^m Cornell University Library HD7816.U6A3 1912e Opinions of the Solicitor for tfie Depart lillil ibllllili illl 3 1924 002 403 644 CORNELL UNIVERSITY LIBRARY NEW YORK STATE SCHOOL OF INDUSTRIAL AND LABOR RELATIONS THE GIFT OF Brotherhood of Locomotive Firemen and Enginemen Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924002403644 n'^-xj OPINIONS OF THE SOLICITOR FOR THE DEPARTMENT OF COMMERCE AND LABOR DEALING WITH WORKMEN'S COMPENSATION UNDER THE ACT OF CONGRESS GRANTING TO CERTAIN EMPLOYEES OF THE UNITED STATES THE RIGHT TO RECEIVE FROM IT COMPENSATION FOR INJURIES SUSTAINED IN THE COURSE OF THEIR EMPLOYMENT, APPROVED MAY 30, 1908 From August, 1908, to August, 1912 WASHINGTON GOVERNMENT PRINTING OFFICE 1912 43 OONTEI^TS, Page. Lettee of authority 5 liETTEE OF TEANSMITTAL I 7 iNTEODUCTOEY 9 Text of legislation : 13 Summary digest of opinions 17 Opinions 31 Regulations peesceibed by the Seceetaey 637 Index of opinions 643 S PROPERTY OF LIBRARY NEW YORK STATE SCHOOL INDUSTRIAL AND LABOR RELATIONS CORNELL UNIVERSITY 40012 LETTER OF AUTHORITY. Department of Commerce and Labor, Office of the Secretary, Washington, July 19, 1912. • Sir : You are requested to compile for publication by this Depart- ment the opinions of the Solicitor dealing with the Government Workmen's Compensation Act, entitled "An act granting to certain employees of the United States the right to receive from it compen- sation for injuries received in the course of their employment," approved May 30, 1908. The administration of this law has consti- tuted one of the more important functions of the Department during the past four years ; its importance being due in part to the intrinsic merit and highly beneficial character of the law itself and in part to the fact that the legislation is of a type involving a wide departure from long established rules of legal liability, and giving rise accord- ingly to novel questions of right and obligation. The general interest in the subject of workmen's compensation is marked, being evidenced not only by. discussion in the public press and elsewhere, but by inquiries made of this Department. In passing upon several thou- sand claims, the questions arising for determination on legal grounds have naturally been numerous and varied; and it may at least be assumed that the rulings upon these questions, if available, would prove to be not without some positive interest and value to those concerned with the interpretation and application of this and similar laws. The Attorney General, with whom I have conferred on the subject, concurs in these views; and the publication of the opinions in question is accordingly authorized. Eespectfully, Charles Nagel, Secretary. The Solicitor, Department of Commerce and Labor. 5 II r-i j.ct.i LETTER OF TRANSMITTAL. Office of the Solicitor, Department of Commerce and IjAbor, Washington, October 16, 1912. Sir: In accordance with your request of July 19, 1912, I have collected the opinions of the Solicitor for this Department bearing on the construction and application of the act of Congress approved May 30, 1908, granting compensation to artisans and laborers em- ployed by the United States injured in the course of their employ- ment, and now have the honor to submit the same in form for publi- cation. For the sake of completeness I have included in this collec- tion the several opinions the Attorney General and the Comptroller of the Treasury rendered under the act mentioned. The opinions are arranged in groups, each group relating to some statutory clause or phrase the interpretation or application of which has been called for. A headnote, stating concisely the conclusion reached, is provided for each opinion. The bringing together of these headnotes under the statutory words or clauses referred to forms a summary digest of the opinions published. This digest, it is thought, which precedes the text of. the opinions, will not only supply the need of a subject index, but will furnish a reacfy means of ascertaining the scope and purpose of the law, the nature of the questions raised, and the trend and character of the opinions held. As between a liberal construction and a strict construction of the statute, the former rule has naturally prevailed throughout these opinions. This was in accordance with your settled policy of ad- ministration in this and similar matters, repeatedly expressed, and was, moreover, incontestably the true rule to follow on legal principle in dealing with an evssentially remedial statute. But while the con- struction has been liberal, rarely if ever, it is thought, has it been . strained, or such as to involve a disregard of fixed limitations. A considerable number of opinions dealing wholly with simple questions of fact or mere conflicts of testimony have been omitted, because of no intrinsic value, involving no principle, and impossible of classification. Such opinions of this type, however, as appear to contain matter of interest are included under the head " A claim for compensation is established." 8 LETTER OF TRANSMITTAL. The opinions of the law officer of a department are, of course, purely advisory. The head of the department is not bound to follow them. Moreover, under this act the sole judge as to when a claim for compensation is establisTied is the Secretary (or the As- sistant Secretary) of Commerce and Labor, whose decision is final. These opinions, therefore, are official Department decisions by virtue of their having been severally approved by the head of the Depart- ment. Under these circumstances, I may not forbear a mention of my personal gratification that such approval should have been so regularly accorded, and my appreciation of the benefits derived from the discussion of important questions with yourself and the Assistant Secretary, the Hon. Benjamin Stickney Cable. Respectfully, Charles Eael, Solicitor. To Hon. Charles Nagel, Secretary of Commerce and Labor, INTRODUCTORY. Injuries to workmen in the course of their employment may be due to negligence or to accident. Where negligence is the cause, the fault may be that of the workman or his employer, of a fellow workman, or even a stranger. Where accident is the cause, no one is at fault. In all cases the suffering and the loss fall on the injured person and his dependents, except in so far as the law permits the loss to be compensated. The rules of the common law, which were formulated at a time when industrial operations were simple and conducted in small establishments where responsibility could easily be fixed, per- mitted recovery only where the workman or his representatives could establish negligence on the part of the employer, and denied relief if his own negligence in any way contributed to the injury or if the injury was due to the negligence of a fellow servant or a stran- ger', and also compelled the worker to assume the risks incident to a dangerous employment. For injuries due to accidents alone there could be no recovery, since a legal wrong could be imputed to no one. The altered situation, growing out of the immense changes made in industrial conditions, brought