? Kentucky Traction Co. v. Miller, 143 S. W. 7i^V'^^%'^W?QI^!^. K. A. (K S.) 1184; 696 beadbuky's workmen's compensation law Volunteers (E. L.) Belt By. Co. of Chicago v. Charters, 123 111. App. 322; (E. L.) Central of Georgia By. Co. v. Mullins, 66 S. E. 1028; 7 Ga. App. 381; (E. L.) Pittsburg C. & St. L. B. Co. v. Adams, 105 Ind. 151; 5 ]Sr. E. 187; (E- L-) Chielinshy v. Hoopes £ Townsend Co., 40 Atl. 1127; 1 Marv. (Del. Super.) 273; (E. L.) Horn v. Arnold Scjiwinn & Co., 150 111. App. 559 ; (E. L.) Keller v. Merchants' Mfg. Co., 150 Mass. 362; 23 JST. E. 100; 5 L. E. A. 792n; (E. L.) McCue V. National Starch Mfg.' Co., 142 K Y. 106; (E. L.) Boyd V. Blumenthal, 52 Atl. 330; 3 Pennewill (Del.) 564; (E. L.) Allen V. Hixson, 36 S. E. 810; 111 Ga. 460;. (E. L.) Brown v. Byroads, 47 Ind. 435 ; (E. L.) Bhmett v. Mitchell-Tranter Co., 80 S. W. 1148 ; 26 Ky. Law Eep. 303; (E. L.) Hollingsworth v. Pineville Coal Co., 74 S. W. 205 ; 24 Ky. Law Eep. 2437 ; (E. L.) Michael v. Henry, 58 Atl. 125 ; 209 Pa. St. 213. An accident which occurs to a workman while doing something for his owi} pleasure, foreign to his duty and his employer's interest, does not arise out of the employment. Smith v. Lancashire & Yorkshire By. Co. (1899), 79 L. T. 633; 1 W. C. C. 1. An infirmary received a present of an X-ray apparatus. !N"obody knew the time for necessary exposure for treatment of ringworm,- hut 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 volunteered to have the experiment made and it related to no part of his duties. Curtis v. Talbot and Kidderminster Infirmary Committee (1911), 5 B. W. 0. C. 41. A foreman was the owner of a horse which he used in his em- ployer's business and the employer paid for the keep of the horse, but the foreman was not required to furnish the horse. The foreman having left the horse away from the camp during working hours, an- other employe of the employer volunteered to bring it from the other side of a nearby stream, and while doing this he was accidently drowned. It was held by a majority of the Commission that the accident did not arise out of or in the course of the employment. There was a strong dissenting opinion. Wood v. Chico Construction Co., 1 Cal. Ind. Ace. Com. (Part II), 89. A woman, part oi^wW^orj^^^^^Jj^^ean certain machinery in a factory, finding the guard removed from another part of the ma- AND IN " THE COUESE OF " EMPLOYMENT 697 Wagon washer cranking automobile chinery which it was not her duty to touch, proceeded to clean it. While she was cleaning it the machinery started, and she was injured. It was held that the accident arose out of the employment. 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 making such change. It was the practice of the men to exchange work and the practice was known to and not forbidden by the employer. It was held that the accident arose out of and in the course of the employ- ment. Henneberry v. Doyle (1911), 46 Ir. L. T. 70 ; 5 B. W. C. C. 580. 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. Cambrooh v. Oeorge (1903), 5 W. 0. C. 26. Where a workman is injured because of an accident which is the result of the violation of some specific order concerning his work or which occurs just before his regular hours of employment or within a reasonable time thereafter, in some way connected or associated with his usual work, and the result therefrom redounds to the pro- tection or safety of the property of the employer, or is in the interest of his business, such a person is not a volunteer and an injury in such a case arises out of the emplojTnent. Casparson v. Munn, 1 Bull. 111. Ind. Bd, 151 ; 12 JST. C. C. A. 654. In the last-mentioned case a janitor, whose duties were supposed to end at six o'clock, but who frequently remained as late as ten o'clock at night, was injured while attempting to extinguish a fire in the coal in and about the boiler and engine joom, in the premises where he worked, at about seven o'clock in the evening, and it was held that the injury arose out of the employment. 152. Wagon washer cranking automobile. A wagon washer was injured while cranking an automobile. It was contended that he was not employed to crank automobiles, but it appeared that he had done this work several times before and it was held that the injury arose out of the employment. Cromowy v. Sulzberger & Sons Co., 111. Jnd. Bd., May 28,^1914; 12 N. 0. 0. A. ^ Digitized by Microsoft® 485. 698 Watchmen 153. War risks of non-combatants. An employe traveling on the business of his employer on the Lusitania when the steamship was sunk by a German submarine was held to have come to his death by reason of an accident arising out of the employment. Trumbull v. Trumbull Motor Car Co., 1 Conn. Comp. Dec. 304. An engineer on a fishing trawler was injured by the vessel strik- ing a mine planted by an alien enemy in the ISTorth Sea and it was held that this was an accidental injury arising out of the employment. Bisdale v. Steamship " Kilmarnock " (1914), 8 B. W. C. 0. 7. A railroad employe was injured by a bursting shell which came from a German warship bombarding the English coast and it was held that the injury did not arise out of the employment. Cooper v. Northeastern Railway (1915), 85 L. J. K. B. 187; 11 K C. 0. A. 254. A taxi-cab driver while war was in progress was ordered to drive an ofiicer to an outlying fort at two o'clock in the morning. He was warned to be careful of the sentries, who had orders to fire if they received no reply to the challenge. He was aware of the risk, having several times before driven officers either to this or other forts. It was a dark, wet and stormy night. On approaching the fort he was challenged by the sentry, but being unable to hear aiiything owing to the weather, a closed screen, and a noisy engine, he did not reply. The sentry fired and wounded him in the leg. It was held that the accident arose out of the employment. Thorn v. Humm & Co. (1915), 8 B. W. C. C. 190. 154. Watchmen.^ Where a night watchman while making his rounds on the premises of his employer, fell through an opening in the floor and was killed, it was held that the death was caused by accident arising out of the employmenf. Carter v. Hume-Bennett Lumber Co., 2 Oal. Ind. Ace. Com. 52. Where a night watchman on construction work was making his rounds through the building at about 2.30 a. m. and he fell from a board into the cella-^ and was killed, it was held that the injury arose ■ 1 ; ' „ Digitized by Microsoft® 1 See Assaults. ^ ^ ARISING OUT OF AXD IX Window cleaner falling from ledge out of the employment. Sorge v. Aldeharan Co., 3 JST. Y. St. Dep. Eep. 390. Where a workman was directed to go to an ice pond and remain thereon and prevent anyone from cutting holes in the ice to fish and while he was on the ice pond the ice broke and he fell therein and was drowned, it was held that the accident arose out of his employment. Jillson V. Boss, R. I. ; 94 Atl. YlY. 155. Watchman accidentally shot while cleaning pistol. A watchman who was accidentally shot while cleaning a pistol, which he was neither authorized nor forbidden to carry or use by his employers, was held to have been injured by an accident arising out of his employment. Benson v. Hutchinson Co., 2 Cal. Ind. Ace. Com. 898. 156. Window cleaner falling from ledge. A window cleaner in passing from one window to another, went along a narrow ledge on the outside, although he might have gone inside with safety, and fell from the ledge and was killed. It was held that the accident arose out of the employment. Bullworthy v. OUnfield (1914), 7 B. W. C. C. 191. Digitized by Microsoft® CHAPTEE XIV. WAITING PERIOD PAGE PAGE Aeticu: a — Genbeal View 700 3. In specific injury cases no 1. Definition 700 deduction sliould be made. 700 o T^ 4.1, t, c 4. nrux 4. How Computed 701 2. Death benefit 70O t .» r,n^ 5. Burden of proof 701 ARTICLE A — GENERAL VIEW 1. Definition. It seems hardly necessary to explain that the term " waiting period," as used in workmen's compensation acts, is the time im- mediately after the accident for which no .compensation is awarded, except medical attention. A few of the acts have no waiting period whatever and compensation begins immediately after a disabling injury. The longest waiting period is two weeks. But in some in- stances, if disability continues a considerable time, compensation is then awarded from the beginning of the disability, even though none would be awarded if the disability lasted just short of two weeks, or only a limited period longer than two weeks. ' Very few questions have arisen on this subject as the statutes are clear and easily understood. Those which have arisen will be found below. 2. Death benefit. The waiting period under the California Act is not to be deducted from a death benefit as it has no application to such a benefit. Beals V. United Railroads of San Francisco, 3 Cal. Ind. Ace. Com. 30. The waiting period in the New Jersey Act does not apply where a workman is instantly killed. Conners v. Public Service Electric Co. (]Sr. J. Supreme Cf. 1916), N. J. Law ; 97 Atl. 792. 3. In specific injury cases no deduction should be made. The waiting period should not be deHucted from an award for a specific injury such as the loss of an eye. Swanson'v. Sargent & Co., 1 Conn. Comp. Dec. 433. Digitized tTy IVIItmsoft® WAITING PERIOD YOl Burden of proof 4. How computed. The day on which injury occurred should be included for the pur- pose of determining whether duration of incapacity existed for more than fifteen days, under the Federal Act. Be Frank E. Taylor, Op. Sol. Dep. L., p. 542. The time consumed by an injured workman in returning from the place where he was treated for the injury may be considered a part of the incapacity period where it was necessary to go to such place for treatment because of the lack of facilities at a nearer point. Be William H. Cemich, Op. Sol. Dep. L., p. 539. Where there is a conflict of opinion between government surgeon and attending physician as to ability of claimant to return to work, and the record sustains the views of the attending physician, claimant cannot be forced to lose his right to compensation by being compelled by decision of the Government surgeon to resume work before the fifteen day period expires. Be Walter J. Tyrrell, Op. Sol. Dep. L., p. 546. Compensation begins on the fifteenth day after the injury under the Montana Act. Eeport (1915) Montana Ind. Ace. Ed., p. 128. Compensation is not allowed for disability if it does not last more than fourteen days. Turgeon v. Fox Company, 1 Cal. Ind. Ace. Com. (Part II), 68; Armiger y. Townsend-Davis Bahing Co., 1 Cal. Ind. Ace. Com. (Part II), 55, 5. Burden of proof. The claimant must show affirmatively that incapacity continued for more than fifteen days, under the Federal Act. Be William E. Dray, Op. Sol. Dep. L., p. 540. Digitized by Microsoft® CHAPTER XV. MEDICAL ATTENTION PAGE Article A — Introduction 703 1. Provisions of statutes gen- erally 703 2. Affirmative duty of employer 703 Article B — Basis of Right to Medical Attention 705 1. Failure to give notice to em- ployer of injury 705 2. Limitation ; claim for com- pensation more than six months after injury 706 3. When employe justified in selecting his own physician at the expense of the em- ployer or Insurance car- 15. Rent of apartment in which injured employe is housed 724 16. Carriage hire 725 17. Railroad fare on returning home with nurse 725 18. Expenses of going to and from physician's office ; man partially blinded 725 19. Artificial limb 725 20. Electrical treatment 725 21. Massage treatment 726 22. Plaster casts 726 23. Truss 726 24. Crutches 726 25. Dentists' bills 726 rier 706 Article D — Qualification of 4. Agreement by employe to pay his own medical bill . . 717 Article C — What Medical At- tention Includes 717 1. Computation of period of medical attention ; exclu- sion of date of injury .... 717 2. Ninety day period starts from date of disability, not date of accident 717 3. Extension of period of med- ical attention 718 Medical Attendant .... 727 1. Licensed physician 727 2. Christian Science treatment 727 3. Chiropractor 727 4. Bone setter not regularly licensed, as physician ; em- ployed by consent of both parties 728 5. Liability of employer for negligent medical attention 728 6. Wound aggravated by fail- ure of medical attention.. 728 4. First aid 720 Artioue E — Medical Charges 5. Operation in part to cure pre-existing condition .... 720 6. Renewal of disability from same injury 720 7. Nurses 720 8. Hospital treatment 721 9. Private ward in hospital . . . 722 10. X-ray service 723 11. Surgical operations 723 12. Specialist 723 13. Consulting physicians 724 14. Employment of two physi- cians or surgeons 724 AND I'RACTIOE in COLLECTING 728 1. Amount of charges 728 2. Offsetting additional com- pensation payments against medical bill 731 3. Offsetting cost of additional medical treatment against compensation 731 4. Deducting medical disburse- ments from employe's wages 733 5. Treatment at free clinic... 733 6. Lien of physician 733 Digitized by l\^9^soft® MEDICAL ATTENTION YOS Affirmative duty of employer PAGE PAGE 7. How medical fees collected . 734 2. Tendering medical treatment 8. Rehearing to approve medi- iii tlie nature of an opera- cal bills 736 ^^°^ ^^ ^ condition of stop- ping compensation 736 Article P - Miscellaneous 3. Necessity of submitting to Matters 736 efusal to permit medical attention 736 medical attention 737 operation 736 Insurance carrier's subroga- 1. Refusal to permit medical tion to right to furnish ARTICLE A — INTRODUCTION 1. Provisions of statutes generally. Under one Act no medical attention is provided and under one medical and hospital attention and surgical appliances are allowed without limit as to either time or amount. Between these extremes are various provisions, limiting either the amount which shall be required to be paid or the period over which the attention shall be given or both. These range from two weeks and twenty-five dollars respectively, to ninety days and $300. In California the period is ninety days with no limit on amount and the. Commission may re- quire further service in j)articular cases. The requirements in some of the other States is also elastic and subject to the control of the Board or Commission which administers the law. The particular statute in question must be consulted first in determining any question of this character. Medical attention is not allowed under the Kansas Act except where a workman dies as the result of an injury, leaving no depend- ents. Cain V. National Zinc Co., 94 Kan. 679 ; 148 Pac. 251. 2. Affirmative duty of employer. The employer is liable for reasonable medical attention in the absence of a definite oifer to furnish the same and the refusal of the employe to accept the medical services offered. Trueblood v. County of Los Angeles, 2 Cal. Ind. Ace. Com. 914. The fact that the injury is slight and the parties are under the impression that it does not amount to anything does not relieve the employer from the obliga- ion of taking the initiative and furnishing necessary medical treat- inent. Larson v. HoTbrooh, McOuire and Cohen, 2 Cal. Ind. Ace. Com. 130. Where anSi©/fyfc^f)j0]Mni8iDS9#® carrier does not tender '704 BKADEUEy's workmen's COMPENSATIOlsr LAW Affirmative duty of employer medical attention for a hernia, in a case in which it is caused by acci- dental injury, the employer and insurance carrier are liable for the cost of an operation to reduce the hernia. Viglione v. Montgomery Garage Co., 2 Cal. Ind. Ace. Com. lOY. Upon the happening of an accident the employer must tell the employe specifically what to do and to whom to report, and upon his failure to do this the employer is liable for medical treatment secured by the employe. Denehy v. Panama-Pacific International Exposition Co., 1 Cal. Ind. Ace. Com. (Part II), 109. And where the employe has secured his own physi- cian under such circumstances he will- not be required to change such physician for one furnished by the employer. Denehy v. Panama- Pacific International Exposition Co., 1 Cal. Ind. Ace. Com. (Part II), 109. The employer has a right to select the physician. He must take the initiative and must act promptly in so doing. If he fails to do so he cannot afterward require the injured person to change his physician. Bassett v. Thomson Graf Edler Co., 1 Cal. Ind. Ace. Com. (Part II), 60. An employer having actual knowl- edge of the injury to an' employe is bound to furnish necessary medical and surgical attention and upon his neglect or refusal to do so is liable for the reasonable charges incurred by the employe. Cole- man V. Guilfoy Cornice WorJcs, 1 Cal. Ind. Ace. Com. (Part II), 31. A request by an employe for medical treatment is not requisite to charge the employer with the expenses thereof, when the employer knew of the accident and failed to furnish such treatment. Gardiner V. State of California Printing Office, 1 Cal. Ind. Ace. Com. (Part II), 21. The obligation of the employer to furnish medical treat- ment is an affirmative one and where the employer receives notice of the accident his failure to furnish such medical treatment amounts to neglect or refusal and makes the employer liable for a reasonable charge for such services. Miller v. California Stevedore & Ballast Co., 1 Cal. Ind. Ace. Com. (Part I), 154; Merrill v. General Con- struction Co., 1 Cal. Ind. Ace. Com. (Part I), 140; Scott v. Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 343; Auguzzi v. Bldheslee, Conn. Comp. Com. Third Dist., June 28, 1916, (unre- ported) ; Bradley v. Waterbury ClocJc Co., 1 Conn. Comp. Dec. 179. Where, by reason of the aggravation of a pre-existing hernia, it was necessary for the employe to have an operation performed and the employer was advised of this necessity, but did not offer to furnish Digitized by Microsoft® MEDIC AI, ATTENTION YOfi Failure to give notice to employer of injury medical attention, it was held that the employer was liable for the medical attention secured by the employe including the surgeon's charges for performing the operation, as well as the hospital expenses. Searles v. The Connecticut Co., 1 Conn. Comp. Dec. 97; aff'd by Superior Court, Id. 98. An affirmative duty is placed upon the employer to furnish medical aid and such employer should not wait until a demand has been made therefor when he has knowledge of the accident. Olson v. Hillman's, a Corporation, 1 Bull. 111. Ind. Bd. 121. ARTICLE B — BASIS OF RIGHT TO MEDICAL ATTENTION 1. Failure to give notice to employer of injury. Where there has been insufficient notice of injury and the em- ployer has been prejudiced thereby the employer is not liable for the medical services rendered. Hinies v. Powers Investment Co., 2 Cal. Ind. Ace. Com. 960. Where an employe who receives a slight injury does not give notice to his employer, but secures medical relief him- self, his claim for the value of such medical services cannot be al- lowed. Morrish Y. Brookmiller, 2 Cal. Ind. Ace. Com. 97. Where the employe is derelict in not reporting the fact of the injury to his employer in time to give the latter opportunity to select the surgeon to treat him, no award of the cost of medical or surgical care will be made. Jenkins v. Pieratt, 1 Cal. Ind. Ace. Com. (Part II), 114; Smith V. Hunger Laundry Co., 1 Cal. Ind. Ace. Com. (Part I), 168 ; Yenne y. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 135. Where the fact that an employe was suffering from a sore thumb was reported to the foreman of the department in which she was em- ployed, this was sufficient notice to make the employer liable for reasonable medical services when he has failed to furnish the same. Pettit V. Mendenhall, 2 Cal. Ind. Ace. Com. 238. A notice of the accident, although very informal, in a case where neither party realized the importance of such notice or the responsibility cast upon the employer, is sufficient, nevertheless, to make the employer liable for the- reasonable value of medical and surgical services furnished to said employe because of such injury. Conner v. Acme Cement and Plaster Co., 1 Cal. Ind. Ace. Com. (Part II), 143. A trivial in- jury such as a scratch, which developed into a serious disability by 45,, Digitized by Microsoft® 706 When employ^ justified in selecting his own physician infection, was not brought to the attention of the employer until four days after it occurred, but there being no intent to mislead or prejudice and the employer not having been prejudiced, it was held that he was liable for medical attention. Wilson v American Can Co., 2 Cal. Ind. Ace. Com. 892. Where an employe did not notify his employer of his injury until the twenty-ninth day after the happening thereof, the expenses of hospital and medical services were refused except for the one day of the thirty day period after the day of notification. Joeogan v. Hershman, 1 Conn. Comp. Dec. 229. Where an employe fails to give notice to the employer of an accidental injury, but the employe seeks the services of his own physician and surgeon no claim can be allowed against the employer for medical charges under the Con- necticut Act. Buckley v. Winchester Repeating Arms Co., Conn. Comp. Com., Beees, Com'r, Sept. 29, 1916 (unreported). 2. Limitation; claim for compensation more than six months after injury. Where a claim for compensation is made more than six months after the injury the claim becomes barred and this applies to a claim for medical services as well as for compensation. Stephens v. Clark, 2 Cal. Ind. Ace. Com. 178 . 3. When employe justified in selecting his own physician at the expense of the employer or insurance carrier. California. Where an employe who was injured was dissatisfied with the advice given him by the surgeon first selected by the insur- ance carrier of his employer, and was then directed by the insurer to go to another and upon learning that the second physician was out of town the employe went to his own family physician for treat- ment, it was held that the employe should be allowed his claim for surgical services on the ground that the employer and the insurer had neglected to provide the surgical treatment required. Massa- chusetts Bonding & Ins. Co. v. Pillshury, 170 Cal. 767; 151 Pac. 419; 11 :N^. C. C. a. 426. Where an employer fails to furnish medical treatment until nine days after notice of an accident the employe is i^^^^^^g%MWW(^^f^^^^^ ^^® °^^ physician who has had charge of ms case thus far, and under such circumstances MEDICAL ATTENTION" TOY When employ^ justified in selecting his own physician the employer is liable for the charges of the physician thus employed by the employe. Mohan v. National Mill and Lumber Co. (1916), 3 Cal. Ind. Ace. Com. 278. An employe working for a county was injured. On account of ignorance of the law, medical treatment was neither demanded by the employe nor offered by the supervisor of the county. It was held that the county was liable for the medical attention procured on behalf of the employe. Lytle v. The County of Modoc (1916), 3 Cal. Ind. Ace. Com. 382. Where an employe of a county has been injured and requires immediate medical attention and the county is not in a position to afford the same the county should be required to reimburse the employe for the medical attention which he himself secures, under the California Act. Cordelia Hays Dolan V. Mono County (1916), 3 Cal. Ind. Ace. Com. 358. Where an employe is permitted to choose his own physician, with the acquiescence of the insurance carrier, such employe may change such physician at any time be becomes dissatisfied, even though the insur- ance carrier may object to such change. Agate v. Bradbury Estate Co. (1916), 3 Cal. Ind. Ace. Com. 361. Where the employer was killed in the accident in which the employe was injured and no repre- sentative of the employer offered medical treatment to the employe, it was held that the employe was entitled to be reimbursed for the expenses which he incurred for such medical treatment. Johnson V. Fogarty (1916), 3 Cal. Ind. Ace. Com. 300. Where an employe was tendered and refused surgical treatment which would necessitate hospital care and later was treated by his own physician and incurred hospital expenses, it was held that the employer was not liable for such hospital service. Koponen v. Union Lumber Co., 2 Cal. Ind. Ace. Com. 981. Where it appears that disability has continued and the employe has properly secured the services of a physician selected by her after being discharged by the physician employed by the em- ployer, the employer is liable for the services of the physician thus selected by the employe. Douglas v. J and J Drug Co., 2 Cal. Ind. Ace. Com. 181 ; 11 IST. C. C. A. T61. Where the employe received a cut from a broken piece of glass, which subsequently resulted in blood poisoning and the foreman and assistant superintendent of the em- ployer knew of the accident, but took no steps to furnish medical attention, it was held that the employer was liable for the medical attention, even though subsequently the insurance carrier offered such Digitized by Microsoft® YOS bbadbuet's -woekmen's compensation law When employe justified in selecting liis own physician attention, but the offer was not understood by the employe who was a foreigner and did not understand the English language. Carlo v. Illinois Pacific Glass Works, 2 Cal. Ind. Ace. Com. 182; 11 N. 0, 0. A. 496. Where emergency treatment is imperative, as for ex- ample for the fracture of a skull, the employe is entitled to medical expenses even though the employer had no opportunity to tender treatment by his own physician. Travelers Insurance Co. v. A. G. Spaulding & Bros., 1 Oal. Ind. Ace. Com. (Part II), 575. Where medical treatment is not seasonably furnished by an insur- ance carrier, nor until the employe is about to undergo an operation, the insurance carrier is not entitled to insist on a change of phy- sicians, but is liable for the reasonable value of the services of the physician secured by the employe, Hotchhiss v. Leonard B. Boyer, 2 Cal. Ind. Ace. Com. 61. Where by reason of an injury an employe broke two ribs but the employer's physician merely painted the em- ploye's chest with iodine, and the employe, not being satisfied, sought a physician of his own who discovered the broken ribs and set them, it was held that the employer or his insurance carrier was liable for the reasonable charge for the medical services of the physician secured by the employe. Demoit v. Stone & Webster Construction Co. and Royal Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 187. Where the insurance carrier was notified of the accident at once, and instructed its physician to treat the injured employe and such phy- sician made a superficial examination but did not see the patient again for five days, though requested to do so, and the employe, in the nieantime, had secured other medical attention, it was held that the insurance carrier had not seasonably furnished medical atten- tion and was, therefore, liable for the reasonable value of medical and surgical services contracted for by the injured employe, the claim for such services to be submitted to the Commission for ap- proval before payment. Bailey v. E. T. Wheeler Go. and Etna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 142. Where the employe was injured Saturday, of which the employer had knowledge, but no medical attention was furnished until Monday and the injured man had in the meantime secured his own physician, it was held that he could continue the services of his own physician and the employer was liable therefor. Simpson v. Paraffine Paint Co. and Employers' LiabilnJg Assurance Co.fl^^sl. Ind. Ace. Com. (Part MEDICAL ATTENTION Y09 When employ^ justified in selecting his own physician II), 76. Where the insurance carrier is aware that the employe is heing treated by his own physician and offers to pay the bill when rendered, if it is in accordance with the schedule of the Commission, such carrier has waived the right to insist upon treatment by a physician of its own choice and is liable for the reasonable value of the services of the physician procured by the employe. Devlin v. Smithy 1 Cal. Ind. Ace. Com. (Part II), 418. An employer is not relieved of the obligation of furnishing medical treatment because the first aid tendered to him by a person not a physician was refused by the employe Gregory v. Merrill Metallurgical Co., 1 Cal. Ind. Ace. Com. (Part II), 408. An injured employe is justified in seeking emergency treatment on the day of his injury from any physician, unless specifically directed by the employer or insurance carrier prior to securing such treatment as to where to go and what to do. Bobitson v. Panama Fruit Co., 1 Cal. Ind. Ace. Com. (Part II), 385, While an employer is justified in refusing to pay com- pensation on the report of the physician that the employe is not dis- abled, nevertheless if the physician is in error about this the em- ployer or the insurance carrier is liable not only for compensation but for medical attention by a physician engaged by the employe. Wayman v. Huff, 1 Cal. Ind. Ace. Com. (Part II), 358. Where in case of a serious injury a physician is called at the instance of the employer, who performs a necessary operation, and the insurance carrier does not tender a physician at its own expense until after the operation has been performed, it is too late for the insurance carrier to insist upon a change of physicians. Matteoni v. Roberts & Clark, 1 Cal. Ind. Ace. Com. (Part II), 356. Although an employer is entitled to discontinue compensation payments upon receiving from the physician in charge of the employe a report that the disability of such employe has ceased and he is able to go to work, nevertheless, where it appears on a hearing that the disability still continues and further medical services are necessary, the employer is liable for such services, and where the physician of the employer or insurance car- rier has thus discharged the patient the employe is at liberty to secure the services of another physician in a case where such services are required to effect a cure. Hakala v. JacobserirBade Co., 1 Cal. Ind. Ace. Com. (Part II), 328. Where the insurance carrier offers -to furnish medical treatmfi^^^s^Mfi^siBgf^he employer authorizes YlO bradbuey's woekmek's compensation law When employe justified in selecting his own physician the employe to procure medical attention of his own choice, the insur- ance carrier is liable for the value of such medical and surgical ser- vices as were rendered under such circumstances, without determin- ing the rights of the matter as between the employer and the insurance carrier. Taylor v. Kissel Ear Branchy 1 Cal. Ind. Ace. Com. (Part II), 322, Where the physician to whom an injured employe was sent charged the employe with being a fakir and declared that he was without need of treatment and made no offer to treat the employe, it was held that the employe was justified in not going again to such a physician ,and the proper charges of the physician selected by the employe who rendered necessary medical treatment were properly chargeable against the employer and the employer's insuranc car- rier. Nelson v. Dave ZelinsM & Son, 3 Cal. Ind. Ace. Com. 56. In every case where a large employer has provided no adequate hospital facilities for serious cases the Commission will sanction the taking of such injured person out of the hands of the physician of the employer and placing him in a proper hospital and under the care of a prdper physician. Campbell v. L. E. White Lumber Co., 3 Cal. Ind. Ace. Com. 33. Where the treatment accorded the injured man is inadequate and likely to result in death the refusal of the physician of the employer to permit the employe to go elsewhere for treatment is unjustifiable and the employer must pay the full medical bill incurred by the employe in securing proper treatment. Camp- bell V. L. E. White Lumber Co., 3 Cal. Ind. Ace. Com. 33. Where a series of delays of the employer and insurance carrier to provide medical treatment occurred, during which time the employe went to her own physician and then, after a mistaken diagnosis by the insur- ance carrier's physician, she again went to her own physician and, received treatment found to be necessary, it was held that the em- ployer and insurance carrier were properly chargeable with all such medical treatment received within ninety days of the accident. Allard v. Browne, 2 Cal. Ind. Ace. Com. 464; 11 K C. C. A. 761. Where an injiired employe was asked by his employer if he desired to go to a certain hospital to which the employe replied that he would go to his own doctor, and the employer did not dissent, it was held that the employer was liable for the medical services rendered by the physician selected by the emplove. Read v. Bowman, 2 Cal. Ind. Ace. Com. 665. Wmie an emplbye, with the consent of the em- MEDICAL ATTENTION Yll When employe justified in selecting his own physician ployer, had secured a physician who treated the employe until he was practically recovered, it was held that the insurance carrier could not, at this late date, substitute its own physician, against the wishes of the employe. Fly v. San Diego Transfer Co., 2 Cal. Ind. Ace. Com. 706. Where, following a fracture, the physician in a country town was unable to tell the nature of the injury, and after two days the employe, of his own accord, went to a hospital in a large city where the serious nature of the injury was discovered, and a cure effected, it was held that the employer was liable for the medi- cal services. Miller v. Aetna Springs Co., 2 Cal. Ind. Ace. Com. 534. Where an employer has prompt knowledge of an injury and the insurance carrier offers a physician, but in an urgent case the physician does not arrive promptly, the employe is justified in securing medical attention for which the insurance carrier is liable. Jameson v. W. E. Bush, 1 Cal. Ind. Ace. Com. (Part II), 507. While an insurance carrier is justified in demanding a change of physicians from the one engaged by the employe in an emergency, if such change is requested within a reasonable time, the insurance car- rier is not justified in delaying for several days until definite arrange- ments have been made for the continuance of treatment by the phy- sician engaged by the employe and then demanding change where, at the time of such demand, the patient is seriously ill. Jameson v. W. E. Bush, 1 Cal. Ind. Aee. Com. (Part II), 507. Where an em- ployer knows of an injury at the time it was received, but believes it to have been caused by disease and not by accident and fails to provide medical treatment, the employe is entitled to recover the reasonable value of medical services and hospital treatment furnished to her by physicians of her own choice. Loustalet v. Metropolitan Laundry Co., 1 Cal. Ind. Aec. Com. (Part II), 318. Where the medical services offered by the employer are refused by the employe no allowance can be made to the employe for such services. Ely v. Weaver, 2 Cal. Ind. Ace. Com. 707. Where an employe suffered an injury which might have caused a hernia, but delayed surgical treatment more than two months after the injury, it was held that the employe had not only jeopardized her own interests but the interests of her employer, and in fact, slept upon her own rights to demand medical and surgical treatment at the expense of her employer. Ash v, §igifkem^ Wtcfhs^^^'''' ^'"'O'wn as Barker 712 beadbuey's woekmbn's compensation law When employ^ justified in selecting his own physician Brothers, 2 Cal. Ind. Ace. Com. 40. Where following a slight wound infection follows and the employe secures his own physician and refuses to change to the physician of the employer upon the em- ployer's offer the employe cannot recover for medical attention. McKnight v. American Can Co., 2 Cal. Ind. Ace. Com. 445. Where an insurance carrier furnishes proper medical attention and the em- ploye makes a change with the consent of the employer, but without notice to the insurance carrier, the insurance carrier is not liable for the fees of the physician thus secured by the employe. Spring v. J. G. Miller Co., 3 Cal. Ind. Ace. Com. 4. If an employe continues medical treatment of his own selection, after the insurance carrier has seasonably tendered proper medical attention at his own expense the employe must stand the cost himself. Ely v. Maryland Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 335. Where an employe goes to a physician other than the one furnished by the employer without advising the employer of such change, he can recover the expenses of the medical treatment secured by himself only by showing that that which is furnished by the employer is inadequate and unskillful. McBide v. Union Iron'W orhs, 1 Cal. Ind. Ace. Com. (Part II), 376. An employe is not justified in refusing first aid treatment at the hands of the person designated by the employer to render such ser- vices and provided with proper equipment for that purpose merely because such person is not a physician or one skilled in such treat- ment. Gregory v. Merrill Metallurgical Co., 1 Cal. Ind. Ace. Com. (Part II), 408. To recover for medical and surgical expenses in- curred under the California Act of 1911 the applicant must show the necessity for such treatment, that the employer after notice refused or neglected to furnish the same, or that the treatment offered was not suitable and the reasonable value of the treatment procured by the applicant. Christy v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 35. Where an employe departs from a hospital where he has been placed by his employer at the expense of the employer, he cannot recover from the employer the cost of medical attention away from the hospital. Lanker v. County of Los Angeles, 1 Cal. Ind. Ace. Com. (Part II), 107. Inasmuch as the employer or his insur- ance carrier must pay the disability benefit if the disability is not relieved, and must pay full death benefits or permanent disabilities in addition" to the m^l/^ftte^^J^y^W^sb/S^arges if incompetent phy- MEDICAL ATTENTION 713 When employ^ justified in selecting his own physician sicians or hospitals aggravated the injury, the statute permits the party who must pay the cost, the right to select the physician and the hospital. McNamara v. United States Fidelity & Guaranty Co., 1 Cal. Ind. Ace. Com. (Part II), 138; 11 IST, C. C. A. 760. Where the employer supplies a physician and the employe becoming dis- satisfied goes to his family physician, without the consent of the employer, the employer is not liable for the expenses of the physician selected by the employe unless it is shown that the medical attention furnished by the employer was inadequate. Evans v. Pacific Coast Casualty Co., 1 Cal; Ind. Ace. Com. (Part II), 140. "Where medical attention is seasonably offered by the employer claims for such ex- penses contracted by the employe will not be granted. Kelley v. Pacific Electric Railway Co., 1 Cal. Ind. Ace. Com. (Part II), 150. In the last-mentioned case the employe was a brakeman on an electric road and was injured by the bumping together of two cars. He was taken to a hospital and a few days later removed in an ambulance to another hospital from which, at his own volition and against the advice of the physician whom the employer had employed, he left the hospital and went to his own home and placed himself in the care of a phy- sician of his own selection. It was held under such circumstances that the employer was not liable for the expenses of the physician whom the employe had engaged. Where the employer seasonably furnishes medical attention the employer is not liable for the services of a physician secured by the employe in disregard of the directions of the employe to secure ser- vices from the employer's physician. Newkirk v. Union Ice Co., 1 Cal. Ind. Ace. Com. (Part II), 166. Where an employe, under treatment, departed from a hospital without the employer's consent, and refused to submit to further treatment by the employer's phy- sician, the cost of the additional medical treatment was refused, where it was found that the employe's action had not been justified. Mooney v. Hume-Bennett Lumber Co., 2 Cal. Ind. Ace. Com. 136. The right to medical indemnity is forfeited if the injured man, with- out warrant, forsakes the medical services offered by the employer, but the right to disability indemnity is not affected by such forfeiture. Casanegri v. Medera Sugar Pine Co., 1 Cal. Ind. Ace. Com. (Part II), 589. An employer is not liable for the services of a physician employed by the employe where the services of the employer's phy- Digitized by Microsoft® ' When employe justified in selecting his own physician sician are unreasonably refused by the employe. WilMnson v. Union Iron Works (1916), 3 Cal. Ind. Ace. Com. 213. If the employer furnishes proper medical treatment and the employe secures a phy- sician of his own, neither the employer nor the insurance carrier is liable for the value of the services of the physician thus secured by the employe. Cable v. Hartford Accident and Indemnity Co. (.1916), 3 Cal. Ind. Ace. Com. 235. Connecticut. Where an employe suffered a nernia from an injury arising out of the employment and was told by the physician fur- nished by the employer that an operation was not necessary but that a truss should be used, which direction the employe attempted to follow, but was unable to do so because of the pain, the said physician' refused to give any other directions, but other competent physicians and surgeons advised an immediate operation and it was found that such advice was proper, it was held that the bills of the physicians and surgeons engaged by the employe under such circumstances were a proper charge against the employer. Patralia v. American Brass Co., 1 Conn. Comp. Dee. 412. An employer is liable for medical bills only when he neglects to provide the medical services, or where he agrees to pay for services secured by others. Malkowshy v. Sil- herovicz, 1 Conn. Comp. Dec. 136. Where an employer has notice of an injury and fails to furnish medical attention he is liable for the attention secured by the employe. Beese v. The Yale & Towne Mfg. Co., 1 Conn. Comp. Dec. 154. Where an employer knowing of an injury fails to furnish medical attention the employer and insurance carrier are liable for the services of the physician secured by the employe. Foley v. The A. T. Demarest & Co., 1 Conn. Comp. Dec. 661. Where the physician engaged by the employer treated the workman for a period and then advised him that disability had ceased and upon a subsequent request to see the employe again refused to comply with such request, but the condition of the employe was such as to require the attention of a physician, it was held that the employer was liable for the physician secured by the employe under such circumstances. Pampuro v. Murray Bros., 1 Conn. Comp. Dee. 6Y4. A boy who had received a severe injury to the hand was not sent immediately to the hospital. After arriving at the hospital he was required to wait several hours before treatment was rendered. He became dissatisfiedfijjdl^^^^tr^gjq^iyy^d subsequently left the MEDICAL ATTENTION 715 When employ^ justified in selecting his own physician hospital, but at the time of leaving the proper treatment was being given. It vs^as held that the employe could not recover of the em- ployer the expense of the medical services procured by the employe himself, but as it appeared that the employe still required medicat treatment, it v^as held that future medical treatment should be given at the expense of the employer, notwithstanding the action of the employe in leaving the hospital. Goodspeed v. American Steel and Wire Co., Conn. Comp. Com., Third Dist., Beees, Com'r, Dec. 29, 1916 (unreported). Medical expenses will be refused where there is neither the consent of the employer to the engagement of the surgeon nor neglect of the employer to properly furnish medical attention when he has an opportunity to do so. Bacujja v. The National Folding Box & Paper Co., 1 Conn. Comp. Dec. 522. A physician who has first been employed by the employer, with the consent of the insurance carrier, may subsequently be changed by the insurance carrier, where the employe does not make any objection to such change, and after the date of such change the insurance carrier is not liable for the physician first employed, under the Connecticut Act. Jolly v. Beacon Family Laundry, Conn. Superior Court, Hartford County, March 9, 1917 (unreported) ; aff'g Jolly v. Howe, Conn. Comp. Com., First Dist., Williams, Com'r, Dec. 2, 1916 (unreported). Where proper medical attention has been promptly furnished by the employer the employer is not responsible for any bills incurred by the employe in seeking advice from physicians other than those furnished by the employer where the employe secures such services without the knowl- edge or consent of the employers. Ginsburg v. HettricJc, Conn. Comp. Com., Second Dist., July 31, 1916 (unreported). Where an employe refuses the medical aid furnished by the employer and hires a physician of his own, the employer is not liable for the bill of the physician thus secured by the employe. Wyrwas v. Big elow-H art- ford Carpet Co., 1 Conn. Comp. Dec. 326. Where an employe clearly understands that he can have medical attention by a skillful surgeon furnished by the employer, but he refuses such services and employs a surgeon of his own, he cannot be allowed a claim for medical atten- tion. Sirici V. Scovill Mfg. Co.; 1 Conn. Comp. Dec. 171. Massachusetts. Where broken bones were properly set by a physi- cian furnished by theQ/pg^^^cj^j^jJ^ three days later the em- 716 When employe justified in selecting his own physician ploye went to another physician who attended him and by reason at the change of physicians, breaking the continuity of treatment as first established, recovery was hindered and delayed, it was held that the employe could not recover for the services of the physician employed by him. Amorosino v. Massachusetts Employes Ins. Ass'n, 1 Mass. Ind. Ace. Bd. 285. Where printed notices had been posted on the premises of the employer informing the employes that in case of injuries certain physicians were to be called and bills of other phy- sicians would not be paid by the insurance company, it was held where an employe who could read the notice, called a physician other than one of those named, when no emergency made it necessary to do so, he was not entitled to recovery from the insurance company for the services of the physician thus called, although his charges were reasonable. Pecott v. American Mut. Liability Ins. Co., 223 Mass. 546 ; 112 K E. 21Y. Where an employer had a notice posted giving the names, addresses and telephone numbers of three physicians whom employes could consult free in case of an injury, but an employ who was a foreigner who could not read English secured the services of a different physi- cian, who sent notice to the employer that he was treating the employe under the Workmen's Compensation Act, and it appeared that the employe gave notice to the foreman of the employer at the time of the injury, but the employer did not send any physician to see the employe, it was held that the insurance carrier was liable for the medical attention rendered by the physician secured by the employe for the first two weeks, under such circumstances. In re Panasuh, 105 ¥. E. 368 ; 217 Mass. 589 ; 5 E". C. 0. A. 688. Where an em- ploye, not satisfied with the medical services furnished by the in- surer's physician, engages his own physician, he is entitled to an allowance for his own physician's bill where it appears that he was justified in making the change. O'Brien v. Employers' Liability Assur, Corp., 2 Mass. Ind. Ace. Bd. 398. Where the employer does not proffer medical attention at the time of the injury the insurance carrier is liable for the reasonable value of the services of the physi- cian secured by the employe. Flanagan v. American Mutual Lia- bility Ins. Co., 2 Mass. Ind. Ace. Bd. 440. Minnesota. The e^-^jgg fe^^vj^gi^ to select the physician, MEDICAL ATTENTION 7l7 Ninety day period starts from date of disability, not date of accident under the Minnesota Act, according to the ruling of the Labor Depart- ment. Bulletin No. 9, Minn. Dep. Labor & Ind. 30. New York. Under the Kew York Act the employer has the right to designate the physician so long as the person designated is competent. Keigher v. General Electric Co., 173 App. Div. 207 ; 158 Supp. 939. Wisconsin. An employer, under the Wisconsin Act, cannot be charged with medical treatment unless he has notice of the accident and an opportunity to furnish such treatment, and wnere the employe secures his own physician before notice of the accident and after notice thereof refuses to discharge his own physician, and allow one fur- nished by the employer to treat him, he cannot make any claim for medical treatment. City of Miliuaukee v. Miller, 154 Wis. 652 ; 144 N. W. 188; 4 N". C. C. A. 149 ; L. K. A. (1916) A, In; Beseburg v. Hamilton Mfg. Co., Fourth Annual Report (1915), Wis. Ind. Com. 14. 4. Agreement by employe to pay his own medical bill. Where a voluntary agreement has been entered into by the em- ployer and the employe, which recites that the employe has elected to furnish his own medical treatment at his own expense, such an agreement is binding on the employe, even though he subsequently declares that he did not read the agreement before signing it. Lovorgna v. Barnum, Conn. Comp. Com., Third Dist., Beees, Com'r, Jan. 4, 1917 (unreported). ARTICLE C — WHAT MEDICAL ATTENTION INCLUDES 1. Computation of period of medical attention; exclusion of date of injury. Under the Connecticut Act in computing the period of thirty days for which medical attention must be furnished by the employer the day of the injury must be excluded. Kiniavshy v. The New Haven Carriage Co., 1 Conn. Comp. Dec. 119. 2. Ninety day period starts from date of disability, not date of accident. The ninety day period in the California Act of 1911, during which the employer is required to furnish medical and surgical treatment starts from the time of the disability, regardless of the time of the Digitized by IVIicrosolt® 'tis beadbuey's woekmex's comps^'Sation law Extension of period of medical attention injury. Stevens v. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part I), 49; Hart v. Majestic Servself, Mich. Ind. Ace. Ed., Feb., 1913. 3. Extension of period of medical attention. Under section 15 (a) of the California Act the Industrial Commis- sion has ruled that it will be the policy of the Commission to extend the ninety day period of furnishing medical and surgical treatment to such an extent as is necessary to secure treatment which will as nearly as may be restore the employe to the condition of physical and industrial efficiency which he enjoyed before the injury. Peterkin V. Davis Standard Bread Co. (1916), 3 Cal. Ind. Ace. Com. 312. Where an employe's condition steadily grew worse while he was in a hospital where he had been placed by the employer and the hospital authorities refused his request to call in a specialist, but he subsequently, on his own initiative, changed to another hospital and secured the services of a specialist, after which his condition im- proved and a cure was iinally effected, it was held that under such circumstances the medical treatment for a period extending more than ninety days ought to be charged against the employer. Grant V. City and County of San Francisco (1916), 3 Cal. Ind. Ace. Com. 376. Where the physician frunished by an employer or insurance car- rier makes an erroneous diagnosis of an injury, saying that an injury is merely a strain, when as a matter of fact muscles are torn loose from the hip bone, the employer is not only responsible for the in- creased compensation due to this mistake, but the employe is also entitled to an award that the temporary total disability payment shall continue during the continuance of the disability, unless the employer or insurance carrier shall tender proper treatment to cure the em- ploye from the effects of the injury, even though the period of ninety days during which the employer is liable for medical treatment has elapsed, with the condition that the employe must accept proper" treatment offered by the employer or insurance carrier or forfeit the disability payments. Johnson v. Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 560. Where it appears that disability may be relieved by an operation while the Commissioi^-^y^^^^^^^g^^rect an employer to pay MEDICAL ATTENTION YlS) Extension of period of medical attention for such operation or the employe to undergo the same, it will, in a proper case, direct that compensation shall cease if the employer makes this offer and the employe refuses to accept it and undergo the operation where it appears to be reasonably certain that the operation will be successful and is not attended with serious danger. Hansen v. Pinal Dome Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 230 ; Biedel r. Llewellyn Iron Worhs, 1 Cal. Ind. Ace. Com. (Part I), 240. Where an employe still requires medical attention to effect a cure after the statutory period of ninety days has expired within which the employer is required to furnish such medical services, if the em- ployer elects to furnish further services in order to decrease the dis- ability payments the Commission will require the emplpye to submit to such directions as the physician may give, with the alternative of having disability payments cease unless the employe follows the doctor's advice. Hakala v. Jacohson-Bade Co., 1 Cal. Ind. Ace. Com. (Part II), 328. The California Commission has no power to compel the employer, insurance carrier, or the workman himself, to procure proper medical attention and appliances for proper treatment after the expiration of ninety days from the injury, but if such treatment and appliances are tendered by the employer or the insurance carrier, it will require the injured person to accept such treatment or forego further com- pensation upon his refusal to comply with this direction. Burkard V. San Francisco Breweries, 2 Cal. Ind. Ace. Com. 415. Where an employe suffers two successive injuries the thirty day periods for medical treatment run from the date of each injury re- spectively. EzyhowsM v. F. B. Dashiel Co., 1 Conn. Comp. Dec. 236. The limitation in the Connecticut Act for medical treatment has been eliminated by an amendment. While the insurance carrier is liable for medical treatment for the first two weeks only, where such treatment for a longer time would probably result in a shortening of the period of disability, such treat- ment was recommended by the Arbitration Committee with the pro- vision that should it not be rendered disability payments should be continued. Dibilo v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Ed. 485. Although the period for which medical treatment has expired the Board recommended that the insurer furnish necessary medical treat- Digitized by Microsoft® Y20 Nurses ment for the purpose of curing the employe with the alternative that compensation would be continued during disability. Portnoy v. Fidelity and Casualty Co. of New York, 2 Mass. Ind. Ace. Bd. 823. 4. First aid. The cost of first aid in the case of a serious injury should be borne by the employer no matter who calls the physician. Scott and McPihe, doing business as McPike Drug Co., v. Aetna Life Ins. Co. of Hartford, Conn., 1 Cal. Ind. Ace. Com. (Part II), 343. Where an employer failed to furnish first aid and a trivial wound became infected so as to cause disability, it was held that the employer was liable for compensation and the Commission remarked upon the advisability and even the necessity of employers providing first aid tr,eatment for their employes to prevent trivial wounds from becom- ing serious. Dryer v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part II), 489. 5. Operation in part to cure pre-existing condition. Where an operation serves two purposes, that is to relieve from the effects of an accident, and to cure an old condition, the amount which is chargeable to the employer should be apportioned so that he shall pay for so much of the operation as was required to relieve from the effects of the accident. Loustalet v. Metropolitan Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 318. 6. Renewal of disability from same injury. Where by reason of the too early removal of splints from the frac- tured collar bone the bone came apart and required further medical attention, it was held that the employer was liable for this additional medical attention as it was merely a continuation of the earlier in- jury. Btormont v. Bakersfield Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 533. 7. Nurses. The services of a nurse under the Wisconsin Act can be allowed only as part of the medical treatment and such services cannot be paid for which are furnished ninety days after the accident. City of Milwaukee v. Miller, 154 Wis. 652; 144 N". W. 188; 4 IST. C. C. A. 149 ; L. R. A. {in^'^^ff^. ^V Microsoft® MEDICAL ATTENTION '721 Hospital treatment The employer or his insurance carrier is chargeable for the services of nurses only where the physician in charge either authorizes, re- quires or consents to the employment of such nurses. Hughes v. L. P. Degen Belting Co. and Guardian Casualty and Guaranty Co., 1 Cal. Ind. Ace. Com. (Part II), 203. A claim by a member of the family of an injured employe for pay- ment for nursing will not be allowed where such claimant is not a professional nurse and the case is not a hospital case. Wayman v. Huff, 1 Cal. Ind. Ace. Com. (Part II), 358; Jolley v. O'Shea, 2 Cal. Ind. Ace. Com. 546 ; Forbes v. County of Humboldt, 2 Cal. Ind. Ace. Com. 882. Euling of Mass. Ind. Ace. Ed., Jan. 10, 1913, in answer to inquiry. Brown v. The Johns-Pratt Co. and American Mutual Liability Ins. Co., Conn. Comp. Com., First Dist., June 8, 1916 (unreported) ; In re Burns, 1 Bull. Ohio Ind. Com. 5. Where an injured employe was not sent to a hospital and claimed his board, his nurse hire, consisting of $2.50 a week extra which he paid to the boarding house keeper for attention, it was held that the case not being a proper hospital case that the claim for board and nurse hire could not be allowed. Hurlowshi v. American Brass Co., 1 Conn. Comp. Dec. 6. While usually such services as one member of a family gives to another in the case of illness in the family is not the basis of a claim for compensation as a nurse, nevertheless where it appeared that the injury required hospital treatment and in lieu of such treatment a son gave up employment in which he was earning $3 a day to care for his injured father in accordance with the direction and consent of the physician in charge, it was held that an allowance should be made to the son as a nurse. Kelley v. Manley, 2 Cal. Ind. Ace. Com. 355. Where an injured employe required a nurse's care and was cared for by the woman keeping a boarding house, where he lived, such woman not being a trained nurse, but giving up her work to attend to him, it was held that the employer was chargeable for an allowance for three weeks' nursing at $12 a week. Dexter v. People's Cloak and Suit Co., 2 Cal. Ind. Ace. Com. 542. 8. Hospital treatment. Where the attending physician advises but does not insist that the .Q Digitized by Microsoft® Y22 beadbuey's woekmen's compensation law Private ward in bospital patient be sent to a hospital the employer is chargeable with the cost of reasonable medical attention at the employe's home. Hughes v. L. P. Degen Belting Co. and Guardian Casualty and Guaranty Co., 1 Cal. Ind. Ace. Com. (Part II), 203. 9. Private ward in hospital. Where an employer failed to furnish medical treatment promptly and an employe went to a hospital and took a private ward it was held under the circumstances that the employer was liable for the charges for such private ward. Carter v. Bowe, Conn. Comp. Com., Third Dist., Beees, Com'r, Nov. 27, 1916 (unreported); aff'd Superior Court of Conn., New Haven County, Feb. 2, 1917 (un- reported). A bill for the treatment of an employe in a semi-private ward at $12 a week, in addition to surgical charges for an operation for hernia, was approved. Dufrene v. Bisdon Tool & Machine Co., 1 Conn. Comp. Dec. 411. Where all the public wards of the hospital were filled, it was held that a charge for a semi-private ward was justified in a hospital case. Barton v. New York, New Haven & Hartford B. Co., 1 Conn. Comp. Dec. 227. Where by reason of the nature of the injury a patient became in- sane and a special nurse was required, a bill of the hospital for keep- ing the man in a private ward and for a special nurse was allowed in full. Christophson v. Turner Construction Co., 1 Conn. Comp. Dec. 591. Where a structural iron worker, without means, was placed, by order of the physician in charge, in a semi-private ward at a cost of $12 a week and additional charges for physician's services, when he could have been placed in a public ward for $10 a week, without extra charge for physician's services, it was held that this practice was questionable, but as no point was raised about it on the hearing and the insurance carrier had already paid the hospital charges no de- cision was made as to such practice. Gates v. Berlin Construction Co. and Massachusetts Bonding & Insurance Co., Conn. Comp. Com., Second Dist., June 9, 1916 (unreported). Where from the nature of the injuries it was found by the Com- missioner that the placing of a patient in a semi-private ward in a Digitized by Microsoft® MEDICAL ATTENTION Y23 Specialist hospital instead of a public ward was not justified, the bill of the physician who had treated the patient in the semi-private ward was not allowed, except for the first aid treatment. Beinotovitz v. l^a- tional Iron Works, 1 Conn. Oomp. Dec. 623. 10. X-ray service. In the case of an iron worker who was severely injured and a number of bones were broken a bill of $10 for X-ray service was approved. Gates -v. Berlin Construction Go. and Massachusetts Bonding & Insurance Co., Conn. Comp. Com., Second Dist., June 9, 1916 (unreported). The Compensation Act contemplates that adequate medical treat- ment be provided by the employer. The most important treatment at the time of the injury is to ascertain the nature and extent of the injury, and where a fracture is involved this can seldom be done without adequate appliances, such as facilities for taking X-ray photo- graphs, and an employe is justified in going at once to a place where a correct diagnosis of his case can be made. Miller v. Aetna Springs Go., 2 Cal. Ind. Ace. Com. 534 ; Gole v. Dichman, Id. 702. 11. Surgical operations. The reasonable cost of an operation to relieve an employe from consequences of an industrial accident with compensation for the ^period while disabled by such operation will be awarded the applicant, and the employer required to tender at his own cost suitable surgical and hospital facilities for such operation, and if the applicant then declines such operation the employer is to be freed from all liability. Haley v. Hardenberg Mining Go., 1 Cal. Ind. Ace. Com. (Part II), 127. 12. Specialist. An employe while being treated in a hospital of the employer be- came steadily worse and an application on his behalf was made for permission to call in consultation, at his own expense, a specialist in the kind of injuries sustained by him. Such permission was refused by the hospital authorities as contrary to their rules. The advice and treatment of such a specialist were held to be necessary and proper and the treatment furnished by the employer inadequate within the Digitized by Microsoft® 724 beadbuey's woekmen's compensation law Rent of apartment in which injured employ^ is housed meaning of the California Act and the employe was entitled to be reimbursed for his reasonable expenses incurred in securing the ser- vices of such a specialist. Grant v. City and County of San Fran- cisco (1916), 3 Gal. Ind. Ace. Com. 376. In the last-mentioned ease the employe, after being removed to another hospital and effecting a change in the medical treatment, his condition steadily improved and a cure was finally effected. It was held that this was sufficient evi- dence to prove justification for the change of medical treatment by the employe. 13. Consulting physicicins. An employer is liable for the reasonable charges of consulting physicians who are called in in a proper case by the physician in charge. Schlegal v. Frankfort General Ins. Co., 2 Cal. Ind. Ace. Com. 466. A fee of the consulting physician called in by the physician placed in charge of the case by the employer constitutes a proper charge against the employer, even though the consultation was had upon the suggestion of the family of the injured workman. Swain v. Pacific Telephone and Telegraph Co., 2 Cal. Ind. Ace. Com. 402. A bill for $5 each for three consultations with an additional physi- cian was approved, the original bill being for $10 for each consulta- tion. Gates V. Berlin Construction Co. and Massachusetts Bonding & Insurance Co., Conn. Comp. Com., Second Dist., June 9, 1916 (unreported). But a dependent of an employe who received in- juries causing his death is not entitled to be reimbursed for a physi- cian unnecessarily called in consultation in order to save the life of the employe by an operation, where another competent physician was , already in attendance. Mahoney v. Gamhle-Desmond Co., 90 Conn. 255; 96 Atl. 1025. 14. Employment of two physicians or surgeons. Where an employer voluntarily employs two different surgeons, acting independently, to attend an injured workman the employer is liable for the value of the services of both physicians and surgeons. Wessman v. Bloomfield, 1 Conn. Comp. Dec. 336. 15. Rent of apartment in which injured employS is housed. Where hospital treatment is not required the rent of an apartment Digitized by Microsoft® MEBICAL ATTENTION 725 Electrical treatment occupied by the employe and his wife dviring the period of treatment is not a part of the medical expenses which can be charged against the employer. James v. Forman (1916), 3 Cal. Ind. Ace. Com. 2464 16. Carriage hire. Carriage hire, where a carriage is necessary to properly care for an injured workman, is a proper charge under the head of medical attention. Bulletin No. 2, Mass. Ind. Ace. Bd., Jan., 1913, p. 10. 17. Railroad fare on returning home with nurse. A traveling man was injured in a fire while on a trip for his em- ployer and secured a nurse who accompanied him home. The em- ploye had intended to return home in any event. It was held that the railroad fare of the nurse could be properly allowed, but not that of the employe himself. James v. Forman (1916), 3 Cal. Ind. Ace. Com. 246. 18. Expenses of going to and from physician's office ; man partially blinded. Where an employe lost the sight of one eye and the sight of the other eye was badly impaired and it was necessary for him to secure a conveyance to go to the office of the physician to be treated, it was held that the cost of the conveyance was a proper medical charge. Swanson v. Sargent & Co., 1 Conn. Comp. Dec. 433. 19. Artificial limb. An artificial limb is not part of the " apparatus " which the em- ployer is required to furnish under the New York Act. Kunaseh v. New York Consolidated Card Co, (1916), 176 App. Div. 135; 162 Supp. 361. A claim for an artificial limb under the head of medical treatment was denied. Pedroni v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 670. 20. Electrical treatment. Where an iron worker was severely injured and after partial re- covery charges were made for electrical treatment such charges were approved, the Commissioner stating that " the charges for electrical Digitized by Microsoft® Y26 BEADBUEY S WORKMEN S COMPENSATION LAW Dentist's bills treatment are approved reluctantly, on account of the complete ab- sence of evidence concerning them except such as was given by the physician rendering the bill." Gates v. Berlin Construction Co., Conn. Comp. Com., Second Dist., June 9, 1916 (unreported). 21. Massage treatment. A racing driver and moving picture actor was injured while driv- ing a racing car in the production of a picture by the car upsetting causing painful injuries. Necessary medical treatment was fur- nished by the employer, but a charge by the employe for massage was refused. Sorrell v. Sterling Motion Picture Co., 2 Cal. Ind. Ace. Com. 167. 22. Plaster casts. Where a workman was severely injured and a number of bones were broken a charge of $5 each for four plaster casts was approved as part of the medical expense. Gates v. Berlin Construction Co., Conn, Comp. Com., Second Dist., June 9, 1916 (unreported). 23. Truss. The cost of a truss is a proper medical charge when the truss is necessary. Bulletin No. 2, Mass. Ind. Ace. Bd., Jan, 1913, p. 10. 24. Crutches. The cost of crutches when they are necessary is a proper medical charge. Bulletin No. 2, Mass, Ind. Ace. Bd., Jan., 1913, p. 10. 25. Dentist's bills. A workman is entitled to compensation for the reasonable value of dental services rendered to cure and relieve him from the conse- quences of an accident. Louie Day v. Lincoln Sightseeing Co., 1 Cal. Ind. Ace. Com. (Part II), 269. The Department of Labor of Minnesota rules that dentist's bills should be part of the medical treatment to which an employe is entitled where they are made necessary by the injury. Bulletin No. 11, Minn. Dep. Labor & Ind., p. 25, Under the New Jersey Act an allowance was made for $100 for a dentist's bill, in addition to $100 for hospital and doctor's bills, in Digitized by Microsoft® MEDICAL ATTENTION 727 Chiropractor a case of very serious injury. Earle v. Hightstown Smyrna Hug Co. (Mercer Common Pleas, 1913), 37 N. J. Law J. 11. ARTICLE D — QUALIFICATION OF MEDICAL ATTENDANT 1. Licensed physician. Payment out of the Ohio State Insurance Pund for medical or surgical services will not be made unless such services were rendered by one duly authorized to practice medicine and surgery. In re Rorvat, 1 Bull. Ohio Ind. Com. 155. 2. Christian Science treatment. Reimbursement for expenses of Christian Science treatment was refused by the California Commission, it being held that such treat- ment is not such as may reasonably be required to cure and relieve as these words are used in the California Act. Ash v. C. H. and W. A. Barker, known as Barker Bros., 2 Cal. Ind. Ace. Com. 40. 3. Chiropractor. Where the medical attention furnished by the employer was a chiropractor who advised the employe after three treatments that he was able to resume light work, whereupon the employe secured a regular physician who advised that he was not able to resume work and subsequently treated him for a considerable period, it was held that the employer was liable for the fees of the physician secured by the employe as, under the circumstances, the employer had not com plied with the spirit of the Act which required him to furnish a " competent physician or surgeon." Beed v. Orient Music Co., 1 Conn. Comp. Dec. 36. In the last-mentioned case the Commissioner referred to the fact that society generally, in such cases, adopts the practice of what are known as regular physicians and surgeons and the State has spent large sums of money in educating such physicians and surgeons. The Commissioner then added : " While it is not without the limits of possibility that some person or group of persons, either by reasoning on theoretical grounds, or by experimentation, or even accident might discover a new and better method than that generally practiced and taught, such contingency is highly improba- ble, and an employer under this Act who provides a practitioner of any such novel method,Q^l!'?f^ MS/f^Mmg standards of society .728 beadbuey's woekmen^'s compensation law Amount of charges and the preference and custom of the injured employe, fails to con- form to the provisions of section 7 of Part B thereof." 4. Bone setter not regularly licensed as physician ; employed by con- sent of both parties. The fees of a bone setter who was not a regularly licensed physi- cian, were allowed under the Connecticut Act, where it appeared that he had been employed at the consent of both the employer and the employe, but the Commissioner did not decide whether a charge for the services of an unlicensed bone setter would be proper where he was not employed by consent. The Commissioner refused to de- termine the question of liability as between the employer and the in- surance carrier, on the ground that the policy was not produced and the terms thereof were not before the Commissioner. Hodge v. Hojf- man, 1 Conn. Comp. Dec. 322. 5. Liability of employer for negligent medical attention. Under the Wisconsin Act requiring an employer to furnish a physician the employer is liable for any aggravation of the injury caused by the negligence of the physician treating the employe dur- ing such time. Pawlah v. Hayes, Wis. ; 156 N. W. 464; 11 K 0. C. A. 752. 6. Wound aggravated by failure of medical attention. Where an employer has failed, after notice, to furnish medical attention, and the employe goes first to one physician and then to another in uncertainty as to what to do, and because of this neglect an infection to a wound in the hand eventually requires the amputation of the arm at the elbow, instead of amputation of the finger, the em- ployer is liable for the disability resulting from the loss of the arm as well as for the medical expenses. Sams v. Eomas & Dorras, 2 Cal. Ind. Ace. Com. 203. ARTICLE E — MEDICAL CHARGES AND PRACTICE IN COLLECTING 1. Amount of charges. The amount allowed for medical and hospital services will in no case exceed such is is ordinarily charged and paid for similar ser- vices in the commumty where rendered. ' In re Burns, 1 Bull. Ohio MEDIC Ali ATTENTION Y29 Amounf of charges Ind. Com. 5. Employers who have elected to pay compensation direct, under the Ohio Act, must pay the same compensation and the same medical fees as would be paid out of the State Insurance Fund. Bohison v. The Newark Reflector Co., 1 Bull. Ohio Ind. Com. 167. Unreasonable charges for medical attention will not be allowed. United States Fidelity and Guaranty Co. v. Max Rosenbach, 1 Cal. Ind. Ace. Com. (Part II), 92. The amount to be charged by a physician is not to be determined by what the insurance company or the industrial corporation is able to pay. It is not to be determined by the physician's estimate of the disposition and social qualities of the insurance adjuster or attorney. It is not to be determined by what the particular physician whose bill is being contested has been in the habit of charging and collecting in like cases. A physician who is treating a compensation case is supposed to charge and collect from the employer or the employer's insurer as much, and only as much, as the profession in general in the locality would ordinarily charge and collect from a workman of like standard of living, had he got injured while splitting kindling wood at home and had to pay his own doctor's bill. Peterson v. H. B. Beach & Sons, 1 Conn, Comp. Dec. 469 ; Oates v. Berlin Construction Co., Conn. Comp. Com., Second Dist., June 9, 1916 (unreported). The reasonable value of medical and surgical services is determined by the California Com- mission with reference to the reasonable and usual charges by physi- cians for services rendered to persons of the earning capacity of the average employe affected by the Compensation Act. That is, em- ployes with an average earning capacity of $1,000 a year. And em- ployers and insurance carriers are entitled to have their liability for such services determined upon this basis in computing their risk and cost of insurance. Marsters v. Employers' Liability Assur. Corp., 1 Cal. Ind. Ace. Com. (Part II), 360. The amount for which an in- surance carrier or employer can be held liable for a medical charge must be determined with reference to the reasonable charges of ser- vice to persons in the position of the average employe covered by the Act and these charges are not to be increased or decreased by reason of the fact that a particular employe receives wages or salary greater or less than the average. Greenoch, Jr. v. Drake, 2 Cal. Ind. Ace. Com. 266. The Commissioner m^f M^^^j^iWSiW^ of the fees charged by 730 beadbuey's woekmen's compensation law Amount of charges a physician in a particular locality to persons usually employed at manual work. Armenis v. Kerr, 1 Conn. Comp. Dec. 338. The reasonable value of services rendered an injured employe by a physician of his own selection will be determined by the Industrial Accident Commission upon the basis of the fee schedule adopted by it, Devlin v. Smith, 1 Cal. Ind. Ace. Com. (Part II), 418. The California Act of 1911 limited the amount of money to be expended in medical attention to $100. Freitas v. Alameda Sugar Co., 1 Cal. Ind. Ace. Com. (Part I), 165. But no such limitation is contained in the Act now in force. In case of a dispute as to the reasonable value of medical attention it may be determined by the medical director of the California Com- mission. Simpson v. Paraffine Paint Co. and Employers' Liability Assurance Co., 1 Cal. Ind. Ace. Com. (Part II), 76. Where a bone setter was required to travel some distance in attend- ing to a case, a reasonable allowance was made to him for the time in which he was necessarily away from his office in making such trips. Hodge v. Hoffman, 1 Conn. Comp. Dec. 322. A charge of $10 for immobilizing a fractured finger and $1 each for nine office calls was allowed. Purine v. Grant and The Travel- ers Insurance Co., Conn. Comp. Com., Third Dist., June 28, 1916. A fee of $10 for the amputation of part of a finger was allowed and $1.50 each for nineteen dressings. Salvo v. The New England Cabinet & Metal Co. and The Prudential Casualty Co., Conn. Comp. Com., Third Dist, June 28, 1916 (unreported). Where the injury was a compound fracture of the great toe, a charge of $3 each for dressings was approved where this was done at the home of the employe about a mile and a quarter away from the physician's office and the physician furnished the gauze and other material for making such dressings. Bazziuni v. John Salter & Son, 1 Conn. Comp. Dec. 687. Por two amputations of a finger the sum of $20 was allowed for each amputation and the sum of $2 each for twenty-nine dressings thereafter made, under the Connecticut Act. Prohasha v. The American Typewriter Co., 1 Conn. Comp. Dec. 116. A charge by a physician of $100 for performing an operation for hernia on an employe in a public ward of a hospital was disapproved. Malone v. H. R. Z)M^§fK¥Conn. ^omp. Dec. 297. MEDICAL ATTENTION 731 Offsetting cost of additional medical treatment against compensation Where an employe was injured by the entrance of a wooden splinter in the palm of the hand, it was held that $3 for first aid and $1.50 for office dressings were reasonable fees for the medical atten- tion. Jackson v. Employers' Liability Assur. Corp., 2 Mass. Ind. Ace. Bd. 733. A fee of $50 was awarded for an operation for hernia. Shaw v. Massachusetts Employees Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 501 ; 12 N. C. C. A. 197. A fee of $75 in addition to hospital charges was allowed for an operation for a hernia. Ratzberg v. Deltox Grass Bug Co., Fourth Annual Eeport (1915), Wis. Ind. Com. 34. 2. Offsetting additional compensation payments against medical bill. An amount paid by an employer to an employe during the first two weeks of disability, which sum is paid voluntarily by the em- ployer, cannot be credited on a medical bill in favor of the employer. Cable V. Hartford Accident and Indemnity Go. (1916), 3 Cal. Ind. Ace. Com. 235. The fact that an employer has paid an employe full wages instead of 65 per cent, thereof during the time of disability, but has failed to supply medical attention, does not justify an allowance of the amount overpaid as against the claim for medical attention. Gurry v. Bechtel (1916), 3 Cal. Ind. Ace. Com, 235. 3. Offsetting cost of additional medical treatment against compensa- tion. Where medical treatment is voluntarily furnished beyond the re- quired ninety day period, but it does not prevent death nor reduce the disability indemnity, the cost of such additional treatment may be allowed as an offset against the disability indemnity to which the ' employe was entitled. So held in a case where the treatment relieved the employe of the expenses of maintaining himself and the employe left no dependent. Newcomh v. Young & McAllister (1916), 3 Cal. Ind. Ace. Com. 257. In the last-mentioned ease it is remarked that where an employer voluntarily furnishes medical treatment beyond the ninety day period generally it will be presumed to have been done to avoid the payment of death benefit, or to reduce the disability indenmitv and cannot T)e ofrset'^ ^fff ??^ere is a dependent the Y32 beadbuey's wokkmen's compensation law Offsetting cost of additional medical treatment against compensation waiver by the employe of compensation in consideration of medical attention beyond the ninety days cannot affect the right of a de- pendent to a death benefit under the Act. Where an employer has furnished medical treatment in excess of the statutory limit and more especially has paid for an operation which was unsuccessful, such employer will not be permitted to de- duct the amount paid for medical treatment as an offset to the com- pensation due. Delight v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Parti), 238. The California Commission is without power to deduct from com- pensation awarded the amount paid by the employer for medical expenses for services rendered more than ninety days after the acci- dent. Cypher v. United Development Co., 1 Cal. Ind. Ace. Com. (Part II), 425. N'o setoff of money expended for surgeons beyond, the thirty day period can be allowed, under the Connecticut Act. Mahoney v. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292. When an insurance carrier furnishes treatment beyond the ninety days, it will be presumed to have been done in order either to avoid a death benefit or to avoid a permanent disability, and the presump- tion also is that in such cases the purpose of the insurance carrier was by furnishing full medical attention to reduce to the lowest degree the disability indemnity which would otherwise be payable. Where therefore a workman suffers a number of injuries, the insurance car- rier will not be permitted to escape its liability to furnish medical attention as to all such injuries for the period of ninety days, by rea- son of the fact that it has supplied suoh medical attention for some of such injuries for more than ninety days and has failed to supply such medical attention for other injuries. Gardner v. Sierra Nevada Wood & Timber Co. (1916), 3 Cal. Ind. Ace. Com. 259; 12 N. C. C. A. 666. Where an employer paid the hospital expenses of a seaman, it was held that this was a benefit which the workman had received within Schedule I (3) of the British Act which should be deducted from the amount payable to the workman by way of compensation. Sorensen v. Oaff and Co. (1912), 6 B. W. 0. C. 279. Payments voluntarily made by the employer for medical attention cannot be deducted rrSffi^yclmpensation award subsequently entered. MEDICAL ATTEBTTION 733 Lien of physician Vrablich v. Badthe (Mercer Common Pleas, 1915), 38 ZST. J. Law J. 267 ; Dihovich v. Am. Steel & Wire Co., 36 N. J. Law J. 304. 4. Deducting medical disbursements from employe's wages. The Labor Department of Minnesota has ruled that an employer cannot continue a practice theretofore in vogue of deducting one dollar a month from the wages of employes to constitute a medical and hospital fund. Bulletin No. 9, Minn. Dep. Labor & Ind. 30. 5. Treatment at free clinic. Although an employe has been treated at a free clinic on the sup- position that he is indigent and unable to pay, nevertheless upon dis- covering that his employer, or insurance carrier, is liable for medical services, the eniployer or insurance carrier will be compelled to pay to the clinic the reasonable value of such services. Blum v. Sockolov, 2 Cal. Ind. Ace. Com. 177. Where an injured employe called upon a physician wnose services were furnished free to the employe by a fraternal order to which he belonged, it was held that the employe could not claim for medical services as he had paid for none, but that a claim might be presented by the fraternal order which furnished the physician. Mohan v. Frankfort General Ins. Co., 2 Cal. Ind. Ace. Com. 522. Where an employe is a member of a medical association and he is treated after an accidental injury without further expense than his monthly dues, a charge cannot properly be made against the employer, for such treatment. Mitchell v. Alfred Stahel & Sons (1916), 3 Cal. Ind. Ace. Com. 303 ; Dahl v. Jensen, 2 Cal. Ind. Ace. Com. 741. 6. Lien of physician. Where the injured workman was taken by a fellow employe to a physician who informed the insurance carrier of the injury and that he was treating the workman, it was held that the Commission had no power to enforce the claim of the physician against the insurance carrier by way of a lien on the compensation, as the rights of the physician rested on a contract with the insurance carrier. Paul v. Johnson Bros., 3 Cal. Ind. Ace. Com. 32. Where the employer i^j^fzeWy l^crosoV' '^'''''°^' ^^^^^^^ the employe failed to give sufficient o/portunity By notice or demand, no 734 beadbuey's woeIcmen's compensation law How medical fees collected lien can be declared in favor of the physician upon the compensation due to the employe, nor can a lien be declared on compensation for medical services which were rendered after the expiration of ninety days after the injury. Green v. E. F. Burke, 1 Oal. Ind. Ace. Com. (Part II), 591. 7. How medical fees collected. The California Commission has no jurisdiction of a controversy between an employer and his insurance carrier in relation to the* cost of medical and surgical treatment based on the charge of the insur- ance carrier that the employer has not notified it of the accident in time for it to furnish such treatment. Conner v. Acme Cement and Plaster Co. and Maryland Casualty Co., 1 Oal. Ind. Ace. Com. (Part II), 143. Under a stipulation of the parties the California Com- mission assumed jurisdiction of a proceeding to determine the value of the physician's services. Guardian Casualty & Guaranty Co. v. McGettigan (1916), 3 Cal. Ind. Ace. Com. 335. Under the California Act the fees for medical attention should be determined by the Board and if a notice of lien has been filed by the person entitled to such fees they should be paid to such person direct, but if no such notice has been filed then the medical fees as deter- mined should be paid to the employe. Pacific Coast Casualty Co. v. Pillshury, 153 Pac. 24. Where a physician is entitled to an allowance for the reasonable value of medical services rendered he may file an application against an employer and insurance carrier for the determination of his claim under the California Act. Fly v. San Diego Transfer Co., 2 Cal. Ind. Ace. Com. 706. Where an employe has secured the services of his own physician, through the acquiescence of the insurance carrier, the employe will be allowed reimbursement only to the extent of the fee schedule of the Commission. As to the balance, as this is a controversy between the employe and the physician, the Commission has no jurisdiction. Devlin V. Smith, 1 Cal. Ind. Ace. Com. (Part II), 418. Under the California Act the Conamission has jurisdiction over charges for medical, surgical, hospital and other expenditures to cure and relieve an inj^^Yg^cgygjj^^^gcl^e cases where the employer ^or the insurance carrier, through neglect or refusal to > seasonably MEDICAL ATTENTION 735 How medical fees collected furnish such services, throws the burden upon the injured person to secure as best he may the necessary treatment. It cannot determine how much the physician or hospital shall charge the workman when he Secures the services himself; nor how much the physician or hospital shall charge an employer or insurance carrier for services to a workman; nor controversies between an insurance carrier and an employer in relation to medical charges. Brown v. Davies- Leavitt Co., 2 Cal. Ind. Ace. Com. 16. An appeal cannot be taken from an order of the Commission re- quiring an employer to pay the reasonable value of medical services in accordance with an amount to be approved by the Commission until after the Commission has actually fixed the amount, for until then it is not a final order enforceable as such. Garratt-Callahan Co. V. Industrial Accident Commission of California, 171 Cal. 334; 153 Pac. 239, The Commission may require an itemized statement of medical services to be rendered so that such charges may be regulated in accordance with the schedule adopted by the Commission. Conner V. Acme Cement and Plaster Co. & Maryland Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 143. The signing of a receipt for compensation does not bar a proceed- ing to recover medical expenses where the employer has not furnished the medical services. Ducy v. American Mutual Liability Ins. Co., 2 Mass. Ind. Aec. Bd. 513. Under the New York Act, prior to the amendment contained ir L. 1916, c. 622, an action could not be maintained against an insur- ance carrier for a doctor's bill, but could only be maintained by the Industrial Commission. Hirsch v. Zurich General Accident and Liability Ins. Co. (1916), 97 Misc. 360; 161 Supp. 380; Bloom v. Jaffe, 94 Misc. 222; 157 Supp. 926. ■\¥here a hospital elected to bring an action against an employer for medical services furnished to a minor employe who had been injured and based its cause of action on an express contract rather than the liability under the statute, it was held that an express con- tract must be proved in order to recover. Homeopathic Hospital v. Chalmers (City Court o|,y^fe^j^/jfy^s^) , 94 Misc. 600; 157 Supp. 1000. 736 beadbtjet's woekmen's compensation law Necessity of submitting to operation 8. Rehearing to approve medical bills. A rehearing of a compensation case to approve medical bills which were not approved at the time of the hearing is not necessary, as a supplementary proceeding may be taken at any time for that purpose. Billingsley v. United Tuna Packing Co., 2 Cal. Ind. Ace. Com. 104. ARTICLE F — MISCELLINEOUS MATTERS 1. Refusal to permit medical attention.^ Where an employe suffered a slight injury to his finger and failed to apply proper medical treatment or to permit the employer's first aid nurse or the employer's physician to properly treat the finger and the result was a loss of the use of the finger, but the medical testimony was unanimous that with proper treatment a disability not exceeding four weeks would have resulted, it was held that compensa- tion should be awarded for four weeks only as this was the only dis- ability arising out of the employment. Chmelaski v. Landers, Frary & Clark, Conn. Comp. Com., First Dist., Chandlee, Com'r, March 29, 1917 (unreported). 2. Tendering medical treatment in the nature of an operation as a condition of stopping compensation. The California Commission will not determine in advance what is a sufiicient offer of medical treatment in the nature of an operation to cure a disabled employe, but after such treatment is offered the Commission will then determine whether or not it was sufficient. Lewis V. Foiada, 3 Cal. Ind. Ace. Com. 60. 3. Necessity of submitting to operation. The rule that an injured employe seeking compensation must sub- mit to an operation does not apply to a dependent. Mahoney v. Gamhle-Desmond Co., 90 Conn. 255; 96 Atl. 1025. The Eoseberry Act limited the medical and surgical services to $100 and did not empower the Commission to compel the injured employe to undergo an operation. Marshall v. Ransome Concrete Co., 2 Cal. Ind. Ace. Com. 304. Where an order has been made that unless an employe submits to Digitized by Microsoft® 1 See Aggravation cases in Chapters XII and XIII. MEDICAL ATTENTION TSY Insurance carrier's subrogation to right to furnish medical attention an operation offered by the employer compensation shall be discon- . tinned, and it subsequently develops that an operation such as sug- gested would be unavailing and dangerous, the former ^der may be rescinded and a new order made requiring compensation to be paid for the disability suffered. Gagliasso v. de Marian 2 Cal. Ind. Ace. Com, 852. 4. Insurance carrier's subrogation to right to furnish medical atten- tion. The insurance carrier is not subrogated to the right to furnish the medical attention to the injured employe until it has either made payment to the employe of compensation or assumed the liability of the employer. Mullan v. Reverend John Rogers, 2 Cal. Ind Ace. Com. 368. The rights which are subrogated to the insurance carrier under section 34 (f ) of the California Act, include the right to furnish a physician selected by the carrier and also a direction that the injured employe change the physician furnished by the employer and accept the one furnished by the insurance carrier. Hotchhiss v. Leonard B. Bayer, 2 Cal. Ind. Ace. Com. 61. 47 Digitized by Microsoft® CHAPTER XVI. DEATH BENEFITS PAGE ABTicri! A — GENER4J, View of THE Subject 740 1. Comparison of the statutes. 740 Abticle B — Ftjneeal Expenses. 1. When allowed 741 AETictE C — Dependents 742 1. Definition of word " depend- , ent " 742 1. a.'" Actual " and " presump- tive " or " statutory " de- pendents 744 2. Question of dependency is one of fact 747 3. Partial dependency 748 (a) British 748 (b) California 748 (c) Connecticut 750 (d) Kansas 751 (e) Massachusetts 751 (f) Michigan 752 (g) Minnesota 752 (h) New Jersey 753 (i) New Tork 753 (j) Ohio 753 (k) Pennsylvania 753 (1) Washington 754 (m) Wisconsin 754 4. Total dependent 754 (a) British 754 (b) California 755 (c) Kansas 755 (d) Massachusetts 755 (e) Minnesota 755 (f ) New Jersey 755 (g) Ohio 756 5. Partial and total dependents of same workman 756 6. Wife separated from hus- band 757 (a) British 757 (b) California.. ^.^.^^.^^.^7^ PAGE (c) Connecticut 760 (d) Massachusetts 760 (e) Michigan 763 (f ) New Jersey 763 (g) New York 764 (h) Ohio 764 (i) Wisconsin 765 7. Insane wife ". 765 8. Wife married after accident 765 9. Mistress 765 10. Parents 768 (a) British 768 (b) Federal 769 (c) California 770 (d) Connecticut 772 (e) Illinois 773 (f ) Ohio 773 (g) Massachusetts 774 (h) Michigan 774 (i) Minnesota 775 (j) New Jersey 775 (k) New York 776 (1) Ohio . . 777 (m) Rhode Island 777 (n) Washington 778 (o) Wisconsin 778 11. Foster father of child not legally adopted 779 12. Grandmother 779 13. Mother remarried ; step- brothers and sisters 779 14. Foster mother 779 15. Children 780 (a) British 780 (b) California 780 (c) Connecticut 781 (d) Kansas 782 (e) Massachusetts 782 (f) Michigan 783 (g) Minnesota 783 (h) New York 783 JM""'' 783 DEATH BENEFITS 739 Summary PAGE (j) Wisconsin 784 16. Married daughter not living with father 784 17. Stepchildren 784 18. Adopted child 785 19. Child adopted by widow . . . 785 20. Minor children who have been adopted by another . . 785 21. Minor son by former hus- band 785 22. Son of divorced parents . . . 785 23. Minor children living with divorced mother 786 24. Husband and son killed in same accident ; dependency of widow and daughter. . 787 25. Posthumous child 787 26. Illegitimate children 787 27. Posthumous illegitimate child 788 28. Parents of illegitimate chil- dren 788 29. Mother of Illegitimate child as dependent of father of child 788 30. Brothers and sisters 789 (a) California 789 (b) Connecticut 790 (c) Massachusetts 791 (d) New Jersey 791 (e) New York 791 (f ) Ohio 791 31. Half-brothers and half- sisters 792 32. Stepmother and half- brothers and sisters 793 33. Sister-in-law 793 34. Inmate of workhouse 793 35. Non-resident aliens 793 36. Dependent of more than one workman 796 37. Dependents receiving other income because of death of workman 796 38. Relief association benefit as PAGE affecting right to compen- sation 797 39. Inheriting benefits from es- tate of deceased workman, as affecting right to com- pensation 797 40. Right of dependents inde- pendent of that of deceased 797 41. Division of compensation be- tween dependents 799 42. Burden of proof to show de- pendency 801 AETICLE D MlSCEtLANEOUS Matters 801 1. Necessity of administering on estate of workman .... 801 2. Guardian of minor child of applicant 801 3. Presumption of death from absence 802 4. Estoppel by payment of com- pensation before death or right to deny liability therefor after death 802 5. Claim for compensation by personal representative of deceased dependent 802 6. Death occurring after stat- ute goes into effect by rea- son of accident happening before statute effective. . . 805 7. Advance payments 805 8. Minor's wage increase 806 9. Award in absence of depend- ents 806 10. Double indemnity 806 11. Injuries caused by negli- gence of third person .... 806 12. Submitting to operation .... 806 13. Deducting board furnished to dependent 807 14. Hearsay testimony 807 15. Limitation 807 Digitized by Microsoft® 740 Comparison of the statutes ARTICLE A— GENERAL VIEW OF THE SUBJECT 1. Comparison of the statutes. There is a great variety of provisions, in the various statutes, on the questions of the amounts and the persons to whom paid, in death cases. The statutes generally, although not universally, fix the death henefit payable to dependents by the wages earned by the workman prior to his death. In Washington and Oregon the compensation is a fixed amount, irrespective of the wages which the employe earned. In a majority of the statutes the death benefit is limited in some way either by fixing the number of weeks for which it shall be paid (300 to 500) or the total amount which shall be awarded. In some of the statutes, however, certain beneficiaries receive compensation for life, or, in the case of widows, until remarriage. In the event of remarriage a lump sum is usually awarded of t^o years' compensa- tion. The American statutes seem, as a rule, to be more liberal in regard to death benefits than the British Act, although it is too early to determine that the average death benefit under the American acts will be higher than it is under the British statute. The latter pro- vides a death benefit for total dependents of £300, or approximately $1,500. The maximum limits under the American acts, when there is any limit at all, ranges from $3,000 to $5,000, or possibly $6,000. In cases where compensation is payable for the life of the principal beneficiary, with limited awards to others, it has been figured out, theoretically, that the benefits payable for a single death may amount to from $25,000 to $40,000 under a few of the more liberal Ameri- can acts. But of course these are extreme cases and none of the acts has been in force long enough to permit a determination of what the average death benefit will be. Up to the present under American acts there has been a distinct tendency to discourage the commutation of death benefits to lump sum payments. Where compensation is awarded to a widow for life, for example, with a provision for stopping payn;ients upon remarriage it is difficult to reach an equitable basis for a lump sum payment. Even under the statutes where a specific death benefit is awarded, consisting of a definite percentage of the average wages of the de- ceased employe, which is computed to be a specific sum weekly, for a definite number of yf^^^g^f Uf^mf^^^ considered in reaching DEATH BENEFITS 741 Funeral expenses — when allowed a proper sum to be awarded as a commuted payment. One of these facts, or rather one rule of law, which requires determination in such cases is : Do weekly payments awarded to a beneficiary continue after the death of the dependent ? If they do then it is comparatively easy to determine the present value of such an award. If they do not then the mortality tables enter into the computation. If the expectancy of life of the dependent is greater than the period covered by the award then the amount payable in a lump sum is also easily ascertain- able. But if the life expectancy is a shorter period than would normally be covered in paying the award then how may the commuted sum be equitably determined ?■ If scarcely would be fair to the de- pendents to decrease the commuted sum when the life expectancy was less than the period normally covered by the award, and not in- crease it when the life expectancy was greater than the period which would normally be covered by the award. Such a rule would result in inequitable inequality. These problems are new and have arisen by reason of the novel provisions of the American acts. Some of them are discussed more at length in the light of judicial interpretation in the chapter on Commutation of Awaeds. Reference is made to the subject here merely by way of general review of the statutes as to the awards made in death cases. ' ARTICLE B — FUNERAL EXPENSES 1. When allowed. The entire burial expenses under the California Act cannot exceed $100, except on consent of the person entitled to the death benefit. Sigman v. Columbia Oil Producing Co., 3 Cal. Ind. Ace. Com. 2. Where the applicant for compensation has not personally incurred the burial expenses and the award to the dependent is a small one and the undertaker has already received more than a reasonable burial expense fixed by the Act, none of the balance of the charge for burial services will be recognized as a lien on the award. Heffernan v. Morse Detective and Patrol Service Co., 2 Cal. Ind. Ace. Com. 413 ; 11 ]Sr. C. C. A. 717. In cases of partial dependency, where the total award does not exceed three times the average annual earnings, burial expenses not exceeding $100 should be charged against the employer and not against the death benefit awarded to the partial dependent under sectio&il&^e'p bf l\ilier(SMB^nia. Act as amended. Y4:2 beadbuey's woekmen's compensation law Definition of word " dependent " Werly v. Pacific Gas and Electric Co. (1916), 3 Cal. Ind. Ace. Com. 254. In case of total dependency the reasonable expenses not exceed- ing $100 incurred for the burial of the deceased are to be paid in full out of the amount awarded and at the time of the award, either di- rectly to the applicant or to the person entitled thereto. Pynchon v. Ernest Biggins Co. (1916), 3 Cal. Ind. Ace. Com. 286. Where the employer had paid the burial expenses, in a ease where compensation was awarded, a lien was granted to the employer to the extent of $100 on the compensation due, to reimburse the employer for the burial expenses advanced in that sum. Cleveland v. Hastings, 2 Cal. Ind. Ace. Com. 18. A funeral . benefit is payable under the California Act even in eases where there is only a partial dependency. Newman v. Caspar Lumber Co., 3 Cal. Ind. Ace. Com. 102. The California Commiseion has jurisdiction to adjust a claim for funeral expenses made by an tmdertaker where there is no one else who can claim compensation. H. F. Suhr & Co. v. State Compensation In- surance Fund, 2 Cal. Ind. Ace. Com. 717. Under the original New Jersey Act prior to the amendment of 1914, fimoral expenses were not allowed unless there were no depend- ents. Taylor v. Seahrooh, 87 JST. J. Law 407 ; 94 Atl. 399 ; 11 IST. C. C. A. 710; Hammill v. Pennsylvania R. Co., 87 IST. J. Law 388; 94 Atl. 313 ; Central Railroad Co. of New Jersey v. Kellett, 86 IST. J. Law 84; 90 Atl. 1005; 5 N. C. C. A. 529. But under the amend- ment of the Wew Jersey Act contained in chapter 174 of L. 1914, funeral expenses of $100 are allowed in every ease whether or not there are dependents. O'Connor v. Public Service Railway Go: (Essex Common Pleas, 1914), 37 N. J. Law J. 73; 11 N. 0. C. A, 710. Under the N"ew York Law allowing a benefit for reasonable funeral expenses not exceeding $100, no award for services rendered by relatives of the deceased in connection with his funeral can be made, it not appearing that such person expended any moneys. Tirre v. Bush Terminal Co., 172 App. Div. 386 ; 158 Supp. 883. ARTICLE C — DEPENDENTS 1. Definition of word " dependent." The expression " dependent " means dependent for the ordinary necessities of life f®;^YfH9\^i%Q!5?iaKrtsd/St® and position in life, taking DEATH BENEFITS 743 Definition of word " dependent " into account the financial and social position of the recipient. Whether a person is or is not dependent on a workman's earnings is a question of fact. Simmons v. White Bros. (1899), 80 L. T. 344; 1 W. C. 0. 