a realization of the great injustice worked by established rules of law. Irrespective of the negligence of the employer or a fellow servant or a stranger, and irrespective of the risks incident to dangerous occupations, it was recognized as grossly unjust that the victim alone should be allowed to bear the entire consequences and all the burden of an industrial accident or injury. It was seen that the employment itself, if not the cause of the injury, furnished at least the occasion or the condi- tion without which it could not have occurred. The principle was then formulated and accepted that the financial, loss occasioned by injuries received in the course of employment was a proper charge against the industry itself, at least where the injury was not plainly due to the negligence or misconduct of the person injured. A means was thus provided whereby the burden in such cases could be shifted in a measure from a single victim and distributed among many persons. This principle was adopted and applied by the Federal Govern- ment in the act of May 30, 1908, " granting to certain employees of the United States the right to receive from it compensation for in- 9 10 INTEODUCTOEY. juries sustained in the course of their employment." Although this act is of limited application and provides but a limited measure of relief, its benefits have been many and real. It applies only to in- juries received by artisans or laborers employed in the manufacturing establishments, arsenals, or navy yards of the United States; or in river and harbor or fortification work, or in hazardous employment in the Reclamation Service and under the Isthmian Canal Commis- sion, under the Bureau of Mines and in the Forestry and Lighthouse Services. But any such workman, injured in the course of his em- ployment, is entitled to receive for one year thereafter, unless sooner able to resume work, the same pay as if he continued to be employed, except where the injury was due to his own negligence or misconduct. If the injury should result in death during the year, the compensa- tion allowed is payable to the widow or children or dependent parent. The act is administered by the Secretary of Commerce and Labor, who is authorized to determine all questions of negligence or mis- conduct, who is made the sole judge as to when a elaim is established, and whose decision is final. The United States is forbidden by the act to exempt itself from liability by any contract, agreement, rule, or regulation. This act marks a distinct step in advance. It not only substitutes the enlightened modern view for the obsolete doctrines of the com- mon law respecting responsibility for certain jvrongs for which there had been before no remedy, but it waives the right of the Govern- ment to exemption from liability for tort and dispenses with the necessity of an appeal to Congress in individual cases. It is a highly beneficial statute, conferring a benefit in the nature of an absolute gift or grant. It permits, under the authority given, to the Secretary of Commerce and Labor to prescribe rules and regulations for carry- ing it into effect, of the establishment of a simple and direct mode of procedure, whereby technicalities and delays are avoided and the relief provided can be speedily given. The prompt payment of com- pensation at a time when the breadwinner is stricken and money is most needed without forcing the claimant to pursue an elaborate, expensive, and dilatory process of proof, is one of the striking bene- fits of the act. B6ing in its nature a remedial statute, it is rightly susceptible of a liberal interpretation, as contrasted with a strict interpretation, in order to bring home the benefits intended. Such has been the interpretation regularly applied by the Secretary of Commerce and Labor, without, of course, disregarding any of the limitations of the statute or extending it beyond its terms. This attitude of the Department of Commerce and Labor in its adminis- tration of the act, whereby matters of procedure are simplified, claims are promptly adjudicated, and the act is construed fairly and even generously, isweU known and duly appreciated by the classes INTEODUCTOET. 11 benefited, and is recognized and cordially commended by workmen's organizations. An idea of the benefits derived under the compensation act may be obtained from a consideration of a few figures. The act has been in operation since August 1, 1908. Between that date and December 1, 1911, compensation was paid in 5,564 cases of injury, in 165 of which the injury resulted in death. On account of these fatal injuries $112,879.02 has been paid to surviving dependents. On account of the nonfatal injuries $704,814.60 has been paid to the injured per- sons themselves. (The figures given do not refer to claims arising on the Isthmian Canal since Mar. 3, 1911, when the Isthmian Canal Commission was authorized to handle such claims directly.) These payments have beeil made, not out of any special appropriation, but from the ordinary current appropriations for salaries. The salary has simply been paid as if the injured man continued at his work, until his incapacity ceased or until the year had run. Owing to the limited scope of the act there have been naturally many more acci- dents reported than claims filed, and there have been also a number of claims filed which could not be allowed either because they were not within the act or were not properly established. Thus, in the first year, the number of injuries reported was 4,862 and the number of fatalities 233, while the number of claims submitted was but 1,805, of which 1,689 were allowed. During the second year 6,984 accidents were reported and 226 fatalities; 2,624 claims were submitted and 2,499 allowed. These latter figures are chiefly important as indi- cating the need of extending the benefits of the act by supplementary legislation. Such legislation has been recommended by the Secre- tary of Commerce and Labor, and measures designed to enlarge the scope of the act are now pending in Congress. TEXT OF LEGISLATION. AN ACT Granting to certain employees of tlie United States the right to receive from it compensalion for injuries sustained in the course of their employment. [35 Stat., 556.] Be it enacted ty the Se'nate and Hou^e of Representatives of the United States of America in Congress assembled, That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manufac- turing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortification work or in hazardous employ- ment on construction work in the reclamation of arid lands or the management and control of the samei, or in hazardous employment under the Isthmian Cajial Commission, is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, unless such employee, in the opinion of the Secretaiy of Commerce and Labor, be sooner able to resume work, the same pay as if he continued to be employed, such payment to be made under such regulations as the Secretary of Commerce and Labor may prescribe : Provided, That no compensation shall be paid under this act where the injury is due to the negligence or misconduct