89. The test of dependency is not whether the family could support life without the contributions of the deceased, but whether they depended upon them as part of their income or means of living. Howells V. Vivian and Sons (1901), 85 L. T. 529; 4 W. C. C. 106. A person may be a dependent of a deceased workman even though such workman has only sent money at irregular intervals and in irregular amounts. Follis v. Schaake Machine Works (1908), 13 B. C. 471;1B. W. 0. C. 442. Dependency consists in being dependent upon someone for the maintenance of the standard of living customary for such depend- ents and contributions must be relied upon for that purpose. It is not a defense that the beneficiary could have gotten along without the contribution. The question is, was the contribution in fact used or to be used for support ? Gregoris v. Standard Portland Cement Corporation, 3 Cal. Ind. Ace. Com. 70. Neither a legal nor a moral obligation to support constitutes dependency in fact. Prichard v. American Beet Sugar Co., 2 Cal. Ind. Ace. Com. 378. The scope of the term " dependency " should not be confined to any prescribed standard of living or to actual bodily necessities of life to the ex- clusion of all luxuries, entertainment, or other diversions. Eppler v. Weinhard Brewing Co. (1916), 3 Cal. Ind. Ace. Com. 222. Where an employe had contributed a portion of his wages for the support of his mother and half-sisters for a period of about twenty years, but for about nine months before his death had ceased such contributions while he was out of employment, it was held that the mother and half- sisters were dependents, and entitled to a death benefit. McGill v. The City of Imperial, 2 Cal. Ind. Ace. Com. 21. While expenditures for amusement and recreation, made incidental to and as a part of the general support of any dependent beneficiary, by one who has assumed in whole or in part the obligation to afford support, may constitute dependency, such contributions made entirely apart from and not incidental to the general support, by one who does not other- wise contribute to a person's support, does not constitute dependency, •within the meaning of the California Act. Eppler v. Weinhard Brew- ing Co. (1916), 3 Cal m^JzkdrSSSft® 744 beadbuey's workmen's compensation law " Actual " and " presumptive " or " statutory " dependents Mere ability to earn a livelihood will not prevent one from being considered a dependent, even though the person furnishing the sup- port possesses less income than the alleged dependent. Blanton v. Wheeler & Howes Co. (1916), Conn. ; 99 Atl. 494. Actual dependency means that the claimant was an actual dependent at the time of the injury not merely that he had reasonable hope of future benefits. Merriman v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 596. A dependent need not be one to whom the contributions of the injured or deceased workman are necessary to his or her support of life ; the test is whether the contributions were relied upon by the dependent for his or her means of living in the position of life of the decedent. Appeal of Hotel Bond Co., 89 Conn. 143 ; 93 Atl. 245. Dependency under the Connecticut Act is determined as the facts may be at the time of the injury. Blanton v. Wheeler & Howes Co. (1916), Conn. ; 99 Atl. 494; Mahoney v. Gamble-Desmond Co., 90 Conn. 255; 96 Atl. 1025. But such a rule under section 16 of the New York law does not prevent the Commission from consider- ing the probable wage increase of a minor, as section 16 relates only to the ascertainment of who are dependents. Kilberg v. 'Yitch, 171 App. Div. 89 ; 156 Supp. 964. Actual dependents under the New Jersey Act refer to relatives of the deceased who are being wholly, or to a substantial degree, sup- ported by the deceased at the time of his death. Hammill v. Pennsyl- vania B. Co., 87 ]Sr. J. Law 388 ; 94 Atl. 313. The New York Act does not limit compensation for those for whose support the deceased was legally chargeable, but includes also those supported by his voluntary contributions. Walz v. Holhrooh, Cabot & Rollins Corporation, 170 App. Div. 6 ; 155 Supp. 703. It is not necessary that the claimant should receive support directly from the deceased, but it is sufficient if the money was contributed to the family support by him and was in part spent for such claimant's support. Walz v. Holbrook, Cabot & Rollins Corporation, 170 App. Div. 6; 155 Supp. 703. 1, a. "Actual " and " presumptive " or " statutory " dependents. A right to compensation under the British Act rests entirely upon actual dependency, in all cases. It is one of the facts which must be proved to entitle the claimant to any compensation whatsoever. In DEATH BENEFITS Y45 " Actual " and " presumptive " or " statutory " dependents this respect it is somewnat analogous to the right to recover damages for death under employers' liability laws. These are sometimes called common-law damages. But this is erroneous, in the case of death claims, for the common law did not permit a recovery for death. After the enabling acts were passed, however, permitting the recovery of damages for death, these damages were limited generally to the husband, wife or the next of kin of the deceased, who could be shown actually to have suffered money damages by his or her death. The right of future support of the widow and infant children was always the most important element in such damages. They were allowed also where it was shovni that parents, brothers and sisters or other more distant relatives were actually dependent, either partially or totally, upon the deceased for support. As there are a great variety of statutory provisions governing these so-called common-law damages in death cases, so also, there are many different provisions in the various compensation acts regulating the question of who shall be considered dependents. Speaking generally, the American acts have not followed the British statute on this subject. Here, as a rule, conclusive presump- tions have been created in favor of certain classes of near relatives, while as to others, actual dependency must be shown. It is interest- ing to note in this. connection that usually this conclusive presump- tion has been established in favor of those who were determined, almost as a matter of course, to be " damaged " by the death of a per- son, in the so-called common-law actions. Thus wives, with whom the deceased was living at the time of the accident, and infant chil- dren, are almost universally included in the class of presumptive de- pendents. But while there is usually no actual statutory presumption in favor of wives, living with their husbands, and infant children, in the so-called common-law actions, there is a presumption applied by the courts, in such cases, which is almost completely analogous to the statutory presumption under workmen's compansation acts. The same rule, but somewhat less universally, has been applied in favor of husbands who were living with their wives at the time of their deaths. The limitation in the application of this doctrine in favor of husbands results from the fact that, in the natural order of things, the husband is the breadwinner and supports the family. Of course, this is not universally true, by any means, under modern Digitized by Microsoft® Y46 " Actual " and. " presumptive " or " statutory " dependents conditions, when so many occupations are open to women. A hus- band is " damaged " by the death of his wife, in the common-law sense, under normal conditions of domestic life, while he may not be " dependent " on her, strictly speaking. Recognizing this fact, many of the legislatures have included, in the various State compen- sation acts, among the classes of presumptive dependents, a husband who was living with his wife at, the time of an accident causing her death. But the limitation of compensation to wives " living with " their husbands at the time of the accident has worked hardship if not actual injustice in some cases, and a tendency has been shown to modify it. Defining the term " living with " to mean an actual joint domicile, it has been held that a wife separated from her husband by reason of his fault, with a decree awarding her alimony for the support of her- self and their children was not entitled to compensation upon the husband's death. In re Nelson, 217 Mass. 467 ; 105 K E. Eep. 357 ; 5 K C. C. A. 694;. In re Gallagher, 219 Mass. 140; 106 N". E. 558. Although a contrary doctrine has been established in another juris- diction. Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97; 142 K W. 271 ; L. E. A. 1916 A, 366n. No decree awarding alimony had been made in either the case of In re Nelson or Northwestern Iron Co. v. Industrial Commission, but it appeared in both that the husband had contributed to the support of the wife. But the principle involved in all three of the cases last above cited is the same. In Massachusetts the doctrine of the cases- of In re Nelson and In re Gallagher was modified by an amendment to the Compensation Act. St. 1914, c. 708, aipending Part 2, § 7 of the original act. A widow is presumed to be a dependent under the New York Act without regard to the fact as to whether or not she is actually depend- ent. Moell V. Wilson (1916), 9 IST. Y. St. Dep. Eep. 310. Where a statute provides that certain classes of persons are pre- sumptive dependents, further compensation may be awarded to such presumptive dependents, even after the period of presumptive de- pendency expires, where it is shown that there remaias a condition of actual dependency. Thus,, under the Connecticut Act, a child is presumptively a dependent up to the age of eighteen years, and it was held that compeng^ti^j^^^^Wyj^i^^^^^d to daughters over the DEATH BENEFITS Y47 Question of dependency is one of fact age of eighteen years, where it appeared that they were actual de- pendents, even though they did not come within the provisions of the statute as being children physically or mentally incapacitated from earning. The Commissioner held that the termination of dependency provided for in section 10 of Part B of the Connecticut Act applied to presimiptive dependency only and not to actual dependency. Maker v. New York, New Haven and Hartford B. Co., 1 Conn. Comp. Dec. 82; aff'd by Superior Court, Id. 85. Under the Massachusetts Act it was held that when there was a widow and a child under the age of eighteen years that the widow was presumed to be entirely dependent and that the compensation should be paid exclusively to the widow. Employers' Liahility Assur. Cor- poration (McNicol V. Patterson Wilde & Co.), 102 N. E. 697; 215 Mass. 497 ; 4 N. C. C. A. 522. But where there was a child by a former wife as well as a widow and children by the widow, then it was held that the child by the former wife was also conclusively presumed to be dependent and that such child was entitled to share in the benefits equally with the sur- viving widow, although there were several children by the surviving widow. Coahley v. CoaUey, 102 K E. 930; 216 Mass. 71; 4 IST. C. C. A. 508. Part 2, § 7 of the Massachusetts Act was amended by chapter 708 of the Laws of 1914 so as to make a more equitable dis- tribution where there were children by a former wife and a widow, so that at present, under the Massachusetts Act, the distribution is made in accordance with the number of children surviving who are under the age of eighteen years, or, if over that age, are unable to care for themselves. 2. Question of dependency is one of fact. Under the British Act, " The question of dependency is not a ques- tion of law at all. It is purely a question of fact." Main Colliery Co. V. Davies (1900), A. G. 358 ; 1 W. C. C. 92 ; 2 W. C. 0. 108 ; Hodg- son v. Owners of West Stanley Colliery (1910), A. C. (H. L.) 229 ; 102 L. T. 194 ; 3 B. W. C. C. 260. Both of the above eases were decided in the House of Lords. Under the New Jersey Act the word " dependents " means depend- ents in fact. Miller v. Public Service Railway Co., 84 IST. J. Law 174;85 Atl. 1030, Digitized by Microsoft® 748 Bradbury's workmen's coMPENSATioiir law Partial dependency Where a deceased workman, who was of age at the time he was killed, had been in the habit of turning over his wages into the family fund, it was held, under the New Jersey Act, as amended in 1913, that the question of whether or not parents and brothers and sisters were dependents was a question of fact. Gonners v. Public Service Electric Co., N. J, Supreme Ct. (1916), K J. Law ; 97 Atl. 792. But as herein pointed out actual dependency is not always a pre- requisite to awarding compensation. 3. Partial dependency.^ (a) British. Under the British Act it is necessary for the court to determine whether one claiming compensation because of the death of a workman is a total or only a partial dependent, so the award may be made accordingly. But where partial dependency is found an award of the maximum of compensation for total dependency may be made in the discretion of the court. Cheverton v. Oceanic Steam Navigation Co. (1913), 6 B. W. C. C. 574; after rehearing of case reported in 6 B. W. C. C. 253. The amount due to a partial dependent is a question of fact in each case. Id.; Littleford r. Connell (1909), 3 B. W. C. C. 1. (b) California. A person partially dependent upon deceased is entitled to such percentage of three times the average annual earnings of the deceased as the annual amount devoted by the deceased to the support of such person bears t9 such average earnings, under the Cali- fornia Act of 1911. Rollins v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part I), 57. As few persons keep acciirate records of family expenditures and they are not able to recall all the sources of income or outgo, during the year previous to the death of an employe, such an accouuting is not required, to obtain an award. Bradford v. Union Hollywood Water Co., 2 Cal. Ind. Ace. Com. 791. Where the fact of dependency is established, the extent thereof need not depend on evidence of a specific amount having been furnished by the de- ceased employe. It may be established by the average earnings of the employe, the living expenses of the dependent and the other sources of income of the dependent, if any. Bristol v. Gartland, 1 1 See decisions under titles of various dependent relatives, such as Parents, ChiUren, Brothers and SifM^tit^ by Microsoft® DEATH BENEFITS '749 Partial dependency Cal. Ind. Ace. Com. (Part II), 632. The extent of partial depend- ency may be computed where the fact of such dependency is estab- lished, even though there is no evidence shovying the exact amount paid by the deceased for the support of the dependents, by taking the cost of maintenance of the whole family and by estimating the income of the dependent relatives from all other sources for the same period. Matthiesen v. Pacific Gas & Electric Co., 1 Cal. Ind. Ace. Com. (Part II), 398. Where, by reason of the fact that no record is keept of the amount contributed by deceased employe, to support partial dependents, the amount may be determined by reference to the total earnings of the deceased employe, from which are to be deducted his estimated expenditures, where it ife shown that he turned in for the support of his family all of his wages, except certain amounts retained for personal purposes. Donovan v. Holy Cross Cemetery, 1 Cal. Ind. Ace. Com. (Part II), 510. The workman's place of employ- ment was in a town some distance away from his sister's home, but he returned to his sister's home every Saturday night and contributed to her support and the support of her family, as much as it was within his power. The amount of his contribution was determined by the computation of the wages of the workman and deducting therefrom the probable amount which he spent for room, board and his personal expenses, fixing the balance as the amount of his contribution to his sister. It appeared that the sister had been married and had a family of young children, but it did not appear whether or not her husband was living. Parsley v. O'Brien Bros., 1 Cal. Ind. Ace. Com. (Part II), 494. In fixing the extent of dependency in cases where no particular sum is regularly paid over by a son, who lived with his aged parents and was their principal support, it is proper to take into consideration all the circumstances in the conduct of the house- hold, and to have regard to any other source of income of the family. Binhley v. Western Pipe and Steel Co., 1 Cal. Ind. Ace. Com, (Part II), 33. Although a wife in Italy has for seven years been s^ipported from contributions from her husband in this country, she will be pre- sumed to be only partially dependent upon him, at the time of his death, one and one-half years after the seven year period, if, during the said one and one-half years, he has made no remittances and she is living with three adult children, at least two of .whom are pre- sumably able to support her. Claudia v. California Street CabU Ry. Digitized by Microsoft® T50 Partial dependency Co., 3 Oal. Ind. Ace. Com. T. In the last-mentioned case the hus- band had been imprisoned during the period in which he had not made any remittances. It was held that his failure to make contribu- tions during that tiftie was not inconsistent with a total dependency in fact of the non-resident wife upon a husband in the State of Cali- fornia, but it was also held in this case, that the proof was sufficient to permit an award of partial dependency only, inasmuch as there was no documentary evidence of the remittances which were alleged to have been made. Where a son contributed his entire earnings of $312 a year to the. general family fund, it was held that the death benefit should be three times the actual annual earnings, or $936, and not three times the minimum compensation of $333.33. Cassell v. Simon Millinery Go, (1916), 3 Cal. Ind. Ace. Com. 230; 12 JST. C. C. A. 491. (e) Connecticut. Partial dependence, under the Connecticut Act, may exist although contributions for support from the injured work- man were not regular in time and amount, and the dependent had other means of support. Appeal oi Hotel Bond Co., 89 Conn. 143; 93 Atl. 245. The death benefit to partial dependents is that they receive the same contributions made during the employe's lifetime, up to, but not ex- ceeding, the amount of half the wages. Engstrom v. The L. Candee & Co., 1 Conn. Comp. Dec. 691. In ease of partial dependence the minimum compensation of $5 a week must be awarded in all cases. McNamara v. Ives, 1 Conn. Comp. Dec. 41 ; Anderson v. American Straw Board Co., 1 Conn. Comp. Dec. 11 ; aff'd by Superior Court, Id. 12; McNamara v. Hartford Livery Co., Conn. Comp.- Com., First Dist., June 1, 1916 (unreported) ; Powers v. Hotel Bond Co., 1 Conn. Comp. Dec. 16 ; aff'd appeal of Hotel Bond Co., 89 Conn. 143 ; 93 Atl. 245. A mother who is a partial dependent is entitled to the minimum sum, in spite of the fact that this minimum sum i^ more than she received from the employe during his lifetime. Coffey V. B or dens Condensed Milk Co., 1 Conn. Comp. Dec. 167., Where a father was shown to be partially dependent upon the wage§ | of a son, who was a minor, and whose average wages were $3.50 3 week, all of which he gave to his father toward the support of th^i family, it was held that the father was a partial dependent of the son and ^as entitled t(PiS'l''^'MifiMif'83fifiisation of $5 a week. Ma- DEATH BENEFITS 751 Partial dependency honey v. Gamble-Desmond Co., 1 Conn. Comp. Dec. 270 ; aff'd 90 Conn. 255; 96 Atl. 1025. The words "measure of dependence," in the Connecticut statute, mean the ratio which the contributions of the decedent bear to the decedent's average weekly earnings, and where, under this test, the amount of compensation is less than the minimum of $5 a week, the award should be for a minimum sum. Kelly V. Hartford Rubber Works Co., 1 Conn. Comp. Dec. 506. A partial dependent is entitled to such proportion of one-half of the wages of the employe as the total cost of support of such dependent bears to the amount contributed by the employe to such support. Engstrom v. L. Candee & Co., Conn. Superior Ct., New Haven County, Jan. 29 1917 (unreported). (d) Kansas. The plaintiff's son, eighteen years old, living with her and her husband, turned over to her his wages, paying nothing for his board, room or laundry, but obtaining from her money for his necessary expenditures. Although she was supported by her hus- band, she had required certain medical and surgical attention, the expenses of which were paid in part by the deceased and his wages were always available by her for such attention, all of which extra expenses could be met only by using a portion of his earnings. It was held that the mother was partly dependent upon the son. Smith v. National Sash & Door Co., 96 Kans. 816 ; 153 Pac. 533. (e) Massachusetts. An adult during the year preceding his death had studied at college and had worked for six months. His earnings during the year were, after deducting sums for car fares, luncheons and other necessary expenses, paid to his mother, who gave him money for clothing, tuition and incidentals. Upon a claim by the mother, as a partial dependent, it was held that the value of the board fur- nished by the mother should not be deducted, in determining the amount of the dependency, although the sums taken out of the wages for clothing, tuition and incidentals should be deducted. Gove v. Royal Indemnity Co., 223 Mass. 187 ; 111 IST. E. 702. Fifteen years before a brother's death a sister had been induced to remain at home and take charge of the household, under the promise of the employe to support her. The family comprised an invalid mother, who died later, the father, who died still later, a younger sister, a brother who died also, and the claimant. One sister paid $15 a month for her board and the employe, for whose death compensation was claimed, Digitized by Microsoft® Y52 bkadbuey's woekmen's compensation law Partial d^endency furnished all other money needed to support the household every month, and in addition paid for the clothes of the claimant, and gave her whatever she needed, but there was no agreement in regard to wages for the claimant. It was held that the sister was a partial dependent, and this notwithstanding the fact that the claimant had $600 in the bank and a one-third interest in productive real estate that was assessed at $1,300. Kenney v. City of Boston, 222 Mass. 401; 111 ]Sr. E. 47. An award on the basis of partial dependency, to a widow, is not authorized,. under the Massachusetts Act, where it appears that the wife had resided in Italy, apart froni her husband, at least six' years, and there is nothing to show the wife's circum- stances, or whether she has other means of support, but there is evi- dence that the husband occasionally sent her money; as a wifp is conclusively presumed to be dependent on her husband with whom she lives at the time of his death, and therefore, under such circum- stances, an award of partial dependency is not authorized. In re Fierro's Case, 223 Mass. 378 ; 111 N. E. 957. (f) Michigan. If the annual earnings of an employe do not exceed $520 compensation should be awarded at the rate of $5 a week, for 300 weeks, in a death case, under the Michigan Act. De- Mann V. Hydraulic Engineering Co. (1916), Mich. ; 159 InT. W. 380. Under the Michigan Act, where a sister received con- tributions from her brother, it was held that evidence of partial de- pendency was established, even though part of the time she worked and earned money for her own support. Miller v. Riverside Storage & Cartage Co., Mich. ; 155 IST. W. 462. (g) Minnesota. Where parents regularly received part of their support from the wages of the deceased workman, it was held that this was sufficient evidence that they were partially dependent upon him. State v. District Court of Rice County (1916), Minn. ; 159 ]Sr. W. 755. The amount of a death benefit under the Minnesota Act depends on the state of the law at the time of the death and not on an amendment since made. State ex rel. Olohe In- demnity Co. V. District Court of Ramsey County, 132 Minn. 249; 156 Isr. W. 120 ; 11 IST. C. 0. A. 632. Under the Minnesota Act which provides that the amount paid to partial dependents shall be " that proportion of the benefits provided for actual dependents which the average amount of^fe^'^^ MpRSflf Contributed by the deceased DEATH BENEFITS Y53 Partial dependency to such partial dependent at, and for a reasonable time immediately prior to the injury, bore to the total income of the dependent during the same time," it was held that the amount contributed by the de- ceased workman to the dependent should be taken into consideration in determining the total income of such dependent. State ex rel. Hay den v. District Court of St. Louis County (1916), 133 Minn. 454; 158 N. W. Y92. Under the Minnesota Act of 1913 it was held that a partial dependent was entitled to the minimum amount pro- vided in the statute, when the death occurred prior to the amendment made by chapter 209 of the Laws of 1915. State ex rel. Globe In- demnity Co. V. District Court of Ramsey County, 132 Minn. 249; 156 N. W. 120 ; 11 N. C. C. A. 632 ; State ex rel. Croohston Lumber Co. V. District Court, Beltrami County, 131 Minn. 27 ; 154 N. W. 509. The minimum death benefit to be paid to partial dependents is $6 per week. State v. District Court of Bice County (1916), Minn. ; 159 K W. Y55. (h) New Jersey. Under the New Jersey Act it is not necessary to show that persons claiming compensation were wholly dependent upon the deceased workman as the word " dependent," as used in the statute, includes partial dependents. Havey v. Erie B. B. Co. (Hud- son Common Pleas, 1914), 37 N. J. Law J. 54. But where a de- ceased employe left dependent parents and dependent minor brothers and sisters, it was held that an award under the New Jersey Act of 60 per cent, of wages for 300 weeks was not justified, but that an award of 50 per cent, for 300 weeks was justified. Havey v. Erie B. Co., 87 N. J. Law 444; 95 Atl. 124. (i) New York. That a person is only partially dependent upon a deceased workman for support will not deprive such dependent of the benefit of the New York Act. Walz v. Holbrooh, Cabot & Bol- lins Corporation, 170 App. Div. 6; 155 Supp. 703. (j) OMo. 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. Be Emma Hoffman, Claim No. 2293, Ohio St. Lia. Bd. Awd., March, 1913. (k) Pennsylvania. A son twenty-four years of age was unmarried and lived with his i&ih&Si^^iS/ MSlMimm younger children liv- 48 754 beadbuey's woek:mem''s coMPE]srsATi05r law Total dependent ing at home. The father worked, as did also some of the children, but others were too young to work. The father testified that the son gave to him, the father, his pay envelope each week containing $15 without opening it, unless he was short of carfare and that the father paid the family expenses and hought the son's clothing. It was held that the father was not a partial dependent and compensation was refused. This decision, however, was based to a considerable extent, on a finding that it was improbable that the son turned over his entire wages to the father as was contended. Johnson v. Bethlehem Steel Co., Pa. Workmen's Comp. Bd., Sept. 27, 1916 (unreported), (1) Washington. Under the Washington Act it was held that a dependent mother was entitled to $20 a month so long as the depend- ency lasted, and that the provision in the statute that where the de- ceased workman was a minor a certain percentage of his wages should be paid to his parents until the time when the minor would have arrived at the age of twenty-one years, applied exclusively to cases where there were no dependents, and not to cases where the workman who was a minor left dependents. Boyd v. Pratt, 72 Wash. 306; 130 Pac. 371. (m) Wisconsin. A sister of a deceased workman was ill and was taken by the deceased to their uncle's house and the deceased work- man agreed to pay the uncle board for the sister, but did not pay the entire cost of the care of the sister. It was held that she was a partial dependent. Jackson v. Industrial Commission (1916), Wis. ; 159 ]Sr. W, 561. In the case of the death of an employe the compensation cannot be decreased because he is over the age of fifty-five years, as it may be ill cases of permanent disability, when the employe is over that age. City of Milwcmhee v. Bitzow, 158 Wis. 376; 149 lij". W. 480; 7 K C. C. A. 498. 4. Total dependent.^ (a) British. A wife may be a dependent of a husband even though she earns more than he does and dependency does not mean that the person is totally dependent on a deceased workman under the British Act, Smith v. Cope (1913), 6 B. W. 0. 0. 569. 1 See decisions under titles of various dependent relatives such as Parents, Children, Brothers arQWrn^, Im Microsoft® BEATH BENEFITS Y55 Total dependent (b) California. The amount of death benefits payable to persons wholly dependent upon a deceased employe under the California Act is clearly defined as three times the average annual earnings of the deceased employe and this amount cannot be increased or diminished. Spreckles Bros. Commercial Co. v. Mrs. Ida Nelson^ 1 Cal. Ind. Ace. Com., (Part I), 109. Where the father of a deceased employe had, because of ill health, been unable for several months previous to the death of his son, to contribute to the support of himself or family and there was no evi- dence that the father's health would improve, or that he would at any time in the near future be able to support himself or family, it was held that the family was at the time totally dependent upon the em- playe for support. Lay v. Northern, Redwood Lumber Co. (1916), 3 Cal. Ind. Ace. Com. 271. (c) Kansas. An appeal from an award of $1,872, to a dependent mother who was sixty-two y^ars of age and entirely destitute, and who was entirely dependent upon her son for support, was dismissed for want of merit under the Kansas Act. McCracken r. Missouri Valley Bridge & Iron Co., 96 Kan. 353; 150 Pac. 832. (d) Massachusetts. Where a son contributed his entire earnings to his father, biit the father was not entirely dependent upon the son, and also supported the son, it was held that tha father was entitled to a death benefit amounting to 100 per cent, of the amount which could be awarded under the statute. Murphy v. American Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 486. (e) Minnesota. Total dependency does not mean that the depend- ent is supported wholly out of the wages of the employe's employ- ment. Therefore a widowed mother, without means, who is sup- ported by her son partly by the wages of his employment and partly from his land, was held to be wholly dependent upon the son. State ex rel. Crookston Lumber Co. v. District Court, Beltrami County, 131 Minn. 27; 154 N. W. 509. (f ) New Jersey. It is no defense to a claim under the 'New Jersey Act that the administrator and his family were not entirely dependent upon the deceased, where they were dependents in fact, as the words " actual dependents " used in the statute, mean dependents in fact. Muzih V. Erie B. Co,, 85 K. J. Law 129 ; 89 Atl. 248 ; 4 N. C. C. A 732 Digitized by Microsoft® Y56 beadbuey's woekmen's compensation law Partial and total dependents of same workman (g) Ohio. A widow living with her husband at the time of his death is presumed to be wholly dependent upon her husband for sup- port under the Ohio Act. White v. The Scioto Land Co., 1 Bull. Ohio Ind. Com. 114; In re King, 1 Bull. Ohio Ind. Com. 37. 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, Chip 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. 41, Ohio St. Lia. Bd. Awd., June 14, 1912. An employe was killed in the course of his employment leaving surviving a widow and a son thirty-fi.ve 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 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 employment 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. 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 presumption in favor of such dependency. Re Emma Hoffman, Claim No. 2293, Ohio St. Lia. Bd. Awd., March, 1913. 5. Partial and total dependents of same workman. Partial dependents may be entitled to compensation although there are others who were wholly dependent on the deceased workman. Robinson v. Anon (1904), 6 W. C. C. 117. Digitized by Microsoft® DEATH BENEFITS 757 Wife separated from husband 6. Wife ^ separated from husband. (a) British. A widow and children are dependents of a husband and father who has deserted them where a decree has been entered for the support of the widow and children, but the workman evaded payment. Young v. Niddrie & Benhar Coal Co. (1913), (House of Lords), 6 B. W. 0. 0. 774; rev'g NiddHe & Benhar Coal Co. v. Young (1912), 49 Sc. L, R. 518; 5 B. W. C. C. 552. In the last- mentioned case the House of Lords distinguished this case from the case of Neiu MoncMon Collieries v. Keeling (1911), A. 0. 648; 4 B. W. C. C. 332 ; 6 Isr. C. C. A. 240. Where husband and wife were voluntarily living apart and th,e wife was earning her own living at the time of his death and did not receive any support from him whatsoever prior to his death, it was held by the House of Lords, reversing the Court of Appeal and County Court, that the widow was not entitled to compensation. The rule was laid down that the mere fact that a man in ordinary circum- stances is liable to support his wife in law, is not of itself sufficient evi- dence to support a claim for compensation by his widow; that the obligation or liability to support is not the same as actual support. Lord EoBsoN declared : " Money coming to a widow under the Act is not a present in consideration of her status ; it is a payment by a third person to compensate her, as a dependent, for her actual pecuniary loss by her husband's death and * * * there is no rule of law to prevent the arbitrator from finding that, though mar- ried to the deceased, the applicant was not in fact dependent upon him." New MoncMon Collieries v. Keeling (1911), 4 B. W. C. C. 332, reversing •^ee?mg' v. New MoncMon Collieries (1910), 4 B. W. C. C. .49. Where a woman left her husband because of cruel treat- ment and had lived apart from him and supported herself and a child for about twelve years prior to the husband's death, it was held that she was not a dependent and was not entitled to compensation upon the death of the husband through accident. Lindsay v. M'Glashen & Son (1908), 45 Scotch L. E. 559 ; 1 B. W. C. C. 85. A wife who had been turned out of her home by her husband and had not been 1 Under all the statutes, where a wife is living with her husband and is supported by him at the time of the accident, she is a total dependent. It is only where there is a vari^^-ra^y^^g^ /t^gPoSoMf ^ ^^^^ ^^^^^ '^ ^°^ chance for a controversy. 758 Wife separated from husband living with or supported by him for eleven years before his death, but who had made endeavors to obtain support, was held to be in part dependent upon her husband's earnings at the time of his death and therefore entitled to compensation. Medler v. Medler (1908), 1 B. W. C. C. 332. Several years before a workman's death his wife voluntarily left him and persistently declined to return. Her daughter, aged sixteen at the time of the death, went with the mother. The mother was'sup- , ported from property of her own, and the daughter was supported for a time to some extent from her own earnings, and otherwise by her mother. The workman did not contribute. It was held that neither the wife nor the daughter was dependent on the workman at the time of his death. Polled v. Great Northern Railway Co. (No. 2) (1912), 5 B. W. C. C. 620. See same case on previous appeal (1911), 5 B. W. C. C. 115. Where a husband deserted his wife seven years before he was killed and made no provision for her support so that she was com- pelled to go to the workhouse and he had made her only two pay- ments during the whole time amounting to a trifling sum, it was held that the widow was not a dependent and compensation was refused. Devlin v. Pelaw Main Collieries (1912), 5 B. W. C. C. 349. (b) California. Where up to the time of his death a laborer had by means of remittances been supporting his wife, who during two years of his absence from her had remained in the foreign country of their birth, it was held that she was living with him at the time of his death within the meaning of section 19 of the California Act and that she was entitled to the presumption of total' dependency by reason of the amendment of the California Act effective August 8, 1915, conferring the right to such presumption on a widow for whose spuport her husband was legally liable. Lopez v. Fremont Con- solidated Mining Co., 3 Cal. Ind. Ace. Com. 31. When a wife lives abroad there may be circumstances when it will be found that she is " living with " her husband notwithstanding their physical separa- tion, but there must be evidence of regular and substantial contribu- tions by the husband and facts showing an intent, on the part of hus- band and wife, to renew family relations. Claudio v. California Street Cable By. Co., 3 Cal. Ind. Ace. Com. 7. Where a husband and wife at the time of his accidental death were living apart by agree- Digitized by Microsoft® DEATH BENEFITS 759 Wife separated from husband ment, which included no stipulation for support, and divorce pro- ceedings had been commenced wherein both parties ask for a divorce and no alimony had been allowed to the wife, it was held that the husband was not legally liable for the support of the wife within the meaning of section 19 (2) (1) of the California Act as amended in 1914, and was not a dependent. Percy v. Arctic Cold Storage Co., 3 Cal. Ind. Ace. Com. 74. A wife living in a foreign country who is supported by her husband is a dependent under the California Act. Chulata v. Bansome-Crummey Construction Co., 2 Cal. Ind. Ace. Com. 952. Where a deceased workman upon coming to this country seven years before tte accident, left his wife and children in Italy, to whom he sent regular contributions for their support throughout the term of separation, averaging $180 annually during the last three years, it was held that such wife was living with h»r husband at the time of his death, within the meaning of the Act and therefore con- clusively presumed to be totally dependent. Tomasi v. Mazzotti & Butini, 2 Cal. Ind. Ace. Com. 543. Total dependency will be con- clusively presumed in favor of a widow, although husband and wife had been separated for a long term of years, during which period there is an evident intent to renew family relations by the regular contribution made by the husband to the wife for the support of her- self and family. Tomasi v. Mazzotti & Butini, 2 Cal. Ind. Ace. Com. 543. Where a wife had deserted her husband and for four months immediately preceding his death he had not contributed to her support, it was held that she was not a dependent and compensa- tion was refused. Holleron v. Hill, 2 Cal. Ind. Ace. Com. 269. The conclusive presumption of dependency does not arise where a wife is living apart from her husband at the time of the accident, but such dependency in a case of that kind is one of fact, which must be shown by evidence. Holleron v. /. A. Hill, doing business under the name of Hill Construction Co., 2 Cal. Ind. Ace. Com. 269 ; Bossi v. Stand- ard Oil Co., 2 Cal. Ind. Ace. Com. 339 ; Dos Beis v. Standard Port- land Cement Co., 2 Cal. Ind. Ace. Com. 864; Bristol v. P. /. Gart- land. 1 Cal. Ind. Ace. Com. (Part II), 632. The presumption of total dependency does not arise in the case of a wife who has been deserted by her husband and she is not living with him at the time of his death, but the question of dependency is one of fact. Avery v. Pacific Gas and Electric Co., 2 Cal. Ind. Ace. Com. 343. Digitized by Microsoft® 760 bradbuky's workmen's compensation law Wife separated from husband A widow of a deceased employe wto had separated from him prior to his death and who had been living apart from him at the time he was killed and earning her own living without receiving any aid from him, is not entitled to a death benefit under the California Act. Delgado v. California Portland Cement Co., 1 Cal. Ind. Ace. Com. (Part II), 436. Where there has been a divorce and the custody of a minor daughter has been awarded to the mother, no order of the child's support hav- ing been made by the court, the father is not responsible for said support and there is no presumption of the dependency of said child on the father. But where the father voluntarily contributes to the support of such child, this fixes dependency as a matter of fact and the child is entitled to an award of death benefits, based upon the amount of such contributions. Morse v. Royal Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 53. Where a wife resided out of the State with her child and apart from her husband, but was frequently visited by her husband, who sent regular and generous contributions for her support, it was held that the wife was a dependent and entitled to a death benefit. Majeau v. Sierra Nevada Wood and Lumber Co., 2 Cal. Ind. Ace. Com. 443. A wife who with her minor children had been absent for about two months from her husband, living with her sister, is nevertheless living with him, within the meaning of the Cali- fornia Act, where it appears that she intended, within a short time, to return to her husband at the place where he is endeavoring to make a home for them. State Compensation Insurance Fund v. Breslow, 1 Cal. Ind. Ace. Com. (Part II), 194. (c) Connecticut. Where husband and wife did not live together at the time of the injury and the husband had not contributed any- thing to the support of the wife for a considerable period before the injury, it was held that the wife was not a dependent, under the Con- necticut Act. Engstrom v. L. Candee & Co., 1 Conn. Comp. Dec. 691 ; Engstrom v. L. Candee & Co., Conn. Super. Ct., New Haven County, Jan. 29, 1917 (unreported). Where a widow had not lived with her husband because he drank and during eleven months she had received from him only $10 and during that time had lived with her son, who supported her, it was held that she was not a dependent. Filliger v. Allen, 1 Conn. Comp. Dec. 35. (d) Massachusetts. The ruling in the case of In re Nelson, 217 Digitized by Microsoft® DEATH BENEFITS 761 Wife separated from husband .Mass. 467 ; 105 JST. E. 357 ; 5 N. 0. 0, A. 694, that a wife living apart, from her husband was not entitled to compensation under the original Massachusetts Act, was reaifirmed in the case of In re Galla- gher, 219 Mass. 140; 106 IST. E. 558, where it appeared that the wife had left her husband for justifiable causes and had secured a court order requiring her husband to contribute a certain amount for her support. Since the deaths occurred in both the Nelson and Gallagher cases the Massachusetts Act has been amended by chapter 708 of th(i acts of 1914, by including a provision that if at the time of the hus- band's death the wife was living apart from him for justifiable causes, or because he had deserted her, that she should be conscliisively pre- sumed to be wholly dependent upon her husband. This amendment, of course, nullifies the decisions in the Nelson and Gallagher cases. An employe and his wife lived together only occasionally and for short periods, at various places, where he had desultory employment as a common laborer, but there was evidence that he paid doctors' and grocers' bills, bought clothes for their child and gave money to his wife, though she was also employed. It was held that the Indus- trial Accident Board should examine the fact as to whether or not, she was dependent, as this was not a case where the Board was justi- fied in finding that the wife was living apart from her husband for a justifiable cause.' Veber v. Massachusetts Bonding and Ins. Co, (1916), 224 Mass. 86 ; 112 JST. E. 485. Where a wife lived in Italy to whom the employe occasionally sent money, .and she had resided apart from her husband at least six years, it was held that a finding that the husband and wife were liv- ing together was not warranted, as living together, under the statute, means normal, marital cohabitation. But in such a case the court should determine as to whether or not the wife was actually depend- ent on the husband, and make an award accordingly. In re Fierro's Case, 223 Mass. 378 ; 111 JST. E. 957. To warrant a finding that a wife is living apart from her husband under the Massachusetts Act, as amended in 1914, for justifiable cause, it must appear that the cause is failure of duty or misconduct, and mere living apart by mutual consent is not for justifiable cause. But this cause need not be such as to entitle her to a divorce, but may be other ill treatment or misconduct of lesser degree. In re New- man's Case, 111 N. E. 359 ; 222 Mass. 563. Where a husband and Digitized by Microsoft® Y62 beadbuky's workmen's compensation law Wife separated from husband wife several years prior to his death had broken up housekeeping and he had worked apart from her outside the State and she had at times worked in various places for her own support, although he had at times contributed thereto, and although they had spent week ends together occasionally, it was held that they were not living together so as to entitle the wife to compensation for the death of the hus- band, under the conclusive presumption that a wife living with her husband is dependent upon him for support. Id. Although at the time a wife left her husband it was for justifiable cause on account of his inability to support her, where at the time of his death he was earning enough to support her properly, her living apart at that time was not for justifiable cause. Id. Where husband and wife had disagreed and separated, although relations between them seemed to be friendly, and the husband gave, money to his wife on irregular occasions, but the parties were not living at the same place or cohabiting together, it was held that they were not living together within the meaning of the statute and com- pensation to the widow was refused. In re Nelson, 105 N. E. 357; . 217 Mass. 467 ; 5 N. C. C. A. 694. The court refused to follow the case of Northwestern Iron Co. v. Industrial Commission, 154 Wis. 97 ; 142 ]Sr. W. 271 ; L. K. A. 1916 A, 366n. The court also specific- ally construed the phrase " with whom she lives," found in Part 2, § 7 of the Massachusetts Act and stated : It " means living together as husband and wife in the ordinary acceptation and significance of these words in comm(^n understanding. They mean maintaining a home and living together in the same household, or actually cohabiting under conditions which would be regarded as constituting a family relation. There may be temporary absences and incidental interrup- tions arising out of changes in the house or town residence, or out of travel for business or pleasure. But there must be a home and a life in it. The matrimonial abode may be a roof of their own, a hired tenement, a boarding house, a rented room or even a room in the house of a relative or friend, however humble or temporary it may be. But it is the situation arising from the existence of a common home, a place of marital association and mutual comfort, broken up or put in peril of hardship or extinction by the husband's death, which is pro- tected by, the conclusive presumption of dependency established be- yond the peradveni)jpf/^cfr. Corp., 1 Mass. Ind. Ace. DEATH BENEFITS Y83 Children Bd. 405. Where a son contributed all of his wages to the father, who supported this son and eight other children, and the wages of the father and such of the other children as worked were all contributed for the support of the entire family, it was held that in determining the minimum amount of compensation there should not be any de- ductions for the sum which it had cost the father to support the son who had been killed. In re Murphy, 105 IST. E. 635 ; 218 Mass. 278 ; 5 K C. C. A. Tie. (f) Michigan. A daughter of the deceased, after her mother be- came insane and was taken to an asylum, went to live with another with whom she thereafter had resided and by whom she was cared for, the father not contributing to her support. It was held that the daughter was not a dependent upon the father, under the Michigan Act. Eoberts v. Whdley (1916), Mich. ; 158 E", W. 209. (g) Minnesota. Under the Minnesota Act, prior to the amend- ment contained in L. 1915, c. 209, § 14, a child over eighteen, al- though supported by the deceased, was not dependent, unless physically or mentally incapacitated from earning, but under that amendment such a child may be a partial dependent if deriving part of her support from the parent. State ex rel. Maryland Casualty Co. V. District Court df Ramsey County (1916), Minn. ; 158 K W. 798. (h) New YorJc. A child under the age of eighteen is presumed to be a dependent, under the New York Act. Bell v. Terry & Tench Co. (1917), 177 App. Div. 123; 163 Supp. 733. (i) Ohio. Where a son, thirty-five years of age, was mentally and physically deficient, but had been earning $7.50 per week for some time before his father's death, and for a considerable period of time the father had not been employed except the day before his death, it was held that the son was not a dependent, under the Ohio Act of 1911. In re Williams, 1 Bull. Ohio Ind. Com. 31. A son over six- teen years of age is not presumed to be dependent upon his father's support, but this is a question of fact, under the Ohio Act of 1913. White V. Scioto Land Co., 1 Bull. Ohio Ind. Com. 114, A daughter sixteen years of age who lived separate and apart from her father, her mother being dead and her father paying her board and furnishing her money for the purchase of necessary clothing, is totally de- pendent upon the father for support. In re Huqhes, 1 Bull. Ohio *^ ^ Digitized by Microsoft® ^ 784 beadbtjey's woekmen's compensation xaw stepchildren Ind. Com. 148. There is no presumption that a child over sixteen years of age is dependent upon its father for support under, the Ohio Act. But dependency in such a case is a question of fact to be de- termined by the evidence. In re Hughes, 1 Bull. Ohio Ind. Com. 148. The widow and minor children of a deceased workman with whom he lived and whom he supported at the time of his death, are wholly dependent, under the Ohio Act of 1911. In re Baird, 1 Bull. Ohio Ind. Com. 28. (j) Wisconsin. Where minor children of a divorced wife had not received any support for a considerable period of time from the work- man before he was killed by an accidental injury, it was held that these children were not dependents under the Wisconsin Act. Reed {Gerard) v. Rothe, Fourth Annual Eeport (1915), Wis. Ind. Com. 33. A daughter over the age of twenty-one years, but who by reason of illness and physical disability was unable to care for herself and had been cared for by her father, was held to be a dependent, under the Wisconsin Act. City of Berlin v. Cheshy, Third Annual Eeport (1914), Wis. Ind. Com. 49. 16. Married daughter not living with father. A daughter was married to a husband who was earning $40 a month. The daughter herself earned about $10 a month and had a further income from the taking of lodgers. The deceased workman, the father of the claimant, sent the claimant from $2 to $5 a month and made presents to her at the holiday season. It was held that the daughter was not a dependent. Blanton v. ^Y^leeler & Howes Co., 1 Conn. Comp. Dec. 415 ; aff'd by Superior Court, Id. 418. 17. Stepchildren. The Attorney General of Minnesota ruled that stepchildren were not dependents under the Act as originally passed. By an amendment which became efFective July 1, 1915, stepchildren were specifically included, as dependents. Bulletin No. 11, Minnesota Dep, Labor & Ind. 31. Stepchildren who are brought into the workman's household and are supported by him are dependents, under the New Jersey Act. Klotz V. Newarh Po^f^^^t^^^Ss^m ^- 271. DEATH BENEFITS T85 Son of divorced parents 18. Adopted child. • A child who has been legally adopted according to the law of the domicile becomes entitled under the Act the same as any other child named therein. Re Ascencion Estorga, Op. Sol. Dep. L., p. 566. A child who has been lawfully adopted is a dependent and entitled to compensation the same as any other child of a deceased workman. .Yohe V. Erie R. Co. (Hudson Common Pleas, March 31, 1913), 36 ]Sr. J. Law J. 154. In the last-mentioned case the proceedings for the adopting of the child had been carried through up to the point of actually filing the order, which had already been signed by the surro- gate at the time of the death of the employe. An order was subse- quently made, on behalf of the infant, filing the decree of adoption nunc pro tunc as of a date when the same was signed by the surro- gate. It was held that under such circumstances the child was entitled to compensation. 19. Child adopted by widow. A child adopted by a widow after her husband's death is not a de- pendent, under the Minnesota Act. State ex rel. Varchmin v. Dis- trict Court of Ramsey County (1916), 133 Minn. 265; 158 K W. 250. 20. Minor children who have been adopted by another. A minor child who has been adopted by another, and whose foster father is dead, is a dependent of its real father, even though the father has not contributed to the support of such child for some time before his death. Farrington v. Lachman & Jacohi, 1 Oal. Ind. Ace. Com. (Part I), 116. 21. Minor son by former husband. The minor son oi a widow, by a former husband, who was totally dependent on the deceased workman, is not entitled to compensation under the California Act, as he is not a dependent in the legal sense of the word. Secory. Security Construction Co. and Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 93. 22. Son of divorced parents. A son, nineteen years old, was living with his grandparents in a State away from the^gfe ^^^e^^^fefe^^-S b«^" ^^''^^'^'^ ^""^ 50 I YSG beadbuet's woekmen's compensation law Minor children living with divorced mother remarried. The son was attending school and doing chores for his hoard and room. The father had been accustomed to send him money from -time to time to pay for his schooling. It was held that the son was a partial dependent on the father and was entitled to compensa- tion as such. Spencer v. Neil McLean and London and Lancashire Guarantee and Accident Co., 1 Cal. Ind. Ace. Com. (Part II). 84. 23. Minor children living with divorced mother. Where a son of the deceased employe was nineteen years of age and in the custody of his divorced mother, with no provision for his sup- port by his father, and the father had not, in fact, contributed to such son's support, it was held that the son was not a dependent, under the California Act. Dolheer & Carson Lumber Co. v. Watson, 1 Cal. Ind. Ace. Com. (Part II), 654. ' Where the divorced wife of an employe had retained a minor child in her custody and she had remarried, it was held that the child was not a dependent of the father. Natomas Consolidated of California V. Self ridge, 1 Cal. Ind. Ace. Com. (Part I), 196. Where an employe has been divorced and the custody of the minor children have been awarded to the wife, with a provision for alimony for their support, such children are partial dependents of their father, under the California Act of 1911. Butterfield v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 192. Where a minor child was in the custody of its mother who had secured a decree of divorce from the father, by which decree alimony was awarded for the support of the mother and child, but the father had not paid any of the alimony provided for in the decree, it was held that the widow was not a dependent, but that the minor child was conclusively presumed to be wholly dependent. Mitchell v. Crichton, 2 Cal. Ind. Ace. Com. 931. Where a wife had secured a final decree of divorce from her hus- band, which decree contained no provision as to the custody of the children, it was held that they were dependents of the father, even though the interlocutory decree had provided that the mother should have the custody of the children, but that if the father ceased unlaw- ful intercourse with a certain woman he should thereafter have the custody of the children. In any event it was held that it was neces- sary in order to defg)§^/^(yr^;%/(^^5yjy^hildren as dependents to DEATH BENEFITS Y87 Illegitimate children show affirmatively that the father had not discontinued such unlawful intercourse. Ilart v. Western Bag Co., 3 Cal. Ind. Ace. Com. 85. 24. Husband and son killed in same accident ; dependency of widow and daughter. Where a husband and son were killed in the same accident and it appeared that the son contribiited half of his earnings to the family consisting of the father, mother and sister, it was held that the wife was conclusively presumed to be dependent upon the husband and that the dependency of the sister was' partial and one-sixth of the son's average annual income was estimated as having been devoted to her support. Irwin v. The Globe Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 547. 25. Posthumous child. A posthumous child may be a dependent of a deceased workman and entitled to compensation. (House of Lords), Yillar v. Gilhey (1907), A. C. 139; Williams v. Ocean Coal Co. (1907), 97 L. T. 150 ; 9 W. C. C. 44. An unborn child is dependent upon the earn- ings of the father. Day v. Marhham (1904), 6 W. 0. C. 11-5. Provision may be made in an award of compensation to a widow for an unborn child to become effective when siTch child is born. Secor V. Security Construction Co. and Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 93. 26. Illegitimate children. An illegitimate child who was taken in charge by a friend of the mother was held not to be a dependent of the mother who was killed by an accident. Briggs v. Mitchell (1911), 48 Scotch L. E. 606 ; 4 B. W. 0. C. 400. But see Schofield v. Orrell Colliery Co. (1908), 100 L. T. 104; 2 B. W. C. C. 301. Where compensation is awarded to an illegitimate child, it should not be in a sum greater than the deceased could have been compelled by law to pay for the child's support. Gourlay v. Murray (1908), 45 Scotch L. E. 577; 1 B. W. C. C. 335. Illegitimate children who are actually supported by an employe are dependent under the California Act. PollocJc v. Wagner Leather Co., 3 Cal. Ind. Ace. Com. 37,; Bustamente & Melendes v. Gate City Ice & Precooling Co., 2 Cal. Ind. Ace. Com. 120 ; Sexton v. Massachw Digitized by Microsoft® 788 Mother of Illegitimate child as dependent of father of child setts Bonding and Ins. Co. and Two Boys Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 48; Tarango v. McCombs, 3 Cal. Ind. Ace. Com. 63. An illegitimate child to wliom the employe contributed a cer- tain portion of bis earnings is a dependent and is entitled to the same proportion of the death benefits as the proportion of the wages of the employe which were contributed to the child. Mitchell v. Fair- child-Oilmore-Wilton Co. and Casualty Co. of America, 1 Cal. Ind. Ace. Com. (Part II), Yl. , Illegitimate children who are actually supported and cared for by • their father are dependents, under the Michigan Act. Boherts v. Whaley (1916), Mich. ; 158 N. W. 209. An illegitimate child is not entitled to compensation under the New York Act. Berger v. Shadholdt Mfg. Co. (1916), 8 N. T. St. Dep. Eep. 460; Bell v. Terry & Tench Co. (1917), App. Div. ; 163 Supp. 733. 27. Posthumous illegitimate child. A posthumous illegitimate child may be a dependent and entitled to compensation for the death of the father of the child. Schofield V. Orrell Colliery Co. (1908), 100 L. T. 104; 2 B. W. C. C. 301. And statements of the father before his death are admissible on the question of paternity. Lloyd v. Powell Duffryn Steam Coal Co. (1914), 7 B. W. C. C. 330. 28. Parents of illegitimate children. Neither the mother nor the putative father of an illegitimate child are entitled to compensation upon the death of the child, especially where the mother is living with and being supported by her husband. McLean v. Moss Bay Hematite Iron and Steel Co. (1909), 100 L. T. 871 ; 2 B. W. C. 0. 282. The mother of an illegitimate child, who was supported by the father and mother of the child, is not a dependent, under the Massa- chusetts Act. In re Cowden (1916), Mass. ; 113 N. E. 1036. 29. Mother * of illegitimate child as dependent of father of child. The mother of an illegitimate child, who has obtained an order of 1 See Mistress. Digitized by Microsoft® DEATH BENEFITS - 789 Brothers and sisters filiation against the father of the child, is entitled to compensation on behalf of the child, upon the death of the father through an accident, even though the father had evaded payment of the amount awarded in the filiation proceeding, by changing his name and concealing his identity. Bowhill Coal Co. v. Neish and Others (1908), 46 Scotch L. E. 250 ; 2 B. W. 0. C. 253. Where a man and v?oman hold them- selves out to the world to be married and the man is killed by acci- dent, it seems that the woman and her child may recover compensa- tion upon sufficient evidence being given of a common-law marriage. Fife Coal Co. v. Wallace (1909), 46 Scotch L. E. 127; 2 B, W. 0. 0. 264. 30. Brothers and sisters. (a) California. An employe's sister lived with him and took care of his household and depended entirely upon him for support for herself and her minor son and it was held that she was a dependent of her brother. Sims v. Robert Sherer & Co. (1916), 3 Cal. Ind. Ace. Com. 197. Where a brother and sister had been saving money, with the intent of buying a lot on which to open a store, but the sister lost her position by reason of an accidental injury, by which she lost an arm, and the brother thereafter contributed to her support, it was held that she was a partial dependent of the brother to the extent of such contribution. Mahoney v. Yosemite Valley B. Co., 2 Cal. Ind. Ace. Com. 152. Where a deceased workman made contributions to his sister for her support and the money so contributed was actually used and was necessary therefor, it was held that the sister was a de- pendent of the deceased, and this was so even though the sister was living with her husband and by law the husband was charged with her support. Ballins v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part I), 57. Minor brothers may be dependents, under the California Act of 1911. Nelson v. Great Western Power Co., 1 Cal. Ind. Ace. Com. (Part I), 145. Occasional gifts by an employe to his sister do not have the effect of making her a dependent. Warden v. Yosemite Lumber Co., 1 Cal. Ind. Ace. Com. (Part II), 518. Evidence of occasional gifts by the deceased to his brother, in his lifetime, does not establish dependency in any sense, of such brother. Holleron v. Hill, 2 Cal. Ind. Ace. Com. 269. Digitized by Microsoft® 790 beadbuey's woekmbn's compensation law Brothers and sisters (b) Connecticut. A married sister with five children ranging from seven to sixteen years of age, whose husband was earning $3 5 a week, was held to be a partial dependent, under the Connecticut Act, where it appeared that her brother, the deceased workman, had allowed the claimant to occupy a house belonging to the deceased, rent free, and had also made contributions to the support of the claim- ant. Kennedy v. American Brass Co., 1 Conn. Comp. Dec. 406. In the last-mentioned case the Commissioner said that it was pos- sible for the claimant and her family to purchase the necessaries of life with the wages which her husband earned, but the Commissioner added : " That is not the test to determine questions of dependency." The Commissioner followed the case of Powers v. Hotel Bond Co., 89 Conn. 143; 93 Atl. 245, where it was said that the test is " whether the contributions were relied upon by the defendant for his or her means of living; judging this by the class and position in life of the dependent." Where a brother contributed cash to his sister at irregular periods and part of the year boarded with her and paid her more than the cost of the board, through which fact the sister received a material benefit, although the sister was married and living with her husband and was the mother of thirteen children, it was held that the sister was a partial dependent and entitled to the minimum compensation, under the Connecticut Act. McNamara v. Ives, 1 Conn. Comp. Dec. 41. A married sister who it was shown was partially dependent on the employe, -her deceased sister, was av/arded a death benefit of the minimum amount, but the time of payment of the compensation was made one-half the period authorized by section 9 of the Connecticut Act, under the peculiar circumstances of this case. JaJcubowsJci v. Brooks, 1 Conn. Comp. Dec. 281; aff'd by Superior Court, Id. 285., In the last-mentioned case it appeared that no amounts had been contributed by the deceased sister to the claimant during the last three months of the life of the employe. It was held that this was not a bar to the claim, under the finding that there was an actual condition of dependency. ^ A sister of a deceased workman was twenty-six years old and had kept house for the family since the mother's death, ten years previous. During two periods of illness the claimant had been in a hospital where her ^°^V^^^^ [^j^f^^^^'^^f^.j^^}^^ lier brother, the deceased DEATH BENEFITS 791 Brothers and sisters workman, and in addition the deceased had been in the habit of fur- nishing to the claimant cash for her personal use of from $1 to $6 per week, and had on one occasion at least bought her a suit costing about $25 and a pair of shoes. It was held that the sister was a partial dependent and entitled to "the minimum compensation, under the Connecticut Act. McNamara v. The Hartford Livery Co., Conn. Comp. Com., First Dist., June 1, 1916 (unreported). (c) Massachusetts. Where it appeared, from unsatisfactory evi- dence that a sister might have been dependent upon her deceased sister, by reason of partial ownership of property where they both re- sided, it was held, on appeal, that it could not be said that there was no evidence to support the finding of the Industrial Accident Board, and the decree awarding compensation was affirmed. In re Buckley, 105 ]Sr. E. 979 ; 218 Mass. 354; 5 IST. C. C. A. 613. A brother of a deceased workman is not entitled to compensation, under the Massa- chusetts Act, unless he shows actual dependency. Sheehan v. Fidelity & Casualty Co., 1 Mass. Ind. Ace. Bd. 394; 11 N. C. C. A. 712. (d) New Jersey. A sister who was actually dependent upon a workman who was killed in the course of his employment was held to be entitled to compensation under the 'New Jersey Act. Jackson v. Erie B. Co., 86 N. J. Law 550; 91 Atl. 1035; 6 I^. C. C. A. 944. In the last-mentioned case the court said : " Dependent in these statutes means dependent for the ordinary necessaries of life; one who looks to another for support or help. If partially dependent, they must necessarily be actually dependent." (e) New York. A sister of the deceased who was a school girl not employed and who in fact was supported largely by his earnings, was held to be a dependent under the ISTew York Act. Walz v. Holbrook, Cabot & Bollins Corporation, 170 App. Div. 6; 155 Supp. 703. A sister must show actual dependency to recover for the death of a brother. Kolb v. Borden's Condensed Milk Co., 4 IST. Y. St. Dep. Eep. 347 ; 12 IST. C. C. A. 188. A sister under eighteen years of age was held to be a partial dependent and compensation was awarded to be payable up to the time the sister arrived at the age of eighteen. Onofrio v. Baratz (1916), 8 N. Y. St. Dep. Kep. 476. Brothers and sisters under eighteen who are actually dependent are entitled to compensation under the ISTew York Act. (f ) Ohio. An emj^bjye who^^WSfl^rried man maintained a 792 beadbuey's woekmen's compensatioa' law Half-brothers and half-sisters home for himself, his mother who was sixty-three years of age and an unmarried sister of twenty-four years of age. The entire expenses of the family were met by the earnings of the employe and a pension of $12 a month paid to the mother by the United States Government. It was held that the mother and sister were both partially dependent. Bess V. The Youngstown Sheet & Tube Co., 1 Bull, Ohio Ind. Com. 194. A sister who has never received any support from a brother is not a dependent under the Ohio Act. In re Shaffer, 1 Bull. Ohio Ind. Com. 7. A sister of full age was held to be neither wholly nor par- tially dependent upon an unmarried brother, with whom she did not reside, although he occasionally gave her small sums of money, where it appeared that the sister was regularly employed at the time of her brother's injury and death and had been so employed for some years prior thereto, at an average weekly wage of from $9 to $10. In re Cavett, 1 Bull. Ohio Ind. Com. 150. 31. Half-brothers and half-sisters. Where a mother was married a second time and she lived with the stepfather of the deceased workman as his wife and had several small children, and it appeared that the deceased workman contributed regularly to his mother, although the husband of the claimant was eniployed regularly, it was held that the mother and half-brothers and half-sisters of the deceased were partial dependents in equal degree of the deceased workman. Engstrom v. L. Candee & Co., 1 Conn. Comp. Dec. 691. A deceased minor employe, because of the death of his mother and the intemperance of his father, lived at the home of his half-brother, the household affairs of which were managed by his half-brother's wife to whom her husband and decedent gave their entire wages, for the support of the household, consisting of decedent, the husband and wife and their minor children. It was held that while the employe was a member of the family of his brother, who was partially de- pendent upon- his wages for support, yet the half-brother did not come within the term " next of kin," under the Massachusetts Act, and so he was not entitled to compensation, as against the surviving father of the deceased employe. In re Kelley's case. 111 N". E. 395; 222 Mass. 538. Digitized by Microsoft® DEATH BENEFITS T93 Non-resident aliens 32. Stepmother ancThalf-brothers and sisters. A coal miner, nineteen years of age, lived with his father and step- mother and five half-brothers and sisters, ranging in age from two to thirteen years. The father had been an invalid for more than two years. The stepmother was not a wage earner and the family s\ih- sisted on the employe's earnings. It was held that the invalid father, the stepmother and half-brothers and sisters were wholly de- pendent upon the employe, under the Ohio Act. In re Spencer, 1 Bull. Ohio Ind. Com. 179. 33. Sister-in-law. A sister-in-law, who with her small children were actually sup- ported by the workman, was held to be a dependent under the Cali- fornia Act, although not specifically stated so to be in the statute. Western Indemnity Co. v. O'Brien, 1 Cal. Ind. Ace. Com. (Part II), 539. But on rehearing it was held that a sister-in-law with whom the deceased employe resided and to whom he made contributions for her support was not a dependent under the California Act, she not being included in the class of relatives enumerated in the Act. Western Indemnity Co. v. O'Brien, 2 Cal. Ind. Ace. Com. 419 ; rev'g former ruling of the Commission. But the California Act was amended, by an amendment which took effect August 8, 1915, specifically including a sister-in-law as a dependent relative. 34. Inmate of workhouse. A person in a workhouse is not necessarily dependent on the earn- ings of another because that other is legally liable to contribute to the cost of his maintenance. Bees v. PenriJcyber Navigation Colliery Co. (1902), 87 L. T. 661; 5 W. 0. C. 117. 35. Non-resident aliens. Where there is no special provision in the Act relative to the resi- dence of dependents, it is no objection to a claim for compensation by dependents that they are alien residents of a foreign country. Varesich v. British Columbia Copper Co. (1906), 12 B. C. 286; 1 B. W. C. C. 446. Under the British Columbia Act, where the dependents of a de- ceased workman who had been killed by an accident arising out of Digitized by Microsoft® 794 beadbuet's wokkmen's compensation law I . — _ Non-resident aliens and in the course of the employment were alien non-residents, it was held that the personal representatives of the deceased resident in the Province could recover compensation on behalf of the dependents. Krzm V. Crow's Nest Pass Coal Co. (1912), 6 B. W. 0. C. 271. A non-resident wife who has been wholly supported by her hus- band, and the evidence shows clearly that there is an intention of re- uniting, is a dependent under the California Act, and is entitled to an award of death benefit for total dependency in the case of his death. Concetto Del Fiacco Petrucci v. The Bed River Lumber Co., 3 Cal. Ind. Ace. Com. 40. Where a widow of the deceased was a resident of China and at all times resided there, and had not lived with her husband for eleven years, but during all of this time she had been in receipt of contribu- tions toward her support, from him, it was held that she was con- clusively presumed to be totally dependent upon the employe under the California Act. Ching Shee v. Madera Sugar Pine Co., 2 Cal. Ind. Ace. Com. 939. Where the child of a father who was killed in California was an alien and resident of Germany, and it appeared by the law of Ger- many that the father was legally liable for the support of minor chil- dren, it was held that such children were wholly dependent, under the California Act. Heinemann v. Durrer Brothers & Schreiher, 3 Cal. Ind. Ace. Com. 124. A death benefit under the Connecticut Act, when payable to a non- resident alien, is half the amount which has been paid to a resident. Viotti V. De Bisschop, 1 Conn. Comp. Dec. 195. In the last-men- tioned case the contention was made that the Connecticut Act in this respect violated the Treaty of Commerce and Navigation between Italy and the United States dated February 26, 1871, with amend- ments which were promulgated by the President of the United States on July 31, 1913. The Commissioner, however, refused to determine the question and remitted the parties to the proper court for such a determination. A non-resident alien son of an employe whose wife was dead, was held to be entitled to the entire death benefit, under the Connecticut Act, exclusive of other relatives. Fahhian v. C. W, Blakeslee & Sons., 1 Conn. Comp, Dec. 305, In tliA.last-mmtioned case the question arose as to whether the award shoiild be oi full compensation or of DEATH BENEFITS Y95 Non-resident aliens only half compensation and it was held that it should be for half compensation, although the claimant's attorneys contended that under the treaty with Italy it should be full compensation. Under the Connecticut Act the amount which would have been due to a resident alien was reduced by half, where such alien dependent was a non-resident. Dependents of Charles Biero v. The New Haven Hotel Co., 1 Conn. Comp. Dec. 52. When the minimum compensation is $5 per week, where the de- pendent is a non-resident alien, the amount to be paid is one-half of this sum, or $2.50 a week, under section 10, Part B, of the Connecti- cut Act. Salvatore r. Andreani & Gelormino, 1 Conn. Comp. Dec. 169; Alvarez v. Eisenmann, 1 Conn. Comp. Dec. 357; Pansoda v. The Bridgeport Hydraulic Co., 1 Conn. Comp. Dec. 118. Where the widow of an employe who was killed was not a resident of the United States at the time of his death, but she came to this country later, it was held that the rule as to full compensation to residents applied when the widow came to the United States, but that only one-haK the regular compensation was to be paid the widow up to the time she became a resident of this country. lannace v. The Johson- Gijford Co., 1 Conn. Comp. Dec. 118; Ostrowshi v. The Stanley WorTcs, 1 Conn. Comp. Dec. 554. An alien non-resident dependent is entitled to a death benefit, under the Illinois Act. Bishop v. Iroquois Iron Co., 1 Bull. 111. Ind. Bd. 108. Where it appeared that the workman had made regular remittances to his mother and sister in Italy, who by reason of failing eyesight had been unable to follow their usual occupations, and were forced to rely wholly upon him for means of support, it was held that the mother and sister were wholly dependent upon the workman, in spite of the fact that they sometimes received small voluntary contributions from other relatives. Petrozino v. American Mutual Liability Co. ( In re Caliendo), 219 Mass. 498 ; 107 K E. 370. Where the only dependents of a workman who has been killed are non-resident aliens, they cannot recover compensation under the l^ew Jersey Act. Bonca, Admr., v. De Grave (Mercer Common Pleas, 1915), 38 ]Sr. J. Law J. 56. Where an employe g^g^f J^ ferj^^^^s su^'ect to the provisions of the Compensation Act ol that State, which provides that where the 796 beadbuey's woekmen's compensation law Dependents receiving other Income because of deatli of worliman dependents are non-resident aliens, no claim for compensation can be allowed and that the Compensation Act affords exclusive remedy in cases where the employe is subject to the Act, it was held that Article 3 of the treaty between the United States and the Kingdom of Italy, proclaimed Nov. 23, 1871 (17 Stat. 845), which provides that the citizens of each country shall receive in the states and territories of the other " the most constant protection and security for their per- sons and property and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives," does not confer on the non-resident alien relatives of a citizen of Italy a right of action for his death under the laws of a State which give such right of action to native relatives, but expressly deny it to non-resident aliens. De Biasi v. Normandy Water Co. (Fed. Dist. Ct., N. J., December, 1915), 228 Fed. 234. Under the New Jersey Act, which does not allow compensation to be awarded to non-resident alien dependents, it was held that such dependents could not maintain an action at common-law because they were excluded from claiming compensation under the Compensation Act. Gregutis v. Waclarh Wire Works (N. J. Supreme Court, 1914), 37 E". J. Law J. 181 ; 11 K C. C. A. 715. 36. Dependent of more than one workman. One person can be the dependent of more than one workman and in case of death of two or more workmen such dependent can recover more than the, maximum amount allowed for the death of one work- man. (House of Lords), Hodgson v. Owners of West Stanley Col- liery (1910), 102 L. T. 194; A. C. (H. L.) 229; 3 B. W. C. C. 260. In the last-mentioned case two sons and their father, out of a family of ten, were killed in a mine disaster. The wages of all three had gone into a common fund to support the family consisting of a mother and six children besides those who were killed. None of the other children were wage earners. It was held that the widow was entitled to a death benefit by way of compensation not only for the death of her husband but also for the death of each of the two sons. 37. Dependents receiving other income because of death of work- man. Moneys coming to dependents on the death of a workman do not affect the question 9^^^^^ Mi^lQ^^i^ were dependent upon his DEATH BENEFITS 797. Right of dependents independent of that of deceased earnings at the time of his death. Pryce v. Penrikyher Navigation Colliery Co. (1901), 85 L. T. 477; 4 W. C. C. 115. 38. Relief association benefit as affecting right to compensation. The fact that dependents draw benefits from a firemen's relief association on account of the death of the workman does not bar a claim for compensation nor reduce the amount, under the Minnesota Act. State ex rel. City of Duluth v. District Court of St. Louis County (1916), Minn. ; 158 IST. W. 791. A claim for, compensation for the death of an employe is not barred by his release in his lifetime contained in his application for admission in the Employers' Relief Association, where such release was executed before the Act took effect, nor does the release by the widow bar an action by the personal representatives for the benefit of the children. West Jersey Tru^t Co. v. Philadelphia & B. By. Co., 88 ]Sr. J. Law 102; 95 Atl. 753. 39. Inheriting benefits from estate of deceased workman, as affect- ing right to compensation. In determining the compensation under the Minnesota statute it is immaterial whether the claimant inherited anything from the estate or not. State ex rel. Crookston Lumber Co. v. District Court, Bel- trami County, 131 Minn. 27; 154 N. W. 509. 40. Right of dependents independent of that of deceased. A workman's employers settled with him for a lump sum, obtaining a receipt releasing them from all liability under the Employers' Lia- bility Act and at common law. The workman died and his depend- ents claimed under the Workmen's Compensation Act, subject to the deduction of the sum paid under the settlement. The County Court judge found as a fact that there was no bona fide settlement and made an award in favor of the dependents. It was held that the right of the dependents was independent of, and not derived from, that of the deceased, and that they were therefor entitled to rcover. Howell v. Bradford & Co. (1911), 104 L. T. 433 : 4 B. W. C. C. 203. An employe in receipt of compensation returned to work and earned more than he did before the accident. Later he died as a result of the injury. l9^S^MMMm§9&'§knAeiit& were entitled to 798 BEADBUEy's WOEKMEh's COMPEWSATIOlSr LAW Right of dependents independent of that of deceased compensation allowed for death, less the sums paid to the workman in his lifetime. Williams v. Yauxhall Colliery Co. (190Y), 23 T. L. R. 591 ; 9 W. C. C. 120. Dependents are entitled to compensa- tion, although the deceased may have been in the receipt of weekly payments under the Act. O'Keefe v. Lovatt (1901), 4 W. 0. C. 109. A workrttan was injured, and received compensation. A mem- orandum of agreement to pay him compensation was filed, and on an application to review the payments thereunder were terminated. Subsequently the man died and his dependents applied for compen- sation. It was held that the award terminating the rights of the workman was not a bar to the claim by the dependents. Jobson v. W. Cory & Sons (1911), 4 B. W. C. 0. 284. Where the driver of a truck was injured by coming into collision with a street car and died~ several days later, but before his death made a settlement with and gave a release to the street car company, it was held, under the Massachusetts Act, which provides that where the injury is caused by the negligence of a third person, that the em- ploye may, at his election, either claim compensation from his em- ployer or damages from such third person, that the widow of the employe could claim compensation for the employe's death from his employer, notwithstanding the settlement with the street railway com- pany, as the right of the dependents of the employe to compensation was independent of his right for disability benefits before his death. In re Cripp (Cripp v. Aetna Life Ins. Co.), 104 N. E. 565; 216 Mass. 586. Where the death of an employe was caused by blood poisoning, necessitating the amputation of a finger, for which the employe re- ceived twelve weeks' compensation, in addition to the amount for dis- ability, it was held that after his death his widow was entitled to receive compensation from the date of the last payment to the de- ceased employe, for a period not to exceed three hundred weeks from the date of the accident, without deducting the payments for the loss of the finger. In re Nichols (Nichols v. London Guarantee & Accident Co.), 104 K E. 566; 217 Mass. 3; 4 K 0. 0. A. 546; Nichols V. London Guarantee and Accident Co., 1 Mass. Ind. Ace. Ed. 489. „. ... . . ... „^ Qigitized. by Microsoft® Alter an employe was injured his employer paid him for the actual DEATH BENEFITS '799 Division of compensation between dependents time lost and took a release and subsequently the employe died from the injury and it was held that the release did not bar a claim by his dependents for compensation. Milwaukee Coke & Oas Co. v. Indus- trial Commission, 160 Wis. 247; 151 N. W. 245. 41. Division of compensation between dependents. Where a widow waived any right to an award on the ground that she desired to sue for common-law damages, it was held that the entire award should be divided between the children of the deceased work- man. Chill V. Fortesque and Sons (1913), 6 B. W. C. C. 577. Where the deceased employe leaves a widow and minor children surviving him, the award is not to be divided among them, but is to be made payable to the widow alone, to be used by her for the sup- port of herself and her minor children, in such manner as she sees fit ; therefore it is not necessary that a guardian ad litem be appointed for the minor children where the widow, who is the mother of the children, is the applicant. Kennedy v. Guardian and- Guaranty Co., 1 Cal. Ind. Ace. Com. (Part II), 152. Under the California Act of 1911, where a deceased employe left a wife and minor child, it was held that the wife was conclusively presumed to be solely and wholly dependent upon her husband and that the minor child was not entitled to any part of the compensation which might be awarded. McAvin v. City Electric Co., 1 Cal. Ind. Ace. Com. (Part I), 13. Where a deceased employe left a widow and a minor son by a former wife, it was held that the compensation should be divided equally between the widow and the son. Chatel v. Southwestern Surety Ins. Co., 1 Cal. Ind, Ace. Com. (Part I), 176. Where there are several persons who are totally dependent, such as a minor child and a reputed wife who was living with him, the compensation awarded may be apportioned according to the dis- cretion of the Commission. Bossi v. Standard Oil Co., 2 Cal. Ind. Ace. Com. 339. The mother and minor dependents of a deceased employe, who were wholly dependent upon him for support, are entitled to share Digitized by Microsoft® 800 Division of compensation between dependents equally in death benefits, under the California Act of 1911. Nelson V. Oreat Western Power Co., 1 Cal. Ind. Ace. Com. (Part I), 145. Where a son lived at home with his father and mother and a num- ber of other children and gave his wages to his parents and received support from them, the father and some of the other children also working, it was held that the parents were partial dependents under the Connecticut Act, and the minimum compensation of $5 a week was awarded. Koether v. Union Hardware Co., 1 Conn. Comp. Dec. 38. In the last-mentioned case it appeared that the father and mother had bargained for a home, and had made a partial payment, and that the wages of the son who was killed was used in part to help pay for his home; but it was held that this fact did not prevent the parent from being partially dependent and the compensation was equally divided between them. Under the Illinois Act of 1911, it was held that where an employe left a dependent mother and brothers and sisters who were not de- pendent, that compensation should be awarded to the mother alone. Matecny v. Vierling Steel Works, 187 111. App. 448 ; N. E. Where a workman who was killed left two dependent children and one of said dependent children died soon after the death of the work- man, and an award was made that one-half of the compensation be paid to the guardian of the surviving child, and the other half to the administrator of the deceased child, it was held that the insurance carrier could not question, on appeal, the correctness of this direction, as to whom the compensation should be paid, but the court specifically reserved the question of whether or not the division of the compensa- tion, as made, was proper. In re Janes, 104 N". E. 556 ; 217 Mass. 192. Under the New York Act where there is a widow and minor chil- dren the entire compensation can be paid to the widow, even though a portion of it is payable by reason of the dependency of children. Woodcock v. Walker, 170 App. Div. 4; 155 Supp. 702, Where specific amounts are awarded for the support of each de- pendent, there should be specific awards for each of said dependents, for the award of one is not merged in that of another, even though that other is legally chargeable with the support of the person to whom the award is made. Walz v. HoTbrook, Cabot & Rollins Cor- poration, 170 App. Div. 6 ; 155 Supp. 703. Digitized by Microsoft® DEATH BENEFITS 801 Guardian of minor child of applicant 42. Burden of proof to show dependency. The burden of proof is on the claimant seeking compensation for the death of an employe to show such dependency, as is specified in the statute, under the Massachusetts Act, and where it appeared that the wife had never resided in the United States, but had resided in Italy for the last six years, during which time the deceased had sent her sums of money amounting to $161, there being nothing to show the wife's circumstances or whether she had other means of support, it was held insufficient to support a finding that the wife was wholly dependent on the deceased. In re Fierro's Case, 223 Mass. 3Y8 ; 111 K E. 957. The burden of proof is upon the applicant to show the fact of dependency and the extent of the dependency. Wentworth v. Pacific- Wakefield Co., 1 Cal. Ind. Ace. Com. (Part I), 65. ARTICLE D — MISCELLANEOUS MATTERS 1. Necessity of administering on estate of workman. It is not necessary for a dependent to take out letters of adminis- tration to the estate of deceased. Clatworthy v. B. & H. Green (1902), 86 L. T. 702; 4 W. C. 0. 152. This is a matter which is regulated by statute. Administration is dispensed with in most of the States, but not in all. The various statutes should be consulted. Even where the appointment of an administrator is not necessary, such a representative may, in a very few instances, make the claim on behalf of those who are entitled to the benefits. Thus' an adminis- trator may claim compensation under the !Rew Jersey Act. Conners V. Public Service Electric Co. (1916), N. J. Law ; 97 Atl. 792. 2; Guardian of minor child of applicant. It is not necessary to appoint a guardian ad litem or trustee under the California Act where the deceased leaves minor children and a surviving dependent parent of said minor children. LaSalle v. Whiting-Mead Commercial Co., 1 Cal. Ind. Ace. Com. (Part II), 346. Benefits to, which a minor is entitled will be ordered paid to a trustee for him. Mitchell v. Fairchild-Oilmore-Wilson Co. and Casualty Co. of America, 1 Cal. Ind. Ace. Com. (Part II), 71. This is a subject also as to which there are various statutory pro- visions. Usually where.minor dependents live with surviving parents 51 802 Claim for compensation by personal representative of deceased dependent the compensation will be paid direct to such parents. But if there is no surviving parent, usually the administrative commissions and boards have broad discretion to direct payments to be made on behalf of minors, either to the minors themselves, or to some other person on their behalf. There is a strong tendency to do away with the expense and indirection of guardianship and trusteeship, whenever a minor is old enough so that the weekly compensation can safely be paid to him or her. In cases of infants of tender years, who have no parents, however, some form of trusteeship is naturally essential. 3. Presumption of death from absence. The lapse of twelve months during which a ship has not been heard from, after which, under section 174 of the British Merchant Ship- ping Act of 1894, she is deemed to have been lost with all hands, is not a condition precedent to a claim for compensation under the Workmen's Compensation Act, where by the ordinary rules of evi- dence a seaman would be deemed to have been lost at sea with his ship. An application for compensation therefore, may be made, not- withstanding twelve months have not elapsed from the time when the ship was last heard from. Maginn v. Carlingford Lough Steamship Co. (1909), 43 Irish L. T. 123; 2 B. W. C. C. 224. To the same effect, Western Grain & Sugar Products Co. v. Pillshury, Cal. ; 159 Pac. 423 ; aff'g Shea v. Western Grain & Sugar Products Co., 2 Cal. Ind. Ace. Com. 487 ; where there was evidence that a night watchman had been murdered and his body thrown into the water, but the body was not recovered. 4. Estoppel by payment of compensation before death of right to deny liability therefor after death. "Where an employer has paid compensation up to the time of the death of a workman under a registered agreement, he is not estopped, after the death of the workman, from contending that the death was due to disease and not to the accident. (House of Lords) Cleverley & Others v. Gas Light & Cohe Co. (1907), 1 E. W. C. C. 82. 5. Claim for compensation by personal representative of deceased dependent. The right to compensation growing out of the death of a workmaii passes to the personal representatives of the deceased dependent.. Digitized by Microsoft® DEATH BENEFITS 803 Claim for compensation by personal representative of deceased dependent Darlington v. Roscoa £ Sons (1906), 8 W. C. C. 4. Some of the statutes provide that -upon the death of a dependent compensation as to him or her ceases. Where the death benefit is a fixed sum or is capable of computation as for a specific number of weeks and there is no provision terminating the payments at the death of the dependent it would appear that the benefits would pass to the dependent's next of kin upon the death of the dependent, but the rule is not uniform. Where a dependent dies without having made claim for compensa- tion under the Act, the legal representatives of such dependent may claim compensation as the right to make claim became vested in the dependent at the time of the death of the workman and survived to the legal representatives of the dependent. (House of Lords), United Collieries v. Hendry (1909), 101 L. T. 129; A. C. (H. L.) 383 ; 2 B. W. C. C. 308. Where a widow, of a worlanan whose death has been caused by accident in his master's service, makes application for compensation and subsequently dies the personal representative of such widow can recover the same compensation that the widow could have recovered even though svich representative is not a de- pendent of the deceased workman. Darlington v. Roscoe & Sons (1910), 96 L. T. 179; 9 W. C. C. 1. The court discusses but does not decide the question of whether or not the representative of the widow could have recovered if the widow had 'not applied for com- pensation before her death. The court discussed the Irish case of O'Donovan v. Cameron, Swan & Co. (1901), 2 Irish R 633; wherein it was held that the personal representative of a deceased dependent who had not made application for compensation before her death could not recover, and distinguished the two cases on the ground that in one the dependent had made claim for compensation before her death and in the other she had not made such claim. The right of a mother to claim compensation because of the death of her son, upon whom she was dependent, vests in her at the time of her son's death and the personal representatives of the mother can maintain a proceeding for such compensation, even though the mother failed to take proceedings during her lifetime. Hendry v. United Collieries (1908), 45 Scotch L. E. 944; 1 B. W. 0. 0. 289. Where a widow dies before the entire amount due to her for the death of an employe has been paid, the remaining amount becomes ^ •' Digitized by Midrosoft® 804 beadbuey's woekmen's compensation law Claim for compensation by personal representative of deceased dependent part of her estate, linger the Federal Act. Re Constantine Towle, Op. Sol. Dep. L,, p. 565. Where an award of compensation has been made to a dependent and the dependent subsequently dies, the amount which can be claimed by the administrator of the dependent is only such amount as should have been paid under the award up to the time of the death of the dependent. Ledford v. Caspar Lumber Co., 2 Cal. Ind. Ace. Com. 679. After the last-mentioned case was decided section 19(e) of the California Act was amended, becoming operative on August 8, 1915, to cover such a situation. Where a party who was entitled to a death benefit because of the death of her husband died before an award was made, leaving a de- pendent son of deceased and such employe, it was held that the son was enttiled to the whole death benefit. Hughes v. L. P. Degen Belt- ing Co., 2 Cal. Ind. Ace. Com. 569. A death benefit under the Connecticut Act forms no part of the estate of the deceased dependent and does not in any way enure to the administrator of the dependent. Corcoran v. Parrel Poundry & Machine Co., 1 Conn. Comp. Dec. 42. Under the Illinois Act of 1911 it was held that where compensa- tion was awarded to a dependent mother, that upon her death the right to compensation ceased and her personal representatives were not entitled to further compensation payments. Matecny v. Vierling Steel Works, 187 111. App. 448 ; N. E. . Under the Illinois Act, where an award of $875 was made to an employe and after the payment of $81.66 on the award, leaving a balance of $793.34, the employe died from other causes, it was held that the right to further compensation ceased with the death of the employe and the employe's personal representatives had no claim for the balance of the award. Ticzkus v. Standard Office Co., 1 Bull. 111. Ind. Ed. 176. Under the Massachusetts Act the compensation paid to a dependent, where an employe is killed, comes to end upon the death of such de- pendent. Murphy v. Aetna Life Ins. Co. (1916), 224 Mass. 592; 113 ]Sr. E. 283 ; N. C. C. A. ; rev'g 2 Mass. Ind. Ace. Bd. 607. An award to a widow of a death benefit, on account of the death of her husband, is payable only during the life of the widow, under the Digitized by Microsoft® DEATH BENEFITS 805 Advance payments Jiiassachusetts Act. In re Bartoni {191Q), Mass. ; 114: N. E. 663. Where a mother is the only dependent, of an employe who is killed, at the time of such injury, and such mother subsequently dies, an award cannot be made thereafter to other dependents. Murphy v. Aetna Life Ins. Co. (1916), 224 Mass. 592; 113 IST. E. 283. But this rule does not apply where the compensation is directed to be paid to a widow on behalf of herself and children, as in such a case upon the death of the mother payments must be continued on behalf of the children. Id. A death benefit vests in the person to whom it is awarded, so in ease of the death of such dependent his or her personal representa- tives are entitled to the balance, if any, remaining unpaid, under the Ohio Act. State ex rel. Munding v. Industrial Commission of Ohio, 111 N. E. 299 ; 92 Ohio St. 434. 6. Death occurring after statute goes into effect by reason of acci- dent happening before statute effective. A death claim is distinct from a claim for compensation by an in- jured employe, and therefore where an accident happened before the Minnesota statute went into effect, but the death occurred after the statute became effective, it was held that a claim for compensation by dependents should be sustained. State ex rel. Carlson v. District Court of Hennepin County, 131 Minn. 96 ; 154 K W. 661. 7. Advance payments. Advance payments made to a workman prior to his death over and above the amount due for compensation, cannot be deducted from the amount due dependents for the death of the workman arising out of the same accident, for which disability payments were made. Hachney v. City of New Britain School Board, 1 Conn. Oomp. Dec. 160. In death cases where employers make advances that are absolutely needed and necessary to the employe who is injured, and no serious question is raised concerning the correctness of the same, the Board will allow credit for the same. Bediger v. Pehin Wagon Co., 1 Bull. 111. Ind. Bd. 146 ; 11 'S. C. C. A. 503. Digitized by Microsoft® 806 beadbuey's woekmen's compensation law Submitting to operation 8. Minor's wage increase. The provision of section 16 of the New York Act that all ques- tions of dependency shall be determined as of the time of the accident, does not prevent the Commission from considering the probable wage increase, of a minor, as the provision of section 16 relates only to the ascertainment of who are dependents. Kilherg v. Vitch, 171 App. Div. 89 ; 156 Supp. 964. 9. Award in absence of dependents. The failure of the court to award the sum of $750 to the State Treasurer, after, finding that there was no dependent of the deceased workman, can be objected to only by the State and not by the claim- ant, under the Connecticut Act. Blanton v. Wheeler & Howes Co. (1916), Conn. ; 99 Atl. 494. 10. Double indemnity.^ Double indemnity was awarded to the dependents of a deceased workman, under the Massachusetts Act, when the injury was due to the serious and willful misconduct of the employer. The court de- fined such serious and willful misconduct as that which is more than negligence, or even more than gross and culpable negligence, and in- volves conduct of a gwasi-criminal nature, that is, an intentional act, or doing something with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its probable consequences. In re Burns, 105 IST. E. 601 ; 218 Mass. 8 ; 5 N. 0. C. A. 635. 11. Injuries caused by negligence of third person. Where injuries were alleged to have been caused by the negli- gence of a third person, and the widow of the deceased workmen had brought an action for damages against such third person, it was held that this did not bar a claim of a dependent mother for compensation against the employer, under the New York Act. In re Cahill, 173 App. Div. 418 ; 159 Supp. 1060. 12. Submitting to operation. The rule that an injured employe seeking compensation must sub- 1 See chapter on Penalties, Digitized by Microsoft® DEATH BENEFITS 807 Limitation mit to an operation does not apply to a dependent. Mahoney v. Gamble-Desmond Co., 90 Conn. 255; 96 Atl. 1025. 13. Deducting board furnished to dependent. Wliere an employe paid a specific sum to those who were wholly dependent upon him, but received his board from them, it was held that the value of the board should not be deducted in determining the question of total or partial dependency and the amount of compensa- tion to be awarded. Hayden v. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 198. 14. Hearsay testimony.^ Hearsay evidence is not alone sufficient to establish the facts upon which dependency may be determined. George Andrew and Photini Athanas v. Alaska Packers Association, 2 Cal. Ind. Ace. Com. 768. 15. Limitation." Under the California Act the limitation on an application for a benefit is one year from the date of the death. Stephens v. Clark, 2 Cal. Ind. Ace. Com. 178; 11 K C. C. A. 715. 1 See subtitle Evidence in the chapter on Administration and Procedure. 2 See the chapter on Limitations, also the chapter on Notices of Accidents and Claims for Compensation. Digitized by Microsoft® CHAPTEE XVII. DISABILITY BENEFITS PAGE Abticle a — What Amounts to DlSABILITT GeNEEALLY . . 810 1. Classification of disability . . 810 2. Pain and suffering not com- pensated , 811 3. Making complete reparation for injury 811 4. Inability to compete in the open market 812 5. Inability to secure work . . . 812 6. Reduced earnings owing to general fall in wages 815 7. Refusal to do work which is offered 815 8. Inability to do work being performed when injured.. 819 9. Earning same wages as be- fore injury 820 10. Dismissal for misconduct of workman suffering from partial permanent disabil- ity 823 11. Malingering 824 12. Convalescence period 825 13. Neurasthenia 82T 14. Medical referee's decision as to termination of disabil- ity 828 15. Disability extended by rea son of ■'mproper medical treatment 828 16. Refusal to suomit to surgi- cal operation 884 17. Disability prolonged by dis- ease or other sub-normal physical condition 837 18. Hernia 840 19. Two different accidents 841 20. Physical weakness due to idleness 842 21. Voluntary idleness of work- man as tending to prolong disability 843 PAGE 22. Compensation during vaca- tion period 843 23. Employ^ committed to jail after injury 843 Abticle B — Tempoeaey Partial Disability 843 1. Definition 843 2. Inability to obtain employ- ment in district where workman lives 844 3. Disability by disease accel- erated by accident ; basis of compensation 844 4. Recurrent attacks of Indus- trial disease 844 5. Failure to return to work , when able to do so 845 6. Clumsiness due to Injury as ground of incapacity 845 7. Carpenter's foreman unable to use tools 845 8. Pain and inconvenience from injury after return- ing to work 845 "9. Convalescence period 846 10. Backache 846 11. Callous from broken bone. . 