of the employee injured, nor unless said injury shall continue for more than fifteen days. All questions of negligence or misconduct shall be de- termined by the Secretary of Commerce and Labor. Sec. 2. That if any artisan or lahprsr so employed shall die during the said year by reason of such injury received in the course of such employment, leaving a widow, or a child or children under sixteen years of age, or a dependent parent, such widow and child or children and dependent parent shall be entitled to receive, in such portions and under such regulations as the Secretary of Commerce and Labor may prescribe, the same amount, for the remainder of the said year, that said artisan or laborer would be entitled to receive as pay if such em- ployee were alive and continued to be employed: Provided, That if the widow shall die at any time during the said year her portion of said amount shall be added to the amount to be paid to the remaining beneficiaries under the provisions of this section, if there be any. Sec. 3. That whenever an accident occurs to any employee embraced within the terms of the first section of this act, and which results in 13 14 TEXT OF LEGISLATION. death or a probable incapacity for work, it shall be the duty of the official superior of such employee to at once, repprt such accident and the injury resulting therefrom to the head of his bureau or independ- ent office, and his report shall be immediately communicated through regular official channels to the Secretary of Commerce and Labor. Such report shall state, first, the time, cause, and nature of the acci- dent and injury and the probable duration of the injury resulting therefrom ; second, whether the accident arose out of or in the course of the injured person's employment ; third, whether the accident was due to negligence or misconduct on the part of the employee injured; fourth, any other matters required by such rules and regulations as the Secretary of Commerce and Labor may prescribe. The head of each department or independent office shall have power, however, to charge a special official with the duty of making such reports. Sec. 4. That in the case of any accident which shall result in death, the persons entitled to compensation under this act or their legal rep- resentatives shall, within ninety days after such death, file with the Secretary of Commerce and Labor an affidavit setting forth their relationship to the deceased and the ground of their claim for com- pensation under the provisions of this act. This shall be accom- panied by the certificate of the attending physician setting forth the fact and cause of death, or the nonproduction of the certificate shall be satisfactorily accounted for. In the case of incapacity for work lasting more than fifteen days, the injured party desiring to take the benefit of this act shall, within a reasonable period after the expira- tion of such time, file with his official superior, to be forwarded through regular official channels to the Secretary of Commerce and Labor, an affidavit setting forth the grounds of his claim for compen- sation, to be accompanied by a certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity, or the nonproduction of the certificate shall be satisfac- torily accounted for. If the Secretary of Commerce and Labor shall find from the report and affidavit or other evidence produced by the claimant or his or her legal representatives, or from such additional investigation as the Secretary of Commerce and Labor may direct, that a claim for compensation is established under this act, the com- pensation to be paid shall be determined as provided under this act and approved for payment by the Secretary of Commerce and Labor. Sec. 5. That the employee shall, whenever and as often as required by the Secretary of Commerce and Labor, at least once in six months, submit to medical examination, to be provided and paid for under the direction of the Secretary, and if such employee refuses to submit to or obstructs such examination his or her right to compensation shall be lost for the period covered by the continuance of such refusal or obstruction. TEXT OF LEGISLATION. 15 Sec. 6. That payments under this act are only to be made to the beneficiaries or their legal representatives other than assignees,' and shall not be subject to the claims of creditors. Sec. 7. That the United States shall not exempt itself from liability under this act by any contract, agreement, rule, or regulation, and any such contract, agreement, rule, or regulation shall be pro tanto void. Sec. 8. That all acts or parts of acts in conflict herewith or pro- viding a different scale of compensation or otherwise regulating its payment are hereby repealed. Approved, May 30, 1908. AN ACT Making appropriations for sundry civil expenses of the Government for ttie fiscal year ending June thirtieth, nineteen hundred and twelve, and for other purposes. ^ [36 Stat, 1363.] Section 5. Hereafter the act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment shall apply to all em- ployees under the Isthmian Canal Commission, when injured in the course of their emploj'ment ; and claims for compensation on account of injury or death resulting from an accident occurring hereafter shall be settled by the chairman of the Isthmian Canal Commission, who shall, as to such claims and under such regulations as he may prescribe, perform all the duties now devolving upon the Secretary of Commerce and Labor: Provided. That when an injury results in death claim for compensation on account thereof shall be filed within one year after such death. Approved, March 4, 1911. AN ACT To amend an Act entitled "An Act granting to certain employees of the UnitBd States the right to receive from it compensation for injuries sus- tained in the course of their employment," approved May thirtieth, nineteen hundred and eight. [37 Stat, 74.] Be it enacted hy the Senate and House of Representatives of the United States of America in Congress assernbled, That the provisions of the Act approved May thirtieth, nineteen hundred and eight, en- titled "An Act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment," shall, in addition to the classes of per- sons therein designated, be held to apply to any artisan, laborer, or other employee engaged in any hazardous work under the Bureau of 16 TEXT OF LEGISLATION. Mines or the Forestry Service of the United States : Provided, That this Act shall not be held to embrace any case arising prior to its passage. Approved, March 11, 1912. AN ACT To authorize additional aids to navigation in tlie Ligtithouse Service, and for other purposes. [37 Stat., 238-239.] And hereafter the benefits of the Act of May thirtieth, nineteen hundred and eight (Thirty-fifth Statutes, page five hundred and fifty-six), entitled "An Act granting to certain employees of the United States the right to receive from it compensation for injuries sustained in the course of their employment," shall be extended to persons employed by the United States in any hazardous employ- ment in the Lighthouse Service. * * * Approved, July 27, 1912. SUMMARY DIGEST OF OPINIONS GROUPED UNDER THE STATU- TORY WORDS OR CLAUSES CONSTRUED OR APPLIED. I. " ON OR AFTER AUGTTST FIRST, NINETEEN HUNDRED AND EIGHT." , Faee. 1. The accident or other cause of Injury as well as the beginning of the resulting Incapacity must have occurred on or after the date fixed — 31 II. " KMPLOTED BT THE UNITED STATES." 