847 12. Offer of employment by em- ployer 847 13. Offer if light work 847 14. Loss of wages only basis of compensation 847 15. Wages and compensation after accident need not equal wages before injury 847 16. Earnings after injury as basis for partial disability 848 17. Earning smaller sum In other employment 848 18. Credit of sums earned else- where on disability pay- ments 848 808 Digitized by Microsoft® DISABILITY BENEFITS 809 Summary PAGE Article C — Temporary Total Disability 849 1. Unsuccessful efforts to ob- obtain employment 849 2. Waiting for opportunity to have operation performed at hospital 849 3. Test of disability is inability to earn money 849 4. Inability to walk to and from work 850 5. Loss of eye 850 6. Disability arising more than six months after accident. 850 7. Relapse caused by working. 850 8f Total disability for in- definite term 850 9. Submitting to operation for hernia 851 10. Failure to exercise proper care in use of injured limb 851 11. Heart weakness from injuiry 851 12. Second surgical operation to relieve condition produced by first one 851 13. Inability to secure work by reason of loss of fingers.. 851 14. Question of fact 852 15. When award for partial dis- ability improper 852 16. Age of workman as affecting amount of award 852 Article D — Permanent Partial Disability Generally . . . 852 1. Workman engaged in sev- eral employments ; basis PAGE in all cases of specific in- demnity 854 2. Under schedule for specific indemnities two weeks waiting period should not be deducted 854 3. Eye injuries 854 4. Finger injuries 860 5. Thumb injuries 865 6. Hand injuries 867 7. Arm injuries 869 8. Toe injuries 870 9. Foot injuries 871 10. Ankle injuries 871 11. Leg injuries 871 12. Ear injuries 873 13. Nose injuries 873 14. Injury to testicle 873 15. Kidney removed 873 16. Heart trouble developing after injury 873 17. Hernia 874 18. Disfigurement 874 19. Specific injuries not covered by statute 876 20. Remaining at work after in- jury for which specific amount is awarded 876 21. Schedule rating for perma- nent partial disability 878 22. When amount for specific indemnity discretionary . . 878 23. Consecutive awards for- permanent partial and temporary total disability 878 of compensation 852 Article F — Permanent Total 2. Refusal of employe to have operation performed 853 3. Minimum award 853 4. Difference in earning power 853 5. Workmen earning same wages as before the injury 853 C. Suspensory award 854 Article E — Specific Injuries FOR Which Dbfinitb Sum Is Usually Awarded 854 1. Minimum amount payable Disability 883 1. British 883 2. California 884 3. Illinois 886 4. Kansas 886 5. Massachusetts 886 6. Michigan 888 7. Minnesota 888 8. New Jersey 889 9. New Tork 889 10. Wisconsin 890 Digitized by Microsoft® 810 beadbuey's woekmen's compensation^ law Classification of disability Abticle G — Miscellaneous 10. Occupational diseases con- Matters 891 tracted partly in the em- 1. Double compensation ...... 891 pioyment of two employ- 2. Increased compensation for employer'.s failure to obey «^^= apportioning com- safety rules 891 pensation 896 3. Prospective award 892 ii_ p2ace of payment of com- 4. Offset or counterclaim 892 5. Claim by estate of deceased workman 894 pensation 896 12. State institution ; compen- 6. Burden of proof 895 ^^""'^ payments part of 7. Compensation for one day. . 895 ^''"'^"^ expenses 897 8. Sundays, holidays and shut- 13. Divorced man paying ali- downs occurring in period mony is " single " for com- for which compensation is pensation purposes 897 due 896 14. Deducting insurance bene- ■ 9. Infant, " probable earn- fits to which employes con- ings " 896 tribute 897 ARTICLE A— WHAT AMOUNTS TO DISABILITY GENERALLY 1. Classification of disability. Disability may be permanent total, permanent partial, temporary total, or temporary partial. In none of the acts is an attempt made to define all the degrees of disability. In some of the statutes per- manent total disability is defined to mean the loss of both legs or both arms, or both eyes, or any two thereof, such as one leg and one arm, etc., or paralysis or other condition permanently 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 member amounting to permanent partial disability. Others leave the question of compensation to depend entirely upon the de- gree of disability or incapacity in any particular case. Speaking generally in cases of partial disability the compensation is based on loss of earning power. Most of the statutes contain some limitation in respect to pay- ments 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 excep- tions are found in cases of total permanent disability. A number of the statutes allow compensation for life when a workman is totally and permanently disa1g)^Y;zecf by Microsoft® DISABILITY BENEFITS 811 Making complete reparation for Injury 2. Pain and suffering not compensated. The Act does not give compensation in respect of pain and suffer- ing. 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 incapable of earning that amount. Tronsv. Davis & Timmins (1899), 80 L. T. 673; 1 W. C. C. 26. An employe employed at a yearly salary, who sustains an injury resulting in temporary disability only, is not entitled to compensa- tion where, in accordance with the terms of his contract, no reduction of salary is made on account of his loss of time. Be A. Gosiello, Claim ISTo. 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 think the applicant is entitled to an award and his claim will therefore be denied." The Compensation Act does not take into consideration pain and suffering, but only actual loss of earning capacity. Goncalves v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 96; 11 N. C. C. A. 37. 3. Making complete reparation for injury. Compensation on account of industrial injuries does not contem- plate making good all loss sustained by reason of such injuries, but is designed to help the injured person to tide over his period of ad- versity until he can readjust himself to his maimed condition, Wil- liamson V. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 107. Compensation is a limited insurance by the employer for the pro- tection of his employes as a help to tide them over adversity result- ing from industrial accident. It does not undertake to actually com- pensate injured employes for all that they have lost because of their injuries. Brady v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 143. An employe is entitled to compensation only when actually in- capacitated. Even a permanent physical injury does not of itself warrant compensation, where there is no incapacity. Weher v. American Silk Spinning Co., K. I. ; 95 Atl. 603 ; 11 N. C. C, A. 436, Digitized by Microsoft® 812 Inability to secure work There are certain cases, howeverj where the principles announced in the cases cited in this subdivision do not apply. Thus where a particular sum; or compensation for a specific number of weeks, is payable for a particular injury, such as the loss of a hand or a^ foot, no deduction is made even though for part of the period the work- man is earning wages. This subject is discussed under the topic Permanent paetial disability. 4. Inability to compete in the open market. Where a workman is disabled so that he be unable to compete in the open market, on an equal basis with other employes, and such inability is due to the injury, this is a valid basis for compensation for permanent partial disability. Willard y. W. W. Anderson & Co., 1 Cal. Ind. Ace. Com. (Part I), 188; The Mountain Copper Co., Limited, v. Bassignani, 1 Cal. Ind. Ace. Com. (Part I), 164. An accidental injury which so disfigures a man as to make it im- possible for him to compete in the open labor market, as dis- tinguished from his actual inability to do any work, constitutes a disa,bility for which compensation should be awarded. Baily v. Island Transportation Co., 2 Cal. Ind. Ace. Com. 582. The ability of an employe to compete in the open labor market is permanently and pubstantially diminished by the loss of an eye, and even with the exercise of reasonable diligence it is probable that he will not be able to earn as much after the accident as he did prior thereto. This general rule is not changed by the offer of the em- ployer to give him employment at the same wages earned by him prior to the. accident. Legee v. Lacy Manufacturing Co., 1 Cal, Ind. Ace. Com. (Part I), 133. 5. Inability to secure work. Disability may result from the inability of a workman to secure light work, which he is able to do, and if the workman has honestly tried to find suitable work, but has not succeeded, he is efntitled to compensation. Bonsall v. Midland Colliery, etc.. Indemnity Co. (1914), 7 B. W. C. C. 613. Where the workman lost the second finger of the left hand and the first finger was injured so that it was permanently stiff, and it appeared that the workman had attempted to get light work, ^^j^^^ /VB^^fefeiitedo so, compensation was DISABILITY BENEFITS 81 o Inability to secure worli awarded for total disability until further orders. Osborne v. Tralee and Dingle Railway (1913), Irish Court of Appeal, 6 B. W. 0. C. 913. On an application for compensation on the ground that the workman had been unable to secure light work, which he was able to perform, the arbitrator dismissed the proceeding, on the ground that of his own knowledge such light work was procurable, but on appeal ' it was held that the arbitrator should have heard the evidence of the workman and not dismissed the case on his own knowledge of con- ditions. Dyer v. Wilsons & Clyde Coal Co. (1914), (Scotch Court of Session), 8 B. W. C. C. 367. A laborer suffered a slight rupture from a strain, but he wore a truss and his work was not interrupted. After working eighteen months he was dismissed. Upon claiming compensation it was held that a declaration of liability should be entered and a nominal award made so that if the workman actually suffered disability in the future he would be entitled to compensation. Chapman v. Sage & Co. (1915),8B. W. C. C. 559. A laborer earning twenty-two shillings a week was promoted to a position in which he earned thirty-seven shillings and sixpence a week in which he was injured by losing two fingers of his left hand. After returning from the hospital he would have been put to work at the higher wages but a labor union interfered, under a rule recently adopted, that only union men should be allowed to do the work that this man had been doing when injured, and he could not become a member of the union because of a rule against taking men of his age. The employer was forced to take him back at the lower wages. After a time he left this employment and claimed compensation, which was awarded by the court below. On appeal, however, the award was reversed and a declaration of liability only entered, on the ground of lack of evidence as to how much the man was earning after he left his employment or as to the man's earning capacity, or the condition of the labor market at the time the claim for compensation was made. Thompson v. Richard Johnson & Nephew (1914), 7 B. W. C. C. 479. Inability to find employment by reason of hard times or the scarcity of employment cannot be taken into consideration in determining the extent of a disability indemnity, but the Commission may consider only (1) The work which such employe with reasonable diligence is capable of doing in view of the nature of his physical injuries ; and Digitized by Microsoft® 814 Inability to secure work (2) the handicap of an injured or sick employe over able-bodied persons in seeking employment. Johnson v. Cluett Peahody Co., 2 Cal. Ind. Ace. Com. 10. Compensation is payable for inability to do work not for inability to find work to do, and the burden of proof is on the claimant to show that his inability to earn as much as he was earning at the time of the injury is the result of the injury and not because work is scarce and hard to find. Winn v. James Small and Benjamin Drochetz, 1 Cal. Ace. Ind. Com. (Part II), 5. Dis- charge for lack of work does not constitute disability.^ Lough v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 41. Where by reason of an injury to a finger an employe is unable to perform her work and subsequently she is unable to secure work, by reason of the nature of the injury, such employe is entitled to com- pensation based upon the difference between the wages which she was receiving when she was injured and the amount she was able to earn thereafter, in other employments. Bradley v. Waterbury Clock Co., 1 Conn. Comp. Dec. 179. A workman who had suffered an injury to the index finger, was unable to do the work which he had been doing at the time of the injury, but for a while did other work, for the same employer, after his recovery. The employer having no more of this class of work, but still having the work which the employe was doing at the time of the injury, the employe was discharged and was unable to find other work for some time, and it was held that while the employe was out of work that 'he was disabled within the meaning of the Act and entitled to compensation by reason of such disability. Wallace v. Tracy Brothers Co., 1 Conn. Comp. Dec. 156. Compensation cannot be awarded for inability of a man to secure work by reason of dullness in the labor market. Field v. New York, New Haven & Hartford B. B. Co., 1 Conn. Comp. Dec. 199. Where an employe lost an arm through an injury received in his employment, on February 7, 1913, and was able to resume work on May 31 following, but by reason of the loss of the arm was unable to obtain employment until October 25 following, it was held that he was entitled to compensation up to the latter date, where it ap- peared that he diligently endeavored to secure employment but was unable to obtain work which a one-armed man could ordinarily per- Digitized by Microsoft® "^ ^ DISABILITY BENEFITS 815 Refusal to do work which is offered form. In re Sullivan, 105 N. E. 463 ; 218 Mass. 141 ; 5 JST. C. C. A. 735; L. R. A. 1916 A, 378n. Where after an employe had received an injury in the course of his employment, for which compensation was paid, and after he had recovered therefrom, the factory shut down, and he was unable to obtain employment for several months, after which he obtained em- ployment at wages higher than those he was earning prior to the accident. It also appeared that he had suffered a disease in child- hood which had impaired his physical condition, but as he suffered no physical incapacity, due to the injury, compensation was refused. Tremhlay v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 156. 6. 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 at- tributable to any change in his capacity to earn wages, and there- fore he was not entitled to compensation. Merry & Cunninghame V. Black (1909), 46 Scotch L. E. 812 ; 2 B. W. C. 0. 372. 7. Refusal to do work which is offered. Where it is found that a workman is able to do light work which is offered to him by his employer and he refuses, compensation should be discontinued. Higgs & Hill v. TJnicume (1913), 6 B. W. C. C. 205. Where an agreement for compensation has been made, but it appears that the employe is able to do light work, which the employer offers to him at the same wages he received before the injury, com- pensation should be stopped under the agreement, during the period embraced by the offer. Eeevans v. Mundy (1914), (Scotch Court of Session), 7 B. W. C. C. 888. A workman who has lost the sight of one eye and refuses to con- tinue work, because of the danger of losing the sight of the other eye in the same occupation, is not entitled to compensation, when it ap- pears that he is able to earn.approximately tlie same wages as before the accident. HowardFT'^harton (1913), 6 B. W. 0. 0. 614. 816 Refusal to do work which is offered An employe twenty-three years old, lost the sight of an eye, by a piece of steel hitting it. After compensation was paid for a certain period it was discontinued on the ground that the workman could do his old work, which was offered to him. The workman admitted that he could do the old wark, but contended that in this occupation he was so liable to be hit in the eye by a piece of flying steel, that having lost the one eye, he ought not to risk losing the remaining eye, which w'ould render him totally blind. It was held that the employer was justified in discontinuing the compensation. Housley v, Had- fields (1915), 8 B. W. C. C. 497, A workman who had lost one eye by accident was offered his old work as a toolsmith by his employers. He tried to do this, but gave it up, on the ground that he could not stand the noise of the workshop and that the work was not suitable for him. The County Court judge accepted the man's evidence that he could not do the work and refused to reduce the award already made, and it was held on appeal that there was evidence sustaining the finding. Penman v. Smith's Dry Docks Co. (1915), 8 B. W. C. C. 487. Where a workman having suffered from the loss of an eye is offered his original work at the same wages, which he refuses, the workman is entitled to an adjudication as to whether or not the work is suitable, and also whether or not his earning capacity in the open market had been diminished and it was error to dismiss the proceed- ing entirely without determining these questions. Jackson v. Huns- let Engine Co. (1915), 8 B. W. C. C. 584; 10 N. C. C. A. 1081. A miner having lost the use of an eye compensation was paid for a certain period and was then terminated, on the ground that the miner was able to resume his former occiipation. The miner con- tended that he was not capable of working at the coal face, by reason of the loss of the sight of his eye, and that, in any event, the risk to a one-eyed man involved in the work was such as to justify him in refusing to resume it. The arbitrator dismissed the application and the Court of Session affirmed the decision. Law v. William Baird & Co. (1914), (Scotch Court of Session), 7 B. W. C. 0. 846 ; 6 N. C. C. A. 880. A similar decision was made by the House of Lords in the case of Jones v. Anderson (1914), 8 B. W. C. C. 2. Where a miner had lost the use of an eye and his employers contended that he was able to work at the %'i§jfj^^^%n^ji^^§^^^i^ons, it was held that DISABILITY BENEJ-'ITS 8lY Refusal to do work wliicli is offered it was a question of fact which the arbitrator must decide, whether or not under the circumstances of the particular case the miner was able to do the work, which was offered to him, in view of his physical con- dition. Burt V. Fife Coal Co. (1914), (Scotch Court of Session), 8 B. W. C. C, 350. The court held that the arbitrator was not bound by the case of Law v, William Baird & Co., 7 B. W. C. C. 846, 6 IST. C. C. A. 880, as each case depended upon its own facts and the arbi- trator must determine whether or not, under the circurhstances in the present case, the man was actually able to work at the employment offered. A workman sixty-seven years of age lost the top joint of his thumb. After several months' total incapacity he did light work for six months. He was then asked to resume his former work, which in- cluded carrying heavy baskets over his shoulders by ropes. He re- fused, on the ground that, owing to the accident, he was unable to grip the ropes. It was held that he was still partially incapacitated and compensation was awarded accordingly. Curry v. Doxford & Sons (1915), 8 B. W. C. C. 19. A boy lost an eye from an accident and after returning from the hospital was put to work at other employment. The remaining eye became affected by reason of the dusty nature of the work. He was again treated at the hospital. His employers then offered him work stoking the furnace, but this he refused, as being unsuitable, and he applied for compensation, which was awarded, on the ground that the work which the employer offered was unsuitable under Schedule 1 (3) of the British. Act. Thompson v. John Newton (1914), 7 B, W. C. C. 703. An apprentice boilersmith lost his right eye. While he was still attending the hospital as an out patient the employer stopped paying compensation and offered to put him on his original work. He re- fused. It was held that an award should be made of compensation as for total disability. Barron v. Blair & Co. (1915), 8 B. W. C. C. 501. Compensation had been paid to a workman for a while and then was discontinued. The workman admitted that he had not tried to get a job and stated that his hand was still painful. Four physicians testified that the workman was fit to do his ordinary work. An order 52 Digitized by Microsoft® 818 beadbuey's woekmen's compensation law Refusal to do work which is offered discontinuing the compensation was sustained. (Creighton v. J. & W. Lowry (1915), 8 B. W. C, C. 250. Where an employer offers to an injured employe easier work, which he can perform, at the same wages he was receiving before the injury, the employe is bound to accept the position or forfeit all right to compensation. Denehy v. Panama-Pacific International Ex- position Co., 1 Cal. Ind. Ace. Com. (Part II), 109. f In certain eases reliance must be placed upon the evidence of physicians as to the existence of disability. Where the opinion of physicians is that the disability is not sufficient to prevent the injured employe from resuming his employment the Commission will be guided by it. Batchelder v. Charles W. Kreis and Mary E, Powers, 1 Cal. Ind. Ace. Com. (Part II), 63, Where a medical examination shows that the inconvenience caused by the injury does not prevent the applicant from following his oc- cupation no compensation can be allowed. Kagaroff v. Southern California Gas Co. and The Boyal Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 43. The degree of disability resulting from an injury is to be de- termined with reference to the employment in which the injured per- son is engaged at the time of the injury and not with reference to his general earning power. But where it appears clearly that the in- jured employe, in the exercise of reasonable diligence and in view of the nature and extent of his injury, could have earned a less amount at other work, his lost earning power is to be measured with reference to such possible earnings. Williamson v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 107. The fact that a laborer has lost an eye by an accident in the course of his employment, does not necessarily carry with it the implication that the employment is unsuitable or that the risk to the laborer would be materially increased by resuming his old employment. Christ v. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part I), 26. The Commission refused to discontinue disability payments on the ground that light work had been offered and refused, where the offer was indefinite and probably was not understood by the employe. McKnight v. American Can Co., 2 Cal. Ind. Ace. Com. 445. Where the employer tenders light work to the employe which it is Digitized Dy Microsoft® "^ DISABILITY BENEFITS 819 Inability to do work being performed when injured found the employe is able to perform, but which he refuses, the com- pensation will be reduced accordingly. Acrey v. City of Holtville, 2 Cal. Ind. Ace. Com. 561. Where a miner, who has been injured, was offered light work which he could do and which he refused, it was held that compensation should be reduced to the extent of the amount which he might have earned at the light work. McMills v. Balahlala Consolidated Copper Co., 2 Cal. Ind. Ace. Com. 129. Where an employer offers to an injured employe work which it is found he can do, at the same wages he was receiving before the in- jury, compensation will be refused where the employe refuses to accept the employer's offer of work. Jamele v. Scovill Mfg. Co., 1 Conn. Comp. Dec. 24; Asdoorian v. Massachusetts Employes Ins. Ass'n, 2 Mass. Ind. Ace. Bd. 742. Where an employer offers an employe work which he can do, at reduced wages, which the employe refuses to accept, compensation should be reduced accordingly. WolynsTci v. Frankfort General Ins. Co., 1 Mass. Ind. Ace. Bd. 220. 8. Inability to do work being performed when injured. An unskilled workman who is able to do other work than that which he was doing before he was injured, is not entitled 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 California Act of 1911 compensates only for loss of earning power and not for any suffering or inability to do a certain class of work. Shannon v. Hercules Powder Co., 1 Cal. Ind. Ace. Com. (Part I), 199. The term " disability" is not limited to a disable- ment for performing the particular work the injured person hap- pened to be doing at the time of the injury, but applies to an injury which results in an impairment of earning power generally. Gordon V. D. A. Evans and C. W. Musich, 1 Cal. Ind. Ace. Com. (Part II), 94; 11 N. C. C. A. 37. Where a concrete worker who was, at the time of the injury, working for the same employer as a common laborer, had recovered sufficiently to assume the duties of a common laborer, but was not strong enough to perform the arduous duties of a concrete worker, it was held that the disability had terminated so Digitized by Microsoft® 820 beadbuey's woekmen's compensation law Earning same wages as before injury far as this particular injury was concerned, and compensation was discontinued. Utieres v. Otto, 2 Cal. Ind. Ace. Com. 631. A blacksmith's helper was so injured that his eyes did not focus, but he was able to do other work earning the same amount that he did as a blacksmith's helper. It was held that the compensation should be based on the actually impaired earning power only, Sac- coccio V. Bradley Contracting Co., 6 N. Y. St. Dep. Eep. 410. The loss of portions of several fingers, even though it appears by undis- puted- testimony, that such an injury incapacitates the workman from continuing his former occupation,, does not amount to a complete loss of the hand, if the employe can work at some other occupation. Grammici v. Zinn, 219 IST. Y. 322 ; 114 IST. E. 297. The court there- fore held in the last-mentioned case that the award should be for the loss of fingers and not loss of the entire hand. Under the Wisconsin Act of 1911, permanent partial disability was allowed if the earning capacity of the employe was impaired " in the employment in which he was working at the time of the accident," and it was held, where an employe had partially lost the sight of one eye, but was able to earn as much after the injury in the same em- ployment as he was before the injury, that he is not entitled to any- thing for permanent partial disability. International Harvester Co. v. Industrial Commission of Wisconsin, 157 Wis. 167; 147 N. W. 53 ; 5 ]Sr. C. C. A. 822. The court applied the converse of the propo- sition found in the case of Mellen Lumber Co. v. Industrial Commis- sion, 154 Wis. 114; 142 IST. W. 187; 3 JST. C. C. 649n; L. K. A. 1916 A, 374n, in which a man having lost part of his fingers was unable to secure employment in the same work in which he had been employed at the time of the accident, although he could work at other employ- ments and possibly make as much as he had in his original employ- ment, and was entitled to compensation as for permanent partial dis- ability. The Wisconsin Act. was amended in 1913 so as to award compensa- tion only when the employe was disabled for work in any employment. 9. Earning same Wages as before injury. As is pointed out under the title Permanent partial disability^ a workman may sometimes be entitled compensation for a specific period, even though WlPM^^W^P^e wages that he received DISABILITY BENEFITS 821 Earning same wages as before injury before the injury. The present discussion relates to disability gen- erally. The obvious conflict in the cases cited below results par- tially from the varying provisions of the acts under vsrhich the de- cisions were made. Where an employe was employed by his old employer after the accident, at the same wages he was receiving before the injury, it was held that an award in form that the employer should pay half of the wages of the workman, but that this .compensation should be reduced to the sum of one penny a week so long as the employer paid the employe the same rate of wages he was paying before the acci- dent was improper, and to leave the matter open the award was made of one penny a week, without any conditions. Foston v. Grassland & Sons (1914), 7 B. W. C. C. 39. Compensation should be reduced where the employe secures other employment at wages in excess of those received before the injury. Anley's Executors v. Neale (1907), 9 W. C. 34. 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 workman is entitled to an award declaring the employer liable, but the assessment of compensation may be adjourned until such time as the workman suffers loss through disability. Chandler v. Smith & Son (1899), l.W. C. C. 19 ; Hains & Strange v. Corhet (1912), 5 B. W. 0. 0.^372. With reference to the amount of compensation for permanent in- jury, the test prescribed by the California Act of 1911, is, what, by the exercise of due diligence, the injured employe will probably be able to earn in an open labor market, which will be fixed as of the time of the accident and determined in view of the nature and extent of the injury. The measure is the loss of power to earn. The fact of re-employment by the same employer after the trmination of the first period of total disability at the same or higher wages is not con- clusive as to the earning capacity of the injured employe. Brady v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 143. Where an employe returns to work at the same wages he received bofore the injury, but subsequently his wages are reduced and it is found that he is suffering from disability caused by the accident, com- pensation will be awarded. Biedel v. Llewellyn Iron Works, 1 Cal. Ind. Ace. Com. (;p^:^ti^by Microsoft® 822 beabbuey's woekmen's compensation^ law Earning same wages as before injury Although a workman is still suffering some inconvenience from an accidental injury, if he returns to his old position at the same wages before the waiting period expires, he is not entitled to disability benefits. Ely v. Maryland Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 335. An employe slipped and fell while hanging out clothes and suffered an abrasion of the right side of the face and head, but com- pensation was denied, on the ground that she had not been incapac- itated from labor and she had received full wages from the date of the injury. Killoy v. Evans, 1 Conn. Comp. Dec. 2Y7. The mere fact that an employer gives an employe employment after an injury is not binding and concltisive as to the character of the earning capacity of the employe. Waters v. Kewanee Boiler Co., 1 Bull. Ill, Ind. Bd. 169. Where an employe claimed that he had a loss of earning power by reason of an injury to his hand, but he received exactly the same wages as he had received before and in the same employment, com- pensation was refused, but the right was retained to review the case, should it develop later that the workman should be partially incapac- itated. Grady v. Fidelity and Deposit Co., 2 Mass. Ind. Ace. Bd. 678. Under the Michigan Act the Board is not prevented from award- ing additional compensation by the fact that the employe, at the time of filing his petition for additional compensation and also when the hearing was had, was earning as much or more wages in another em- ployment than he did before the accident causing the injury. Foley V. Detroit United Railway, Mich. ; 157 N. W. 45. In the last-mentioned case the court pointed out that the test is whether the employe is able to earn the same wages after as before the injury, in the employment in which he was engaged at the time of the injury, and as, in this case, the employe was a motorm^n aiid it was found that he could not earn the same wages as a motorman, although he was earning the same wages at another employment, it was held that he was entitled to compensation for partial incapacity. The fact that a workman procures temporary employment, in a different occupation than that in which he was injured, for a few days, at an equal or greater wages than he was receiving, is not con-' elusive that his disability has ceased. Hanley v. Union Steele Yards Co. (1916), ^^igiti^M^^C^r^^m- DISABILITY BENEFITS 823 Dismissal of workman suffering from partial permanent disability Compensation cannot be awarded so long as the employe is earn- ing the same wages as he was before the injury. Kennedy v. Ken- nedy Mfg. & Engineering Co. (1916), Y N. Y. St. Dep. Kep. 383. Where an employe is earning the same wages that he received be- fore the injury, but in an employment different from that in which he was engaged when injured, compensation will be discontinued as he is not disabled within the meaning of the Ohio Act. In re Burns (1912), 1 Bull. Ohio Ind. Com. 5. An employe employed at a yearly salary who sustains an injury which results in temporary disability only, is not entitled to compensation where, under the terms of his contract, no reduction from his salary is made on account of his loss of time. In re Costello, 1 Bull. Ohio Ind. Com. 54. 10. Dismissal for misconduct of workman suffering from partial permanent disability. By an accident a workman lost the use of his left eye. His em- ployers, 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. On applica- tion by the employers to review the agreement, the County Court judge reduced the weekly payments to one penny, on the ground that the 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 em- ployers for coiiq)enBation, yet one act of misconduct does not neces- sarily 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 proceedings for compensation under the Act it was held that the workman's incapacity was due to his own mis- conduct and he was not entitled to a substantial award. Upon the consent of the employer an award was made of one penny a week for the purpose of allowing the proceedings to stand without being en- tirely terminated. mgJtlzQm ^l'cfo^oft^''''\' ^' ^^ ^^ ^^ ''' 824 beadbtjey's woekmen's compensation law Malingering 11. Malingering. A wOrlanan was injured in a colliery and drew compensation 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 & Go. (1907), 2 B. W. C. 0. 337. Where there is a serious charge of malingering the Commission usually will cause the applicant for compensation to be examined by experts of its own selection, and the testimony of such experts taken, in addition to the medical testimony presented by each side. Gordon V. Evans, 1 Cal. Ind. Ace. Com. (Part II), 94; 11 N. C. C. A. 37. Where the unanimous testimony of the best physicians which the commission can employ is to the effect that a man has fully recov- ered and is able to do his work, and his physical appearance to the Commission bears out the testimony of the physician, further com- pensation should be denied, even though the man states that he is unable to work. Naza v. Sierra & San Francisco Power Co., 1 Cal. Ind. Ace. Com. (Part I), 193. Where a deckhand had broken a leg and an examination showed a well-united fracture of both bones of the leg, in good position, on the medical testimony, that the man was malingering, further compensation was refused. Rabelo v. Napa Transportation Co., 2 Cal. Ind. Ace. Com. 225. 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 locomotion. 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 he was seriously injured, despite expert medical testimony to the contrary. Held that the case belongs to that class of malingering 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 h^i^hf^imSRe is equivalent to the loss DISABILITY BENEFITS 871 Leg injuries of the entire member, under the Illinois Act. McClennan v. Allilh Prouty Co., 1 Bull. 111. Ind. Bd. 116. A workman received injuries to his right foot when a manhole cover slipped from his hands. As a result of the injury it was neces- sary 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. Beinhold Klatt y. Milwaukee Electric By. & Light Co., Wis. Indus. Com., April 22, 1913. 9. Foot injuries. Under the New Jersey Act no more can be allowed for an injury to an ankle than the stipulated compensation for the loss of a foot, so far as the specific indemnity is concerned. Bakiec v. Delaware, L. & W. B. Co., K J. Law ; 88 Atl. 953 ; 4 N. C. C. A. 734. An award as for the loss of a foot was made where the foot actually remained attached to the leg, when it was worse than useless, by reason of its maimed condition and it was found that an artificial foot would have been of more use to the employe than the maimed foot would be. Mahoney v. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292. 10. Ankle injuries. Whether or not under the New Jersey Act compensation shall be allowed for an injury to the ankle equal to that provided for the loss of a foot is a matter for the determination of the trial judge. Bakiec V. Delaware, L. & W, B. Co., IST. J. Law ; 88 Atl. 953 ; 4 N. C. C. A. 734. Although a severely sprained ankle may never wholly regain its lost strength and power, compensation for the partial disability re- sulting from such injury is limited to the loss of wages, as the pur- pose of the Apt is not to make an injured workman absolutely whole for all damage suffered. Dwyer v. General Petroleum Co., 1 Cal. Ind. Ace. Com. (Part I), 101. 11. Leg injuries. Where by reason of the fracture of a leg an employe was caused to limp, it was held that he was handicapped 10 per cent, by reason of this physical disability and compensation was awarded accordingly. Digitized by Microsoft® 872 beadbttey's woekmen's compensation law Leg injuries Gildea v. Natomas Consolidated of California, 1 Cal. Ind. Ace. Com- (Part I), 171. Applicant broke both bones of his left leg. The fracture was a bad one, though not compound, and the bones were reset by manipula- tion, with the result that, while the ends of the fibula united prop- erly, those of the tibia lapped. 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 per cent, 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 com- pensation as of the time of the injury, and he was awarded a dis- ability indemnity of 20 per cent, impairment of the physical ma- chine, based on 10 per cent, for impairment and 10 per cent, for lia- bility 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, 1 Cal. Indus. Ace. Bd. (Part I), 171. 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 attend- ance and the hospital expenses, together with compensation in the sum of $45.50. Held that applicant was entitled to additional compensa- tion of $146.25, accrued to the date of the award and the additional sum of $2,700, payable in weekly installments of $3.75 each, until the further order of the Board. Brousset v. Fresno Flume and Lumber Co., 1 Cal. Indus. Ace. Bd. (Part I), 159. A broken leg causing a shortening of the leg and limiting the motion of the great toe, and the one next to it, and a slight limitation of motion of the left ankle, was held to amount to 25 per cent, of the loss of the leg and compensation was awarded accordingly. Kelley V. The Seltzer-Bennett Co. (Essex Common Pleas, 1915), 88 JUT. J. Law J. 336. A compound fracture of the right ankle, splintering or breaking off portions of the tibia and fibula, rendering the ankle stiff and in- flexible and shortening the right leg, was held to amount to 40 per cent, of the loss of a W'it^t^kiA^'efflgfiS^was awarded accordingly. DISABILITY BENEFITS 873 Heart trouble developing after Injury VrdblicTc v. Radtke (Mercer Common Pleas, 1915), 38 K. J. Law J. 267. 12. Ear injuries. Entire loss of hearing in one ear and partial loss of hearing in the other was held to amount to 25 per cent, of permanent total dis- ability nnder the California Act of 1911. United States Steel Pro- ducts Co. V. Pete Mellonas, 1 Cal. Ind. Ace. Com. (Part I), 202. 13. Nose injuries. From a blow by a crowbar a workman's nose was so badly crushed that the wall which divides the nose into two comparements was broken off, resulting in the closing of the left side of the nose en- tirely, and impeding the circulation of air through the right nostril. The workman's eye was also injured so that his sight was somewhat dimmed. Compensation was awarded for permanent partial dis- ability of 25 per cent, of the loss of an eye and for the injury to the nose compensation for sixty weeks, under the New Jersey Act. Dubinski v. Eureka Flint & Spar Co. (Mercer Common Pleas, 1915), 38 N". J. Law J. 272.' 14. Injury to testicle. An injury necessitating the removal of one testicle, but which did not cause a permanent impairment of physical function, was held not to be such an injury as entitled the employe to an award, under schedule. (c) of section 2 of the New Jersey Act. Coslett v. Shoemaker (Morris Common Pleas, 1915), 38 N. J. Law J. 116. 15. Kidney removed. An injury necessitating the removal of one kidney was held to con- stitute such an impairment as amounted to 75 per cent, of total permanent disability and compensation was awarded on this basis, under the New Jersey Act. O'Connor v. Babcock & Wilcox Co. (Morris Common Pleas, 1914), 37 N. J. Law J. 275. 16. 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 be and several Digitized by Microsoft® 8Y4 beadbuey's woekmen's compensation law Disfigurement 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 compensa- tion. Simon Derbech v. Pfister & Vogel Leather Co., Wis, Indus. Com., May 18, 1912. ' 17. Hernia.^ A hernia was held to be a permanent partial disability under sec- tion 2, paragraph 11, Clause B of the ]!«few Jersey Act and compensa- tion was awarded accordingly. Newbaker v. iV^. Y., Susquehanna & W. R. B. Co. (Warren Common Pleas, 1915), 38 IST. J, Law J. 175. 18. Disfigurement. Under the Illinois Act of 1911, providing that if an employe should receive " any serious and permanent disfigurement to the hands or face, but which injury does not actually incapacitate the employe from pursuing his usual or customary employment so that it is possible to measure campensation in accordance with the scale of compensation and the methods of computing the same herein pro- vided, such employe shall have the right to resort to the arbitration provision of this Act for the purpose of determining a reasonable amount of compensation to be paid to such employe, but not to ex- ceed one-quarter (l^) the amount of his compensation in case of death," it was held where the employe cut his fingers in a press, re- sulting in the loss of about one-quarter inch of the bone from the ends of the first and second fingers of the right hand, leaving only a small portion of the nail of each of these two fingers, impairing the sense of feeling in those figures and permanently incapacitating him in whole or in part from doing the particular kind of work in which he was engaged at the time of the injury, that an award of $454.08, which was an arbitrary sum and not based on any particular num- ' . Digitized by Microsoft® 1 See same title m CEapters XII and XIII, DISABILITY BENEFITS 875 Disfigurement ber of weeks for such loss, was reasonable and proper even though the workman suffered only seven weeks' actual disability for which he would be entitled under the statute to the sum of $52.50. Steven- son V. Illinois Watch Case Co., 186 111. App. 418 ; N. E. ; 5 K C. 0. A. 858. Where the forefinger of a right hand was amputated at the second joint and the employe's thumb was also injured, so that he was unable to return to work for ^fteen weeks after the injury, at which time he was able to earn the same wages as he was before the injury, it was held that he was entitled to recovery, under the Illinois Act of 1911, for the actual disability and also for disfigurement, under paragraph C of section 5454 of the Act of 1911. Waiters v. Eroehler Mfg. Co., 187 111. App. 548 ; N. E. ; 8 N. 0. C. A. 352. Where an employe was injured by coming in contact with a large wheel, resulting in a severe gash over the right eye near the margin of the hair of the head and compressing the region over the nose and between the eyes, it was held that this was such a disgurement as entitled the workman to compensation. Meesis v. United Sanitary Dairy Co., 1 Bull. 111. Ind. Com. 78. To entitle an employe to compensation for disfigurement, under the Illinois Act, this disfigurement must be of such a serious and perma- nent character as to either directly or indirectly impair the earning capacity or ability to secure work in the labor market of the world. Billman v. Two Rivers Coal Co., 1 Bull. 111. Ind. Bd. 69. In the last-mentioned case the disfigurement consisted of serious burns and discoloration of the face and it was held that this was such a dis- figurement as entitled the employe to compensation. To entitle an employe to compensation for disfigurement of the face, hands or head, under the Illinois Act, the disfigurement must be of such a character as to affect the employe's earning capacity, in that it makes him less aggressive and more timid and possibly sub- jects him to rejection, when trying to obtain work for which he may be fitted. It must in reality disfigure the employe to the extent that it will interfere with his obtaining employment. Earpestad v. Alexander, 1 Bull. 111. Ind. Bd. 14. In the last-mentioned case the employe had a number of scars in and about the side and back of his head, one about a quarter of an inch wide, which would be visible unless the employe's hair was at least three-quarter's of an inch long Digitized by Microsoft® 876 beadbury's workmen's compensation law Remaining at worls after injury for whicli specific amount is awarded and it was held that this was such a disfigurement as entitled him to compensation. While disfigurement which does not cause actual disability, if shown to be such as to prevent a worlonan from securing employ- ment, or in lessening the wages which he could earn, may be a basis for compensation, although not specifically mentioned in the statute, it was held in the present case that the evidence did not show that the disfigurement had had this result g,nd compensation was denied. Clooney v. Crescent Glass Specialty Co. (Mercer Common Pleas, 1913), 37 N". J. Law J. 82. In the last-mentioned case the work- man's face was burned and scarred somewhat by acid which flew out of a bottle. Under the Wisconsin Act allowing compensation for serious and permanent disfigurement, even though there is no actual disability connected with it, it was held where an employe by reason of having his face cut near the eye by a piece of flying emery stone, that he was not so disfigured'as to entitle him to compensation under the disfigure- ment provision of the statute. Ellingson v. White Machine Works, Third Annual Eeport (1914), Wis. Ind. Com. 63. 19. Specific injuries not covered by statute. Where a workman receives specific injuries of a permanent nature which are not particularly provided for under the New Jersey Act, the court cannot fix a specific number of weeks' disability for each specific injury, without showing that the compensation awarded bears such relation to the amount stated in the schedule as the dis- abilities bear to those produced by the injuries named under the schedules. O'Connell v. Simms Magneto Co., 85 N. J. Law 64; 89 Atl. 922;4]Sr. C. C.A. 590. 20. Remaining at work after injury for which specific amount is awarded. Indemnities allowed for permanent partial disability do not depend on the earnings of the injured employe during the period covered by the payments. Oabriel v. Northwestern Pacific Rd. Co., 2 Oal. Ind. Ace. Com. 166. Where a specific indemnity has been awarded for a permanent partial disability the compensation payments must be continued even ihow^^^A^^^'MRt^ to work during the period DISABILITY BENElTITS 87*7 Remaining at work after injury for whicli specific amount is awarded for whicli compensation is awarded and receives full pay after so returning to work. Wray v. Panama-Pacific International Exposi- tion, 3 Cal. Ind. Ace. Com. 6; Petersen v. Pellasco, 2 Cal. Ind. Ace. Com. 226 ; 11 JST. C. C. A. 377 ; Greenock, Jr. v. Drake, 2 Cal. Ind. Ace. Com. 266 ; Immel v. American Beet Sugar Co., 2 Cal. Ind. Ace. Com. 312. The loss of a first finger between the knuckle and proximal joint was held sufficient to sustain an award of 2O14 per cent, disability to a carpenter sixty-five years old, even though he was doing the same work at the same pay as he was doing before the accident. Frankfort General Ins. Co. v. Pillshury (1916), Cal. ; 159 Pac. 150, An employe who, as the result of an injury to his fingers, so stiffening them that he could not tightly close his hand, was held to be partially incapacitated from performing labor, not- withstanding he remained in his same employment at the same wages he received when the accident happened. Gailey v. Feet Bros. Mfg. Go. (1916), 98 Kans. 53; 157 Pac. 431. Where a workman suffered the fracture of the radius of the fore- arm at or near the elbow, which caused a permanent loss of 30 per cent, of the use of his arm, it was held that he was entitled to com- pensation, under the JSTew Jersey statute, as for a permanent partial disability, even though he returned to work for the same employer at the same wages he was receiving before the injury. De Zeng Standard Co. v. Pressey, 86 1^. J. Law 469 ; 92 Atl. 278 ; 11 IST. C. C. A. 428 ; aff'g Fressey v. De Zeng Standard Co. (Camden Common Pleas, 1913), 37 'N. J. Law J. 13. Where a workman suffered a fracture and dislocation of the right wrist, resulting in an enlargement which interfered with the use of the wrist and hand; a fracture of the small toe which caused it to protrude in an unnatural manner ; a fractiire of the pelvic bone which shortened one leg and would make the workman permanently lame, it was held that he was entitled to an allowance under the New Jersey Act for permanetn partial disability, even though he had resumed work for his old employer at the same wages he received before the injury. Burhage v. Lee, 87 IST. J. Law 36 ; 93 Atl. 859 ; 11 IST. C. C. A. 428. An employe is entitled to the full amount provided for a permanent partial disability under the New York Act, even though he is able to resume work the n^t^^^^^^^d )j^y earn^^l wages during all of the 8*78 beadbuet's workmeis^'s compensation law Consecutive awards for permanent, partial and temporary total disability unexpired period for competisatioii specified in the statute. Mar- hoffer V. Murhoffer (1916), 175 App. Div. 52; 161 Supp. 527. 21. Schedule rating for permanent partial disability. Where the circumstances of a special case indicate that the rating appearing in the schedule published by the Commission, as respects a certain kind of disability, is too low, or where the testimony shows that the framers of such schedule made an underestimate as regards a certain class of permanent disability, the Commission will not be bound by such schedule but will rate such disability upon the basis indicated by the evidence to be proper. Lee v. Pacific Coast Steel Co., 3 Cal. Ind. Ace. Com. 28. 22. When amount for specific indemnity discretionary. Tinder the Washington Act an award for a permanent partial dis- ability other than one of those specifically provided for in the statute depends so far as the amount is concerned in the discretion of the Industrial Insurance Department. Sinnes v. Daggett, 80 Wash. 673 ; 142 Pac. 5 ; 11 N. C. C. A. 431. 23. Consecutive awards for permanent partial and temporary total disability. Under the California Act, where a workman receives a permanent injury to his toes, and an injury to his leg, which latter injury causes temporary total disability, and the compensation for temporary total disability exceeds the amount which would be awarded for the perma- nent partial disability, the partial permanent disability will be dis- regarded and no award made therefor. Mason v. Jess Knight, 1 Cal. Ind. Ace. Com. (Part II), 493 ; Meyer v. Alaska Codfish Co., 2 Cal.' Ind. Ace. Com. 36 ; Maher v. Sunset Lumber Co., 2 Cal. Ind. Ace. Com. 576. Where a workman has received injuries for which specific amounts are allowed and at the end of the time for which compensation is thus awarded he is still disabled from other injuries received at the same time, he is entitled to additional compensation for the disability thus caused. Wallace v. Tracy Bros. Co., 1 Conn. Comp. Dec. 155. Where an injury caused the loss of hearing mmpensation was awarded for a specific number of weeks and in addition thereto for total tempo- DISABILITY BENEFITS 8Y9 Consecutive awards for permanent, partial and temporary total disability rary disability for sucli time as other injuries received in the same accident resulted in total disability, the payments to run consecu- tively. Kaiser v. Pinney, 1 Conn. Comp. Dec. 562. Where by rea- son of the loss of one eye and the impairment of the sight of the other, the workman was totally disabled for a period of time, it was held that compensation should be awarded for total disability, at the end of which period compensation should begin for the specific loss of the eye. Bwanson v. Sargent & Co., 1 Conn. Comp. Dec. 433. Where a workman entirely lost the sight of one eye and the sight of the other eye was impaired so that for a considerable period of time he was totally disabled, it was held under such circumstances that the period of specific indemnity for the total loss of one eye should begin after the period of temporary total disability had ceased. Swanson V. Sargent & Co., 1 Conn. Comp. Dec. 433. Where an employe lost a finger from septic infection following a slight injury and was also disabled by reason of the infection to other portions of the body, so that he was totally disabled for a considerable period, it was held that he was entitled to compensation for total dis- ability and at the end of that period for a specific indemnity for the loss of a finger. Foley v. A. T. Demurest & Co., 1 Conn. Comp. Dec. 661 ; aff'd Foley v. A. T. Demarest Co., Superior Court, N^ew Haven County, Conn., June 20, 1916 (unreported). In the last-mentioned case the court said : " I think the better and more logical construction of the Act is that it provides for two forms of compensation, one for the loss of time during total incapacity and the other for the perma- nent loss of a member of the body. This is in accordance with the construction of similar acts in other states." Where a workman is entitled to a specific indemnity for the loss of one finger and another finger is also injured, which causes total in- capacity, he is entitled to the specific indemnity in addition to the total incapacity due to the injury to the second finger. Pascale v. 8. L. <& G. H. Rogers Co., 1 Conn. Comp. Dec. 33. Where an injury caused the loss of the use of a hand and there was also septic phlebitis of the right leg, it was held that there should be a specific award for the loss of the hand with an additional award for the disability due to the septic poisoning. Batch v. Borough of Oroton, 1 Conn. Comp. Dec. 177. Where there is a loss of one or more phalanges of the fingers the award should be for the specific amounts mentioned in the Digitized by Microsoft® 880 BEADBUEY S WORKMEN S COMPENSATIOlSr LAW Consecutive awards for permaneut, partial and temporary total disability statute and in any case for the minimum amount of $5 a week speci- fied in the statute, but where there is a loss allowing specific indemni- ties for two fingers and total incapacity for a certain time results from the loss of the tip of another finger, compensation should be awarded for such total incapacity in addition to the specific indemnities. Fasulo V. Andrew B. Hendryx Oo., 1 Conn. Comp.- Dec. 29 ; aff'd by Superior Court, Id. 31. The Maryland Commission has ruled that where a workman re- ceives an injury for which he is entitled to a specific indemnity that this specific indemnity is added to the compensation for the period of total disability caused by the injury. Claim No. 49, Oroves v. Re- liable Furniture Co. and Maryland Casualty Co., Eirst Annual Ke- port. State Ind. Com. of Maryland (1914-1915), 17. Where there has been an injury for which an employe is entitled to a specific indemnity and he also suffers actual disability, he is entitled to specific indemnity in addition to the compensation for the disability. Callahan v. Fidelity and Deposit Co. of Maryland, 1 Mass. Ind. Ace. Bd. 251 ; Glendenihg v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 241 ; Henegan v. American Mutual Lia- bility Ins. Co., 1 Mass. Ind. Ace. Bd. 243. Where an employe suf- fered the loss of the sight of one eye, it was held that he was entitled to the specific indemnity for such injury and also for indemnity while he was incapacitated from doing any work. Cicero v. United States Casualty Co., 1 Mass. Ind. Ace. Bd. 215. Where, under the Michigan Act,. a man lost a foot, it was held that he was entitled to indemnity for 125 weeks, and if at the end of that period he was actually disabled, he would be entitled to compensation for such period of actual disability, but he was not entitled to com- pensation for the time he was actually disabled and after that period had ceased, to specific indemnity for 125 weeks for the loss of the foot. Limron v. Blair, 181 Mich. 76 ; 147 IST. W. 546 ; 5 IST. C, C. A. 866. Under the New Jersey Act where there is temporary actual dis- ability and an allowance is made of a specific number of weeks' com- pensation for a particular injury, the two items run consecutively, and by. a specific provision of the statute the amount for actual dis- ability in first Pai^ar^^ajtgr Jj^ig di^^ity ceases, then the specific amounts for particular injuries. Pressey v. De Zeng Standard Co.. DISABILITY BENEFITS 881 Consecutive awards for permanent, partial and temporary total disability (Camden Common Pleas, 1913), 37 N. J. Law J. 13 ; 11 N. C. C. A. 428. Where a workman lost part of several fingers and also suffered temporary disability by reason of infection, it was held proper to award compensation for the temporary disability in addition to the specific amounts allowed by the statute for the loss of the fingers. Nitmm Co. v. Creagh, 48 N. J. L. 243, 86 AtL 435; aff'g 35 IST. J. Law J. 328 ; 11 N. 0. 0. A. 434. " Temporary, as distinguished from permanent, disability, under the Workmen's' Compensation Act, is a condition that exists until the injured workman is as far restored as the permanent character of the injuries will permit. An apt illustration is a case where there has been a loss of both arms. The temporary disability to be considered in such an instance is the physical state of the patient until the stumps are healed and he is able to get about. The actual disability to do effective work is the same in either case and continues for life." Tishney v. Empire Steel & Iron Co., 87 N. J. Law 481 ; 95 Atl. 143 ; 11 N. C. C. A. 427 ; Birmingham v. Lehigh & Wilkes Barre Coal Co., K J. ; 95 Atl. 242 ; 11 K C. C. A. 630. The amendment of the New Jersey Act by P. L. 1913, p. 307, con- cerning consecutive payments for partial and permanent disability does not apply to accidents which happened before the amendment was made. Baur v. Court of Common Pleas in and for Essex County, K J. Law ; 95 Atl. 627 ; 11 Is^. C. C. A. 634. Where a workman suffered an injury which while not destroying the sight of the eye, made it impossible to close the lid, and also an injury to the ear and skull, besides the partial paralysis of the mouth and injury to the teeth and jaw, a specific number of weeks' com- pensation was allowed for each one of these injuries as well as for temporary^ total disability so long as the same should last, not exceed- ing 300 weeks. Earle v. Hightstown Smyrna Rug Co. (Mercer Com- mon Pleas, 1913), 37 W. J. Law J. 11. In the last-mentioned case under the New Jersey Act the compensation for total temporary dis- ability would run first and then after the total temporary disability ceased the specific sums allowed for the specific injuries would begin to run. These various sums also run consecutively. In such cases, of course, it makes a very great difference whether the compensation for total temporary disability runs before the allowance for permanent 5g" Digitized by Microsoft® 882 Consecutive awards for permanent, partial and temporary total disability partial disability, or the reverse. The rule on this subject does not seem to be uniform. In some jurisdictions the award for a specific injury for partial permanent disability runs first and if at the end of the period allowed for the specific injury the workman is still dis- abled then he is allowed further compensation for the actual disability. Where a domestic ^ervant lost a finger by amputation and two other fingers were made stiff, by reason of infection after cutting her hand on a tray, compensation was allowed under the New Jersey Act for fifty-two weeks for the permanent partial disability, at the minimum of $5 a week, and for temporary disability for fifteen weeks at the same minimimi. Alhe v. Puth (Essex Common Pleas, 1913), 37 N. J. Law J. 9. Where a workman received injuries to several fingers in the same accident, the total award must be the added amounts for an injury to each finger, as fixed by the statute, not to exceed the amount provided for the loss of a hand, and the weekly payments in such a case do not run concurrently. Oeorge W. Helme Co. v. Middlesex Common Pleas, 87 N. J. Law 531 ; 87 Atl. 72 ; 4 N. C. C. A. 674. Under the l^ew York Act, where there is a permanent partial dis- ability for which a specific award is made and also a temporary total disability consecutive awards should be made for such disability. Days V. Trimmer & Sons (1916), App. Div. ; 162 Supp. 608. Where a workman suffered permanent partial disability by the loss of fingers and temporary total disability through laceration of other fingers, it was held that he was entitled to compensation for the full period allowed for the permanent partial disability in addition to an award for temporary total disability. Marhoffer v. Marhoffer (1916), 175 App. Div. 52 ; 161 Supp. 527. The court, without opin- ion, affirmed awards in seven other eases in which a similar ruling had been made by the Industrial Commission. The following were the cases thus affirmed: Yamin v. Harris Raincoat Co. (1916), App. Div. ; 161 Supp. 531 ; O'Connell v. Modern Mach. Tool Co. (1916), App. Div. ; 161 Supp. 531; Naro v. Buechheim Bros. & Eckstein (1916), App. Div. ; 161 Supp. 531; Mar- telliano v. O'Mara Specialty Co. (1^16), App. Div. ; 161 Supp. 531 ; Kossof Bid^izSi j5$aA^afo©©ff(|jl916), App. Div. j DISABILITY BENEFITS 883 Permanent total disability — British 161 Supp. 532; Homann v. Weeks (1916), App. Div. ; 161 Supp. 532 ; Benson v. Penney (1916), App. Div. ; 161 Supp. 532. Where an employe has received compensation for total disability for a time, which disability becomes a permanent partial disability, a specific award should be made from which should be deducted the amount paid for temporary total disability. Kreppel v. Boyland, 2 N". Y. St. Dep. Eep. 489. If a workman suffers a specific injury provided for in the Act, such, for example, as the loss of a foot and also other disabling in- juries, but not the specific injuries specified in the Act, he is en- titled to the maximum compensation allowed by the statute for the number of weeks allowed for the specific injury, and after that time has expired if he is still disabled he is entitled to further compensa- tion for such disability, and if he receives two or more specific in- juries he is entitled to compensation for each, the periods to run consecutively, but he cannot receive compensation concurrently for two or more injuries so as to make the weekly compensation more than sixty-two and two-thirds per cent, of his average weekly wages. Fre- denburg v. Empire United Railways, 168 App. Div. 618; 154 Supp. 351. ARTICLE P — PERMANENT TOTAL DISABILITY 1. British. An injury to the eye of a ship's painter, rendering him incapable of working on a ladder, was held to amount to total incapacity under the British Act. James v. Mordey, Garner & Co. (1913), 6 B. W. C. C. 580. The amputation of the top joint of the middle finger of the right hand of a machinist in the joinery trade was held to be serious and permanent disablement within the meaning of the British Act. Brewer Y. Smith (1913), 6 B. W. C. C. 651. A M'orkman with an injury to his jjnee recovered sufficiently 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 this former employers were going to find him work, awarded one penny per week. The former employers refused to find him work and- he was unable to ^ Digitized by Microsoft® 884 beadbuey's woekmen's COMPENSATIOIs^ i.aw California 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 en- titled to full compensation. Thomas v. Fairbairn, Lawson & Co. (1911),4B. W. C. C. 195. The claim of a seaman for compensation was referred to a medical 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. Hendrichsen v. Owners of Steamship " 8wan- hilda " (1911), 4 B. W. C. C. 233. 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 incapacity. Payment was stopped and he brought proceedings resulting in an award of Ys. 6d. a week on the ground that although his former employment was too danger- ous for him to resume, he could do some light work. He tried to obtain light work but failed, and applied to have his compensation 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 unless 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 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 employment. The court refused to reduce the compensation. Dinnington Main Goal Co. v. Bruins (1912), 5 B. W. C. C. 367. 2. California. The applicant claimed compensation for permanent total disability by reason of the impairment of hiS sight. The medical testimony was to the effect that there was considerable impairment of vision, biit that it was impossible to ascertain for a year or more whether the troTible woiild become better or worse and what the permanent result would be. The Commission therefore awarded compensation as for temporary total d.\sSm^f^HMmWS!M consideration of the case DISABILITY BENEFITS ' 885 California pending the final results of the injuries. Blass v. Studehaker Cor- poration of America & Royal Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 162. Disfigurement and the age of an employe may be considered in determining his disability by an accidental injury. Frankfort Gen- eral Ins. Co. V. Pillsbury (1916), Cal. ; 159 Pac. 150. Where a carpenter was injured by the fall of an elevator and the arches of his foot were broken so that his ankles were stiffened, but he was still able to get around, although with difficulty, it was held that the disability was partial and not total. Hunt v. Mount Whitney Power and Electric Co. and Southwestern Surety Ins. Co., 1 Cal. Ind. Ace. Com. (Part I), 245. Where a workman as a result of com- ing in cantact with a high-power electric current sustained permanent injuries consisting in complete disablement of the right arm, shoulder and hand, spinal deformity and complete loss of motion of spine, shoulders and neck, limited motion of right leg, and distortion and lameness in both of feet, it was held that this amounted to permanent total disability for which he was entitled to a life pension. Gibney v. Caspar Lumber Co., 2 Cal. Ind. Ace. Com. 822. Where an employe is only partially physically disabled from doing work, but such partial physical disability substantially prevents him from competing in the open labor market, the disability is to be considered total and not partial, but in such a case the employer may have the compensation payments reduced by offering to the employe light work which he is able to do. Lindh v. Toyland Co., Inc., 2 Cal. Ind. Ace. Com. 625. Total paralysis of the body from the waist down and of both legs, constitutes total permanent disability. Phillips v. Chanslor-Canfield Midway Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 580; 12 K C. C. A. 176. The loss of the sight of both eyes constitutes permanent total dis- ability under the California Act. Galante v. Mammoth Copper Min- ing Co.' of Maine, 2 Cal. Ind. Ace. Com. 723 ; Kraljlvich v. Yellow Aster Mining and Milling Co., 1 Cal. Ind. Ace. Com. (Part II), 554 ; Sampo V. Yellow Aster Mining and Milling Co., 2 Cal. Ind. Ace, Com. 530 ; 12 K C. C. A. 370. Where an employe had been injured in 1911 so that he was rapidly losing the sight of one eye, which would eventually become totally blind, and in an accident in 1914 he lost the. sight of the other eye. Digitized by Microsoft® 886 Massachusetts it was held that the employer by whom he was employed at the time of the second accident was liable only for compensation for the loss of the sight of one eye. Bouner v. Columbia Steel Co., 2 Cal. Ind. Ace. Com. 233. In the last-mentioned case the Commission said: "This Commission has settled upon the principle that disability will be rated with strict regard to the nature and extent of the in- jury inflicted in each case, without regard to the prior physical con- dition of the injured employe, not only to the case of injury to eyes, but to other members of the human body." An award of permanent total disability was made to an electric power station operator, whose left arm was burned so badly that it was taken off four inches below the elbow, and the right hand so badly burned as to make it impossible to pick up articles, and his mouth so burned as to prevent distinct speech. Broohs v. Central California Traction Co., 2 Cal. Ind. Ace. Com. 438. 3. Illinois. Where th^ employe lost all the fingers of his left hand leaving the palm of the hand and the thumb complete, and lost the first, second and third fingers of the right hand, it was held that this did not amount to permanent total disability, under the Illinois Act, but that the employe was entitled to the specific indemnities for loss of fingers specified in the statute. Holt v. Wood Brothers, 1 Bull. 111. Ind. Bd. 10. 4. Kansas. The phrase " disability " as used in the Kansas Act does not imply an absolute inability to perform any kind of labor. A person dis- qualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated. Moore v. Peet Bros. Mfg. Co., Kans. ; 162 Pac. 295. An award of total permanent dis- ability cannot be set aside on the ground that the employe is conduct- ing a tailoring business out of which he makes from $12 to $14 a week where it is nqt shown that he performed any labor. Id. 5. Massachusetts. Where a workman's spine was injured, causing complete paralysis to both legs, it was h^i^jtigM^ytMcmSiSMhusetts Act, that he was DISABILITY BENEFITS 887 Massachusetts entitled to compensation to the same extent as if- he had lost both legs. Jn re Burns, 105 N. E. 601 ; 218 Mass. 8 ; 5 K C. C. A. 635. "Where a workman had lost one eye at the time of his employment and while in the course of the employment lost the other eye hy an accident, it was held that he was entitled to compensation under the Massachusetts Act as for total permanent disability. In re Bran- connier, 223 Mass. 273; 111 K E. 792. Where by reason of a personal injury the sight of the left eye was destroyed and the vision of the right eye had been previously de- stroyed by cataract, it was held that the employe was totally per- manently disabled and compensation was awarded accordingly. Mor- mon V. Fidelity & Casualty Co., 2 Mass. Ind. Ace. Bd. 594. Total incapacity v/as declared to exist because of the loss of the ring finger, which was wholly amputated, and the index and middle fingers were rendered totally incapable of use below the middle joint, where the workman was a minor fifteen years of age. Cunka v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 491. Where a foreman in construction work suffered an injury by which his right hand was crushed, the first and second fingers stiffened and the hand otherwise so mutilated that it would never be useful, it was held that he was totally incapacitated, but that the award might be amended at a later date upon it appearing that the man could secure other work than that of his regular work for which he was incapaci- tated by reason of the injury. Brennan v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 503. Where an employe suffered a fracture of the bones in his left hand and of his right arm, the latter being so serious that the broken bone had never united and the left hand was stiff and cramped, and -the right hand incapable of use and the employe had endeavored to get work but without success, it was held that he was totally incapacitated. Jamieson v. Fidelity and Deposit Co. of Maryland, 2 Mass. Ind. Ace. Bd. 772. An employe suffered the loss of four fingers of his right hand, and was, for a while after the hand healed, put to work by his former employer at different work, but subsequently was requested to do his old work and was unable to do it. He then sought other employment, but was unable to secure it, and it was held that he was totally per- manently disabled so long as he was unable to secure other employ- Digitized by Microsoft® 888 beadbury's workmen's compensation law Minnesota ment by reason of h-is physical condition. Stichley v. Royal Indem- nity Co., 2 Mass. Ind. Ace. Bd. 248. A carpenter who had lost the thumb, forefinger and little finger of his left hand, was unable to secure work by reason of his physical con- dition and it Was held that he was entitled to compensation on a basis of total incapacity for work. McDonald v. Travelers Ins. Co., 2 Mass. Ind. Ace. Bd. 224; 12 N. C. C. A. 554. A finding that a workiaan is totally disabled cannot be overthrown by the fact that he was employed at a slightly reduced rate of wages for a time after the injury, where it appears that the workmen had lost most of the fingers on both hands. In re Septimo, 219 Mass. 430; 107 K E. 63; 8 N. C. C. A. 1025. A finding that a workman has endeavored to obtain and has been unable to find any work which the incapacity due to the injury will not prevent him from performing, warrants a finding that he is totally incapacitated for work, although he has a limited physical capacity to work and earn money. Duprey v. Maryland Casualty Co., 219 Mass. 189 ; 106 IST. E. 686 ; 11 N. C. C. A. 55, 6. Michigan. Where an employe had lost one eye in a previous accident, and then lost a second eye by reason of a second accident, it was held that he should be allowed for permanent total disability by reason of the second injury, under the Michigan Act. Weaver v. Maxwell Motor Co., 186 Mich. 688 ; 152 1^. W. 993 ; 11 K 0. C. A. 433. The Michi- gan Act contains no particular provision covering such a case. The court, therefore, in the case last mentioned, distinguished the Minne- sota case of State ex rel. Garwin v. District Court, 129 Minn. 156; 151 K W. 910; 8 K C. 0. A. 1052. 7. Minnesota. Total destruction of the sight of the right eye and an impairment of vision to the extent of 95 per cent, of the left eye, which, by the aid of glasses, could be increased to about one-third normal, and other injuries which affected the workmen's head so that he could not stoop or bend over without pain, was held to constitute total perma- nent disability, under the Minnesota Act. State ex rel. Casualty Co, Digitized by Microsoft® DISABILITY BENEFITS 889 New York of America v. District Court of Blue Earth County, Minn. ; 158 ]Sr. W. TOO. In a previous employment an employe had suffered an accident which caused him to be blind in one eye. By reason of a subsequent accident while employed by another employer he lost the sight of the other eye. Under the Minnesota Act he was allowed for the loss of one eye only which was due to the second accident. State ex rel. Oarwin v. District Court of Cass County, 129 Minn. 156 ; 151 N. W. 910; .8 N. C. C. A. 1052. The decision in the last-mentioned case was made necessary by the specific provision of section 15 of the Minnesota Act, providing as follows : "If an employe receive an injury, which, of itself, would only cause permanent partial disability, but which, combined with a pre- vious disability, does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the subsequent injury." 8. New Jersey. Where it was found that a workman had lost the usefulness of both eyes to the extent of 80 per cent, it was held, under the New Jersey Act, that he was entitled to compensation for 320 weeks as this was 80 per cent, of the 400 weeks allowed for the entire loss of both eyes. Vishney v. Empire Steel & Iron Co., 87 N^. J. Law 481 ; 95 Atl. 143 ; 11 N. C. C. A. 427. Under the New Jersey Act it was held that permanent total dis- ability could not be awarded for the loss of one leg, where the work- man was seventy years of age, because the statute specifically pro- vided compensation for the loss of one leg and the age of the work- man could not be considered in arriving at the amount of compensa- tion to be awarded. Bateman Mfg. Co. v. Smith, 85 IST. J. Law 409 ; 89 Atl. 979 ; 4 JSr. C. 0. A. 588. 9. New York. Where an employe had lost one hand in a prior occupation, not in any way connected with his present employment, and then loses the second hand, he is entitled to compensation for permanent total dis- ability under the New York Act. Schwab v. Emporium Forestry Co., 167 App. Div. 614; 153 Supp. 234; aff'd 216 N. Y. 712. In the last-mentioned case, one of the justices, in a concurring opinion, said ; Digitized by Microsoft® 890 beadbuey's workmen's compensation law , Wisconsin " The claimant, by the accident, has lost all the ability he had of earning a living. The disability is therefore total. His wages were evidently based upon the fact that he was previously partially dis- abled, and therefore the compensation to be awarded to him will be based upon such wages." A driver while disinfecting a stable suffered an infection of his eye, destroying his sight, and it was held that this was an injury arising out of the employment under the l^ew York Act. .Walker V. M. Mosson Co., 3 N. Y. St. Dep. Kep. 362. In the last-mentioned case the workman had lost the sight of one eye prior to his employ- ment and upon losing the sight of the eye in the accident mentioned he became totally blind. The Commission awarded compensation as for the loss of one eye and reserved the case pending the determina- tion as to whether or not he was entitled to compensation for perma- nent total disability. An employe who had prior to an accidental injury been suffering from disease of the eyes, lost the sight of one eye, which injury was caused by the sparks from an emery wheel, and thereafter lost the sight of the other eye, due to atrophy, and it was held that he was not entitled to an award for total permanent disability, but only for compensation for the loss of one eye. Blaes v. E. -W. Bliss Co. (1917), App. Div. ; 163 Supp. 722. The loss of one hand and two fingers and parts of two other fingers on the other hand were held to constitute partial disability and not total permanent disability, where it appeared that the employe, with the parts of two fingers remaining on one hand, could pick up a lead pencil, write his name and dress himself. Carkey v. Island Paper Co. (1917), App. Div. ; 163 Supp. 710; rev'g 6 N. Y. St. Dep. Eep. 321. 10. Wisconsin. Where a man engaged as a sawyer lost the thumb and index finger of his left hand and it was found that he could no longer engage in the work of a sawyer, it was held that he was entitled to compensa- tion for total permanent disability, inasmuch as the Act provided for such an award where a workman was injured so that he was unabld to continue the work in which he was employed at th^ time of the acci- dent. Mellen Lun^^fj^ ^^ j^f^fyj^ Commission, 142 K W. DISABILITY BENEFITS 891 Increased comeusation for employers failure to obey safety rules 187; 154 Wis. 114; 3 N. C. G. A. 64:9n; L. R. A. 1916 A, 374ii. It was conceded in the last-mentioned case that the workman could secure employment in other lines of work and possibly might earn as much as he did as a sawyer, but it was held that under the peculiar wording of the Wisconsin Act he was entitled to compensation for total permanent disability and an award was made of compensation for fifteen years, being in the aggregate amount of $3,000. AKTICLE G — MISCELLANEOUS MATTERS 1. Double compensation. Where an employe was injured by reason of serious and willful misconduct of a person exercising superintendence in that the em- ploye was required to operate a machine which was known to be in a ^ dangerous condition, it was held that this was such willful miscon- duct on the part of the employer as entitled the employe to double compensation within the meaning of Part II, § 3, of the Massachu- setts 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 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 willful miscon- duct 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.'; 11 N. C. C. A. 556. 2. Increased compensation for employer's failure to obey safety rules. Where an employe was injured by reason of the failure of the em- ployer to protect set screws on line shafts, contrary to a safety order of the Industrial Commission, it was held that compensation should be increased 15 per cent., under the Wisconsin Act. Ilichox v. Beloit Concrete Stone Co., Fourth Annual Report (1915), Wis. Ind. Com. 37. Where an employe was injured by the failure of the employer to Digitized by Microsoft® 892 buadbuey's workmen's compensation law Offset or counterclaim obey an order of the Industrial Commission as to the protection of gears it was held that the compensation should be increased 15 per cent, under the statute. Johnson v. Stolle Lumber Co., Third Annual Eeport (1914), Wis. Ind. Com. 62. Where a woman in a laundry was injured by having her hand drawn between the rolls of a mang- ling machine and it appeared that the employer had not obeyed an order of the Conmiission to the effect that " all flat work ironers must be equipped with guards in front of- the feed rolls to prevent the hands of operators from being drawn into the rolls," it was held that com- pensation should be increased by 15 per cent, under the Wisconsin Act. Iliggins v. Hanover & Butler, Fourth Annual Report (1915), Wis. Ind. Com. 37. Such increase was denied where an employe was killed by reason of premature moving of an elevator through the negligence of some person connected with the establishment. Maleh \..Burrell Engineering & Construction Co., Third Annual Report (1915), Wis. Ind. Com. 54. 3. Prospective award. A prospective award cannot be sustained under the British Act. Evans v. Barrow, Haematite Steel Co. (1914), 7 B. W. C. C. 681. 4. Offset or counterclaim.^ Where an employer has overpaid the amount of compensation due to the workman, such overpayment should be allowed on compensa- tion subsequently accruing. Porter v. Whitbread & Co. (1914), 7 B. W. C. C. 205. An injured workman was treated at a hospital where the fees were paid by the employers, who claimed that they were entitled to a de- duction 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 employers could therefore deduct the fees so paid from the compensation. Suleman v. Owners of the " Ben Lo- mond" (1909), 2 B. W. C. C. 499. Where the manager of a hotel, after accidental injury, occupied a portion of an apartment which she had previously occupied, but which after her injury was occupied by her sister as manager in her place, iSee opet in ^'^^^'^Md by NWcfOSOft® DISABILITY BENEFITS 893 Offset or counterclaim and she merely remained with her sister, without objection by the hotel proprietor, it was held that a counterclaim could not be sustained of the value of the room which she occupied as an offset to the com- pensation payments due. Fowler v. Zellerhach-Levison Co., 1 Cal. Ind. Ace. Com. (Part II), 609. Where an employer has, by way of advancement, paid an injured employe his full wages, instead of a certain percentage thereof, the amount of overpayment may be credited on compensation thereafter growing due. ' Cypher v. United Development Co., 1 Cal. Ind. Ace. Com. (Part II), 425; Johnson v. Cluett Peabody Co., 2 Cal. Ind. Ace. Com. 10 ; Ramirez v. Binkley & Wayne, 3 Cal. Ind. Ace. Com. 33. Where an employer, after an injury to a workman, pays him certain amounts, purely as gifts, and it is subsequently determined that the employer is liable for compensation to the workman, such employer cannot change his mind and secure credit upon the compensation payments for the amounts thus paid as gifts. Johnson v. Cluett Peabody Co., 2 Cal. Ind. Ace. Com. 10. Where an employer elects to pay 100 per cent, of the wages of the injured employe, instead of 65 per cent., the California Commission has no power to have credited against the award any excess payment made by the employer over and above the 65 per cent, authorized by the Act. Acrey v. City of HoUville, 2 Cal. Ind. Ace. Com. 561. ISTor will the employe be required to refund the compensation paid for the first fifteen days after the accident, where the payment has been voluntarily made by the employer. Turner v. City of Santa Cruz, 2 Cal. Ind. Ace. Com. 917. Where payments were voluntarily made oy an employer to an em- ploye, from the time of the injury for the four weeks succeeding, and an award was subsequently made to the employe for compensation, it was held that the amount paid during the first two weeks when there was no compensation due, must be considered a gratuity, but that the amount paid after the first two weeks should be credited to the em- ployer. Johnson v. Prendergast (Morris Common Pleas, 1914), 37 N". J. Law J. 277. Where an employe by mistake had secured a simple accident insur- ance policy instead of an employer's compensation policy, and such employe was injured,^^y^^g j^^^J^-^p^lo^pany made payments to 894 BEADBTTET S WORKMEN S COMPENSATION LAW Claim By estate of deceased workman him under the accident policy, it was held that the employer was en- titled to have credited to him the amount of such payments upon the theory that the payments made by the insurance company were in reality payments procured to be made by the employer upon account of liability for compensation. Mecartea v. Marshy 2 Cal. Ind. Ace. Com. 165. The Commission is without authority to allow a set-off of a debt due from an employe to an employer of part of the amount due by the employer to the employe for compensation for an accidental injury. Stormont v. BaJcersfield Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 533 ; Cason v. Star Laundry, 1 Cal. Ind. Aec. Com. (Part II), 485 ; Manford v. Carstenhrook, 3 Cal. Ind. Ace. Com. 21. In determining the amount of compensation for disability the amount received by the employe from a labor union as a strike benefit will not be considered. Scherbrosky v. Morrison & O'Neil, 1 Cal. Ind. Ace. Com. (Part II), 401. Where voluntary payments have been made under the ISTew Jersey Act, after the expiration of two weeks from the accident, and com- pensation is subsequently awarded, such payments should be credited on the compensation award. Blackford v. Green & Pierson (Morris Common Pleas, 1914), 37 IST. J. Law J. 279. 5. Claim by estate of deceased workman. Where an injury did not amount to permanent partial disability for which a specific indemnity could be awarded, but was of such a nature that it would have persisted some time after the death of the employe from other causes, it was held that under such circum- stances there was no vested interest and compensation could not be awarded to the employe's estate for the contingent amount which might be due for the indefinite period he might have been disabled had he not died from other causes. Kilbride v. Pratt & Whitney Co., 1 Conn. Comp. Dec. 688. Where a workman was so injured that he lost the use of both legs and was entitled to a specific benefit for such injury, and the work- man subsequently died, it was held that the specific benefits ceased at the time of his death and his dependents were entitled to receive only the death benefit. In re Burns, 105 N. E. 601 ; 218 Mass. 8; 5 K C. C. A. 635. %/^f e^£^ terdlSSW^ned there had not been a DISABILITY BENEFITS 895 Compensation for one day specific adjudication up to the time of the death of the employe in relation to the specific benefits and the court remarks : " The ques- tion whether, if during his lifetime and upon his own petition this specific compensation had been ordered for a stated number of weeks and his death had occurred before the expiration of that period, the right thus adjudicated would cease at his death, or whether the pay- ments must be continued until the end of the appointed time for the benefit of his dependents, is not raised here, and of course has not been passed upon." Compensation which is accrued at the time of the death of an em- ploye becomes an asset of his estate. Bulletin No. 11, Minnesota Dep. Labor & Ind. 29. An employe to whom an award has been made for a specific injury, such as the loss of an eye, does not have such a vested interest in the compensation which is awarded as to pass to his personal representa- tives upon his death, under the ITew York Act. Wozneah v. Buffalo Gas. Co. (1916), 168 App. Div. 268; 161 Supp. 675. In the last- mentioned case thete was a dissenting opinion by two justices of the Appellate Division. A claim for permanent partial disability does not abate by reason of the death of the workman, but can be claimed by his personal rep- resentatives. In re Patterson, 1 Bull. Ohio Ind. Com. 157. 6. Burden of proof.^ It will seldom be the case that the Commission can award com- pensation upon the unsupported testimony of a workman as to the time when disability terminates. The fact, in this respect, must be determined from the testimony of the workman, the information given by the attending physician and the advice of the medical director of the Commission. Gregory v. Merrill Metallurgical Co., 1 Cal. Ind. Ace. Com. (Part II), 408. 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. Ind. Ace. Bd., January, 1913. 1 See same title in Chapter XX. Digitized by Microsoft® 896' beadbuey's wokkmen s compensation law Place of payment of compensation 8. Sundays, holidays and shutdowns occurring in period for which compensation is diie. The Massachusetts Industrial Accident Board has ruled that com- pensation should not be deducted for Sundays, holidays or shutdowns which intervene between the fifteenth day after the injury and the time incapacity ceases. Bulletin No. 2, Mass. Ind. Ace. Bd., Jan., 1913, page 8. 9. 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 eighteen 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 com- pensate 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 provisions on this subject. It is doubtful how far the doctrine of " probable earnings " can be applied without specific statutory authority. 10. Occupational diseases contracted partly in the employment of two employers ; apportioning compensation. Where an industrial disease is contracted by a gradual process, and during the twelve months previous to the incapacity the workman has been employed by two employers, in the absence of any special risk or exposure to the poison in either employment, the period of employ- ment by each employer is the basis for calculating the proportion of the compensation which should be paid by each. Lee E. Waring & Gillow {Ferguson, third -party) (1909), 2 B. W. C. C. 474. 1 1. 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 en- dorse the voucher and sign the receipts attached before the same can be cashed, and the genuineness of such signatures is in most cases 1 See paragraph 16 in Chapter XVITI. Digitized by Microsoft® DISABILITY BENEFITS 897 LVeducting insurance benefits to which employes contribute guaranteed by local banks and business men through whose hands the vouchers pass. Euling of Mich. Ind. Ace. Bd., January, 1913. A few of the statutes have specific provisions on this subject. 12. State institution; compensation payments part of current 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. 13. Divorced man paying alimony is " single " for compensation purposes. A divorced man paying alimony is construed to be a single man and entitled to benefits as such. First Annual Report Washington In- dustrial Commission, page 487, based on Ruling of Attorney General of Washington, May 16, 1912. 14. Deducting insurance benefits to which employes contribute. In reply to a question whether, if a mutual insurance association was maintained in an establishment to which the employes con- tributed a certain percentage, what benefits would accrue to the em- ployes 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 employe, nor any contribution made by him to any benefit fund or protective asso- ciation independent of this Act shall be taken into consideration in determining the compensation to be paid hereinunder, nor shall bene- fits derived through any other source than those paid by the employer as herein provided be considered in fixing the compensation under this Act.' " Mich. Ind. Ace. Bd. Many of the statutes contain specific provisions that no such de- ductions shall be made. 5Y Digitized by Microsoft® CHAPTEE XVIII. WAGES WHICH ARE BASIS OF COMPENSATION PAGE Article A — Genebai Rules as TO Wage Basis 898 1. Average of otber workmen doing similar work 898 2. Casual employe 900 3. Employe who has worked substantially full year 900 4. Overtime and double paf on holidays 901 5. When the wages received at the time of the injury is the basis of compensation. 902 6. Employe working seven days a week 902 7. Absence of agreement as to rate of wages 903 8. Change of grade of work- man within previous year. 903 9. Intermittent employment . . 905 10. Seasonable employments . . 909 11. Absence from work due to illness 910 12. Longshoreman ; . 910 13. Deducting holidays 912 14. Pieceworkers 912 15. National Guardsman 913 16. Probable increase of wages of minors 913 17. Wages paid seaman under shipping act taken into account in awarding com- pensation 914 18. Deducting poor-law relief received by dependent.... 914 19. Compensation for previous PAGE injury not included in de- termining basis of com- pensation for sut)sequent injury causing death..'... 915 20. Father dependent of son; allowance for son's main- tenance 915 21. Commissions 915 22. Pension 916 23. Deduction caused by busi- ness depression 910 24. Employment of man and horse 916 25. Amount of board, lodging and other perquisites 916 26. General increase of wages in district as reason for increasing compensation 918 27. " Tips " or gratuities -918 28. Bonuses 919 29. Deducting upkeep of motor- cycle or automobile used by employe 920 30. Anticipated increase of wages 920 31. Deducting disbursements for powder, etc. 921 32. Deducting amount paid to assistant 921 33. When average wages based on amount actually earned 922 34. Dual employments and em- ployers 924 35. Evidence 927 ARTICLE A — GENERAL RULES AS TO WAGE BASIS 1. Average of other workmen doing similar work. Where the injured employe has worked less than one year at the time of his injury his average daily earnings should be fixed at the average daily wage of other employes doing similar work. Rudder 898 Digitized by Microsoft® WAGES WHICH AEE BASIS OB" COMPENSATION 899 Average of other workmen doing similar work V. Ocean Shore Bailroad Co., 1 Cal. Ind. Ace. Com. (Part II), 209; Craig v. Axt, 1 Id. (Part II), Y2. The purpose of the law is to reach the common experience in the same or in a neighboring locality of workmen of a class to which the injured workman belongs. Id, Where a boy was employed on a farm during the summer school vacation and he earned nothing during the balance of the year, it was held that his average wages should be computed under sudbivision 2 of section 17 of the California Act at the rate of what other employes of the same class in that neighborhood could earn working during the whole year. Yasche v. Yasche, as Executrix, 3 Cal. Ind. Ace. Com. 89. Where an inspector employed by the city drew a salary of $60 a month, but had not been working a full year, it was held that there was a presumption that persons doing the same work, who worked by the year, received the same wages as those the employe received. Shannessy v. City of Chicago, 1 Bull. 111. Ind. Ed. 160. Where an employe was employed by the day when he met his death, but he had worked by the job in other employments, it was held that the average wages should be determined by determining the amount earned by a person in the same grade employed in the same class of employment and in the same district. Gove v. Boyal Indemnity Co., 223 Mass. 187; 111 K E. 702. Where an employe had been working a very short time, the average weekly wages were determined from the amount paid to another em- ploye equally competent, who was employed in the same grade. Began v. Travelers Ins. Co., 1 Mass. Ind. Aec. Bd. 358. Whenever the wage received by an employe is- in the form of day's work, or of a nature other than a fixed daily wage, the average wage shall be arrived at by taking the total net earnings of the employe for a period of ninety days preceding the accident, which total amount shall be divided by the actual number of days which the employe worked, and the result multiplied by six, which will constitute the weekly wage for the purpose of furnishing a basis upon which to com- pute compensation. If on account of the shortness of time during which the workman has been employed, or for any other reason, it is not practicable to compute the daily wage in this manner, then regard should be had for the average daily wage which has been earned by a person in the same W^hKhS^I9m§^Sfd°7^^' ^^^ ^^ *^®^® ^^ ^° P^^" 900 beadbttey's woekmbn's compensation law Employe who has worked substantially full year son so employed then by a person working for another in the same class of work. Eeport (1915), Montana Ind. Ace. Bd. 130. Where an employe was killed the day after he started to work, it was held that the average wages should be determined by 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. In re Williams, 1 Bull. Ohio Ind. Com. 31. 2. Casual employ^. Where a workman passing a creamery was offered a quarter if he would come in and work for half an hour and help move some ma- chinery, it was held on evidence of his previous occupation, that he was a common laborer, and his wages were computed on that basis. Ginther v. Knickerbocker Co., 1 Cal. Ind. Ace. Com. (Part II), 458 ; 11 N. C. C. A. 375. Where a laborer regularly received twenty cents an hour but on an extraordinary occasion, in fighting a fire, he was paid one dollar an hour, and was injured while fighting the fire, it was held that the extraordinary remuneration should be disregarded in fixing his aver- age wages which should be based on his regular wages. Mazzini v. Pacific Coast By., 2 Cal. Ind. Ace. Com. 758; An arbitrator found that casual shipwrights (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 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. 3. Employ6 who has worked substantially full year. Where the injured employe had worked substantially the whole of the year preceding the injury, in the same employment, whether for the same employer or not, the earnings for that year are to be taken for the basis for computing his average annual earnings, and the fact that the earnings for such year are above or below normal cannot be considered, nor can his earnings for other years be taken into account. Digitized by Microsoft® WAGES WHICH ABE BASIS OF COMPENSATION 901 Overtime and double pay on holidays Gordon v. Evans, 1 Cal. Ind. Ace. Com. (Part II), 94; 11 E". C. 0. A. 37. Where a workman has worked substantially the whole of the preceding year in the same employment his average annual earnings are to be taken at 300 times his average daily wage. The average daily wage is to be ascertained by dividing the whole amount earned by the employe during the year by the number of days worked in earning such amount and not by the total number of working days in said year. Craig v. Axt, 1 Cal. Ind. Ace. Com. (Part II), 72. By " substantially the whole year " the Commission understands that the employe must have worked anywhere from 275 to 312 days. Id. Where it appears that employes of a certain class did not, as a rule, put in full time throughout the year, and that it is possible to arrive at an accurate figure representing the monthly earnings based upon actual earnings for a portion of the year, average annual earnings may be taken at twelve times such monthly earnings, instead of 300 times the daily wages. Coleman v. Guilfoy Cornice Worhsj 1 Cal. Ind. Ace. Com. (Part II), 31. Under the Michigan Act where an employe has worked in the same employment for over a year his average weekly earnings should be computed by taking a fifty-second part of his average annual earn- ings. The rule of arriving at the average annual earnings by taking three hundred times the average daily wage applies only to the case of an employe who has worked for a time substantially less than a year before the injury. Boibins v. Original Gas Engine Co., Mich. ; 157 N. W. 437. Where an employe has been regularly employed in the same employ- ment for a longer period than one year the average wage is deter- mined by dividing the aggregate amount of his earnings for the year preceding his death by 52, under the Ohio Act of 1911. In re King, 1 Bull. Ohio Ind. Com. 37. 4. Overtime and double pay on holidays. Where a strike breaker, working as a laborer, had continuous wprk and therefore earned more than the ordinary man in his class, it was held that compensation when he was injured should be based on the amount which he actually earned while thus acting, excluding, how- ever, overtime and double pay for a holiday. Priestley v. Port of London Authority 01^iB^Qli)^'Wro9ei^'^^^- 902 BEADBtTET's WOEKMBN's COMPENSATION LAW Employe working seven days a week 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. Ind, Ace. Bd., Jan., 1913, p. 8. 5. When the wages received at the time of the injury is the basis of compensation. An aviator employed by a moving picture concern had been so employed only six weeks. There was no evidence as to what the average earnings of aviators were the whole year. It was held that his average earnings must be determined according to the third method provided by the California Act, namely the annual earning capacity of the deceased employe in the kind of employment that he was engaged in at the time of the accident, and under this rule it was held that his earnings were in excess of the maximum amount under the California Act and a death benefit of $5,000 was awarded. Stites V. Universal Film Mfg. Co., 2 Cal. Ind. Ace. Com. 653; 12 IST. 0. C. A. 1033. Under the ISTew Jersey Act the wages which the workman is re- ceiving at the time of his injury govern the amount of compensation, ' not his average wages. Davidheiser v. Hay Foundry & Iron Worlcs, 87 ]Sr. J. Law 688 ; 94 Atl. 309. The -provision of the New Jersey Act that the weekly wage shall be taken to be six times the average daily earnings for a working day of ordinary length, excepting overtime, does not apply where the servant receives a fixed wage per day, but only when his wage is fixed by his output. Conners v. Public Service Electric Co., N". J. Su- preme Ct. (1916), ]Sr. J, Law ; 97 Atl. 792. 6. Employ^ working seven days a week. Where an employe works seven days a week his average annual earnings are to be computed under unbdi vision (3) of subsection (2) of section 17 of the California Act and are to be found by multiplying the average daily wages by an arbitrary average fixed by the Commis- sion at 332. Gallagher v. City of Los Angeles, 2 Cal, Ind. Ace. Com. 33 ; Phillips v. Chanslor-C an field Midway Oil Co., 1 Id. (Part II), 580 ; 12 N. C. C. A. 176. Where an employe works more than six days a week, it is manifestly unfair to apply the general rule of computing his average annual earnings by taking them at 300 times Digitized by Microsoft® ■WAGES WHICH AKE BASIS OV COMPENSATION 903 Cliange of grade of workmen within preivous year his daily earnings, under the California Act of 1911. Krznarich v. Crown Columbia Paper Co., 1 Id. (Part I), 166; Employers Lia- bility Assur. Corp. v. Figroid, 3 Id. 46. Where an oiler was employed seven days a week regularly and this Was necessary by reason of the employer's business, it was held that in estimating his average wages the work on Sunday should be taken into consideration. Panacona v. Vulcanite Portland Cement Co. (Warren^ Common Pleas, 1914), 3Y N. J. Law J. 75. 7. 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 ISTew 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 minimum, at least, of $5 a week, as compensation. Mueller v. Oelkers Mfg. Co. (Essex Common Pleas, Peb., 1913), 36 ISr. J. Law J. 117. 8. Change of grade of workman within previous year. 