1. A plate printer In the Bureau of Engraving and Printing, paid by the piece, is an employee of the United States, and not a mere con- tractor 34 2. A workman employed by a Government contractor is not employed by the Government 34 3. The owner of a power boat, chartered to the Government and oper- ated by the owner in its service, is an independent contractor and not an employee of the United States 36 m. "as an artisan or laborer." 1. An employee designated a messenger but engaged in work of the labor- ing class is a laborer ^ 40 2. A clerk engaged in office work is not an artisan or laborer 42 3. A sailor working on a dredge and assisting in dredge work is a laborer 44 4. An employee appointed as a special laborer-messenger engaged on laborer or messenger work, except when detailed to clerical work, is a laborer _ — 45 5. A policeman or watchman falls within the laboring class, as distin- guished from the leisure, professional, business, official, or clerical classes, and is a laborer 50 6. A draftsman, wEose duties resemble those of a clerk or artist, is not of the laboring class, and not a laborer 54 7. A packer in a navy yard storeroom employed to handle, arrange, and list stock is a laborer 58 8. A foreman or superintendent, who directs the work of others and whose work is mental and administrative or executive, is not a laborer 60 9. A sanitary Inspector, Canal Zone, a laborer ; considered 62 10. A storeroom clerk. Canal Zone, Is an artisan dr laborer 63 11. A concrete inspector engaged in inspecting and directing work of others is not a laborer 63 12. A telegrapher and shipping clerk engaged in work of a clerical nature is not an artisan or laborer 66 13. Artisans or laborers only, among employees of the United States, are covered by the statute 66 63051°— 12 2 17 18 DIGEST OF OPINIONS. Page. 14. A master or pilot of a steamer used In river and harbor work Is not an artisan or laborer 68 15. A rodmfin with a surveying party, also acting as chainman and ax- man, is a laborer 70 16. A survey man, under the circumstances, held a laborer Tl 17. A time inspector, under the circumstances, held a laborer 72 18. An acting inspector, normally a working foreman of laborers, Is a laborer 73 19. A working foreman of laborers is a laborer 75 20. A transit man is not an artisan or laborer ; the term " laborer " de- fined 76 21. A surveyor is not an artisan or laborer 80 22. An employee designated ap inspector, engaged in marking and pass- ing crossties, piling, and lumber, and without any duty of super- vision or superintendence, is a laborer 82 23. An assistant veterinarian, engaged In treating sick animals, giving medicine, and dressing wounds. Is not an artisan or laborer 85 24. A laboratory assistant engaged in making tests of materials in a chemical laboratory is not an artisan or laborer 85 25. A rigger and diver is of the laboring class and Is a laborer 86 26. A dock master, having the care of a dock and the supervision of the dock force, is not an artisan or laborer 87 rV. " MANUTACTtTKINS ESTABLISHMENTS." 1. The Government Printing Office, where chiefly skilled and unskilled laborers are employed and where printing, binding, and bookmaking Is done, is a manufacturing establishment 89 2. Hauling and trucking oats from car to dock by laborer in Army Quartermaster's Department is not work in or in connection with a manufacturing establishment 90 3. A lighthouse dejwt at which a material portion of the work consists in the manufacture and repair of materials, appliances, and vessels, is a manufacturing establishment 90 4. The Bureau of Engraving and Printing, where ink, paper, and other materials are fashioned by workmen Into bank notes. Treasury cer- tificates, etc., and sometimes bound into book form, is a manufac- turing establishment 92 5. The local office of the Weather Bureau at Detroit, though a printing press is there operated, is not a manufacturing establishment 93 6. A lighthouse tender, a vessel attached to a lighthouse depot and used in transporting workmen and supplies and In the placement and upkeep of aids to navigation, is not a manufacturing establishment- 94 7. The driving of piles by an employee of the Bureau of Fisheries at work about a lobster pound is not work done in a manufacturing establishment 95 8. A sawmill at Fort Meade, at which lumber is sawed and dressed and shingles are made, is a manufacturing establishment 96 9. An Army quartermaster's depot, at which clothing and tents are made, is a manufacturing establishment. An employee of such an estab- lishment is entitled tg compensation though not engaged in manu- facturing operations 97 10. A blacksmith shop, at which bolts, drills, and other articles and tools used in irrigation work are made and repaired, Is a manufacturing establishment _ qq DIGEST OF OPINIONS. 19 Paee. 11. A storekeeper-gauger of the Intemal-ReTenue Service Is not employed in a manufacturing establishment 99 12. A naval observatory is not a manufacturing establisliment nor is it an arsenal or a navy yard 100 13. An employee of a manufacturing establishment is entitled to compen- sation though at work elsewhere at the time of injury 101 14. An electric light and power plant of an executive department, at which ice is also made, is a manufacturing establishment 101 15. A laboratory used only for making tests of materials is not a manu- facturing establishment 103 16. The maihbag repair shop of the Post OflSce Department, at which a variety of mail equipment is made, is a manufacturing establish- ment , 103 17. The mechanical plant of the Smithsonian Institution, at which steam power and electric light are generated, and cases, cages, and mu- seum furniture are made, is a manufacturing establishment 104 18. A carpenter and machine shop connected with an Indian industrial school, at which mission furniture is made, is a manufacturing establishment 105 19. An aqueduct and filtration plant, the function of which is to collect, purify, and deliver city water, is not a manufacturing establishment- 105 V. "aksenals." 1. The Military Academy at West Point is not an arsenal 106 2. Carpenter work on an ice house for Fort Kobinson, a mile distant, is not work in an arsenal 107 VI. " NAVY YARDS." 1. A navy-yard employee, though injured while at work on a naval hos- pital outside the yard, is employed in a navy yard , . 