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 compensa- tion on the average wage thus ascertained. It was held that the com- pensation must be based on the wages the workman was earning in the grade of employment in which he met with the accident and that it was error for the arbitrator to reckon the man's wages as a boiler- maker. Babcock & Wilcox v. Young (1911), 48 Scotch L. E. 298; 4 B. W. C. C. 367. Same principle. Perry v. Wright (1908), 98 L. T. 327; 1 B. W. C. C. 351; 11 K 0. C. A. 791. In the last- mentioned case the principle was established where a man changes from one grade of work to another that " any step up or step down from one grade to another is to be regarded as commencing a fresh employment," in computing the wages upon which compensation is to be based. Digitized by Microsoft® yU4: BEADBUET'S WOEKMEN'S COMPENSATION LAW Change of grade of workman within previous year 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 belonged 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 workmen are not tw^ grades. The case was remitted to an arbitrator 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. Kenworihy ; Gough v. Crawshay Brothers (1907), 98 L. T. 327; 1 B. W. C. C. 351; 11 K C. C. A. 791. A workman, after injury for which he was paid compensation, 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 evidence to sup- port it, the court could not interfere with the decision. The decision was made on the ground that there had been a break in the continuity of the employment of the workman and conpensation was, therefore, assessed upon the basis of the earnings of the man in the second em- ployment. Williams v. The Wynnstay Collieries (1910), 3 B. W. 0. C. 473. 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 nqt on the earnings at the time of the accident. Price v. Marsden & Sons (1899), 80 L. T. 15; 1 W. C. C. 108. Under the British'statute the average weekly wages are determined from the wages earned during twelve months preceding the accident, unless there has been a change in the grade of the employment within that period, in which event the wages being earned by the employe at the time of the accident govern the amount of compensation. It Digitized by Microsoft® ■WAGES WHICH AEB BASIS OF COMPENSATION 905 Intermittent employment is held that merely a raise in wages is not conclusive evidence of a change of grade hut there must also be some change in the nature of the work performed. Dalgleish v. Edinburgh Roperie and Sailcloth Co. (1913), (Scotch Court of Session), 6 B. W. C. C. 867. 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 con- trolled, as this was the last grade of employment. See Bulletin No. 2, Mass. Ind. Ace. Bd., Jan. 1913, p. 9. , Under the Michigan Act where a workman was employed in dif- ferent grades during the year preceding his injury and was working in a higher grade at the time of the injury, it was held that the aver- age wages should be determined by the amount which he earned dur- ing the entire year in the various grades and not based on the higher wages received in a different grade for a period less than a year prior to the employment. Linsteadt v. Louis Sands Salt & Lumber Co., Mich. ; 157 ]Sr. W. 64, 9. Intermittent employment. Where there was a slackness of trade and a shutting down of the works, due partly to the war and partly to other causes, it was held that in arriving at the average wages the time which the workman lost by the mills being shut down must be deducted, as the stoppage, by reason of the war, was not abnormal, as it was caused by an event which affected all persons alike. Griffith v. Gilbertson & Co. (1915), 8 B. W. C. C. 548. 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 calculation 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 relationship of maMSit^^ ^ViMi&l[PMS®>een continuous or not; a 006 BEADBUEY's WOKKMEn's COMPEITSATIOlir LAW Intermittent employment mere interval in the time the contract of service or work is running is not sufficient. Jones v. Ocean Coal Go. (1899), 80 L, T. 582; 1 W. 0, 0. 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 imme- diately 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 any fresh engage- ment, 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 applicant worked, had been on short time owing to slackness of trade, a!nd the applicant had not always worked a full week, it was held that she was entitled to the average weekly earnings which she had actually earned during the preceding twelve months. Kelly v. Yorlc Street Flax Spinning Co. (1909), 43 Irish L. T. J. 81 ; 2 B. W. 0. C. 493. In the last-mentioned case it appeared that. in previous years the ap- plicant had worked and earned more than she had during the last twelve months, but the larger earnings were not taken into considera- tion in fixing the compensation. In ascertaining the average weekly earnings of a workman, the recognized and known incidents of his employment must be taken into consideration. Therefore where the injured workman was re- tained in the employment during the whole year, but owing to the fact that the work was discontinuous, he could not have worked for ipore 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), Anslow v. Cannock Chase Colliery Co. (1909), 100 L. T. 786; 2 B. W. C. C. 365 ; 11 ]Sr. 0. 0. A. 669. As to the method of arriving at the aver- age weekly earnings of a workman, MouLToiir, L. J., said in the case of Perry v. Wright (1907), 98 L. T. 327; 1 B. W. 0. C. 351; 11 N. 0. 0. A. 791 : " The object of the schedule is to arrive at a fair estimate of what the workman was earning at the date of the accident. But to regard Digitized by Microsoft® WAGES ASTHICH AEE BASIS OF COMPENSATION 907 Intermittent employment this as rigidly determined by the rate at which he was earning re- muneration 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 deeming that this will more fairly represent the rate of remuneration 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 precise moment of the accidents" 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 any- thing 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-two for the purpose of arriving at the average weekly earnings 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 ; 11 N. 0. C. A. 793. In ascertaining th^fJ^ra^^w^^S^g^ «^ ^^ ^"j"^^^ ^°^^- 908 Intermittent employment man regard 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; 11 N. C. C. A. 670. A beer bottler who was always subject to call, but whose actual working time averaged only four days a week, does not work sub- stantially the whole year, within the meaning of section 17 of the California Act, but as there are beer bottlers who work steadily throughout the year, the average annual earnings should be taken to be those of the employes of the same class working in the vicinity substantially the whole of the preceding year. Bird v. Oakland Brewing and Malting Co. (1916), 3 Cal. Ind. Ace. Com. 356. Where a miner worked only a few weeks at a time, in order to secure a grub stake, and spent the rest of his time prospecting, it was held that his annual earnings should be based not upon his actual earnings during the preceding year, but upon the basis of wages of other employes in the same or similar employment, who had worked substantially the whole year. Larson v. HolhrooJc, McGuire and Cohen, 2 Cal. Ind. Ace. Com. 130. Where it appeared that the employe had only worked a portion of the time for the employer in whose service he was at the time of his death and he had not worked for others, or attempted to secure work for others, in the intervals of nonemployment, it was held that his average weekly wages were to be determined by taking the amount . actually earned and dividing it by the number of weeks covered by the period of earning. Silveria v. Connecticut Quarries Co., 1 Conn. Comp. Dec. 509. An employment covered a period of four weeks, but the employe actually worked only eighteen days during that period. At no time was there a loss of seven consecutive days. It was held that no de- ductions could be made in computing the average wages, which should be one-fourth of the total amount earned during the period mentioned, and that compensation should be based on this amount. As this pro- duced a sum less than the minimum specified under the Connecticut Act an award was made accordingly less than the minimum sum, the award being a specific one for the loss of an arm. Cheski v. The Connecticut Mills Co., 1 Conn. Comp. Dec. 213. Where an employe has lost more than two weeks in each year by Digitized by Microsoft® '' •' ■WAGES WHICH ABE BASIS OF COMPENSATION 909 Seasonable employments reason of inclement weather, the average weekly wages must be de- termined under Part 2, section 5, of the Massuchusetts Act and chap- ter 8, section 4, subdivision 3, of the Eevised Laws. In re Bartoni (1916), Mass. ; 114 K E. 663. A car rider was employed at the rate of 25 cents an hour at the time he was injured and at other times he earned 20, 23 and 33 cents an hour. Sometimes he worked more than ten hours a day and sometimes less. It was held under the !N'ew Jersey statute that the wages should be computed by assuming that the man worked the usual number of hours in the community, to wit, ten hours a day for six days a week, making the rate of wages $15 a week, on which sum the compensation should be based. SmolensM v. Eastern Coal Dock Co., N. J". Law ; 93 Atl. 85 ; 9 N. C. C. A. 531. 10. Seasonable employments. Under the Sasketchewan Acr the amount of compensation for the loss of a hand must be based on the estimated earnings during the three years preceding the injury of a person of the same grade em- ployed during these three years in a like employment, and where the only evidence was that the employe was engaged during the milling season of five or six months in each of the preceding two years, at a wage of $2.25 a day, it was held that an award of the maximum amount of $2,000 was not justified and should be reduced to the sum of $1,800. Uhlenhurgh v. Prince Albert Lumber Co. (1913), (Saskatchewan Supreme Court), 7 B. W. C. C. 1028. Where it appeared that logging operations were discontinued one and a half months each year, it was held that the employment was seasonable and that the average annual earning capacity of an em- ploye was ten and one-half twelfths of the average annual earnings, computed on the basis of employment during substantially the whole of the year. ' Anderson v. The Hammond Lumber Co. (1916), 3 Cal. Ind. Ace. Com. 378. Where a workman is engaged in a seasonable employment at the time of an injury, but at other times of the year he secures other kinds of work, so that he is employed practically the entire year, the wages should be determined by multiplying the average monthly wages by twelve and been prejudiced by the lack of notice. Sicardi v. Sarnoff Hat Co. (1916), 176 App. Div. 337; 162 Supp. 337. 11. Pennsylvania. Where an employe fails to notify an employer of the time of an accident compensation can begin only from the time the notice is given, under the Pennsylvania Act. Morrell v. Drehmann Paving Co., Pa. Workmen's Compensation Bd., Dec. 1, 1916 (unreported). 12. Rhode Island. An employe who was ill for thirty days after the accident was excused for his failure to give notice, under the Rhode Island Act, which provides for such excuse when it is caused by " accident, mis- take or unforeseen cause." Donahue v. Sherman's Sons Co. (1916), E. I. ; 98 Atl. 109. 13. Wisconsin. Where an employer has actual notice of an injury, the burden of proof is on the employer to show that he was prejudiced or misled by the failure of the employe to give written notice within thirty days required by the Wisconsin Act. Pellett v. Industrial Commission of Wisconsin, 162 Wis. 596; 156 JST. W. 956. Where it appears that the employer was not mislead by a failure to give notice of the injury, a claim for compensation is not barred by such failure. City of Milwaukee v. Industrial Commission, 160 Wis. 238; 151 KW. 247. The effect of the failure to give notice of injury is waived by the payment of compensq$fp/^llJjj./tter^jte)igitized -bPlWicfBs^lf^ PAGE 48. Burden of proof as to prejudice by failure to give notice 1043 49. Burden of proof on em- ployer to show prejudice by failure of employ^ to secure proper medical at- tention 1043 50. Burden of proof on applica- tion to discontinue com- pensation 1044 51. Burden of proof as to whether employs in ex- cepted class 1044 52. Burden of proof as to inter- state commerce by employe on vessel 1045 53. Conflict between Board and Arbitration Committee . . . 1045 54. Costs 1045 55. Security for costs 1047 56. Fees of arbitrators 1047 57. Cost of transmitting money to non-resident alien 1047 58. Stenographic minutes of testimony 1048 59. Findings 1048 60. Decision by a majority of the Commission 1050 61. Time to file findings 1050 62. Exceptions to findings 1051 63. Termination of proceeding. 1051 64. Awarding compensation after action for damages dismissed on appeal 1051 65. Award "during total or partial incapacity " 1051 60. Minimum award when proper 1051 67. Joint award against em- ployer and insurance car- rier 1052 68. Anticipatory award, on de- creasing scale 1052 69. Award to terminate at speci- fied date in future 1052 70. Suspensory award 1052 aring 30.'i4 beadbuey's woekmen's compensation law Various methods of administration PAGE PAGB 72. New trial ; arbitrator ean- 79. Payment of award into not grant 1061 court 1063 73. Supplementary proceeding 80. Enforcing payment of instead of rehearing 1061 award; body execution... 1063 74. Supplemental award after 81. Staying execution against hearing brought up on principal until return oral motion 1061 against contractor 1064 75. Setting aside award 1062 82. Failure to appeal from 76. Action to set aside agree- award of arbitrators 1064 ment 1062 83. Apportioning compensation 77. Setting aside approved among dependents 1064 agreement 1062 84. Offset 1664 78. Judgment on award 1063 85. Res adjudicata 1066 ARTICLE A— INTRODUCTION 1. Various methods of administration. The administration and procedure under no two of the compensa- tion acts of the American States are exactly alike. 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. Trial by jury hg,s virtually been abolished in all such disputes. The ordinary (iourts have been abolished as well, so far as such controversies are concerned in most of the States. 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 average citizen, as against the encroachment of so-called special privilege. Many of the States have established industrial boards or commis- sions, with more or less extensive powers. Doubtless, it is necessary, or at least advisable, that any compensation law should be Supervised by some public body. In a few of the States controversies are determined by judgea of the local courts without a jury. The proceeding is considered as one in equity and is determined expeditiously and without unnecessary technicality. The same procedure prevails under the British and Canadian acts. Digitized by Microsoft® ADMINISTEATION AND PEOCEDUEE 961 Practice under the Connecticut Compensation Act PRACTICE UNDER CONNECTICUT COMPENSATION ACT^ IXTEODUCTOET For the title of this paper, as it appears in the preliminary an- nouncement, " Practice in Compensation Courts," I am not respon- sible. While the office in which the compensation law is admin- istered is in a broad and popular sense a court, as it is a place where justice is sought to be meted out between man and man, it is not, as we all know, a court in the strict and technical sense of the term. If there is a compensation court, it must, I suppose, be the Superior Court, following the analogy of the bankruptcy law, which provides for the doing of the ordinary business mainly in the referee's office, but makes the Federal District Court the principal court of bank- ruptcy. The title of the paper, as I intended it to be and as it now is, is " Practice Under the Compensation Act." This very title may seem to present a paradox, for it may be said, ■ — ■ How can there be prac- tice, in the sense in which the lawyer knows the term, under a system which abolishes pleadings, so liberalizes the law of evidence and the procedure that the commissioner is absolved from the ordinary com- mon-law and statutory rules and is bidden to make inquiry in such manner, throiigh oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties, which allows parties to appear in person or by any representative, lay or professional, and under which there will come up for consideration not only important questions but a multitude of claims, of trifling amount, where it is obviously intended that the most ignorant shall be free from the necessity of employing professional assistance. I have no personal knowledge as to whether or not the oft-quoted remark attributed to the distinguished governor in whose adminis- tration the compensation system was inaugurated is a correct quota- tion or not. The characterization of the office of the commissioner at a tribunal to which " the immigrant widow with a shawl over her 1 While, obviously, in a work of this size it would be impossible to set forth in detail the practice under the various acts, the following address by Hon. Geoege H. Beers, one of the Compensation Commissioners of Connecticut, is so complete and valuable that it is reprinted, with the consent of Professor Beers. It was delivered before the Connecticut Bar Association. 61 Digitized by Microsoft® 962 beadbuey's workmen's compensation law Practice under the Connecticut Compensation Act head might repair for counsel and advice " may or may not have proceeded from the distinguished source to which it is ascribed. Whether it did or not, it embodies a truth and has, as has been said, reduced to a figure of speech the essential spirit of the Act. And yet a tribunal as informal in its methods as this one con- fessedly is, must, for the orderly transaction of public business and the administration of speedy and even-handed justice, have some- thing which in its essentials is procedure, whether called by that name or not. There must be a right and wrong method of doing things; there must be of necessity, if the action be otherwise than according to the whim of the administering official, a measure quite as uncertain as the length of the proverbial Chancellor's foot, certain necessary things which must be done and certain other things that ought to be done. Eurthermore, every act of the officer having the administration of the Act primarily in charge is subject to review in two courts, and in proceedings in the reviewing tribunals, which were constituted primarily for the administration of justice in the manner familiar in common-law and eqiiity systems, we certainly meet the subject of practice in the sense in which the lawyer knows and uses the term. In speaking, therefore, of practice, I am not to be understood as indicating any attempt or any desire to assimilate the methods to be pursued in compensation cases with those followed in ordinary courts of law and equity, but rather as trying to deter- mine what principles prevail and should prevail in this later-day attempt to make effective those rights between employer and em- ploye which grow out of the occurrence of industrial accidents. The Natuee of the Eight to Compensation and the Guiding Peinciple in its Enpoecement. And, first, a word as to the reasons for the existence of the com- pensation law, as to the nature of the rights it creates and as to the principles which should be observed in the determination and en- forcement of those rights. The compensation system is in no sense a system of charity. It is not primarily a scheme for the better- ment of any class of men or classes of men : it is simply a system which, taking cognizance of certain known facts and situations, attempts to do justice between employer and employed in emergencies which are bound to present themselves. Digitized by Microsoft® ADMINISTRATION AND PBOCEDUEE 963 Practice under the Connecticut Compensation Act While as said in Powers v. Hotel Bond Co., 89 Conn. 143, 146, the " Act . . . seeks to avoid the great waste of the tort action and to promote better feeling Between workman and employer," while the system is described in Kennerson v. Thames Towboat Co., 89 Conn. 367, 375, as " a more humanitarian and economical system " and as " a substitute for one deemed wasteful to industrial enterprises and commerce, and unfair to employes," while a result of its operation is to afford needed assistance in emergency and while its tendency is to help cure some of the ills of the times, it accomplishes these results incidentally and by creating and enforcing certain contract rights, logically based upon a perfectly sound foundation. The employe sells his labor to the employer and the employer pur- chases the labor of the employe. Neither, ordinarily, in making the contract, contemplates anything so foreign to the plans and wishes of both as the occurrence of an industrial accident. The usual con- tract of employment calls for the doing of certain work and the pay- ment of a certain consideration for that work. It is silent as to what shall be the rights of the parties when the unthought of occurs and when, while doing the work, the employe suffers an injury. The common law worked out that problem primarily on the theory of negligence. If the injury happened through the employe's care- lessness, he could not recover. If it happened without fault on the part of the employer, there could be no recovery. In a broad way it may be said that if the employe was not negli- gent and the employer was negligent, the former could recover for an injury, the risk of which had not been assumed by him or which had not been caused by the carelessness of a fellow servant. Grow- ing out of these rules and collateral to them were subsidiary rules involving many nice and often technical distinctions. All of these rules of law were read into the contract of employment and by their aid the rights of the parties were worked out in case of injury, for all rules of law enter into and, unless definitely excluded, become a part of contracts. In Connecticut the Compensation Act has developed its rules along a similar line in that it operates by entering into and becom- ing a part of the contract of employment. The Act is optional and the employer is still at liberty to continue under a liability for negligence, the statute in that case importing into the contract of Digitized by Microsoft® 964 Practice under the Connecticut Oompeusation Act employment certain important features which, place the employer at a disadvantage in case of injury. If the parties elect to adopt ihe Act, they come within the system of compensation and they may make their election, just as they may make the election to have their ordinary common-law cases tried by a court instead of a jury, by mere failure to take a prescribed step. If they elect to come within the Act, there is read into the contract by operation of law a provision that the employe shall lose his right of action for negligence and that the employer shall, in case of injury occurring in the course of and arising out of the employment, make a compensation to the injured person, which may be roughly de- scribed as the payment of half wages during incapacity, not exceed- ing a fixed maximum period, or in case of certain definite injury to members of the body, the payment of half wages for arbitrary periods fixed in the Act. This theory is stated in Powers v. Hotel Bond Co., 89 Conn. 143, 145, where it is said that : " Workmen's Compensation Acts such as ours are founded upon the theory of a contract existing between workman and employer, an implied consideration of which is pro- vision for compensation for injury to the workman arising in the course of his employment and not through his intentional or wilful misconduct. Fault is the foundation of the tort action ;' compen- sation for the injury regardless of the fault, of the Compensation Acts." In Kennerson v. Thames Towboat Co., 89 Conn. 367, 3Y1, it is likewise held that the relation is contractual and that " the Act became a part of these contracts, part consideration of which was the promise of the employer to pay the compensation for injury provided by the Act, and the promise of the employe to accept such compensation in full for all rights and claims arising out of injuries sustained in the court of his employment." The underlying reason behind it all is that injuries are bound to come and that while the careful may be expected to suffer fewer injuries than the careless, accidents will happen under all circum- stances of employment and whatever precautions may be adopted by employer and employe. A moment's reflection will make it obvious that most of the mishaps in our daily lives, be they important or trifling, are theoretically avoidable, and yet that no amount of care Digitized by Microsoft® ABMINISTEATION AND PEOCEDUEE 966 Practice under the Connecticut Compensation Act and no amount of good luck will carry one through any long period of time without mishap. The compensation system faces this situation squarely and regarding this incident of life as properly in contemplation of the contracting parties, provides that the contract of the parties shall be such that when the accident occurs, it shall give rise to certain rights of compensation. ' The Act, ab said in Powers v. Hotel Bond Co., 89 Conn. 143, 146, " accepts, as an inevitable condition of industry, the happen- ing of accident, and charges its cost to the industry. It imposes upon an employer, presumably, his share of a common loss in a common industry. The period of compensation is limited as a ' concession ' it is said, ' to expediency,' although logically the spirit and purpose of the Act can only be met by having the period com- mensurate with the period of injury or dependence." The employe gives his labor and gets no financial benefit from his work other than his pay. It is just that the employer should stand the expense of accident as a part of one of the charges of the enterprise which he is carrying on "for his own benefit, whether that enterprise be conducted for monetary profit, or, as in the case of a household, for his comfort and pleasure. As, therefore, the administrator of a system of compensation is appointed to act in the enforcement of contract rights and not to be an almoner of bounty, the first essential of both the system and its administration is even-handed justice. While the commissioner is not a judge and does not hold a court, he is the motive force in pro- ceedings which have the same practical results as ordinary judicial actions. As held in Powers v. Hotel Bond Co., 89 Conn. 143, 148, " he determines facts . . . and applies the law to the facts found, and renders judgment whioh affects the property rights of litigants before him and which may be enforced by execution issued as of course out of the Superior Court." This description of a part of his duties would be quite as applicable to the duties of a judge and his first thought, like that of the judicial officer, must be to do justice. It has been reported that a high official in this State, at the time of the inauguration of the Act, said by way of friendly advice to those having the responsibility of its administration, something like this : " You should perform your duties in a broad and kindly man- ner, but it is not on^o^^Ogi^^duj^s^to b^jenerous with other people's 966 Practice under the Connecticut Compensation Act money." I think that we must all agree that the benevolences of a commissioner, like those of a judge, are to be paid out of his private purse. It is as important to arrive at a correct result as to where com- pensation is due and if so, how much, on a contract of employment as it is to determine what amount, if any, is due upon a promissory note. The best method of getting at it may differ according to cir- cumstances and the subject-matter, but the necessity of justice is the same and it is as important in the one case as in the other that there be proper safeguards. Vital, therefore, as are economy and dispatch in the administration of the law, justice, must come first. While upon this subject of the underlying principles which should guide the administration of the Compensation Act, I may say that the members of your Connecticut board had, at a recent conference of similar oificials from all over this country and from Canada, an opportunity to observe in a broad way the workings of different sys- tems and to compare the administration of different laws with that of our own. I think we all came from that conference feeling that however much we had to learn from other States, the Connecticut system was pre-eminently a system calculated to do justice between the individual parties in individual cases, and that, in whatever ways those administering the Act may fall short of doing their full duty, those who come before them might fairly feel that th^y would receive in large measure the even-handed justice which litigants in courts do not look for in vain. We Connecticut people are a practical and not a theoretical people. However we may rejoice in the fact that the Compensation Act will relieve want, we have not mixed it up with theories of charity or social service, and whatever the final result of it may be, we have remembered that in each individual case the question is, — shall a certain number of dollars go from one pocket into another ? Such unconscious expressions as I have heard from the lips of high officials administering other compensation acts, as " by our decision we secured $2,000 for the poor widow," would hardly be an index of the state of mind of one who was trying to faithfully administer our own Compensation Act, however much hard cases might appeal to his sympathy as an individual. Digitized by Microsoft® ADMINISTEATION AND PKOCEDUBE 967 Practice under the Connecticut Compensation Act Economy and Dispatch of Business Not Inconsistent with Justice Justice, however, does not demand an unreasonable waste, nor is it inconsistent with the prompt dispatch of business. The law aims not at theoretical nicety and exactness, but at practical results. It is not expedient to carry every trifling lawsuit to the Supreme Court, nor is it wise to fritter away the small compensation in the average case in attempts to reach a goal of theoretical accuracy attain- able, if at all, only by the use of complicated and costly machinery. The administration of the Act is hence confided to the menibers of an administrative board with broad powers. Their acts may, by a simple and inexpensive procedure, be subjected to judicial review and our courts have, by their own actions, made it clear that, however informal the methods, the real essentials of justice, inherent in any proper effort to determine property rights, must be found. How Economy and Dispatch Aee Secuked Eemembering then that the first requisite is the doing of justice between the individual parties who come within purview of the Act in individual cases, let us see how economy, simplicity and dis- patch are secured in administration. Perhaps the best general char- acterization of the ofiice of Commissioner is that of Judge Wheelee, in Powers v. Hotel Bond Co., 89 Conn. 143, 148. He said: " Some of the duties devolving upon the Commissioner are quasi judicial and some are wholly executive or administrative. He determines facts ... and renders judgment . . . which may be enforced by execution. ... He may hear the applicant at liis residence. He proceeds to hearing without pleadings and without regard to the ordinary rules of evidence. He may make his inquiry through oral or written and printed records best calculated to ascer- tain the substantial rights of the parties. He receives, files and transmits all notices required by the Act. He supervises agree- ments made between the employer and his workmen. He is the adviser of all, the umpire between the disputants." The duties of employer and employe in case of injury are simple. The employe is to notify the employer that he is hurt. On being notified or on obtaining information from other sources, the employer is to report the accident to the Compensation Commissioner and to *^ Digitized by Microsoft® 968 beadbuey's workmen's compensation law Practice under the Connecticut Compensation Act furnish medical aid. It has been repeatedly held by the Commis- sioners that the employer owes no such duty if through no fault of his own he is ignorant of the injury, and that if under these circum- stances the employe goes and gets his own physician on his own account, he must pay the bill.^ The Voluntary Agbeement and its Effect It then becomes the duty of the parties to try to reach an agreement as to what, if any, compensation is due under the Act. This ob- viously does not mean that there is to be a series of dickerings be- tween the parties as too often occurred before the passage of the Act, by which one side, often by taking advantage -of the other's necessi- ties, sought to pay the minimum or nothing at all and the other side to obtain the maximum amount possible to extract on account of an exaggerated injury. Under all ordinary circumstances, the agree- ment is to be made strictly in accordance with the Act. Under ex- ceptional circumstances, as in case of doubtful proof involving dis-' proportionate expense, compromises have been approved — a practice sanctioned, in such rare instances, by both the Commissioners and the Superior Court.^ After an agreement is made, it is submitted for approval and if found proper is approved in the Commissioner's office and filed in court. It may be said in passing that, if fair on its face and no sus- picious circumstances occur, it is approved as of course; otherwise an investigation is had and as a result it is approved in its original form, a modification is suggested, or a hearing is had. This approved agreement has in the main the same effect as an award. It is a for- tunate circumstance that the normal method of adjusting compensa- tion is by agreement and the value of this practice in saving the time of parties and the money of the State and in preserving good feeling between the parties, has been demonstrated by experience. Questions have arisen as to just how one of these agreements is to be viewed when one of the parties seeks to escape from its obligations. 1 MalTcowsky v. Silherovicz, 1 Conn. Comp., Dec, 136. 2 See for instance : Judson v. Andrews & Peck Co., 1 Conn. Comp., Dec. CO : Treiber v. Weibel Brewing Of)., id. 547; Catto v. Ciidemo, id. 374; Coons v. DeMichiel, id. 446. Digitized by Microsoft® ADMINISTRATION AND PKOCEDUEB 969 Practice under the Connecticut Compensation Act In a concrete case/ involving an agreement under which the employe 1916). elected to furnish his own physician, this language was used as show- ing the attitude of a least one of the Commissioners on this subject : " It is vital to tha orderly administration of the Act that when voluntary agreements are made they shall be adhered to. The time to read agreements and to look into their terms is before signing them, and not afterwards. . . . Agreements are not to be lightly . thrown aside, or else the whole system breaks down. To disturb them without sufficient reason is contrary, also, to the elementary principles of law. " In this case as it now stands there is no occasion to pass upon the question of whether the agreement can be modified or should be modified. If the employe desires to present a case for the modifica- tion of the agreement he has a right to do so, and that right is expressly preserved in the award. All that is now decided is that, the agreement being in full force and efEect and not having been amended, it must be lived up to, and the claim of the physician must be disallowed as a claim against the employer." The practice of relegating one who would set aside a voluntary agreement to a proceedings to be instituted for that purpose, does not mean that any special formalities are required. It simply means that the question shall be in some way squarely presented and that the adverse party shall have an opportunity to meet it. How Headings ' are Conducted ; Evidence If the parties do not agree, it becomes the duty of either and of both to report the matter to the Commissioner, who assigns it for a hearing and gives the parties the statutory ten days' notice. The hearing proceeds, as most of you know, like an informal action at law. Here comes in the principle that the essentials of a just administration of justice must be observed, and the burden is thrown, as frequently held by the courts of other States and by decisions of our own Commissioners,^ upon the moving party, upon the one who seeks to have the other party pay the money. An attempt is made ^Lavorgna v. Barnum (Jan. 4, 1917). See also Cushner v. Rowe (Dee. 20, 1916). ^Carlson v. Strong, Barnes & Hart Co. (Nov. 2, 1916) ; Mauro v. Sargent d Co. (June 27, 1916) ; Criscuolo v. Connecticut Co., 1 Conn. Comp., Dec, 342 ; Gaherty v. International Silver Co., 1 Conn. Comp., Dec., 404 ; TTirom v. Malley (Dec. 4, 1916). ^. .^. ,^ ,,. ^^ Digitized by Microsoft® 970 beadbuey's ■workmen's compebtsatiow law \ Practice under the Connecticut Compensation Act first to see to wliat extent the parties are agreed and find out the points at which they are at issue. This is, of course, one of the great objects of any system of pleading. In the compensation practice that result is attained by a colloquy between the Commissioner and the parties or their representatives, taken down stenographically. In case of surprise an adjournment, as in any fair system of practice, is had. Early in the administration of the Act, it was, decided not to entertain formal pleas in abatement or to the jurisdiction. JVCy own experience has shown that, after all, the difference between what may be thought the free and easy practice on subjects of evi- dence and the application of the strict rules of evidence is much less than it might seem to be upon the surface. I have generally found that evidence that is inadmissible in courts of law is either mislead- ing or is not helpful in the attempt to arrive at a decision in a com- pensation case. If we lay aside certain ultra technical rules which have become engrafted upon our law of evidence, most of the prin- ciples that have been established are, it seems to me, really aids to justice. As an illustration there may be cited' the certificate of a physician that a man's condition is so and so. If that is not a con- tested point, the acceptance of that certificate is a convenient way of disposing of non-essentials or dispensing with more formal proof. If, however, there is a real contest at this point, experience shows that the medical distinctions are so fine- and the differences between the attainments of physicians and their opportunities for observa- tion so great that a certificate of that kind is more apt than not to be of little value. Often, a happy way of disposing of that question is to take the paper in the first instance with a ruling that in case of serious dispute the physician shall be produced, for cross-examination. On the average, hearsay evidence is, to my mind, more likely to mis- lead than to aid. The question of how free a hand is given by the very general language of section 24 of part B, that the common law and statutory rules of evidence are not binding, is one of much diffi- culty. As there cannot be a re-hearing before the judge in the Su- perior Court, we are free from the anomaly of a case tried on informal evidence in one tribunal and tried over again on formal and perhaps different evidence in another, a difiiculty pointed out in Potbers v. Hotel Bond Co., 89 Conn. 143, 149. The question remains, however, and has never been iudicially an- Digitized by Microsoft® ■' ■' ADMINISTEATION AND PKOCEDUEE 971 Practice under the Connecticut Compensation Act swered in Connecticut as to what sort of evidence is sufficient to sustain the action of the Commissioner, when the case comes up on appeal in the Superior Court. A recent case in New York brings this question into very bold relief. In Carroll v. Knickerbocker Ic& Co., 218 IST. Y. 435, it was held that while the Commission of that State is not bound by the com- mon law or statutory rules of evidence and may in its discretion ac- cept any testimony that is offered, still in the end there must be a residuum of legal evidence to support the claim before an award can be made. The court therefore said that findings resting on the de- cedent's statements, made in a highly nervous state, were, in the presence of substantial evidence to the contrary, mere hearsay and in final effect no evidence at all. This particular point .might not be presented in exactly the same way under the law of Connecticut be- cause such a declaration of a deceased person is by statute admissible here and this statute probably applies to compensation proceedings. In iN^ew York, however, the declaration is inadmissible in evidence in court proceedings. The minority view in the New York Court of Appeals was that the statute meant exactly what it said and that the Commissioner was not to be told in the statute that he could take the evidence and at the same time be forbidden to consider it. As to how this particular question will be worked out in Con- necticut, I have no prophecy. It may be noted, however, that there is a possibly significant sentence in the opinion in Larke v. The John ■Hancock Mutual Life Insurance Company, 90 Conn. 303; 97 Atl. 320, 321, where it is said of a certain bit of hearsay testimony that it had " no probative value as evidence." Whether this sentence is to be taken simply as a part of an argument on a somewhat different sub- ject and as having no importance on this point, or whether it is a foreshadowing of an adoption of a rule similar to the majority rule in New York, I have no advance information. The Finding and Awaed The upshot of it all is that when the hearing is over, under our practice, there is a ^gl^tef/jte6(MpQfi@a% a. finding of facts and a 972 beadbuey's woekmen's .compensation law Practice under the Connecticut Compensation. Act . ■ J 1 statement of the rulings with all proceedings, under ordinary circum- stances, photographed in the stenographer's note book. The Supreme Court of Errors in Powers v. Hotel Bond Co., 89 Conn. 143, 149, 151, laid down the rules for the drafting of the Commissioner's finding and award. It is there said : " Under our interpretation the finding and award must give all facts essential to the case in hand, and such questions of law as were ruled upon by the Commissioner and such as were made by the appellant. ISTo other or further detailed finding is required. The ' finding ' of section 26 means a finding in the sense in which that term is used in our statutes, requiring a finding of the facts upon which the judgment is based. General Statutes, §§ 759, 763." This discussion is carried on and the idea further developed in Thompson v. Twiss, 90 Conn. 444. The language used in that case is very suggestive as to the manner in which an error of the Commis- sioner in finding facts without proper evidence, or his refusal to make a proper record, may be reached. It is said in the opinion : " The power of the Superior Court in the correction of a finding of the compensation Commissioner is analogous to, and its method of correcting the finding similar to the power and method of this court in correcting the finding of the Superior Court." Another case dealing with the rules for findings — Hartz v. Hart- ford Faience Co., 90 Conn. 539, 540, is considered elsewhere in this paper. While recognizing that there must be a limit beyond which this analogy cannot be pressed, these cases, which seem to hold that the rules for findings in the Superior Court, made for the purpose of an appeal to the Supreme Court of Errors, are largely applicable to findings by the Commissioners made to present the case in the Su- perior Court, have been taken as authority in the Commissioner's ofiice for making a correction of the finding in an appealed case at any time up to or during the argument of an appeal in the Superior Court.'- As in other appeals to the Supreme Court of Errors, so in appeals to that court in compensation cases, error to be available must appear on the record, Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 259. The award when made is filed in the Superior Court, where it is 1 Engstrom v. Cand< f)i^Wl&,}%)^W^tOSOft® ADMINISTRATION AND PEOCEDUBE 9Y3 Practice under the Oounecticut Compensation Act subject for ten days to an appeal to the court itself. If unappealed from, it has the characteristics of a judgment and, in the language of the opinion in the Powers case, is a judgment of the Superior Court. Copies of this judgment are sent to each party, and it may be remarked parenthetically that copies are sent also to each of the other Commissioners for his files. ISTew Trials and Amendment of Awards Interesting questions have been presented as to the power of the Commissioner over an award, from which no appeal has been t9.ken. Many people begin to wake up when they have lost their cases. Every Commissioner has therefore abundant opportunities for trying cases over again. The Act has provided that in case of a change of circumstances eince the award was rendered, the award might be amended. The exercise of this power has not given rise as yet to much embarrassment. By an amendment introduced in the last session, which I drew myself and which I regard as of great wisdom, subject only to the possible criticism that nobody has yet discovered what it means, the Act (Sec. 15 of Part B) now says that "the commissioner shall have the same power to open and modify awards as any court of the State has to open and modify a judgment." I have spoken facetiously of this. ISTevertheless, I think it gives a wise reserve power, although it does bear a family resemblance to that indefinite sort of relief for which prayer is made in equity, that the Chancellor will grant such remedy as seems to him proper and meet in the premises. The powers of the Commissioner in this respect have not come up for determination in the courts. Where cases are not appealed, it has been held in the Commis- sioner's office, on the authority of Corhett v. Matz, 72 Conn. 610, having in mind that the award is in effect a judgment, that it may be amended at least during the same term of the Superior Court.^ Further on this subject the deponent saith not until there is some more pressing occasion for speech. Ooodspeed vs. American Steel & Wire Go. (Dec. 29, 1916). Digitized by Microsoft® 974 beadbuey's woekmen's compensation law Practice under the Connecticut Compensation Act Peoceedings on Appeal One of the early questions before the Superior Court was as to whether compensation cases were to be tried de novo or not. It will be noted that in the case of some so-called appeals, from non-judicial officers or bodies, the action of the court is simply to search the record for error, while in others, as for instance, in an appeal from the municipal boards fixing the amount of assessment and damages on condemnation, there is a trial de novo. I presume it will not be doubted that the general tendency, where the tribunal is a disinter- ested one and not a mere subsidiary of one side, as in the case of a municipal board of assessment, is to examine the record only for error and not to have a second hearing on the questions of fact. Of the first cases appealed, some were entirely re-heard. The question was finally set at rest in Powers v. Hotel Bond Co., 89 Conn. 143, where it was said that there was no right of re-trial. This is in accord with what is generally accepted as sound theory, that there shall be one trial of questions of fact, with a proper oppor- tunity to test the legality of proceedings by the application on appeal of principles determined by a court. You cannot, of course, get away from the human element, and the personnel of the Commis-- sion should be such as to render the conclusion of its members rea- sonably sound and reliable on questions of fact, leaving the re- sponsibility of the ultimate determination of questions of law to the courts. It will be noted that there is ample opportunity to test the ques- tion of whether there has been a legally sound conclusion reached upon the facts or not, as the evidence is taken down stenographically and may be in a proper manner imported into the record. Impoetant that all Doubtful Cases be Reseeved foe the SuPEEME COUET On the question of appeal, I have one suggestion to make to the Bar, and a suggestion which I hope I may also, without impropriety, make to the Bench. The Superior Court is the reviewing tribunal in the case of Cominissioners' awards. The Commissioner's individ- ual judgment must therefore, under all ordinary circumstances, yield to that of the court duly expressed in one of its judgments. The duty Digitized by Microsoft® ABMINISTEATION AND PEOCEDUEE 975 Practice under the Connecticut Compensation Act of the Commissioner must be the san* in this respect as that of a trial court between whose jurisdiction and that pf the highest court is an intermediate court. On this subject it is said in Black on " Judicial Precedents " on page 303 : " Since an intermediate court of the kind here spoken of [inter- mediate appellate courts] exercises revisory jurisdiction over the lower courts of the State, it is plainly the duty of the latter to follow the rulings and decisions of the former, provided they are plainly and fully applicable to the case on trial, without attempting to dis- regard or evade them. But these decisions of the intermediate courts are still subject to reversal by the court of last resort, or to be deprived of authoritative force by the announcement of a contrary ruling. When this happens, they are of course no longer of con- trolling force in the lower courts ; but unless and until they are thus discredited by the highest court, they are to be followed implicitly." The rule is thus stated in Trimble v. Hill^ L. K. 5 App. Cas. 342, 344: " It is the judgment of the Court of Appeal, by which all the courts in England are bound, until a contrary determination has been arrived at by the House of Lords." One illustration of a consequent embarrassment will answer as well as several. Some months ago the Superior Court took the view that want of notice of injury when read in connection with the con- text of the Act did not cover a case of an entire lack of notice but meant a falling short of a notice actually given, and that hence the provision in the Act that no want of notice should necessarily be a bar to recovery did not save the man who had given no notice at all. The result of this decision was that if one had a meritorious case, but had not given notice of injury within the time then fixed, he could not recover compensation. The opinion of individual mem- bers of the commission was to the contrary. It was one of those points upon which men might well differ. It could not be mathe- matically demonstrated which view was right. All that could be said was that the court having the responsibility of reviewing the action of the Commissioners had, after careful study and thought, arrived at a result. There was nothing to do but to obey. A short time later the Supreme Court took a different view of this doubtful question. This is only one illustration of what has occurred under the Act, Digitized by Microsoft® 976 beadbtiry's woekmen's compensation law Practice under the Connecticut Compensation Act and what will repeatedly occu* In this particular instance, the final determination of the question followed so closely on its decision in the Superior Court that nothing worse than momentary uncertainty resulted. It will be noted that this difficulty has no connection whatever with the ability of individual judges of either of our higher courts. The infirmity of the decision of the Superior Court is inherent in the circumstance that it is subject to review by another tribunal and as a general rule judges differ only over difficult border line points. In Massachusetts, the action of the Superior Court is, I am ad- vised, only formal, little more than a process to get the question before the Supreme Judicial Court of that State. My own view, which I wish to impress upon the Bar, and as far as I can upon the judges also, is that there should be adopted, wherever practicable, a course of action with reference to compensation appeals, which I think is perfectly simple and perfectly workable. The liti- gant should have a right to have a judicial officer — for the Com- missioner is not technically such and, in fact, not necessarily a lawyer — pass upon the record. A large proportion of appeals are frivolous. They will, in the Superior Court, speedily reach their natural end. In a certain proportion the Commissioner, no matter how great care he may exercise, may make some simple, almost de- monstrable error. It would be strange in the volume of decisions if this were not so. Those eases should be promptly set right by the Superior Court. Whenever we get beyond these two classes, however, and reach a case where intelligent, careful and learned men might well reach different results, every effort ^ should be made to reserve such a case as a matter of course for the Supreme Court of Errors, in order that we may have for our guidance the decision of a court from which there is, under ordinary circumstances, no appeal, and whose judgments are therefore, in so far as human judgments can well be, unalterable. Probably one-third of the cases that come up would fall in this category. The embarrassment from this wealth of judicial precedent is practically confined to the Compensation Commissioners. While the judges of the Superior Court will naturally give great attention to the decisions of their colleagues, they are not expected to do so where Digitized by Microsoft® ADMINISTEj;.riON AND PKOCEDUEE 97Y Practice under the Connecticut Compensation Act the opinions expressed do not coincide with their own, a point illus- trated in Wiggin v. Federal Stock and Grain Co.^ 77 Conn. 507. The action of the Court of Common Pleas is not reviewable in the Superior Court and while its judges will naturally treat the decisions of the higher court with great respect, they have the fullest liberty of dissent. It is aside from the mark that a judge of the Superior Court is less apt to take a view which will be subsequently disapproved by the Supreme Court of Errors than is the Commissioner, who is a lay officer and supposed to know the law only in that general way that every man is presumed to know it. An error of the Commissioner affects necessarily only one-fifth of the State whereas that of the judge affects the practice throughout the State. Furthermore, a ruling of the court determines that action not only in contested matters, but, what is much more important, upon a multitude of agreements and a multitude of informal applications for advice. It may operate to change long established and consistent practice. I realize fully that in some cases the reservation of questions which might be wisely reserved is impracticable. One of the two most im- portant cases in the Supreme Court on the subject of compensation is Miller v. American Steel & Wire Company, which dealt with the question of occupational disease. That case involved only about ten dollars in money, and there being no appearance for one side, it proved practically impossible to reserve it. What I have said of course applies only to cases which can be reserved. 'Eo other non-judicial officers in the State are constantly engaged in deciding controversies between individuals. Eurthe'rmore, the Compensation Commissioners have adopted such effective means of informing themselves as to the decisions of the courts that they can rarely plead ignorance of what has been decided. I feel strongly, therefore, that they should ordinarily have for their guidance from the courts only those rules which are practically certain to remain imaltered, a result which can be readily attained if Bench and Bar will cooperate in the reservation of practically all, doubtful cases. The Memobanditm In cases of difficulty and in many cases of no special difficulty where it is rendered advisable by other considerations, the award is „ c, Digitized by Microsoft® 978 Practice under this Connecticut Compensation Act accompanied by a memorandum whicli gives an opportunity to the trier to make it clearly appear just what his grounds of decision are. However this may violate the injunction of Lord Mansfield to de- cide without giving reasons, it is the hope of the Commissioners that a statement of reasons, even if of no comfort to parties, may be of assistance to the courts on appeal, in enabling them to appreciate fully the case as it presented itself to the mind of the tribunal of first in- stance, and incidentally in lightening their labors in furnishing them with considerations deemed pertinent as well as sometimes with authorities. These memoranda are the media also of a good deal of good advice, gften rather homiletic in its form of expression, to the parties whose interests are concerned. Perhaps the average party is ignorant of the terms of the low, and many are unacquainted with our language. Whatever is said at the hearing is apt to be either misunderstood or not understood at all. The memoranda may furnish interesting household literature which will be read and possibly translated and often digested at leisure. The Relation of the Bae to the Compensation Act It is undoubtedly true that one of the moving causes of the enact- ment of the Compensation Act was the cost of proceedings for re- covering damages at common law. As the majority of cases to en- force liability for negligence were perforce taken upon a contingent basis and as the line between a good case and a desperate case was hard to draw, so that a large proportion of such cases would naturally be decided in favor of the defendant, the percentage of the amount actually recovered which went for the fees and expenses of litigation was necessarily large. In our ovsti State this probably did not in- dicate any very great return to counsel, all the contingencies con- sidered. It did, however, represent a source of economic waste. The proceedings in compensation were to be not only " speedy " but " almost costless " as said in Bayou v. Bechley, 89 Conn. 154, 169. As said in Powers v. Hotel Bond Co., 89 Conn. 143, 147, they were to be " without, as a general rule, the employment of an at- torney," a result which is certainly attained where almost all volun- tary agreements are made without professional aid, and where awards, even in closely contested cases, generally foUow proceedings con- Digitized by Microsoft® , ADMINISTRATION AND PEOCEDUEE 979 Practice under the Connecticut Compensation Act ducted hj the parties themselves. The words qouted above " as a general rule," however, have a meaning and indicate that there is a limit beyond which it will be found unwise to go in seeking to elimi- nate the lawyer. In some States the attitude of the compensation commission has been adverse to the appearance of counsel and the position has been taken that it was the duty of the Commissioners to work out the rights of the parties without their aid. In an official publication recently issued in one of our great States, one of the Commissioners is credited vdth the following statement, made at a public hearing: " The compensation law does not contemplate the entrance of attorneys representing claimants. The . . . Commission is supposed to look after and protect the injured workman ; " and in this remark the Commissioner presiding is reported to have concurred. The position taken by the Connecticut Commission has been radically different from this. It is the belief of its members that, while there is no real, serious controversy over the vast majority of claims, in fact, in most cases, no controversy at all, and that there is therefore no more need for counsel than, there is in connection with the great mass of business transactions, yet where real questions and considerable amounts are involved, the Bar can render measurably the same aid as it can in ordinary cases in court. Any policy which throws upon the Commissioner, except under exceptional circum- stances, the duty expressed by the learned Commissioner quoted, of looking after and protecting the injured workman, tends either to place the trier in a wrong position and make an advocate of him or to 'put him under an obligation \^hich he cannot perform, or both. In the good old days in the history of English criminal law, it was supposed to be the duty of the judge to look out for and protect the accused, but history fails to prove that this system was of any very substantial benefit to the supposed criminal. It is a curious argument that a. Commissioner, who is a lay officer, is able so perfectly to protect the interests of all parties concerned without the aid of advocates, while the judges of our highest courts, chosen not only for their skill in dealing with questions of fact but for their knowledge of law, are supposed to need that assistance. It is entirely true that the Commissioner moves in a narrower field and Digitized by Microsoft® 980 beadbuey's workmen's compensation law Practice under the CSonnecticut Compensation Act it may be that if the facts are developed, he can apply the law to them with reasonable accuracy, and that where he fails, the Court will set him right. It is not possible, however — and if it were, it could not be done with propriety — for him to go out intq the highways and hedges and look up the witnesses and bring them in to develop the facts before him. As a practical method of solving the difficulty of determining whether counsel shall, in a contested case, be employed or not, I have used with people unfamiliar with litigation an illustration borrowed from our daily life in matters concerning health. It is theoretically true that a slight scratch or a slight cold may develop the most serious consequences, but in any given case it is highly improbable. We therefore have recourse to our common sense and to the family medi- cine chest, calling in the physician in cases of seriousness. The same rule can be safely applied in compensation cases. Home-made treat- ment is generally all right for the small and the simple case and all that the pocket book of the injured employe ought to stand. It may be advice of the most doubtful value, however, to tell the injured person to get along without adequate professional assistance, when he has a close case dependent on evidence which he has no idea how to secure. I am apparently not alone in these views. In the very important case of Miller v. American Steel & Wire Co., 90 Conn. - ; 97 Atl. 345, which defined the law in this State on the subject of occupational diseases, the Supreme Court of Errors expresses its regret that it was obliged to decide the question without the aid of full argument at the bar on both sides. Certainly that Court was in far better position to apply the law to established facts than any Commissioner could be* to apply the law to undeveloped facts. In what I have said, however, I have had in mind the services of counsel of such a sort as to be really helpful. A lawyer who will secure the attendance, of witnesses, prepare the medical evidence and conduct his side of the hearing in the spirit of the Act is an invalu- able aid in the administration of justice. One whose presence is merely for the purpose of seeking to secure a vulnerable record, who concedes nothing but announces that he is there to stand upon his rights and who plays the game under rules imported from another and different game is an obstruction and not an aid. Digitized by Microsoft® ADMINISTRATION AND PEOCEDUEE 981 Practice under the Connecticut Compensation Act Fees of Lawyees, Physicians and Others The Act gives the Commissioner full jurisdiction over the fees of lawyers, physicians and others, in section 35, of Part B. Under this, the Commissioners have held that while they cannot take judicial notice of the niceties of the doctors' tariff of charges, they may avail themselves of that knowledge on the subject of doctors' fees as known generally throughout the community. So far as lawyers' fees are concerned, comparatively few questions have been presented and it is to the credit of the profession that it seems to be generally recognized that as the Act does not contemplate the employment of attorneys in the ordinary case, so in the less ordinary cases where they are em- ployed, their fees should be upon such a basis as is consistent with the general spirit of the Act. It has been held by a Commissioner that where a party appears without counsel, a consultation fee after the finding, in order to determine whether there is any ground to ask to have the award reopened or of appeal, is proper.^ Points of Practice Established by the Supeeme Couet That the subject of my paper may not, after all, be such a paradox, appears from the fact that a goodly proportion of the cases which have thus far reached the Supreme Court of Errors have called for at least some discussion of questions of procedure. That simplicity of procedure is the keynote appears in Bayou v. Bechley, 89 Conn. 154, 169, where it is said " The State . . . provides means, through the compensation Commissioner, for a speedy and almost costless determination of the question and amount of compensation." • That the rules as to costs apply in matters of appeal unless changed appears from the ruling in that case that the record fee on the appeal to the Supreme Court of Errors is to be paid by the applicant as in other cases. In Powers v. Hotel Bond Co., 89 Conn. 143, 147, it was held, as we have noted, that the procedure before the Commissioner con- templated a prompt and informal investigation and hearing, in which 1 di Francesco v. mew Mapen Trap Rock Co. (Dec. 26, 1916) wMapenTrapRocTc Co. (I Digitized by Microsoft® 982 beadbukt's woekmbn's compensation law Practice under the Oonnerticut Compensation Act there should be generally no necessity for the employment of counsel and that, as the Commissioner was an executive officer engaged in administrative duties, there could be no appellate jurisdiction as such in any court, the duty devolving upon the Superior Court being not that of the re-trial of the case, but a determination of whether the Commissioner's action had been illegal. An interesting point of practice was presented by the case of Schmidt v. 0. K. Baking Co., 90 Conn. 217, where it was held that the notice of injury was not a mere matter connected with procedure and remedy but an integral part of the contractual right of the party. Thompson v. Twiss, 90 Conn. 444, 446, and Blanton v. Wheeler and Howes Company, 99 Atl. 494, emphasize the point that evidence should not be made a part of the finding, the former case saying that it should not be done even on motion of a party, or even if accom- panied by a statement that the testimony is found to be true ; and a similar rule was enunciated in Hartz v. Hartford Faience Co., 90 Conn. 539, 540, this case also holding that the finding " should conform to the finding required of the Superior Court by the Eules of Court and the practice prevailing in that court." Thompson v. Twiss, 90 Conn. 444, also holds that the Superior Court, unless it corrects the finding of the Conamissioner, should not re-find the ftcts. The reason of this is obvious.. The Superior Court has not reached a conclusion of fact but has only determined the regularity of the action of the Commissioner, who is the sole judge of the facts. The court adds : " If the trial court corrects the finding it should indicate in its finding on appeal the corrections so made in the finding of the Com- missioner." The case of Blanton v. Wheeler & Howes Company, 99 Atl. 49.4, a case very recently decided by the Supreme Court of Errors, con- siders the method of getting a compensation case heard in the Su- perior Court. The appeal was taken in the usual form, and a motion was claimed for the short calendar asking that the finding and award be reversed and that the case be recommitted vnth an order directing that compensation be awarded or granting such other and further relief as might be proper. This motion was denied, the trial court suggesting that the proceeding was not quite regular and that the Digitized by Microsoft® ADMINISTRATION AND PROCEDURE 983 Practice under the Connecticut Compensation Act better practice was to conform so far as possible in tbese special matters on appeal to the recognized regular procedure. The case was afterwards claimed for the short calendar on a motion for formal judgment for the respendents. The appeal was thereupon dismissed and the award affirmed. The judge taking this latter action then made a finding based in part on what had occurred before him and in part upon agreed facts appearing in the request for a finding and request for counterfinding. As to this procedure the Supreme Court of Errors uses this lan- guage : " The motion should have been in writing. Upon appeals of this nature it is preferable that reasons of appeal and an answer thereto be filed forthwith, and if testimony is to be introduced upon the hearing that the hearing be had speedily ; if it appears that neither side will produce evidence a written motion for judgment for the short calendar should be filed and heard." This case is also au- thority for the proposition that where the State neither appears nor seeks to take an appeal, a private litigant cannot assign for error the fact that the Commissioner did not award the $750 to be paid to the State provided by the Act as originally passed but eliminated by the amendment of 1915. The Act provided that in case there is a failure to give notice of the injury (see section 21 of Part B of the original Act and section 7 of Part B of the amended Act) the amount of compensation may be cut down in case prejudice has resulted. It was held in Schmidt v. 0. K. Baking Company, 90 Conn. 217, 224, that the prejudice must be shown and that the claim can only be dismissed for prejudice where it appears that the extent of the prejudice was such as to wipe out all claim for compensation, it being for the Commissioner to weigh and consider the situation and the facts before him so as to determine the extent of the prejudice and the allowance which should be made. We may note that a typical case of such prejudice is that which results from the inability on the part of the employer, because of ignorance of the accident, to procure prompt medical aid. - It has been held in the Commissioner's office, on the authority of the case last cited, that the prejudice in question may be that which results from the inability to get evidence which might constitute a defense and that e^mS^M\i^^i6f&S8k(^ *^^* prejudice cannot be 984 Practice under the Connecticut Compensation Act estimated mathematically, the Commissioner may from a view of all the circumstances estimate and fix the proportion of the prejudice.^ FOEM OF THE MaNDATE The form of the mandate from the Supreme Court of Errors and the manner in which the case proceeds subsequently are in accord with the practice in other eases. If there is no error the judgment is simply affirmed. Coady v. Igo^ 98 Atl. 328. If there is error but the facts appear fully on the record so that all that is required is an application of the law to those facts, the thing is straightened out by a judgment of the Superior Court,- usually passed upon motion at the short calendar. Thus, in Mahoney v. Gamble-Desmond Co., 90 Conn. 255, 260, where the award of the Commissioner was sus- tained upon the merits of the case, but where it was held that on the record it appeared that a physician's fee allowed for $50 should have been $25, the case was remanded to the Superior Court for judg- ment accordingly. In this connection it may be noted that every, effort is made by the Commissioners under ordinary circumstances to find the facts so fully that in case of error this course m.ay be -practicable. The exceptions are, of course, where the whole theory of the Commissioner turns out to be wrong or where considerations of economy indicate that it is wiser to reserve questions not deemed material until something happens — if it does- happen — on appeal, which will place a different face on the matter. Where the Commissioner has rendered an award and it appears that none should have been rendered, but the facts upon which that ruling is made have been fully developed, the case is sent back to the Superior Court for dismissal. Linnane v. Aetna Brewing Co., 99 Atl. 507. Where the Commissioner has dismissed the case and the facts are not fully developed, it goes back to the Superior Court with instructions that a judgment be passed re-committing the claim to the Commissioner for further hearing. Schmidt v. 0. K. Baking Co., 90 Conn. 217. Whether that hearing is held by the same Commis- sioner or whether it goes to one of his associates, in the same way that a case in the Superior Court when re-heard goes before another judge, must of course depend upon the question whether he has par- 1 Buckley v. Winchester B. A. Co. (Sept. 29, 1916). Digitized by Microsoft® ADMINISTEATION AND PEOCEDTJKE 985 Practice under the Connecticut Compensation Act ticipated in the proceedings in such a way as to either legally or practically disqualify him from proceeding further. Delegation of Powers to other Commissioners The Act wisely provides that the Commissioner of any district may delegate his powers in any given case under proper circum- stances to his associate from another district. This power is very frequently invoked and its free exercise is very decidedly to the good of the service, not only in that it gives proper relief to one whose duties are very constant but enables him to call in one who is par- ticularly fitted to deal with a given situation, or step aside, when owing to relations with parties he feels, or others may feel, that he were better out of it. In a recent controversy between a neighbor and her cook, the writer of this paper found himself very glad to avail himself of this avenue of escape. The Practice in Compensation Cases Secures to Parties THEIR Substantial Procedural Pights Taking a bird's-eye view of the practice in compensation cases, I think we may fairly say that, mformal as it is, it nevertheless gives each litigant just about the rights, so far as procedure is concerned, that are his due. He is apprised in time — and when I say in time, I have in mind a proper continuance if necessary — of what the other side is driving at. He has an opportunity to present his evidence and to be confronted by and to cross-examine witnesses against him. The proceedings are, under all ordinary circumstances, taken down stenographically, and where this is not done, he has the same oppor- tunity to get specific points reduced to writing that litigants had in the days before the advent of that somewhat mixed blessing, the official stenographer. Under the decisions of the Supreme Court of Errors, he has every opportunity to have spread upon the record all points which may properly be made the subject of review. In all cases tried, the facts are found and he has a right to have them properly elaborated. Doubtless for certain purposes, he can 'take up the whole evidence in the same way that evidence can be taken for like purposes from the Superior Court to the Supreme Court. He gets the facts found Digitized by Microsoft® 986 beadbuet's woekmen's compensation law Practice under the Connecticut Compensation Act as a matter of course, which is more than can be said of a common- law trial. The rulings appear in black and white. He cannot get away from a decision of fact and he ought not to be able to, for, after all, that must be decided by one mind, and if the results before either Commissioner or court are not fairly satisfactory, the trouble is with the personnel of the State's officers and not with the system. In other words, he gets in an informal way substantially the same results that in ordinary proceedings are reached with much labor and much formality. Suggestions peom a ISTew Peactice to an Old Two or three thoughts arise which suggest the query whether this new system has not some suggestions for the old. Do we not place an over-emphasis upon pleadings and procedure? Cannot the dis- cretion so freely given to the Commissioner be extended with even greater safety to the judge of a higher court? Is not the method of getting the facts upon the record, by which the Commissioner, while the thing is fresh in mind, develops those facts from his own recollection better than the method at common law, where the first drafts proceed from counsel and where the judge's findings is made often not in his own language but in the language of others, at a time when he has every opportunity to have forgotten the case ? I am not without hope that the effect of the compensation practice upon the practice of law as a whole may be found in. the end to be of real benefit to the community. In conclusion, I may say that the administration of the Act leads one into daily contact with the unfortunate, the sick and the griev- ously injured. Fortunately for those who have to do with that administration, the troubles are presented so at wholesale that the individual case can make but little impression. The law has been well received by all sorts of people in our com- munity, with few dissenting notes. The Commissioner has no sheriff in attendance and none of those means of enforcing order and compelling obedience which are placed at the command of the court. In spite of all this, the administration runs on smoothly, without disorder and with the acquiescence, not only of the victor, vrhp may be supposed to be willing to acquiesce, Digitized by Microsoft® ^ ^ ' ADMINISTEATIOK AKD I^KdCEDUEE • 987 Approval of agreement but in practically all cases, of the vanquished as well. Our expe- rience has been that, after all, people who go into any tribunal are pretty apt to want only what they think is their just due and to ac- quiesce in whatever conies, if they only feel assured that there has been an honest attempt to give them a square deal. ARTICLE B — SETTLEMENTS OUT OF COURT 1. Approval of agreement. Where an application is made to record a memorandum of agree- ment and the employer applies at the same time to have the com- pensation discontinued or decreased the arbitrator should determine the extent of the incapacity of the workman, at the time of the pro- ceedings and make his decision accordingly. Smith v. Petrie (1913), (Scotch Court of Session), 6 B. W. C. C. 833. Under the British Act a proceeding relating to the objection to recording a memorandum of agreement cannot be consolidated with an original arbitration proceeding for compensation. Arniston Coal Co. V. King (1913), (Scotch Court of Session), 6 B. W. C. C. 826. Where an employer had paid compensation for a certain period and then entered into an agreement to pay a lump sum in settlement of all claims, but registration of the agreement was refused as being inadequate, it was held that the arbitrator was not justified in requir- ing the workman to hold the amount paid to him in settlement, sub- ject to an order of the court, before holding an inquiry as to the adequacy of the settlement. M'Vie v. George Taylor & Co. (1914), (Scotch Court of Session), Y B. W. C. C. 891. Under the British Act an agreement for the payment of a lump sum must be recorded even though the money has already been paid. Bex V. Registrar of the Thetford County Court (1915), 8 B. W. C. Xi. 276, Even though the workman had returned to work at the time the instrument is offered for record. Scott v. Sanquhar & Eirkconnel Collieries (1915), (Scotch Court of Session), 8 B. W. C. C. 405. An agreement as to compensation was ordered to be recorded, although it did not cover an alleged agreement as to expenses in addition to compensation mentioned in the agreement itself. M'Laughlin v. Pumpherston Oil Co. (1914), (Scotch Court of Ses- sion), 8 B. W. C. C. ^%itized by Microsoft® 988 beadbuby's Woekmen's compensation' law Approval of agreement An objection by a workman to the recording of an agreement for compensation on the ground that it was improperly obtained, may be considered by the arbitrator, under the British Act, even though the workman admits that the agreement was signed by him. Burns v. William Baird <£ Co. (1912), (Scotch Court of Session), 6 B. W. 0. C. 362. The execution of a release in full of liability for compensation by an injured employe, in consideration of a payment of a sum of money, is not binding, in the absence of the approval of the Commis- sion, under the California Act, and if there is no such approval, an application may be subsequently filed with the Comimssion and the total amount which may be due to the. applicant under the law, will be awarded, deducting therefrom any payments previously made. Barozzi v. Bertin & Lepori Co., 1 Cal. Ind. Ace. Com. (Part II), 484. An injured employe can file a claim at any time and have his rights determined by the Commission, in spite of a settlement made by an insurance carrier,\ which settlement is not approved by the Commis- sion. Pontes v. Scott's Express Co., 2 Cal. Ind. Ace. Com. 827. The amount of compensation payable is a question of law or fact which may be determined by agreement or by arbitration, under the Illinois Act. Lauruszka v. Empire Mfg. Co., Ill JST. E. 82 ; 271 111. 304. ISTo settlement, under the Illinois Act, is binding, unless it is ap- proved by the Industrial Board. Section 18 of the Act provides that neither an employe nor a beneficiary shall have power to waive any of the provisions of the Act in regard to the amount of compensation which may be payable. McClennan v. Allith Prouty Co., 1 Bull. 111. Ind. Bd. 116. Private settlements are not allowed under the Maryland Act. Lessner v. United States Fidelity & Guaranty Co., First Annual Keport State Ind. Com. of Maryland (1914-1915), 20. Compensation agreements should be made on forms provided by the Department of Labor and Industry and should be approved by the court. This applies to preliminary agreements to pay compensa- tion as long as disability lasts, as well as final agreements where the entire payment of the compensation due has been made. Bulletin No. 9, Minnesota ^m^Md^b^l^^sht® ADMINISTEATION AND PEOCEDURE 989 Signing receipts by workman Where disability does not last more than two weeks it is not neces- sary to report settlements to the Department of Labor, but the amount paid for medical expenses must be reported to the Department. Bul- letin JSTo. 9, Minnesota Dep. Labor & Ind. 8. Under the N^ebraska Act the amount of compensation is sfettled by the agreement bf the parties and when not determined by agreement is to be settled by the District Court. Pierce v. Boyer-Van Kuran Lumber & Coal Co., Nebr. ; 156 IST. W. 509. An agreement between an employer and an employe stating that the employe's wages are a certain sum, is ineffective if not approved by the Industrial Commission, and such an agreement cannot prop- erly be approved where the evidence clearly shows that the amount stated is grossly inaccurate. In re Cohen (1916), 176 App. Div. 35; 162 Supp. 424. The employer and employe submitted an agreement calling for the payment of forty weeks' compensation, for the loss of the fourth and fifth fingers of the left hand. The Commission did not approve the agreement, but made an award of seventy weeks' compensation, under the New York Act. Leiser v. General Drop Forge Co. (1916), 7 K Y. St. Dep. Eep. 467. Where an agreement for compensation specified a sum less than the Commission determined was due, under the ISTew York Act, the Com- mission did not approve the agreement, but made an award after a hearing, for a sum larger than the amount agreed upon. Budewicz v. Wendell & Evans Co., 6 K Y. St. Dep. Eep. 408. Where an employer in Ohio who has neither joined the State fund nor secured permission to carry his own risk, is made the defendant in a proceeding, because of the death of an employe, before the In- dustrial Commission, neither such employer nor his insurance car- rier can make a settlement with the dependent claimant, without the approval and consent of the Industrial Commission ; and where such a settlement has been made for a sum less than the claimant is en- titled to receive under the Compensation Act, an award will be made for the difference. In re Rosensteel, 2 Bull. Ohio Ind. Com. 22. .2. Signing receipts by workman. A workman was incapacitated by accident. His employers ten- dered full compensa^f^j^^^^^^i^fp^iga a receipt for the pay- 990 bbadbuey's woekmen's compensation law Guardian ad litem ments, to the effect that each payment involved no admission of lia- bility 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 ques- tion as to the duration of compensation, and the proceedings were competent. Freeland v. Summerlee Iron Co. (1912), 49 Sc. L. K. 841 ; 5 B. W. 0. 0. 598. It is doubtful whether an employer has a right to anything further than a mere receipt for the payment of a compensation claim. Beed V. D. Zelinsky, 1 Cal. Ind. Ace. Com. (Part II), 496. The California Commission approved a release in the form of a receipt for the entire amount of compensation d,ue, which contained a provision that in the event that the Compensation Act should be declared unconstitutional, that the amount paid should be a com- plete release from all liability by the employer to the employe. Reed V. D. Zelinsky, 1 Cal. Ind. Ace. Com. (Part II), 496. 3. Effect of agreement to pay compensation " during incapacity." 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 em- fployers 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. /. H. W els ford (g Co. (1910), 3 B. W. C. C. 233. ARTICLE O — PARTIES 1. Guardian ad litem. Under the Alberta Act the judge has power at any stage of the proceeding to appoint some one to act in the capacity as next friend of an infant. Barrie v. Diamond Coal Co. (1914), (Alberta Su- preme Court), Y B, W. C. C. 1061. Proceedings under the British 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 been for many years, an inmate of the dis- trict lunatic asylig^y^y^f^^^qiSffJPSsM® settled as between the em- ADMINISTEATION AND PEOCEDUEE 991 Guardian ad litem ployer 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 ap- portioned between A and B, on the basis of both of them being de- pendents of the deceased. It was held on appeal that as no guardian ad litem had been appointed 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. Under the California Act of 1911 where a deceased workman left a widow and a minor child, it was held that the widow was entitled to the entire compensation and a minor child was not a necessary party to the proceeding. McAvirt, v. City Electric Co., 1 Cal. Ind. Ace. Com. (Part I), 13. Under the California Act it is not necessary to appoint a guardian ad litem, for, minor children where there is a widow, the mother of the children, who is the applicant for compensation, as the compensa- tion is to be paid to the mother alone and is to be used by her for herself and minor children in such manner as she may see fit. Ken- nedy V. The Guardian Casualty and Guaranty Co. and Conner Con- tracting Co., 1 Cal. Ind. Ace. Com. (Part II), 152; LaSalle v. Whiting-Mead Commercial Co., 1 Cal. Ind. Ace. Com. (Part II), 346. Where a guardian of the persons of minor dependents had been appointed by the Superior Court, but not of their estates, it was held that the Commission should reappoint such guardian as guardian ad litem to conduct the proceedings under the California Act. Hart v. Western Bag Co., 3 Cal. Ind. Ace. Com. 85. Benefits to which he is entitled will be ordered paid to a trustee for him under the California Act, where the dependent is a minor. Mitchell V. Fairchild-Gilmore-Wilson Co. and Casualty Co. of America, 1 Cal. Ind. Ace. Com. (Part II), 71. The New Jersey Act applies to minors and they can institute pro- ceedings to compel the payment of compensation through their next friend. Hoey v. Superior Laundry Co., N. J. Law ; 88 Atl. 823. Under the New Yo^glt^whf^Mtk^Soym widow and minor chil- 992 beabbuey's woekmen's compensation law Substitution of insurance carrier for employer dren the entire compensation can be paid to the widow, even though a portion of it is payable by reason of the dependency of children. Woodcock V. Walker, 170 App. Div. 4; 155 Supp. 702. Under the Ohio Act the portion of compensation due to a minor child in the custody of his mother, will be paid to the mother for the use of the child. In re Shaffer, 1 Bull. Ohio Ind. Com. 7. In a proceeding before the Wisconsin Industrial Commission by a minor no guardian is necessary, since minors are regularly permitted to work subject to the Compensation Act and have the same power of contracting that adults have. Menominee Bay Shore Lumber Co. v. Industrial Commission of Wisconsin, Wis. ; 156 1^. W. 151. 2. Election by minors. The legislature may remove the disability of infancy and allow an infant servant to elect whether to proceed at common law or under the Workmen's Compensation Act. Herhey v. Agar Mfg. Co., 90 Misc. 457; 153 Supp. 369. 3. Petition by employer. An employer may bring a proceeding in the Court of Common Pleas, under the New Jersey Act, to have the amoimt of compensa- tion fixed. McFarland v. Central B. Co., 84 IST. J. Law 435 ; 87 Atl. 144; 4 K CCA. 592. 4. State insurance ; who must be sued. The Washington Act is neither an employers' liability nor a work- men's compensation act, but an industrial insurance law, withdraw- ing from private controversy all phases of injuries to workmen, and compensation flows from the Commission which must be sued, rather than the employer, if it rejects a claim. Stertz v. Industrial Insur- ance Commission (1916), 91 Wash. 588; 158 Pac. 256. 5. Substitution of insurance carrier for employer. The service of an imsigned notice of substitution on the employe is ineffectual to relieve the employer for liability, under the Cali- fornia Act, so as to make the insurance carrier solely liable. Frand- sen V, /. Llewellyn Co., 3 Cal. Ind. Ace. Com. 23. In the last-men- tioned case the insurance carrier had become insolvent and the em- ployer attempted tr "^^^ employ^ any right 1004 beadbuey's woekmen's compebtsation law Award on consent of defendant's attorney to compensation which might exist in his favor, in order to obviate the necessity of the emploje becoming a charge upon public or private charity if he should, by reason of his injury, continue to be unable to provide for his own support. 10. Dismissal for failure to prosecute. A proceeding was dismissed by the California Commission where, after a delay of a year from the filing of the claim, and notice to the parties, no steps were taken to proceed with the case. Hunter v. Mitchell, 2 Cal. Ind. Ace. Com. 813. 11. Court dismissing common-law action retaining case to award compensation. Under the Kansas Act where a workman has brought an action for common-law damages, but it is determined that his only remedy is under the Compensation Act, the court should not disi»iss the pro- ceeding but should retain it, and award such relief as the plaintiff may be entitled to receive under the Compensation Act. Shade v. Ash Grove Lime & Portland Cement Co., 92 Kans. 146; 139 Pac. 1193;,5]Sr. C. C. A. 763. 12. Default. An award was made on default although there was no actual evi- dence of the receipt by the defendant of the notice of hearings, but an attorney stated over the telephone that he represented the de- fendant and would not be present. Green v. Buchingham Apart- ments, 3 Cal. Ind. Ace. Com. 92. Where there has been an unreasonable delay of attorneys in prose- cuting a claim by failing to present evidence or arguments for more than six months, the Commission will render a decision on the record before it. Jackson v. Mammoth Copper Mining Co., 2 Cal. Ind. Ace. Com. 72. Where proper notice has been given to the employer and he fails to appear on the adjourned hearing an award may be made by default, under the Connecticut Act. Bourhe v. Avitable, 1 Conn. Comp. Dec. 279. 13. Award on consent of defendant's attorney. Where the attorney representing the defendant before the Com- pensation CommissioiDffipfizeBftfe^ AtoB*"o®a)/i^ard be made as for the ADMINISTIiATION AMD PIIOCEDUEE 1005 Notice of hearing loss of a hand, where it appeared that the entire little finger was re- moved and the remaining three fingers were stiffened but were not amputated, and the defendant subsequently contended that the at- torney had no right to consent to such an award, it was held that the court would not interfere with the award on appeal, even though it might be determined that the injury was not such a one as entitled the workman to an award as for the loss of the hand. Cunningham V. Buffalo Copper & Brass Boiling Mills, 171 App. Div. 955; 155 Supp. 797. 14. Right to hearings. The provisions of section 20 of the ISTew York Act that upon the application of either party the Commission shall grant a hearing, is not complied with by giving one or more hearings, when additional hearings are necessary to a proper determination of the claim. Arcangelo v. Oallo & Laguidara (1917), 177 App. Div. 31; 163 Supp. 727. 15. When hearings held. Under the Minnesota Act hearings are to be held at the time and place fixed by the judge, regardless of the time and place of holding the regular terms of court. State ex rel. Duluth Diamond Drilling Co. V. District Court of 8t. Louis County, 129, Minn. 423 ; 152 E". W. 838;9N'..C. C. A. 1119. 16. Notice of hearing. Where a principal is held liable for injuries to an employe of a subcontractor it is error to take testimony before notice is given to the principal, under the California Act. First Christian Church of Fresno v. Industrial Accident Commission (1916), Cal. ; 160 Pac. 675. " Due notice " to the other party under the ISTew Jersey statute is synonymous with reasonable notice, but there is no fixed rule as to what shall constitute " due notice." " Due notice " is a relative term and must be applied to each case in the exercise of the discretion of the court under the particular circumstances. Panacona v. Vulcanite Portland Cement Co. (Warren Common Pleas, 1914), 37 N. J. Law J 75 Digitized by Microsoft® 1006 beadbuet's workmen's compensatiow law Refusal to undergo operation The notice of hearing under the Wisconsin Act should contain a general statement of the claim and a copy of the application for com- pensation, or else it should contain a statement of the time, place and general nature of the injury claimed to have been received. Pellett V. Industrial Commission of Wisconsin, 162 Wis. 596; 156 IS, W. 956. 17. Retroactive effect of amendments. The amendment of the New Jersey Act by P. L. 1913, page 307, concerning consecutive payments for partial and permanent disabil- ity, does not apply to accidents which happened before the amendment was made. Baur v. Court of Common Pleas in and for Essex County, N. J. Law ; 95 Atl. 627 ; 11 N. C. C. A. 634. 18. Hypothetical cases. The California Commission refuses to decide hypothetical eases. Salvatore v. New England Casualty Co., 2 Cal. Ind. Ace. Com. 396 ; 11 N. C. C. A. 760. 19. Combining original proceeding with one to commute payments. Under the Illinois Act of 1911 it was held that where those en- titled to compensation as dependents filed a petition to have the pay- ments commutted to a lump sum, that the court could dispose of the entire matter in one proceeding, especially where the right to com- pensation was not denied, and that it was not necessary in such a case to resort to two proceedings, in one of which the compensation should be fixed and the other in which the question of commutation should be decided. Staley v. Illinois Central Railroad Co., 186 111. App. 593;109]Sr. E. 342. 20. Change of venue. A rehearing will not be ordered from one city to another because of unsettled labor controversies in the place where the hearing was had. Scherbroshy v. Morrison & O'Neil, 1 Cal. Ind. Ace. Com. (Part II), 401. 21. Refusal to undergo operation. The Illinois Board has held that it has no power to require an Digitized by Microsoft® ^ ADMINISTEATION AND PEOCEDtTEE lOOY Mixed question of law and fact; arising out of employment employe to undergo an operation to cure disfigurement. Korochek V. Peabody Coal Co., 1 Bull. 111. Ind. Bd. 184. 22. What amount to " recovery " of compensation. A workman was injured by the negligence of third parties. He received compensation from his employers expressly reserving his rights against the third parties. It was understood that if he suc- ceeded 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 " compensation and the action was not barred. Wright V. Lindsay (1911), 49 Sc. L. K. 210 ; 5 B. W. C. C. 531. 23. Agreement to pay compensation is not a consent to submit to arbitration. On an application to register a memorandum of agreement 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 pre- .sented to be recorded, 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 em- ployer to pay any sum which the judge under the circumstances may think just and proper. Mortimer v. Secretarb (1909), 100 L. T. 721 ; 2 B. W. C. C. 446. 24. Claim against nonassenting employer. Under the Iowa Act of 1913, where an employer has not elected to come under the Act the employe may make a claim against the em- ployer and enforce such claim before the Industrial Commission. Be SUnner v. The Stratton Fire Clay Co., 1 Bull. Ohio Ind. Com. 103. 25. Mixed question of law and fact ; arising out of employment. Whether death was the result of an accident arising out of the de- ceased's employment is a mixed question of law and fact. Schmoll Digitized by Microsoft® 1008 BiiADBUltY's WOKKMEn's COMPENSATION" LAW Pleading V. Weisbrod & Hess Brewing Co. (N. J. Supreme Ct., 1916), K J. Law ; 97 Atl. 723 ; 11 N. C. C. A. 241. 26. Attorney representing Industrial Board. The provision in the Illinois Act for an attorney representing the Industrial Board, is unconstitutional, as the Attorney General is the chief law officer of the State and the only officer empowered to repre- ■ 'sent the people in any suit or proceeding in which the State is the real party in interest, except where the constitution or a constitu- tional statute may provide otherwise. Fergus v. Bussel, 270 111. 304; HON. E. 130. 27. Stale claims. Stale claims are not looked upon with favor. Harris v. E. I. Du Pont De Nemours Powder Co., 1 Cal. Ind. Ace. Com. (Part T\. 194. 28. Pleading. Where the allegations of an accident contained in an application for an arbitration are not denied in the employer's answer, it is not necessary to offer proof of the accident. Budge v. Young & Son (1914),7B. W. C.C. 406. A statement in an answer that compensation has been paid is an admission oJ: fact and evidence that a claim has been made. Lowe V. Myers & Son (1906), 95 L. T. 35 ; 8 W. C. C. 22. Under the British Act the employer is not bound to specifically allege in his answer that a workman is a malingerer. Potts v. Ouild- ford Syndicate (1914),' 7 B. W. C. C. 675. Under the British Columbia Compensation Act 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. E. 391 ; 4 B. W. C. C. 451. Under the Arizona Act, in an action by the personal representa- tives of the deceased employe to recover for his death, a defense that the employe had elected to accept compensation is not available unless pleaded in the answer. Behringer v. Inspiration Consol. Copper Co., Ariz. ; 149 Pac. 1065. The California Commission has expressed a desire that attorneys should allege only t^0/^^^^)vfMf;^^%yipon which they expect to ADMINISTEATION AND PEOCEDUEE 1009 Pleading rely, to the end that parties may not be put to the useless expense of subpoenaing witnesses to prove or disprove allegations which are not to be in the controversy at all. The Commission has also stated that if any applicant or defendant shall overlook or fail in his application or answer to allege any claim or defense he will not thereby be barred from so doing at the hearing where good faith has been exercised. Shouler v. Jacob Oreenberg, 1 Cal. Ind. Ace. Com. (Part II), 146; 11 K C. C. A. 382. Under the California Act the Commission may consider matters brought up at the hearing, even though they are not mentioned in the pleadings. Btoll v. Ocean Shore Railroad Co., 2 Cal. Ind. Ace. Com. 102. The six months' limitation for the beginning of a proceeding under the California Act must be pleaded by the defendant as a defense. Bed River Lumber Co. v. Pillsbury (1916), Cal. ; 161 Pac. 982. Overruling Schultz v. Pacific Electric Railway Co., 2 Cal. Ind. Ace. Com. 701 ; Stoll v. Ocean Shore Railroad Co., 2 Cal. Ind. Ace. Com. 102. Demurrers are not permitted in practice before the California In- dustrial Accident Board. Mitchell v. McNab & Smith, 1 Cal. Ind. Ace. Com. (Part I), 116. The allowance of an amendment to a pleading rests with the dis- cretion of the Board and an amendment should be permitted when- ever the purposes of the Act will be forwarded by so doing. Christy V. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 35. Under the Connecticut Act no formal pleadings are required. Brewer v. Belcher, 1 Conn. Comp. Dec. 111. Under the Kansas Act, where an action is brought by the plaintiff, based on negligence, no reliance can be placed on the Compensation Act unless it appears by the pleading that the parties are subject to the provisions of the Act by having adopted the compensation prin- ciple. Spottsville V. Western States Portland Cement Co., 94 Kans. 258; 146 Pac. 356. A petition under the Kansas Act, which fails to state facts from which average earnings may be computed, is not fatal, where there is no motion to make the petition more definite and certain. Sillix v. Armour & Co. (1916), Kans. ; 160 Pac. 1021. Where a workman sues for damages, under the Maryland Act, it „ , Digitized by Microsoft® 1010 BEADBtTET's WOEKMEn's COMPENSATION LAW Pleading is not necessary to allege in the complaint that the defendant has failed to secure the payment of compensation by insurance, as it is incumbent on the employer to allege and prove that he has complied with the Act in this respect, in order to defeat the action. Solvuca V. Byan & Beilly Co. (1916), Md. ; 98 Atl. 675. On an application to review an award, where no application was made by the employer for further time to introduce testimony, it was held that the employer's rights were not prejudiced by the Board proceeding to determine the matter, even though the petition praying for a review did not demand that the Board should grant further com- pensation. Curtis V. Slater Construction Co. (1916), Mich. ; 160 ]Sr. W. 659. The petition, under the Nebraska Act, should set up the accident and character of the injury and the judgment should also plainly determine the extent and character of the injury, whether the dis- ability is total or partial and whether temporary or permanent, and should state definitely the time within which periodical payments are to be made. Hanley v. Union Stock Yards Co. (1916), Neb. ; 158 N. W. 939. The judges of the Essex Common Pleas, of New Jersey, promul- gated the following rules concerning workmen's compensation cases in February, 1914: "When the decision of a summary proceeding under the Em- ployers' Liability or Workingmen's Compensation Act is pronounced, the prevailing party shall prepare a proposed statement and deter- mination of facts setting forth, among such other matters as may be proper: (1) the nature of the proceeding, date of service of pro- cess, appearance of respondent and the hearing; (3) the terms and conditions of the employment, if any; (3) amount of wages received at the time of injury, if any; (4) a description of the accident, if any, and whether or not it arose out of and in the course of the em- ployment; (5) whether or not the employer had knowledge or notice thereof; (6) the result, whether death or iajury, or both, and as to the latter, whether permanent or temporary, or both, total or partial, or both, the nature and extent thereof; (7) incidental expenses for medical attendance or funeral expenses in connection therewith; (8) any other facts which may be proper; (9) the compensation awarded, showing in detail the number of^weeks allowed for each result of injury and the amount payable each week, and the total thereof; (10) counsel fee allowed to the legal advisor of the peti- tioner, if any, and the manner of its payment; and (11) the deter- mination as to cogJ^,|ig^(f ^j^^,^^jgf5f%jthe same within three days ADMINISTEATION AND PEOCEDTJEE 1011 Evidence upon the other parties in interest or their attorney. Any other parties to the proceeding who are not satisfied with the proposed statement and deterndnation of facts, or if it is not in accordance with the decision, or if the determination of facts is not so served within said three days, any other party, may serve upon the prevail- ing party, or his attorney, and all other parties, within three days thereafter, amendments to the proposed statement of facts, or a further proposed statement and determination of facts, with a notice of the time and place when the same will be presented to the Court for final settlement and determination." 29. Jury trial. On an appeal to the courts from an award made by the Washington Industrial Insurance Department, it was held that the employe was not entitled to a jury trial. Sinnes v. Daggett, 80 Wash. 673 ; 142 Pac. 5; UK C. C. A. 431. 30. Evidence. The statement made by a deceased employe, in the absence of his employer, as to his bodily or mental feelings, are admissible in evi- dence, 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 aris- ing out of and in the course of the employment than statements made by a deceased employe in the absence of his employer, an award can- not be sustained. Gilbey v. The Great Western Railway Co. (1910), 102 L. T. 202; 3 B. W. C. C. 135; Penn v. 8-piers & 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 meet with an acci- dent, could not be received in evidence 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 declaration against interest in such a case. Tucker v. Oldbury Urban District Council (1912), 5 B. W. C. C. 296. The admission of s^t|J5^en^j^of ^.deceas^d workman as to the cause 1012 beadbdey's woekmen's compensation law Evidence of the injury is reversible error. Smith v. Hardman & H olden (1913), 6 B. W. C. C. 719. A statement made by the deceased workman to his wife prior to his death as to the cause of the accident was held not admissible under the British Act. Beare v. Garrod (1915), 8 B. W. C. C. 474; 10 N. C. C. A. 756. Physicians' certificates are not competent evidence of the cause of an injury in a proceeding under a claim for compensation. Richards V. Sanders & Sons (1912), 5 B. W. C. C. 352. A doctor, in his certificate, under the British Act, certified that an • employe was suffering from lead poisoning, but also stated that he determined this fact from the history of the case as stated by the em- ploye, and that there were no symptoms of lead poisoning discoverable. It was held that the certificate was insufficient and compensation should be denied. Mapp v. Straher & Son, Smith Bros. (1914), 7 B. W. C. C. 18. A posthumous illegitimate child may be a dependent and statements of the father before his death are admissible on the question of paternity. Lloyd v. Powell Duffryn Steam Coal Co. (1914), 7 B. W. 0. C. 330. Under the British Act, where the County Court had refused com- pensation for an alleged injury by which a workman lost his eye, the Court of Appeal asked the County Court judge for his reasons for refusing compensation, and accepted from the County Court judge a letter in which he stated that he believed the employe lost the eye by reason of an injury which had occurred ten years before and that it was a f raudluent attempt to secure money from his employers. There was no evidence in the case which supported the reason of the County Court jiidge. Nevertheless, the Court of Appeal accepted the letter and acted thereon, on the ground that the County Court judge had the advantage of having seen the witness and observing his demeanor while giving his testimony, and compensation was refused. Marshall V. Price, Wills and Reeves (1914), 7 B. W. C. C. 385. Admissions by or on behalf of an infant cannot be relied upon and all allegations against the infant must be proved in proceedings under the British Act, as well as in ordinary judicial proceedings. Marshall Sons cfi Co. V. Princp (1914), 7 B. W. C.-C. 755. A miner who had left home in the morning; apparently perfectly Digitized by Microsoft® ^ ^^ •' ^ '' ADMINISTRATION AND PEOCEDUEE 1013 Evidence well, returned complaining of pain in his side and he was found to be suffering from a fractured rib. He subsequently died of syncope, either brought on or accelerated by the injury. The only admissible evidence of an accident consisted of a notice of accident sent to the proper quarter and the payment, two days before his death, of a sum as compensation money to his wife, who called for it. It was held that there was no evidence that the death resulted from accident aris- ing out of and in the course of the employment and compensation was denied. Barley v. Walsall Wood Colliery Co. (1915), 8 B. W. C. 0. 86. Even though there is no direct evidence that an injury to a work- man arose out of and in the course of his employment 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. K. 588; 9 W. C. C. 16; 11 K C. C. A. 509. In the case last cited the workman, a miner, returned home in his working clothes, with one finger crushed. The applicant for com- pensation 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 workman was injured on his way ' home the court would be justified on the facts stated to draw the in- ference that the workman was injured in the course of his employ- ment. 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 ibeen hurt that day ; there were marks upon his side and chest, and his leg was swollen. He died about a week afterward from pneumonia superven- ing 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. WrigM v. Kerrigan (1911), 45 Irish L. 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 Digitized by Microsoft® 1014 beadbuey's -woekmeit's compensation law Evidence evidence, though statements made, not necessarily to a doctor, bnt to any person, as to bodily injuries, are admissible." The chief officer of a steam vessel fell overboard between Y 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 complaining 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 un- explained 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 acci- dent 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 Base" (1909), 100 L. T. 739; 2 B. W. C. C. 76; aff'd (House of Lords), Marshall v. Owners of Ship " Wild Rose " (1910), 3 B. W. C. C. 514. A workman received an injury in the course of his employment, which necessitated the amputation of one of his fingers. He was piit under ansesthetics and the finger was amputated. As he was recover- ing from the effects of the anaesthetics the surgeons decided to remove a bad tooth of which the workman had complained; further anes- thetics were administered, and an unsuccessful attempt was made to remove 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 by proving Digitized by Microsoft® ADMINISTRATION AND PROCEDURE 1015 Evidence that the workman's death resulted from his injury by the accident. Charles r. Walker (1909), 25 T. L. E. 609 ; 2 B. W. C. 0. 5. An award under the California Act cannot he made on hearsay testimony as the rule against hearsay testimony is not a " technical rule " and the provision of the compensation law authorizing the Commission to disregard a technical rule of evidence does not apply. Englehretson v. Industrial Accident Commission, Cal. ; 151 Pac. 421 ; Employers' Assurance Corporation v. Industrial Accident Commission, Cal. ; 151 Pac. 423. Hearsay testimony is not admissible, under the California Act, to prove the relation of master and servant. Connolly v. Industrial Ac- cident Commission (191Q), Cal. ; 160 Pac. 239. As the California constitutional amendment authorizing the com- pensation law did not authorize the legislature to delegate to the Com- mission, as was attempted in subdivision 6 of section 75 of the Act of 1913, power to regulate and prescribe the nature and extent of the proofs in evidence, such attempted delegation is invalid. Engle- iretson v. Industrial Accident Commission, Cal. ; 151 Pac. 421. Hearsay evidence alone is not sufficient upon which to establish the facts determining dependency, under the California Act. George Andrew and Photini Athanas v. Alasha Pachers Association, 2 Cal. Ind. Ace. Com. 768. While the evidence of the employe alone may be sufficient to prove a compensation claim, if it clearly appears that the claimant lacks good faith his entire claim should be viewed with doubt and suspicion. Christy v. Standard Oil Co., 1 Cal. Ind. Ace. Com. (Part I), 35. Proof of the marriage of the claimant, as widow of a deceased work- man, was held sufficient when such proof consisted of the testimony of the claimant herself, with evidence that she had lived with the de- ceased as his wife for many years and was so regarded by him and so designated when he took out an insurance policy for her benefit, with the common knowledge that the records of the city in which the mar- riage occurred were all destroyed. Smith v. McPhee Stevedoring Co. and Pacific Surety Co., 1 Cal. Ind. Ace. Com. (Part II), 197. The California Commission admitted a written statement of a wit- ness which elaborated the oral testimony given by him on the trial, where it appeared that there was sufficient evidence to sustain the Digitized by Microsoft® 1016 Evidence findings outside of the written statement thus admitted. Markt v. National Brewing Co., 2 Cal. Ind. Ace. Com. 876. Printed reports of the United States Bureau of Mines, written by an expert, bearing on the causes and effect of carbon monoxide poison- ing, were held to be admissible in evidence though read by a witness other than said expert who was not produced. Markt v. National Brewing Co., 2 Cal. Ind. Ace. Com. 876. A voluntary payment, after a claim for injury, cannot of itself be construed as an admission on the part of the employer that an acci- dent has happened or that he was in any way liable for compensation. Augusta v. Standard Lumber Co., 1 Cal. Ind. Ace. Com. (Part I), 114. In dealing with death benefit claims on the part of nonresident dependents it is the policy of the California Commission to require at least some of the testimony as to contributions for support to be corroborated by documentary evidence of remittances. Claudio v. California Street Cable By. Co., 3 Cal. Ind. Ace. Com. 7. A fact may be proved by direct or circumstantial evidence, but when circumstantial evidence is relied upon it must be sufficiently strong to justify the Commission in drawing an inference of fact. McAvin V. City Electric Co., 1 Cal. Ind. Ace. Com. (Part I), 13. In a death case it is not indispensable that the body be found if the death is proved by circumstantial evidence. Western Grain & Sugar Products Co. v. Pillsbury (1916), Cal. ; 159 Pac, 423. An employe was found under a trestle, wet and nearly frozen and severe bruises were discovered on his back. He stated to several per- sons that he had fallen from the trestle. There were no eye witnerises to the injury. He died from Bright's disease, which the physicians testified in their opinion was caused by the injury and exposure, and it was held that the evidence was sufficient to entitle the claimant to compensation. Oale v. Petroleum Development Co. (1916), 3 Cal. Ind. Ace. Com. 363. Where the circumstantial evidence indicated that a night watch- man had been murdered and his body thrown into the water, but his body was never found, it was held that the evidence was sufficient to show that the death occurred by an accident arising out of the employ- ment and compensation was awarded. Shea v. Western Grain and Sugar Products Co., ADMINISTRATION AND PEOCEDUEE 1017 Evidence Hearsay evidence may be admitted under proper restrictions. Coady v. Igo, 1 Conn. Comp. Dec. 576. .Writt«n reports of surgeons not under oath and made out of court may be accepted under section 25 of the Connecticut Act. Mahoney V. Seymour Mfg. Co., 1 Conn. Comp. Dec. 292. Testimony of a physician as to his observations in relation to weather conditions were held to be properly admitted in a case where compensation was awarded for sunstroke or heatstroke where a brick- layer was working under unusually trying conditions. McOarva v. Hills, 1 Conn. Comp. Dec. 533. Where an employe engaged to whitewash a chicken coop had the materials prepared to perform the work, but temporarily went away on his bicycle, leaving the materials ready to work, his departurfi being unexplained, but the circumstantial evidence indicating that it was in furtherance of the work which he was about to do, and he was hit by an automobile and killed on the street, it was held thai: the evidence was sufficient to sustain the award made to the widow on the ground that the injury arose out of the employment. Del Peiore v. Booth Brothers & Hurricane Isle Granite Co., 1 Conn. Comp. Dec. 300. An award in a death case was made on hearsay and circumstantial evidence, under the Illinois Act, the Board stating that " while we are not ready to say that every character or kind of evidence, without reference to whether it tends to substantiate any fact or theory of the case, or does violence to the law concerning the same, is admissible, but we do hold that any substantive matter from which any rational or reasonable conclusion can be drawn concerning any matter at issue, should be regarded as admissible." Edwards v. American Posting Service, 1 Bull. 111. Ind. Bd. 178. Statements of a locomotive engineer to the attending physician and another as to the cause of the injury are incompetent, but statements to the attending physician relating to the part of the body injured, the suffering, symptoms and the like are admissible, under the Illinois Act. Chicago & A. B. Co. v. Industrial Board of Illinois (1916), 274 111. 336 ; 113 N. E. 629. Testimony of a deceased witness taken in some other and different proceeding than the one in which the same is sought to be introduced Digitized by Microsoft® 1018 Evidence is not admissible, under the Illinois Act. Bediger v. Pehin Wagon Co., 1 Bull. 111. Ind. Bd. 146 ; 11 N. C. C. A. 503. Under a conflict of medical testimony the Illinois Boaid'acted oh the report of a physician appointed by the Board to examine the in- jured employe. Erisan v. American Steel Foundries, 1 Bull. 111-. Ind. Bd. 156. A coroner's verdict is competent evidence in cases under the Illinois Compensation Act, and although it is not conclusive it makes out a prima facie case. Armour & Co. v. Industrial Board (1916), 273 111. 590; 113 N. E. 138. The verdict of a coroner's jury impaneled to inquire into the cause of death is proper evidence in a proceeding for compensation, under the Illinois Act of 1913, as such a proceed- ing takes the place of the ordinary action on the case for negligence in which the evidence of the proceedings before the coroner's jury was proper. Victor Chemical Works v. Industrial Board of Illinois, 274 111. 11; 113 K E. 173. It is to be doubted whether the rule stated in the last-mentioned case is one of general application, in so far as it relates to actions at law. However, under the liberal rules en- acted concerning proceedings to determine compensation claims, al- most any kind of evidence is usually admissible for what it is worth. Therefore, it would seem that the proceedings before coroners will usually be admissible in compensation cases, although they may not always be admissible in actions at law. Ex parte affidavits, depositions not in conformity with the statute or rules of the, court and transcripts of the testimony taken before coroners, are not the best evidence and are not admissible to establish any fact or question, under the Illinois Act. Bediger v. Pehin Wagon Co., 1 Bull. 111. Ind. Bd. 146 ; 11 N. C. C. A. 503. Admission pf incompetent evidence as to the manner of the injury is harmless where it does not induce an excessive verdict. Waiters v. P. E. Eroehler Mfg. Co., 187 111. App. 548 ; N. E. ' ; 8 IsT. C. C. A. 352. Under the Kansas Act evidence of the manner in which the injury was received, is ordinarily irrelevant, and testimony given in that connection, of illtreatment of the plaintiff by the foreman under whom he worked, may be prejudicial as tending to arouse feeling against the defendant in the minds of the ju^. Buth v. Witherspoon-Englar Co. (1916), 98 Kans.i3py?A6®)iMecrAQ8/?m should be remembered ADMINISTE.ATION AND PEOCEDtTKE 1019 Evidence that under the Kansas Act a claim for compensation is heard in the ordinary courts before a jury. Under the Kansas Act expert testimony of physicians is admissible to show that the employe is suffering from partial disability. Sillix V. Armour & Co. (1916), Kans. ; 160 Pac. 1021. - TJnder the Massachusetts Act and a statute of that State in regard to the declarations of deceased persons, it was held that evidence of the declaration of a driver that he was going to a watering trough to water the horses which was part of his duties, was competent where the horses ran away and the driver was killed before reaching the watering trough. Pigeon v. Employers' Liability Assurance Cor- poration, 102 N. E. 932 ; 216 Mass. 51 ; 4 JST. C. C. A. 516. The Industrial Accident Board is a court and a proceeding before it is an action, to the extent that independent statutes of the State in re- lation to declarations of deceased persons apply to such Board and the proceeding before it. Pigeon v. Employers' Liability Assurance Corporation, 102 N. E. 932 ; 216 Mass. 51 ; 4 JST. C. C. A. 516. The statements of a bank clerk that the employe made deposits and remittances to his wife, and the statements of the deceased of his in- tention to send money, were held to be competent on the question of dependency, as were also duplicate receipts for postal money orders in favor of the wife, identified by the postoffice clerk of the office of transmission, as being sent by the deceased. In re Fierro's Case, 223 Mass. 378; 111 N. E. 957. The statenlents contained in an accident report by an employer, on file with the Industrial Accident Board may be acted upon by the Board or Committee of Arbitration without being formally put in evidence. In re Carroll (1916), Mass. ; 114 N. E. 285. A death claim may be established by circumstantial evidence under the Massachusetts Act. In re Von Ette, 223 Mass. 56 ; 111 N. E. 696. An employe, who had previously suffered a stroke of paralysis, from which he had recovered, was found drowned in a vat where he had been working, on the employer's premises, under circumstances which indicated that he had suffered a temporary attack of dizziness, but without any definite explanation of the cause of his falling into the water, and it was held that the accident arose out of the employment. Harmon v. General Accident Assur. Corp. (1914), 3 Mass. Ind. Ace. Bd. 166 ; 12 N. 0. ^j^j^^a by Microsoft® 1020 beadbuey's woekmen's compensation law Evidence Where an employe met death by the burning of his clothing and it was a question whether the fire was started by a torch or lantern, which he might have been using in his work, or by a cigarette which he might have lighted, the question was resolved in favor of the acci- dent having arisen out of the employment, partly on circumstantial evidence and partly on the statements of the employe, given while in the hospital and with knowledge that he was about to die. Parker v. AmeHcan Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 392. Where it was the duty of an employe to warn stablemen of the arrival of teams by ringing a bell, and it was his habit to look out of a window to notice whether or not a team had been admitted, and after the arrival of several teams the dead body of the employe was found underneath the window from which the employe looked, but there were no witnesses to the fatality, it was held that the injury arose out of the employment and compensation was awarded. O'Brien v. Casualty Co. of America, 2 Mass. Ind. Ace. Bd. 226. If an insured desires to object to testimony admitted before the Industrial Accident Board objection must be made to such testimony when it is offered before the Board. Duprey v. Maryland Casualty Co., 219 Mass. 189 ; 106 N. E. 686 ; 11 N. C. C. A. 55. The erroneous admission of evidence which does not harm the master or the insurer, does not warrant a reversal under chapter 716 of the Laws of 1913 of Massachusetts, requiring harmless errors be disregarded. In re Von Ette, 223 Mass. 56 ; 111 E". E. 696. On hearings before the Michigan Industrial Accident Board find- ings of fact are conclusive if there is any evidence to support them, but the evidence must be such as was legally admissible and " facts cannot be evolved from the inner consciousness of that tribunal on bare supposition, guess, or conjecture, nor on rumor or incompetent evidence." Reck v. Whittlesherger, 181 Mich. 463; 148 K W. 247; 5 N. 0. C. A. 917. In the case last-mentioned the court held that a finding by the Board could not be supported by purely hearsay evi- dence. The court, on this point, said : " The rule against hearsay evidence is more than a mere artificial technicality of law. It is founded on the experience, common Imowl- edge, and common conduct of mankind. Its principles are generally understood and acted upon in any important business transaction or serious affair in lii3/9"Wg^(ftKiMfi^§<3^® refuse to rely on rumor ADMINISTRATION AND PEOCEDIIIIE 1021 Evidence ' or what some one has heard others say, and demand the information at first hand." The only evidence of an injury in this case was that relatives of the deceased testified that the deceased had told them he had received an injury to his hand, vphich subsequently resulted in blood poisoning and it was held that this was insufiicient. The finding of the body of an employe at the bottom of a stairway leading from a basement in which he had been at work, was held sufficient on which to base a finding that the death of the employe arose out of and in the course of his employment, under the Michigan Act. DeMann Y. Hydraulic Engineering Co. (1916), Mich, ; 159 ISr. W. 380. An award for a death benefit was affirmed, where there was no direct ^idence of the cause of the death of the workman and the medical testimony was conflicting as to whether he died of heart dis- ease or from other causes. Linsteadt v. Louis Sands Salt & Lumber Co., Mich. ; 157 liT. W. 64. Entry by a foreman in the employer's books of the fact that a work- man had been injured was held to be competent evidence against the employer, as an admission establishing a prima facie case, supporting the widow's contention that her husband was injured in the course of Ms employment. Fitzgerald v. Lozier Motor Co., Mich. ; 154 N. W. 67. A man was working on a side hill moving logs and timber when the man nearest him, some fifty feet away, heard an outcry, and going over to him found that he was unconscious. He regained conscious- ness about half an hour later but was unable to explain or give any cause for the accident. In fact, he had no recollection whatsoever of anything in connection therewith and could not understand how he_^was injured, although the physician who attended him found that he was suffering from a compound depressed fracture of the skull and that pieces of his hat and small pieces of rock were imbedded be- tween the bone fragments. The physician was of the opinion that he had slipped and fallen down hill, striking his head on a rock. No other explanation could be found for the cause of the injury. It was held that the evidence was sufficient to show that death was due to an Digitized by Microsoft® 1022 beadbuet's woekmen's compensatiokt law Evidence injury arising out of the employment and compensation was awarded. BacTcman v. Donlan (1915), Report of Montana Ind. Ace. Bd. 135. An award of compensation may be based on the testimony of the injured employe alone. Ferid v. John A. Boebling Sons Co. (Mercer Common Pleas, 1914), 38 N. J. Law J. 26. A letter written by an authorized agent of the master, stating that the injured servant's compensation was $11,94 per week, is sufficient evidence to justify a finding that his wages were that sum, when in addition there is evidence showing that he worked seven days a week at $1.75 a day. Couriers v. Public Service Electric Co., 1^. J. Supreme Co. (1916), ; N. J. Law ; 97 Atl. 792. While the Industrial Commission, under the New York Act, is not limited by the common law or statutory rules of evidence, or by tech- nical or formal rules of procedure, and it may, in its discretion, ac- cept any evidence which is offered, still, in the end, there nfust be a residuum of legal evidence to support the claim, before the award is made. There must be in the record some evidence of a sound, com- petent and recognizedly probative character to sustain the findings and award made, in the absence of which the findings and award must be in fairness set aside by the court. Matter of Carroll v. Enicherlocker Ice Co., 218 IST. Y. 435; 113 IST. E. 507; rev'g 169 App. Div. 450; 155 Supp. 1. In the last-mentioned case it was held that an award could not be sustained which was depen- dent, altogether on hearsay testimony, where the presumption created by section 21 of the IlsTew York statute was overcome by substantial evidence. Where a driver of a beer wagon became suddenly ill and shortly thereafter died and there was no direct evidence of any accident which he may have suffered, but he stated to several people that a keg of beer, which he was taking into a cellar, got beyond his control and struck him, and an autopsy showed the fracture of the rib or a tear- ing of it from the breastbone, it was held that the evidence was suffi- cient to support a claim for compensation in a death case, under the New York Act. Stadtmuller v. Ehret, 6 IST. Y. St. Dep. Rep. 342. A night watchman was found dead at the foot of a stairway and a lantern was found nearby. It was held that this was sufficient evi- dence of the fact that the watchman had fallen. Fogarty v. National Biscuit Co. (1916), Cli^iz¥d ^.m&psmp 415. ADMINISTEATION AND PItOCEDUEE 1023 4f — • Evidence A floatman employed on barges by a terminal company, was last seen in the performance of his duties in the nighttime and subse- quently he disappeared and his body was found in the water, drowned. There was evidence to show that he had been performing his duties within a brief time prior to his disappearance and it was held that the evidence was sufficient to warrant the Industrial Commission in reach- ing the conclusion that his death was due to an accident arising out of the employment, Tirre v. Bush Terminal Co., 172 App. Div. 386 ; 158 Supp. 883 ; aff'g 9 K Y. St. Dep. Eep, 296 ; 12 N. C. 0. A. 64. A night watchman and night elevator man was found at about 11.30 by a policeman lying in the hallway of the building in a help- less condition. He was removed to the hospital where he was found to be suffering from a probable fracture of the skull and lascerated wound over the right eye. The man died without regaining con- sciousness. No evidence was produced to show the cause of the death and compensation was refused on the ground of lack of proof that the injury occurred in the course of the employment. Fitzsimmons v. WadswoHK 6 N. Y. St. Dep. Eep. 351. A night watchman had punched the register clock at 11.40 p. m. The next thing known of him was that in the morning he was found behind a boiler in the plant. He told the superintendent that he was cold. He told one or two people that he fell ; no mark or bruise was found on the body. The man was intoxicated when found. The next day he suddenly collapsed and died. On the testimony it was found that there was not sufficient evidence to show an accidental injury and compensation was refused. Butler v. Sheffield Farms, 6 iN". Y. St. Dep. Eep. 368. The marriage status must be judged by the law, of the place where the marriage is alleged to have taken place, and where it is claimed that the relation of husband and wife was created by a common-law marriage, it must be shown that a common-law marriage was valid in the place where such contract is alleged to have been made. Ange- lucci V. H. 8. Kerbaugh, Inc. (1916), 9 N. Y. St. Dep. Eep. 387. An admission contained in a report of an accident by an employer may be received in evidence on a proceeding for compensation and this admission is equally good as against the employer and the insurance carrier. Moss v. Ames Iron WorTcs (1916), 8 N. Y. St. Dep. Eep. 464, Digitized by Microsoft® 1024 bkadbtjey's woekmen's compeitsation law Evidence ' The report of the employer as to the injury of an employe is not conclusive as to the wages where it appears that it is incorrect. In re Cohen (1916), 1Y6 App. Div. 35; 162 Supp. 424. Where an employe was found dead under conditions^ which seemed to indicate that he met with a fall, but there were no witnesses nor any direct evidence of the cause of death, it was held that the circum- stantial evidence was sufficient to warrant the finding that the death arose in the course of the employment, and compensation was awarded. In re Schatz, 1 Bull. Ohio Ind. Com. 60. Where an employe was found unconscious and fatally injured in a barn, his ribs being broken and his breast crushed, horses and cows being kept in the barn, but there were no witnesses to the accident, it was held that the circumstantial evidence was sufficient to estab- lish the fact that he was killed in the course of the employment. White V. Scioto Land Co., 1 Bull. Ohio Ind. Com. 114. A compensation claim cannot be based solely on hearsay testimony, under the Pennsylvania Act. Instructions to Referees by Hon. Harry A. Mackey, Chairman of the Pa. Workmen's Compensation Bd., Nov. 23, 1916 (unreported). Where an employe, who was in perfect health up to the time of his accident, appeared before the witness sucking his thtunb, it was held that evidence of the employe's statement that he had pricked his finger while cleaning cuspidors was admissible as part of the res gestae. First National Bank of Milwaukee v. Industrial Commission of Wisconsin, 161 Wis. 526; 154 N. W. 84Y. Where a night watchman and cleaner was found dead with injuries on the back of his head and other bruises, indicating that he had possibly fallen through an opening in the fioor, but there was no direct evidence of this, it was held that the inference drawn by the Industrial Commission that the workman had met with an accidental injury arising out of and in the course of his employment was sup- ported by the evidence and should not be reversed on appeal. Heile- man Brewing Co. v. Shaw, 161 Wis. 443 ; 154 IST. W. 631. Findings of the Wisconsin Industrial Commission, if having any basis in evidence, will not be disturbed on appeal, even though there has been an admission of incompetent evidence, where there is any competent evidence to support the award, as the Industrial Commis- sion is an ^dm.ini3tva.tis^klim^t^S/lhrosi)iMd to the same strict rule ADMINISTJiATIOS AND PKOCEDUBE 1025 Stipulations as to fact ; when disregarded with respect to the admission of evidence as courts at law. First Na- tional Bank of Milwaukee v. Industrial Commission of Wisconsin, 161 Wis. 526 ; 154 N. W. 847. Where the Industrial Commission stated in its decision that it had given consideration to various compensation acts in this and other countries and had considered various legislative and administrative rules with reference to compensation cases, but did not state what specific compensation acts were considered or what propositions they contained, it was held that the parties to the proceeding were entitled to know what statutes and rules were relied upon to the end that they might present evidence to the contrary and that therefore these mat- ters were improperly considered as the record stood. International Harvester Co. v. Industrial Commission of Wisconsin^ 157 Wis. 167 ; 147 K W. 53 ; 5 N. C. C. A. 822. A statistical report issued by the Industrial Commission of Wis- consin was held to be properly received in evidence. International Harvester Co. v. Industrial Commission of Wisconsin, 157 Wis. 167 ; 147 ISr. W. 53 ; 5 K 0. C. A. 822. The report of an employer of an injury received by one of his em- ployes is prima facie evidence of the facts therein stated, but these statements may be rebutted by evidence offered by the employer under the Wisconsin Act. First National Bank of Milwaukee v. Indus- trial Commission of Wisconsin, 161 Wis. 526 ; 154 N. W. 847. The facts in fatal cases may be given to the Wisconsin Commission by the stipulation of the parties. The stipulation should set forth the facts that the deceased came to hiS death while performing ser- vices growing out of and incidental to his employment, his wage at the time of the accident, the name of the dependent, and all material facts. It should include a request to the commission to make an award based upon such facts and should be signed by both parties. Third Annual Keport (1914), Wis. Ind. Com., p. 12. 31. Stipulations as to fact; whtn disregarded. While stipulations may bind the parties, the California Commis- sion, in all proceedings in which evidence is introduced, will make the facts and not the stipulations the determining factor, where it appears that the stipulations were entered into under a misappre- hension. Turner v. City of Santa Cruz, 2 Cal. Ind. Ace. Com. 917. „ ^ Digitized by Microsoft® 1026 Adjournmeut to secure further evidence i The Commission is not bound to accept a stipulation as to the facts, but may make an independent inquiry. Frankfort Gen. Ins. Co. v. Pillsbury (1916), Cal. ; 159 Pac. 150. 32. Abolition of common law and statutory rules of evidence and procedure. The provisions of the New York Act abolishing common law and statutory rules of evidence and procedure are valid. McQueeney v. Sutphen & Hyer, 167 App. Div, 528; 153 Supp. 554. While the courts will recognize the rules adopted by the Industrial Commission, under the Washington Act, it will not be bound by any such rule where it conflicts with the statute. Zappala v. Industrial Insurance Commission, 82 Wash. 314; 144 Pac. 54; L. K, A. 1916 A, 295. 33. Depositions. Under the Alberta Act a District Court judge has power, when acting as an arbitrator, to issue a commission to take the evidence of witnesses so that the same may be used before him as part of the evi- dence upon which to base his award. Bodner v. West Canadian Col- lieries (1912), (Alberta Supreme Court), 7 B. W. C. C. 1022. The Illinois Industrial Board has power to issue a commission. Cardinale v. Valencano, 1 Bull. 111. Ind. Bd. 114. A deposition taken in a foi*eign country without notice to the em- ployer is inadmissible in evidence. Lohuzek v. American Car and Foundry Co., Mich. f 161 N. W. 139. 34. Letters rogatory. Letters rogatory cannot be issued under the Massachusetts Act to take testimony in a foreign country in relation to a proceeding periu- ing before the Industrial Accident Board. Matter of Martinelli: 219 Mass. 58 ; 106 K E. 557. 35. Adjournment to secure further evidence. It is the duty of a deputy commissioner in charge of a hearing, u-iider the ISTew York Act, to do justice between the parties and an award should not be made on flimsy evidence, where it appears that by adjournment sufl^^k^^^g^^ej^^l^^jgiatter in controversy could ADMINISTEATION AND PEOCEDUEE 102Y Judicial Notice be secured. Tirre v. Bush Terminal Co., 172 App. Div. 386; 158 Supp. 883. 36. Taking testimony at scene of accident. Where there was conflicting testimony as to whether an injury was the result of a fight or of an accident which happened to the em- ploye, and the witnesses were on dredges in Boston Harbor, the arbi- tration committee, at the expense of the insurance carrier, went on a tug to the places where the witnesses were to be found and from the testimony thus taken it was determined that the injury was due to the accident and not to the fight and compensation was awarded. Nelson v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 140. Under the New Jersey Act it has become usual for the court and counsel to visit the scene of the accident to better ascertain the cause thereof. Smith v. Crescent Belting & Baching Co. (Mercer Com- mon Pleas, 1914), 37 N. J. Law J. 292. 37. Order of proof. Where a proceeding was brought by the employer to modify an award, on the ground that the employe had recovered from the injury, but the employer was not ready with the witnesses and the employe had a physician present to testify as an expert, it was held that the usual order of proof could be disregarded and the testimony of the expert could be taken. Flannery v. O'Brien, 1 Conn. Comp. Dec. 264. The order of proof is of little consequence in a proceeding before the Wisconsin Industrial Commission. Pellett v. Industrial Com- mission of Wisconsin, 162 Wis. 596 ; 156 K W. 956. 38. Judicial notice. On a motion to commute payments to a lump sum the County Court judge is not permitted to act on his own knowledge as to the labor market, in fixing the amount of the lump sum payment. Calico Printers' Association v. Booth (No. 2), (1913), 6 B. W. C. C. 556. Where an employe had recovered from the effects of the injijry, the Commissioner took judicial notice of the fact that there would be several weeks of convalescence during which the employe would Digitized by Microsoft® 1028 beadbuet's woekmen's compensation law Medical referee not be able to earn full wages and graded the compensation during that period accordingly. Field v. The New York, New Haven and Hartford Bd., 1 Conn. Comp. Dec. 199. Where a workman received a certain amount for his services in addition to board and there was no specific evidence as to the value of the board the Commissioner held that he could take judicial notice of the value of said board from the statements as to the nature of the board and what was furnished and the appearance of the parties with whom the workman boarded. Wallack v. Sorensen, 1 Conn. Comp. Dec. 197. 39. Medical referee. A reference to a medical referee under the British Act is author- ized only after there is a conflict in the medical testimony already given. Peill & Sons v. Payne (1915), 8 B. W. C. C. 111. Where on a proceeding to review the matter is referred to a medi- cal referee, by consent, as to the -question of the fitness of the employe to do his former work, the medical referee's report is conclusive on the parties, under the British Act. Gray v. Shotts Iron Co. (1912), 6 B. W. C. 0. 287. Where a claim is made for disability due to lead poisoning and a certifying surgeon gives a certificate as to one date, from which decision the workman appeals, and a medical referee is appointed, who specifies another date as the ending of the disability, the date fixed by the medical referee is binding. Chuter v. Ford & Sons (1915), 8 B. W. C. C. 160. A physician who had given an opinion that a workman had re- covered from an attack of lead poisoning should not be appointed to sit with the county judge as a medical assessor. Wallis v. Andrew O. Soutter & Co. (1915), 8 B. W. C. C. 130. The report of the medical referee is final as to the employe's physical condition and fitness for work, but not as to the question of his wage earning capacity. Wemyss Coal Co. v. Cruden (1913), 6 B. W. C. 0. 393. In certain cases reliance must be placed upon the evidence of physicians as to the existence of disability. Where the opinion of physicians is that the disability is not sufficient to prevent the injured employe from resumii^ jl^^mp^gg^lii/f^e Commission will be ADMINISTEATION AND PEOCEDUEE 1029 Presumption guided by it. Batchelder v. Ereis, 1 Cal. Ind. Ace. Com. (Part II), 63. Where there is a conflict in the medical testimony offered by each side to a controversy the Commission will accept the view of a dis- interested expert to whom the matter is referred by the Commission. Lohrke v. Benicia Iron Works, 1 Cal. Ind. Ace. Com. (Part II), 261. Where there was a conflict of evidence as to whether or not the disability of an employe was due to varicose veins, the Commission accepted the opinion of a medical referee, appointed by the Com- mission, that the man did not have varicose veins and that his dis- ability was due entirely to the injury, and awarded compensation. O'Neal V. Palmer & McBryde, 2 Cal. Ind. Ace. Com. 736. Notwithstanding the parties have stipulated that the conclusions of the medical referee appointed by themselves shall fix the extent of disability, the Commission under section 24 of the California Act, has the power, with or without notice, to direct an examination by another physician and to base an award on his report. Leyman v. Amalgamated Oil Co., 2 Cal. Ind. Ace. Com. 223. The Board will act on the report of an impartial medical referee and award compensation in spite of a report by the insurance carrier's physician that disability has ceased. Welcome v. Aetna Life Ins. Co., 1 Mass. Ind. Ace. Bd. 76. 40. Presumption. The presumption, as provided in section 21 of the New York law, that the claim is within the provisions of the Act, does not create a presumption to support a finding of the Industrial Commission based on medical reports that claimant who suffered injuries resulting in loss of portions of fingers of a hand, had lost the use of the hand, where there was no evidence thereof. Kanzar v. Acorn Mfg. Co. (1916), 219 ISr. Y. 326; 114 K E. 398. A workman employed as a porter, elevator and handy man by a corporation engaged in the business of drugs and chemical supplies, while engaged in building a shelf near an elevator well and while reaching into the elevator well to obtain a board, fell down the ele- vator shaft and was killed. It was held in the absence of substantial evidence to the contrary that the Compensation Commission was entitled to assume, under section 21 of the New York Act, that the Digitized by Microsoft® 1030 beadbuet's woekmen's compensation law Presumption employer was engaged in the hazardous employment of manufactur- ing drugs and chemicals, as defined in Group 28 of the JSTew York Act, and the employe having been killed while engaged in work fairly incidental to the prosecution of the business and appropriate in carrying it forward and providing for its needs, an award of com- pensation was properly made. Matter of Larsen v. Paine Drug Co., 218 K Y. 252; 112 K E. 125; aff'g 169 App. Div. 838; 155 Supp. 759. The State Industrial Commission is not authorized by section 21, or other parts of the New York Act, to make an award of compensa- tion, in the absence of some evidence that the employe was injured in consequence of something that had relation to the employer's work, since the presumptions of section 21 do not relieve a claimant from producing evidence that the injuries arose in the course of the em- ployment. Collins V. BrooTclyn Union Gas Co., 171 App. Div. 381 ; 156 Supp. 957. Where the defendant does not offer any testimony, the presump- tion that an injury arose out of the employment, under section 21 of the New York Act, is operative, even though the evidience is meagre in relation to the circumstances concerning the accident. Powley v. Vivian & Co., 169 App. Div. 170; 154 Supp. 426; 10 N. C. C. A. 835. Where the employer is engaged in one of the hazardous employ- ments and the employ^ is working for him in that employment, the presiunption raised by section 21 pi the New York Act, is sufficient to uphold an award of compensation in the absence of evidence show- ing the exact occupation of the employe. McQueeney v. Sutphen & Hyer, 167 App. Div. 528; 153 Supp. 554. The presumption under section 21 of the New York Law, that in any proceeding for compensation the claim comes within the pro- visions of the Act, may be rebutted, and where an employe who lived on a dredge, went ashore for purposes of his own, became intoxicated and on returning fell off a dock, which dock was not owned by the master, before a small boat came to take him to the dredge, it was held that the accident did not arise out of the employment and com- pensation was refused. Berg v. Oreat Lakes Dredge and Dock Co., 173 App. Div. 82 ; 158 Supp. 718. Where a workman •€^iMS^pyM.M^fl^rik and although he re- ADMINISTEATIOlSr AND PEOOEDUEE 1031 Presumption against suicide mained at work a day or two thereafter, nevertheless complained of pains and a paralyzed arm, and died a few days later, the cause of death in the hospital being stated as delirium tremens and acute alcoholism, but it appeared from the medical testimony that the in- jury which he received might have been a cause for the death, it was held that the presumption under the New York Act arising in favor of the award was sufficient to sustain it. Sullivan v. Industrial En- gineering Co., 173 App. Div. 65 ; 158 Supp. 970. The unexplained absence of the testimony of an attending physi- cian is not such substantial evidence as is sufficient to overcome the statutory presumption in favor of an award under the New York Act. Sullivan v. Industrial Engineering Co., 173 App. Div. 65; 158 Supp. 970. A night watchman in a furniture plant was allowed to recover under the presumption created by section 21 of the Act where there was no evidence in the case that the plant was not in operation, the court holding that the burden was on the employer to show that the plant was not in operation in order to relieve the employer of lia- bility. Kohyra v. Adams (1916), 176 App. Div. 43 ; 162 Supp. 269. A workman in an oil refinery went into the locker room where his street clothes were kept and emerged a few moments later with his shirt on fire as the result of which he received burns causing his death. It was not known whether the shirt caught fire from lighting a match in an attempt to smoke, which was not forbidden, or from a burner which was in the locker room, or from some other cause, and as there was no substantial proof to overthrow the presumption created by section 21 of the Act compensation was awarded. Chludzinski v. Standard Oil Co. (1916), 176 App. Div. 87; 162 Supp. 225. 41. Presumption against suicide. Where an employe fell into a river and was drowned, it was held that the presumption against suicide required proof to overcome it, and this not being furnished an award of compensation because of the death of the employe in this manner was sustained. Milwaukee . Western Fuel Co. v. Industrial Commission of Wisconsin, 159 Wis. 635 ; 150 N. W. 998 ; 12 N. C. C. A. 76. In a death case under the Massachusetts Act there is a presumption Digitized by Microsoft® 1032 Drawing inferences from unexplained injuries against suicide by an employe. In re Von Ette, 228 Mass. 56; 111 jSr. E. 696. Where an elevator operator in a stable had been afflicted with a loathsome disease, and was melancholy, and had taken the elevator to the top floor and upon a call from below had not responded, upon which somebody below turned the electric switch and brought the elevator down, upon which was found the body of the employe, dead, hil skull apparently having been crushed by projecting over the side of the elevator, it was held that the evidence was insufficient to over- come the presumption, under the E^ew York Act, that the injury arose out of the employment, where the insurance carrier contended that the death was due to suicide. Ignatowsky v. Berman, 6 N. Y. St. Dep. Kep. 326. 42. 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, dis- appeared. It was the custom for firemen to come tip on deck for fresh air and this man was seen to come on the deck for water shortly be- fore he was last seen in the stokehole. The inference that the acci- dent 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 falling 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 support 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 dis- appeared, leaving his working clothes lying at the side of his bunk. The tug was to commence towing at Y 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 J'/j^^le^F/V^rosc^^^*^ ^^^'^ moored on the ADMINISTEATION AND PBOCEDUEE 1033 Drawing inferences from unexplained injuries morning in question. The examining physician testified that the man's death was due to drowning. 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 acci- dentally fallen overboard and been drowned, and that the accident arose out of and in the course of the man's employment. Mackinnon V. Miller (1909), 46 Scotch L. E. 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 between 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 sta- tion, 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 employ- ment. 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 in- stance, on the applicant to furnish evidence from which an inference in the applicant's favor can be legitimately drawn." A train of three cars pusned 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 woiild shortly have had to alight to shift some points (switches), and that it was much easier to alight from the front than from the rear train, the former having steps while the latter had none. From this the County Court judge drew the inference that the attempt was made in ordii: to alight more easily, and therefore held that the accident arose oiit of the employmnt. It was held on appeal tlg,fefegW^-c96>M#^Se was entitled to draw 1034 Burden of proof generally this inference. Astley v. B. Evans & Co. (1911), 104 L. T. 373; 4 B, W. 0. C. 209 ; affirmed by the House of Lords, B. Evans & Co. V. Astley (1911), 4 B. W. C. C. 319. While a ship was on the high seas the cook fell overboard and was drowned. The weather was perfectly calm at the time. It was daylight and the ship was steady. There was no evidence to show how the deceased had fallen overboard. It was held that the de- pendent had failed to discharge the onus upon her of proving that the accidtot arose out of and in the course of the employment of the deceased, there being no justification for inferring that the accident arose out of the employment because it was admitted that it hap- pened in the course of the employment. Bender v. Owners of Steam- skip " Zent " (1909), 100 L. T. 639 ; 2 B. W. C. C. 2.2. In the last- mentioned case one of the judges stated by way of dictum that if, on a stormy night, one of the watches of the ship was missing, the infer- ence to be drawn would be that the most natural cause of the accident was the increased danger to which the seaman was subjected in the course of his employment, and that therefore the accident arose out of his employment. Where a workman, six minutes after he had been talking with another workman, was found drowned, but there was no evidence as to how he fell into the water, it was held that the claimant had not sustained the burden of showing that the accident arose out of the employment and compensation was denied. Bines v. L. Gueret (1913), 6 B. W. C. C. 120. 43. Burden of proof generally. The burden of proof rests on a claimant for compensation to show that the workman met with an accident arising out of and in the course of the employment, the nature and extent of the injury and the loss of earning capacity. Morgan v. Cynon Colliery Co. (1915), 8 B. W. C. C. 499 ; Boofh v. Leeds &■ Liverpool Canal Co. (1914), 7 B. W. C. C. 434; Trigg v. Vauxhall Motors (1914), 7 B. W. 0. C. 462 ; Be William E. Dray, Op. Sol. Dep. L., p. 540 ; McAvin v. City Electric Co., 1 Gal. Ind. Ace. Com. (Part I), 13; Christ v. Pacific Telephone and Telegraph Co., 1 Cal. Ind. Ace. Com. (Part I), 26; Oiandini v. General Construction Co., 1 Cal. Ind. Ace. Com. (Part I), 76; Miller v. CalifgjrffitkS(^eby4msr(imilltBallast Co., 1 Cal. Ind. ADMINISTEATION AKD PROCEDUEE 1035 Burden of proof generally Acc. Com. (Part I), 154; Denker v. Pacific Stevedoring and Ballast- ing Co., 1 Cal. Ind. Acc. Com. (Part II), 14; Spencer v. Dowd, 1 Cal. Ind. Acc. Com. (Part II), 46; Murphy v. Casualty Co. of America and Cudahy Packing Co., 1 Cal. Ind. Acc. Com. (Part II), 54 ; Armiger v. Townsend-Davis Baking Co., 1 Cal. Ind. Acc. Com. (Part II), 55; Wallace v. The Regents of the University of Cali- fornia, 1 Cal. Ind. Acc. Com. (Part II), 97 ; Andreini v. Cudahy Packing Co. and Casualty Co. of America, 1 Cal. Ind. Acc. Com. (Part II), 157; Toney v. Thomas H. Williams, 1 Cal. Ind. Acc. Com. (Part II), 348; Morse v. Waterhury Clock Co., 1 Conn. Comp. Dec. 138; Chicago & A. B. Co. v. Industrial Board of III. (1916), 274 111. 336 ; 113 IST. E. 629 ; Armour & Co. v. Industrial Board (1916), 273 111. 590 ; 113 K E. 138 ; Dragovich v. Iroquois Iron Co., 269 ni. 478 ; 109 N. E. 999 ; 10 K C. C. A. 475 ; In re Sanderson (1916), Mass. ; 113 K. E. 355 ; In re Von Ette, '2,'2,'i Mass. 56 ; 111 N. E. 696 ; In re Sponatski (Re Standard Accident Ins. Co.), 220 Mass. 526 ; 108 IST. E. 466 ; 8 N. C. C. A. 1025 ; In re King, 220 Mass. 290 ; 107 N. E. 959 ; 11 IST. C. C. A. 368 ; In re Sponatski, 220 Mass. 526; 108 E". E. 466; 8 N. C. C. A. 1025; L. E. A. (1916) A, 333 ; Hills v. Blair, 182 Mich. 20 ; 148 N. W. 243 ; 7 N. C. C. A. 409 ; McCoy V. Michigan Screw Co., 180 Mich. 454 ; 147 N. W. 572 ; '5 ]Sr. C. C. A. 455; L. K. A. (1916) A, 323n; Cramer v. Lanterman (Morris Common Pleas, 1914), 37 N. J. Law J. 169; Bryant v. Fissell, 84 K J. Law 72 ; 86 Atl. 458 ; 3 K C. C. A. 585 ; Phillip v. Hamburg-American S. 8. Co. (Hudson Common Pleas, 1914), 37 K J. Law J. 167 ; Corral v. William H. Hamlyn & Son, E. I. ; 94 Atl. 877. While the burden of proof rests upon the applicant to establish the fact of injury, yet the law does not require demonstration ; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. Moral cer- tainty only is required, or that degree of proof which produces con- viction in an unprejudiced mind. Smith v. Munger Laundry Co., 1 Cal. Ind. Acc. Com. (Part I), 168. In Booth V. Leeds & Liverpool Canal Co. (1914), 7 B. W. C. C. 434, a bargeman went ashore at night and was expected to return during the evening. The next morning his body was found in the water under drcum^^^^^^^^^f^^ He had attempted to get 1036 bhadbuky's workmen's compensation law Burden of proof generally on board the barge and had fallen into the water, but there was no proof of this and the manner in which he came to his death was mere conjecture. It was held that this was insufficient to sustain a claim by a dependent. An employe had contracted lead poisoning while working for a previous einployer a number of years prior to his last employment. He worked for the present defendant two periods of four and one-half days each, the last of which was on April 19th. He died on May 15th, his death being due immediately to pneumonia, but the lead poisoning had so seriously affected his heart that his death was in fact caused by lead poisoning. The British Act provides that there shall be a presumption that the lead poisoning was caused in the em- ployment in which the employe was working " at or immediately be- fore " the time of his death. It was held that the time between April 19th and May 15th was not " at or immediately before" the time of the employe's death and the employe and his dependents had the burden of proving that the workman contracted the lead poisoning while in the employ of those for whom he worked on April 19th, and not having satisfied this burden compensation was denied. Dean v. BuUan Art Pottery Co. (1914), 7 B. W. C. C. 209. Where a workman died four years after an accident and two physicians attributed the death to the accident and two to other causes, a decision of the court below that death did not result from the injury was affirmed on appeal. Taylorsen v. Framwellgate Coal & Coke Co. (1913),6B. W. C. C. 56. A collier died of apoplexy during work hours in a mine. The ma- jority of the doctors said that his arteries were in a very diseased con- dition, and that apoplexy might have come upon him when asleep in bed, or when walking about, or when overexerting himself. There was no evidence that the apoplexy came upon him when he was in- curring 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, the applicants for compensation had not discharged the onus of prov- ing it, which was upon them. Barnabas v. Bersham Colliery Co. (1910), 102 L. T. E. 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 w^'Mt?^ ^'WM'S^S^^nd as this burden had noi ADMINISTRATION AND PEOCEDUKE 1037 Burden of proof generally been sustained compensation was refused. Thackway v. Connelly and Sons (1909), 3 B. W. C. 0. 37; 11 N. C. C. A. 183. Testimony of medical experts that the rupture of a blood vessel was caused by the lifting of a heavy weight and although those testify- ing had no personal knowledge of any precisely similar case was held to be sufficient upon which to base an award, under the California Act. Greenherg v. New Leather Goods Co. (1916), 3 Cal. Ind. Ace. Com. 328. When circumstances point to the murder of a night watchman it is not incumbent on the claimant to prove that the conflict was not brought on by the night watchman. Western Grain and Sugar Products Co. V. Pillshury (1916), Cal. ; 159 Pac. 423. Where there was one witness in favor of the applicant and six opposed to him, and the testimony of the one witness for the applicant was not reasonably probable, it was held that the applicant had not sustained the burden of proof and compensation was denied. Badley V. Nephew, 2 Cal. Ind. Ace. Com. 98. An employe suffered an accident by having the great toe injured to such an extent that it was necessary to amputate it. Some weeks after the employe was discharged by the physician he was afflicted with a series of boils and still later he died from meningitis, due, presumably, to infection from the boils. It was held, however, that the dependents had not sustained the burden of proof of showing that the meningitis was due to the injury and compensation was refused. Stephens v. Clarlc, 2 Cal. Ind. Ace. Com. 178 ; 11 K C. C. A. 715. The decision as to whether or not a hernia was an old one will be resolved in accordance with the testimony of the physician who per- forms an operation to cure the same, where there is a conflict as to what occurred when the accident happened. Kavas v. Northern Electric Railroad Co., 2 Cal. Ind. Ace. Com. 221. Where there is expert medical testimony called on behalf of one party only the Commission is not bound to find the facts according to the expert information but may determine them contrary to such information. Snyder v. Pacific Tent & Awning Co., 3 Cal. Ind. Ace. Com. 1. Where, upon conflicting testimony of the physicians em- ployed by both sides, expert and unprejudiced medical advice corrobo- rates the probabilities of the employe's testimony, this warrants a decision in favor of granting compensation. Whitsell v. /. M. Mont- Digitized by Microsoft® 1038 beadbuey's woekmen's compensation law Burden of proof generally gomery, 1 Cal. Ind. Ace. Com. (Part II), 572; Spencer V. Gibson, 1 Cal. Ind. Ace. Com. (Part II), 565. Where there was conflicting medical testimony as to whether an employe died of blood poisoning following an injury or of heart dis- ease the Commission found that irrespective of the heart disease the septicemia was sufficient to cause the death and compensation was awarded. Berndt v. California Wine Ass'n, 3 Cal. Ind. Ace. Com. 103. Where an employe died from streptococcio pneumonia, but there was no evidence of an injury at a time sufficiently preceding the de- velopments of the disease to indicate that it had had its origin in an accident which happened in the course of the employment, it was held that the dependent applicant had not sustained the burden of proof of showing that the death was due to an accidental injury arising in the course of the employment and compensation was refused. Lucien v. Judson Manufacturing Co., 1 Cal. Ind. Ace. Com. (Part II), 59. The testimony of the claimant alone as to how an accident hap- pened is sufficient where there are corroborating circumstances, to sustain an award, under the California Act. Cledou v. Hof Brau Cafe (1916), 3 Cal. Ind. Ace. Com. 233 ; Pattberg v. Young & Swain Baking Co., 2 Cal. Ind. Ace. Com. 878 ; Jenkins v. Pieratt, 1 Cal. Ind. Ace. Com. (Part II), 114. The burden of proof resting on the employe is not sustained by testimony that while handling tacks he felt some injury to his finger and the finger subsequently swelled up and he thought he must have gotten a piece of steel in the finger, where upon closer examination nothing was foimd. Seiberlich v. Buckingham & Hecht, 1 Cal. Ind. Ace. Com. (Part II), 372. In death cases the burden of proof which ordinarily rests upon the applicant in order to establish the fact of employment or injury or death arising out of the employment is somewhat relaxed. Merritt V. North Pacific Steamship Co., 2 Cal. Ind. Ace. Com. 273 ; 12 I^. C. C. A. 82. Where a claimant alleged that his disability was caused by a strain, but it appeared that the stones which he had been required to lift were not excessively heavy, and that he had complained of lumbago and other ailments prior to the injury for which he claimed compensa-' tion, it was held t}BtgksSi^&yrfiMcf&$ttA'SBi the burden of proof of ADMINISTIIATION AND PEOCEDTJEE 1039 Burden of proof generally showing that is disability was caused by an injury arising out of his employment. Ryan v. State Tuberculosis Sanitarium, Conn. Comp. Com., First Dist., June 23, 1916 (unreported). While an employe was cleaning a closet some water splashed on his face and hands which he wiped off. Subsequently his face began to swell and his hands became infected to such an extent that it be- . came necessary to amputate one finger. This being the only evidence as to the cause of the injury it was held that the claimant had not sustained the burden of showing that his physical condition was due to an injury arising out of the employment and compensation was refused. Gaherty v. The International Silver Co., 1 Conn. Comp. Dec. 403. Where it appeared from the employe's own admissions and other testimony that the sight of the eye had. been gone before the injury, it was held, on conflicting statements, that the employe had not sus- tained the burden of proof and compensation was denied. Wilson v. Cheney Brothers, 1 Conn. Comp. Dec. 66. The fact that an employe suffers from blood poisoning due to an injury to a finger, is not sufficient to support a claim for compensation unless it is shown that he suffered an injury in the course of his em- ployment, which resulted in the blood poisoning. Bechster v, A. T. Pattison, 1 Conn. Comp. Dec. 61. In the last-mentioned case the claimant testified that while using a crowbar he injured his hand and again a few days later, while using an axe, he again injured the hand, but there was no breakinn the skin and no flow of blood. As there was no break in the skin it was held on the medical testimony that there was insufficient evidence of blood poisoning from an accidental injury and compensation was refused. Where a workman was unable to do his former work on account of pain from the injured part, but he was able to do lighter work and the only evidence of disability was the conflicting opinions of experts that the muscle was flabby, one expert saying from disuse, and the other from a structural injury to the muscle, compensation for tempo- rary partial disability was awarded. Cottun v. I. Newman & Sons, 1 Conn. Comp. Dec. 289, Where a telegraph lineman had been exposed to severe weather and developed pneumonia from which he died, it was held that the mere exposure was not sufficient to sustain the burden of proof showing Digitized by Microsoft® 1040 Burden of proof generally that there was any causal connection between the exposure to which the employe was subjected and the death of the employe from pneu- monia. Bochwich V. Housatonic Power Co., 1 Conn. Comp. Dec. 266. Where an employe whose work required him to be in a dry kiln room, where the temperature ranged from 120 to 175 degrees and frequently he was required to work outside, became ill and died from an unknown cause, which the physicians could no diagnose, it was held that he had not sustained the burden of showing that he suffered an injury arising out of the employment and compensation was refused. Faust V. Hartford Builders Finish Co., 1 Conn. Comp. Dec. 512; aff'd by Superior Court, Id. 514. Where an employe through negligence or for any other reason allows an employer to remain in ignorance of an alleged injury for a considerable period of time and then, to the surprise of the employer, makes a claim for compensation for medical service, on the ground of such injury, the proof which the employe submits of such injury should be reasonably conclusive and not of such a character as to raise a grave question as to the veracity of the witnesses. In other words, under such circumstances the burden of proof rests upon the employe more heavily than in the case of recent injury promptly reported. Waters v. Jeivell Belting Co., 1 Conn. Comp. Dec. 511. The claimant alleged that by reason of the strain in shoveling dirt the ligaments were torn from the scapula. But on the medical testi- mony it was held that the burden of proof had not been sustained by the employe in showing that such an injury had happened and com- pensation was refused. Sinsigalli v. Suzio, 1 Conn. Comp. Dec. 455. Where a workman was disabled by reason of an attack of appen- dicitis and alleged that the attack was brought on by reason of a fall, it was found by the Commissioner that as a matter of fact no fall was sustained, and it was held that compensation should be refused as the claimant had failed to sustain the burden of proof of showing that his injury arose out of his employment. Dube v. Clayton Brothers, Inc., 1 Conn. Comp. Dec. 441. Where after compensation had been paid for a considerable period of time none of a number of physicians could state that the present condition of the employe was due to the injury which he received, it was held that the ^^"^^^j^f^^j^^^}^ the burden of showing ADMINISTEATIO?^ AND PEOCEDURE 1041 Burden of proof generally that the disability was due to the injury and under all the evidence it was found that the man was malingering. Cabel v. Brown Cotton Gin Co., 1 Conn. Comp. Dec. 558. Proof that an employe, aged seventeen, who was previously in good health, dropped dead the moment he came in contact with an electric wire, while working on a wet cement floor, was held to sustain a find- ing that he died of an accidental and not a natural death. State v. District Court of Rice County (1916), Minn. ; 159 N. W. 755. A workman employed in building a bridge over a river near itx. outlet in a bay was last seen alive at his home some miles from the place of work, two hours before he was to return to his work. His body was afterwards found in the bay. There was no evidence as CO how he met his death. It was held that it might properly be inferred that he came to his death by accident, but not that the acci- dent arose out of his employment. Henry Steers, Inc. v. Dunnewald, 85 N. J. Law 449 ; 89 Atl. 1007 ; 4 K C. C. A. 676. Where the physician in attendance refuses to state that death was caused by accident, there is no basis for an inference to that effect bj the court. Beimers v. Proctor Pub. Co., 85 N. J. Law 441 ; 89 Atl. 931;4KC. C. A. 738. Where a railroad employe was found after a train had gone out lying some three or four feet from the rails, with his feet toward the track, having an injury in his head, and died shortly thereafter from a broken neck, it was held that an inference arose that his injury was caused by accident arising out of and in the course of his employ- ment. Muzik V. Erie B. Co., 85 N. J. Law 129 ; 89 Atl. 248 ; 4 N. C. C. A. 732. Where a workman had gone to his foreman in search of material and a short time later he was found dead under a train of cars, with extensive injuries, and there was nothing from which self-destruction could be inferred, it was held that the size of the wound indicated that the injury was caused by some unusual happening in the course of ~ the empbyment, and compensation was awarded. DeFazio's Estate v. Ooldschmidt Detinning Co. (N. J. Supreme Court, 1913), 37 N". J. Law J. 181 ; 4 N. 0. C. A. 716. Where a night watchman was found dead with his skull fractured, and there was no evidence whatsoever as to how the accident occurred, „„ Digitized by Microsoft® 1042 beadbuet's woekmen's - compensation law Burden of proof as to intoxication it was held that the burden of proof which was east upon the claimants had not been sustained and compensation was denied. Curran v. Newark Oear Cutting Machine Co. (Essex Common Pleas, 1913), 37 N. J. Law J. 21. Where the proof in support of the claim is not sufficient to clearly establish the claimant's right to an award and the claim papers are filed long after the time specified in Rules 4 and 7 of the Rules of Procedure compensation will be denied. In re Kelly, 1 Bull. Ohio Ind. Com. 141. Under the West Virginia Act it is the duty of the Public Service Commission to give the claimant the benefit of inferences arising in his favor from the facts proved in the absence of direct evidence. Poccardi v. Public Service Commission, W. Va. ; 84 S. E. 242 ; 8 N. C. C. A. 1065. 44. Burden of proof as to serious and wilful misconduft. The burden of proving that the workman has been gi^lty of serious and willful misconduct is on the employer who sets it up as a reason for refusing compensation. Johnson v. Marshall, Sorts & Co. (1906), 94 L. T. 828 ; 8 W. C. C. 10 ; Eraljlvich v. Yellow Aster Mining and Milling Co., 1 Cal. Ind. Ace. Com. (Part II), 554 ; Belknap v. Mervy- Elwell Co., 1 Cal. Ind. Ace. Com. (Part I), 82 ; Nelson v. Aetna Life Ins, Co. and Lindgren Co., 1 Cal. Ind. Ace. Com. (Part I), 204; 12 N. C. C. A. 660 ; Hedges v. The City of Los Angeles, 1 Cal. Ind. Ace. Com. (Part II), 394; Maffia v. Aquilino, 3 Cal. Ind. Ace. Com. 15; Zanotti v. Aquilino & Lagomarsino, 3 Cal. Ind. Ace. Com. 53. 45. Burden of proof as to intoxication. Where the intoxication of the injured employe is charged as a defense, the burden of proof is upon the employer to show such intoxi- cation and that it was the proximate cause of the accident. Potts v. Pacific Stevedoring and Ballasting Co., 1 Cal. Ind. Ace. Com. (Part II), 630 ; Buprecht v. Bed Biver Lumber Co., 2 Cal. Ind. Ace. Com. 860 ; 12 N. C. C. A. 79 ; Hewitt v. Bed Biver Lumber Co., 2 Cal. Ind. Ace. Com. 264; Hill v. Guardian Casualty and Guaranty Co., 1 Ca'i. Ind. Aec. Com. (Part TI), 415; Brennan v. Mortell, Conn. Superior Court of New Haven ififpft^ S^n^id^^^^ (unreported) ; aff'g 1 ADMINISTRATION AND PEOCEDTTEE 1043, Burden of proof on employer to show prejudice Conn. Comp. Dec. 659; American Ice Co. v. Fitzhugh (1916), 128 Md. 382 ; 97 Atl. 999. 46. Burden of proof as to jurisdiction. The burden of proof of showing jurisdiction of the Industrial Acci- dent Com mission is on the claimant for compensation under the Cali- fornia Act. Connolly v. Industrial Accident Commission (1916), Cal. ; 160 Pac. 239. 47. Burden of proof as to dependency. The burden of proof is on the claimant for compensation as a de- pendent to show the fact of dependency and the extent of the de- pendency. Wentworth v. Pacific-Wahefield Co., 1 Cal. Ind. Ace. Com. (Part I), 65. 48. Burden of proof as to prejudice by failure to give notice. While the burden of proof is on the employe to show that the em- ployer has not been prejudiced by the failure to give notice within the time required by the Act, if the employe gives notice from which it may reasonably be inferred that the employer has not been preju- diced, the burden of proof is shifted to the employer who must then prove that he was prejudiced in some particular manner by the failure to give notice. Telford v. Healy-Tibbitts Construction Co., 3 Cal. Ind. Ace. Com. 41. 49. Burden of proof on employer to show prejudice by failure of employ^ to secure proper medical attention. An employe suffered a minor injury to the hand to which^ he paid no attention until blood poisoning set in, about twelve days later. He did not give notice to his employer until shortly before the expira- tion of the thirty-day period, when he was suffering from blood poison- ing and dermatitis caused thereby. The employer showed that he had a large number of employes and conducted a first aid hospital on the premises with two trained nurses always in attendance. The employer also showed from 'the employer's own records that out of 2,500 injuries more or less similar to that received by the claimant only three resulted in infection when seasonably reported; that of these three one was due to physical peculiarities of the injured person Digitized by Microsoft® .104:4: beadbtjet's woekmen's compensation law Burden of proof as to whether employe In excepted class and another to the fact that a Sunday intervened between two treat- ments. The Commissioner held, therefore, that the employer had sustained the burden of proof of showing that the conduct of the employe had been so unreasonable as to deprive him of any right to compensation and compensation was refused accordingly. Eccles v. Scovill Manufacturing Co., 1 Conn. Comp. Dec. 241. Where the only contested issue is whether or not a workman had neglected to take proper means to bring about a recovery from his injury and by his own negligence in regard thereto had aggravated the same, and thus caused his present state of disability, and in deciding this issue the justice in the court below had said : " We think that the petitioner ought to receive the benefit of any doubts," it was held that while the workman was under the burden of proving his case, nevertheless, the trial justice was correct in the position which he took, for if the defendant claimed that the disability had been aggravated and a cure prevented by the neglect of the plaintiff, the defendant must show these facts as matter of defense and in regard to those questions it was proper to resolve all doubts in favor of the workman. Corral v. William H. Hamlyn & Son, R. I. ; 94 Atl. 877. 50. Burden of proof on application to discontinue compensation. Where an eniployer applies to have the compensation discontinued on the ground that the disability has ceased, the burden of proof is on the employer to show that incapacity has ceased. Margolin v. Union Hardware Co., 1 Conn. Comp. Dec. 334. While the burden of proof is on the claimant to establish by a fair preponderance of the evidence all the essential elements warranting an award in his favor, after such burden has been met and the fact of disability due to an injury arising out of the employment has been established, then the burden rests on the employer or insurance carrier to show that the disability has ceased. Cody v. Beach, 1 Conn. Comp. Dec. 447. 51. Burden of proof as to whether emplby6 in excepted class. A proceeding under the Illinois Act of 1913 is not a proceeding at law and is not altogether governed by the rules of legal proceedings, and therefor it is not a part of the plaintiff's prima facie case to show Digitized by Microsoft® ADMINISTEATl'oN AKD PBOCEDUEE 1045 Costs he was not within the class of casual employes excepted from section 5, paragraph 2, of the Act, such exception being a matter of defense. Victor Chemical Works v. Industrial Board of Illinois, 274 111. 11 ; 113 K E. 1Y3. Whenever an employer contends that an employe is an agricultural worker, a home worker, a casual employe not engaged in the regular course of the master's business or a domestic servant, the burden is on the employer to prove that the claimant falls within one of these clauses under the Pennsylvania Act. Marsh v. Oroner, Pa. Work- men's Comp. Bd., May 29, 1916 (unreported). 52. Burden of proof as to interstate commerce by employ§ on vessel. Where a workman was injured on a lighter while the lighter was unloading in another State, it was held, under the New York Act, that it was not necessary for the workman to prove as part of his affirmative case that the vessel was not one of another State or coun- try, used in interstate or foreign commerce. Edwardsen v. Jarvis Lighterage Co., 168 App. Div. 368; 153 Supp. 391. The above case,, however, is of little importance since the Federal Supreme Court has held that maritime employes are not covered by the Act. South- ern Pacific Co. V. Jensen, U. S. ; Sup. Co. ; L. Ed. (May 21, 1917). 53. Conflict between Board and Arbitration Committee. Under the Massachusetts Act findings of the Industrial Accident Board in conflict with those of the Committee of Arbitra,tion, govern, and the compensation to an injured servant cannot be reduced on account of findings by the committee. In re Septimo, 219 Mass. 430; 107 ]Sr. E. 63 ; 7 N. C. C. A. 906. 54. Costs. Where a workman has brought an action for damages under the Alberta Act and has failed, the costs awarded against him in such action may be deducted from the compensation which is later awarded. Ferguson v. Brick & Supplies (1914), 7 B. W. C. C. 1054. The costs should not be denied to an employer in dismissing an application for compensation, as to the fees of witnesses who testified that there was no accident when, in fact, the County Court judge held Digitized by Microsoft® 1046 beadbuby's workmen's ' compensation law Costs that there was an accident. Finlayson v. 8. 8. " Clinton" ■ {1214:) , 7 B. W. C. C. 710. Where a workman has refused an offer which has been made by his employer and insists on a proceeding and the award is the same as the offer, costs should be awarded against the workman. Johnson V. Newton Fire Extinguisher Co. (1913), 6 B. W. C. C. 202. Where an agreement as to compensation had been offered for record by the employe but refused, and the matter referred to the County Court judge, who ordered the agreement to be recorded, it was held that costs should not be awarded against the employer. Kierson v. Joseph L. Thompson and 8ons (1913), 6 B. W. Cr C. 58. When an employer has been successful on the only issue raised in a proceeding for compensation it is improper to award costs against the employer. 8nell v. Cross Sherwood & Heald (1913), 6 B. W. C. C. 242. Where an employer has successfully appealed, to the Court of Ap- peal and the case is remitted to the County Court judge who again finds in favor of the workman, but refuses to set up the costs of the employer's successful appeal, the Court of Appeal has no jurisdiction to interfere with the order of the County Court judge in such a case, but it seems that in all cases where an appeal is successful and the case is remitted the proper course is to ask the Court of Appeal at the hearing of appeal, to order that the costs of the successful party shall be allowed to him in the arbitration in any event. Bamett v. Port of London Authority (1913), 6 B. W. C. C. 466. Where no meritorious defense is offered at the hearing, and the payment of compensation has been unreasonably dBlayed, costs will be allowed to the applicant for compensation, in the discretion of the Commission. Yamasaki v. Commonwealth Bonding and Casualty Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 658. The California Commission announced that thereafter when a defense was put in as to which practically no testimony was offered by the employer or the insurance carrier, costs would be allowed to the claimant. Oaks v. Berkeley Steel Co., 1 Cal. Ind. Ace. Com. (Part II), 218. Costs were assessed against an applicant for compensation where it was determined that his application was without merit and known by him to be so. %^e^ ^l^l?^o%(M- I^d. Ace. Com. 21. ADMINISTEATION AND PKOCEDUBE 1047 ! , Cost of transmitting money to nonresident alien Costs will ordinarily be awarded against an unsuccessful claimant personally. Matter of Wilson v, Doerfflinger, 218 N. Y. 734; 113 X. E. 454. Costs should be awarded as a rule against an unsuccessful party on an appeal to the Court of Appeals in a workmen's compensa- tion proceeding, under the iN'ew York Act. Petrie v. Oneida Steel Pulley Co. (1916), 218 N. Y. 730; 118 N. E. 455. The provision of section 24 of the New York Act that if it is de- termined that any proceedings which have been brought have not been brought upon reasonable grounds the whole cost of the proceedings shall be assessed against the party bringing them, is mandatory and requires the Court of Appeals to award costs against the Industrial Commission whenever the court determines that proceedings on ap- peal have not been brought by that Commission upon reasonable grounds. Wilson v, Dorflinger & Sons (1916), 218 IST. Y. 734; 113 K E. 454. 55. Security for costs. Security for costs is not allowed under the Alberta Act. Cessarini V. Hazel (1914), Alberta Supreme Court, 7 B. W. C. C. 1059. Where it appears that the appellant is without means to pay costs in the event of the appeal failing, the respondent is entitled to an order requiring security. Brine v. May, Ellis, Grace & Co. (1912), 6 B. W. C. C. 460. 56. Fees of arbitrators. The Massachusetts Board made an order that the insurer pay $5 to each of two arbitrators representing the insurer and the employe on a committee of arbitration duly formed in accordance with the statute. Collins v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 841. The fees of arbitrators under the Iowa Act were held to be properly taxed. Fischer v. Priebe & Co. (1916), Iowa ; 160 JST. W. 48. 57. Cost of transmitting money to nonresident alien. A fee of $10 charged by the Italian Consul for transmitting money to a nonresident alien dependent was approved on the ground that this was about the cost of a foreign money order for the amount In- Digitized by Microsoft® 1048 bbadbuey's woekmen's compensation law Findings volved. Salvatore v. Andreani v. Oelormino, 1 Conn, Comp. Dec. 169. 58. Stenographic minutes of testimony. The California Act does not require that testimony taken at hear- ings be taken down verbatim by shorthand or otherwise. A referee is only required to report to the Commission the substance of the evidence received by him upon the issues. McCay v. /. L. Bruce, 1 Cal. Ind. Ace. Com. (Part II), 616. Although the party may caused this to be done at his own expense, if desired. McCay v. Bruce, 2 Cal. Ind. Ace. Com. 64. 59. Findings. It is the duty of the County Court judge to take a sufficient note of the evidence produced before him in workmen's compensation cases, so he may make a return where there is an appeal. Tomlinson v. Garratt's (1913) , 6 B. W. C. C. 489. When the County Court judge does not return notes of the evidence taken by him upon which his finding is based, the ease is remitted for a new trial before the same judge. Taylor v. Ward & Co. (1914), 7 B. W, C. C. 441. Where the findings of the County Court judge did not state the evi- dence on which they were based, a letter was written to the judge, by the Court of Appeal, and the answer of the County Court judge stat- ing his reasons for the finding and the evidence on which it was based, was held to be sufficient on which to sustain the decision of the court below and dismiss the appeal. Creighton v. J. dt-W. Lowry (1915), 8 B. W. C. C. 250. 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 y. Doharty (1908), 46 Scotch L. R. 71 ; 2 B. W. C. C. 257. Under the California Act the Commission is not required to make findings on all the issues raised by the pleadings, but merely upon the facts necessary to be established to entitle the injured employe to compensation. Rudder v. Ocean Shore Railroad Co., 1 Cal. Ind. Ace. Com. (Part II), 209. The California Commission is not required by law to make de- tailed or special findffig^/zecOy(:£M«a:oiat@igs will not be made in ADMINISTRATION AXD PKOCEDUEE 1049 Findings every uncontested case or upon every uncontested issue, where there are serious issues involved, the practice of the Commission to incor- porate in its opinion" a review of the evidence and the principles of law involved is all that is necessary to indicate the basis upon which the decision is reached, but upon reasonable request, to avoid embar- rassing counsel in their endeavor to place the questions of law, or mixed questions of law and fact, before the courts for a review, the Commission will make special or mixed findings of fact in any par- ticular case. Mason v. ^Yestern Metal Supply Co., 1 Cal. Ind. Ace. Com. (Part II), 284; 11 N. C. C. A. 245.- The findings of the Compensation Commissioners, under the Con- necticut Act, should conform to the findings required of the Superior Court, by the rules of court and the practice prevailing in that court, and should not contain merely excerpts from the evidence and purely evidentiary facts. Hartz v. Hartford Faience Co. (1916), 90 Conn. 539 ; 97 Atl. 1020. The findings of fact of the Industrial Accident Board, under the Massachusetts Act, must be based on evidence and cannot properly be based on conjecture or speculation. In re Sanderson (1916), Mass. ; 113 N. E. 355. Under the JSTew Jersey Act, as amended in 1913, the findings of the trial judge should contain a declaration that the death of the employe was accidental and in the course of the employment. Dunnewald v. Henry Steers, Inc. (1916), N. J. Law ; 99 Atl. 345. A finding of total permanent disability should state the facts, and is not sufficient where it merely states that the extent and character of the injuries are uncertain. Diskon v. Buhh, N. J. Law ; 96 Atl. 660. The statement of facts as determined by the trial judge, under the IsTew Jersey Act, should be specific as to the nature and extent of the injury so that the reviewing court may be enabled to judge of the propriety of the award as supported by the facts found. Long v. Bergen County Court of Common Pleas, N. J. ; 86 Atl. 529. Where there is a widow and child dependent upon a deceased work- man, it is not necessary that the finding and determination of the trial' judge should state the proportion of the award to go to the widow and child respectively, unless there is a special application of different Digitized by Microsoft® 1050 Time to file findings portions of the fund in particular cases. Taylor v. Seabrook, 87 K J. Law 407; 94 Atl. 399 ; 11 N. C. C. A. 710. Under the Rhode Island statute the findings of fact which should be contained in the final decree are the conclusions of the justice as to the issuable or ultimate facts of the controversy. " It is not intended that said decree shall include a statement of the evidence or the find- ings of probative facts from which conclusions are to be drawn as to the issuable facts. In proceedings under this statute, the questions whether an injury to a workman, resulting in his death, arose out of and in the course of his employment, are material issues in the case. It must frequently happen that these questions can be determined only by inferences reasonably to be drawn from other facts directly proved. The determination of each of these issues is a finding of fact, within the meaning of the statute, although it may be merely a conclusion deduced from other facts; and these, and not the evi- dentiary facts, upon which they are based, are among the findings of fact which are to be placed in the decree by the requirement of the statute." Jillson v. Boss, E. I. ; 94 Atl. 717. 60. Decision by a majority of the Commission. Under the California Act a decision by a majority of the Commis- sion is sufficient. Mann y. Locke, 2 Cal. Ind. Ace. Com. 433. 61. Time to file findings. The provision of section 25 (a) of the California Act, that the Com- mission shall file its findings within thirty days after final hearing, refers to the final hearing before the full Commission, not to the pre- liminary hearing before one member of the Commission, which is reported to the full Commission for action thereon. Phillips v. Chanslor-Canjield Midway Oil Co., 1 Cal. Ind. Ace. Com. (Part II), 580; 12 N. CCA. 176. The requirement of the California Act that the proceeding be de- termined within thirty days, is not mandatory, and in any event, where the submission of a claim is held up pending the filing of a reply brief and the decision is rendered within thirty days of such filing, the provisions of the Act are complied with. B,ives v. Smith, 2 Cal. Ind. Ace. Com. 888. The provision in th^rj^^g^g^jj^^g^J^the determination of a ADMINISTRATION AND PEOCEDtTBE 1051 Minimum award when proper proceeding submitted to a judge must be made within thirty days is directory only. Diskin v. Bubb, N. J. Law ; 96 Atl. 660. 62. Exceptions to findings. Under the New York Act it is not necessary to file exceptions to the findings of the Commission in order to review such finding. Kenny v. Union Railway Co., 166 App. Div. 497; 152 Supp. 117; 8 ISr. C. C. A. 986. 63. Termination of proceeding. After an arbitrator, under the British Columbia Act, has made his award he is functus officio, and he has no power then to submit ques- tions of law to a judge. Lewis v. Grand Trunk Pacific Ry. Co. (1913), British Columbia Court of Appeal, 7 B. W. C. C. 1038. 64. Awarding compensation after action for damages dismissed on appeal. Where a claimant for compensation had brought an action under the British Columbia Act, for damages for negligence and had recov- ered in the court below, but this judgment was reversed on appeal, it was held that the application for compensation should not be made to the appellate court, but to the lower court, which had jurisdiction, under such circumstances, to award compensation. McCormick v. Kelliher Lumber Co. (1913), British Columbia Court of Appeal, 7 B. W. C. C. 1025. 65. 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 incapacity." Higgins v. Poulson (1912), 5 B. W. C. 0. 340. 66. Minimum award when proper. A judgment for the minimum allowance, under the Kansas Act, was held to be proper, where there were special findings showing duration of total and partial disability and the general verdict and other findings, ^hic}^J§mm/mW§M^ '^' ""''^'''^ '"^^'^ ^" ^''' 1052 Suspensory award regarded. Oliver v. Christopher (1916), Kans. ; 159 Pac. 397. 67. Joint award against employer and insurance carrier. The California Commission has jurisdiction to render an award jointly against an employer and an insurance^ carrier. Zwiesele v. Batto (1916), 3 Cal. Ind. Ace. Com. 372. 68. Anticipatory award on decreasing scale. Where a period of temporary partial disability succeeded a period of total disability, an award was made for the future, on a gradually decreasing scale, on the strength of the medical testimbny as to the progress of the employe in recovering from the injury. Flannery v. O'Brien, 1 Conn. Comp. Dec. 264. 69. 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. Baher v. Jewell (1910), 3 B. W. 0. C. 503. 70. Suspensory award. It is competent for the court to make a suspensory award either under an original application or under an application to review. Green v. Cammell, Laird c6 Co. (1913), 6 B. W. C. C. 735. A suspensory award should be made where, although the man can work, yet the bad effects of the accident still remain. So held, where a seaman was ruptured and a medical referee reported that he was ^t for his full work but must wear a truss. Griga v. Owners of Ship " Harelda " (1910), 26 T. L. K. 272 ; 3 B. W. C. C. 116. When an arbitrator finds that disability has entirely ceased, it is not encumbent upon him to make a suspensory award. 'Waison v. William Beardmore & Co. (1914), (Scotch Court of Session), 7 B. W. C. C. 913. Where it is not determined whether or not a workman may be in- capacitated in the future from an injury, a suspensory award should be made and an order should not be made ending the payments abso- lutely. Dempsey v. Caldwell & Co. (1913), 7 B. W. C. C. 823. Where no present ^^^^^'^mhfW^Qf^^ because of the present ADMINISTEATION AND PEOCEDUEE 1053 Suspensory award unhealed condition of the injuries a disability- may appear later, the award will be made subject to a right to reopen within 245 weeks upon showing that a disability has resulted. Ely v. Maryland Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 335. • Where at the hearing, by reason of the seriousness of the injury it is impossible to tell whether or not it will result in permanent dis- ability, or the extent of the disability, indemnity representing the loss of earning power will be awarded until such time as the extent of the disability can be determined. Snyder v. W. M. Goodwin^ 1 Cal. Ind. Ace. Com. (Part II), 433. Where the evidence shows that there is total disability the termina- tion of which cannot be foretold, compensation will be awarded for an indefinite period,' awaiting a time when the results of the injury may be definitely determined, when, upon proper application, a modified order will be made in accordance with the facts. Olson v. Davis, 2 Cal. Ind. Ace. Com. 118. In a hernia case the request for a nominal award, to preserve the rights of the employe, was refused, as this v^ould leave the matter open for 240 weeks, but an award was made to the effect that com- pensation should be paid unless the insurance carrier consented to bear 'the expense of an operation and the employe refused to undergo the operation. Taylor v. SprecMes, 2 Cal. Ind. Ace. Com. 79. Where an injured workman had been unable to do the work which his employer subsequently furnished because of its heavy nature, it was held that compensation should be suspended during such time as the employer furnished light work which the employe was able to do at wages which were equal to those earned before the injury, and the case should be held open for a further hearing at a later date. Francis v. America Steel and Wire Co., Conn. Comp. Com., Third Dist., October 28, 1916 (unreported). Where a claimant's left eye had never been as good as his right eye, and after the loss of his right eye there was a sympathetic irritation of the left eye, it was held that compensation should be awarded for the loss of the right eye and the case left open for further proceeding in case there should be a changed condition in relation to the left eye. Puridzy v. The Winchester Repeating Arms Co., 1 Conn. Comp. Dec. 420. Where on the first hearing the court determined that it would be Digitized by Microsoft® 1054 bradbuey's workmen's compensation law Rehearing impossible to tell whether there would be a permanent total disability or not, but that there at least would be a disability of 200 weeks and an award was made for an amount covering that period which award was also commuted to a lump sum, with permission to the employe to apply within one year for a further hearing to determine whether or not the disability was permanent, and upon such second application it was found that there was a permanent total disability and an award of compensation for 400 weeks, the longest period allowed under the New Jersey Act, was made, it was held that the payments under the second award should begin 200 weeks after the beginning of the pay- ments under the first award notwithstanding there had been a com- mutation and that it was error to order payments to begin on the second award before the expiration of said 200 weeks on the first award. DisJcon v. Buhh, IST. J. Law ; 96 Atl. 660. Where there had been an injury to an eye but the final result of the injury was uncertain, it was held that an award should not have been made for 128 weeks for the loss of the eye, but that a temporary award should be made and the case left open until the final result of the injury should be determined. Arcangelo v. Oallo & Laguidara (1917), 177 App. Div. 31; 163 Supp. 727. Where it was impossible to tell at the time of hearing how' long disability jvould continue the case was held open for further proof when there were other developments.- Possner v. Smith Metal Bed Co., 3 N. Y. St. Dep. Eep. 387. Where an employe by reason of a rupture was unable to do his former work, but secured somewhat lighter work for. wages which were $2 a week less than he received when he was injured an award of $1.33 a week was made and the claim was continued for further hearing pending the outcome of the injury, under the New York Act. Neuner v. Eanschman (1916), 8 N. Y. St. Dep. Eep. 419. 71. Rehearing. There ia no authirity for the head of a department, in the absence of new and controlling evidence that the settlement was made upon an erroneous or incomplete showing of facts, to reopen a case that has been disallowed by a predecessor, under the Federal Act. Re 0. A. Erickson, Op. Sol. Dep. L., p. 774. A claim had been di^pproved^y^lfif^Sffili' head of the Department ADMINISTKATIOX AND PUOCEDUKE 1055 Rehearing of Cominerce and Labor, whieh action was subsequently sustained by the head of the Department of Labor. Upon furnishing new evi- dence claim was reopened and allowed. Be James Kinney, Op. Sol. Dep. L.-, p. 768. The so-called Koseberry Act of 1911 of California did not provide for a rehearing of any case after a decision had been reached. Jack- son V. Mammoth Copper Mining Co., 2 Cal. Ind. Ace. Com. 72. Where a petition for a rehearing is asked upon the ground of newly discovered evidence, such petition must show the nature and purport of such evidence, so that the Commission may ascertain its material- ity, weight and why it could not with reasonable diligence have been produced at the prior hearing; otherwise the petition will be denied. Hewitt V. Bed Biver Lumber Co., 2 Cal. Ind. Ace. Com. 264 ; Witt v. The Pacific Lumber Co., 2 Cal. Ind. Aec. Com. 859-; Daly v. Ma- honey Bros., 1 Cal. Ind. Ace. Com. (Part II), 625. The allegation that an award of compensation is unreasonable is not ground for a rehearing under the California Act. Saunders v. Oxnard Home Telephone Co., 1 Cal. Ind. Ace. Com. (Part II), 636. A rehearing will be denied where the person applying therefore fails to show that he has been prejudiced or prevented from defending the case on the merits, by reason of a defect in the service of the sum- mons, or failure to receive notice of the pendency of the proceeding. Silva V. James Common, 1 Cal. Ind. Ace. Com. (Part II), 644. A new hearing will not be granted merely to reargue the points already considered where no new evidence is offered. Estell v. Los Angeles Ice and Cold Storage Co., 1 Cal. Ind. Ace. Com. (Part II), 50L A rehearing will not be ordered on a point not set forth in the petition for such rehearing. Mathias v. Brown, 2 Cal. Ind. Ace. Com. 528 ; aff'd Pacific Coast Casualty Co. v. Pillsbury, CaL ; 151 Pac. 658. / Where an order has been made that ujiless an employe submits to an operation offered by the employer compensation shall be discon- tinued, and it subsequently develops that an operation such as sug- gested would be unavailing and dangerous, the former order may be rescinded and a new order made requiring compensation to be paid for the disability suffered. Oagliasso v. de Maria, 2 Cal. Ind. Ace. ^™' ■ Digitized by Microsoft® •1056 beadbuey's woekmen's compensation law Rehearing When an award has been made for permanent disability, but there is a doubt as to the extent of the disability, either party may make a request for a re-examination at any time when it becomes possible to make a more definite determination. Petersen v. Pellasco, 2 Cal. Ind. Ace. Com. 226 ; 11 IST. 0. C. A. 377. Where a question of fact is submitted to an expert by consent of the parties, then, in the absence of extraordinary circumstances, the Commission will accept the findings of such expert as conclusive upon the issues referred to him, and will not grant a rehearing because of dissatisfaction by one party or the other with the finding made. Estell V. Los Angeles Ice and Cold Storage Co.