108 2. The Naval Academy at Annapolis, in accordance with the organiza- tion and nomenclature of the Navy Department, is a navy yard 108 3. A gardener at a naval training station is an employee of a navy yard- 109 4. A laundress at a naval home, an asylum for disabled Navy officers, seamen, and marines, is not employed in a navy yard 110 5. An employee at a naval station, also designated a coaling depot, is em- ployed in a navy yard 110 6. The naval experiment station at Annapolis is a navy yard 111 VII. " IN THE CONSTEUCTION OF KIVEK AND HAEBOB OE FOBTIFICATION WORK." 1. An artisan repairing cables in the underground electric system at Fort Adams is engaged in the construction of fortification work, which refers to work authorized by the fortification appropriation acts : l;12 2. Carpenter work on an ice house for Fort Robinson, a mile distant, is not done in the construction of fortification work ; the " construc- tion " of such work does not include the erection of an ice plant 112 3. A machinist working on gun carriages at a seacoast fortification, though under the Ordnance' rather than the Engineer Department, is engaged in the construction of fortification work 114 4. A laborer employed under the Army Quartermaster's Department, hauling dirt in grading operations for new building for officers' quarters, is not engaged In the construction of fortification work 116 20 DIGEST OF OPINIONS. Pasre. 5. A military post, called a fort though unfortified, is not a fortification. Work of malnteaance and upkeep of a fort, such as painting, is not work of construction 116 Vin. " HAZARDOUS EMPLOYMENT ON C0NSTET7CTI0N WOEK -IN THE EECLAMATION OE AEID LANDS OB THE MANAGEMENT AND CONTKOL OF THE SAME." 1. A ditch rider required to ride at night and discover and attend to brealis in a canal is engaged in hazardous employment 118 2. A machine attendant at the ice plant of the Koosevelt Dam is en- gaged in hazardous employment 119 8. A cook's helper, working in cooking quarters, is not engaged In a hazardous employment 120 4. Work authorized by act of Mar. 1, 19b7, to construct a reservoir for storing water for irrigating lands on an Indian reservation, is con- struction work In the reclamation of arid lands 120 5. Work in a quarry to obtain rock for damming the Colorado Klver to protect a valley and supply water for irrigation is construction work in the reclamation of arid lands 121 IX. " HAZAEDOUS EMPLOYMENT TJNDEE THE ISTHMIAN CANAL COM- MISSION." 1. A policeman employed in the Isthmian Canal Zone Is engaged In hazardous employment 122 2. A storeroom clerk is not engaged in hazardous employment 123 3. A cook in a hotel kitchen is not engaged in hazardous employment 124 4. A laborer employed in a mess hall under the quartermaster's de- partment, Canal Zone, is not engaged in hazardous employment 124 5. A scythe man In a grass-cutting gang is not engaged in hazardous em- ployment 125 6. A laborer employed on a delivery wagon is not engaged in hazardous employment 126 7. A telephone operator is not engaged in hazardous employment 126 8. A water boy delivering water to grass-cutting gangs at work about various commission properties is noz engaged in hazardous em- ployment 127 9. A hospital orderly in attendance upon persons violently Insane is en- gaged in a hazardous employment 128 id. An ambulance teamster in the Canal Zone is engaged in hazardous employment 129 11. A water boy serving water to men employed in actual construction work of Isthmian Canal is engaged in hazardous employment 130 12. A plumber and tinner working on roofs and stacks Is engaged in hazardous employment 131 13. A time inspector required to attend men occupied in actual construc- tion work of Isthmian Canal is engaged In hazardous employment- 132 14. A machine printer operating a roller press is engaged In hazardous employment : 133 15. A scavenger occupied in collecting garbage and hauling it away in carts is not engaged in hazardous employment I34 16. A laborer with a gang at work clearing ground, using a machete in cutting trees, is engaged in hazardous employment I35 17. A hospital attendant performing the manual service usual about a hospital is not engaged in hazardous employment 136 DIGEST OF OPINIONS. ■ 21 Page. 18. A cemetery laborer, wheeling stone In a barrow, is not engaged in hazardous employment 136 19. A janitor rendering services chiefly of a domestic character Is not en- gaged in hazardous employment 137 X. SERVICES AND EMPLOYMENTS WITHOUT THE ACT. 1. A carpenter working on improvements to the water-supply system at West Point is not entitled to the benefits of the act 138 2. A rural mail carrier is not entitled to the benefits of the act 139 3. An employee engaged in repairing a lighthouse beacon is not entitled to the benefits of the act. [Law since amended.] 139 4. A lineman employed by the Signal Corps of the Army is not entitled to the benefits of the act 140 5. A seaman employed on a lighthouse tender is not entitled to the benefits of the act. [Law since amended.] 141 6. An elevator conductor in a local Federal building is not entitled to the benefits of the act 142 7. An electrician's helper employed in nn executive department at Wash- ington is not entitled to tiie benefits of the act 142 8. A stevedore employed in the Army Transport Service is not entitled to the benefits of the act! 142 9. A laborer employed in a local customhouse is not entitled to the benefits of the act 143 10. A pilot in the service of the Quartermaster's Department of the War Department is not entitled to the benefits of the act 143 11. A painter employed by an Indian agent at an Indian school is not entitled to the benefits of the act 1 144 12. A lighthouse keeper is not entitled to the benefits of the act. [Law since amended.] 144 13. A lalJorer employed in painting at an Army barracks is not entitled to the benefits of the act 145 14. A launch operator in the Quartermaster's Department of the War De- partment is not entitled to the benefits of the act 145 15. A deck hand on a vessel attached to Governors Island, N. Y., Is not entitled to the benefits of the act 146 16. A quartermaster on a lighthouse tender is not entitled to the benefits of the act. [Law since amended.] — : 147 17. A laborer employed at a national park is not entitled to the benefits of the act 147 18. A laborer employed in the construction of a power plant in the con- gressional buildings is not entitled to the benefits of the act 148 19. A powder man employed by the Government Road Commission of Alaska is not entitled to the benefits of the act 148 20. A laborer employed by the United States in the work of raising the " Maine " is not entitled to the benefits of the act 149 21. A seaman on a vessel of the naval auxiliary service is not entitled to the benefits of the act 149 XI. " IS INJTJBED." " WHENEVEE AN ACCIDENT OCCTTBS." 1. An accident arises from something unforeseen, unexpected, or unusual, and is not the natural result of ordinary means, voluntarily em- • ployed, in a not unusual or unexpected way 150 22 DIGEST Off OPINIONS. Page. 2. But an effect which does not ordinarily follow the use of familiar means, and which can not reasonably he anticipated, is an accident- 150 3. The statute. If not restricted to Injuries of an accidental nature, is at least confined to Injuries which are referable to some particular event capable of being fixed In point of time 150 4. Within the language of the statute an employee may be injured with- out having suffered a definite accident 150 5. A plate printer following his usual occupation and sustaining a sprain of the wrist and a rupture of the synovial sac is Injured within the meaning of the statute 150 6. A disease contracted in the course of employment is not an injury within the act, as the act was intended to apply to injuries of an accidental nature resulting from employment in hazardous occupa- tions and not to the effects of disease contracted in the course of employment, although directly attributable to the conditions thereof- 166 7. Evidence that employee was strong and healthy up to time he com- plained of a hurt received while at worls on heavy lifting, and that he died suddenly a few days thereafter, for no other assignable cause, is suflicient to show that he had sustained some internal in- jury, though there were no external manifestations thereof 176 8. Evidence of slight blow on jaw is not evidence that tuberculosis of the cervical glands causing incapacity is an Injury within the act 179 9. Frozen feet constitute an injury within the act 181 10. A physical injury which aggravates a previous ailment so as to dis- able an employee, where disability would not have been caused but for such previous ailment, is an injury within the act 181 11. An employee who, without negligence or misconduct on his part, is strucli by his foreman in a fit of anger and has his arm broken, is Injured in the course of his employment 187 12. An employee obeying orders of his superior and submitting to an oper- ation (vaccination) ordinarily harmless, who is disabled thereby. Is injured within the act 188 13. Injuries within the act are injuries to the person, or bodily injuries, and hence the breaking of an artificial leg is not covered by the statute : 189 14. An accidental injury received in the course of employment but arising In consequence of a disease is an injury within the act, the accident being regarded as the proximate, and the disease as the remote, cause 190 15. The fact that an injury may be classed as a disease does not take it out of the statute. Sunstroke, though classed as a disease, is not such a disease as may be contracted in the same sense as ordinary diseases may be, but Is an Injury of an accidental nature, and is covered by the act 193 16. 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 195 17. A severe accidental injury which, though it does not Incapacitate the employee, 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 I97 18. An Infection of the hand and a secondary infection of the leg, resulting from an abrasion of the skin and the accidental Introduction of a foreign substance, Is an Injury within the act I99 DIGEST OF OPINIONS. 23 Page. 19. A disease not contracted but caused by physical means, under cir- cumstances involving an element of accident, is an injury within the act. Idiopathic and traumatic diseases distinguished 201 20. An employee overtal^en while at worlj by a disability due to some un- ascertained internal disorder, not shown to have been caused by any accident or occurrence in the course of employment, is not injured within the act 206 21. Disability resulting from a disease directly due to a physical injury of an accidental nature, or lighted up thereby, is an injury within the act ^^ 207 22. A disability referable to no definite accident or occurrence, though arising in the course of employment, involving chiefly a gradual weakening, wearing out, or breaking down of the employee, is not an injury within the act 210 23. A bodily afiliction occasioned without a definite accident, though arising out of the employment and brought about by external causes, which is not the result of a gradual process or slow accumulation of trifling hurts, nor due to a constant repetition of known or anticipated injurious effects, if it develops rapidly and is referable to a fixed time, and if, though a natural result of surrounding con-« ditions, it is neither a necessary result nor a result reasonably to be feared, is an injury within the act 211 24. To constitute an injury within the act, it will suffice if an element of accident clearly appears, or if the injury is of a type which, in the Interpretation of statutes of similar scope and purpose, has been accepted as properly included in the class comprehensively known as accidental injuries 211 XII. " IN THE COURSE OF EMPLOTMENT." i 1. A workman employed in the Canal Zone, injured while riding home from work on a labor train, was injured in the course of employ- ment 217 2. A workman injured by a .fall while in act of leaving shop at close of day's work is injured in course of emxjloyment 218 3. A workman employed in an arsenal, injured while " ringing out " at a time clock at the close of the day's work, was injured in the course of employment 220 4. A fireman employed in the Canal Zone, injured while performing service outside territory under control of the United States, was injured in the course of employment 221 5. A workman injured by an explosion while on the premises of the Government waiting for work to begin is injured in course of em- ployment 222 6. A workman injured on a highway on his way to work is not injured in the course of employment 223 7. A workman in the Canal Zone, injured while following a customary path on his way to work, on the premises of his employer or in the immediate vicinity thereof, was injured in the course of employ- ment 226 8. A shopboy employed to work a punching machine. Injured by vol- untarily starting a rolling machine while the former machine was idle, was not injured in the course of employment 230 24 DIGEST OF OPINIONS. Page. 9. A workman bitten by a mad dog while attending to his duties was Injured in the course of employment 232 10. A workman whose employment required him to occupy sleeping and living quarters furnished by the Government, Injured after hours, but at quarters, is Injured in course of employment 237 11. A workman Injured in going to assistance of a fellow workman, attacked by a third, was not injured in the course of employment 240 12. A railroad conductor on an excursion trip, when the train was run, with permission, by the employees for tlieir own pleasure, was not injured in the course of employment . 241 13. A laborer having gotten his fingers frozen in course of employment, who later burned his fingers at home by accidentally setting fire to the bandages, was not injured as to the bum in the course of em- ployment 242 14. A watchman returning from work, injured after alighting from a labor train, while walking on the adjoining track, which was the only way of reaching the highway leading to his home, was Injured in the course of employment 244 15. A foreman whose duty in part was to enforce discipline, injured while •going to stop a fight between two of his men, was injured In the course of employment 250 16. A workman off duty but on premises of employment volunteering a piece of work and meeting with an accident resulting in his death was not injured in the course of employment 251 XIII. " ONE YEAR THEEEATTEE." 