^ 1 Cal. Ind. Ace. Com. (Part II), 501. The objection that the evidence does not justify the findings as to the extent of the disability or the rating thereof, if permanent, can- not be raised where both facts are determined by the report of the medical referee to whom the matter was sent by stipulation of the parties, and by whose report they had previously agreed to abide, and to which report they had not objected for thirty days subsequent to its submission and prior to the award. Daly v. Mahoney Bros., 1 Cal. Ind. Ace. Com. (Part II), 625. Where on an application for a rehearing no point was made of the failure of the Commission to credit the employer with the sum of $25, paid by him to the injured employe, an objection based thereon is waived. Pacific Coast Casualty Co. v. Pillshury, Cal. ; 151 Pac. 658. A motion for a rehearing will not be permitted merely for the pur- pose of permitting the defendant to set up the statute of limitations. McGee v. Daniels Contracting Co., 3 Cal. Ind. Aec. Com. 50. Where the Commission found that an employe had met his death by reason of willful misconduct in driving an automobile from 55 to 75 miles an hour, a new hearing was granted on newly discovered evi- dence to the effect that the evidence given as to the speed was incorrect and new findings and a new award were made granting compensa' tion which had been denied at the first hearing. Head v. Fidelity and Deposit Co., 1 Cal. Ind. Ace. Com. (Part II), 451. Where an award, indefinite as to time has been made and it is con- tended by the employer or insurance carrier that disability has ceased, the proper procedu^'W'^^cflfei'r/^'Qrc^C^^mentary proceeding, not ADMINISTRATION AND PEOCEDUEE 1057 Rehearing apply for a rehearing of the original matter. Salvatore v. New Eng- land Casualty Co. and Carl Ehrhart, 1 Cal. Ind. Ace. Com. (Part II); 240; 11 N. C. C. A. 760. A rehearing of a compensation case to approve medical bills which had not been approved at the time of the hearing, is not necessary, as a supplementary proceeding may be taken at any time for that pur- pose. Billingsley v. United Tuna Packing Co., 2 Cal. Ind. Ace. Com. 104. Under the California Act an application for a rehearing must be verified. Porter v. Anderson, 2 Cal. Ind. Ace. Com. 85. A motion for a rehearing was made on the following ground : " a. That the claimant seasonably reported the alleged injury to his employer. This fact he proposed to establish by a recross ex- amination of witnesses produced by the respondent at the previous hearing. "b. That the claimant, by an exclamation indicative of pain or discomfort, indicated to his fellow workmen that he had been in- jured in the manner described at the previous hearing, this also to be established by subpoenaing and re-examining the respondent's wit- nesses. "c. That the claimant was in good health before entering the employ of the respondent, this to be established by competent testi- mony from his former employer, and possibly from other persons. " d. That the injury which the claimant alleged might have been caused and was naturally caused by an activity such as the claimant described." The Commissioner held that this was insufficient ground inasmuch as the witnesses had been questioned by the Commissioner at the previous hearing with care and thoroughness and that the order re- fusing compensation was based on sufficient evidence to justify the refusal. Becker v. Blake, 1 Conn. Comp. Dec. 516. A rehearing was denied where the ground therefor was that certain evidence which might have been procured on the early hearings was not introduced and the claimant and his counsel had had a number of notices to produce their witnesses and they had failed to do so. Sebestini v. Fred T. Ley & Co., Inc., 1 Conn. Comp. Dec. 569. Where at the time of the original award the claimant appeared without counsel or other advisor, and the agreement which was entered into appeared to be an improvident one, the award was reopened and 67 Digitized by Microsoft® 1058 BEADBUEt's WOEKMESr's COMPENSATION" LAW Rehearing a new one made more nearly in accordance with the terms of the Act. Braithwaite v. Rowley, 1 Conn. Comp. Dec. 355. Under the Connecticut Act, where the record brought up to the Superior Court from the Compensation Commission does not cover the testimony on a point of jurisdiction the court may send the record back to the Commission for a further statement of the evidence and facts in relation thereto. Douthwright v. Champlin, Superior Court, Hartford County, Conn., June 27, 1916 (unreported). Upon a rehearing, where the decision of the Commissioner has been reversed, the scope of the inquiry should be limitfed to the points passed upon by the appellate court, but by agreement or waiver of the parties the entire case may be heard de novo, under the Connecticut Act. Schmidt v. 0. K. Baking Co., 1 Conn. Comp. Dec. 683. Where a settlement was made by a voluntary agreement and the disability of the employe continued for a longer time than contem- plated in the agreement the matter was heard de novo and an award made in accordance with the facts as they appeared on such rehear- ing. Tatta V. Capitol City Lumber Co., 1 Conn. Comp. Dec. 161. A motion for a rehearing was denied where it was based on the refusal of an application by telephone for a postponement of a former hearing, which application was made shortly prior to the time the hearing was to begin and no other pertinent facts were shown why a rehearing should be had. lacovazzi v. Coppolo, 1 Conn. Comp. Dec. 476. It is held, under the Illinois Act, that the Industrial Board has no power to grant a rehearing in a case which had been once decided, so as to change the decision there made, but this does not apply to the modifying of an award to meet changed conditions. Smelik v. Pea- body Coal Co., 1 Bull. 111. Ind. Bd. 191. A rehearing, under the Massachusetts Act, is not a matter of right and should not be granted where there has been a full trial of the issues, but a final decree should be entered; but where it appeared that a rehearing would further the ends of justice so as to permit the introduction of further testimony such a rehearing was ordered. In re Fierro's Case, 223 Mass. 378; 111 N. E. 957. Where a case is remitted to the Industrial Accident Board on ac- count of the diminutioYj^^^thge^r^co^^ ttie^g^ard has no authority to ADMINISTEATIOIT AND PKOCEDUEE 1059 Rehearing make new findings but simply to complete the record according to the facts and return it. In re Doherty, 222 Mass. 98 ; 109 IST. E. 887. The Massachusetts Board may hear a case and award compensation even though an employe has already signed a settlement receipt. Jones V. Fidelity and Deposit Co., 2 Mass. Ind. Ace. Bd. 301. Where an employe had signed a receipt for the compensation pay- ment and it was therein stated that disability had ceased on a certain date, but it appeared from competent medical testimony that dis- ability had continued, it was held that compensation should be awarded for the aditional term of disability notwithstanding the re- ceipt. Baker v. Frankfort General Ins. Co., 1 Mass. Ind. Ace. Bd. 249. An award of compensation, under the Minnesota Act, may be opened for newly discovered evidence. State ex rel. Klemer v. Dis- trict C ourt of Rice C ounty {I^IQ) , Minn. ; 158 N". W. 825. The employe and employer entered into an agreement that the em- ploye should receive one-half of his weekly wages " payable under the Act " without specifying how long such payments should continue and such agreement was approved by the Michigan Industrial Acci- dent Board. On resuming work the employe gave a settlement re- ceipt in full, but this receipt was not filed with or approved by the Board. It was held on petition under a claim for partial incapacity that the Board had power to reopen the proceedings, hear evidence and award additional compensation. Foley v. Detroit United Railway, Mich. ; 157 N. W. 45. Where, after two informal hearings the New York Commission had denied compensation, and thereafter, when the employe was rep- resented by counsel reopened the matter and made an award granting compensation, the Commission deeming the facts different from those which appeared on the first hearing, it was held that the proceeding was proper under the Act, although the time to appeal from the de- termination made on the first hearing had expired when the last hear- ing was held. BecTtman v. Oelerich & Son (1916), 174 App. I)iv. 353; 160 Supp. 791. The taking of an appeal from a former decision does not bar a right to make a motion for a rehearing, under the New York Act. McNally v. Diamond Mills Paper Co. (1916), 9 N. Y. St. Dep. Kep. 352. Digitized by Microsoft® 1060 beadbuey's woekmen's compensatiok law Rehearing Where a claim had been denied by the Workmen's Compensation Commissioner on the ground that the employe was not covered by the New York Act and subsequently the dependent brought an action at law and then still later moved for a rehearing before the Industrial Commission, which had succeeded to the powers of the Workmen's Compensation Commission, doubt was expressed as to whether the former hearing should be disturbed in any event, unless a very clear showing was made that a very grave injustice had been done. The Commission held that the employe was not covered by the Act, thus reiterating the principle announced in the former decision, and denied compensation. Adler v. Thomashefshy Theatre Co., Inc. (1916), 9 N". Y. St. Dep. Kep. 348. On the first hearing the Commission decided that the employe was an independent contractor. On that hearing the employe was not represented by counsel. An appeal was taken from the denial of com- pensation and this appeal was pending at the time the motion was made to reopen the case for the receipt of further testimony. In granting the motion to reopen the case the Commission stated : " The Commission has taken the ground that the intention of the legislature in enacting the Compensation Law was to give an in- jured workman, in an ordinary case, his compensation without the necessity of employing a lawyer, and has emphasized this position by uniformily allowing very low fees to such attorneys as appear before it, for injured workmen. Where a close case, like the present one, has been decided against the workmen who has adopted the Commission's idea and appeared without an attorney, the Commis- sion feels that it should be much inore lenient with the injured workman whose ease has not been presented in the best manner, than it would if a like application were presented by an insurance carrier who had been represented by a lawyer or by a trained adjuster. The new testimony ought in my opinion, to be received, if the statute will permit it." McNally v. Diamond Mills Paper Co. (1916), 9 'N. Y. St. Dep. Rep. 352. A rehearing was granted by the New York Commission on the question raised by the employer as to whether or not a father was really a dependent, after an award had been made in favor of the father, but the former award was affirmed upon new testimony. Brio V. Carpenter, Boxley & HerricJc, 6 N. Y. St. Dep. Rep. 364. Where an award vQ^/fiEBhfeJS^M/beoSSftSbnsin Commission, on a ADMINISTEATIOW AND PROCEDUEE 1061 Supplemental award after hearing brought up on oral motion stipulation of the facts, by an attorney, without the appointment of a guardian for an infant employe, it was held that this was not bind- ing on the minor, where it appeared that full compensation had not been paid, and a further award was entered. Schmidt v. Menominee Bay Shore Lumber Co., Fourth Annual Keport (1915), Wis. Ind. Com. 22. In the last-mentioned case the Commission stated that if an award had been made in favor of the minor upon facts found by it after an open hearing where the facts had been presented to the Commission by witnesses, that the award would have been binding on the minor, even though no guardian had been appointed. Where an award was made to a minor upon an agreement entered into between the minor and the employer and the award was paid, but upon a subsequent application it was found that the minor suf- fered greater injuries than it was supposed and that he was entitled, under the law, to additional compensation, it was held, under the Wisconsin Act, that a further award could be made under the circum- stances, inasmuch as the first award was made on the agreement and not upon a hearing determining the facts. Menominee Bay Shore Lumber Co. v. Industrial Commission of Wisconsin, Wis. ; 156 K W. 151. 72. 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. Mountain v. Parr (1899), 80 L. T. 342; IW. C. C. 110. 73. Supplementary proceeding instead of rehearing. Where the period of disability has apparently ceased under the original award, but a new period of disability begins, due to in- juries received in the same accident, a rehearing is not necessary, but a supplementary proceeding should be begun which does not require a verified petition, but merely a notice to the parties interested. Salvatore v. New England Casualty Co., 2 Cal. Ind. Ace. Com. 396, 11 -N. C. C. A. 760. 74. Supplemental award after hearing brought up on oral motion. Where an award had been made for an indefinite period, a further Digitized by Microsoft® 1062 beadbuey's woekmen's compensation law Setting aside approved agreement hearing was held on an oral motion, to determine if the employer should continue to pay compensation, and upon the finding that dis- ability still existed an award for further compensation for an in- definite period was made. Verderame v. Blenner, 1 Conn; Comp. Dec. 325. 75. Setting aside award. Where an award was made for disability caused by hernia from accident, and the insurance carrier paid for an operation to cure the hernia, on which operation it was discovered that the employe was not suffering from hernia or any other accidental injury, an order was made setting aside the former award and relieving the employer from liability. Dizillo v. Ralph Gorrill, 1 Cal. Ind. Ace. Com. (Part II), 464. ~ Where a claimant had .received compensation, under the Massa- chusetts Act, and subsequently brought an action against a third person, whose negligence caused .the injury, it was held that the ques- tion of whether or not the employe was induced to take compensation through fraud could be litigated in the action, but it was held that in this particular case no fraud existed and that the sole remedy of the employe was the claim for compensation. Barry v. Bay State St. By. Co., 2 Mass. Ind. Ace. Bd. 1031. 76. Action to set aside agreement. An action at law is not maintainable to set aside an agreement as to compensation payable in a lump sum on- the ground that the work- man was mistaken as to the extent of the injuries. M'Guire v. Pater- son ((?.) (& Co. (1912), (Scotch Court of Session), 6 B. W. C. C. 370. 77. Setting aside approved agreement. Where an agreement had been entered into and then approved for the payment of compensation and the insurance carrier subsequently discovered that the injury did not arise out of the employment at all, but by reason of some scufiling at the noon hour the award based on the agreement was set aside and compensation denied, under the New York Act. Sohol V. %f JaibT^^fe/^- ^- ^*- ^^P- ^P- ^^^- ABMINISTEATION AND PEOCEDUEE 1063 Enforcing payment of award ; body execution 78. Judgment on award. On an application for judgment on an award, under the Illinois Act, the Circuit Court cannot inquire into the legality of the action of the Industrial Board where no proceedings have been taken to review the arbitrator's award in the manner provided for in the stat- ute. Bemsteiny. Brothman (1916), 111. ; 114 K E. 120. A judgment on an award, under the Iowa Act, should include hos- pital expenses allowed in the award. Fischer v. Prishe & Co. (1916), Iowa ; 160 N. W. 48. Where, under the Massachusetts Act, an application is made to the Superior Court to enter a decree on the findings of the Industrial Accident Board, the court does not merely follow the Board in all respects, but enters such decree as the findings of fact of the Board require. In re Employers' Liability Assur. Corporation (McNicol V. Patterson Wilde & Co.), 102 'N. E. 697; 215 Mass. 497; 4 N. C. C. A. 522 ; L. K. A. 1916 A, 366n. A judgment, under the Michigan Act, must be in accordance with the award, by reciting and following the award, but it is not proper to enter a series of judgments for the enforcement of the award. Brown v. George A. Fuller Co. (1916), Mich. ; 159 K W. 376. The District Court cannot enter judgment for a lump sum, under the Nebraska Act, without the agreement of parties. Johansen v. Union Stockyards Co. of Omaha, Nebr. ; 156 IST. W. 511. 79. Payment of award into court. An award, under the British Columbia Act, was made a judgment of the County Court and execution was issued against the employers of a deceased workman. The employers brought an action in the Supreme Court to restrain enforcement of this execution, on the ground that they had paid money into the court, before the award, in full settlement of the claim. The Supreme Court dismissed the action but held that the execution should be set aside on the merits. British ColumUa Copper Co. v. McKittrich (1913), (British Colum- bia Court of Appeal), 7 B. W. C. C. 1037. 80. Enforcing payment of award ; body execution. A committal order on a judgment summons can be made in order Digitized by Microsoft® 1064 beabbttey's woekmen's compensation law Offset to enforce an award. Johnson v. Adshead, 2 W. C. 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. 0. 209. 81. Staying execution against principal until return against con- tractor. A man employed to decorate the Austrian section at the Panama American Exposition was in "the immediate employ of contractors, who had contracted with the Austrian section to make the decorations. Neither the Austrian section nor the contractors carried insurance and it was held that the Commissioners of the Panama-Pacific Inter- national Exposition were liable as principals, but the execution was stayed against the Commissioners until it was returned unsatisfied against the contractors and the Austrian section. Weinman v. Bruno and White, Contractors, 2 Cal. Ind. Ace. Com. 548. 82. Failure to appeal from award of arbitrators. The failure to appeal from a decision of the Arbitration Committee automatically makes that decision the decision of the Industrial Board, under the Illinois Act. Bloomington D. & C. B. Co. v. In- dustrial Board (1916), 111. ; 114 K E. 511. 83. Apportioning compensation among dependents. 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 respondents. Harland & Wolff v. Badcliffe (1909), 43 Irish L. T. 166; 2 B. W. C. C. 314: ;• Rhodes v. Soothill Wood Colliery Co. (1908), 100 L. T. 15; 2 B. W. C. C. 377. 84. Offset.i When compensation at an agreed rate has been paid to a certain period, and it appears that the workman was not entitled to as much compensation as has been actually paid, the court, nevertheless, will 'See Offset or Countei^l^zmi^^WCi^'^Sft® ADMINISTRATION AND PEOCEDURE 1065 Offset not offset the over-payment under the agreement so as to credit com- pensation due at a subsequent period. Doyle v. Cork Steam Packet Co. (1912),5B. W. C. C. 350. The California Commission has no authority to allow deductions to be made from the amount of an award, for debts due by the injured employe to the employer, where such debts do not arise out of the payment in advance of compensation due for his injury. Cason v. Star Laundry, 1 Cal. Ind. Ace. Com. (Part II), 485; Stormont v. Bakersfield Laundry Co., 1 Cal. Ind. Ace. Com. (Part II), 533; Manford v. Carstenhrook, 3 Cal. Ind. Ace. Com. 21. Where an employer has by way of advancement paid an injured employe his full wages, instead of a certain percentage thereof, the amount of overpayment may be credited on compensation thereafter growing due. Cypher v. United Development Co., 1 Cal. Ind. Ace. Com. (Part II), 425 ; Ramirez v. Binkley & Wayne, 3 Cal. Ind. Ace. Com. 33. Where by reason of a mistake of fact an employer continued to pay full compensation after an employe had returned to work and was earning nearly as much as he was before the injury, it was held that an order could be made requiring the employe to refund such over- payment. Brown v. The Sheffield Scientific School, 1 Conn. Comp., Dec. 419. Where an employe had suffered two accidents and for one there had been an underpayment and for the other an overpayment by the em- ployer, it was held that the overpayment would be credited to the underpayment, in determining the amount of compensation to be awarded. Mclntyre v. Employers' Liability Assur. Corp., 1 Mass. Ind. Ace. Bd. 151. Where the defendant had paid the workman $10 a week for forty- one weeks, under the New Jersey Act, before any agreement as to compensation had been made, and the court finally determined that the man was entitled to $5 a week for a specific period of time, it was held under the findings of the trial judge that the employer was prop- erly credited with $5 a week for thirty-nine weeks, in which finding there was deducted the first two weeks of disability, as the employer was under no liability at that time, and the court determined that the amount paid in the first two weeks and the extra $5 in the other thirty-nine weeks, were by way of wages or as a gratuity from Digitized by Microsoft® Res adjudlcata benevolent motives. Blackford v. Green, 87 N. J. Law 359; 94 Atl. 401. 85. Res adjudicata. Where compensation had been paid for a certain period and then stopped and the workman made an application for compensation, which was refused, and the County Court judge also refused to make a suspensory award as to which decision no appeal was taken, it was held that this decision was res adjudicata and was binding on the workman, when, several weeks later, he made a fresh application for compensation. Oreen v. Cammell, Laird & Co. (1913), 6 B. W. C. C. 735. Under the Massachusetts Act, as amended by Laws of 1914, Chap. 708, where an award had been made for compensation for twenty- five weeks because of specific loss, it was held that a further award could be made of fifty weeks' additional compensation, when it ap- peared that as a matter of fact there had been a loss of the entire hand to the extent that it was no longer of any use. Lemieux v. Con- tractors Mutual Liability Ins. Co., 223 Mass. 346 ; 111 N. E. 782. Where a workman was disabled by reason of poisonous gas fumes, which he inhaled, and which had been allowed to accumulate and re- main in a place where he was required to work, and the employe had made a claim for compensation which had been denied by the work- men's Compensation Commission, on the ground that the injuries were not the result of an accident, it was held in a subsequent action by the employe against the employer for common-law damages, that the decision of the Commission was res adjudicata as to whether or not there had been an accidental injury; but the court expressed the opinion that the employe had in fact suffered an accidental injury. The court therefore overruled a demurrer to the answer setting forth the decision of the Commission as res adjudicata and held that the defense was good. Naud v. King Sewing Mach. Co., 95 Misc. 676; 159 Supp. 910; Supreme Court, Erie Special Term, June 20, 1916. Digitized by Microsoft® CHAPTER XXI APPEALS 1 Akticle a — British Act 1. Implied right to appeal 2. Points raised below only considered on appeal 3. From arbitrator's decision. 4. Determining adequacy of lump sum paid under agreement 5. Order terminating weekly payments not appealed from is final 6. Dismissal of action and malving decision in arbi- tration proceedings 7. Question submitted by ar- bitration 8. From determination of com- mittee under approved plan , 9. Reviewing facts 10. Withdrawal 11. Waiving right to appeal .... 12. Costs on appeal 13. Security for costs on ap- peal Article B — Califobnia 1. Constitutional right to ap- peal 2. Questions raised below only reviewed 3. Title of case on appeal 4. Reviewing question of fact. 5. When question of law -raised on admitted facts . . 6. Payment of medical bill .... 7. Bringing up evidence on certiorari 8. Willful misconduct PAGE 1068 1068 1068 1069 1069 1070 1070 1070 1070 1070 1074 1074 1074 1075 1075 1075 1075 1076 1076 1077 1077 1077 1077 PAGE Aeticm; C — Connecticut 1077 1. Reviewing questions of fact 1077 2. Trial de novo in Superior Court 1078 3. Sending record bacli for correcting 1079 4. Practice on appeal to Su- perior Court 1079 Article D — ■ Illinois 1079 1. From County Court 1079 2. Failure to appeal from de- cision of Arbitration Com- mittee 1080 3. By certiorari from Circuit Court 1080 4. After time to appeal to Cir- cuit Court has expired. . . 1080 5. Jurisdictional questions . . . 1080 6. To Supreme Court 1080 7. Record on appeal 1081 8. Reviewing questions of fact 1082 9. Decision by majority of Board . . ..' 1082 10. Trial de novo on review of arbitration committee .... 1082 Article E — Iowa 1083 1. Error in computation 1083 Article F — Kansas 1083 1. Dismissal for want of merit 1083 2. Decision ordering lump sum payment 1083 3. Damages for disfigurement, pain and suffering 1083 Article G — Maryland 1084 1. In which district appeal taken 1084 2. Additional testimony 1084 3. Burden on appellant; open- ing and closing 1084 1 The right to appeal depends almost entirely upon statute. Obviously there- fore it is necessary to consult the cases arising under a particular statute in deciding such questions. Any decisions of general applicability will be dis- covered by consulting the index. 1067 Digitized by Microsoft® 1068 bkadbuhy's workmen's compensation law Points raised below only considered on appeal page page Abticle H — Massachusetts . . 1084 Abticde L — New Toek 1092 1. Reviewing question of fact. 1084 1. Conclusiveness of record. . . 1092 2. Time within wliich appeal 2. Appeal from unanimous presented to Superior affirmance by Appellate Court 1086 Division 1093 3. Review by certiorari 1087 3. Non-unanimous affirmance 4. Exceptions 1087 by Appellate Division 1093 5. Stay pending appeal 1087 4. Costs of appeal 1093 6. Wife leaving husband for 5. Rehearing after time to ap- justifiable cause 1087 peal expired 1094 7. Proceedings before arbitra- 6. Review of questions of fact. 1094 tion committee as founda- 7. Exceptions 1095 tion for decision of Board . 1088 8. Employer's appeal from 8. Harmless error 1088 award against State fund 1096 Aeticle I — Michigan 1088 9. Award consented to by at- 1. Effect of failure to appeal ■ torney of record 1096 from Arbitration Com- Aeticm; M— Ohio 1096 mittee to Board 1088 j. Jurisdictional questions ... 1096 2. Original hearing before Article N- Rhode Island 1096 Board by stipulation 1088 ^ Re^je^ing question of fact. 1096 3. Harmless error 1089 4. Remanding for further tes- ^^^'^ O- Washington 1097 timony 1089 ^- Question of law arising on 5. Reviewing question of fact^ 1089 ^^c'^''"^ '^^^med prima AETICLE J - Minnesota 1090 f""^ <=°"e<=t 109^ 1. Motion to amend decision Aeticle P — West Virginia 1097 not prerequisite 1090 1- Power to review is original, 2. Modifying award on appeal. 1091 not appellate 1097 3. Appellant only can complain 2. Reviewing questions of fact 1098 of award 1091 Article Q — Wisconsin 1098 4. Intermediate order 1091 1. Setting aside award for 5. Review of question of fact. 1091 fraud 1098 Article K — New Jersey 1091 2. Decision from which no ap- 1. When remedy by motion .... 1091 peal is taken 1098 2. Reviewing question of fact. 1092 3. Reviewing" question of fact. 1098 ARTICLE A — BRITISH ACT 1. Implied right to appeal. Under the Alberta Act a right of appeal to the Supreme Court, though not expressly given, is given by implication on any question of law. Cangreme v. Alberta Coal Mining Co. (1912), (Alberta Su- preme Court), 1 B. W. C. C. 1020. 2. Points raised below only considered on appeal. An appeal by an en||jf^'gfec(5fti5iaMcl9©s©flte"tained on points which APPEALS - 1069 Determining adequacy of lump sum paid by agreement were not taken in the court below. Payne and Another v. Clifton (1910), 3B. W. C. 0. 439. Where a workman under the British Act has not asked for a sus- pensory award in the court below he will not be heard to ask for such relief on appeal. Maunder v. Hancock (1914), Y B. W. C. C. 648. Where payment was terminated and a proceeding was dismissed on an employer promising to find employment for the workman,' it was held, on appeal from the dismissal, that no question of a declara- tion of liability having been raised in the court below, the Appellate Court had no jurisdiction to grant it. Harloch v. Steamship " Co- quet" (1914), 7 B. W. C. C. 88. The fact that the opinion of a medical assessor was conveyed to the County Court judge privately was held not to be ground of reversal where no objection was taken to the proceeding in the court below. Smith V. Foster (1913), 6 B. W. C. C. 498. Where payment was terminated and a proceeding was dismissed on an employer promising to find employment for the workman, it was held on appeal from the dismissal that no question of a declara- tion of liability having been raised in the court below, the appellate court had no jurisdiction to grant it. Harloch v. Steamship " Co- quet" (1914), 7 B. W. C. C. 88. 3. From arbitrator's decision. No appeal lies directly from the decision of an arbitrator appointed by the Court of Appeal, under the British Act. Cray v. Southend Corporation (1915), 6 B. W. C. C. 932. > 4. Determining adequacy of lump sum paid under agreement. 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), re- ferred 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 decided. Owners of the Steamship " Segura" v. Blampied (1911), 4 B. W. ^- ^- ^^^' Digitized by Microsoft® 1070 beadbuet's woekmen's compensation law Reviewing facts 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. Y5; 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 pro- ceedings. Where in an action under the Employers' Liability Act the judge dismissed the action and then came to the conclusion that no com- pensation was payable under the Workmen's 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 Em- ployers' Liability Act. Oranick v. British Oolumbia Sugar Co. (1910), 15 E. C. K 193; 4 B. W. C. 0. 452. 7. Question submitted by arbitrator. An arbitrator having once made his award is functus officio and if he has not submitted a question of law to a judge, the Supreme Court has no jurisdiction to review the award or remit it to the arbitrator, under the British Columbia Act. Cozoff v. Welch (1914), British Columbia Court of Appeal), 7 B. W. C, C. 1064. 8. From determination of committee under approved plan. Where a railroad company had adopted an approved plan, as per- mitted by the British Act, and had formed a committee to determine compensation claims, from the decision of which committee there was no appeal, it was held that the dependents of a workman who had been killed had no remedy by appeal or otherwise from a decision of this committee refusing compensation. Allen v. Great Eastern Railway Co. (1914), (Court of Appeal of England), 7 B. W. C, C. 986. 9. 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; ^nd ^Us^^j.^ to^e^Co^ of Appeal in such a case APPEALS 1071 Reviewing facts 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 he dismissed when it is on purely a question of fact. Bayman 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 lia- hility of any kind, including even the occurrence 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 alleged, 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. 0. 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 employers' doctor ad- vised that he ought to exercise it, and that he would soon recover if he did so. He did not exercise it, and the employers applied for a review of the weekly payments 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 application to re- view. It was held on appeal that the question was one of fact, and there was evidence to support the decision. Moss & Co. v. Akers (1911),4B. W. C. C. 294. When there is evidence both ways as to the question of whether or not a man is under a contract of service, the decision of the court below will not be set aside on appeal. Wilmerson v. Lynn and Ham- burg Steamship Co. (1913), 6 B. W. C. C. 542. Where there is any evidence supporting a determination by the County Court judge tl^tgitimmfmWSMm ^^^^ ^^^^ ^^ considered 1072 Eeviewing facts as a determination of a question of fact and will not be reversed on appeal. O'Donnell v. Clare County Council (1913), (Irish Court of Appeal), 6 B. W. C. C. 457. 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 the employers gave it as their opinion that death was due to heart disease. The arbitrator, in consequence 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 work- man 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. K. 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 arbitrator 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 re- turned to work ; some of the work he then did was heavier than his work before the accident. He was dismissed in 1909, and claimed compensation on the ground that the consequences of his injury pre- vented him from obtaining work. The medical evidence was con- flicting, 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 repbrt the County Court judge made an award of one penny a week. It was held on appeal 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 Col- lieries 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 Digitized by Microsoft® APPEALS 10*73 Reviewing facts 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 minutes' 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 afterward. 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. K. 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 arbi- tration 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 question of fact, and that there was evidence to support it. Furness, Wiihy & Go. v. Bennett (1910), 3 B.W. C. C. 195. Where the Coimty Court judge holds that the workman is sham- ming, 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), 2 B. W. C. C. 430. Earning capacity is a question of fact as to which there is no ap- peal. Amdtt V. Fife Coal Co. (No. 2) (1912), 6 B. W. C. C. 281. "Where a workman was injured by the negligence of a third party and the employer joined the third party in a proceeding for com- pensation by the workman, and the question of indemnity by the third party was left to the arbitrator, who found in favor of the employer, it was held on appeal that the questions determined below were of fact and as there was some evidence to support the finding the Court of Appeal had no jurisdiction to interfere. Cutsforth v. Johnson {North-Eastern Railway Company, Third parties) (1913), 6 B. W. C. C. 28. A iudament contrary to uncontradicted medical evidence should ^o Drgitized by Microsoft® 68 1074 Costs on appeal not be sustained. Binns v. Kearley and Tonge (1913), 6 B. W. C. C. 608. 10. Withdrawal. An employer who has appealed may withdraw the appeal at any time upon payment of costs up to the time of the withdrawal. Ste- phens V. Vichers (1913), 6 B. W. 0. C. 469. 11. Waiving right to appeal. Where costs are awarded against a workman because the award is no greater than the offer, which his employer made before proceed- ings were taken, and these costs were ordered to be deducted in pro- portionate amounts from the compensation awarded and the work- man accepted the compensation less the costs, it was held that he waived the right to appeal from the award. Johnson v. Newton Fire Extinguisher Co. (1913), 6 B. W. C. C. 202. An employe who has accepted the compensation awarded by the court below, may not appeal from the award and if he does appeal such appeal will be dismissed. Jones v. Winder (1914), 7 B. W. C. 0. 204. An appeal cannot be sustained by a workman who accepts payment under an award. Stroewer v. The Aerogen Gas Co. (1913), 6 B. W. C. C. 576. 12. Costs on appeal. 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. 8. "Nicholas" (1909), 101 L. T. 586; 3 B. W. C. C. 102. Where an award was reduced on the appeal of the employer, on a point which the employer did not raise, either in the court below or in the appellate court, it was held that costs should not be awarded to the employer, Uhleniurgh v. Prince Albert Lumher Co. (1913), (Saskatchewan Supreme Court), 7 B. W. C. C. 1028. On an application to make a lump sum payment to a permanently injured workman an award of £534 was made. The employer con- tended that only £350 was due and obtained a stay pending the ap- peal by depositing £534 in court. The workman thereupon applied Digitized by Microsoft® APPEALS 107 5 Questions raised below only reviewed for leave to take out £50 to be used by the solicitor in resisting the appeal. It was held that no costs having been incurred the applica- tion was not warranted by any statutory provision and it was denied. Marshall Sons & Go. v. Prince (1914), 7 B. W. 0. C. 381. Where an employer has successfully appealed to the Court of Ap- peal and the case is remitted to the County Court judge who again finds in favor of the workman, but refuses to set up the costs of the employer's successful appeal, the Court of Appeal has no jurisdic- tion to interfere with the order of the County Court judge in such a case, but it seems that in all cases where an appeal is successful and the ease is remitted the proper course is to ask the Court of Appeal at the hearing of appeal to order that the costs of the successful party shall be allowed to him in the arbitration in any event. Barnett v. Port of London Authority (1913), 6 B. W. C. C. 466. 13. Security for costs on appeal. Where it appears that the appellant is without means to pay costs in the event of the appeal failing, the respondent is entitled to an order requiring security. Brine v. May, Ellis, Grace & Go. (1912), 6 B. W. C. C. 460. It is contrary to the policy of the British Act of 1906 to require seeiirity from the workman for the costs of the appeal to the Court of Appeal. Hutchinson v. New Northern Spinning and Weaving Go. (1914), (Irish Court of Appeal), 7 B. W. C. C. 971. ARTICLE B — CALIFORNIA 1. Constitutional right to appeal. The Supreme Court of California has the constitutional right to review a proceeding before the Industrial Accident Board by way of certiorari and this jurisdiction cannot be defeated except by con- stitutional amendment. Great Western Power Co. v. Pillsbury, Cal. ; 149 Pae. 35, 9 N. C. C. A. 466. 2. Questions raised below only reviewed. On an appeal from a refusal of the Commission under the Cali- fornia Act to rehear and modify an award, it was held that no matter could be entertained eim^h&^!\M:rWi§f^^^'^^^^ ^"^ ^ petition for Reviewing question of fact review. Pacific Coast Casualty Co. v. Pillsbury, Cal. ; 151 Pac. 658. 3. Title of case on appeal. A proceeding to review a determination by the Industrial Acci- dent Commission of California should be brought against the Com- mission by its name " Industrial Accident Commission " and not against the individuals composing it. Carstens v. Pillsbury (1915), Cal. ; 158 Pac. 218. 4. Reviewing question of fact. A determination of a question of fact on conflicting testimony can- not be reviewed on appeal. Frankfort General Ins. Co. v. Pillsbury (1916), Cal. ; 159 Pac. 150 ; Western Indemnity Co. v. Pills- bury (1916), Cal. ; 159 Pac. 721 ; Great Western Power Co. V. Pillsbury, Cal. ; 149 Pac. 35 ; 9 N. C. C. A. 466 ; Kirh- patrich v. Industrial Accident Commission (1916), Cal. App. ; 161 Pac. 274; Smith v. Industrial Accident Commission of California, 26 Cal. App. 560; 147 Pac. 600; Southwestern Surety Ins. Co. r. Pillsbury (1916), Cal. ; 158 Pac. 762. A claim that a finding of fact of a court or jury is without evidence to support it presents a question of law rather than a question of fact. Great Western Power Co. v. Pillsbury, Cal. ; 149 Pac. 35; 9 N". C. C. A. 466 ; Western Indemnity Co. v. Pillsbury, Cal. ; 151 Pac. 398. Where the finding of the Industrial Accident Commission on any jurisdictional fact is without the support of substantial evidence the finding will be reversed on certiorari to the Supreme Court. Em- ployers' Assurance Corporation v. Industrial Accident Commission, Cal. ; 151 Pac. 423. An application for a review of the findings of the Commission, on the grounds that the findings of the Commission are not sustained by evidence, and that the applicant has new evidence, does not state grounds for review, but does state groun-ds on which the Commission, under section 82 of 'the Act, may grant a rehearing. Cardoza v. Pillsbury, Cal. ; 145 Pac. 1015. Where an award of the Industrial Accident Commission was over- ruled, on certiorari, because the evidence was insufficient to support Digitized by Microsoft® APPEALS 1077 Reviewing questions of fact it, but it appeared that the defect might be remedied the decision should go no further than to annul the order. Englebretson v. In- dustrial Accident Commission, Cal. ; 151 Pac. 421. 5. When question of law raised on admitted facts. Where the facts are admitted a finding that an employe was en- gaged in interstate commerce is a conclusion of law which may be reviewed on appeal. Smith v. Industrial Accident Commission of California, 26 Cal. App. 560; 147 Pac. 600. 6. Payment of medical bill. An appeal cannot be taken from an order of the California Indus- trial Accident Commission requiring an employer to pay the reason- able value of medical services in accordance with an amount to be approved by the Commission until after the Commission has actually fixed the amount, for until then it is not a final order enforceable as such. Garratt-Callalian Co. v. Industrial Accident Commission of California, Cal. ; 153 Pac. 239. 7. Bringing up evidence on certiorari. The existence of jurisdictional facts may be inquired into on certiorari to the Supreme Court, under the California Act, and to this end the evidence itself may in proper cases be brought up for exami- nation. Great Western Power Co. v. Pillsbury, Cal. ; 149 Pac. 35 ; 9 K C. C. A. 466. 8. Willful misconduct. The question of whether or not a workman has been guilty of will- ful misconduct is a jurisdictional one and subject to review under the California Act. Fidelity and Deposit Co. v. Industrial Accident Commission, 51 Cal. 87; 154 Pac. 834. ARTICLE C — CONNECTICUT 1. Reviewing questions of fact. Under the Connecticut Act, on appeal to the Superior Court, the conclusions of fact reached by the Compensation Commissioner, if based upon reasonable or sufiicient evidence, are conclusive on the court, but if they are^yj^^ho^u^^ev^nce^t^^u^port them the Superior 1078 beadbuet's woekmen's compensation law Trial de novo in Superior Court Court may reverse them. Benoit y. Bushnell (Superior Court of Connecticut), 1 Conn. Comp. Dec. 174; rev'g 1 Conn. Comp. Bee. 172. A compensation Commissioner is an executive officer engaged in administrative duties, and on an appeal from his determination the facts cannot be retried in the Superior Court, but the court merely determines whether the finding and award were unauthorized, ir- regular or informal or based upon a misconception of the law or of the powers or duty of the administrative tribunal, or are so unreason- able as to justify judicial interference. Kennerson v. Thames Tow- boat Co., 89 Conn. 367; 94 Atl. 372; L. E. A. 1916 A, 436n. In a proceeding under the Connecticut Act it is the province of the Commissioner to resolve the conflicts of fact in the testimony. Larke v. John Hancock Mutual Life Ins. Co., 90 Conn. 303 ; 97 Atl. 320 ; 12 N. C. C. A. 308. The Superior Court of Connecticut has no power to revise the findings of the Compensation Commissioner, except when such find- ing is so unreasonable as to justify judicial interference. Griscuolo V: Connecticut Co., Superior Court, New Haven County, Conn., June 23, 1916 (unreported). The question of whether or not a person is a dependent upon a de- ceased workman is a question of fact as to which the decision of the Compensation Commissioner is not reviewable when supported by any evidence. Appeal of Hotel Bond Co., 89 Conn. 143 ; 93 Atl. 245. Where the findings of the compensation Commissioner are un- authorized in law, irregular or informal, or based upon a misconcep- tion of the law or of the powers and duties of the Commissioner, or are so unreasonable as to justify judicial interference, the Superior Court, on appeal, may set aside the award but it cannot retry the facts. Appeal of Hotel Bond Co., 89 Conn. 143 ; 93 Atl. 245. An appellant tribunal cannot assume a finding of fact as made by the tribunal the judgment of which is under review, when there is no such finding in the record. Hartz v. Hartford Faience Co. (1916), 90 Conn. 539 ; 97 Atl. 1020. 2. Trial de novo in Superior Court. An appeal from a decision of the Commissioner to the Superior Court does not permit a trial de novo but is to be heard on the evi- Digitized by Microsoft® APPEALS 10Y9 From County Court dence taken below. Appeal of Hotel Bond Co., 89 Conn. 143; 93 Atl. 245. 3. Sending record back for correction. Under the Connecticut Act, where the record brought up to the Superior Court from the Compensation Commission does not cover the testimony on a point of jurisdiction, the court may send the record back to the Commission for a further statement of the evidence and facts in relation thereto. Douthwright v. Champlin, Superior Court, Hartford County, Conn., June 27, 1916 (unreported). 4. Practice on appeal to Superior Court. A finding of the Superior Court of Connecticut, upon an appeal from an award of the Compensation Commissioner, should merely make the finding of the Commissioner a part of the record without finding the facts, and if the court corrects the findings it should indi- cate in its finding on appeal the correction so made. If the court finds no harmful error in the appeal from the Commissioner it should dismiss the appeal, but if it finds error, either in a conclusion of law reached, or in a finding of fact reached, or in the finding of a material fact or the refusal to find a material fact, it should, if the award may be changed or modified without requiring a further hearing, sustain the appeal to this extent and direct the Commissioner to make the award in accordance with its directions. If the award cannot be changed or modified in accordance with the conclusions of the trial court without further hearing upon the facts, it should sustain the appeal and indicate in the judgment or its memorandum the grounds of its action. Thompson v. Twiss, 90 Conn. 444 ; 97 Atl. 328. ARTICLE D — ILLINOIS 1. From County Court. Under the Illinois Act, where a hearing is had in the County Court, after an arbitration, appeal is taken directly to the Supreme Court and not to the Circuit Court, for if an appeal should be allowed to the Circuit Court from the County Court two hearings de novo would be permitted, which the legislature did not intend. Lauruszha v. Em- ^re Mfg. Co., Ill ^^K&2n^&|«4@ 1080 To Supreme Court 2. Failure to appeal from decision of Arbitration Committee. The failure to appeal from a decision of the Arbitration Com- mittee automatically makes that decision the decision of the Indus- trial Board. Bloomington D, & C. R. Co. v. Industrial Board (1916), 111.' ;114N. E. 511. 3. By certiorari from Circuit Court. The Illinois Act of 1913 provided for a review by certiorari in the Supreme Court of the decisions of the Industrial Board. But it was held that the Supreme Court had no original jurisdiction to issue a writ of certiorari under the Constitution of Illinois (Courier v. Simpson Construction Co., 264 111. 488; 106 IST. E. 350; 6 IST. C. C. A. 548). and section 19 of the Act was amended by Senate Bill 66 of the session of 1915 giving the right to review by a writ of certiorari issued out of the Circuit Court. 4. After time to appeal to Circuit Court has expired. Under the Illinois Act as amended in 1915, on an application to the Circuit Court for judgment on an award, the Circuit Court can- not inquire whether or not the judgment was legally rendered, when the time has expired within which such a review may be had in the Circuit Court. Fitt v. Central Illinois Public Service Co. (1916), 273 111. 617; 113 IST. E. 155. 5. Jurisdictional questions. The decision of the Industrial Accident Board of Illinois is con- clusive only when it is within its jurisdiction! ' Uphoff v. Industrial Board of Illinois, 111 N. E, 128; 271 111. 312. 6. To Supreme Court. Under the Illinois Act an appeal lies to the Supreme Court from a judgment of the Circuit Court dismissing the employer's appeal from the order of the Superior Court awarding compensation, under a certiorari proceeding. Lavin v. Wells Bros. Co., 272 111. 609 ; 112 K E. 271. An appeal lies to the Supreme Court of Illinois from a judgment of a Circuit Court finding in claimant's favor on his appeal from a Digitized by Microsoft® APPEALS 1081 Record on appeal decision of a Board of Arbitration, under the Illinois Act of 1911. Christensen v. Bartelmann Co. (1916), 273 111. 346; 112 N". E. 686. A review may be had by suing out a writ of certiorari in the Cir- cuit Court and then taking the case to the Supreme Court by writ of error, which writ of error is issued on the certificate of the Circuit Court or on an order of the Supreme Court that the writ may issue. Munn V. Industrial Board (1916), 2Y4 111. 70; 113 K E. 110; 12 N. C. C. A. 652. 7. Record on appeal. Under section 19 (b) a statement of facts verified by the chairman of the Arbitration Committee is sufBcient to give the Industrial Board jurisdiction on review. Rossow v. Denvir, 1 Bull. 111. Ind. Bd. 141. In the last-mentioned case the Board held that the specific provisions of Rule 15 of the Board as to making up a record for review did not exclude other methods of making up the records. Where there has been a failure to supply the record before the Arbitration Committee within the time specified in the statute and no extension of time has been granted, a petition for review will be dismissed. Cohen v. Naughton, 1 Bull. 111. Ind. Bd. 211. The chairman of an arbitration committee has power to authenti- cate a statement of fact upon failure of parties to file a correct steno- graphic report or agreed statement of facts, and where parties fail to file stenographic report or agreed statement of facts within the time prescribed by law, but an authenticated statement is filed in apt time by the chairman of the Arbitration Committee, the Board may hear the case on such record. Bernstein v. Boihman, 1 Bull. 111. Ind. Bd. 163. Where there is a complete failure to file a record of the proceed- ings before the Arbitration Committee and no extension of time is secured, the Board loses jurisdiction of the application for a review. Birch field v. Erickson Brothers, 1 Bull. 111. Ind. Bd. 198. Failure to object to filing stenographic report of agreed statement of facts within the time provided by statute and going to trial, is a waiver of all questions concerning the regularity of proceedings before the Board. Blake v. Eershovitz, 1 Bull. 111. Ind. Bd. 161. A motion to dismiss for the want of a stenographic record was de- nied by the Illinois I?%#tei^j^MifC^fefi® i* appeared that a letter 1082 Decision by majority of board was addressed to the secretary of the Board requesting that the stenographic report be submitted for authentication. Hollas v. Illi- nois Steel Co., 1 Bull. Ill, Ind. Bd. 158; 8. Reviewing questions of fact. The Supreme Court can examine the record for errors of law only and where there is evidence fairly tending to show that a deceased workman was injured in the course of his employment the judgment must be affirmed. Armour & Co. v. Industrial Board (1916), 273 111. 590; 113 ]Sr. E. 138. Under the Illinois Act of 1913 questions of fact, determined by the Industrial Board, are conclusive, but an appeal lies to the Su- preme Court on questions of law. Victor Chemical Works v. Indus- trial Board of Illinois, 274 111. 11 ; 113 IsT. E. 173. The question of whether or not the employe was engaged in con- struction work is one of fact, the decision as to which of the Industrial Board is final if there was competent although controverted evidence to support the decision. Parker-Washington Co. v. Industrial Board, 274111. 498; 113 IST. E. 976. A finding that an accident arose out of and in the course of the employment, if supported by legal and competent evidence, is conclu- sive on appeal. Suburban Ice Co. v. Industrial Board (1916), 274 111. 630 ; 113 ISr. E. 979. ^ Where there is evidence tending to support an award of the Indus- trial Board it is error for the Circuit Court to quash the award on certiorari. Chicago & A. R. Co. v. Industrial Board of III. (1916), 274111. 336; 113 N. E. 629. On review by certiorari from the Circuit Court the Circuit Court can review only questions of law presented by the record. Munn v. Industrial Board (1916), 274 111. 70 ; 113 N. E. 110 ; 12 E". C. C. A. 652. Under the Illinois Act of 1911 the Supreme Court can only review questions of law, not questions of fact. Munn v. Industrial Board (1916), 274 111. 70; 113 N. E. 110; 12 N. C. C. A. 652. 9. Decision by majority of Board. Two members of ^^g^l^/^o^f/fe^Sote^ a right to hear a case APPEALS 1083 Damages for disfigurement, pain and suffering on the review from an arbitration committee. Moeller v. Bereda Mfg. Co., 1 Bull. 111. Ind. Bd. 66. 10. Trial de novo on review of arbitration committee. Upon a review by the Industrial Board of Illinois of an award made by an arbitration committee the proceeding is considered as a trial de novo and additional evidence may be introduced. Schweer V. Owsley, 1 Bull. 111. Ind. Bd. 74. ARTICLE E — IOWA 1. Error in computation. An error in the computation of the amount due cannot be corrected when objection is made for the first time on appeal, under the Iowa Act. Fischer v. Priebe & Co. (1916), Iowa ; 160 K W. 48. ARTICLE F — KANSAS ^ 1. Dismissal for want of merit. An appeal from an award of $1,872 to a dependent mother, who was sixty-two years of age and entirely destitute, and who was en- tirely dependent upon her son for support, was dismissed for want of merit under the Kansas Act. McCrachen v. Missouri Valley Bridge & Iron Co., 96 Kans. 353 ; 150 Pac. 832. Where the defendant appeals from the judgment rendered against him the plaintiff may, by a motion to dismiss the appeal, raise the question whether the questions of law involved are so doubtful as to require the filing of briefs, and if upon the hearing the court is fully sg,tisfied that no grounds for reversal exist, an affirmance will be ordered. Cain v. National Zinc Co., 94 Kans. 679 ; 146 Pac. 1165 ; rehearing denied, 94 Kans. 679 ; 148 Pac. 251. 2. Decision ordering lump sum payment. A decision by the trial court to allow the payments in a lump sum, instead of being made periodically, is not appealable, except for an abuse of the power of the lower cpurt. Qorrell v. Battelle, 93 Kans. 370; 114 Pac. 244. 3. Damages for disfigurement, pain and suffering. Where an employe cfe,p^dt'j9|%?e»gaM*^''° ^^*^ common-law 1084 Reviewing question of fact damages for disfigurement and pain and suffering, and all of these were allowed to be considered by the jury in rendering a verdict, it was held that the exclusive remedy of the employe was for compensa- tion under the statute and the judgment of the court below was re- versed. McBoherts v. National Zinc Co., 93 Kans. 364; 144 Pac. 247. ARTICLE G — MARYLAND 1. In which district appeal taken. Under the Maryland Act an appeal from the Industrial Accident Commission must be taken to the Circuit Court of the county where the employe and the employer reside; and where an insurer was within the jurisdiction of the Superior Court of Baltimore and ap- pealed to such court, although both employer and employe resided in another county and the insurance had been solicited there, it was held that the Superior Court of Baltimore City had no jurisdiction. Brenner v. Brenner, 127 Md. 189 ; 96 Atl. 287. 2. Additional testimony. An appeal to the Superior Court of Baltimore from a decision of the Industrial Accident Commission continuing the employe's com- pensation, the employer has a right to introduce additional testimony to show that after a certain date, when compensation was last paid, the employe was not suffering from the effects of the accident but from a disease. R. H. Frazier & Son v. Leas, 127 Md. 572 ; 96 Atl. 764. 3. Burden on appellant ; opening and closing. The appealing party having the burden of overcoming the decision which is prima facie correct, has the right to open and close- the argument, American Ice Co. v. Fitzhugh (1916), 128 Md. 382; 97 Atl. 999. ~ ARTICLE H — MASSACHUSETTS 1. Reviewing question of fact. The findings of the Industrial Accident Board of Massachusetts must stand on appeal if there is any evidence to support them. In re Fierro's Case, 223 Mass. 378; 111 N". E. 957; In re Doherty, 222 Mass. 98 ; 109 IST. E. 887. Digitized by Microsoft® APPEALS 1085 Reviewing question of fact The findings of the Industrial Accident Board are equivalent to the verdict of a jury or the findings of a judge and are not to be set aside if there is any evidence to support them. In re Savage, 222 Mass. 205 ; 110 ISI". E. 283 ; 12 N. C. C. A. 89i; Pigeon v. Employers Liability Assurance Corporation, 102 N. E. 932; 216 Mass. 51; 4 N. C. C. A. 516; In re Moore (1916), Mass. ; 114 N. E. 204; In re Coa; (1916), Mass. ; 114 N. E. 281 ; In re 5an- derson (1916), 224 Mass. 558 ; 113 N. E. 355 ; 12 IST. C. C. A. 374. A finding of the Industrial Accident Board will not be set aside by the courts if warranted by the evidence, although the courts might have found differently had they been called upon to decide the matter in the first instance. In re Von Ette, 223 Mass. 56 ; 111 N". E. 696. Where all the evidence is reported the case is open for revision on the question of law as to whether or not there was any evidence to support the finding. Kenney v. City of Boston, 222 Mass. 401 ; 111 ]Sr. E. 47. If there is any evidence to support such finding it is con- clusive. In re Herrick (Herrick v. Millett, Woodbury & Co.), 104 K E. 432 ; 217 Mass. Ill ; 4 N. C. C. A. 554. A finding of the Industrial Accident Board that an injury was due to the employer's serious and willful misconduct and allowing double compensation therefor, is final if there is any evidence to support it. In re Burns, 105 E". E. 601 ; 218 Mass. 8 ; 5 IST. C. C. A. 635. The finding of the Committee of Arbitration on the question of whether the injury to an employe was such as to render his hand permanently incapable of use, at a hearing held without objection, such finding being approved by the Industrial Accident Board and supported by reasonable evidence, is conclusive on appeal. Lemieux V. Contractors Mutual Liability Ins. Co., 223 Mass. 346 ; 111 N. E. 782. Where the finding of the majority of the Committee on Arbitration is affirmed by the Industrial Accident Board and in turn by the Su- perior Court, and the material evidence is contained in the return on appeal, the court may consider whether or not the finding is supported by the evidence. In re Fisher, 220 Mass. 581 ; 108 N. E. 363 ; 11 K C. C. A. 177. A finding of the Accident Board that an employe was actually in- capacitated -for work " in consequence of his physical injuries and the nervous shock ai3/6*5(?BCtl5<3<»Mi/J/-osiai§f^eld to be conclusive on l086 beadbuet's woekmen's compensation law Time within wliich appeal presented to Superior Court appeal, where there was any evidence to support it, where it appeared that the injury was caused by the falling of an elevator in which the employe was riding. In re Diaz {Diaz v. Fred T. Ley & Co.), 104 N. E. 384; 217 Mass. 36; 5 E". C. C. A. 609. Where the record does not disclose the evidence which was taken before the Arbitration Commission or the Industrial Accident Board, findings that a wife was not dependent upon her husband for sup- port, when they were separated at the time of the accident, and that a child was partially dependent, are conclusive. In re Bentley {Bentley V. Burnham Bros.), 104 N. E. 432 ; 217 Mass. 79 ; 4 IST. C. C. A. 559. Where the evidence is not reported a finding of the Industrial Accident Board cannot be disturbed on appeal. In re Beptimo, 219 Mass. 430 ; 107 N. E. 63 ; 7 IST. C. 0. A. 906. Where the return does not show whether or not all the evidence taken before the Accident Board is contained therein, it will not be assumed that all the evidence is contained in the return and questions depending upon such evidence cannot be reviewed by the appellate' court. In re SticJcley, 219 Mass. 513; 107 N. E. 350; 11 K C. C. A. 431. ' Where the record contains only " excerpts " of the testimony taken below, a finding will not be reversed on the ground that there was no evidence to support it. In re King, 220 Mass. 290 ; 107 1^. E. 959 ; 11 N. C. C. A. 368. Under the Massachusetts Act requiring an Arbitration Committee to return the evidence taken before it, it was held on appeal, that it would be assumed the committee had performed its duty in this re- spect and that all the evidence taken before it was in the return in the absence of a showing to the contrary. In re Brightman, 220 Mass. 17 ; 107 N. E. 527 ; 8 N. C. C. A. 102 ; L. K. A. (1916) A, 321n. 2. Time within which appeal presented to Superior Court. The provision of the Massachusetts Act that there shall be no appeal from a decree based upon an order or decision of the Board, which has not been presented to the court within ten days after the notice of the" filing thereof by the Board, does not mean that the case must be actually brought to the attention of a judge of the Superior Court within that time. It is a compliance with the statute if the required papers are presented to£^y£gg,rj5^^j^^^^ of being filed as part APPEALS Wife leaving husband for justifiable cause of its records. In re McPhee, 222 Mass. 1 ; 109 N. E. 633 ; 10 N. C. C. A. 257. 3. Review by certiorari. A decision by an arbitration committee, where no application is made for review by the Industrial Accident Board, is final, so far as an appeal is concerned from a decree entered in the Superior Court, but errors may be corrected by certiorari " or perhaps by some other appropriate remedy." Young v. Duncan {In re Young), 218 Mass. 346 ; 106 N. E. Kep. 1. 4. Exceptions. A review is by an appeal and not by the filing of exceptions. In re Employers' Liability Assur. Corporation (McNicol v. Patterson^ Wilde & Co.), 102 K E. 697; 215 Mass. 497; 4 K 0. 0. A. 522; L. E. A. (1916) A, 306n. The practice is generally in conformity with the rules of equity, although to review an award in the courts an appeal should be taken, as in an action at law, instead of filing exceptions as in equity cases. Re American Mutual Liability Ins. Co. {Gould v. Sturtevant Co.), 102 N. E. 693 ; 215 Mass. 480 ; 4 N. C. C. A. 60. 5. Stay pending appeal. Under the Massachusetts Act the single justice of the Supreme Judicial Court may restrain the operation of a decree entered by the Superior Court pending in appeal to the Supreme Judicial Court. Massachusetts Bond and Ins. Co. v. Peloquin (1916), Mass. ; 113 K E. 574. 6. Wife leaving husband for justifiable cause. Under the provision of the Massachusetts Act that the decision of the Industrial Accident Board, on the question of whether or not a wife left her husband for justifiable cause, shall be final, if there is any evidence to support it, it was held that justifiable cause need not be based on acts which would entitle the wife to a divorce, but might be ill-treatment or misconduct of a lesser degree, but could not be based on the fact that they were living apart by mutual consent. In re Newmans Case, IQ'^Z® Sj^9^/(^r2&«M®s. 563. 1088 BEADBUET S WOEKMEN S COMPENSATIOW LAW Original hearing before Board by stipulation 7. Proceedings before arbitration committee as foundation for de- cision of Board. Where the Industrial Accident Board of Massachusetts affirms and adopts the findings and decisions of the Committee of Arbitration, resort may be had to proceedings of that committee and the evidence there reported for the foundation of the conclusion of the Board. In re Madden, 111 IST. E. 379 ; 222 Mass, 487. 8. Harmless error. The erroneous admission of evidence, which does not harm the master or the insurer, does not warrant a reversal, under chapter 716 of the Laws of 1913 of the Massachusetts law, requiring the dis- regarding of harmless errors. In re Von Ette, 223 Mass. 56; 111 ]Sr. E. 696. 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 Assur- ance Corporation, 216 Mass. 51, 102 N. E. 932 ; 4 IST. C. C. A. 516. ARTICLE I — MICHIGAN 1. Effect of failure to appeal from Arbitration Committee to Board. The Supreme Court will not review on certiorari an award of a committee of arbitration as to which no appeal has been taken to the Industrial Accident Board. Schrewe v. New York Central B. Co. (1916), Mich. ; 158 IST. W. 337. 2. Origincd hearing before Board by stipulation. Where parties stipulated to waive an arbitration and have the In- dustrial Accident Board determine the controversy, they will not be heard, on appeal, to contend that the Board did not have jurisdiction to determine the matter. Vereeke v. City of Grand Rapids, Mich. ; 151 ISr. W. 723. Digitized by Microsoft® APPEALS 1089 Reviewing question of fact 3. Harmless error. The decision of the Industrial Accident Board need not be reversed for error in the admission of incompetent evidence when another and legal basis for its findings appears in the record. Fitzgerald v. Lozier Motor Co., Mich. ; 154 IST. W. 67. Where rejected evidence, even though accorded belief, would not affect the findings, its rejection is not of sufficient importance to in- validate the proceedings on appeal. Bell v. Hayes-Ionia Co. (1916), Mich. ; 158 IST. W. 179. 4. Remanding for further testimony. On certiorari to review an award of the Michigan Board, where the evidence leads the Supreme Court to doubt the correctness of the award the order of the Board will be reversed and the case remanded for such further hearing as the parties may desire. Carpenter v. Detroit Forging Co., Mich. 157 N. W. 374. 5. Reviewing question of fact. On certiorari to review the findings of the Michigan Board the question is whether there is any testimony in the record to support the finding. Eennelly v. Stearns Salt & Lumber Co., Mich. ; 157 N. W. 378 ; Bischojf v. American Car & Foundry Co., Mich. 157 N. W. 34. The Supreme Court, on certiorari, cannot review or weigh the evi- dence where there is some evidence to support the finding of the In- dustrial Accident Board. Spooner v. Detroit Saturday Night Co., Mich. ; 153 IST. W. 657 ; 9 K C. C. A. 647 ; La Yech v. Parhe, Davis & Co., Mich. ; 157 K W. 72; L. K. A. (1916) D, 1277 ; Grove v. Michigan Paper Co., Mich. ; 151 IST. W. 554 ; Bayner v. Sligh Furniture Co., 180 Mich. 168 ; 146 K W. 665 ; 4 N. C. C. A. 851 ; L. K. A. (1916) A, 22n; Bamlow v. Moonlahe Ice Co. (1916), Mich. ; 158 K W. 1027; Hills v. Blair, 182 Mich. 20 ; 148 N. W. 243 ; 7 N". C. C. A. 409. Findings of the Michigan Industrial Accident Board, in the ab- sence of fraud, are conclusive, if the facts proved are capable as a matter of law of sustaining the inferences drawn therefrom. Papinaw v. Grand Trunk By. Co. of Canada, Mich. ; 155 IS. W. 545. Where all the i^oi^mmi^^Ms^W' «^ ^^^t^^^^^^ "^. Zelinshy, 1 Cal. Ind. Ace. Com. (Part II), 496. The execution of a release in full of liability for compensation by an injured employe, in consideration of a payment of a sum of money, is not binding, in the absence of the approval of the Commission, under the California Act, and if there is no such approval, an appli- cation may be subsequently filed with the Commission and the total amount which may be due to the applicant under the law will be awarded, deducting therefrom any payments previously made. Barozzi v. Berlin & Lepori Co., 1 Cal. Ind. Ace. Com. (Part II), 484. Where the mate of a steamship lost a hand by reason of infection following a small accident and complicated questions of law were involved, a compromise settlement of $1,400 was approved by the California Commission. Serin v. Daisy Gadsby Steamship Co., 2 Cal. Ind. Ace. Com. Y25. Where an employe ^^gif^%\i^fji^icfPiSftW ^°°iflM/a?^i«lg?(6> the ruling of the At- GOMPEOMISING COMPENSATION CLAIMS 1147 New Jersey torney General, this agreement is binding on both parties. Bulletin No. 9, Minnesota Dep. Labor & Ind. 8. A settlement between plaintiff and his employer, by which the employer was released from all claims on account of the injury to the plaintiff, was held not to operate as a settlement or release of any claim for malpractice which the employe might have against the physician who treated him. Viita v. Dolan, Minn. ; 155 N. W. 1077; UN. CCA. 753. 9. Nevada. A release under the California Act in California by a citizen of California, was held to be a valid defense to an action by an employe in Nevada. Leach v. Mason Valley Mines Co. (1916), Nevada : 161 Pac. 513. 10. New Jersey. A claim for compensation for the death of an employe is not barred by his release in his lifetime contained in his application for admis- sion in the Employers' Eelief Association, where such release was executed before the Act took effect, nor does the release by the widow bar an action by the personal representatives for the benefit of the children. West Jersey Trust Go, v. Philadelphia & B. By. Co., N. J. Law ; 95 Atl. 753. A workman was employed to assist in loading and unloading wagons and also to assist in and about the care of l3ie wagons. H'e'was re- quested by his employer to grease a wheel of one of the wagons. While complying with this request and standing in front of the em- ployer'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 compensa- tion. 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. Perlshurg v. Muller, Essex Common Pleas, 35 N. J. Law J. 202. Since the above decision was made the New Jersey ' Act has been amended so as to give the employe an election of reme- Digitized by Microsoft® 1148 BEADS UEY's workmen's COMPENSATION LAW Washington dies in such a case. But the employer is entitled to a credit for the amount collected from the third person. The ends 'of two fingers of a workman had been removed and com- pensation was paid for a certain length of time, after which the in- surance 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 under- standing 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 misunder- standing. Pabisz V. Newark Spring Mattress Co., Essex Common Pleas, Feb. 1913 j 36 N. J. Law J. 114. 11. New York. A release upon payment of less than the amount provided for in the !N"ew York Act is void. Jenkins v. T. Hogan & Sons, Inc. (1917), 177 App, Div. 36; 163 Supp. 707. 12. Ohio. Where an employer in Ohio who has neither joined the State fund nor secured permission to carry his own risk, is made tbe defendant in a proceeding, because of the death of an employe, before the Indus- trial Commission, neither such employer nor his insurance carrier can make a settlement with the dependent claimant, without the ap- proval and consent of the Industrial Commission, and where such a settlement has been made, for a sum less than the claimant is entitled to receive under the Compensation Act, an award will be made for the difference. In re Bosensteel, 2 Bull. Ohio Ind. Com. 22. 13. Washington. A city cannot compromise a claim with an injured workman by the payment of a lump sum under the Washington Act. State v. Car- roll, Wash. ; 162 Pac. 593. Digitized by Microsoft® COMPEOMISING COMPENSATION CLAIMS 114§ Wisconsin 14. Wisconsin. Where a minor was employed contrary to law as to age and was injured in such employment, and thereafter a settlement was made through a guardian and approved by the Industrial Commission of Wisconsin, it was held, nevertheless, that the infant could maintain an action against the employer for common-law damages, as the com- pensation act did not apply to an infant so employed, and the very fact of his employment constituted gross negligence for which an action could be maintained. Stetz v. P. Mayer Boot & Shoe Co., 163 Wis. 151 ; 156 3Sr. W. 971. After an employe was injured his employer paid him for the actual time lost and took a release and subsequently the employe died from the injury and it was held that the release did not bar a claim by his dependents for compensation. Milwaukee CoTce & Gas Co. v. Indus- trial Commission, 160 Wis. 247; 151 JST. W. 245. Where an award was made to a minor, upon an agreement entered into between the minor and the employer, and the award was paid, but upon a sbusequent application it was found that the minor suf- fered greater injuries than it was supposed and that he was entitled, under the law, to additional compensation, it was held that a further award should be made under the circumstances, inasmuch as the first award was made on the agreement and not upon a hearing determin- ing the facts. Menominee Bay Shore Lumber Co. v. Industrial Com- mission of Wisconsin, Wis. ; 156 'N. W. 151. Compromise of compensation claims can only be made in cases of doubt under the Wisconsin Act and must be approved by the Com- mission. Third Annual Keport (1914), Wis. Ind. Com., p. 12, Digitized by Microsoft® CHAPTER XXVI COMMUTATION OF AWARD PAGE ' PAGB Article A — When Commuta- 7. Minnesota 1157 HON Allowed 1150 8. Nebraska 1157 1. British Act 1150 9. New Jersey 1158 2. California 1151 10. New Yorli 1160 3. Connecticut 1154 11. Ohio 1161 4. Illinois 1156 12. Pennsylvania 1161 5. Kansas 1156 13. Wisconsin 1161 6. Massachusetts 1157 ARTICLE A — WHEN COMMUTATION ALLOWED 1. British Act. In fixing the amount to be paid in a lump sum under the Alberta Act the condition, circumstances and future probabilities at the time of the hearing are matters which must be considered. Dutka v. Bank- head Mines (1915), Alberta Court of Appeal, 8 B. W. C. C. 650. 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 reg- istered, but this decision was overruled on appeal and the agreement was ordered to be 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 emplojmient, 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 work- man'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. 1150 Digitized by Microsoft® COMMUTATION OF AWAEB 1151 California Where the employers' right to redeem part of the payment of a lump Slim is absolute under the statute, the judge to whom the appli- cation 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), 5 B. W. C. C. 335. A boy had lost the sight of one eye and the other eye was affected. Compensation was paid on the basis of the amount the boy was earn- ing when the accident occurred. The employers applied for a re- demption, and the workman urged that he would be entitled to a larger simi based on the probable increase of his wages within a short period. It was held that the matter shoiild be sent back to the County Court to determine the question of permanent disability before mak- ing an award. Marshall Sons & Co. v. Prince (1914), 7 B. W. C. C. 755. An order for commutation should not be in the form that the weekly payments " may " be redeemed but should be positive in form. Calico Printers' Association v. Booth (1913), 6 B. W. C. C. 551. On an application to make a lump sum payment to a permanently injured workman an award of £534 was made. The employer con- tended that only £350 was due and obtained a stay pending the ap- peal by depositing £534 in court. The workman thereupon applied for leave to take out £50 to be used by the solicitor in resisting the appeal. It was held that no costs having been incurred the applica- tion was not warranted by any statutory provision and it was de- nied. Marshall, Sons & Co. v. Prince (1914), 7 B. W. C. C. 381. Where a miner suffering from an occupational disease accepted a specified sum in full discharge of all present or future claims, but there was a recurrence of the disease at a later date, which was found to be due to the previous employment, it was held that the workman was not barred by the discharge from recovering compensation for the disability caused by the disease at the later date. Clancy v. John Watson (1915), 8 B. W. C. C. 391. 2. California. Except in cases of exceptional urgency, as to enable a widow of a deceased employe to discharge a mortgage upon the family home, the Commission will not require an employer against his objection to Digitized by Microsoft® 1152 BEADBUEy's WOEKMEN's COMPENSATldlSr LAW California commute future payments, but where the employer or insurance carrier is willing to make the commutation, such commutation will be authorized where convenient to the applicant and the latter is shown to be competent to safely invest the proceeds without squander- ing them. Wilson v. Gallegher, 1 Cal. Ind. Ace. Com. (Part II), 306. Lump sum settlements are not favored by the California Commis- sion and will not be granted except where necessary for the protection of the rights of the applicant, or unless extreme need be shown.. Bedini v. Northwestern Pacific Railroad Co., 1 Cal. Ind. Ace. Com. (Part II), 312. In the last-mentioned case a lump sum settlement was approved where the nature of the injury was uncertain and the employe desired to return to his native country, provided that such lump sum be paid by the purchase of a ticket for transportation of the employer and the balance upon his departure and not before. Where the employe was suffering from a brain trouble, caused by the accident, so that he was stupid and unable to take care of himself, an application by the employer that the amount due should be fixed at a lump sum was denied, on the ground that it would not be for the best interests of the employe to receive the money in one sum. Cat- ierson v. County of Los Angeles, 2 Cal. Ind. Ace. Com. 751. Habits of intoxication of a workman will usually be sufficient to justify a denial of an applicant to commute a compensation award. Olson V. 8. J. Tice, 2 Cal. Ind. Ace. Com. 317. An application to commute a compensation award was denied, where it was made on the ground that the employe desired to purchase furniture for a rooming house and to pay off a mortgage on property of his mother in Wisconsin, but there was no showing the necessity for these expenditures to the satisfaction of the Commission. Kruger V. Strehlow, Freese i& Peterson, 2 Cal. Ind. Ace. Com. 367. Where a widow was shown to be possessed of business experience, economical and thrifty, the owner of her own home and thoroughly capable of handling money and the employer advised the commuta- tion, it was held that this was sufficient to warrant the award of a lump sum settlement. Oreen v. The County of Alameda, 2 Cal. Ind. Ace. Com. 617. Where a stevedore who had accidently lost one of his eyes and was unable longer to %}^^^Sj!jJ?'fl^c3:fSH^@fted commutation, as he COMMUTATION OF AWAED 1153 California desired to return to Norway where lie o^yned a home which was occu- pied by his parents and where he could take up the business of a fisherman, and it appeared that he was an industrious, temperate and thrifty man, it was held that this was sufficient evidence to award a commutation, Olsen v. W estern' Fiiel Co., 2 Cal. Ind. Ace. Com. 623. Commutation was refused where the ground therefor was that the applicant desired to return to Spain and purchase a small farm. Pena v. Mammoth Copper Mining Co., 2 Cal. Ind. Ace. Com. 627. Where a death claim was awarded against an employer who it was shown was about to wind up his business and depart from the State of California, and was uninsured, it was held that this was good ground for commuting the claim to a lump sum payment. Decounter V. United Oreenwater Copper Co., 2 Cal. Ind. Ace. Com. 691. A request for commutation to permit an employe to purchase cattle to start a dairy business was refused. Casson v. Northwestern Pacific By. Co., 2 Cal. Ind. Ace. Com. 720. Where the only reason assigned for commutation of an award for a permanent total disability is the desire of the applicant to return to his native country and to invest the balance there, such reason is not sufficient. Galante v. Mammoth Copper Mining Co. of Maine, 2 Cal. Ind. Ace. Com. 723. Where a widow in California desired to return to her relatives in an eastern State a portion of the afward was commuted for that pur- pose. Pashade v. Boss Construction Co., 1 Cal. Ind. Ace. Com. (Part II), 479. A commutation was allowed in part to permit an injured employe to discharge a chattel mortgage on his household furniture. Cushing V. Healy Tihhitts Construction Co., 1 Cal. Ind. Ace. Com. (Part II), 524. A partial commutation of an award was ordered where it appeared that the workman had entered into a "contract to purchase a farm be- fore his injury and he would be unable to complete the purchase unless he received an award. State Compensation Insurance Fund V. E. L. Ernest, 1 Cal. Ind. Ace. Com, (Part II), 268. Commutation was awarded where the insurance carrier was willing to make it, on the groig^y^at, ge^end^t widow desired to pur- 73 1154 BEADBUET S WOEKMEN S COMPENSATION LAW Connecticut chase a home near her relatives. Owen v. Mahoney Brothers, 1 Gal. Ind. Ace. Com. (Part II), 308. A commutation of an award to a dependent mother was allowed in order to permit her to discharge a mortgage upon her home. State Compensation Insurance Fund v. Jacohsen, 1 Cal. Ind. Ace. Com. (Part II), 311; Gilhaus v. Cohb, 2 Cal. Ind. Ace. Com. 804; Bul- finch V. Madera Sugar Pine Co.,1 Cal, Ind. Ace. Com. (Part II), 438. A portion of an award was commuted to help the mother who was the sole dependent, pay a mortgage on her home. Yeager v. Western Pipe and Steel Co., 1 Cal. Ind. Ace. Com. (Part II), 473. The commutation of a portion of the award to a lump sum will be allowed where the amount so raised is to be applied in removal of incumbrances on the family home, in defraying funeral expenses and -in meeting an unsecured note given by the deceased. Kennedy v. The Guardian Casualty and Guaranty Co. and Conner Contracting Co., 1 Cal. Ind. Ace. Com, (Part II), 152. Commutation of a portion of an award was allowed to permit a dependent widow to pay up indebtedness incurred by her in connec- tion with the death of a son, subsequent to the award being made. Cornell v. Jacobsen-Bade Co., Lundstrom Co., 1 Cal. Ind. Ace. Com. (Part II), 217. The commutation of an award was allowed where the injured employe was a man thirty-four jsears of age, who desired to start a small grocery store in a community where the chances of success were found to be good, after investigation by the Commission. Kelly v. Snare & Triest Construction Co., 1 Cal. Ind. Ace. Com. (Part II), 471. Where an employe has experienced difficulty in collecting weekly compensation claims and the employer files a petition in bankruptcy this is a good reason for allowing a commutation of the claim to facilitate the collection of the. amoimt in bankruptcy. Ponder v. Adams & McBratney, 1 Cal. Ind. Ace. Com. (Part II), 207, note. 3. Connecticut. Where the claimant had a wife in Italy and he was seriously dis- abled, commutation was allowed to permit him to return to Italy, sufficient money being ^'^W ^^rMOT^tMtion and the balance COMMUTATION OP AWAED 1155 Connecticut deposited in an Italian bank. Bucherri v. The Hartford Rubber Works Co., 1 Conn. Comp. Dec. 622. Where the employe was still incapacitated and it appeared that a surgical operation was necessary, but the employe had received medi- cal treatment for the full thirty days and did not have sufficient funds to pay for a necessary surgical operation it was held that this was not a good ground for commuting the award. Cushner v. H. C. Bowe & Co., 1 Conn. Comp. Dec. 574. A commutation of a portion of a death claim was allowed to permit a widow with two sons to buy and stock a small farm. Riley v. Walsh, 1 Conn. Comp. Dec. 505. Commutation was allowed to a widow with a large family of small children for the purpose of paying a mortgage on the homestead and holding the family together. Clarke v. Bigelow-Hartford Carpet Co., 1 Conn. Comp. Dec. 166. A request for commutation was refused where the ground thereof was that the dependent was a non-resident alien and that by commut- ing the same now there would be considerable gain owing to the present rate of exchange between Italy and the United States. Fah- hian v. C. W. Blakeslee & Sons, 1 Conn. Comp. Dec. 305. An alien who had suffered fracture of a bone in the leg and the bone having united at a angle, making the workman very awkward and a new operation having been advised of the breaking of the bone and resetting, which the workman resisted, it was held under the circumstances that the workman's application for commutation so that he could return to his native country, Italy, should be denied. Morgillo, alias Morgean r. W estinghouse. Church, Kerr & Co., 1 Conn. Comp. Dec. 311. Where the contract of insurance between the employer and the insurance carrier provided -that upon the request of the assured, im- mediately upon the proving of a death claim or serious accident, that the insurer would forthwith pay to some bank or trust company a sum sufficient to provide the liability and the insurer had designated a particular trust company, an order was made commutting the award on a death claim and directing that the same be paid to said trust company. Trumbull v. Trumbull Motor Car. Co., 1 Conn. Comp. Dec. 304. The b^st way to disgo^,^^f ^^ne^j^otic^c^ is to order a lump sum 1156 BEADBUKYS WOEKMEN S COMPENSATION LAW Kansas settlement. Intorigne v. Smith & Cooley, employer, 1 Conn. Comp. Dec. 228. 4. Illinois. Under the Illinois Act of 1911 an order allowing a commutation was reversed where it appeared that the beneficiary was a woman fifty-eight years of age and in ill health, who might not live the period of time the employer was obligated to make the payments in instalments, and that the court, in making the commutation order, did not give proper effect to these facts. Matecny v. Vierling Steel Worhs, 187 111. App. 448. Where a lump sum payment was ordered under the Illinois Act of 1911, it was held that the amount awarded should be the present worth of the sum to which the petitioner would be entitled under the law. Staley v. Illinois Central Railroad Co., 186 111. Cen. 593 ; 109 N. E. 342. 5. Kansas. The trial courts are vested with discretion imder the Kansas Act whether compensation should be awarded in a lump sum or in weekly payments. Ackerson v. National Zinc Co., 96 Kans. 781; 153 Pac. 530. The provision of the Kansas Act allowing the employer to redeem all future payments by making a lump sum payment of 80 per cent, of the amount which will become due in the future, has no applica- tion to an award in a lump sum made by the court upon a trial under the Act, as the amount awarded is the lump sum due without any diminution. Roberts v. Charles Wolff Packing Co., Kans. ; 149 Pac. 413. The Kansas Act confers express power upon the trial court to render judgment in a lump sum instead of making an award of periodical payments and in every case the trial court must exercise its judgment and discretion as to the best method of making com- pensation in the light of all the facts and the result will not be dis- turbed on appeal, except for an abuse of the power. Oorrell v. Bat- telle, 93 Kans. 370 ; 144 Pac. 244. A lump sum judgment may be awarded, under the Kansas Act, where the Proceeding ^or^cg^gc^^y^^^jgn is conducted before the OOMMTTTATION OF AWAED 1157 Nebraska court and a jury, and such a lump sum judgment may be awarded even though the employer was not in default in paying compensation at the time the action was brought. Girten v. National Zinc Co, (1916), Kans. ; 158 Pac. 33. Under the Kansas Act the allowance of a judgment in a lump sum is within the discretion of the trial court. McCorMe v. Bed Star Mill & Elevator Co. (1916), Kans. ; 160 Pac. 983. 6. Massachusetts. The Board has ruled that it has no authority to approve the pay- ment 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. 7. Minnesota. Under the Minnesota Act, as amended in 1913, the court has no authority to commute compensation payments unless the parties agree. State ex rel. Anseth v. District Court of Koochiching County (1916), Minn. ; 158 N. W. 713. 8. Nebraska. The District Court cannot enter judgment for a lump sum under the ISTebraska Act without the agreement of parties. Johansen v. Union StocTcyards Co. of Omaha, Webr. ; 156 N". W. 511; Except in cases of death or permanent disability in which cases it can only be made by consent of the District Court. Pierce v. Boyer- Van Euran Lumber & Coal Co., Nebr. ; 156 N. W. 509. The parties may agree on a lump sum payment after the amount of compensation has been fixed, either by agreement or by decision of the court, but there is no provision in the Act by which either the employer or the em^^q^^m^dPfSf^fiolwm sum payment. Bailey 1158 New Jersey V. United States Fidelity & Guaranty Co., Neb. ; 155 N. W. 237. A lump sum settlement is a departure from the normal method of payment and is to be allowed only when it appears clearly that the condition of the beneficiaries warrants such departure. But there is no requirement, under the Nebraska Act, applying to residents of this country, that six months must elapse before an agreement for a lump sum payment may be made, or the consent of the District Court be procured to such an agreement. It was therefore held that a lump sum settlement, made by taking the present value of the periodical payrofints computed at 5 per cent, simple interest, was proper. Bailey v. United States Fidelity & Guaranty Co., Nebr. ; 155 N. W. 237. 9. New Jersey. On the first hearing the court determined that it would be im- possible to tell whether there would be a permanent total disability or not, but that there at least would be a disability of 200 weeks and an award was made for an amount covering that period which award was also commuted to a lump sum, with permission to the employe to apply within one year for a further hearing to determine whether or not the disability was permanent. Upon such second, application it was found that there was a permanent total disability and an award of compensation for 400 weeks, the longest period allowed under the New Jersey Act, was made. It was held that the payments under the second award should begin 200 weeks after the beginning of the payments under the first award notwithstanding there had been a commutation and that it was error to order payments to begin on the second award before the expiration of said 200 weeks on the first award. Diskon v. Buhh, N. J. Law ; 96 Atl. 660. In commuting periodical payments to a lump sum it is erroneous to multiply the weekly minimum by the prescribed number of weeks as a deduction must be made sufficient to reduce the lump sum to the present value of the periodical payments. Banister Co. v. Kriger, 84 N. J. L. 30 ; 85 Atl. 1027 ; 3 JST. C. 0. A. 585. Where the employe had lost a hand and his wife and children were in Italy where he desired to return on the ground that he could not secure remunerative g»|ji)^gga(i6ytMferbkif®esent -physical condition, COMMTTTATION OF AWARD 1159 New Jersey it was held that this was a proper case to allow commutation, even though the employer objected to the commutation. Panacona v. Vul- canite Portland Cement Co. (Warren Common Pleas, 1914), 37 N. J. Law J. 75. The mere fact that the compensation awarded will be insuiScient to support a workman and his family is not a sufficient ground for commuting the award where it appears that the workman is still able to earn something. O'Connor v. Babcock & Wilcox Co. (Morris Com- mon Pleas, 1914), 37 K J. Law J. 275. Under the New Jersey Act the judge who is requested to commute ' an award should not determine upon a lump sum as in an action at common law, but he must first determine what sum should be paid periodically under the statute and then state the method by which he reached the result and the reasons that induced him to commute the periodical payments in a lump sum. Mockett v. Ashton, 84 N. J. Law 452 ; 90 Atl. 127 ; 4 K C. C. A. 862. A direction by the Court of Common Pleas that weekly payments should be commuted to a kimp sum, pursuant to section 21 of the Act, should be based on specific findings of fact supported by legal evidence. New York Ship Building Co. v. Buchanan, 84 'N. J. Law 543 ; 87 Atl. 86. In giving a lump sum judgment allowance should be made for the difference in value between the lump sum to be presently paid and the value of the weekly payments to be made thereafter. Baur v. Court of Common Pleas in and for Essex County, 'N. J. Law ; 95 Atl. 627 ; 11 N. C. C. A. 634. A workman by reason of an injury had had one kidney removed and was unable to do the work which he had been doing at the time of the injury. He had an opportunity to receive employment at a city somewhat distant, which was his native place and where he had relatives and friends. He had a wife and seven children, ranging in age from seven months to thirteen years. Three children were ill, one of them being affected with hip disease, requiring constant medi- cal attention. The workman himself had incurred indebtedness for doctor's bills and other bills had been incurred for groceries, furni- ture and other living expenses. His living expenses were consider- ably in excess of the compensation payments then being received. It appearing to a reasoiQ^y^^ti&jntec^kfc/ffe? ™an might be at least 1160 New York disabled for the full period allowed in the statute, it was held that commutation was proper and was so ordered. O'Connor v. Bahcoclc & Wilcox Co. (Morris Common Pleas, 1915), 38 IST. J. Law J. 85, 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 informa- tion received from others. Under such circumstances the court re- fused to make the order for commutation. Dikovich v. American Steel and Wire Co., 36 N. J. Law J. 304. 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, N. J. Law ; 86 Atl. Rep. 529. • A widow with small children desired a commutation of award so that she could return to Kussia from whence she had come with her husband nine months before. The court took into consideration the fact that war was in progress in Russia and that the family would be better off in this country than in Russia at the present time and re- fused the application. Vitovitch v. Empire Steel and Iron Co. (Morris Common Pleas, 1915), 38 N. J. Law J. 315. 10. New York. A specific award for the loss of an eye cannot be commuted to a lump sum, under the New York Act, as the right to such payments does not survive the death of the employe. Wozneak v. Buffalo Gas Co. (1916), 1Y5 App. Div.^268; 161 Supp. 675. The commutation of an award to a widow and requiring the deposit of a sum to meet it, is not authorized under the New York Act, in view of the contingency of the widow's remarriage, which would bring about a cessation of the payments to her. Adams v. New York, Ontario & Western By. Co., N. Y. ; 114 N. E, 1046; aff'g 175 App. Div. 714; 161 Supp. 919. Where an employe entered into a contract of employment in New Jersey and was killed while employed there, and his widow who was also administratrix of hi& esta|a brought an ^tion in New York, for COMMUTATION OF AWAED 1161 Wisconsin the minimum lump sum provided for in a death case under the New Jersey Act, it was held that she could not recover in the New York courts, principally for the reason that the New Jersey Act provided that the Court of Common Pleas of New Jersey had jurisdiction to determine whether or not a lump sum payment should be made, and such court not having so determined an action could not be main- tained in the New York courts to recover such a lump sum. Mc- Carthy V. McAllister Steamboat Co., 94 Misc. 692; 158 Supp. 563. 11. Ohio. The word " commute " in the Ohio Act means that the Board, by commuting payments, pays to the dependent something less than he otherwise would receive. State ex rel. Munding v. Industrial Com- mission of Ohio, 111 N. E. 299 ; 92 Ohio St. 434. 12. Pennsylvania. Under the Pennsylvania Act commutation in death cases will be awarded only in rare cases and where very special circumstances are shown for granting such an order. Stifura v. Pressed Steel Car Co., Pa. Workmen's Compensation Bd., July 20, 1916 (unreported). 13. Wisconsin. 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 Commis- sion 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 memorandum 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. Digitized by Microsoft® CHAPTER XXVII INSURANCE OF COMPENSATION CLAIMS PAGE Abticle a — Introduction 1163 1. Character and necessity of sBch insurance 1163 Article B — Rights and Lia- BiLiTiBs OF Insurance Cabriees Generally 1166 1. Coverage of policy 1166 2. Policy covering only one of several dififerent classes of business conducted by em- ployer 1169 3. Recurrence of disability ; liability of insurance car- rier whose policy was in force when accident hap- pened 1169 4. Minors employed contrary to law 1169 5. Loaned employe 1170 6. Employe of corporation as- sured doing work on stockholder's house 1170 7. Liability to employes of sub- contractor when policy is- sued to principal contrac- tor 1170 8. Liability of insurance car- rier for compensation to officer and majority stock- holder of corporation 1171 9. Creditor of employer in charge of business under power of attorney 1171 10. Member of partnership 1171 11. Liability of insurance car- rier even though premium unpaid 1171 12. Policies must comply with Act 1172 13. Fraud in securing policy... 1172 14. Breach of warranty in policy ; effect 1172 16. Com- 17. 18. 19. 20. em- Construing policy by mission Joint award against ployer and insurer Jurisdiction over a con- troversy between employer and insurance carrier Failure of insurance car- rier to furnish adequate medical attention Medical charges ; bone set- ter not regularly licensed as physician 21. Direct liability 22. Waiver of insurance carrier of right to designate phy- sician 23. Change of physicians 24. Change of physician by con- sent of employer, but with- out notice to insurance car- rier .'.' '. Medical attention ; regula- tions Offsets allowed to em- ployer ; defective insur- ance 27. Subrogation to insurance carrier of right to furnish medical attention Subrogation of right to re- cover against third person Substitution of insurance carrier for employer Bound by agreement be- tween employer and em- ploye for lump sum pay- ment Self insurer Cancellation of policy 33. Status of those insured in stock companies as com- pared with those insured 25, 26. 28. 29. 30. 31. 32. 15. Failure of employer to give notice to compa^ -^y^^^^^ M;cfe^#*^te fund 1162 PAGE 1173 1173 1173 1174 1174 1174 1175 1175 1175 1176 1176 1176 1176 1177 1178 1178 1179 1180 INSTJEANCE OF COMPENSATION CLAIMS 1163 Character and necessity of such insurance 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 direct recovery by a workman, or the representatives of a deceased employe, 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 in- solvent, or bankrupt, and cannot pay a judgment against him, ren- dered because of the injury or death of an employe, the insurance company has entirely escaped liability. The companies have uni- versally 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 em- ployer must actually pay the money before it is liable the insurance company escapes payment. In many of the States the compensation acts require the companies to issue policies giving a direct remedy to employes. It is obvious, from the wording of some of the statutes, that the various legislatures have not fully understood this subject. They have, in some instances, given to the employes the same right to recover against the insurance company that the employer has. Of course, this inadequately pro- tects the rights of the employe. If they go a little further and say that the employes shall have the same right to recover against the insurer that the employer would have had if he had paid the com- pensation to the employe, this will be better. But even this is not entirely satisfactory, 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, -i Because the employe may still find himself enmeshed in a net of technicalities by the require- ment that the liability of the insurer must be predicated upon a judg- ment after a trial. Such a provision might be appropriate in com- mon law, or so called emDlovers' liability cases, as distinguished from ' DigJtized by Microsoft® 1164 Character and necessity of such insurance workmen's compensation controversies, but it is utterly unfitted for the latter, in which periodical payments are the rule. One of the most effective and comprehensive acts on this subject has been passed in Connecticut. Obviously those who drew the statute understood the subject. 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 em- ployers 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 workmen who had been killed, as well as injured workmen themselves, 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 re6ent laws and is becoming a fixed policy in most of the Ameri- can States. Up to this time four methods of insuring such payments have been' devised. One is to compel the employer to demonstrate that he is of sufiicient financial ability to insure such payments himself. This rule would apply to large corporations, 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 insur- ance fund. These problems are comparatively new and are now being worked out in a number of States. The old employers' insurance policies were invariably limited in amount. That is, it was specified that the company should not be liable for a sum in excess of $5,000 by reason of the injury to or death of one employe, 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, poli- cies 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 ^Si1flzS§hP9i^iSi9)^Mf§y^^'^' ^'^(^^ policies are INSURANCE OF COMPENSATION CLAIMS 1165 Character and. necessity of such insurance 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. "What is said above is exemplified somewhat by the decisions under the British Act. Thus under the British Columbia Compensation Act it was held that a workman could not recover from a liability insur- ance company which had issued a policy to his employer who sub- sequently became insolvent. Disourdi v. Sullivan Oroup Mining Co. and Another (1910), 15 B. 0. K. 305 ; 4 B. W. C. C. 462. An injured workman was paid compensation by a company which became 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 alleged that there was a dispute between them and the workman's employers as to whether the latter had taken precautions against accidents, as required by the policy, and that until this dis- pute 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 section 6 of the British Columbia Workmen's Compensation Act of 1902, as to the payment into court, can be invoked. Disourdi v. Sullivan Oroup Mining Company and Maryland Casualty Co. (No. 2) (1909), 14 B. C. K. 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 section 6 of the British Columbia Compensation Act must be decided in an action commenced in the ordinary way and that the rules made under section 6 were ultra vires. Disourdi v. Sullivan Group Mining Co. and Maryland Casualty Co. (No. 3), 14 B. C. K. 273 ; 2 B. W. C. C. 514. Under the British Act, where the employer had become bankrupt the indemnity company which had insured the employer's compensa- tion risks was requirg4teze«9#Mc^(5^P^^^^*^°^ payment to the 1166 Coverage of policy workman. Bonsall v. Midland Colliery^ etc.. Indemnity Co. (1914), 7 B. W. 0. C. 613. Where an employer has become bankrupt and the trustee in bank- ruptcy redeemed a lump sum payment and then sought to recover the amount with costs from the insurance company, it was held, under section 5 of the British Act, that the employer's rights were trans- ferred to and vested in the workman and he alone could make a claim against the insurance company in the event of his employer becoming insolvent. Craig and Hancock v. Royal Insurance Co. (1914), 8 B, W. C. C. 339. Where an employer has become bankrupt the liability of the in- demnity company accrues as from the date of the accident and this liability is not affected by any subsequent conduct on the part of the employers. Dajf v. Midland Colliery Owners' Mutual Indemnity Co. (1913), (House of Lords), 6 B. W. C. C. 799. After paying compensation to an injured workman for some time, the employers became bankrupt. They were insured in an insur- ance company which also soon after became insolvent. The workman attempted to prove his claim against the employers, but it was held that under section 5 of the British Act, the employers being insured, fhe only remedy of the workman was against the insurers and that there was no right to preferential payment. In re Pethich, Dix & Co.-Burrows v. The Company (1914), 8 B. W. C. C. 337. A society under the British National Insurance Act which is liable to a workman provided compensation is not awarded up to a specific amount, is not a party to the proceeding to obtain compensation in such a sense as to permit the society to intervene and take part in the proceedings, as a party thereto. Bonney v. Joshua Hoyle & Sons (1914), 7 B. W. C. C. 168. ARTICLE B — RIGHTS AND LIABILITIES OF INSURANCE CARRIERS GENERALLY 1. Coverage of policy. Where an insurance policy issued to a water company specifically provided that it would not cover work in connection with tunnels and an employe was accidentally killed while working in a tunnel, it was held that the insurance company was not liable for the death benefit, notwithstanding a provision in the policy whereby it covered acci- Digitized by Microsoft® INSUEANCE OS- COMPENSATION CLAIMS 3167 Coverage of policy dents arising in connection with work not specifically scheduled but which was more hasardous than the work scheduled. Robinson v. P. T. Durfy, doing business as the Sherman Water Company, 2 Cal. Ind. Ace. Com. 985, Where a policy was issued covering employes engaged in general farming and an employe was injured while engaged in a mercantile employment, it was held that the insurance company was not liable for compensation. Chenoweth v. Bones, 2 Cal. Ind. Ace. Com. 96. Where an unlimited policy is issued, under the California Act, without an endorsement thereon in large type, as prescribed in section 35 (a) of the Act, limiting said policy, such policy covers the em- ployes of subcontractors as well as those of the assured, even though the schedule of statements on which the policy is issued contains a statement that at the time the application is made no subcontracting is being done. Walker v. Santa Clara Oil and Development Co., 2 Cal. Ind. Ace. Com. 5, An insurance policy specified the business of the insured as " wine and spirit merchant." By its terms it included any employe of the insured. An employe in a double capacity of bartender and boarding house clerk was injured in escaping from a ilre while on duty as clerk and in endeavoring to save valuables entrusted to him as bar- tender. It was held that the insurance carrier was liable for com- pensation, under the California Act. Mills v. Porath (1916), 3 Cal. Ind. Ace. Com. 360. An insurance policy omitted to specify that watchmen were covered, but it was held that a watchman employed by the assured was covered by the policy nevertheless under the California Act. Speer v. Citrus Belt Racing Ass'n of Corona (1916), 3 Cal. Ind. Ace. Com. 379. Where A secured a policy of insurance to cover those employed by B and it appeared that B was merely the superintendent of A, it was held nevertheless that the insurance carrier could not be held liable to an employe of A, under the California Act. Hartford Accident and Indemnity Co. v. Reclamation District No. 900, Yolo County, California (1916), 3 Cal. Ind. Ace. Com. 266. The scope of an insurance policy, under the Massachusetts Act, cannot be limited by contract between an employer and the insur- ance company. In re Cox (1916), Mass. ; 114 N.E. 281. A policy cannot be M^WM/mW^^ Minnesota Act elimi- 1168 beadbuey's woekmbn's compensation law Coverage of policy nating medical attention. Bulletin No. 9, Minnesota Dep. Labor & Ind. 11, 12. The owner of real estate had two particular apartment houses, which, for convenience, are designated A and B. The janitor was regularly connected with apartment house A and was directed by the owner to go to apartment house B to fix a broken water guage and while doing this work was accidentally injured. Policies of work- men's compensation insurance were issued by two different companies on apartment houses A and B. It was held that the insurance car- rier covering the apartment house where the accident actually oc- curred was liable for the compensation even though the employe was regularly connected with apartment house B and was sent from there to the apartment house A to do this special work under the New York Act. Schweizer v. Schreiner (1916), 9 IST. Y. St. Dep. Eep. 337. In the last-mentioned case the Commission says : " Neither the State Workmen's Compensation Commission nor the State Industrial Com- mission, its successor, has adopted any rule permitting an insurance company to issue a policy limited to particular premises. In each policy there is a declaration stating the location of the buildings to which the respective policies applied and these buildings were stated in the respective ploicies as above designated." The son conducted his father's business for many years without any special arrangement as to the amount of salary which he should draw, although he drew consideVable sums by express consent of the father. The father offered to give the son a share in the business but the son refused. Upon an audit of the books of the business the wages of the son were excluded as a basis for premium to the insurance carrier. But this fact was not brought to the attention of either the father or the son. Upon the death of the son, through an accidental injury, in connection with the business, it was held that the son's dependents were entitled to compensation and that the insurance carrier was lia- ble therefor under the New York Act. Howard v. Oeorge Howard, Inc. (1916), 9 N. Y. St. Dep. Eep. 355. An insurance policy stated the business of the employer to be " country club, clubhouse and other buildings, grounds, hunting, fish- ing and pleasure resort, including ice harvesting, forestry and logging operations." An employe was injured in the logging operations. The insured was a membership corporation organized as a club and Digitized by Microsoft® INSUEANCE OF COMPEINSATION CLAIMS 1169 Minors employed contrary to law was not authorized by law to enter into business operations for profit. It was held nevertheless that the insurance company having issued the policy covering logging operations, that it was liable to an employe who was injured in such hazardous employment even though the in- sured was conducting such operations in violation of law, Uhl v. Hartwood Club (1917), 177 App. Div. 41; 163 Supp. 744. 