1. The year for which compensation is payable begins to run on the day following the Injury and terminates with the anniversary of the day of Injury 255 2. The date of the injury from which the year of compensation begins to run is the date on which the Injury results In incapacity for work.. 258 XIV. " UNLESS SOONEK ABLE TO RESUME WOBK." 1. Ability to resume work means ability to resume the regular work of the injured person's employment In the course of which the injury was sustained, not any work he may be able to do notwithstanding the Injury 263 2. Miscellaneous opinions holding on review of facts and testimony em- ployee to be still incapacitated and unable to resume work 265 3. Ability to resume the regular work of the injured person's employ- ment appearing, compensation ceases under the act, though the em- ployee remains seriously and permanently injured 285 4. Inability to resume regular work of employment appearing, compensa- tion is payable though claimant be discharged and obtains other em- ployment of different character 287 5. Ability to resume work at a given date can not be predicated on the fact that an injured person refused to submit to an operation and therefore, according to medical opinion, delayed recovery 289 XV. " THE SAME PAY AS IF HE CONTINUED TO BE EMPLOYED." 1. The pay or compensation granted Includes allowance for subsistence or In lieu of subsistence when the same forms part of the regular remuneration or earnings 291 DIGEST OF OPINIONS. 25 Page. 2. The right of a laborer to " the same pay as If he continued to be em- ployed " is not lost or diminished because the work on which he was employed has been stopped or suspended before he is able to resume work 293 3. The amount of compensation payable to a dependent parent is equiva- lent to the full pay of the deceased for the balance of the year following th§ latter's death, though the parent had not been wholly dependent upon him or had received, before the injury, only a share of his wages 296 4. The right to " the same pay as if he continued to be employed " in- cludes the right to any increase in the pay attached to the injured person's position made after the injury and during incapacity 297 5. The question of fact as to what is the " same pay " a workman would receive if he continued to be employed is ordinarily better deter- mined by the administrative and accounting officers of the estab- lishment in which he is employed than by the Secretary of Com- merce and Labor 299 6. Where an injured employee, though unable to return to his regular work, returns to work of a difterent character and receives the same pay as if his duties remained unchanged, compensation under the act ceases; his right to compensation is merged in his right to receive pay for his services , 301 XVI. " NEGLIGENCE OE MISCONDUCT." 1. Artisans are not necessarily negligent because as they become profi- cient and dexterous they naturally make use of movements more or less mechanical or involuntary which might be regarded as negli- gent if it were reasonable to expect men never to relax their vigi- lance and to be constantly on guard 302 2. It is unreasonable to deny compensation merely because the physical condition of the injured person is such as to predispose him to some ailment which is also a natural concomitant of the injury received. 304 3. Failure to avoid a known danger by a laborer engrossed in his work, who momentarily forgets it, is not negligence 306 4. No man can be assumed to be indifferent to impending and apparent danger; it is fair to assume that he will endeavor to avoid it. If he is slower to think or slower to act than another, this is not negligence 309 5. A laborer in a sudden emergency and seemingly called upon to act at once is not negligent merely because the action taken leads to an injury which would not have occurred otherwise 310 6. Failure to exercise incessant vigilance in avoiding a known danger is not negligence . 311 7. Negligence under this act involves the idea of misconduct or volun- tary and unnecessary exposure to obvious danger. Mere inadvert- ence or error of judgment, under circumstances not suggesting danger, is not negligence 314 8. The violation of a positive rule or instruction directly resulting in injury amounts to negligence or misconduct ; but the rule or regu- lation must be a reasonable one; it must have been known to the employee, and it must have been enforced. The disregard of a rule wlych has become a dead letter is not necessarily negligence— 317 26 DIGEST OF OPINIONS. Page. 9. A laborer called upon to perform a task out of his regular line of work is not chargeable with negligence because he adopts, through ignorance, a method dangerous in fact, but not obviously danger- ous to an inexperienced man 319 10. An injury to a printer's back incurred while working a hand press was not due to negligence merely because the printer had continued working the press although it worked hard and required extra exertion 321 11. Miscellaneous opinions holding on review of facts and testimony the injury to be due to negligence or misconduct 324 12. Miscellaneous opinions holding on review of facts and testimony the injury not to be due to negligence or misconduct 359 XVU. "UNLESS SAID INJUBY SHALL CONTINUE FOE MOEE THAN FIFTEEN DAYS." 1. An injury continues for " more than " 15 days if the period of dis- ability lasts for 15 full days in addition to the day of injury ; the day of injury can not be disregarded without extending the period limited to 16 days 415 2. When the days of incapacity, whether consecutive or in broken periods, amount to more than 15, counting intervening Sundays and holidays, the law operates to grant the cbmpeusatiou 421 3. An employee who is so injured that he can never resume the work on which he was engaged at the time of the injury, but who, after 14 days of incapacity, is able to resume work by accepting an as- signment to a character of work with which his Injury does not materially interfere, and who does so resume worli, m-ay receive compensation for the time lost, even though it may not amount to more than 15 days 422 4. An employee who is physically able to resume work within 15 days after the injury, but who is prevented from actually resuming work until 18 days thereafter because of holidays or lack of work, is not entitled to compensation 423 6. Miscellaneous opinions holding on review of facts and testimony in- jury continued more than 15 days 1 425 6- Miscellaneous opinions holding on review of facts and testimony in- jury did not continue more than 15 days 432 XVIII. " WIDOW." 1. A woman living as the illegitimate wife of an employee in the Canal Zone does not become, upon his death, his widow within the mean- ing of the act 442 2. The act does not operate to grant compensation to a woman who for several years lived in Barbados and as the " reputed wife " of an employee who was killed in the Canal Zone, and to whom she had borne three illegitimate children 443 3. A woman who has been divorced from an employee and who has been given the custody of his children is not entitled to compensation on account of his death, though the compensation may be paid to her as guardian for the children 444 XIX. " CHILD OE CHILDEEN." I. The filing of an affidavit of claim by any one or more of the benefici- aries named in section 2 and referred to in section 4 is silflicient to protect the rights of a minor child if filed within the period of 90 days 444 DIGEST OF OPINIONS. 