2. Policy covering only one of several different classes of business conducted by employer. Under the Connecticut Act it was held that where an employer was engaged in several different lines of business, that a policy could be issued restricting liability of the company to the compensation due to the employes in one of said occupations. Wright v. Barnes and Fidelity & Casualty Co. (Conn. Superior Court), 1 Conn. Comp. Dec. 260 ; reVg Id. 248. 3. Recurrence of disability; liability of insurance carrier whose policy was in force when accident happened. Where an employe suffered an injury which caused him pain and inconvenience, but he still continued to work and subsequently by reason of a heavy strain the condition caused by the first injury was aggravated and he became disabled, it was held that the disability was due to the first injury and compensation was awarded accordingly. Wentworth v. The Chamberlain Co., 1 Conn. Comp. Dec. 588. In the last-mentioned case the controversy was in reality between two insurance companies, as one company was the carrier when the first injury occurred and another company was on the risk when the second injury happened. 4. Minors employed contrary to law. Where an insurance policy, by its terms, provides that it is not to cover injuries to minors employed in violation of law as to age, and the insured employed a minor without having first obtained from the superintendent of schools an official permit required by law allowing said minor to be so employed, it was held that the insurance carrier was not liable for compensation for an injury sustained by such minor in the course of his employment under the California Act. Crowley V. Davis-Schonwasser & Co. (1916), 3 Cal. Ind. Ace. Com. 242. ^^ Digitized by Microsoft® 1170 Liability to employes of subcontractor 5. Loaned employ^. Where an employe is loaned to a third person to perform work of a nature entirely different from that as to which the original employer has insured under a workmen's compensation policy, a recovery can- not be had against the insurance company for accidental injuries suf- fered while the employe was engaged in the work of such third party. Bayer v. Bayer (1916), Mich. ; 158 KT. W. 109. 6. Employ6 of corporation assured doing work on stockholder's house. Where a carpenter employed by a laundry to do general repair work had been in the habit, for a long period of time, under the direction of the officers of the laundry corporation to do repair work on the houses of the individual stockholders, and he was thus engaged when killed, it was held that the man was engaged in the usual course of the business of his employer and that the injury arose out of the employment, by reason of the long established custom of doing such work for individual stockholders, but that the insurance carrier who insured " laundry help " only and did not include carpenters em- ployed by the laundry for outside work was not liable. English v. Gain, 2 Cal. Ind. Ace. Com. 404; 11 N. C. C. A. 376. 7. Liability to employes of subcontractor when policy issued to ' principal contractor. Under the California Act an award was made against a general contractor, a subcontractor and the insurance carrier, where the em- ploye was employed by the subcontractor and the subcontractor was not insured but the general contractor was insured. Thaxter v. F. W. Thaxter, E. A. Janssen and Aetna, Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 196. The insurance carrier of the main contractor is liable for com- pensation to a workman of a subcontractor, under the Massachusetts Act. Tishler v. Frankfort General Ins. Co., 1 Mass. Ind. Ace. Bd. 4. But upon a rehearing, it appearing that the policy of insurance to the main contractor was not issued until after the accident, it was held that the insurance carrier was not liable. Tishler v. Fidelity and Casualty Co. of Nev) Yorh, 1 Mass. Ind. Ace. Bd. 6. " Digitized by Microsoft® INSURANCE OF COMPENSATION CLAIMS 1171 Liability of insurance carrier even though premium unpaid 8. Liability of insurance carrier for compensation to officer and majority stockholder of corporation. The president and majority owner of the stock of a corporation was killed while acting as superintendent and it was held that the insur- ance carrier of the corporation was liable for the death benefit under the California Act. Angus v. White Gulch Mining Co., 3 Cal. Ind. Ace. Com. 87. In the last-mentioned case the policy expressly ex- empted certain executive officers, not including the superintendent, as " not exposed to the operative or mechanical hazard of the work." 9. Creditor of employer in charge of business under power of attorney. Where the full control of a wine business was turned over to a cred- itor under a power of attorney, such creditor to manage the business for the benefit of himself, the other creditors and the owner of the business and the regular employes of the business were still employed, it was held that such employes were still employes of the owners and not of the creditor who had control and the insurance carrier of the owners was liable for compensation to employs who were injured after such creditor took control. Zanotti v. Aquilino & Lagomarsino Co., 3 Cal. Ind. Ace. Com. 53, 10. Member of partnership. A member of a partnership cannot be treated as and assume the status of an employe of the partnership even though in addition to his share of the profits he receives wages for his labor as teamster for the firm, and the partnership not being liable the insurance carrier of the partnership has no greater liability than the partnership itself to the members of the firm. Beinking v. Aetna Life Ins. Co., 3 Cal. Ind. Ace. Com. 82. 11. Liability of insurance carrier even though premium unpaid. Where an insurance company delivers a workman's compensation policy to an employer, it becomes binding upon delivery of the policy, even though no deposit premium is exacted, and where an accident occurs to an employe of the assured after said date, the insurance carrier is liable to pay to such employe the compensation to which he is entitled regardless of the nonpayment of the premium. Ldkos v. Digitized by Microsoft® 1172 beadbuey's woekmen's compeitsation law Breach of warranty in policy ; effect Pacific Coast Casualty Co., 2 Cal. Ind. Ace. Com. 27. Nor are the rights of the employe affected by the fact that the company cancels the policy after the accident happens for nonpayment of the premium. Craves v. Pacific Coast Casualty Co., 2 Cal. Ind. Ace. Com. 29. 12. Policies must comply with Act. Contracts of insurance, under the California Act of 1911, which were contrary to the Act were held to be void. Cunningham v. Locke Construction Co. and Southwestern Surety Ins. Co., 1 Cal. Ind. Ace. Com. (Part I), 72. 13. Fraud in securing policy. An insurance carrier cannot escape liability to an employe on the ground that the employer has been guilty of fraud in securing the policy. Sauza v. Stangland & Co., 2 Cal. Ind. Ace. Com. 757. 14. Breach of warranty in policy ; effect. Where the policy of insurance issued by the insurance carrier, under the California Act, contained a provision that the statements set forth in the schedule of said policy were warranted by the em- ployer to be true and one of such statements was that no person " is or will be employed by the assured in violation of law as to age " and thereafter the assured innocently or willfully employed a minor in violation of law as to age, and such minor was injured, it was held that the insurance carrier was released by the breach of warranty from its obligations to pay the compensation awarded against the em- ployer. Shanton v. Masterson, 2 Cal. Ind. Ace. Com. 698. It is doubtful whether ordinarily a breach of warranty by an em- ployer will relieve the insurance carrier from its direct liability^to the employ^, unless the policy has been actually cancelled before the accident. In the case cited above the controversy related to the employment of a minor contrary to law and on this subject there is considerable uncertainty. Such an employment usually being a criminal offense, there has been a tendency to hold that it was not insurable. But on reason there appears to be no objection to insur- ing the employe, even though the employer's direct liability con- tinues both for the compensation and the penalty under the statute. Digitized by Microsoft® IWSDEANCE OB" COMPENSATION CLAIMS 1173 Jurisdiction over a controversy between employer and insurance carrier 15. Failure of employer to give notice to company. An insurance carrier is not relieved of liability to the employe because the employer fails to give immediate notice to the insurance carrier, of an injury or a claim for compensation under the California Act. Zwiesele v. Batto (1916), 3 Cal. Ind. Ace. Com. 372. 16. Construing policy by Commission. The California Commission has power to construe the terms of an insurance policy covering the liability of an employer to pay com- pensation to his employes whenever it becomes necessary to construe said policy, in order to determine a question arising on an applica- tion for compensation to an injured workman. Walher v. Santa Clara Oil and Development Co., 2 Cal. Ind. Ace. Com. 5. The Commission has power to construe an insurance policy in ren- dering an award against the company under the California Act. Zwiesele Y. Batto (1916), 3 Cal. Ind. Ace. Com. 372. The !N"ew York Commission has power to determine whether or not a policy of insurance is in force and thus power to determine whether or not an award may be made against an insurance carrier. Miner V. Turnbull (1916), 7 K Y. St. Dep. Kep. 474. 17. Joint award against employer and insurer. The California Commission has jurisdiction to render an award jointly against an employer and an insurance carrier under the Cali- fornia Act. Zwiesele v. Batto (1916), 3 Cal. Ind. Ace. Com. 372. 18. Jurisdiction over a controversy between employer and insurance carrier. The California Commission has no jurisdiction of a controversy between an employer and his insurance carrier in relation to the cost of medical and surgical treatment based on the charge of the insur- ance carrier that the employer has not notified it of the accident in time for it to furnish such treatment. Conner v. Acme Cement and Plaster Co. and Maryland Casualty Co., 1 Cal. Ind. Ace. Com. (Part II), 143. The California Commission has no jurisdiction over a dispute aris- ing between an employer and its insurance carrier. Mendocino Lumber Co. v. Southwestern Surety Ins. Co., 2 Cal. Ind. Ace. Com. 746;12N. CCA. 78. Digitized by Microsoft® 1174 Direct liability 19. Failure of insurance carrier to furnish adequate medical atten- tion. Where the insurance carrier was notified of the accident at once, and instructed its physician to treat the injured employe and such physician made a superficial examination but did not see the patient again for five days, though requested to do so, and the employe, in the meantime, had secured other medical attention, it was held that the insurance carrier had not seasonably furnished medical attention within the meaning of the California Act and was therefore liable for the reasonable value of medical and surgical services contracted for by the injured employe, the claim for such services to be submitted to the Commission for approval before payment. Bailey v. E. T. Wheeler Co. and Etna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 142. 20. Medical charges ; bone setter not regularly licensed as physician. The fees of a bone setter who was not a regularly licensed physician were allowed, under the Connecticut Act, where it appeared that he had been employed on the consent of both the employer and the em- ploye ; but the Commissioner did not decide whether a charge for the services of an unlicensed bone setter would be proper where he was not employed by consent. The Commissioner refused to determine the question of liability as between the employer and the insurance carrier on the ground that the policy was not produced and the terms thereof were not before the Commissioner. Hodge v. Hoffman, 1 Conn. Comp. Dec, 322. 21 Direct liability. Under the California Act of 1911 an employe could enforce the right to compensation directly against an insurance company who insured his employer. Cunningham v. Locke Construction Co. and Southwestern Surety Ins. Co., 1 Cal. Ind. Ace. Com. (Part I), 72. Under the California Act of 1911 an employe can enforce his right against an insurance carrier direct even though the policy contained provisions preventing this, as such provisions were prohibited by the Act and were therefore held to be void. Nelson v. California Steve- dore and Ballast Co. and Pacific Coast Casualty Company, 1 Cal. Ind. Ace. Com. (Part I), l^^y^y^^^ t,y Microsoft® INSUEANCE OF COMPENSATION CLAIMS 1175 Change of physician Under the Connecticut Act, prior to the amendment in 191(5, it was held that an award should not be made directly against an insurance carrier. Wright v. Barnes and Fidelity & Casualty Co. (Conn. Su- perior Court), 1 Conn. Comp. Dec. 260 ; rev'g Id. 248. Under the Minnesota Act it is not necessary to the maintenance of an action against the insurer that the notice provided for in the Act be filed in the office of the Labor Commissioner of the State before the accident which causes the injury occurs. State ex rel. London and Lancashire Guar, and Accident Co. v. District Court of Hennepin County (1916), Minn. ; 158 K W. 615. Under the Texas Act an injured employe may sue the company which insures the employer's liability. Fidelity and Casualty Co. v. House, Tex. Civ. App. ; 191 S. W. 155. 22. Waiver by insurance carrier of right to designate physician. Where the . insurance carrier is aware that the employe is being treated by his own physician and offers to pay the bill when rendered, if it is in accordance with the schedule of the California Commission, such carrier has waived the right to insist upon treatment by a physician of its own choice and is liable for the reasonable value of the services of the physician procured by the employe Devlin v. Smith, 1 Cal. Ind. Ace. Com. (Part II), 418. 23. Change of physicians. Where in case of a serious injury a physician was called at the instance of the employer, who performed a necessary operation, and the insurance carrier did not tender a physician at its own expense until after the operation has been performed, it was held to be too late for the insurance carrier to insist upon a change of physicians. Matteoni v. Boherts & Clark, 1 Cal. Ind. Ace. Com. (Part II), 356. 24. Change of physician by consent of employer but without notice to insurance carrier. Where an insurance carrier furnishes proper medical attention and the employe makes a change with the consent of the employer, but without notice to the insurance carrier, the insurance carrier is not liable for the fees of the physician thus secured by the employe. Spring v. /. G. Miller Co., 3 Cal. Ind. Ace. Com. 4. Digitized by Microsoft® 1176 Subrogation ^f right to recover against third person 25. Medical attention ; regulations. If the employer is insured his insurance carrier should inform him in advance exactly what he is to do in case of accident with reference to medical and hospital treatment. If he fails to follow the instruc- tions so given, an issue may arise between the insurer and the insured, under the contracts of insurance, but the rights of the injured employe are not jeopardized thereby. Scott and McPike, doing business as McPike Drug Co. v. Aetna Life Ins. Co., 1 Cal. Ind. Ace. Com. (Part II), 343. 26. Offsets allov^ed to employer; defective insurance. Where an employe by mistake had secured a simple accident in- surance policy instead of an employer's compensation policy, and such employe was injured, and the insurance company made payments to him under the accident policy, it was held that the employer was entitled to have credited to him the amount of such payments, upon the theory that the payments made by the insurance companjr were in reality payments procured to be made by the employer upon account of liability for compensation. Mecartea v. Marsh, 2 Cal. Ind. Ace. Com. 165. 27. Subrogation to insurance carrier of right to furnish medical attention. The insurance carrier is not subrogated to the right to furnish the medical attention to the injured employe until it has either made pay- ment to the employe of compensation or assumed the liability of the employer. Mullan v. Reverend John Rogers, 2 Cal. Ind. Ace. Com. 368. The rights which are subrogated to the insurance carrier under section 34 (f ) of the California Act include the right to furnish a physician selected by the carrier and also a direction that the injured employe change the physician furnished by the employer and accept the one furnished by the insurance carrier. Hotchhiss v. Leonard B. Boyer, 2 Cal. Ind. Ace. Com. 61. 28. Subrogation of right to recover against third person. Where an insurance carrier has paid compensation to an employe by reason of an injury ^h^h^^^b^n^eau^J^ by a person other than INSUBANOE OF COMPENSATION CLAIMS 1177 Substitution of insurance carrier for employer the employer, an action can be maintained by ^he employer against the third person whose act has caused the injury, for the benefit of the insurance carrier, to recover from such third person the amount of compensation paid under the Connecticut Act. Lagan v. Tlie Con- necticut Co., Superior Court, Hartford County Court, June 6, 1916 (unreported). A compromise or release by an employe of his cause of action against a third party is ineffectual against the insurer without the written approval of the latter, and the release in such a case does not prevent the insurer from prosecuting the assigned claim against the third party, under the New York Act. Matter of Woodward v. E. W. Conklin & Son, Inc., 171 App. Div. 736 ; 157 Supp. 948. An assignment of a claim to an insurance carrier, which by subro- gation becomes the property of the employer when the employe has been injured through the negligence of a third person, is valid under the Wisconsin Act. , Frankfort General Ins. Co. v. City of Milwaukee (1916), Wis. ; 159 N. W- 581. 29. Substitution of insurance carrier for employer. The service of an unsigned notice of substitution on the employe is ineffectual to relieve the employer for liability under the California Act so as to make the insurance carrier solely liable. Frandsen v. J. Llewellyn Co., 3 Cal. Ind. Com. 23. In the last-mentioned case the insurance carrier had become insolvent and the employer attempted to escape direct liability. The acceptance of compensation from the insurance carrier by the injured employe does not estop- such employe from denying that- a notice of substitution of the insurance carrier for the employer is in- effectual because the notice of substitution was not signed. Frand- sen V. /. Llewellyn Co., 3 Cal. Ind. Ace. Com. 23. Where the principal is liable for injuries sustained by workmen of the immediate employer and gives notice required under the Cali- fornia Act to have the substitution of his insurance carrier, the Com- mission will order such substitution of the insurance carrier and dis- missal of the principal, the word " employer," as used in the Cali- fornia Act, including a principal under such circumstances. The consent of the insurance carrier to such substitution is not necessary. Turner v. Oil Pumping and Gasoline Co., 2 Cal. Ind. Aec. Com. 471. Digitized by Microsoft® 11T8 Self insurer In order to substitute the insurance carrier for the employer and relieve the emplojer from liability, under the California Act, it is necessary that the notice required by section 34e of the California Act should be served on the insurance carrier. Sutton v. Wurster Con- struction Co., 2 Cal. Ind. Ace. Com. 696. In the last-mentioned case the insurance carrier became insolvent and the employer attempted to be relieved of liability, but the motion was denied because of the fail- ure to give the proper notice under section 34e of the California Act. The fact that an insurance company has been deprived of the right to transact business in the State of California does not deprive the employer of the right to substitute the insurance company as a de- fendant in a proceeding for compensation. Weiser v. Industrial Ac- cident Commission (1916), Cal, ; 157 Pac. 593. 30. Bound by agreement between employer and employe for lump sum payment. An agreement between employer and employe for a lump sum pay- ment, under the Nebraska Act, if for a reasonable sum and made in good faith, and not inconsistent with the amount of periodical pay- ments previously determined, the agreement will bind an insurance company which has insured the compensation payments of the em- ployer. Bailey v. United States Fidelity & Guaranty Co., Nebr. ; 155 N. W. 237. 31. Self insurer. A corporation employer having furnished satisfactory proof of its financial ability to pay compensation, and having deposited securi- ties to secure its liability to pay the same, does not obtain any im- munity or exemption from liability for the payment of such com- pensation, under the New York statute. Kenny v. Union Eailway Co., 166 App. Div. 497; 152 Supp. 117; 8 N. C. C. A. 986. Self insurers, those who insure in stock or mutual companies, and those who join the State fund in New York, are all subject to the same rules in regard to the procedure in determining a claim. Mc- Queeney v. Sutphen & Hyer, 167 App. Div. 528; 153 Supp. 554; 11 N. C. C. A. 326. The fact that an employer is a self-insurer does not affect the con- struction of the Act or ^0;/figfetj(,^/V^J!jl^ogg^yes to compensation. INSTTEANCE OF COMPENSATION CLAIMS 1179 Cancellation of policy Winfield v. New York Central & H. B. R. Co., 168 App. Div, 351 ; 153 Supp. 499 ; reversed but not on this point, U. S. ; Sup. Ct. ; L. Ed. ; (May 21, 1917). 32. Cancellation of policy. A notice mailed in less than ten days from the time when it is to become operative is not sufficient to cause the cancellation of the policy, under the New York Act. McCajfrey v. Tager Contracting Co., 5 2Sr. Y. St. Dep. Kep. 434. Where a policy has been properly cancelled for non-payment of premium before an injury occurs an award should not be made against the insurance carrier but against the employer only. Bloom v. Nathan Tilin and Samuel Bleeh, 5 IST. Y. St. Dep. Kep. 441. Where the address of the insured was incorrectly stated in the policy, partly, at least, through the fault of the agent of the insurance company and cancellation notice was sent to this address but not re- ceived by the insured, it was held that this was an insufficient notice of cancellation under the New York Act. McCaffrey v. Tager Con- tracting Co., 5 ISr. Y. St. Dep. Kep. 434. In a policy of compensation insurance the address of the employer was given as " Granitville, Port Richmond, Richmond County, N. Y." and the location of his business was given as " No. 17 Vedder Avenue, Port Richmond, N. Y." The company addressed a letter cancelling the policy to the assured at " Vedder Avenue, Grantville, Port Richmond, N. Y." by registered letter. The letter was not de- livered and was returned to the insurance company. It was held that the notice of cancellation was insufficient and the policy remained in force under the New York Act. Shoczlois v. Vinocur (1916), 7 N. Y. St. Dep. Rep. 443. Where a notice of cancellation is sent through the registered mail it does not conform to the New York statute. If it is sent by un- registered mail, it is only presumptive proof that it was received and this presumption may be overcome by the testimony of the assured that it was not received. Miner v. Turnbull (1916), 7 N. Y. St. Dep. Rep. 474. An insurance company which has issued a policy of workmen's compensation insurance can succeed in escaping liability under it on the ground of cancellation only by proof that the company followed ^ Digitized by Microsoft® 1180 beadbuky's wokkmkn's compensation law status of those insured in stock companies the statutory method literally, or at least, if this is not done that the statutory notice was in fact received by the assured. Miner v. Turn- hull (1916), 7 N. T. St. Dep. Kep. 474. 33. Status of those insured in stock companies as compared with those insured in the State fund. Under the New York law the employer has the same immunity from claims by employes where he insures in a private insurance company that he does if he insures in a State fund. Connors v. Bemet-Solvay Co., 94 Misc. 505 ; 159 Supp. 431. In the last-men- tioned case the court said, in relation to section 53 of the N'ew York Act: " It is not possible that a distinction, without reason, is here sought to be made between one who insures in the state fund and others who insure as the staftute equally permits. The purpose of insurance is to secure a fund which will protect the servant. In either case this is equally accomplished. There is no purpose to be served in holding the servant may not recover for pain and suffering, if the state is the insurer, yet may do so if a corporation is the one liable. In fact the Court of Appeals seems to have passed upon this question. ' An employer securing payment of compensation by contributing pre- miums to the said fund is thereby relieved from all liability for per- sonal injuries or death sustained by his employes and a similar relief from liability is obtained by the employer by payment of the com- pensation by himself or an insurance carrier.' Matter of Post v. Burgess & GoUke, 316 N. Y. 544"; 10 N. C. C. A. 888. Digitized by Microsoft® CHAPTER XXVIII PREFERENCE OF COMPENSATION CLAIMS PAGE PAGE Abticle a — When Aixowed... 1181 3. Receivers of bankrupt per- 1. Insolvency of insurer 1181 sonally liable 1181 2. Bankruptcy of employer 1181 4. Setoff against amount awarded 1181 ARTICLE A — WHEN ALLOWED 1. Insolvency of insurer. After paying compensation to an injured workman for some time, the employers became bankrupt. They were insured in an insurance company which also soon after became insolvont. The workman attempted to prove his claim against the employers, but it was held that under section 5 of the British Act the employers being insured, the only remedy of the workman was against the insurers and that there was no right to preferential payment. In re Pethi^h, Dix & Co. Burrows v. The Company (1914), 8 B. W. C. C. 337. 2. Bankruptcy of employer. Where a claim for compensation under the New Jeri:.ey Act had been commuted to a lump sum, it was held that this was a preferential payment which should be allowed over other creditors against the bankrupt estate of the employer. Brzinshi v. Acme Body Co. (U. S. Dist. Court of ]Sr. J., 1914), 37 N. J. Law J. 183 ; Fed. 3. Receiver of bankrupt personally liable. A receiver in bankruptcy, instead of applying the assets of a com- pany preferentially to the payment of an outstanding compensation claim used them in the conduct of the business and it was held that the receiver was personally liajale for damages to the workman hold- ing the compensation claim who had been damaged thereby. Woods V. WinsMll (1913), (Chancery Division), 6 B. W. C. C. 934. 4. Setoff against amount awarded. A debt of an employe to an employer cannot be set off as against a claim for compensation by the employe against the employer. Man- ford V. CarstenhrooJc, 3 Cal. Ind. Ace. Com. 21 , 1181 Digitized by Microsoft® 1182 Setoff against amount awarded The California Commission has no authority to allow deductions to be made from the amount of an award, for debts due by the in- jured employe to the employer, where such debts do not arise out of the payment in advance of compensation due for his injury. Cason V. Star Laundry, 1 Cal. Ind. Ace. Com. (Part II), 485. Digitized by Microsoft® CHAPTER XXIX ASSIGNMENT OF COMPENSATION CLAIM PAGE PAGE Article A — When Allowed... 1183 4. Assignment of compensation 1. Act constitutional 1183 claims to insurance car- 2. Against insurer 1183 rier 1183 3. Against State fund 1183 ARTICLE A — WHEN ALLOWED 1. Act constitutional. The JMichigan Act, in so far as it provides that no payment under the Act shall be assignable or subject to attachment or garnishment, is not unconstitutional as limiting the right of contract. Machin v. Detroit-Timkin Axle Co., Mich. ; 153 N. W. 49. 2. Against insurer. Claims for compensation under the New York Act, against the insurer, cannot be assigned. Matter of Woodward v. E. W. Conklin £ Son, Inc., 171 App. Div. 736 ; 157 Supp. 948. 3. Against State fund. An employe entitled to compensation from the State Insurance Fund of Ohio cannot assign his right to receive such compensation. In re Berg, 1 Bull. Ohio Ind. Com. 102. 4. Assignment of compensation claims to insurance carrier. An assignment of a claim to an insurance carrier, which by sub- rogation becomes the property of the employer, when an employe has been injured through the negligence of a third person, is valid under the Wisconsin Act. Frankfort General Ins. Co. v. City of Milwaukee (1916), Wis. ; 159 K W. 581. 1183 Digitized by Microsoft® CHAPTER XXX ATTORNEYS PAGE PAGE Abticle a — Fees Geneeaixy. . . 1184 2: Contingent fees 1185 1. Amounts allowed In speeifle 3. Fee In addition to compen- cases 1184 sation not allowed 1185 ARTICLE A— FEES GENERALLY 1. Amounts allowed in specific cases. An attorney's fees of $10 was allowed in a case where a death claim of $5,000 was awarded. Connors v. Panama-Pacific International Exposition, 2 Cal. Ind. Ace. Com. 279. A fee of $5 was allowed an attorney where an award of $78.86 was made for temporary partial disability. Blacher v. American Beet Sugar Co., 1 Cal. Ind. Ace. Com. (Part II), 481. The sum of $250 was allowed an attorney in a death case where the award was the full amount allowed under the law of $5,000. Mar- sters V. Employers' Liability Assur. Comp., 1 Cal. Ind. Ace. Com. (Part II), 360. Where a death claim of $2,700 was awarded without contest, an attorney's fee of $5 was allowed. Luse v. Pacific Light and Power Co., 1 Cal. Ind. Ace. Com. (Part II), 460. A fee of $25 was awarded to an attorney under the California Act where a death benefit of $2,700 was awarded by the Commission. Quintrall v. Consumers' Roch and Gravel Co. and Globe Indemnity Co., 1 Cal. Ind. Ace. Com. (Part II), 112. An attorney's fee of $75 was allowed on the rehearing of a case where the award was modified and the employe allowed compensa- tion as for three-fourths of total permanent disability. O'Connell V. Simms Magneto Co. (Essex Common Pleas, 1914), 37 JS". J. Law J. 184; 85 N. J. Law 64; 4 K C. C. A. 590. An attorney was allowed a fee of $50 to be paid from the com- pensation, at the rate of $2.50 a week, where the award was $6.54 a week for 150 weeks. Endler v. Guenther (Morris Common Pleas, 1914), 37 N". J. Law J. 114. The sum of $30 was allowed to an attorney for a proceeding for the commutation of an award. O'Connor v. Babcoch & Wilcox Co. (Morris Common Pleas, 1915), 38 IST. J. Law J. 85. 1184 Digitized by Microsoft® ' ATTOENETS 1185 Fee in addition to compensation not allowed A fee of $150 was allowed for an attorney in a proceeding where a boy was allowed 75 per cent, of 50 per cent, of his daily wages dur- ing 200 weeks, with a minimum of $5 per week, under the New Jer- sey Act. Voorhees v. Stickle (Morris Common Pleas, 1915), 38 N. J. Law J. 143. 2. Contingent fees. An agreement for a contingent fee of 20 per cent, of an award under the California Act will not be approved by the Commission. There is usually little need for attorneys in the settlement of ordi- nary cases. Keatley v. R. P. Shields & Son and the Commonwealth Bonding and Casualty Ins. Co. of Arizona, 1 Cal. Ind. Ace. Com. (Part II), 191. Where a workman who was injured in Kansas accepted compensa- tion for a short time from his employer and then went to Missouri and brought an action at common law, it was held that the action could not be maintained, because the employe was bound by the Kansas Act and that therefore his attorneys in Missouri could not maintain a proceeding against the employer to recover their con- tingent fees under a contract with the employe. Piatt v. Swift & Co. (Kansas City"X:!ourt of Appeals), 176 S. W. 434; 188 Mo. App. 584. 3. Fee in addition to compensation not allowed. Under the Illinois Act the Commission has no power to grant an attorney's fee to the employe in addition to the amount awarded as compensation or for medical services. Cegrelski v. The Lenon Co., 1 Bull. 111. Ind. Bd. 35. Where an award of $125 as counsel fee was made generally, it was held that this was not error under the New Jersey Act where there was nothing in the record to indicate that this money was not to be taken from the award as provided in the Act. Diskon v. Buhb, ]Sr. J. Law ; 96 Atl. 660. Under the Minnesota Act the allowance of attorney's fees is not authorized by the Act, but the court may allow statutory costs, al- though designated in the order as attorney's fees. State ex rel. Duluth Diamond Drilling Co. v. District Court of St. Louis County, 129 Minn. 423; 152 N". W. 838; 9 K C. C. A. 1119. * 75 Digitized by Microsoft® CHAPTER XXXI SUBROGATION PAGE PAGE ABTictE A — When Allowed . . . 1186 7. Minnesota 1189 1. British Act 1186 8. New Jersey 1189 2. California 1187 9. New Yorlf 1190 3. Connecticut 1188 10. Pennsylvania 1191 4. Iowa 1188 11. Washington 1191 5. Massachusetts 1188 12. Wisconsin 1191 6. Michigan 1189 ARTICLE A — WHEN ALLOWED 1. British Act. Where an employer has been compelled to pay compensation to an employe for injuries received by reason of the negligence of a third person the employer can recover from such third person the amount of compensation paid, under the British Act. Dickson v. Scott (1914), (English Court of Appeal), 7 B. W. C. C. 1007. Without bringing the third party in the compensation proceeding. Nettleing- ham & Co. v. F. H. Powell & Co. (1913), 6 B. W. C. C. 478. An employer who is called upon to pay compensation may either pay it and then bring an independent action against the third party who caused the injury, or may bring in the third party in the proceed- ings for compensation instituted by the employe, as he may elect. Nettleingham and Co. v. F. H. Powell and Co. (1912), 6 B. W. C. 0. 262. Where a workman was injured by the negligence of a third party and the employer joined the third party in a proceeding for compen- sation by the workman and the question of indemnity by the third party was left to the arbitrator who found in favor of the employer, it was held on appeal that the questions determined below were of fact and as there was some evidence to support the finding the court of Appeal had no jurisdiction to interfere. Cutsforth v. Johnson (North-Eastern Railway Company, Third parties), (1913), 6 B. W. C. C. 28. A driver of a motor vehicle was killed by a collision with another motor vehicle. His employer paid compensation to his dependents and was allowed to recover, under section 6 of the British Act, from 1186 Digitized by Microsoft® StTBEOQATIOW 1187 California the owner of tlie other vehicle, where hy the jury's verdict, it appeared that the collision was due to the negligence of the driver of the other vehicle. " Daily News " v. McNamara & Co. (1913), 7 B. W. C. C. 11- Where an employer has become bankrupt and the trustee in bank- ruptcy redeemed a lump sum payment and then sought to recover the amount with costs from the insurance company, it was held, under section 5 of the British Act, that the employer's rights were trans- ferred to and vested in the workman and he alone could make a claim against the insurance company in the event of his employer becom- ing insolvent. Craig and Hancock v. Royal Insurance Co. (1914), 8 B. W. C. C. 339. When a person insured under the National Insurance Act of 1911 appears to be entitled to compensation and unreasonably refuses or neglects to take proceedings the society concerned may take proceed- ings in his behalf. Bushton v. George SJcey & Co. (1914), 7 B. W. C. C. 508. Where a workman was killed by reason of the negligence of both a third party and of the employer it was held that the employer could not recover of the third party under the Alberta Act. Canadian Pa- cific Railway v. Alberta Clay Products (1914), (Alberta Supreme Court), 8 B. W. C. C. 645. 2. California. Where an employe is injured by reason of the negligence of a third person and accepts compensation from the employer, consisting of medical treatment, the employer is subrogated to the rights of the employe against such third person, under the California Act, and where such employe makes a settlement with such third person after receiving such medical treatment and gives a release to such third person, this does not preclude the employer from prosecuting a claim against such third person under the right of subrogation. Silva v. Kopperud, 2 Cal. Ind. Ace. Com. 604. The rights which are subrogated to the insurance carrier under section 34(f) of the California Act, include the right to furnish a physician selected by the carrier, and also a direction that the injured employe change the physician fiirnished by the employer and ac- Digitized by Microsoft® 1188 beadbubt's woekmem^s compensatioij law Massachusetts cept the one furnisiied by the insurance carrier. Hotchhiss v. Leon- ard B. Boyer, 2 Cal. Ind. Ace. Com. 61. The insurance carrier is not subrogated to the right to furnish the medical attention to the injured employe until it has either made payment to the employe of compensation or assumed the liability of the employer. Mullan v. Reverend John Rogers, 2 Cal. Ind. Ace. Com. 368. 3. Connecticut. Where an insurance carrier has paid compensation to an employe by reason of an injury which has been caused by a person other than the employer, an action can be maintained by the employer against the third person whose act has caused the injury, for the benefit of the insurance carrier, to recover from such third person the amount of compensation paid under the Connecticut Act. Lagan v. The Connecticut Co., Superior Court, Hartford County Court, June 6, 1916 (unreported). 40. Iowa. An employer who has paid compensation can recover from the party causing the injury the amount paid out for doctor's bills. Leg. Op. Iowa Ind. Com. (1915), 33. 5. Massachusetts. Where the widow of an employe, who was killed through the negli- gence of a third person, accepted compensation from the employer's insurer, and released the insurer, both as widow and administratrix of her husband, it was held that the insurer could maintain, in the name of the administratrix, an action against the third person, whose negligence caused the death of the employe, for the penalty pro- vided for in a statute other than the Compensation Act. Tumquist V. Hannon, 219 Mass. 560; 107 K E. 443. Where an employe accepts compensation, under the Massachusetts Act, he is precluded from bringing an action against a third person whose negligence causes the injury, as the right to proceed against such third person is subrogated to the employer. Barry v. Bay State St. By. Co., 220 Mass. 366; 110 N. E. 1031. An insurer of an gfj'tojbj^tectelo^^'i ^ ^^^^^ benefit may STJBEOGATION 1189 New Jersey prosecute an action against a third person whose negligence cause4 the injury in the name of the widow and administratrix of the de- ceased employe for its own benefit. Hall v. Henry Thayer & Co. (1916), Mass. ; 113 W. E. 644, 6. Michigan. , A former judgment against an employer or insurance company, under the Michigan Act, authorizing recovery from the tort feasor who caused the injury to the employe in the absence of notice of the litigation to the tort feasor, creates a right of action against the latter and is admissible as prima facie proof of his liability, although the omission of notice saves his defences as to which he has the burden of proof. Grand Rapids Lumber Co. v. Blair, Mich. ; 157 K W. 29. Where an employer or insurer is liable for injuries to the employe, the legislature may require a third party tort feasor to reimburse them in the amount so expended, and the amount paid by the employer or the insurer to the workman by agreement or order of the Industrial Accident Board is prima facie evidence of the liability of the tort feasor. Grand Bapids Lumber Co. v. Blair, Mich. ; 157 N. W. 29. 7. Minnesota. Where the death of an employe is due to the negligence of a third person and the administratrix of the deceased employe sues such third person, the liability is limited to the amount which would be awarded under the Act. Mahowald v. ThompsorirStarrett Co. (1916), Minn. ; 158 IST. W. 913. 8. New Jersey. Under the iN'ew Jersey Act prior to the amendment of Paragraph 23 in 1913, it was held that a workman could recover against the third person whose negligence had caused the injury and could also recover compensation from his employer where the injury arose out of the employment and that the employer was not subrogated to the rights of the workman against the third person where the employer had paid compensation. Newark Paving Co. v. Klotz, 85 I^. J. Law Digitized by Microsoft® 1190 New York 432; 91 Atl. 91; aff'd Elotz v. Newark Paving Co., K J, Law ; 92 Atl. 1086. But by P. L. 1913, page 303, paragraph 23, of the Compensation Act was amended so as to give the right of subrogation to the em- ployer to the extent that the employer shall be credited with the amount collected from the third person. 9. New York. Where the death of the workman is caused by the negligence of a third person the claim against such third person is, by operation of law, assigned to the employer or his insurance carrier when the em- ploye claims compensation, and such insurance carrier may recover full damages for the death of such employe and is not confined to a recovery of the amount actually paid to the widow of the deceased employe. Casualty Co. of America v. Swett Electric Light and Power Co. (1916), 174 App. Div. 825;162 Supp. 107. Where injuries were alleged to have been caused by the negligence of a third person and the widow of the deceased workman had brought an action for damages against such third person, it was held that this did not bar a claim of a dependent mother for compensation against the employer, under the New York Act. In re Cahill, 173 App. Div. 418 ; 159 Supp. 1060. An employe who has accepted compensation thereby subrogates any cause of action which he has against a third person for causing the injury to his employer or to the person who is liable for the com- pensation under section 29 of the New York Act and the employe cannot maintain an action against such third person for damages. Miller v. New Yorh Railways Co., 171 A. D. 200 ; 157 Supp. 200. A compromise or release by an employe of his cause of action against a third party is ineffectual against the insurer without the written approval of the latter and the release in such a case does not prevent the insurer from prosecuting the assigned claim against the third party, under the New York Act. Matter of Woodward v. E. W. Conhlin & Son, Inc., 171 App. Div. 736 ; 157 Supp. 948. A traveling purchaser was employed in Connecticut by a Connecti- cut employer, to come to New York and while in New York he was invited by an employe of a third person to ride in his employer's automobile in going to a place where the employe desired to go to Digitized by Microsoft® STJBEOGATION 1191 Wisconsin make some purchases for his employer. On the way an accident oc- curred by which the employe was injured. The employer's insur- ance carrier paid compensation to the employe and in an action by the insurance carrier against the owner of the automobile on the sub- rogated claim, under the New York Act, it was held that the insur- ance carrier could collect on the ground that the employe was a licensee of the owner of the automobile to whom such owner owed the duty of exercising ordinary care. Royal Indemnity Co. v. Piatt & Washburn Refining Co. (1917), 98 Misc. 631; 163 Supp. 197. 10. Pennsylvania. Where damages have been caused by the negligence of a third per- son and said third person makes a settlement and takes a release from the employe, for a sum less than would accrue to the employe under the Pennsylvania Act this does nol; relieve the employer from a claim for compensation by the employe, nor, it seems, does such a release relieve the third person from liability to the employer for the amount of compensation which the employer is compelled to pay by reason of such injuries. Morrell v. Drehmann Paving Co., Pa. "Workmen's Compensation Bd., Dec. 1, 1916 (unreported). 11. Washington. Where an injury was caused by the alleged negligence of a third person, it was held that the sole remedy of the workman and his de- pendents was a claim for compensation against the Washington State fund, but the question was not raised whether there was any right of subrogation in the State fund against the third person whose negligence cause the injury. Northern Pacific Ry. Co. v. Meese, 239 U. S. 614 ; 36 Sup. Ct. 223 ; 10 N. C. C. A. 939 ; L. Ed. . 12. Wisconsin. Where an employe claims compensation from his employer because of injuries received by the tort of a third person, it thereby becomes the property of the employer and such employer can assign his cause of action for tort against the third person and assignment will be up- held. McGarvey v. Independent Oil& Grease Co., 156 Wis. 580; 146 N. W. 895. Where a mimicipal corporation had paid to a widow of the de- Digitized by Microsoft® 1192 Wisconsin ceased the entire Compensation which was due to her by reason of the death of her husband, it wafe held that the claim against a third per- son, who caused the death, became the property of the city absolutely, but that an agreement by the city transferring the claim to the widow, upon condition that she could prosecute an action thereon, paying the costs thereof herself, and should be entitled to keep any sum over and above the amount paid by the city to her which said amount she should refund to the city if she succeeded, was valid and not against public policy. Savdeh v. Milwaukee Electric By. & Light Co., 163 Wis. 109; 157 KW. 579. Under the Wisconsin Act, where an employer has paid the total amount of compensation to which an employe is entitled, any claim against a third person whose act caused the injury passed by opera- tion of the statute to the employer. Saudek v. Miliuaukee Electric By. & Light Co., 163 Wis. 109 ; 157 IST. W. 579. An assignment of a claim to an insurance carrier, which by subro- gation becomes the property of the employer when the employe has been injured through the negligence of a third person, is valid under the Wisconsin Act. Frankfort General Ins. Go. v. Gity of Milwau- kee (1916), Wis. ; 159 N. W. 581. Digitized by Microsoft® CHAPTER XXXII PENALTIES PAGE PAG.'! Abticlk a— When Imposed.... 1193 3. Claim for disfigurement.... 1195 1. Failure to qualify financially 4. Increased compensation for or secure insurance 1193 employer's failure to obey 2. Double indemnity ; serious safety rules 1196 and willful misconduct of employer 1193 ARTICLE A — WHEN IMPOSED 1. Failure to qualify financially or secure insurance. Where employer and employe entered into an agreement that in case of injury the compensation should be paid in accordance with the terms of the Connecticut Act, but the employer did not qualify financially, or secure insurance as provided in section 30 of Part B of that Act, it was held that the employe when injured was entitled to compensation and that the provision of section 42 of Part B of the Act, that any employer who failed to conform to the provision of section 30, should forfeit all benefits therein and should be liable as if he had not accepted the same, did not defeat the employe's right to compensation. Loveland v. Parish of St. Thomas' Church, 1 Conn. Comp. Dec. 14. 2. Double compensation; serious and willful misconduct of em- ployer. A claim for double compensation was refused which was based on an allegation that the death of a workman was caused by the failure of the employer to furnish sufficient cant hooks and inexperienced workmen in handling electric light pole. Tohin v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 612 ; 11 K C. C. A. 550. Double compensation was refused where the claim was made on the ground that the injury was due to a defective belt which had fre- quently broken, but it was found that the testimony on behalf of the employe in this respect was not correct. Oliveria v. Aetna Life Ins. Co., 2 Mass. Ind. Ace. Bd. 517; 11 IST. 0. C. A. 556. Where a sand bank which was very steep and of peculiar forma- tion fell in, injuring several workman, because of an error in cal- Digitized bjW^rosoft® 1194 beadbuey's woekmen's compensation law Double compensation ; serious and willful misconduct by emi^Ioyer culating the time to cut the upper crust, it was held that this did not amount to serious and willful misconduct, and double compensation was refused, under the Massachusetts Act. Devine v. Contractors Mutual Liability Ins. Co., 1 Mass. Ind. Ace. Bd. 351 ; 11 N. C. C. A. 556. Where, after a blast had been discharged, the employer, the fore- man and several employes inspected the place where the blast was discharged, and believing that all the charges had exploded an em- ploye was put to work cleaning out one of the holes, which resulted in an explosion of a charge which had not been exploded, it was held that this was not serious and willful misconduct on the part of the employer and double compensation was refused. Revita v. Royal In- demnity Co., 2 Mass. Ind. Ace. Bd. 352 ; 11 N. C. C. A. 558. Where a steel rope which was used for hoisting heater coilers on a freight car and caused injuries which resulted in the death of an employe it was held that the evidence was not sufficient to show ser- ious and willfiil misconduct on the part of the employer and the claim for double compensation was denied. Malewicki v. American Mutual Liability Ins. Co., 2 Mass. Ind. Ace. Bd. 366 ; 11 JST. C. C, A. 559. An employe was injured while operating a buzz saw. There was no guard on the saw. The workman claimed that the saw was dull, causing the wood to jump, which was the cause of the injury. It appeared, however, that there was a regular employe whose business it was to sharpen saws and that employes using the saws could secure a sharp saw whenever they requested one, which was the usual prac- tice. It also appeared that the injured employe was reaching over the saw to remove a piece of wood which had become wedged, when he could have shut off the power and removed the obstruction with- out any danger to himself. It was held that the employer had not been guilty of serious and willful misconduct and double compensa- tion was refused. MiJconis v. Royal Indemnity Co., 2 Mass. Ind. Ace. Bd. 384; 11 K C. C. A. 551. The repairing of an elevator by an inexperienced workman, be- cause of whose inexperience the elevator fell and injured an em- ploye, was held not to amount to serious and willful misconduct and double compensation was denied. Jacques v. Travelers Ins. Co., 2 Ind. Ace. Bd. 478; 11 K C. C. A. 549. Where a machine wa'6»fe^^^fe/'Qfi'a/?^s dangerous to operate. PENALTIES 1195 Claim for disfigurement which fact was well known to the foreman of the employer, but who nevertheless instructed the employe to finish a certain lot of work which had accumulated and in doing so rec^ved an accidental in- jury, it was held that this was serious and willful misconduct on the part of the employer, under the Massachusetts Act, which entitled the employe to double compensation. Allen v. Globe Indemnity Co., 1 Mass. Ind. Ace. Bd. 75 ; 11 K C. C. A. 555, Serious and willful misconduct of an employer to entitle the em- ploye to double compensation, under the Massachusetts Act, it was held, could not be predicated upon the fact that no " tag man " was employed to watch the operations of a derrick, especially when the engine was not being used and the necessity for a tag man under the circumstances was not clear. Marshall v. United States Fidelity & Guaranty Co., 2 Mass. Ind. Ace. Bd. 119 ; 11 N. C. C. A. 554 Where an employe was injured by the falling of a staging which was being taken down and the employer himself was superintending the work, it was held that he had not been guilty of willful miscon- duct for failure to properly superintend the work to prevent it from falling. Holland v. Fidelity and Deposit Co., 2 Mass. Ind. Ace. Bd. 308; 11 N. C. C. A. 552. In the last-mentioned case it was held that the employer had been guilty of misconduct but that the element of willful misconduct was absent and therefore an award of double compensation could not be made. 3. Claim for disfigurement. The sole remedy of an employe engaged in one of the hazardous employments specified in the New Tork Act against an employer who has complied with the Act in securing payment in compensation by insurance, is a claim for compensation, in accordance with the terms of the Act, and the employe cannot recover for disfigurement or pain and suffering in an action for common-law damages, but must resort to the remedy under the statute for compensation for a permanent partial disability. Connors v. Semet-Solvay Co., 94 Misc. 405 ; 159 Supp. 431 (Andeews, J., Onondaga Special Term, March 22, 1916) ; ; disapproving Shinnich v. Clover Farms Co., 169 App. Div. 236 ; 154 Supp. 423 ; 9 IST. 0. C. A.. 342 ; on the ground that the Shin- nich case was in effect, overruled in Jensen v. Southern Pacific Co., 215 E". Y. 514; 109 N. E. 600, 9 K 0. C. A. 286. Digitized by Microsoft® 1196 beadbuey's workmen's compensation law Increased compensation for employer's failure to obey safety rules 4. Increased compensation for employer's failure to obey safety rules. Wher6 an employe was injured by the failure of the employer to obey an order of the Industrial Commission as to the protection of gears it was held that the compensation should be increased 15 per cent, under the statute. Johnson v. BtoUe Lumber Co., Third Annual Keport (1914) Wis. Ind. Com. 62. Under the Wisconsin Act which provides for an increase of 15 per cent, in the compensation when the injury is due to the violation of a safety rule or statute, such increase was denied where an employe was killed by reason of premature moving of an elevator through the negligence of some person connected with the establishment. Maleh V. Burrell Engineering & Oonstruction Co., Third Annual Report. (1914), Wis Ind. Com. 54. Where a workman in a laundry was injured by having her hand drawn between the rolls of a mangling machine and it appeared that the employer had not obeyed an order of the Commission to the effect that " all flat work ironers must be equipped with guards in front of the feed rolls to prevent the hands of operators from being drawn into the rolls," it was held that compensation should be increased by 15 per cent, under the Wisconsin Act. Higgins v. Hanover & Butler, Fourth Annual Report (1915), Wis. Ind. Com. 37. Where an employe was injured by reason of the failure of the employer to protect set screws on line shafts contrary to a safety order of the Industrial Commission, it was held that compensation should be increased 15 per cent., under the Wisconsin Act. HicJcox V. Beloit Concrete Stone Co., Fourth Annual Report (1915), Wis. Ind. Com. 31. Digitized by Microsoft® CHAPTER XXXIII LIMITATIONS PAGE PAGE Article A — Appucation op 9. Last day falling on Sunday. 1200 Statutes 1197 10. Death benefit 1200 1. Claim for compensation 1197 11. Extending time by paying 2. When petition must be act- medical expenses 1200 ually filed 1198 12. Pleading statute as defense. 1201 a State fund 1199 13. Application dismissed on 4. Further disability 1199 petition 1201 5. Minors 1199 6. Runs from last payment of ^^^ Waiver; State institution.. 1201 wages in lieu of compen- ^^- Agreement to avoid statute. 1201 sation 1199 ^^' -Amendment not retroactive. 1202 7. Time extended ' as" to" 'em- 17. When general statute of ployer by payment by in- limitation applies 1202 surance carrier 1199 IS. Amending complaint after 8. Application of unauthorized action for damages dis- lump sum settlement to ex- missed 1202 tend time 1200 ARTICLE A — APPLICATION OP STATUTES 1. Claim for compensation. Under the California Act unless a claim for compensation is made within six months from the accident it is barred and the Commis- sion has no jurisdiction to consider it. Waltz v. San Joaquin Light and Power Corporation, 1 Cal. Ind. Ace. Com. (Part II), 506. The provision of the California Act that proceedings must be be- gun within six months contemplates the filing of a written claim, and letters to the Commission asking for information as to the rights, under the Act, of an injured workman, are not sufficient to institute proceedings within the statute of limitations. Johnson v. F. 0. Eng- strum Co., 2 Cal. Ind. Ace. Com. 787. A claim for compensation filed more than six months after the accident must be dismissed under the California Act. Fox v. Union Oil Co. of California, 2 Cal. Ind. Ace. Com. 430. Where more than six months have elapsed since the last payment of compensation before the application was filed with the Commission, the case is barred by the statute. Baumgartner v. New Method Laundry Co., 2 Cal. Ind. Ace. Com. 619. 1197 Digitized by Microsoft® 1198 When petition must be actually filed Where a claimant had received an award of compensation for in- juries to a leg and more than six months thereafter applied for a modification of the award so as to give him compensation for injuries to a lung, suffered in the same accident, which injuries had not been previoucly reported, it was held that the six months' limitation in the California Act applied and the application was refused. Ehrhart V. Industrial Accident Commission (1916), Cal. ; 158 Pac. 193. The filing within the period of six months after the injury of a petition for an adjudication that an employe is not entitled to com- pensation relieves the employe of the failure to make a claim for compensation within six months, even though the employer's answer contains a counterclaim and is filed more than six months after the injury under the California Act. Hjirtford Accident and Indemnity Co. v. Reclamation District No. 900, Yolo County, California (1916), 3 Cal. Ind. Ace. Com. 266. Where a hernia has its inception on a certain date and its comple- tion on a considerably later date, the limitation as to notice of injury and beginning proceedings dates from the time the hernia became completed under the California Act. Park v. Reese (1916), 3 Cal. Ind. Ace. Com. 237. A claim for compensation, made by children of a deceased work- man, is barred unless made within eighteen months after the acci- dent under the N"ew York Act. Angelucci v. H. 8. Kerhaugh, Inc. (1916), 9 K Y. StateDep. Eep. 387. Where, after two informal hearings the N'ew York Commission had denied compensation, and thereafter, when the employe was represented by counsel reopened the matter and made an award granting compensation, the Commission deeming the facts different from those which appeared on the first hearing, it was held that the proceeding was proper under the New York Act, although the time to appeal from the determination made on the first hearing had ex- pired when the last hearing was held. BecTcman v. Oelerich & Bon (1916), 174 App. Div. 353; 160 Supp. 791. 2. When petition must be actually filed. Under the ISTew Jersey Act a petition for compensation must be actually filed within on^-^^far^^igm^^^^^t^gj^f the accident. It is LIMITATIONS 1199 Time extended as to employer by payment by insurance carrier not sufficient that it be presented to the court and an order made for filing within the year if it is not actually filed within the year. Hendrickson v. Public Service By. Co., 87 N. J. Law 366 ; 94 Atl. 402. 3. State fund. Where an application was filed one day after the expiration of the statute of limitation the Commission refused to allow the State In- surance Fund to avail itself of the statute of limitation, under the California Act. Niles v. Walnut Orove Creamery Co. (1916),. 3 Cal. Ind. Ace. Com. 305, 4. Further disability. The further disability caused by the original injury for which compensation may be claimed more than six months after the original injury as provided in section 16 (c) of the California Act must be a distinct recurrence and a new and further disability and not a mere continuance of the original disability. Pfarrer v. Mission Concrete & Mosaic Co. (1916), 3 Cal. Ind. Ace. Com. 342. 5. Minors. As against minors, the statute of limitations begins to run only on the day on which the minor attains his majority, under the California Act. Lytle v. The County of Modoc (1916), 3 Cal. Ind. Ace. Com. 382. 6. Runs from last payment of wages in lieu of compensation. Where wages are paid in full in lieu of compensation the limita- tion of time within which to commence a proceeding runs from the last payment of such wages. Turner v. City of Santa Cruz, 2 Cal. Ind. Ace. Com. 917. Where a municipal corporation continued to pay to an injured employe full wages for seven months after his disability, it was held that this was such a payment of compensation as would take the ease out of the six months statute of limitations, under the California Act. Acrey v. City of HoUville, 2 Cal. Ind. Ace. Com. 561. 7. Time extended as to employer by payment by insurance carrier. Where an insurance carrier had not been substituted for the em- Digitized by Microsoft® 1200 ebadbuey's workmen's compensation law Extending time by paying medical excuses ployer a proceeding against the employer is not barred if the last payment on account of compensation was made by the insurance car- rier within six months before commencing the proceeding, as a pay- ment of compensation by the insurance carrier is payment on behalf of the employer, in discharge of the employer's primary liability. Frandsen v. /. Llewellyn Co., 3 Cal. Ind. Ace. Com. 23. Any payment made by an insurance carrier extends the period within which a claim can be made against the employer. Hoover v. Kuyhendall, 3 Cal. Ind. Ace. Com. 51. Where an insurance carrier had apparently paid compensation for a certain period, under an erroneous belief that the person to whom the compensation was paid was an employe of his assured, it was held that the time within which the employe could make a claim for compensation against his real employer dated from the time the in- surance company made the last payment under the California Act. Hartford Accident and Indemnity Co. v. Reclamation District No. 900, Yolo County, California (1916), 3 Cal. Ind. Ace. Com. 266. 8. Application of unauthorized lump sum settlement to extend time. Where a lump sum settlement had been made, but had not been approved by the Commission, and the amount paid if apportioned in weekly payments would bring the last payment to a period less than six months prior to the filing of the claim, it was held that this was a voidance of the limitation and the claim was not barred. Wilson V. Red River Lumber Co., 2 Cal. Ind. Ace. Com. 803. 9. Last day falling on Sunday. Where the last day of the six months period within which an ap- plication for compensation may be filed falls on Sunday an applica- tion filed on the following Monday is in time. Sarin \. Eureka Co- operative General Merchandise Co., 3 Cal. Ind. Ace. Com. 55. 10. Death Benefit. Under the California Act the limitation on an application for a benefit is one year from the date of the death. Stephens v. Clark, 2 Cal. Ind. Ace. Com. 178 ; 11 IST. C. C. A. 715. 11. Extending time by paying medical expenses. The payment of m^^,fy^%en^cMso^^'''=^ ^ payment of com- LIMITATIONS 1201 Agreement to avoid statute pensation under the California Act as extends the time within which a claim for compensation can he made. Johnson v. F. 0. Engstrum Co., 2 Cal. Ind. Ace. Gom. 181. 12. Pleading statute as defense. An insurance carrier which does not rely on- its answer of the six months' limitation for the filing of a claim cannot raise that ques- tion thereafter. U. 8. Fidelity and Guaranty Co. v. Pillsbury, Cal. ; 162 Pac. 638 ; Red River Lumber Co. v. Pillsbury (1916), Cal. ; 161 Pac. 982. Failure to raise the point, that the claim has not heen made within six months, before the Arbitration Committee, under the Illinois Act, does not waive the defense based on the limitation. Bushnell v. Industrial Board (1916), 111. ; 114 N. E. 496. 13. Application dismissed on petition. "Where from the application itself and statements of the applicant, corroborated by the answer, it appeared that six and one-half months had elapsed since the date of the accident, it was held that the action should be dismissed without a hearing to take testimony, for want of jurisdiction. Calef v. Union Oil Co. of California, 2 Cal. Ind. Ace. Com. 463. 14. Waiver ; State institution. The statute of limitations cannot be waived by any State official where the liability of the State is concerned. Noland v. Nappa Veterans Home Hospital (1916), 3 Cal. Ind. Ace. Com. 336. 15. Agreement to avoid statute. Under the l^ew Jersey Act requiring a petition for compensation to be filed within one year after the accident, unless within the same time .the parties have agreed upon compensation payable, it is held that the agreement as to compensation need not be in writing, nor need it specify the correct amount and number of weeks constituting the compensation, nor does it require that the contract shall be an express one. " It is sufficient if the contract may be implied from the acts of the parties, or from what they have said to each other, or otherwise from the facts. It would seem to be sufficient for an em- ployer to say that ' I will pay you whatever is due you under the Act,' where the other party acquiesces in the promise, and changes his position in reliance on it." Wright v. Smith (Essex Common Pleas, 76 Digitized by Microsoft® 1202 ebadbuby's woekmen's compensation law Amending complaint after action for damages dismissed 1915), 38 !N". J. Law J. 231. In the last-mentioned case the em- ployer had said to the widow of the deceased workman, before his death : " I will do all I can for you and pay you Fred's wages until he is able to go to work again," to which the widow replied : " That is all right; Fred. was my sole support," and thereby changed her position in reliance upon this understanding. It was held that this was sufficient to constitute such a contract as was comprehended under the statute and the case was not barred. 16. Amendment not retroactive. The amendment to section 16 (c) of the California Act, which took effect on August 8, 1915, is not retroactive. Noland v. Napa Veterans' Home Hospital (1916), 3 Cal. Ind. Ace. Com. 336. The amendment of the Minnesota Act by L. 1915, c. 209, pro- viding that an action for compensation must be begun within one year after the accident, was held not to be retroactive. State ex rel. An- derson V. General Accident, Fire and Life Assur. Corp. (1916), Minn. ; 158 N. W. 715. The limitation of one year for filing a claim contained in the amendment of 1913 to the !New Jersey Act was held not to be retro- active and did not apply to an accident happening before the amend- ment was passed. Franchino v. C. M. Grey Mfg. Co, (Essex Com- mon Pleas, 1914), 37 IST. J. Law J. 203; Newhaher v. N. Y., Sus- quehanna & TT. i2. i2. Co. (Warren Common Pleas, 1915), 38 N. J. Law J. 175. 17. When general statute of limitation applies. If an employer has no knowledge of an accident, notice thereof must be given within ninety days, under the Minnesota Act, but if the employer has knowledge then notice may be given any time within six years under the general statute of limitations of the State. Bulletin No. 9, Minnesota Dep. Labor & Ind. 9. 18. Amending complaint after action for damages dismissed. The provisions of the Kansas Act requiring that an employe shall make a claim for compensation within three months after the acci- dent, is satisfied by bringing an action against the employer within that time, although the original action was for damages and there- after the complaint was amended asking for compensation. Acker- son V. National Zinc Co., 96 Kans. 781 ; 153 Pac. 530. Digitized by Microsoft® INDEX. A PAGE ABOLITION" OF COMMON-LAW DEFENSES 30 ABSCESS; formed on palm of hand; when accident arises out of employment 643 ACCIDENT; distinction between accidental injuries and occupa- tional diseases 7 effect of leaying word " accident " out of the Act. ............ 16 see Injury. ACCIDENTAL SHOOTING; when accident arises out of employ- ment 601 ACCIDENTAL SHOOTING IN BEING MISTAKEN FOE EOBBEE; serious and willful misconduct 536 ACTING ON UNAUTHOEIZED OEDEES; when accident arises out of employment 603 ACTION FOE DAMAGES AGAINST ASSENTING EM- PLOYEES 287 Connecticut . 307 Illinois . 307 Massachusetts 308 Michigan 308 New Jersey 308 New York" 309 Ohio 311 Oregon . . 313 Ehode Island 312 Texas 312 Washington 313 Wisconsin 313 ACTOE ; moving picture actor furnishing airplane is employe and not contractor 14:2 ACTEESS ; riding spirited horse ; serious and willful misconduct . . 536 vaudeville actress is employe and not contractor 147 ADJOUENMENT ; pending outcome of injury 1003 proceedings before Board 1003 to secure further evidence 1026 Digitized byWfdrosoft® 1204 INDEX PAGE ADMINISTEATION AND PEOCEDUEE 958 abolition of common law and statutory rules of evidence and procedure 1036 action to set aside agreement 1062 adjournment 1003 adjournment pending outcome of injury 1003 adjournment to secure further evidence 1036 agreement to pay compensation is not a consent to submit to arbitration 1 1007 anticipatory award on decreasing scale 1053 apportioning compensation among dependents 1064 approval of agreement • 987 "arising out of employment; " mixed question of law and fact. 1007 attorney representing Industrial Board. 1008 award " during total or partial incapacity " 1051 awarding compensation after action for damages dismissed on appeal 1051 award on consent of defendant's attorney 1004 award to terminate at specified date in future 1052 bringing in third party 993 burden of proof; application to discontinue compensation 1044 burden of proof ; dependency 1043 burden of proof generally 1034 burden of proof; interstate commerce by employe on vessel. . . . 1045 burden of proof as to intoxication 1042 burden of proof as to jurisdiction 1043 burden of proof as to prejudice by failure to give notice 1043' burden of proof as to serious and willful misconduct 1043 burden of proof as to whether employe is in excepted class .... 1044 burden of proof on employer to show prejudice by failure of employe to secure proper medical attention 1043 change of name of party 993 changCvof venue 1006 claim against non-assenting employer 1007 claim by foreign consul 994 claim for medical expenses as distinct claim 1002 combining original proceeding with one to commute payments . 1006 conflict between arbitration committee and board 1045 Connecticut; practice under act; article by Hon. George H. Beers 961 costs 1045 costs ; security for IO47 decision by majority of commission 1050 defaults IOO4 Digitized by Microsoft® INDEX 1205 ADMINISTRA.TION AND PEOCEDUEE— Continued. sagb depositions 1036 dismissal for failure to prosecute 1004 dismissal of proceedings ; right of attorney to dismiss 1003 dismissing common-law action and retaining case to award com- pensation 1004 drawing inferences from unexplained injuries 1033 effect of agreement to pay compensation during incapacity. . . . 990 election by minors 993 employes of contractor; proceedings against principal only. . . 995 enforcing payment of award by body execution 1063 evidence ; rules of 1011 exceptions to findings 1051 expense of transmitting money to nonresident alien 1047 failure to appeal from award of arbitrators 1064 fees of arbitrators 1047 findings 1048 findings ; time to file findings 1050 guardian ad litem 990 hearings ; notice of 1005 bearings ; right to 1005 hearings ; when held 1005 hypothetical cases 1006 joining party in interest with Industrial Commission 993 joint award against employer and insurance carrier 1052 judgment on award 1063 judicial notice 102-7 jurisdiction 997 jury trial 1011 letters rogatory 1036 liberal rules as to procedure , . . . 997 medical referee 1038 minimum award; when proper 1051 nature of proceedings before Commission 996 new trial; arbitrator cannot grant. 1061 notice of hearing 1005 offset 1064 order of proof 1037 original hearing before board by stipulation 1088 parties ^^0 payment of award into court 1063 petition by employer 993 petition by employer or insurance carrier 1003 pleading 1008 practice under the Connecticut Compensation Act 961 Digitized by Microsoft® 1206 INDEX ADMINlSTEATIOlSr AND PEOCEDUEB— Continued. page presumption 1029 presumption against suicide • 1031 proceedings generally 1000 " recovery " of compensation ; what amounts to 1007. refusal to undergo operation 1006 rehearing 1054 res adjudicata 1066 retroactive effect of amendments 1006 rule of construction 996 service of summons 1002 setting aside approved agreement 1062 setting aside award 1062 settlements out of court 987 signing receipts by workman 989 specifying amount when making claim for compensation 1002 stale claim not favored 1008 State insurance ; who must be sued 992 stenographic minutes of testimony 1048 substitution of insurance carrier for employer 992 supplemental award after hearing brought up on oral motion . . 1061 supplementary proceeding instead of rehearing 1061 suspensory award 1052 staying execution against principal until return against con- tractor 1064 taking testimony at scene of accident 1027 termination of proceeding 1051 various methods of administration 960 when dispute arises 1000 ADMINISTEATOE; death of employe in whose favor avrard made 994 executors and administrators 993 necessity of administering on estate of workman 801 power of election 994 power of election in personal representatives and not in executor or administrator 994 right of workman to take out letters of administration on estate of deceased employe 994 ADOPTED CHILD; when dependent 785 AGENCY; master and servant; agency to employ 123 AGENTS ; book agents or canvassers ; when under Act 186 AGGEAVATION; disability by disease accelerated by accident; basis of compensation 844 disability extended by reason of improper medical treatment. . 828 disability from disease following injury; modification of award. 1119 Digitized by Microsoft® INDEX 1207 AGGRAVATION— Continued. page disability prolonged by disease or other subnormal physical condition 837 doctririe of proximate cause as illustrated in the so-called aggravation cases 564 gastric ulcer; aggravating pre--existing condition; when acci- dental injuries 378 medical treatment causing disability ; when accidental injury. . 407 of disability by illness or other contributing cause ; when it is an injury or accidental injury 341 of injury by subsequently intervening causes; when accident arises out of employment 575 of pre-existing condition ; when accident arises out of employ- ment 566 of pre-existing disease ; employes who are subnormal physically. 9 of pre-existiug disease; when it is an injury or accidental injury 326 reducing payments when injury accelerated or aggravated by pre-existing condition or disability prolonged by subse- quently contracted disease 343 voluntary idleness of workman as tending to prolong disability. 843 workman permanently injured but suffering increased dis- ability from disease 1120 AGEEEMENTS BETWEEN EMPLOYEE AND EMPLOY^ TO WAIVE COMPENSATION ACTS 175 ALCOHOLIC MENINGITIS AND DELIEIUM TEEMENS; when accidental injury 351 ALIEN NON-EBSIDENTS; when entitled to compensation 183 when dependent 793 AMENDMENT ; complaint amended after action for damages dis- missed ; limitation 1203 limitation ; not retroactive 1202 retroactive effect of 1005 see Modification of Award. ANAESTHETIC CAUSING DEATH DUEING SUEGICAL OPEEATION ; when accident arises out of employment. . 603 ANEURISM; when accidental injury 353 ANIMAL; bite of; when accident arises out of employment 609 ANKLE INJUEIES ; specific indemnities for 871 ANSWBEING TELEPHONE CALL; when accident arises out of employment • ^^^ ANTHEAX ; when accidental injury 352 when accident arises out of employment 604 Digitized by Microsoft® 1208 INDEX PAGE APAETMENT HOUSES; when employes in covered by Act 183 APOPLEXY; when accidental injury 352 when accident arises out of employment 604 APPEALS 1067 additional testimony 1084 after time to appeal to Circuit Court has expired 1080 appellant only can complain of award 1091 award; consented to by attorney of record 1096 awarding compensation after action for damages dismissed on appeal 1051 bringing up evidence on certiorari 1077 burden of, on appellant; opening and closing 1084 by certiorari from Circuit Court 1080 California; procedure under Act 1075 conclusiveness of record 1092 Connecticut procedure 1077 constitutional right to appeal 1075 costs of appeal 1074, 1093 costs; security for 1075 damages for disfigurement, pain and suffering 1083 decision by majority of Board 1082 decision from which no appeal is taken 1098 decision ordering lump sum payment 1083 determining adequacy of lump sum paid under agreement .... 1069 dismissal for want of merit 1083 dismissal of action and making decision in arbitration pro- ceedings 1070 effect of failure to appeal from decision of Arbitration Com- mittee to Board 1088 error in computation, of amount due 1083 exceptions 1087, 1095 facts; reviewing on 1070, 1076, 1077, 1082, 1084, 1089, 1091, 1092, 1094, 1096, 1098 failure to appeal from award of arbitrators 1064 failure to appeal from decision of Arbitration Committee 1080 from arbitrator's decision 2^069 from , County Court 1079 from determination of committee under approved plan 1070 harmless error lOgs, 1089 Illinois Act ; procedure under 1079 implied right to appeal 1068 intermediate order 1091 Iowa ; procedure under Act 1083 jurisdictional questJ9^^/2ec/.j^y./j^,e^^30/|f(g> .logo, 1096 INDEX 1209 APPEALS— Continued. page Kansas ; procedure to act 1083 Maryland ; in which district appeal taken 1084 Maryland; procedure under Act .' 1084 Massachusetts ; procedure under Act 1084 Massachusetts; time within which appeal presented to Superior Court 1086 Michigan ; procedure under Act 1088 Minnesota; procedure under Act 1090 modifying award on appeal 1091 motion to amend decision not prerequisite 1090 New Jersey; procedure under Act 1091 New York; employer's appeal from award against State fund. 1096 New York ; procedure under Act 1093 New York; unanimous affirmance by Appellate Division 1093 Ohio; procedure under Act 1096 order terminating weekly payments not appealed from is final. 1070 original hearing before Board by stipulation 1088 payment of medical bill 1077 points raised below only considered on appeal 1068 power to review is original not appellate in West Virginia. . . . 1097 practice on, to Superior Court 1079 proceedings before Arbitration Committee as foundation for decision of Board 1088 questions of law arising on decision deemed prima facie correct. 1097 questions raised below only reviewed 1075 questions submitted by arbitrator 1070 record on appeal .• 1081 rehearing, after time of appeal has expired 1094 remanding for further testimony 1089 review by certiorari 1087 reviewing questions of fact 1070, 1076, 1077, 1082, 1084, 1089, 1091, 1092, 1094, 1096, 1098 Ehode Island; procedure under Act 1096 security for costs on appeal 1075 sending' record back for correction 1079 serious and willful misconduct 536 setting aside award for fraud 1098 stay pending appeal 1087 title of case on appeal 1076 to Supreme Court 1080 trial de novo in Superior Court 1078 trial de novo ; on review of finding of Arbitration Committee . . 1083 waiving right to appeal 1074 Washington ; procedure under Act 1097 Digitized by Microsoft® 1210 INDEX APPEALS— Continued. page _ West Virginia; procedure under Act ; 1097 when questions of law raised on admitted facts 1077 when reniedjf by motion 1092 wife leaving husband for justifiable cause 1087 willful misconduct 1077 'withdrawal 1074 Wisconsin ; procedure under Act 1098 APPENDICITIS ; when accidental injury 354 when accident arises out of employment 604 APPOETIONING COMPENSATION; among dependents 1064 occupational diseases contracted partly in the employment of two employers 896 APPEENTICE; when accident arises out of employment 605 when covered by Act 182 AEBITEATION AGEEEMENT; to pay compensation is not a consent to submit to arbitration 1007 AEBITEATOES ; failure to appeal from award of 1064 fees of 1047 new trial ; cannot grant 1061 AEISING OUT OP AND IN THE COUESE OP THE EM- PLOYMENT 457 abscess formed on palm of hand 643 acting on unauthorized orders 602 aggravation of injury by subsequently intervening causes. . 564, 575 aggravation of pre-existing condition 566 anaesthetic causing death during surgical operation 603 answering telephone call 7. 603 anthrax 603 apoplexy 604 appendicitis 604 apprentice 605 asphyxiation in hotel 605 assaults 587 assaults ; accidental shooting 601 assaults; altercation between workmen and foremen or "others in authority 591 assaults ; assault by irate customer of employer 595 assaults; attacks by intoxicated persons 597 assaults, by insane person 598 assaults by strangers in no way connected with employment. . 596 assaults; citizen temporarily impressed as peace officer 601 assaults ; ejecting trespassers 594 assaults ; felonious assault by employer 593 assaults ; gamekeep|5y^jeljig| ^^^ISf fe ^^^ INDEX 1211 ARISING OUT OF AND IN THE COURSE OF THE EM- PLOYMENT— Continiied. PAGE assaults ; maintaining discipline 591 assaults; maintaining order on employer's cars or premises. . . 593 assaults; murder of chauffeur on hired car 598 assaults ; peace officers 600 assault ; personal altercation 587 assaults; prison guard killed by escaping convict 601 assaults ; quarrels between workmen 587 assaults ; robbery 598 assaults ; strikebreakers assaulted 596 assisting another employe 605 assisting employe of another employer 606 assisting stranger 607 attending to call of nature .- . 607 automobile driver repairing car 609 away from employer's premises on employe's own time 468 away from employer's premises; when workmen's duties take them away from employer's premises 502 bite of animal 609 bite of reptile 611 bite of snake 611 bite or sting of insect 610 bottle of acid bursting in employe's pocket 611 Bright's disease from blister on heel 611 building cupboard for employe's own tools 611 bum from, ammonia mistakenly thrown into face 611 calloused hand; infection from crack in 656 cancer 612 carbuncle 612 cerebral hemorrhage from strain 612 cessation of work temporarily 511 charity worker injured while calling on physician 612 church sexton injured trying to stop fight between boys on church ground 613 cleaning own clothing 613 cleaning own motorcycle used in work 613 concussion of brain 613 contagious skin disease 614 continuous employment 614 cook burned from hot grease 641 cook's clothing catching fire 641 corneal ulcers from splashing of lye water 615 corporation employe doing private work for stockholder 615 corporation; employe sent on personal errand of officer 666 Digitized by Microsoft® 1212 INDEX ARISING OUT OP AND IN THE COUESE OF THE EM- PLOYMENT— Continued. PAGE death from inconsequential injury 616 death from unexplained cause. 616 death occurring two years after alleged injury 619 delirium tremens 619 dislocation from quick movement 628 dislocation from strain 629 disobedience of specific orders 619 distinction between terms " arising out of " and " in the course of " 461 doctrine of proximate cause as illustrated in the so-called aggravation cases 564 doing work in usual manner 628 driver falling from wagon 630 driver for florist adjusting customer's window box 630 driver kicked by strange horse in blaeksm'ith shop 630 ejecting trespassers 630 electrical shock 631 electric shock; nephritis from 664 elevator ; using same contrary to instructions 694 emergency employe ; injury to 631 erysipelas following frostbite 636 erysipelas from infection of pimple 636 exchanging duties 637 exhaustion and death from exposure 637 explosions 637 eye injured in cutting brush 638 eye injuries; foreign substance in eye 643 eye strain 638 faintness causing fall 638 falling ceiling 640 falling object from adjoining building 640 fires causing injuries 641 flat foot 642 foreign substance in eye 643 friction injuries 643 frostbite 644 gasoline fumes in hotel 645 gas poisoning 645 general discussion of meaning of phrase 15 getting drink of water g4g going after time slip 499 going to and from place of employment 468 Digitized by Microsoft® INDEX 1213 AEISING OUT OF AND IN THE COURSE OP TflE EM- PLOYMENT— Continued. PAGE going to and from work in conveyance furnished by the em- ployer or supplied by the employe with the acquiescence of the employer 480 going to employer's premises to apply for work 499 going to place of danger unnecessarily 689 going to portions of employer's premises other than those necessarily used by workman for his own convenience or pleasure 538 heart failure 646 heat stroke 647 hernia 647 holiday ; performing gratuitous act on 666 home injuries 648 horse-play, larking or joking. . 649 horse sneeze 654 icy street ; slipping on 675 idle curiosity 654 incidental work 654 independent contractor doing extra work 655 indigestion 655 infection from bum 655 infection from crack in calloused hand 656 infection from opening pimple 656 infection from splattering water without break of skin 656 infection from traumatic injury 657 infection of pimple from scratching 656 uiflammation of pancreas 658 inhalation of gasolene fumes 645 insanity 658 insanity ; suicide from 676 ivy poisoning 659 janitor making repairs 659 janitor removing ashes 659 joking; when accident arises out of employment 649 landslide on railroad 660 larkitig ; when accident arises out of employment 649 lesion of heart from broken rib 660 lighting pipe 660 lightning striking workman 660 loaned employe 663 mealtime ; injuries at 533 mechanics getting on and off vessels 4-91 mental shock 663 Digitized by Microsoft® 1214 INDEX ■AEISING OUT OF AND IN THE COUESB OF THE EM- PLOYMENT— Contimied. PAGE messenger on way home 488 misunderstanding orders 663 mixed question of law and fact 1007 moving picture actress going to and from studio 488 moving threshing machine after work finished 663 National Guardsman engaged in competitive shooting match . . 663 negligence of third person 663 nephritis from electric shock 664 newspaper reporter injured while riding bicycle on way home. 489 non-working time injuries-. 510 on employer's premises gcdng to and from work 473 overwork 664 pancreas; inflammation of 568 paralysis 664 paralysis causing fall into water and drowning 665 paralysis from electric shock 665 paralysis from wearing telephone headpiece over ear 665 paralysis of face from working in cold air in factory 666 pecuniary gain; when employe engaged for 666 performing gratuitous act on holiday 666 peritonitis 666 personal errand of officer of corporation employe 666 physician attending compensation cases 490 piece worker carrying bundles to and from factory 487 pimple ; infection from opening 656 pimple ; infection from scratching 656 pleasure trip combined with business 669 pneumonia 667 poisoning by gas 645 poison taken by mistake - 669 police judge returning from luncheon 489 policeman killed by train 490 presumption in fatal cases where cause of accident unexplained 670 railroad employe going to have watch tested 671 repairing machine 671 reporting for work 499 resting period 530 returning to employer's premises to secure pay 500 returning to employer's premises to secure tools 501 returning to place of employment to work overtime 490 rheumatism 671 runaway horse 671 rupture of blood vessels from strain 672 Digitized by Microsoft® INDEX 1215 ARISING OUT OT AND IN THE COURSE OP THE EM- PLOYMENT— Contiimed. PAGE safety statute; violation of by fellow employe. : 695 salesman slipping on floor of hotel 675 salesman testing new motor cycle without authority 673 sanitation ; makiag premises sanitary 673 saving life of another 673 scenic railway employe searching for lost hat of passenger 673 school teacher supervising selection of basketball team 673 seamen and mechanics getting on and off vessels 491 seeking shelter from sudden storm • 674 serious and wiUful misconduct 531 shooting squirrels as pests '. 674 shoveling snow from roof 674 skin irritant without traumatism 675 slipping on floor of hotel 675 slipping on ice in street 675 slipping on orange or banana skin 676 sneeze of horse; when accident arises out of employment 654 snowslide 676 specific rulings as to when an injury arises out of the employ- ment 603 standing in line to get pay check 501 stepping on nail in street i 676 street accidents ; slipping on ice 675 street accidents ; slipping on orange or banana skia 676 street accidents; stepping on nail in street 676 St. Vitus dance 673 suicide from insanity caused by injury 676 suicide ; presumption against 677 fiimstroke 677 taxicab starter descending steps of hotel 490 teamster injured in stable 678 teamster neglecting team so horses run away 679 teamster suffers infection to eye while disinfecting stable .... 678 temporary departing from sphere of employment 679 testing new motor cycle without authority 673 testing racing motor cycle 686 tetanus 687 toxic amblyopia 687 train baggage solicitor injured on way to railroad station 489 traveling between different places of work 491 tuberculosis 687 turning comer too short 688 typhoid fever 688 Digitized by Microsoft® 1216 INDEX ARISING OUT OF AND IN THE COURSE OF THE EM- PLOYMENT— Continued. PAGE unintentional injury by fellow employe 688 unnecessarily going to place of danger ( 689 using elevator contrary to instructions 694 using machinery contrary to directions 694 using machinery other than that employed to use 694 vaccination 695 vessels; seamen and mechanics getting on and off vessels 491 violation of safety statute by fellow employe 695 volunteers. 695 wagon washer cranking automobile 697 war risks of non-combatants 698 watchman 698 watchman accidentally shot while cleaning pistol 699 window cleaner falling from ledge 699 workman injured on employer's premises before work begins, after work ceases or during cessation of work 511 workmen whose duties take them away from employer's premises 503 ARM INJURIES ; specific indemnities, for 869 ARTERIAL SCLEROSIS ; when accidental injury 354 ARTIFICIAL FLOWER MANUFACTURER; when under Act. 183 ARTIFICIAL LEG BROKEN ; when accidental injury 354 ARTIFICIAL LIMB ; when expense of allowed as part of medical attention 725 ARTIFICIAL TEETH BROKEN; when accidental injury 354 ASPHYXIATION IN HOTEL; when accident arises out of employment 605 ASSAULTS; accidental shooting; when accident arises out of em- ployment 601 altercation between workmen and foremen or others in au- thority; when accident arises out of employment 591 attacks by intoxicated persons; when accident arises out of employment 596 by insane person; when accident arises out of employment. . . 598 by irate customer of employer; when accident arises out of employment 595 by strangers in no way connected with employment; when accident arises out of employment 596 citizen temporarily impressed as peace officer, when accident arises out of employment 601 ejecting trespassers ; when accident arises out of employment. . 594 express agent killed by robbers 311 Digitized by Microsoft® INDEX 1217 ASSAULTS— Continued. p^^^ felonious assaults by employer; when accident arises out of employment koq gamekeepers repelling trespassers; when accident arises "out of employment 1 nn-i maintaining discipline; when accident arises out of employ- ment ggj maintaining^ order on employer's ears or premises;' when acci- dent arises out of employment 593 murder of chauffeur on hired car; when accident arises out of employment ggg on foreman ; serious and willful misconduct 537 peace officers ; when accident arises out of employment 600 personal altercation; when accident arises out of employment. 587 prison guard killed by escaping convict; when accident arises out of employment qqi quarrels between workmen; when accident arises out of em- ployment ggy robbery; when accident arises out of employment 598 strike breakers assaulted ; when accident arises out of employ- ment 59g when accident arises out of employment 587 ASSIGNMENT ; against insurer 1183 against State fund ■. 1133 of compensation claim 1183 to insurance carrier 1183 ASSISTANTS; how relation of master and servant created; as- sistants 124 ASSISTING ANOTHEE EMPLOYS ; when accident arises out of employment 605 ASSISTING EMPLOYE OP ANOTHEE EMPLOYEE; when accident arises out of emplojonent 606 ASSISTING STEANGEE; when accident arises out of employ- ment 607 ASSOCIATED WOEKMEN ; when contractors and not employes ■ 148 ASSUMPTION OP EISK; defense of where employer rejects Massachusetts Act 26 defense of by employer who has rejected Michigan Act 28 defense of by employer who has rejected Ohio Act 28 defense of; employer who has rejected West Virginia Act. ... 28 defense of; employer who has rejected Wisconsin Act. ........ 27 origin and nature of defense of ; 18 ASTHMA AND HEAET TEOUBLE PEOM BEEATHING DUST ; when accidental injury 355 77 Digitized by Microsoft® 1218 INDEX PAGE ATTENDING TO CALL OF NATURE ; when accident arises out of employment 607 ATTORNEYS 1184 amounts allowed in specific eases 1184 award consented to by attorney of record ; appeal from 1096 award on consent of defendant's attorney 1004 contingent fees '■ 1185 fee in addition to compensation not allowed 1185 representing Industrial Board 1008 right of attorneys to dismiss proceedings before Board 1003 AUTOMOBILE DRIVER ; repairing car-; when accident arises out of employment 609 when under Act 184 AVIATOR EXPLODING BOMB ; serious and willful misconduct 537 AWARD ; joint award against employer and insurance carrier .... 1052 judgment on 1063 payment of into court , 1063 setting aside 1063 suspensory 1053 to terminate at specified date in future 1053 AWAY FROM EMPLOYER'S PREMISES; worlnnen whose duties take them away from employer's premises; when accident arises out of the employment 503 B BACKACHE ; temporary partial disability 846 BAKER; when under Act 185 BANDAGE ON WOUND CATCHING EIRE; when accidental injury '. 355 BANKRUPTCY ; receiver of bankrupt ; when personally liable for compensation 1181 BANKS ; director; application of Compensation Act to 305 " BENDS "; when accidental injury 355 BILL COLLECTOR; intermittently employed; when employe and not contractor 138 BITE OP ANIMAL; when accident arises out of employment. . . 609 BITE OE INSECT ; when accidental injury 403 BITE OP REPTILE; when accident arises out of employment. . . 610 BITE OF SNAKE ; when accident arises out of employment. .... 611 BITE OR STING OP INSECT ; when accident arises out of em- ployment 610 BLACKSMITH ; when under Act 185 BLINDNESS FROM HYSTERIA; when accidental injury 393 Digitized by Microsoft® INDEX 1219 PAGE BLISTER ON HEEL; Bright's disease; developing from; when accident arises out of employment 611 BLOOD POISONING ; when accidental injury 355 BOARDING MISTRESS OP CONSTRUCTION CREW; when under Act 185 BOARDING STABLE ; when employes under Act 186 BOILS ; when accidental injury 355 BONUSES ; when considered as part of wages on which compensa- tion is based 919 BOOK AGENTS OR CANVASSERS ; when under Act 186 BOTTLE OF ACID BURSTING IN EMPLOYE'S POCKET; when accident arises out of employment 611 BOTTLER ; when under Act 186 BOWLING ALLEY PIN BOY; receiving percentage of amount paid ; employe and not contractor 139 BOY ON BICYCLE CATCHING ON MOTOR CAR; serious and willful misconduct 537 BOY RECEIVING SMALL GRATUITIES; when under Act. . . 186 BRIGHT'S DISEASE; from blister on heel; when accident arises out of employment 611 when accidental- injury 356 BRINGING IN THIRD PARTY 993 BRITISH ACT; British and German Compensation Acts com- pared 12 general effect of British Act on Americaa statutes and de- cisions 14 BRONCHITIS AND INTESTINAL TUBERCULOSIS; when accidental injury 356 BUILDING CONTRACTS; when parties contractors and not employes 148 BUILDING CUPBOARD FOR EMPLOYE'S OWN TOOLS; when accident arises out of employment 611 BUILDING RESIDENCE; when employes under Act 186 BURDEN OP PROOF; application to discontinue compensation. 1044 as to intoxication 1042 as to whether employe is in excepted class 1044 contributory negligence 25 dependency 1043 dependency; burden on claimant to show dependency 801 generally r • 1034 general doctrine of as applied to compensation acts 23 interstate commerce by employe on vessel 1045 modification of award 1127 prejudice by failiOjgiytffef^djPft^oso/?® 1043 1220 ^ INDEX BUEDEN OF PEOOF— Continued. page prejudice to employer by failure of employe to secure proper • medical attention 1043 serious and willful misconduct 535, 1043 termination of disability 895 waiting period 701 willful negligence 24 BUEN" FEOM AMMONIA BEING MISTAKENLY THEOWN INTO FACE; when accident arises out of employment. . 611 BIJESITIS ; when accidental injury 356 BUTCHEES ; when under Act 187 BUYEE FOE STOEAGE WAEEHOUSE ; when under Act 187 CADDY FOE GOLF CLUB ; is employe of a club and not of the person whom he is serving at the time of accident 125 CALLOUSED HAND; infection from crack in; when accident arises out of employment 656 CANCEE ; gastric; when accidental injury 377 when accidental injury 357 when injury arises out of employment 612 CAEBUNCLE; when accident arises out of employment 612 CAEPENTEE MAKING EEPAIES IN DEPAETMBNT STOEE ; when under Act 188 CASUAL EMPLOYES 188 bill collector 193 brevity merely does not make casual employment 196 British doctrine 188 burden of proof on employer to show casual employment ' 201 burden of proof on employer to show casual nature of employ- ment under Illinois Act 197 California doctrine 191 carpenter constructing chicken house 195 carpenter doing repair work on private school 194 carpenter employed by corporation, doing work for stockholder of company 195 carpenter employed on dairy ranch to build a bam 193 carpenter employed to put on roof 195 carpenters hired by decorators to put up scaffold , 193 cement finisher asked to carry ice box into houses 194 cleaning cellar in restaurant 194 Connecticut doctrine 196 cutting ice ; indefinite period of employment 196 definition of term ... . , . .... ..... 196 Digitized by Microsoft® INDEX 1221 CASUAL EMPLOYES— Continued. page developing tract of land 196 digging well 192^ 198 driver on municipal road work who worked when weather permitted 197 employe hired by the hour 200 filling ice house 199 foreman carpenter in erection of building 192 furniture mover 199 house cleaner on a specified day each week 197 Illinois doctrine 197 improving old farm 196 indefinite employment 300 Indiana doctrine 197 labor lasting more than a week 191 longshoreman 199 machinist employed to repair tractor 195 man called from street to help in odd job 193 man employed to build garage 192 man with team employed to deliver coal 198 mason's helper employed temporarily to pick apples . . '. 198 Massachusetts doctrine 197 Michigan doctrine 198 New Jersey doctrine 199 Ohio doctrine 200 painter employed to paint house at specific rate per day 191 painting house 196 paper hanger in private house 195 Pennsylvania doctrine 201 piece worker 199 plasterer employed to make repairs 194 porter in saloon washing windows in apartment above 194 putting fine in boiler • . • ■ 300 remodeling room to put in pool table 197 removing snow from tracks of railway 300 repairing gas engine 301 repairing roof on private house 195 sawmill employes intermittently employed 200 snow shoveler 300 substitute employe 198 superintending unloading of material brought to building 198 supernumerary in theatrical production 195 temporary employment does not necessarily mean casual em- ployment 199 wages which are ^k^?l (^/mf&^9^ ^^° 1222 INDEX CASUAL EMPLOYES— Continued. page waiter employed by caterer 197 vrhen casual as to a principal and not as to contractor 195' when common-law defenses available against 29 workman employed without definite date of termination of employment 200 CATAEACT ; when accidental injury 357 CEILING FALLING; when accident arises out of employment. . . 640 CEEEBEAL ABSCESS ; when accidental injury 358 CBEEBEAL -HEMOEEHAGE ; when accidental injury 358 CEEEBEAL HEMOEEHAGE FEOM STEAIN; when accident arises out of employment 612 CEEEBEAL OEDEMA AND DELIEIUM TBEMENS; when accidental injury 358 CESSATION OP WOEK TEMPOEAEILY; When accident arises out of employment 511 CHANGE OP VENUE 1006 CHAEITABLE INSTITUTIONS ; when compensation acts apply to 201 CHAEITY WOEKEE; injured while calling on physician; when accident arises out of employment 612 CHAETEEED VESSEL ; who are employers of seamen 148 CHAUPPBUE; when under Act 184 CHUECHES ; when compensation acts apply to. 202 CHUECH SEXTON; injured trying to stop fight between boys on church ground; when accident arises out of employ- ment 613 CLAIMS POE COMPENSATION 928 British Act ; decisions under 948 California Act ; decisions under 949 Connecticut Act; decisions under 952 Pederal Act ; decisions under 949 Illinois Act ; decisions under 952 Kansas Act; decisions under 953 limitation 1197 Massachusetts Act ; decisions under 954 Michigan ; decisions under 955 Minnesota Act ; decisions under 956 New Jersey ; decisions under 956 New York Act ; decisions under 956 Ohio Act ; decisions under 956 specifying amount when inaking claim for compensation. . . . 1002 West Virginia Act ; decisions under 957 CLEANING MACHINEEY IN MOTION; serious and willful misconduct 538 Digitized by Microsoft® INDEX 1223 PAGE CLEANING OWN CLOTHING; when accident arises out of employment 613 CLEANING OWN MOTOECYCLE used in work; when accident arises out of employment 613 CLEEK OP BUILDING CONSTEUCTION; is employe of the contractor and not of the architect 125 CLUMSINESS ; temporary partial disability 845 CHEMICAL POISON APPLIED EXTEENALLY; when acci- dental injury 359 COMMISSION AGENT; employe and not contractor 139 when compensation acts apply to 203 when independent contractor and not employe 150 COMMISSION MEECHANTS; when compensation acts apply to 203 COMMISSION SALESMEN ; how relation of master and servant created in regard to 126 COMMISSIONS ; when considered as basis of wages 915 COMMON LAW DEFENSES ; abolition of 30-52 assumption of risk 18 assumption of risk; defense of by employer who has rejected Act 36,27, 28 casual employes; when available as against 29 contributory negligence; defense of by employer who has rejected Iowa Act 27 contributory negligence; defense of by employer who has rejected Act '. 28 contributory negligence; when pleaded in mitigation of damages 29 employing less than five employes 29 negligence of fellow servant; defense of by employer who has rejected Act 28 origin and nature of the so-called common law defenses 18 reason for abolishing common law defenses in relation to com- pensation Acts ^ 20 Texas; employer employing less than five employes 29 to what extent common law defenses have been abolished generally • *^ when available against casual employe _■ • • • 29 Wisconsin; employer who has adopted compensation principle; when employe has rejected Act 28 COMMON LAW MAEEIAGE ; evidence of 1023 COMMON LAW WIPE ; when dependent 'J'6'J' COMMUTATION OF AWAED 1150 British Act JJ^J California . . . DigJtizedity Miorosoft® H^l 1224 INDEX COMMUTATION OP AWAED— Continued. page combining original proceeding with one to commute payments. 1006 Connecticut 1154 lUinois 1156 Kansas 1156 Massachusetts 1157 Minnesota 1157 Nebraska 1157 New Jersey - 1158 New York 1160 Ohio 1161 Pennsylvania 1161 Wisconsin 1161 COMPEOMISING COMPENSATION CLAIMS 1137 British 'Act 1137 California 1141 Connecticut 1143 Illinois 1145 Kansas 1145 Massachusetts 1145 Michigan 1146 Minnesota . . 1146 Nevada 1147 New Jersey 1147 New York 1148 Ohio 1148 Washington 1148 Wisconsin 1149 CONCUSSION OP BEAIN ; when accidental injury 359 when accident arises out of employment 613 CONFLICT OP LAWS; conflict between board and arbitration committee 1045 extra-territorial effect; conflict under state compensation laws. 95 CONNECTICUT; practice under Connecticut Act; article by Hon. George H. Beers 961 CONSECUTIVE AWAEDS POE PEEMANENT PAETIAL AND TEMPOEAEY TOTAL DISABILITY 878 CONSTANT JAEEING AND JOLTING OP MACHINE; when accidental injury 359 CIECUMSTANTIAL EVIDENCE 1021, 1024 CONSTITUTIONAL LAW; elective, compulsory and state in- surance Acts are constitutional generally 63 limiting application of Acts to employers of five or more employes 64 preventing assignments; Act constitutional 1183 Digitized by Microsoft® INDEX 1225 PAGE CONTAGIOUS SKIN DISEASE; when accident arises out of employment 614 CONTINUOUS EMPLOYMENT; when accident arises out of employment 614 CONTINUOUS STRAIN ; when accidental injury 360 CONTRACTING OUT; definition ot 277 CONTRACTORS; proceedings against principal only and not against employes of contractor 995 see Independent Contractors. CONTRIBUTARY NEGLIGENCE ; burden of proof 35 defense of by employer who has rejected Iowa Act 27 defense of by employer who has rejected Michigan Act 28 defense of by employer who has rejected Ohio Act 28 defense of ; employer who has rejected West Virginia Act 28 defense of by employer who has rejected Wisconsin Act 28 origin and nature of defense of 19 when pleaded only in mitigation of damages 29 CONVALESCENCE PERIOD ; disability benefits during 825 temporary partial disability 846 CONVICT; employe committed to jail after injury; effect on right to disability benefits 843 when compensation acts apply to 203 workman sentenced to jail after injury; modification of award 1118 COOK; burned from hot grease; when accident arises out of em- ployment 641 clothing catching fire; when accident arises out off employ- ment 641 COPPER POISONING; when accidental injury 360 CORNEAL ULCERS FROM SPLASHING OF LYE WATER; when accident arises out of employment 615 CORPORATION; employe doing private work for stockholder; when accident arises out of employment 615 employe sent on personal errand of officer; when accident arises out of employment 666 liability of insurance carrier for compensation to officer and majority stockholder of corporation 1171 membership corporation engaged in unauthorized business; when employe under Act 261 officers and stockholders ; when under Act 237 director of bank ; application of Compensation Act to 205 COSTS; on appeal 1074, 1093 security for 1047 security for on appeal 1075 when awarded . Digitized by. Hi/licrosoft® 1045 1226 INDEX PAGE COTJNTEECLAIM ; when allowed as to disability benefits 893 ■ see Setoff; Offset. COUNTIES ; when compensation acts apply to 204 CUSTOM; following; serious and willful misconduct 551 D DAIEIES ; when compensation acts apply to 204 DEATH BEISTEEITS 738 advance payments 805 award in absence of dependents 906 claim for compensation by personal representative of de- ceased dependent ^ 803 comparison of statutes 740 death occurring after statute goes into effect by reason of acci- dent happening before statute effective 805 deducting board furnished to dependent 807 dependents 743 dependents; actual and presumptive or statutory dependents. 744 dependents ; adopted child 785 dependents ; brothers and sisters 789 dependents; burden of proof to show dependency 801 dependents ; child adopted by widow 785 dependents children 780 dependents ; common law wife 767 dependents ;• definition of word " dependent " 743 dependents ; dependent of more than one workman 796 dependents; dependents receiving other income because of death of workman 796 dependents; division of compensation between dependents... 799 dependents ; foster father of child not legally adopted 779 dependents ; foster mother 779 dependents ; grandmother 779 dependents; half brothers and half sisters 793, 793 dependents; hearsay testimony as to dependency 807 dependents; husband and son killed in same accident; de- pendency of widow and daughter 787 dependents ; illegitimate children 787 dependents; inheriting benefits from estate of deceased work- man as affecting right to compensation 797 dependents ; inmate of workhouse 793 dependents ; insane wife 765 dependent married daughter not living with father 784 dependents; minor children living with divorced mother 786 Digitized by Microsoft® INDEX 1227 DEATH BENEFITS— Continued. p^^e dependents ; minor children who have been adopted by another 785 dependents; minor son by former husband 785 dependents ; mistress ivgg dependents; mother of illegitimate child as dependent "of father of child. ij^gg dependents ; mother remarried 779 dependents ; non-resident aliens 793 dependents ; parents ] 7g8 dependents ; parents of illegitimate children 788 dependents ; partial dependents 743 dependents; partial and total dependents of same workman. . . 756 dependents ; posthumous child 787 dependents; posthumous illegitimate child 787 dependents; question of dependency is one of fact 747 dependents ; relief association benefit as affecting right to com- pensation 797 dependents; right of dependents independent of that of de- ceased 797 dependents ; sister-in-law 793 dependents ; son of divorced parents 785 dependents ; step-brothers and sisters 779 dependents ; step-children 784 dependents ; step-mother 793 dependents; total dependents 754 dependents ; wife married after accident 765 dependents ; wife separated from husband 757 double indemnity 806 estoppel by payment of compensation before death of right to deny liability therefor after death 803 funeral expenses ; when allowed 741 general view of the subject 740 guardian of minor child of applicant 801 hearsay testimony as to dependency 807 injuries caused by negligence of third person 806 limitation 807 minor's wage increase 806 necessity of administering on estate of workman 801 presumption of death from absence 802 submitting to operation 806 waiting period ; not to be deducted from 700 DEATH CASES ; presumption in fatal cases where cause of acci- dent unexplained 670 DEATH PEOM INCON"SEQUEFTIAL INJUET; when acci- dent arises oQig^mifiifyMm>.s.o.ft<^. 616 1228 INDEX PAGE DEATH FEOM UNEXPLAINED CAUSE; when accident arises out of employment 616 DEATH NOT NATURAL OE PEOBABLE CONSEQUENCE OP INJURY; when compensable 360 DEATH OCCUEEING TWO YEARS AFTER ALLEGED IN- JUEY ; when accident arises out of employment 619 DEATH OP DEPENDENT ; claim for compensation by personal representative of deceased dependent 803 DEATH OP EMPLOYS IN WHOSE FAVOE AWAED MADE. . 994 DEATH OP EMPLOYEE; right of workman to take out letters of administration on estate of deceased employer 994 DEDUCTING INSUEANCE BENEFITS TO WHICH EM- PLOYES CONTEIBUTE IN DETEEMINING DIS- ABILITY BENEFITS 897 DEFAULTS 1004 DELIEIUM TEEMENS ; when accidental injury 351, 358, 361 when accident arises out of employment 619 DELIVERY HELPER IN DEPARTMENT STORE; when com- pensation acts apply to 204 DELIVERY WAGON DRIVER DELIVERING ON FOOT; application of Compensation Act to 204 DEMENTIA PEAECOX ; when accidental injury 363 DEPENDENTS , 742 actual and presumptive .or statutory dependents 744 adopted child 785 alien non-residents; when entitled to compensation 183 apportioning compensation among 1064 award in absence of dependents 806 brothers and sisters 789 burden of proof to show dependency 801, 1043 child adopted by widow 785 children 780 common law wife 767 death of; claim for compensation by personal representative of deceased dependent 802 definition of word " dependents " 742 dependents receiving other income because of death of work- man ' 796 division of compensation between dependents 799 foster father of child not legally adopted 779 foster mother 779 grandmother 779 half brothers and half sisters 793 793 hearsay testimony tflgMm^^S^SOft® '• • • • 807 INDEX 1229 DEPENDENTS— Continued. page husband and son killed in same accident; dependency of widow and daughter ygij' illegitimate children ij'giy inheriting benefits from estate of deceased workman, as affect- ing right to compensation 797 inmate of workhouse 793 insane wife 7g5 married daughter not living with father 784 minor children living with divorced mother 786 minor children who have been adopted by another 785 minor son by former husband 785 mistress 755 mother of illegitimate child as dependent of father of child; . 788 mother remarried 779 non-resident aliens 793 parents 768 parents of illegitimate children 788 partial dependents 748 partial and total dependents of same workman 756 posthumous child 787 posthumous illegitimate child; when dependent 788 question of dependency is one of fact 747 relief association benefit as affecting right to compensation . . . 797 right of dependents independent of that of deceased 797 sister-in-law 793 son of divorced parents 785 step-brothers and sisters 779 step-children 784 step-mother 793 total dependents 754 wife married after accident 765 wife separated from husband ' 757 DEPOSITIONS 1026 DEPAETMENT STOEE; carpenter making repairs; when under Act 188 delivery helper; when compensation acts apply to 204 when employes of under Act 205 DEEMATITIS ; when accidental injury 362 DEVIATING FEOM EOUTE; serious and willful misconduct. . 538 DIEBCTOE OP BANK; when under Act 205 DISABILITY BENEFITS 808 burden of proof as to termination of disability 895 claim by estate of deceased workman 894 classification of ^}0^^c^wcm-gaft® ^1° 1230 INDEX DISABILITY BENEFITS— ContiQued. i-age compensation during vacation period 843 compensation for one day 895 convalescence period 825 convict; employe committed to jail after injury 843 decreased compensation for employer's failure to obey safety rules 891 deducting insurance benefits to which employes contribute. . . 897 disability extended by reason of improper medical treatment. . 828 disability prolonged by disease or other subnormal physical condition • 837 dismissal for misconduct of workman suffering from partial permanent disability 823 divorced man paying alimony is " single " for compensation purposes 897 earning same wages as before injury 820 hernia 840 inability to compete in the open market ". 812 inability to do work being performed when injured 819 inability to secure work 812 infant; probable earnings 896 injury to vision and to head preventing employe from stooping or bending 888 making complete reparation for injury 811 malingering 824 medical referee's decision as to termination of disability 828 neurasthenia 827 occupational diseases contracted partly in the employment of two employers ; apportioning compensation 896 offset or counterclaim 892 pain and suffering not compensated .' 811 partial temporary disability; wages and compensation after accident need not equal wages before injury 847 permanent partial 852 permanent, partial ; ability to earn same wages before as after accident ; modification of awards 1115 permanent partial; difference in earning power 853 permanent partial; dismissal for misconduct of workman suf- fering from partial permanent disability 823 permanent partial ; minimum award 853 permanent partial; refusal of employe to have operation per- formed 853 permanent partial; specific injuries for which definite sum is usually awarded 854 permanent partial; suspensory award 854 Digitized by Microsoft® INDEX 1231 DISABILITY BENEFITS— Continued. pag3! permanent partial; workman earning same wages as before injury 853 permanent partial; workman engaged in several employ- ments ; basis of compensation 853 permanent total 883 permanent total ; amputation of top joint of middle finger of machinist 883 permanent total ; arches of foot broken 885 permanent total ; compensation 891 permanent total ; disfigurement and age considered 885 permanent total ; impairment of sight 884 permanent total; inability to compete in open labor market. . . 885 permanent total ; inability to do heavy work 884 permanent total; inability to find light work 884 permanent total; inability to procure and retain employment. 886 permanent total; inability to secure work in maimed condi- tion 887, 888 permanent total ; injuries to hands and arms so that they be- came stiff and cramped ' 887 permanent total; injury to spine and paralysis of legs 886 permanent total ; loss of leg by man seventy years old 889 permanent total ; loss of sight of both eyes 885 permanent total ; loss of sight of both eyes to the extent of 80 per cent 889 permanent total ; loss of fingers from both hands 886 permanent total ; loss of hand by employe who had previously lost the other hand 889 permanent total ; loss of leg by man 70 years old 889 permanent total ; loss of most of fingers on both hands 888 permanent total; loss of one hand and several fingers on other hand 890 permanent total; loss of several fingers by minor 887 permanent total; loss of sight of one eye when other eye al- ready blind 885, 886, 887, 888, 889, 890 permanent total; loss of thumb and index finger by sawyer so workman unable to perform old work 890 permanent total ; one hand crushed and other badly mangled. . 887 permanent total ; partial paralysis of several members of body through electric shock 885 permanent total; recurrence of disability due to injury 883 permanent total ; severe bums from electric shock 886 permanent total; ship's carpenter incapable of working on ladder ^^^ 843 physical weaknesg,,-^^^^ bfWmsdft® ' 1232 INDEX DISABILITY BENEFITS— Continued. page place of payment of compensation 896 prospective award 893 reducing earnings owing to general fall in wages , . . . 815 refusal to do work which is offered 815 refusal to submit to surgical operation 834 specific injuries ; ankle injuries 871 specific injuries ; arm injuries ; 869 specific injuries ; consecutive awards for permanent partial and temporary total disability 878 specific injuries; disfigurement. .■ 874 specific injuries ; ear injuries 873 specific injuries ; eye injuries 854 specific injuries ; finger injuries 860 specific injuries ; foot injuries 871 specific injuries; for which definite sum is usually awarded, i . 854 speeifie injuries ; hand injuries 867 specific injuries ; heart trouble developing after injury 873 specific injuries ; hernia 874 specific injuries ; kidney removed 873 specific injuries ; leg injuries 871 specific injuries; minimum amount payable in all cases of specific indemnity 854 specific injuries; remaining at work after injury for which specific amount is awarded 876 specific injuries ; nose injuries 873 specific injury; schedule rating for permanent partial dis- ability 878 specific injury; specific injuries not covered by statute 876 specific injuries ; thumb injuries 865 specific injuries ; toe injuries 870 specific injuries; two weeks' waiting period should not be de- ducted 854 specific injuries; when amount for specific indemnity discre- tionary 878 State institution; compensation payments part of current ex- penses 897 Sundays, holidays and shutdowns occurring in period for which compensation is due ggg temporary partial disability 843 temporary partial disability ; backache 846 temporary partial disability; callous from broken bone 847 temporary partial disability; carpenter's foreman unable to use tools 845 Digitized by Microsoft® INDEX 1233 DISABILITY BEKEFITS— Continued. page temporary partial disability; clumsiness due to injury as ground of incapacity 845 temporary partial disability; convalescence period 846 temporary partial disability; definition 843 temporary partial disability; disability by disease accelerated by accident ; basis of compensation 844 temporary partial disability ; earnings after injury as basis for partial disability ; 848 temporary partial disability; failure to return to work when able to do so 845 temporary partial disability; inability to obtain employment in district where workman lives 844 temporary partial disability; loss of wages only basis of com- pensation 847 temportoy partial disability ; offer of employment by employer 847 temporary partial disability ; offer of light work 847 temporary partial disability; pain and inconvenience from injury after returning to work 845 temporary partial disability; recurrent attacks of industrial disease 844 temporary total disability 849 temporary total disability; age of workman as affecting amount of award 858 temporary total disability; consecutive awards for permanent partial and temporary total disability 878 temporary total disability; disability arising more than six months after accident 850 temporary total disability; failure to exercise proper care in use of injured limb 851 temporary total disability; heart weakness from injury 851 temporary total disability; inability to secure work by reason of loss of fingers 851 temporary total disability ; inability to walk to and from work 850 temporary total disability ; loss of eye 850 temporary total disability; question of fact 852 temporary total disability; relapse caused by working 850 temporary total disability; second surgical operation to re- lieve condition produced by first one 851 temporary total disability; submitting to operation for hernia. 851 temporary total disability ; test of disability is inability to earn money 849 temporary total disability; total disability for indefinite term Digitized- by-Miorosoft®- ■ • • • ^^^ 1234 lUDEX DISABILITY BENEFITS— Continued. page temporary total disability; unsuccessful efforts to obtain em- ployment 849 temporary total disability; waiting for opportunity to have operation performed at hospital 849 temporary total disability; when award for partial disability improper 852 ■two different accidents 841 voluntary idleness of workman as tending to prolong disability 843 DISCONTINUING COMPENSATION; burden of proof on ap- plicant 1044 DISEASE FOLLOWING INJUEY AS DISTINGUISHED FEOM OCCUPATIONAL DISEASE; when accidental injury 363 DISFIGUEEMENT ; claim for indemnity 1193 specific indemnity 874 DISLOCATION FEOM QUICK MOVEMENT; when accident arises out of employment 628 DISLOCATION FEOM STEAIN; when accidental injury 364 when accident arises out of employment 628 DISOBEDIENCE OF GENBEAL EULES AND SPECIFIC OEDBES; serious and willful misconduct 539, 619 DISMISSAL; dismissing common law action and retaining case to award compensation under Kansas Act 1004 failure to prosecute 1004 right of attorney to dismiss proceedings 1003 DISPLACEMENT OF CAETILEGE OF KNEE; when acci- dental injury 365 DISTEIBUTION OF COST OF COMPENSATION AND GENEEAL EFFECT ON EMPLOYEES AND EM- PLOYES : 1 DIVOECED MAN PAYING ALIMONY IS " SINGLE " FOE COMPENSATION PUEPOSES 897 DIZZINESS CAUSED BY ACCIDENT; when accidental injury 365 DOING WOEK FOE OWN BENEFIT ; serious and willful mis- conduct . . . .- 547 DOING WOEK IN UNUSUAL MANNEE; serious and willful misconduct 547 when accident arises out of employment , 628 DOMESTIC SEEVANTS; definition of and when they are under Act 205 DOUBLE COMPENSATION; serious and willful misconduct of employer 1193 when permitted 891 DOUBLE INDEMNITY ; death benefit 806 Digitized by Microsoft® IHDEX 1235 PAGE DRINKING POISON BY MISTAKE FOR DRINKING "WATER ; when accidental injury 365 DRIVER FALLING FROM WAGON; when accident arises out of employment 630 DRIVER FOR FLORIST ADJUSTING CUSTOMER'S WINDOW BOX; when accident arises out of employ- MENT 630 DRIVER KICKED BY STRANGE HORSE IN BLACK- SMITH'S SHOP; when accident arises out of employ- ment 630 DRIVER OF BREWERY WAGON ; when under Act 307 DROWNING ; when accidental injury 366 DRYGOODS AND CLOTHING MERCHANT; when employes of imder Act 307 DUAL EMPLOYERS ; how relation of master and servant created between such employers and their employes 127 ocenpational diseases contracted partly in the employment of two employers; apportioning compensation 896 which ones liable for coinpensation 208 DUAL EMPLOYMENTS AND EMPLOYERS ; wages which are the basis of compensation 934 DUAL ENTERPRISES conducted by one employer; how far covered by Act 308 DUST ; inhalation of; when accidental injury 398 DUST CAUSING HEART DISEASE AND ASTHMA; when ac- cidental injury 366 E EAR INJURIES ; specific indemnities for 873 ECONOMIC PRINCIPLES INVOLVED IN COMPENSATION ACTS ^ obligation to the community and to the workmen's families as distinguished from the personal obligations of the work- men • ^ ECZEMA ; when accidental injury 366 EJECTING TRESPASSERS; when accident arises out of em- ployment 630 ELECTION OF REMEDY AFTER ACCIDENT 387 action for damages against third persons causing injuries 181 Arizona ^^^ awarding compensation after action for damages dismissed on appeal 10^1 British rule . . . .Digitized -by Microsoft® *^" 1236 INDEX ELECTION" OF EEMEDY APTEB ACCIDENT— Continued. page California '. 293 Connecticut 294 claim against non-assenting employer 1007 damages claimed against third person causing injuries 181 dismissing common law action and retaining case to award compensation, under Kansas Act 1004 Illinois . 295 Kansas 295 Maryland 296 Massachusetts 296 Michigan 298 Minnesota 298 Few Jersey 299 New York 299 Ohio 302 Oregon 303 power of in personal representatives and not in executors or ■ administrators 994 right to elect irrespective of statutory 'provision 288 Texas 303 Washington 304 West Virginia 305 Wisconsin 306 ELECTEIC SHOCK ; nephritis from ; when accident arises out of employment 664 peritonitis from; when accidental injury 423 when accident arises out of employment 631 BLEVATOE ; using same contrary to instructions ; when accident arises out of employment 694 ELEVATOE OPBEATOE ; when under Act 210 EMBOLUS FOLLOWING AMPUTATION; when accidental in- jury 366 EMEEGENCE OP FLOATING CAETILEGE; when accidental injury 366 EMEBGENCY; acting on ; serious and willful misconduct 547 EMEEGENCY EMPLOYE; injury to; when accident arises out of employment 631 when compensation acts apply to 130 « EMPLOY:fi "; definition of term 134, 173 EMPLOYE COMMITTED TO JAIL APTEE INJUEY; effect on right to disability benefits 843 EPILEPSY ; w'hen accidental injury 367 EEECTION OP EANCH COTTAGES ; when employes under Act 210 EEEOE OP JUDGMENT ; serious and willful misconduct 547 Digitized by Microsoft® INDEX 1237 PAGE ERYSIPELAS; following frostbite; when accidental injury 367 following frostbite; when accident arises out of employment. . 631 following traumatism; when accidental injury 367 from infection of pimple; when accident arises out of em- ployment 636 ESTOPPEL; by payment of compensation before death of right to deny liability therefor after death 802 to whom acts apply; estoppel to deny relation of master and servant 130 EVIDENCE ;. accident report by employer 1033, 1025 adjournment to secure further evidence 1036 burden of proof; application to discontinue compensation 1044 burden of proof ; as to employment in interstate commerce by employe on vessel 1045 burden of proof ; as to intoxication 1043 burden of proof; as to jurisdiction 1043 burden of proof; as to prejudice by failure to give notice 1043 burden of proof; as to serious and willful misconduct 1043 burden of proof ; as to whether employe is in excepted class . . . 1044 burden of proof ; dependency 1043 burden of proof ; generally 1034 burden of proof; on employer to show prejudice by failure of employe to secure proper medical attention 1043 circumstantial 1019, 1030, 1031, 1034 common law marriage 1033 considering rules and acts not in evidence 1025 coroner's verdict 1018 declaration of deceased person 1019 depositions 1026 entry in employer's books 1021 ex parte affidavits 1018 harmless error 1030, 1024 hearsay 807, 1015, 1017, 1020, 1021, 1024 hearsay testimony as to dependency 807 incompetent admission of 1018 judicial notice 1027 letter by agent of employer 1033 letters rogatory 1026 medical referee 1038 objection to testimony ' 1020 order of proof 1027 presumption 1029 presumption against suicide 1031 reports of surgeoqj/g/^Eecf by-Miemseft® 1017 1238 iiTOBX EVIDE]SrCE— Continued. page rules of before boards and commissions 1011 statistical report ; 1035 stenographic minutes 1048 stipulation of the parties as to facts 1025 taking testimony at scene of accident 1037 wages which are the basis of compensation 927 EXCEPTIONS; findings 1051 EXCHANGING DUTIES; when accident arises out of employ- ment 637 EXCITING AND CONTEIBUTING CAUSE OF DEATH; when accidental injury 367 EXECUTION; enforcing payment by execution against person. . . 1063 staying execution against principal until return against con- tractor 1064 EXECUTOES AND ADMINISTKATOES OF DECEASED WOEKMEN 993 power of election 994 EXHAUSTION AND DEATH FEOM EXPOSUEE; when acci- dent arises out of employment 637 EXHIBITION OF POISONOUS EBPTILE; serious and wiUful misconduct 548 EXPLOSIONS ; when accident arises out of employment 637 EXPEESS AGENT ; killed by robbers ; when under act 211 BXTBENAL MANIFESTATION ABSENT; when injury deemed accidental 368 EXTEA-TEEEITOEIAL EFFECT 82 action for common law damages against third party causing injury 94 California rule 102 Connecticut rule 93 conflict under State laws 95 Connecticut rule 105 contract as basis of right to compensation 86 division of the subject 82 exclusive jurisdiction of tribunal deciding compensation cases as affecting extra-territorial effect 89 Iowa rule 107 Kansas : 109 limited application of decisions under British Act to American statutes 83 Massachusetts rule 84, 107 Michigan rule 84, 108 Minnesota rule 101, 108 Missouri rule ,..,...,,.,.., , 109 Digitized by Microsoft® INDEX 1239 EXTRA-TEEEITOEIAL EFFECT— Contimied. page Montana rule -^qq Nevada rule jQg New Jersey rule gij/ g^ jgg New York rule '.'.'.'.9i, 99, 113 Ohio rule jjrjr power to give extra-territorial effect to Compensation Act 83 Rhode Island rule Iqq 117 rulings of American courts, boards and commissions .' 103 seamen jq3 to what extent will the courts of one State enforce the laws of another State gs West Virginia rule 117 Wisconsin rule 84 117 EYE INJURIES ; cutting brush ; when accident arises out of em- ployment 638 foreign substance in eye ; when accident arises out of employ- ment 643 loss of eye as constituting temporary total disability 850 specific indemnities 854 sympathetic affection of one eye by injury to the other; when accidental injury 448 when the result of accidental injuries 368 EYE STRAIN ; when accident arises out of employment 638 F FACIAL PARALYSIS; from working in cold room in chocolate factory ; when accidental injury 369 FACTORY USING POWER; definition of and when employes under Act 211 FAILURE TO USE GOGGLES ; serious and willful misconduct. . 548 FAILURE TO USE GUYS IN BUILDING OPERATION; serious and willful misconduct 548 FAILURE TO USE SAFETY GUARD; serious and wiUful mis- conduct 549 FAINTNESS CAUSING FALL; when accident arises out of em- ployment 638 FALLING CEILING ; when accident arises out of employment. . . 640 FALLING OBJECT FROM ADJOINING BUILDING; when accident arises out of employment 640 FALLS FROM FITS, VERTIGO AND OTHER LIKE CAUSES ; when accidental injury 370 FALSE REPRESENTATION AS TO AGE BY MINOR IN SECUEIN(^^^gg l^pej^lffe^g^^imvl misconduct ... 550 1240 INDEX PAGE FALSE STATEMENT TO PHYSICIAN AS TO DEINKING HABITS BY INJUEED WORKMAN; serious and will- ful misconduct 550 FAMILY; how far members of employer's family are covered under Act 311 number of employes as affecting application of acts; when members of family are counted 178 FARM LABORERS ; definition of and when under Act 212 FEDERAL EMPLOYEES' LIABILITY ACT; affords exclusive remedy to railroad employes engaged in interstate com- merce ' 330 FIBROID TUBEECULOSIS ; when accidental injury 373 FINDINGS 1048 exceptions to \ 1051 time to file 1050 FINGEE INJURIES ; specific indemnities for 860 FIREMEN; when under Act ■ 316 FIRES; causing injuries; when accident arises out of employment. 641 FIRE WOOD MANUFACTURER; when under Act 217 FIRST AID; cost of must be borne by employer, no matter who calls physician 730 FITS ; falls from fits, vertigo or other like causes ; when accidental injury 370 when accidental injury 373 FLATFOOT; from traumatism; when accidental injury 373 when accident arises out of employment 643 FLOATING KIDNEY; when accidental injury 373 FOLLOWING CUSTOM; serious and willful misconduct 551 FOOT INJURIES ; specific indemnities for 871 FOREIGN CONSUL; claim by 994 FOREIGN SUBSTANCE IN EYE; when accident arises out of employment 643 FOSTER MOTHER; when dependent 779 FRAUD; securing employment by; when Compensation Act ap- plies 130 subcontracts as subterfuge to avoid liability 147 FRICTION INJURIES ; when accident arises out of employment.. 643 when accidental injury 373 FROSTBITE ; erysipelas following; when accidental injury 367 when accidental injury 374 when accident arises out of employment 644 FUNERAL EXPENSES ; when allowed [ 74I Digitized by Microsoft® INDEX 1241 PAGE 1 217 FUNDAMENTAL BASIS OF THE COMPENSATION PEIN- CIPLE FURNITUEE MANUFACTURER J" when 'empbyes "oi'undev Act G. I GAMEKEEPER REPELLING TRESPASSERS; when accident arises out of employment gOl GANGRENE FROM WOUND ; when accidental 'injuiy." ...'.'.'.'.'. 377 GAS COMPANY; when employes of under Act. . . 217 GASOLENE FUMES IN HOTEL; when accident arises out of employment g45 GASOLENE MERCHANT ; when employes of under' Act.' .' .' ." ." ." .' 218 GAS POISONING ; when accidental injury 414 when accident arises out of employment 645 GASTRIC CANCER; when accidental injury 377 GASTRIC ULCER ; aggravating pre-existing condition ; when ac- cidental injury 378 GENERAL UTILITY MAN; in occupation classified as hazard- ous ; when under Act 818 GERMAN ACT ; British and German acts compared 12 GETTING DRINK OF WATER; when accident arises out of em- ployment 646 GLASS MANUFACTURER ; when employes of under Act 218 GLAUCOMA; when accidental injury 378 GOING AFTER TIME SLIP ; when accident arises out of employ- ment 499 GOING TO AND PROM PLACE OP EMPLOYMENT ; when ac- cident arises out of employment 468 GOING TO EMPLOYER'S PREMISES TO APPLY FOR WORK; when accident arises out of employment 499 GOING TO PLACE OF DANGER UNNECESSARILY; When accident arises out of employment 689 GOING TO PORTIONS OF EMPLOYER'S PREMISES OTHER THAN THOSE NECESSARILY USED BY THE WORKMAN FOR HIS OWN CONVENIENCE OR PLEASURE; when accident arises out of the em- ployment 528 GOING INTO WINE VAT WITHOUT TESTING FOR POISONOUS GASES ; serious and willful misconduct. . 551 GOLF; caddy is employe of club not of individual member 125 GRANDMOTHER; ^Mt^imt^rosoft® ^^' 1242 INDEX PAGE GEATUITIES; when considered as part of wages on which com- pensation is based 918 GUAEDIAJSr AD LITEM ; guardian of minor child of applicant. . 801 infant parties 990 H. HALF BEOTHEES AND HALE SISTEES; when dependent. . 793, 793 HAND INJUEIES; specific indemnities for 867 HANDY MAN ; working for a real estate corporation ; when under Act 218 HAEDWAEE DEALEE; when employes of under Act 263 HAEMLBSS EEEOE; evidence 1024 HAYPEESS; employes operating; when under Act 218 HAZAEDOUS EMPLOYMENTS; limitation of acts to so-called hazardous employments 8 HEADACHES PEOM EYE INJUEY; when accidental injury. . 378 HEAESAY EVIDENCE 1015, 1017, 1021, 1034 HEAET DISEASE; heart weakness from injury; wlien con- stitutes temporary total disability 851 when accidental injury 378 when accident arises out of employment 646 HEAET TEOUBLE AND ASTHMA PEOM BEEATHING DTJST ; when accidental injury 355 HEAET TEOUBLE DEVELOPING AFTEE INJUEY; specific indemnity for 873 HEAT STEOKE ; when accidental injury 383 when accident arises out of employment 647 HEMOEEHAGE INTBENALLY; when accidental injury 385 HBMOEEHOIDS BECOMING EXTEENAL PEOM BXEE- TION ; when accidental injury 386 HEElll A ; disability benefits 840 specific indemnity for 874 submitting to operation for; temporary total disability 851 when accidental injury 386 when accident arises out of employment 647 HISTOEICAL EEVIEW OP COMPENSATION ACTS IN AMEEICA 53 HOD ELBVATOE; when workmen contractors 150 HOLIDAY; performing gratuitous act on; when accident arises out of employment 666 student of manual training school employed on; when imder Act 355 Digitized by Microsoft® INDEX 1243 HOME INJUEIES ; when accident arises out of employment 648 HOESE PLAY, LAEKING OE JOKING; when accident arises out of employment g^g HOESE SNEEZE ; when accident arises out of employment 654 HOETICULTUEAL LABOEEE; definition of " ' 219 HOTEL MANAGES; when under Act '" 219 HOUSEMAID'S KNEE ; when accidental injury. 393 HOW EMPLOYEES AND EMPLOYES BEOUGHT UNDEE ACTS 275 accepting compensation principle as to part of employes only. . 279 California 279 classification of statutes 275 Connecticut 280 contracts exempting employers from operation of Act 277 Illinois 280 Kansas 381 Massachusetts 283 Michigan 283 Minnesota 283 Montana 284 New Jersey 284 New York 284 Ehode Island 285 Washington 285 West Virginia 285 Wisconsin 286 HYDEOCELE ; when accidental injury 392 HYPOSTATIC PNEUMONIA ;. when accidental injury 392 HYPOTHETICAL CASES 1006 HYSTEEICAL BLINDNESS ; when accidental injury 392 HYSTEEICAL PABALYSIS ; when accidental injury 393 I. ICE HAEVESTING; when employes engaged in are under Act. . 219 ICE MANUEACTUEEE; when employes of under Act 220 ICY STEEET; slipping on; when accident arises out of employ- ment 675 IDLE CUEIOSITY; when accident arises out of employment. . . . 654 serious and willful misconduct , 552 IDLENESS; physical weakness due to; effect on right to disability benefits 842 voluntary idleness of workman as tending to prolong disability 843 ILLEGITIMATE (HpfiSffifEJJf Pdffasoi^ndents 787 1244 INDEX PAGE INABILITY TO SECUEE WOEK; when basis of disability benefits 813 INCIDENTAL EMPLOYMENT; when Compensation Act applies 131 when accident arises out of employment 654 INDEPENDENT CONTEACTOES; agent with supervisory power is employe 136 allowance to employe for automobile and assistant 138 associated workmen ; when contractors and not employes. . . . 148 bill collector intermittently employed 138 bowling alley boy receiving percentage of amount paid 139 building contracts ; relation of parties 148 commission agent 150 contractor is also employe when performing extra service 139 dividing men into groups or gangs 140 doing extra work ; when accident arises out of employment. . . . 655 employe of contractor not of principal 140, 150 employe supplying material at a profit 140 general tests as to relation of contractors and subcontractors. . 133 hod elevator employes 150 instaling machinery under independent contract 140 instances in which it has been held that workmen were con- tractors and not employes 148 instances in which it has been held that workmen were em- ployes and not contractors 136 inventor receiving advance when perfecting invention 141 labor union furnishing employes. 141 landlord and tenant; when relation is that of contractor and not employe 156 lump sum as wages based on estimated time to do work 141 men and appliances hired at stipulated sum per hour for entire work 151 mining operations; when workmen are not contractors 141 mining operations; when workmen contractors and not em- ployes 153 moving picture actor fumishiag airplane 142 participation in profits by workman 152 partnership contracts; when contractors and not employes. . . . 153 piece workers; when contractors and not employes 153 piece workers ; when employes and not contractors 143 pilots; when contractors and not employes ' 155 principal assisting contractor 155 profit sharing arragngement ; when employe and not contractor 146 subcontracts as subterfuge to avoid liability 147 Digitized by Microsoft® INDEX 1245 INDEPENDENT CONTRACTOES— Continued. page teamsters ; when contractor and not employe 155 tug employes are workmen and not contractors 147 undisclosed contracts 147 imdiselosed principle 147 vaudeville actress is employe and not contractor 147 window washer; when employe and not contractor 148 work outside of regular employment 155 INDIGESTION; when accident arises out of employment 655 INFECTION FROM BREAK IN SKIN; when accidental injury 394 INFECTION FROM BURN; when accident arises out of employ- ment 655 INFECTION FROM CRACK IN CALLOUSED HAND ; when accident arises out of employment 656 INFIfCTION FROM OPENING OF PIMPLE; when accident arises out of employment 656 INFECTION FROM SPLATTERING WATER WITHOUT BREAK OF SKIN; when accident arises out of employ- ment 656 INFECTION FROM TRAUMATIC INJURY; when accident arises out of employment 657 INFECTION IN DIFFERENT PART OF BODY FROM IN- JURED MEMBER TRACED TO INFECTION AT SEAT OF WOUND ; when accidental injury 395 INFECTION OF PIMPLE FROM SCRATCHING; when acci- dent arises out of employment 656 INFECTIONS AND OTHER AILMENTS CONTRACTED BY REASON OF LOWERED VITALITY DUE TO PRE- VIOUS INJURIES ; when accidental injury 396 INFECTIOUS DISEASE ; when accidental injury 393 INFLAMMATION OF KIDNEYS FROM STANDING IN WATER ; when accidental injury 398 INFLAMMATION OF PANCREAS ; when accident arises out of employment 658 INHALATION OF DUST ; when accidental injury 398 INHALATION OF GASOLENE FUMES ; when accident arises out of employment 645 INHALATION OF NOXIOUS GASES; when accidental injury. 398 INJURY OR ACCIDENTAL INJURY 315 aggravation; gastric ulcer aggravating pre-existing condition. 378 aggravation; medical treatment causing disability 407 aggravation of ; disability by illness or other contributing cause 341 aggravation of pre-existing disease 326 alcoholic meningitis and delirium tremens 351 aneurism ^^^ Digitized by Microsoft® 1246 INDEX INJUEY OE ACCIDENTAL INJUEY— Continued. page anthrax 353 apoplexy 353 appendicitis 354 asthma and heart trouble from breathing dust. 355 arterial sclerosis 354 artificial leg broken 354 artificial teeth broken 354 bandage on wound catching fire 355 " bends " 355 bite of insect ,• 403 blindness from hysteria 393 blood poisoning 355 boils V 355 Bright's disease 356 bronchitis and intestinal tuberculosis 356 bursitis ..." 356 cancer 357 cancer ; gastric 377 cataract 357 cerebral abscess 358 cerebral hemorrhage 358 cerebral oedema, and delirium tremens 358 chemical poison applied externally 359 concussion of brain 359 constant jarring and jolting of machine 359 continuous strain 360 copper poisoning 360 death not natural or probable consequence of injury 360 delirium tremens 358, 361 dementia pr'aecox 363 dermatitis 363 disease following injury as distinguished from oecupational disease 363 dislocation from strain 364 displacement of fjartilege of knee 365 distinction between the word " injury " and the term " acci- dental injury " as found in the various statutes 317 dizziness caused by accident 365 drinking poison by mistake for drinking water 365 drowning 366 dust causing heart disease and asthma 366 dust ; inhalation of 398 eczema 366 electric shock causing peritonitis 433 Digitized by Microsoft® IKDEX 1^47 INJUEY OE ACCIDENTAL INJUEY— Continued. page embolus following amputation 3gg emergence of floating cartilege 366 epilepsy 367 erysipelas following frostbite 367 erysipelas following traumatism 367 exciting and contributing cause of death 368 external manifestation absent 368 eye injuries 368 eye injury; sympathetic affection of one eye by injury to the other 448 facial paralysis, from working in cold room in chocolate fac- tory 369 falls from fits, vertigo and other like causes 370 fibroid tuberculosis ; stone grander's phthisis 373 fits 372 flatfoot from traumatism. . .- 373 floating kindey 373 friction injuries 373 frostbite 374 gangrene from wound 377 gas poisoning 414 gastric cancer 377 gastric ulcer; aggravating pre-existing condition 378 glaucoma 378 headaches from eye injury 378 heart diseases 378 heat stroke 383 hemorrhage internally 385 hemorrhoids becoming external from exertion 386 hernia , 386 housemaid's knee 392 hydrocele 392 hypostatic pneumonia 392 hysterical blindness 392 hysterical paralysis 393 infection from break in skin 394 infection in different part of body from injured member traced to infection at seat of wound 395 infections and other ailments contracted by reason of lowered vitality due to previous injuries 396 infectious disease '. 393 inflammation of kidneys from standing in water 398 inhalation of dust 398 inhalation of noxig)f^/^^^jt,y./V^e;^30^g> 398 1248 INDEX IFJUEY OE ACCIDENTAL INJURY— Contimied. page insanity 401 insect bite 403 intestinal tuberculosis 356 intestinal, ulcer 404 ivy poisoning 404 lead poisoning 404 lighting up inflammatory condition 407 lightning striking workman 406 medical treatment causing disability 407 meningitis following accident 410 mental shock or freight atfd nervous troubles 410 mine gas poisoning 414 nephritis 416 neurosis 414 neurosis ; mental shock or fright and nervous troubles 410 noxious gases ; inhalation of 398 occupational disease 417 operation ; surgical 419 optic neuritis 430 osteosarcoma from fall 431 overheated employe becomes incapacitated by standing in draught 431 •overwork 431 palmer abscess 421 paralysis 433 paralysis from hysteria 393 paresis ; after injury but resulting from other causes 433 periarthritis 433 peritonitis caused by electric shock 433 peritonitis from traumatism 433 pimple opened in unsanitary manner 434 pleurisy 433 pneumonia 434 pneumonia; hypostatic 393 poison; drinking poison by mistake for drinking water 365 poisoning by wood alcohol 456 poisoning from chemicals applied externally 359 recurrence of condition due to former injury 428 reducing compensation when an occupational injury accelerates or aggravates pre-existing subnormal condition, or when disability is prolonged by subsequently contracted disease. 342 refusal of workman to permit operation to be performed 429 rheumatism 430 rupture of blood vessel from strain 430 ■ Digitized by Microsoft® INDEX 1249 INJURY OR ACCIDENTAL INJURY— Continued. page sarcoma 431 scarlet fever 431 scarlet fever caused by surgical operation 448 sciatica 431 secondary effect of injury 431 second operation required by condition proauced by first 433 septicaemia cases generally 432 skin affections from acids and other irritants 436 sprains and strains generally 438 strains generally 438 strains ; rupture of blood vessel from strain 430 St. Vitus dance , 430 suicide due to mental condition caused by accident 443 sunstroke 443 surgical scarlet fever 448 sympathetic affection of one eye by injury to the other 448 tetanus 448 trachoma 449 tuberculosis 449 tumor 451 typhoid fevet 451 ulcers 453 ulcer; gastric; aggravating pre-existing condition 378 ulcers of stomach 453 vaccination .by order of superior 453 varicose veins 454 vertigo 455 what is an injury or an accidental injury within the meaning of compensation acts 315 wood alcohol poisoning 456 INSANE WIPE; when dependent 765 INSANITY; assaults by insane person; when accident arises out of employment 598 suicide from; when accident arises out of employment 676 when accidental injury , 401 when due to accident arising out of employment 658 INSECT; bite or sting of; when accident arises out of employment 610 bite ; when accidental injury 403 INSTALING WATER TANK ; when empl'-yes under Act 220 INSURANCE OE COMPENSATION CLAIMS 1162 agreement between employer and employe for lump sum pay- ment . . 1178 assignment of compensation claims to insure carrier 1183 breach of warrant|5^fg^gj, 1§^soft® H'i'^ 1250 INDEX INSUEANCB OF COMPENSATION" CLAIMS— Contiimed. page cancellation of policy 1179 change of physicians 1175 change of physician by consent of employer, but without notice to iQsurance carrier 1175 character and necessity of compensation insurance 1163 construing policy by Commission 1173 coverage of policy 1166 creditor of employer in charge of business under power of at- torney; liability of insurance carrier 1171 direct liability, of insurance carrier 1174 emergency emplqye of sub-contractor; liability of insurance carrier 370 employe of corporation assured doing work on stockholder's house 1170 employer's appeal from award against State fund 1096 failure of employer to give notice to company 1173 failure of insurance carrier to furnish adequate medical at- tention 1174 fraud in securing policy 1173 insolvency of insurer; preference of compensation claims 1181 joint award against employer and insurance carrier 1053 jurisdiction over a controversy between employer and insurance carrier 1173 liability of insurance carrier even though premium unpaid. . . . 1171 liability of insurance carrier for compensation to ofiBeer and majority stockholder of corporation 1171 liability of insurance carrier of merchant tailor to employes of independent contractor 373 liability of insurance carrier of principal contractor to em- ployes of subcontractor 373 liability to employes of subcontractor when policy issued to principal contractor 1170 loaned employe 1170 medical attention; regulations ' 1176 medical charges; bone setter not regularly licensed as phy- ' sician 1174 member of partnership 1171 offset allowed to employer; defective insurance 1176 minors employed contrary to law 1169 petition by employer or insurance carrier 1003 policies must comply with Act 1172 policy covering only one of several different classes of business conducted by employer 1169 Digitized by Microsoft® INDEX 1251 INSURANCE OP COMPENSATION CLAIMS-Continued. page recurrence of disability; liability of insurance carrier whose policy was in force when accident happened 1169 rights and liabilities of insurance carriers generally 1166 self-insurer ji ij,g status of those insured in stock companies as compared with those insured in State Fund 1180 subrogation of right to recover against third person. ......... 1176 subrogation to insurance carrier of right to furnish medical attention i^^r^ 1176 substitution of insurance carrier for employer 1177 waiver by insurance carrier of right to designate physician 1175 INTERMITTENT EMPLOYMENTS; wages which are the basis of compensation 905 INTERSTATE COMMERCE; burden of proof' as to,* by emp'loy6 on vessel 1045 interstate employes on railroads not covered by Act 330 INTERSTATE NAVIGATION ; employes on boats on Mississippi River; application of compensation acts 108 INTESTINAL TUBERCULOSIS ; when accidental injury 356 INTESTINAL ULCER ; when accidental injury 404 INTOXICATION; burden of proof 1043 when serious and willful misconduct 553 INTOXICATED PERSONS; attacks by; when accident arises out of employment 597 INVENTOR ; receiving advance when perfecting invention ; when employe 141 IRON MANUFACTURER ; when employes of under Act 333 IVY POISONING; when accidental injury 404 when accident arises out of employment 659 J JANITOR; when under Act 333 JANITOR MAKING REPAIRS ; when accident arises out of em- ployment 659 JANITOR REMOVING ASHES; when accident arises out of em- ployment 659 JOKING ; when accident arises out of employment 649 JUDGMENT; on award 1063 JUDICIAL NOTICE 1037 JUMPING ON MOVING CAR; serious and willful misconduct. . 557 JURISDICTION ; Boards and Commissions 997 burden of proof 1043 JURORS ; when under Act 334 JURY TRIAL; when e&l^l^^y Moro^ft®- 1011 1252 INDEX K PAGE KBEOSENB USED TO BTJILD FIEE; serious and willful mis- conduct . . . 55? L LABOEEE EIDING ON TOP OF CAES; serious and wilHul mis- conduct 557 LABOE UNION ; employes furnished by ; when employes and not contractors 141 when employes of under Act 334 LAMP MANUFACTUEEE; when employes of under Act. . .334, 363 LANDLOED AND TENANT ; application of compensation acts to 334 when relation that of contractor and not master and servant . . 156 LANDSLIDE ON EAILEOAD; when accident arises out of em- ployment 659 LAEKING; when accident arises out of employment 649 LEAD POISONING; when accidental injury 317, 404 LBATHEE MANUFACTUEEE; when employes of under Act... . 334 LEAVING MACHINE IN OPEEATION; serious and willful misconduct 558 LECTUEEE; when under Act 334 LEG INJUEIES ; specific indemnities for 871 LESION OF HEAET FEOM BROKEN EIB; when accident arises out of employment. 660 LETTEES EOGATOEY 1036 LIABILITY OF PEINCIPALS FOE COMPENSATION TO EMPLOYES OF CONTEACTOES AND SUBCON- TEACTOES , 364 British Act ; doctrine of 365 clearing levee in farmer's protection district 370 California doctrine 368 California ; jurisdiction of Industrial Commission 368 Connecticut 271 construction and erection of water tank; liability of principal to employes of contractor 273 contractor's liability to employes of truckmen 273 definition of the new relation 264 emergency employe of subcontractor; liability of insurance carrier 270 exhibitor at exhibition; liability to employe of decorator 370 fraudulent scheme to avoid liability for compensation 273 goods to be manufactured on contractor's premises 26 ^ Illinois 273 immediate employer primarily liable g71 Digitized by Microsoft® INDEX 1253 LIABILITY OF PRINCIPALS FOE COMPENSATION TO EMPLOYES OP CONTEACTORS, ETC.— Con. page insurance carrier of principal contractor liable to employes of subcontractor ... 373 joint liability of owner of house and contractor 269 Massachusetts 373 merchant tailor and contractors making clothing; liability of insurance carrier of merchant tailor 273 municipal corporation; liability of municipal corporations to employers of contractors 269, 273 New York 373 owner of land erecting house; liability of contractors and sub- contractors, but not of principal 272 principal contractor ; liability of as guarantor 271 proceedings against principal only 995 staying execution against principal until return against con- tractor 1064 when accident does not happen on principal's premises 272 when in the usual course of the business of the contractor but not of the principal 269 window washer in public school employed by janitor; liability of board of education 269 Wisconsin 273 LIGHTING PIPE; when accident arises out of employment 660 LIGHTING UP INPLAMMATOEY CONDITION; when acci- dental injury 407 LIGHTNING STRIKING WOEKMAN; when accidental in- jury 406 when accident arises out of employment 660 LIMITATION; agreement to avoid statute 1201 amending complaint after action for damages dismissed 1202 amendment not retroactive 1202 application dismissed on petition 1201 application for death benefits. 807 application of statutes 1197 application of unauthorized lump sum settlement to extend time 1200 claim for compensation; limitation; when petition must be actually filed 1198 death benefit 1300 disability arising more than six months after accident 850 extending time by paying medical expenses 1200 further disability 1199 last day falling on Sunday 1300 minors ; when Act ^mh^Pl^Wticrosoft® JJ^^ modification of awara lliio 1254 INDEX LIMITATION— Continued. page pleading statute as defense 1201 runs from last payment of wages in lieu of compensation 1199 State fund 1199 time extended as to employer by payment by insurance carrier 1199 waiver ; State institution 1201 when general statute of limitation applies 1302 LINEMAN FAILING TO USB SAFETY BELT; serious and willful misconduct 558 LINEMAN WOEKING ON ELECTEIC LIGHT POLES WHEN CUEEENT TUENED ON; serious aad willful misconduct ' 558 LINEMAN WOEKING WITHOUT EUBBEE GLOVES; serious and willful misconduct 558 LIVE WIEE ; picking up ; serious and willful misconduct 560 LOANED EMPLOYS; application of compensation acts to 157 when accident arises out of employment 662 LOFT BUILDING; when employes operating under Act 225 LONGSHOEEMAN ; not casual employe 199 not covered by local compensation acts ,. . 226 wages which are the basis of compensation 910 when under Act 225 M MACHINEEY ; employe engaged in connection with ; when under Act 225 MACHINEEY MANUFACTUEEE ; when employes of under Act 226 MAIL CONTEACTOE; when under Act 226 MAN-OF-ALL-WOEK; when under Act 226 MAEITIME EMPLOY:eS ; boats on Mississippi Eiver 108 extra-territorial effect of workmen's compensation acts 103 not covered by local compensation acts 226 MAESHAL ; when under Act 230 MASTEE AND SEEVANT; employer also workman; relation with other workman 130 estoppel to deny relation 130 fraud in securing employment ; effect of 130 how relation created ; agency to employ 123 how relation created; assistants. 124 how relation created ; caddy for golf club 125 how relation created; captain of chartered vessel 125 how relation created ; changing place of work 125 how relation created ; clerk of building construction 125 how relation created; colorable transfer of business by em- ployer 126 Digitized by Microsoft® INBBX 1255 MASTEE AND SBEVANT— Continued. page how relation created; contract assigned as security for financial advances to employer 126 how relation created; creditor taking over management of firm financially embarrassed 126 how relation created; disobedience of specific orders does not discontinue relation 127 how relation created; dual employers 127 how relation created; emergency employe 130 how relation created generally 121 incidental employment ; when relation exists 131 independent contractors ; general test as to relation 133 instances in which it has been held that workmen were em- ployes and not contractors 136 landlord and tenant ; when relation that of contractor and not master and servant 156 loaned employe ; relation of parties 157 quitting work; intent to quit as discontinuing relation 161 receiver as employer 161 substitutes ; when relation created 161 MEALTIME INJUEIES; when accident arises out of employ- ment 523 MECHANICS GETTING ON AND OFF VESSELS; when acci- dent arises out of employment 491 MEDICAL ATTENTION 701 afl&rmative duty of employer 703 agreement by employe to pay his own medical bill 717 amount of charges ''28 artificial limb ^^25 basis of right to medical attention 705 bone setter not regularly licensed physician employed by con- sent of both parties -^ '^28 burden on employer to show prejudice by failure of employe to secure proper medical attention 1043 carriage hire ' *" charges and practice in collecting ''28 chiropractor '* ' Christian Science treatment '27 claim for medical expenses as distinct claim 1002 computation of period of medical attention; exclusion of date of injury '1' crutches ^ '-^^ de'ducting medical disbursements from employe's wages 733 dentist's bills • • • • • '26 disability ^^^^^^^^^fiiW^Wyl^i^^soM ^^^^^^ attention. . 838 1256 ■ INDEX MEDICAL ATTENTION— Continued. page electrical treatment 725 employment of two physicians or surgeons 724 expense of going to and from 'physician's oflBce when injured employe is partially blind 725 extension of period of medical attention 718 failure of insurance carrier to furnish adequate medical atten- tion 1174 failure to give notice to employer of injury 705 first aid 720 free clinic ; treatment at 733 hospital treatment 721 how medical fees. collected 734 insurance carrier's subrogation to right to furnish medical attention 737 liability of employer for negligent medical attention 728 licensed physician 727 lien of physicians 733 limitation ; claim for compensation more than six months after injury .' 706 massage treatment 726 necessity of submitting to operation 736 neglect to secure proper medical treatment ; serious and wiUf ul misconduct • • 559 ninety day period starts from date of disability, not date of accident 717 nurses ; when expenses of allowed 720 offsetting additional compensation payments against medical bill 731 offsetting cost of additional medical treatment against com- pensation 731 operation in part to cure pre-existing condition 720 plaster casts 726 private ward in hospital ; when expenses of allowed 722 provisions of statutes generally 703 qualification of medical attendant 727 railroad fare on returning home with nurse 725 refusal to permit medical attention 736 refusal to submit to surgical operation ; modification of award, 1006, 1122 rehearing to approve medical bills 736 renewal of disability from same injury 720 rent of apartment in which injured employe is housed 724 selecting physicians 724 specialists; when exgense of services of allowed 723 Digitized by Microsoft® INDEX 1257 MEDICAL ATTENTION-— Continued. „,^„ subrogation to insurance carrier of right to furnish medical attention ^ ^ ^,„ surgical operations yn„ tendering medical treatment in the nature' of an oieration'aV 1 condition of stopping compensation. . 736 ^^''■■•, .■■.::::::;:: 736 waiver by insurance carrier of right to designate physician. . . 1175 what medical attention includes . ^jy when employe justified in selection of own physician 'at ex- pense of employer or insurance carrier 706 wound aggravated by failure of medical attention. .......... 738 X-ray service .' woo MEDICAL EEFEEEB 1028 decision as to termination of disability 838 MEDICAL TEEATMENT CAUSING DISABILITY- when ac- cidental injury 407 MEMBEESHIP COEPOEATION; engaged in unauthorized business; when employes under Act 261 MElflNGITIS ; alcoholic ; and delirium tremens ; when accidental injury 351 following accident; when accidental injury 410 MENTAL SHOCK OE FEIGHT AND NEEVOUS TEOU- BLES ; when accidental injury 410 when accident arises out of employment 662 MESSENGEE ON WAY HOME; when accident arises out of the employment 488 METAL GOODS MANUFACTUEEE ; when employes of under Act 230 METAL TOY MANUFACTUEEE ; when employes of under Act . 330 MILL EMPLOYS ; when under Act 331 MINE GAS POISONING ; when accidental injury 414 MINIMUM AWAED ; when proper 1051 MINING; when workmen contractors and not employes 152 when workmen are employes and not contractors 141 when under Act 331 MINOES; death benefit; wage increase as affecting 806 false representation as to age in securing work; serious and willful misconduct 550 probable earnings; effect on amount of disability benefits 896 probable earnings of infant in different grade ; modification of aw3.rd Digrtrzed tyy Microsoft® 1118 1258 INDEX MINOES— Continued. page probable increase of minor's wages as basis for increase of compensation when workman is infant at time of injury. . 1117 probable increase of wages which are the basis of compensation 913 when statute of limitation begins to nm against 1199 MISTRESS; when dependent 765 MISUNDEESTANDING OEDEES; when accident arises out of employment 663 MITIGATION OP DAMAGES; when contributory negligence pleaded in mitigation of damages 29 MODEL FOE CLOAK MANUFACTUEEE; when under Act. . . 233 MODIFICATION OF AGEEEMENTS AND AWAEDS 1100 agreement made and approved under a mistake as to facts 1106 allowing for expenses when work furnished away from home. . 1116 apportioning loss between employer and employe 1115 award made on stipulation as to facts 1108 burden of proof 1137 change in status of injured employe 1108 change of circumstances 1103 disability due to brooding over injury 1119 disability due to idleness and softened muscles 1118 disability from disease following injury 1119 error in original award 1105 failure of workman to get or attempt to get light work 1113 general increase of wages in district. *. 1117 inability to do same work as before injury 1113 inability to earn old wages in new occupation 1114 inability to get employment due to slackness of work 1113 inability to obtain light work 1110 increased susceptibility to occupation disease 1116 increase or decrease of disability after award 1109 increasing age as affecting disability 1118 infant earning as much after as before accident 1117 inherent right to review 1101 lack of evidence as to exact amount workman is able to earn. . 1110 limitations 1130 modifying award from a date earlier than the date of the appli- cation to modify 1126 newly-discovered evidence 1109 new period of disabiltiy from same injury 1108 offering employment at different place 1116 permanent partial disability; ability to earn same wages as before accident 1115 pleading 1126 point not raised on original hearing 1108 Digitized by Microsoft® INDEX 1259 MODIFICATION OP AGEEEMENTS, ETC.— Continued. page practice 1124 probable earnings of infant in. different grade.' 1118 probable increase of minor's wages as basis for increase of com- pensation when workman is infant at time of injury 1117 profits of business enterprise as affecting right to reduce com- pensation 1109 question of recovery from injury is one of fact 1134 recovering overpayments of compensation 1126 refusal to submit to surgical operation 1123 res adjudicata 1128 retroactive effect of correction on rehearing 1130 suspensory award 1125 terminating compensation payments 1130 under what circumstances modification allowed 1101 withdrawing part of motion 1127 workman permanently injured but suffering increased dis- ability from disease 1119 workman sentenced to jail after injury 1118 MOVING CAE; jumping on; serious and willful misconduct. . . . 557 MOVING PICTUEE ACTOE; furnishing airplane; is employe and not contractor 143 going to and from studio ; when accident arises out of the em- ployment 488 when under Act 333 MOVING THEESHING MACHINE AFTEE WOEK FIN- ISHED ; when accident arises out of employment 663 MUNICIPAL COEPOEATIONS ; liability of municipal corpora- tions to employers of contractors 373 when compensation acts apply to counties 204 when employes of under Act 333 MUEDEE; chauffeur on hired car; when accident arises out of employment prison guard killed by escaping convict; when accident arises out of employment ^^^ N NATIONAL GUAEDSMAN; engaged in competitive shooting match ; when accident arises out of employment 66S wages which are the basis of compensation 913 when under Act 336 NEGLECT OP SUGGESTION NOT AMOUNTING TO AN "Iful misconduct 559 'licrosoft® 598 OEDBE; s^g]^^tBV)lK 1260 IlfDEX PAGE NEGLECT TO SECUEE PEOPBR MEDICAL TEEATMENT; serious and willful misconduct 559 NEGLIGENCE; non-assenting employer; when negligence must be shown in action for damages 29 when must be proTed in action against non-assenting employer 30 NEGLIGENCE OP PELLOW SEEVANT; origin and nature of defense of 19 defense of employer who has rejected West Virginia Act 38 NEGLIGENCE OP THIED PEESON; when accident arises out of employment 663 NEPHEITIS; from electric shock; when accident arises out of employment 664 when accidental injury 416 NBUEASTHENIA; right to disability benefits by reason of 827 NBUEOSIS; mental shock or fright; when accidental injury. . . . 410 when accidental injury 414 NBWLY-DISCOVEEED EVIDENCE; modification of award. . . 1109 NBWSPAPEE EEPOETEE INJUEED WHILE BIDING BICYCLE ON HIS WAY HOME; when accident arises out of employment 489 NEW TEIAL ; arbitrator cannot grant 1061 l^ON-EESIDENT ALIEN; expense of transmitting money to. . . 1047 when dependent : 793 when entitled to compensation 236 NON-WOEKING TIME INJUEIES; when accident arises out of employment 510 NOSE INJUEIES ; specific indemnities for 873 NOTICE OP HEAEING ; when entitled to 1005 NOTICES OP INJUEIES AND CLAIMS POE COMPENSA- TION 928 different rules applicable as to requirements relating to notices of injuries and claims for compensation 928 NOTICES OP INJUEIES 928 British Act ; decisions under 929 California Act ; decisions under 938 ■ Connecticut Act ; decisions under 940 Illinois Act ; decisions under 942 Kansas Act ; decisions under 943 Massachusetts Act; decisions under 943 Michigan Act ; decisions under 944 Minnesota Act; decisions under 944 New Jersey Act ; decisions under 945 New York Act ; decisions under 946 Pennsylvania Act; decisions under 947 Digitized by Microsoft® INDEX 1261 NOTICES OF INJUEIES-Continiied. page prejudice by failure to give notice; burden of proof 1043 Rhode Island Act ; decisions under. .' 947 Wisconsin Act ; decisions under [ i i 947 S?T?/n?T?^^ ^^^^^ ' ^'i^^l^^^io^ of ; when "accidental "injury '. ." ." ." '.'. 398 m^^S^ ?^ EMPLOYES ; effect of on application of Act 176 W UESE ; when expenses of allowed as part of medical attention ... 720 when under Act 037 OBEYING DIRECTIONS OF SUPERIOR; serious and willful misconduct ggQ OCCUPATIONAL DISEASES; contracted "partly 'in' the"employ- ment of two employers; apportioning compensation 896 distinction between accidental injuries and occupational dis- eases 7 increased susceptibility; modification of award 1116 recurrent attack of industrial disease 844 when compensation awarded for 417 when it is an injury or an accidental injury 317 OFFICERS AND STOCKHOLDERS OP CORPORATION; when imder Act. 337 OFFSET 1064 against amount awarded; preference IISI- overpayments of compensation; modification of award 1126 when allowed as to amounts due for disability benefits 892 when allowed to employer by reason of defective insurance. . . 1176 OPERATION ; surgical ; when accidental injury 419 OPTIC NEURITIS ; when accidental injury. 420 OSTEOSARCOMA FROM PALL; when accidental injury 421 OUTWORKERS ; when under Act 239 OVERHEATED EMPLOYE BECOMES INCAPACITATED BY STANDING IN DRAUGHT; when accidental in- jury 421 OVERWORK ; when accidental injury 421 when accident arises out of employment 664 P PALMER ABSCESS ; when accidental injury 421 PANCREAS; inflammation of; when accident arises out of em- ployment 658 PARALYSIS ; from electric shock ; when accident arises out of employment 665 Digitized by Microsoft® 1262 ' INDEX PAKALYSIS— Continued. page from hysteria; when accidental injury 393 from wearing telephone headpiece over ear; when accident arises out of employment ; 665 of face from working in cold air in factory; when accident arises out of employment 666 when accidental injury 423 when accident arises out of employment 664 PAEALYSIS CAUSING FALL INTO WATEE AND DEOWN- IN6 ; when accident arises out of employment 665 PAEESIS; after injury but resulting from other causes; when accidental injury 433 PAETNEESHIP; member of; when insurance carrier liable to. . 1171 partnership contracts; when contractors and not employes. . . . 153 when one party retains the status of employe 160 when partners under Act 339 PAETY ; bringing in third party 993 change of name of party 993' PATENT EXPEEIMENTEE; when under Act 341 PEACE OPFICEES; assaults; when accident arises out of em- ployment 600 citizen temporarily impressed as peace officer; assaults; when accident arises out of employment 601 • PECUNIAEY GAIN ; employe engaged for ; when under Act. . . . 341 when employe engaged for; when accident arises out of em- ployment 666 workman employed for ; when Act applies 180 PENALTIES 1193 claim for disfigurement 1193 double compensation; serious and willful misconduct of em- ployer 1193 failure to qualify financially or secure insurance 1193 increased compensation for employer's failure to obey safety rules 1196 when imposed 1193 PENSION ; when not considered as part of wages on which com- pensation is based 916 PEEFOEMING GEATUITIOUS ACT ON HOLIDAY; when accident arises out of employment 666 PEEIAETHEITIS ; when accidental injury 433 PEEITONITIS; caused by electric shock; when accidental injury 433 from traumatism; when accidental injury 433 when accident arises out of employment 666 Digitized by Microsoft® INDEX 1263 PERMANENT PARTIAL DISABILITY ^852 ability to earn same wages as before accident; modification ot awards -i -■ -i g difference in earning power 853 hand injuries oeiv minimum award gg3 partial paralysis of several members of bo'dy'from ' electric 8^°ck 885 refusal of employe to have operation performed 853 specific injuries; ankle injuries 871 specific injuries; arm injuries 869 specific injuries; consecutive awards for permanent partial and temporary total disability 878 specific injuries ; disfigurement 874 specific injuries ; ear injuries 873 specific injuries ; eye injuries 854 specific injuries ; finger injuries 860 specific injuries ; foot injuries 871 specific injuries; heart trouble developing after injury 873 specific injuries ; hernia 874 specific injuries ; kidney removed 873 specific injuries ; leg injuries 871 specific injuries; minimum amount payable in all cases of specific indemnity 854 specific injuries ; nose injuries 873 specific injuries; remaining at work after injury for which specific amount is awarded 876 specific injuries; schedule rating for permanent partial dis- ability 878 specific injuries ; specific injuries not covered by statute 876 specific injuries; waiting period should not be deducted 854 specific injuries; when amount for specific indemnity dis- cretionary 878 specific injuries ; thumb injuries 865 specific injuries ; toe injuries 870 suspensory award 854 workman earning same wages as before injury 853 workman engaged in several employments; basis of com- pensation 853 PERMANENT TOTAL DISABILITY 883 amputation of top joint of middle finger of machinist 883 arches of foot broken 885 recurrence of disability due to injury 883 disfigurement and age considered 885 Digitized by Microsoft® 1264 INDEX PEEMAKENT TOTAL DISABILITY— Continued. page impairment of sight 884 inability to compete in open labor market 885 inability to do heavy work 884 inability to find light work 884 inability to procure and retain employment 886 inability to secure work in maimed condition 888 injuries to vision and to head preventing employe from stoop- ing or bending 888 injury to spine and paralysis to both legs 886 loss of 'eye when other eye already blind 888 loss of fingers from both hands 886 loss of hand by employe who had previously lost the other hand 889 loss of most of fingers on both hands 888 loss of one eye when other eye blind .887, 889, 890 loss of one hand and several fingers on other hand 890 loss of several fingers by minor 887 loss of sight of both eyes to extent of 80 per cent 889 loss of thumb and index finger by sawyer so workman unable to perform old work. . ; 890 loss of sight of both eyes 885 loss of sight of one eye where other eye already blind 885, 886 one hand crushed and other badly mangled 887 paralysis of body from the waist down 885 severe bums from electric shock 886 ship's carpenter incapable of working on ladder 883 PEESONAL EEEAND OP OPFICEE OF COEPOEATION EMPLOYEE; when accident arises out of employment. . 666 PETITION; by employer or insurance carrier 1003 PHYSICAL EXAMINATIOK 1131 California; when allowed 1133 Massachusetts; when allowed 1134 New Jersey, when allowed 1134 when examination allowed; British Act 1131 PHYSICAL WEAKNESS DUE TO IDLENESS; effect on right to disability benefits 843 PHYSICIAN ; attending compensation cases ; when accident arises out of employment 490 attending to compensation cases; when employe 160 when under Act 341 PIANO MANUPACTUEEE; when employes under Act 341 PICKING PINGEE WITH UNSANITAEY KNIFE; serious and willful misconduct 560 PICKING UP LIVE WIEE ; serious and willful misconduct. ... 560 PICTUEE HANGEE; when under Act , 341 Digitized by Microsoft® INDEX 1265 PIECE WORKER; carrying bundles to and from factory; when ^^""^ injury arises out of the employment 487 wages which are the basis of compensation 912 when contractor and not employe 153 when employes and not contractors 145 when under Act t% PILE DRIVER; when under Act..;;; ;;;;;;;;;; :;;:;;:;;:::: tZ PILOT ; when contractor and not employe ; ; ; ; ; 155 PIMPLE; infection from opening; when accident arises out' of employment ggg opened in unsanitary manner; when accidental injury. . ' ' 424 PIPE MANUFACTURER; when employes of under Act. . . " 363 PLACE OF PAYMENT OF COMPENSATION 896 PLEADING; amending complaint after action for damages dis- missed ; limitation 1202 complaint; action against employer who has rejected compen- sation Act; aUeging rejection of Act 26 limitation ; pleading statute as defense 1201 modification of award 1126 rules of before Boards and Commissions 1008 PLEASURE TRIP COMBINED WITH BUSINESS ; when acci- dent arises out of employment 669 PLEURISY ; when accidental injury 423 PLUMBER ; doing repair work ; when employe and not contractor 146 PNEUMONIA; hypostatic; when accidental injury 392 when accidental injury 424 when accident arises out of employment 667 POISON; drinking poison by mistake for drinking water; when accidental injury 365 POISONING BY GAS; when accident arises out of employment. 645 POISONING BY WOOD ALCOHOL; when accidental injury. . 456 POISONING FROM CHEMICALS APPLIED EXTERNALLY 359 POISON TAKEN BY MISTAKE; when accident arises out of employment , 669 POLICE JUDGE RETURNING FROM LUNCHEON; when ac- cident arises out of employment 489 POLICEMAN; kiUed by train; when accident arises out of em- ployment 490 when under Act 242 PORTER IN OFFICE BUILDING; when under Act 343 POSTHUMOUS CHILD ; when dependent 787 POSTHUMOUS ILLEGITIMATE CHILD; when dependent. . . 788 80 Digitized by Microsoft® 1266 INDEX PAGE PEEFEEENCB OF COMPENSATION CLAIMS 1181 bankruptcy of employer 1181 insolvency of insurer 1181 receiver of bankrupt personally liable 1181 setoff against amount awarded 1181 PEBSUMPTION; effect of .... -. 1029 in fatal cases where cause of accident unexplained; when ac- cident arises out of employment 669 of death from absence 802 that employe covered by Act 180 PEESUMPTION AGAINST SUICIDE 1031 PEOCEDUEE; administration; character of commissions 996 see Administration and Procedure. PEISON GUAED KILLED BY ESCAPING CONVICT; when accident arises out of employment 601 PEOCESS SEEVEE FOE EAILEOAD ; when under Act 244 PEOFIT SHAEING; when workmen employes and not contract- ors 146 PEOSPECTIVB AWAED ; when improper 892 PEOXIMATE CAUSE ; doctrine of proximate cause as illustrated in the so-called aggravation cases 564 PUBLIC OFPICEE; when under Act 244 PUBLISHING COMPANY; when employes under Act 244 "PUEPOSELY SELF-INFLICTED"; serious and willful mis- conduct 561 E PACING WITH MOTOE CYCLE ; serious and willful misconduct 561 EAGPICKEE; when under Act 244 EAILEOAD ; employe going to have watch tested ; when accident arises out of employment 671 interstate commerce employes; exclusive remedy under Federal Employers' Liability Act 220 when employes of under Act '. 244 EECBIVEE; bankrupt; when personally liable for compensation. 1181 when employer 161 EECOVEEY OF COMPENSATION ; what amounts to 1007 EECUEEENCE OF CONDITION DUE TO FOEMBE IN- JUEY ; when accidental injury 428 EEDUCING COMPENSATION PAYMENTS WHEN IN- JURY AGGEAVATBD BY PEE-EXISTING SUB- NOEMAL CONDITION OE DISABILITY IS PEO- LONGED BY SUBSEQUENTLY CONTEACTED DISEASE 342 Digitized by Microsoft® INDEX 1267 PAGE EEFEEENDTJM ; taking effect of Act; postponement by 182 EEFUSAL OF WOEKMAN TO PEBMIT OPEEATION TO BE PEEPOEMED; when results constitute accidental in- jury 439 EEFUSAL TO DO WOEK WHICH IS OFFEEED; effect on right to disability benefits 815 EEFUSAL TO SUBMIT TO SUEGICAL OPEEATION; effect on right to disability benefits 834 modification of award 1132 EEHEAEING; supplementary proceeding instead of 1061 when granted 1054 EEMOVING FLOUE SACKS FEOM MIDDLE OF PILE; serious and willful misconduct 561 EENOVATING BUILDING; when employes engaged in under Act 245 EEPAIEING MACHINE; when accident arises out of employ- ment en EEPOETING FOE WOEK; when accident arises out of employ- ment 499 EEPOETS OF ACCIDENTS 1135 Michigan 1135 Minnesota 1135 Wisconsin 1135 EEPTILE; bite of; when accident arises out of employment 610 EES ADJUDICATA 1066 modification of award 1128 order terminating weekly payments not appealed from is Jinal. 1070 EESISTING EOBBEES ; serious and willful misconduct 561 EESTING IN WOEKING HOUES; serious and willful miscon- duct ^61 EESTING PEEIOD ; when accident arises out of employment 530 EETEOACTIVE EFFECT; death occurring after statute goes into effect by reason of injury happening before statute effective... 1^6, 805 injuries occurring prior to passage of Act l'^6 of amendments J°^^ of correction on rehearing H^" EETUENING TO EMPLOYEE'S PEEMISES TO SECUEE PAY • when accident arises out of employment 500 EETUENING TO EMPLOYEE'S PEEMISES TO SECUEE TOOLS • when accident arises out of employment 501 EETUENING TO PLACE OF EMPLOYMENT TO WOEK OYEETm^jml^^cm^rmdm''^ °* employment. . 490 1268 IKDEX PAGE EHEUMATISM ; when accidental injury 430 when accident arises out of employment 671 EIDING IN DANGEEOUS PLACE ON MINE BUCKET; serious and willful misconduct 561 EOBBEEY; assaults by robbers; when accident arises out of em- ployment 598 EUNAWAY HOESE; when accident arises out of employment. . . 671 EUPTUEE OF BLOOD VESSEL PEOM STEAIN; when acci- dental injury 430 when accident arises out of employment 673 S. SAFETY BELT ; lineman failing to use ; serious and willful mis- conduct 558 SAFETY GUAED ; failure to use ; serious and willful misconduct . 549 SAFETY EULES; increased compensation for employer's failure to obey 891, 1196 violating safety statutes and rules; serious and willful mis- conduct 562 SAFETY STATUTE; violation of by fellow' employe ; when acci- dent arises out of employment 695 SALESMAN ; in automobile ; when under Act 246 slipping on floor of hotel ; when accident arises out of employ- ment 675 testing new motorcycle without authority ; when accident arises out of employment 672 traveling; when under Act 260 when under Act 245 SANITATION; making premises sanitary; when accident arises out of employment 672 SAECOMA; when accidental injury 431 SAVING LIFE OF ANOTHEE; when accident arises out of em- ployment 673 SCAELET PEVEE; when accidental injury 431 SCAELET FEVEE CAUSED BY SUEGICAL OPEEATION; when accidental injury 448 SCENIC EAILWAY EMPLOYS SEAECHING FOE LOST HAT OF PASSENGEE; when accident arises out of em- ployment 673 SCHEDULE EATING FOE PEEMANENT PAETIAL DIS- ABILITY 878 SCHOOLS ; when teachers under Act 246 Digitized by Microsoft® iimsx 1269 PAGE SCHOOL TEACHEE SUPERVISING SELECTION OP BASKETBALL TEAM; when accident arises out of em- ployment 673 SCIATICA ; when accidental injury 431 SCOW TEIMMER ON DUMP ; when under Act 253 SEAMEN ; extra-territorial effect of compensation acts 103 SEAMEN AND MECHANICS GETTING- ON AND OFF VES- SELS ; when accident arises, out of employment 491 SEAMEN RETURNING TO WRECKED VESSEL; serious and willful misconduct ' 563 SEASONABLE EMPLOYMENTS ; wages which are the basis of compensation 909 SECONDARY EEPECT OF INJURY; when due to accident 431 SECOND OPERATION REQUIRED BY CONDITION PRO- DUCED BY FIRST ; when accidental injury 433 SECURITY FOR COSTS 1047 SEEKING SHELTER FROM SUDDEN STORM; when accident arises out of employment 674 SEPTICAEMIA ; cases generally; when accidental injury 432 when accidental injury 432 SERIOUS AND WILLFUL MISCONDUCT 528 accidental shooting in being mistaken for robber 536 actress riding spirited horse 536 appeal • l^ assault on foreman ^^' aviator exploding bomb °JJ^ boy on bicycle catching on motor car VoV i aaq burden of proof ^^^' ^"^^ cleaning machinery in motion o^° definition of generally ^^^ deviating from route • • • disobedience of general rules and specific orders 5^^ doing work for own benefit doing work in unusual manner emergency; acting oh ^^^ error of judgment • exhibition of poisonous reptile ^^^ failure to use goggles • failure to use guys in building operation 04o failure to use safety guard • • false representation as to age by mmor in securing work. ._. 550 false statements to physician as to drmkmg habits by injured ^^^ workman g-j following emtovDigitized .by Microsoft® 1270 INDEX SEEIOUS AND WILLFUL MISCONDUCT— Continued. page safety guard ; failure to use 549 going iato wine vat without testing for poisonous gases 551 idle curiosity 553 intoxication 553 jumping on moving car 557 kerosene oil used to build fire 557 laborer riding on top of cars 557 leaving machine in operation 538 liaeman faiUng to use safety belt 558 lineman working on electric light poles when current turned on 558 lineman working without rubber gloves 558 medical treatment; neglect to secure proper medical treatment 559 moving car ; jumping on 557 neglect of suggestion not amounting to an order 559 neglect to secure proper medical treatment 559 obeying directions of superior 560 of employer; double compensation 1193 origin and general application of term 531 picking finger with unsanitary knife 560 picking up live wire 560 " purposely self-inflicted " 561 racing with motorcycle 561 removing flour sacks from middle of pile 561 resisting robbers 561 resting in working hours 561 riding in dangerous place on mine bucket 561 safety belt ; lineman failing to use 558 seaman returning to wrecked vessel 563 " taking a chance " 563 unloading car when contents frozen 563 violating safety statutes and rules 563 violating speed law in automobile or motorcycle 563 willful negligence 563 without scope of employment 564 SEEVICE OF SUMMONS [ 1003 SHAEE "WOEKEES; when under Act 347 SHEEIPP ; when under Act 252 SHIPS ; when employes of under Act 353 SHOOTING SQUIEEELS AS PESTS; when accident arises out of employment 674 SHOEEE OP UNDEEPINNING COMPANY ; when under' Act! 353 SHOVELING SNOW PEOM EOOP; when accident arises out of employment 674 Digitized by Microsoft® INDEX 1271 PAGE SISTEE-IN-LAW; when dependent 793 SKIN AFFECTIONS FROM ACIDS AND OTHER IRRI- TANTS ; when accidental injury 436 SKIN IRRITANT WITHOUT TRAUMATISM; when accident arises out of employment 675 SLIPPING ON FLOOR OF HOTEL; when accident arises out of employment 675 SLIPPING ON ICE IN STREET; when accident arises out of employment 675 SLIPPING ON ORANGE OR BANANA SKIN; when accident arises out of employment 676 SNAKE ; bite of ; when accident arises out of 611 SNEEZE OF HORSE; when accident arises out of employment. . 654 SNOW SLIDE; when accident arises out of employment 676 SODA DISPENSER AND WORKMAN IN THE MANUFAC- TURE OF SODA; when under Act 253 SOLDIER; when under Act 253 SPECIFIC RULINGS AS TO WHEN AN INJURY ARISES OUT OP THE EMPLOYMENT 602 SPEED LAW; violating speed law in automobile or motorcycle; serious and willful misconduct 563 SPRAINS AND STRAINS GENERALLY; when accidental in- jury 438 STABLEMAN; when under Act 253 STALE CLAIMS ; not favored 1008 STANDING IN LINE TO GET PAY CHECK; when accident arises out of employment 501 STATE ; employes of ; when under Act 253 STATE INSTITUTION ; compensation payments part of current expenses 897 STATB INSURANCE; employer's appeal from award against State fund 1096 STATB MANAGED INSURANCE FUND 70 basis of premium 79 collecting premiums from delinquents 80 importance of the subject 70 liability of employer for premium on contract work begun before Act takes effect 81 meaning of the term " State Insurance " in America 70 premiums and the rates thereof 76 some of the merits and demerits of State managed funds as compared with stock and mutual companies 71 STAY; execution against principal until return against contractor. 1064 pending appeal 1087 STENOGRAPHIC ^^^^ <^^TE^K01^Y 1048 1272 IKTDEX PAGE STBP-BEOTHERS; when dependent 779 STBP-CHILDEEN"; when dependent 784 STBP-MOTHEE; when dependent 793 STEPPING ON NAIL IN STEEET; when accident arises out of employment 676 STEP-SISTEE3; when dependent 779 STING OP INSECT ; when accident arises out of 610 STIPULATION ; as to facts ; when disregarded 1025 original hearing before board by. 1088 STOCKHOLDBE OF COEPORATION; when under Act 337 STOCK EAISING; when employes engaged in under Act 254 STONE CEUSHEE; when employe engaged on under Act 255 STONE GEINDBE'S PHTHISIS; when accidental injury 372 STONE MASON; when under Act 255 STOEAGB WAEEHOUSE ; buyer for ; when under Act 187 STEAIN; dislocation from; when accident arises out of employ- ment 628 rupture of blood vessel from strain ; when accidental injury . . . 430 STEAINS GBNEEALLY; when accidental injury 438 STEEET ACCIDENTS ; slipping on ice ; when accident arises out of employment 675 slipping on orange or banana skins; when accident arises out of employment 676 stepping on nail; when accident arises out of employment. . . . 676 STEEET EAILEOAD ; when employes of under Act 255 STEIKE BEEAKBES; assaulted; when accident arises out of em- ployment 596 STEUCTUEAL lEON WOBKEES ; when under Act 255 STUDENT OP MANUAL TEAINING SCHOOL EMPLOYED ON HOLIDAY; when under Act 255 ST. VITUS DANCE ; when accidental injury 430 when accident arises out of employment 672 SUBEOGATION 1186 British Act 1186 California 1187 Connecticut 1188 insurance carrier's right to furnish medical attention 737 Iowa 1188 Massachusetts 1188 Michigan 1189 Minnesota 1189 New Jersey 1189 New York 1190 Pennsylvania 1191 Digitized by Microsoft® INDEX 12Y3 SUBEOGATION— Contimied. page right of insurance carrier to furnish medical attention 1176 right of insurance carrier to recover against third person 1176 Washington jl9]^ when allowed generally 1]^86 Wisconsin jj^gi " SUBSCEIBEE"; definition of term /............ 175 SUBSEQUENTLY AEISING HAZAEDOUS EMPLOYMENT; when brought under Act 256 SUBSTITUTES ; when relation of master and servant created 161 SUBSTITUTION OP INSUEANCE CAEEIEE FOE EM- PLOYEE 993 SUICIDE ; due to mental condition caused by accident ; when ac- cidental injury 443 from insanity caused by injury; when accident arises out of employment 676 presumption against 677, 1031 SUMMONS ; service of 1002 SUNDAYS, HOLIDAYS AND SHUTDOWNS OCCUEEING IN PEEIOD FOE WHICH COMPENSATION IS DUE 896 SUNSTEOKE ; when accidental injury 443 when accident arises out of employment 677 SUPBENUMEEAEY IN THEATEICAL PEODUCTION; when casual employe 195 SUEGICAL OPEEATION; refusal to submit to; effect on right to disability benefits 834 SUEGICAL SCAELET PEVEE; when accidental injury 448 SUSPENSOEY AWAED 1052 modification 1125 permanent partial disability 854 SYMPATHETIC AFFECTION OP ONE EYE CAUSED BY INJUEY TO OTHEE; when accidental injury 448 T " TAKING A CHANCE "; serious and wilKul misconduct 562 TAXICAB DEIVEES ; when under Act 256 TAXI CAB STAETEE; descending steps of hotel; when accident arises out of employment 490 TEACHEES; when under Act 246 TEAMSTEE; injured in stable; when accident arises out of em- ployment • °'° neglecting team so horses run away ; extent accident arises 679 owner driving i^f)fm^?^W ^SIMM °^ compensation Act. 164 1274 INDEX TEAMSTEE— Contimied. page suffers infection to eye while disinfecting stable; when acci- dent arises out of employment 678 when compensation acts apply to 163 when contractor and not employe 155 when under Act 357 TELEGEAPH COMPANIES; when employes of under Act. . . . 258 TELEPHONE LINEMEN ; when under Act 359 TEMPOEAEILY DEPAETING EEOM SPHEEE OP EM- PLOYMENT; when accident arises out of employment. 679 TEMPOEAEY PAETIAL DISABILITY ; backache 846 callous from broken bone ■ . . ■ 847 carpenter's foreman unable to use tools 845 clumsiness due to injury as ground of incapacity 845 convalescence period 846 definition 843 disability by disease accelerated by accident; basis of compen- sation 844 earnings after injury as basis for partial disability 848 earning smaller sum in other employment 848 failure to return to work when able to do so 845 inability to obtain employment in district where workman lives 844 loss of wages only basis of compensation 847 offer of employment by employer 847 offer of light work 847 pain and inconvenience from injury after returning to work. . 845 recurrent attacks of industrial disease 844 wages and compensation after accident need not equal wages before injury 847 TEMPOEAEY TOTAL DISABILITY; age of workman as affect- ing amount of award 852 consecutive awards for permanent partial and temporary total disability 878 disability arising more than six months after accident 850 failure to exercise proper care iu use of injured limb 851 heart weakness from injury 851 inability to secure work by reason of loss of fingers 851 inability to walk to and from work 850 loss of eye 850 question of fact 852 relapse caused by working 850 second surgical operation to relieve condition produced by first one 851 submitting to operation for hernia 851 Digitized by Microsoft® INDEX 1275 TEMPORARY TOTAL DISABILITY— Continued. page test of disability is inability to earn money 849 total disability for indefinite term 850 unsuccessful efforts to obtain employment 849 ■waiting for opportunity to' have operation performed at hos- pital 849 when award for partial disability improper 853 TERMINATING COMPENSATION PAYMENTS; modifica- tion of award 1120 TESTING NEW MOTORCYCLE WITHOUT AUTHORITY; when accident arises out of employment 672 TESTING RACING MOTORCYCLE; when accident arises out of employment 686 TETANUS ; when accidental injury 448 when accident arises out of employment 687 THEATRICAL EMPLOYES ; supernumerary in theatrical pro- duction when casual employe 195 when under Act ; 359 THRESHING MACHINE OPERATOR ; when under Act 260 THUMB INJURIES ; specific iademnities for 865 " TIPS ;" when considered as part of wages, on which compensa- tion is based 918 TOE INJURIES ; specific indemnities for 870 TO WHOM ACTS APPLY 118 action for damages against third person causing injuries 181 agreements between employer and employe to waive Compen- sation Act 175 alien non-residents 183 allowance to employe for automobile and assistant employe and not contractor ; 138 apartment house 182 apprentices 1°* artificial flower manufacturer 183 associated workmen ; when contractors and not employes 148 automobile driver •, 184 baker • ^^^ bill collector ; intermittently employed ; employe and not con- tractor 138 blacksmith 185 boarding mistress of construction crew 185 boarding stable 186 book agents or canvassers 186 bottler • 186 bowling alley boy receiving percentage of amount paid 139 boy receiving small gratuities 186 Digitized by Microsoft® 1276 INDEX TO WHOM ACTS APPLY— Continued. page bricklayer going from one stagiag to another 133 building contracts ; relation of parties 148 building residence 186 burden of proof as to whetlier employe is in excepted class. . . . 1044 butchers 187 buyer for storage warehouse 187 carpenter in department store sharpening chisel on a grind- stone 133 carpenter making alterations in macaroni factory 133 carpenter making repairs in department store 188 carpenter repairing boat belonging to merchants 131 casual employes 188 chairman on exhibition grounds 139 charitable institutions 301 chauffeur 184 churches 203 classification of statutes 169 commission agent 139, 150, 302 commission merchants 303 contractors and subcontractors; instances in which it has been held that workmen were employes and not contractors. . . 136 contractor is also employe when performing extra services. . . . 139 contracts of employment; existing at the time of passage of Compensation Act 175 convict .' 303 counties 204 dairies 204 death occurring after statute goes into effect by reason of in- jury happening before statute effective 176 delivery helper in department store 204 delivery wagon driver delivering on foot 304 department store 205 department store ; carpenter making repairs in 188 director of bank : . . . . 205 distinction between accidental injuries and occupational dis- eases 7 dividing men into groups or gangs 140 domestic servants 205 driver of brewery wagon 207 driver of team owned by another and hired to a third person. . 165 drygoods and clothing merchant 207 dual business enterprises conducted by one employer, how far covered by Act 208 dual employers ; which ones liable for compensation 308 Digitized by Microsoft® INDEX l2Y7 TO WHOM ACTS APPLY— Continued. p^oe elevator operator „.. „ emergency employe ". ' ^ on " employe " ; meaning of term 173 employe of contractor not of principal '.. 140 150 employe supplying material at a profit .V. ' 140 employer also workman; relation with other worlnnen! ..... 130 employes who are subnormal physically 9 erection of ranch cottage, when employes under Act! "!!!!.'! " 210 estoppel to deny relation 23q express agent ojj factory using power ; when employes of under Act...'...'.'.'..'. 211 family;, how far members of employer's family are covered. . . 211 farm laborers ; when under Act 212 firemen g-^g firewood manufacturer 227 fraud in securing employment 130 furniture manufacturer 327 gas company 217 gasolene merchant 218 general utility man, in occupation classified as hazardous 218 glass manufacturer 218 handy man working for a real estate corporation 218 haypress ; employes operating 218 hod elevator employes 150 hoppieker and member of family 132 horticultural laborer 219 hotel manager 219 how relation of master and servant created; agency to employ. 123 how relation, of master and servant created ; assistants 124 how relation of master and servant created; caddy for golf club 125 how relation of master and servant created, captain of char- tered vessel 125 how relation of master and servant created; changing place of work 125 how relation of master and servant created; clerk of building construction 125 how relation of master and servant created; colorable transfer of business by employer 126 how relation of master and servant created; commission salesmen 136' how relatibn of master and servant created ; contract assigned as security for financial advances to employer 126 Digitized by Microsoft® 1278 INDEX TO WHOM ACTS APPLY— Continued. page how relation of master and servant created; creditor taking over management of firm financially embarrassed 136 how relation of master and servant created; defense that rela- tion of master and servant exists in action by passenger against common carrier 127 how relation of master and servant created; disobedience of specific orders does not discontinue relation 137 how relation of master and servant created ; dual employers . . . 137 how relation of master and servant created; emergency em- ploye 130 how relation of master and servant or employer and employe is created generally 131 ice harvesting 319 ice manufacturer 330 incidental employment 131 independent contractors and subcontractors ; general tests as to relation of contractors and subcontractors 133 independent contractors; instances in which it has been held that workmen were contractors and not employes 148 injuries occurring prior to passage of Act 176 iron manufacturer 323 installing machinery under independent contract 140 installing water tank 330 interstate commerce; employes on railroads not covered by State acts 230 inventor receiving advance when perfecting invention 141 janitor ; 233 jurors 224 labor union ; employe of when under Act 234 labor union furnishing employes 141 lamp manufacturer 224, 263 landlord and tenant ; when contractors and not employes .... 156 leather manufacturer 224 lecturer 234 lessor and lessee 234 limiting application of acts to so-called hazardous employ- ments 8 loaned employe 157 loft building 235 longshoreman 235 longshoreman ; not covered by local compensation acts 326 lump sum as wages based on estimated time to do work 141 machinery ; engaged in connection with 225 machinery manufacturer 226 Digitized by Microsoft® INDEX 1279 TO WHOM ACTS APPLY— Continued. page mail contractor 336 man of all work 326 maritime employes not covered by local oornpensation acts 386 marshal 330 men and appliances hired at stipulated sura per hour for entire work 151 metal goods manufacturer 330 metal toy manufacturer 330 mill employe 331 miners 331 mining operations 141 mining operations; when workmen contractors and not em- ployes 152 model for cloak manufacturer 333 moving picture actor 333 moving picture actor furnishing airplane 143 municipal corporation ; counties 304 mimieipal employes 333 National Guardsmen 236 non-residents 336 number of employes as affecting application of Act 176 nurse 337 officers and stockholders of corporation 337 outworkers 339 partners 339 partnership arrangement; when one party retains the status of employe 160 partnership contracts 153 patent experimenter 241 pecuniary gain ; workman employed for 180, 341 physician 34J physician attending to compensation cases 160 piano manufacturer 341 picture hanger . . . . , 341 piece workers I'l^S, 342 piece worker; when contractor and not employe 153 pile driver ^42 pilots ; when contractors and not employes 155 pipe manufacturer 363 plumber doing repair work 146 policeman *4* porter, elevator and handy man in drug manufactory 131 porter in office buUding 343 presumption th&^t^6!^^y:Mia:EA^(^t 180 1280 INDEX TO WHOM ACTS APPLY— Continued. page principal assisting contractor 155 process server for railroad 344 profit-sharing arrangement 146 public officer 244 publishing company 244 quarryman assisting farmer 133 quitting work; intent to quit as discontinuing relation of master and servant 161 ragpicker 244 railroads ; when employes of under Act 244 receiver as employer 161 renovating building 245 salesman 245 salesman going to factory 133 salesman in automobile 346 salesman traveling 360 schools 246 scow trimmer, on dump ^ 353 share workers 247 sheriff 352 ships 352 shorer of underpinning company , 252 Boda dispenser and workman in the manufacture of soda 253 soldier , 253 specific instances showing the extent of the coverage under compensation acts 182 stableman 253 State ; employes of ; when under Act 353 stock raising 254 stone crusher 255 stone mason ; when under Act 255 storage warehouse ; buyer for 187 street railroad 255 structural iron workers 255 student of manual training school employed on holiday 255 subcontracts as subterfuge to avoid liability 147 " subscriber " I75 subsequently arising hazardous employment 256 substitutes I6I taking effect of Act postponed by referendum 182 taxicab drivers 256 teachers 246 teamsters 163, 256 teamsters ; owner driving his own team 164 Digitized by Microsoft® IWDEX 1281 TO WHOM ACTS APPLY— Continued. page teamsters ; when contractor and not employe 155 telegraph companies 258 telephone linemen 259 theatrical employes 259 threshing machine operator 260 traveling salesmen 260 trimmer of scow on dump 253 truck driver assisting in repairing dynamo 133 tugs ; workman on are employes and not contractors 147 ultra vires; membership corporation engaged in unauthorized business 261 umbrella manufacturer 261 underwear manufacturer 261 undisclosed contract 147 undisclosed principal 147 upholstery worker 261 usual course of the trade, business or profession of the em- ployer ' 169 vaudeville actress 147 vendor and purchaser 168 vessels under charter ; who are employers of seamen 148 volunteer • 168 wages of employe as determining application of Act 179 warehouseman 262 watchman 263 watchman ; employed by several employers to watch different . premises ; liability of each employer 137 wholesale grocer 263 wholesale hardware dealer 363 window washer 148 wood lamp manufacturer 863 wood pipe manufacturer 363 wood sawyer volunteering to stop motor 133 " workman ; " definition of term 173 work outside of regular employment 155 TOXIC AMBLYOPIA; when accident arises out of employment. . 687 TEACHOMA ; when accidental injury 449 TEAIN BAGGAGE SOLICITOE IKJUEED ON WAY TO EAILEOAD STATION" ; when accident arises out of em- ployment '^89 TEAVELING BETWEEN DIPEEEENT PLACES OP WOBK; when accident arises out of employment : 491 TEAVELING SALESMEN; when under Act 360 TEIMMEE ON SCOW ON DUMP; when under Act 253 81 Digitized by Microsoft® 1282 INDEX PAGE TUBEECTJLOSIS ; when'kcciaental injury 449 when accident arises out of employment 687 TUGS ; when workmen on are employes and not contractors 147 TUMOE; when accidental injury 451 TUBNING COENEE TOO SHOET; when accident arises out of employment 688 TWO DIFFEEENT ACCIDENTS ; disability benefits 841 TYPHOID FEVEE; when accidental injury 451 when accident arises out of employment 688 U TJLCEE; gastric; aggravating pre-existing condition; when acci- , dental injury .■ • • • 378 of stomach ; when accidental injury 453 when accidental injury 453 ULTEA VIEES ; membership corporation engaged in unauthorized business ; when employes under act. 361 UMBEELLA MANUFACTUEEE ; when employes of under act. . 261 UNDEEWEAE MANUFACTUEEE; when employes of under act 261 UNDISCLOSED CONTBACT ; when workmen are employes and not contractors 147 UNDISCLOSED PEINCIPAL,; independent' contractors; when workmen employes and not contractors 147 UNINTENTIONAL INJUEY BY FELLOW EMPLOYE ; when accident arises out of employment 688 UNLOADING CAE WHEN CONTENTS FEOZEN; serious and willful misconduct 562 UNNECESSAEILY GOING TO PLACE OF DANGEE; when accident arises out of employment 689 UPHOLSTEEY WOEKEE ; when under act 261 USING ELEVATOE CONTEAEY TO INSTEUCTIONS ; when accident arises out of employment 694 USING MACHINBEY CONTEAEY TO DIEECTIONS; when accident arises out of employment 694 USING MACHINEBY OTHEE THAN THAT EMPLOYED TO USE; when accident arises out of employment 694 "USUAL COUESE OF THE TEADE, BUSINESS OE PEO- FESSION OF THE EMPLOYEE ; " meaning of term . . 169 V TACATION PEEIOD ; compensation during 843 VACCINATION; by order of superior; when accidental injuries. 453 when accident arises out of employjnent 695 Digitized by Microsoft® INDEX 1283 PAGE VAEICOSE VEINS ; when accidental injury 454 VAUDEVILLE ACTEESS ; is employe and not contractor 147 VENDOE AND PUECHASEE; application of compensation acts to 168 VENUE ; change of 1006 VEETIGO ; falls from fits, vertigo or other like causes, when acci- dental injury 370 when accidental injury 455 VESSELS ; seamen and mechanics getting on and off vessels ; when accident arises out of employment. 491 under charter ; who are employers of seamen 148 VIOLATING SAFETY STATUTES AND EULBSj serious and wlUful misconduct 563 VIOLATING SPEED LAW IN AUTOMOBILE OE MOTOE CYCLE ; serious and willful misconduct 563 VIOLATION OF SAFETY STATUTE BY FELLOW EM- PLOYE; when accident arises out of employment 695 VOLUNTEEE ; application of compensation acts to 168 when accident arises out of employment 695 W WAGES WHICH AEE THE BASIS OF COMPENSATION. . . 898 absence from work due to illness 910 absence of agreement as to rate of wages 903 amount of board, lodging and other perquisites 916 anticipated increase of wages 920 bonuses ' 919 boy employed on farm during summer school vacation 899 casual employes • 900 change of grade of workman within previous year 903 commissions .' ' ' ' compensation for previous injury not included in determining basis of compensation for subsequent injury causing death 915 deducting amount paid to assistant 931 deducting disbursements for powder, etc 921 deducting holidays 912 deducting poor-law relief received by dependent ;^ 914 deducting upkeep of motorcycle or automobile used by employe 920 deduction because by business depression 916 dual employments and employers 934 employe who T^^ ffi0§MfMSM^^ ^''' ^^^ 1284 INDMY WAGES WHICH AEE BASIS OP COMPENSATION— Con. page employe working by the day on one job and doing piece work on another job 899 employe working seven days a week 903 employment of man and horse; division of wages 916 evidence 927 father dependent of son; allowance for son's maintenance. . . . 915 general increase of wages in district as reason for increasing compensation 918 general rules as to wage basis 898 ■ intermittent employment 905 longshoreman 910 National Guardsmen 913 of employe as determining application of act 179 overtime and double pay on holidays 901 pension 916 piece workers 913 •probable increase of wages of minors 913 seamen under Shipping Act ; wages paid seamen talcen into ac- count in awarding compensation 914 seasonable employments 909 " tips " or gratuities 918 average of other workmen doing similar work 898 when average wages based on amount actually earned 933 when the wages received at the time of the injury is the basis of compensation 903 WAGON WASHER CRANKING AUTOMOBILE; when acci- dent arise out of employment 697 WAITING PERIOD 700 burden of proof 701 death benefits not to be deducted from 700 definition 700 how computed 701 in specific injury eases no deduction should be made 700 should not be deducted in case of specific injuries 854 WAIVER ; agreement between employer and employe to waive com- pensation act 175 appeal ; waiving right to appeal 1074 limitation ; State institution 1301 WAREHOUSEMAN; when employes of under act 363 WAR RISKS OP NON-COMBATANTS; traveling salesman killed by sinking of Lusitania 106 when accident arises out of employment 698 WATCHMAN ACCIDENTALLY SHOT WHILE CLEANING PISTOL; when accident arises out of employment. , , , . , 699 Digitized by Microsoft® INDEX 1285 PAGE WATCHMEN ; when accident arises out of employment 698 when relation of master and servant created; employed by several persons to watch different premises , . 127 when under act 263 WATEE TANK ; when employes instaling are under act 220 WHOLESALE GEOCER; when employes of under act 263 WHOLESALE HAEDWAEE DEALEE; when employes of under act 263 WILLETJL MISCONDUCT ; reviewing question on appeal 1077 see Serious and Willful Misconduct. WILLFUL NEGLIGENCE ; burden of proof 24 serious and willful misconduct 663 WINDOW CLEANEE PALLING FEOM LEDGE; when acci- dent arises out of employment 699 WINDOW WASHEE ; when employe and not contractor 148 WINE VAT ; going in without testing for poisonous gases ; serious and willful misconduct 551 WITHOUT SCOPE OF EMPLOYMENT; serious and wiHful misconduct ,. 564 WOOD ALCOHOL POISONING; when accidental injury 456 WOOD LAMP MANUPACTUEEE ; when employes of under act . 263 WOOD PIPE MANUFACTUEEE ; when employes of under act. . 263 " WOEKMAN; " definition of term 173 WOEKMAN INJUEED ON EMPLOYEE'S PEEMISES BE- FOEE WOEK BEGINS, AFTEE WOEK CEASES, OE DUEING CESSATION OP WOEK; when accident arises out of employment 511 WOEKMEN WHOSE DUTIES TAKE THEM AWAY FEOM EMPLOYEE'S PEEMISES; when accident arises out of employment 502 X X-EAY SEEVICB ; when allowed as part of medical attention 723 Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® KF 3615 B79 1917 Author Bradbury, Harry Title orkmen's Compensation Vol. Copy Digitized by Microsoft® ^iliiiiil Digitized by Microsoft® iiiiiiiiii