27 Page. 2. The word " child " or " children " as used in the act is not restricted to child or children born in wedlock, but includes illegitimate off- spring as well 446 3. Where an employee dies, leaving no parent or widow, but leaving a child entitled to the benefits of the act, and the acting Spanish consul files an aflidavit of claim on behalf of such child, such acting consul may be regarded as acting in loco parentis and his alHdavit as the affidavit of the child 456 4. Where on account of the death of an employee compensation has been allowed to the widow and child and the widow dies within the compensation period, and the care of the child devolves upon the child's maternal grandmother, the remainder of the year's compen- sation may be paid to such maternal grandmother for the use and benefit of the child 1 457 XX. " DEPENDENT PARENT." 1. A foster parent by legal adoption may be a dependent parent within the act 458 2. The word " parent " does not include a stepfather or stepmother 462 3. The question of depnndfiice is one of fact, and the fact of dependence sufficiently appears if a condition of partial dependence is shovra. Contributions by the deceased tend to establish a condition of dependence, but is not the only criterion. The natural and equit- able claim for support which the parents have upon their children makes it proper to consider the actual needs of parents; and in ascertaining such needs, it is necessary to look to their age, circum- stances, position in life, and earning capacity 464 4. A parent is not dependent who did not in fact depend in some measure for the means of living upon the deceased ; but if the parent is in actual need the fact of dependence is sufficiently shown if it further appears that the deceased attempted to supply such need even to a slight extent, or that but for the death the parent was reasonably assured that such need would be supplied in some substantial measure 4G7 5. The word " parent " does not include a foster parent where there has been no legal adoption 470 6. Miscellaneous opinions holding on review of facts and testimony parents to be dependent 471 7. Miscellaneous opinions holding on review of facts and testimony parents not to be dependent 480 XXI. " SUCH POETIONS." 1. The word " portions," as used in the act, refers to the division of the compensation among the claimants and not to its division into weekly or monthly payments, and the Secretary is authorized to direct that one beneficiary receive a larger and another a smaller portion ; his authority in this regard may even justify his direction that the whole compensation be paid to one beneficary to the ex- clusion of the others 485 28 DIGEST OF OPINIONS. XXn. " THE PEBSONS ENTmED TO COMPENSATION UNDEE THIS ACT OB THEIE LEGAl EEPEESENTATIVES." Page. 1. Where an injured employee dies several days or weeks after the injury, compensation is payable to the injured person or his per- sonal representative from the date of injury to and including the date of death, and for the balance of the year to the widow, children, or dependent parent, as the case may be 490 2. Where an employee dies as the result of an injury before having made application for or received compensation, the spirit and purpose of the act warrants payment of compensation from date of injury to date of death as well as for the remainder of the year to the widow or family of the deceased 492 XXIII. " WITHIN NlffETT DAYS AFTER SUCH DEATH FILE WITH THE SECEKTAET OF COMMERCE AND LABOR." 1. The requirement that an affidavit of claim shall be filed within 90 days after the death is mandatory, and the claim of a widow filed 91 days after the death of the employee is barred by the statute 494 2. If a beneficiary in case of death, in person or by an agent, files a claim for compensation, or what is equivalent to a claim, within the time prescribed, and an " affidavit " in ths technical sense is not filed until 90 days have expired, owing to the delay of Government officers in supplying the necessary forms, the right to compensation Is not barred 497 3. The delivery of an affidavit of claim to the deceased employee's official superior, in accordance with regulations of the Secretary designating such official superior to receive the same, is a filing with the Secretary within the meaning of the act 501 4. It is the date of the delivery to the official superior and not the date of the execution of the affidavit of claim which determines whether or not the affidavit of claim is filed within 90 days 504 5. Neither a verbal notice of claim by the royal vice consul of Italy to the superior officer of an Italian subject, killed while in the employ of the Unite(? States, within 90 days after death, nor a telegraphic notice by such consul sent to the Secretary of Commerce and Labor 92 days after the death is a compliance with the act 505 6. An affidavit of claim filed within 90 days by an agent m accordance with a sufficient power of attorney executed by the widow of a deceased employee constitutes due filing 510 7. An affidavit of claim deposited in the mail within 90 days after death of the employee addressed to the deceased's official superior, but not received by the latter until after the expiration of the 90-day period, is not a filing within the meaning of the act 510 8. Where a claimant can not act for himself within the time limited, and another, in his name and behalf, but without prior authority, acts for him and files a claim within 90 days, a ratification by the claim- ant of the act done on his behalf, though made after the expiration of the 90 days, relates back to the time of the act done so as to make the filing effective as of the prior date 512 9. An affidavit of claim filed with the American consul at Madrid, to whom the proper bl»nks had been sent and through whom they were to be returned when filled out and executed, held, under the circum- stances, to have been filed with the Secretary of Commerce and Labor 521 DIGEST OP OPINIONS. 29 XXIV. "an affidavit." Page. 1. An afQdavlt of claim may be executed before any person authorized to administer oaths generally, and the authority of a person in a foreign country to administer oaths generally Is a question of fact which should be established by satisfactory evidence 523 2. The affidavit of claim may bfe executed and filed for the claimant by an attorney in fact duly appointed for the purpose 526 3. Authority to administer oaths generally is not indispensable if the specific authority to administer oaths is not so limited as to exclude the oath in question 528 XXV. "accompanied by the ceetificate of the attending physi- cian * * * OE THE NONPRODUCTION OF THE CEETIFICATE SHAIX BE SATISFACTORILY ACCOUNTED FOE." 1. Where the evidence shows incapacity for more than 15 days, the at- tending physician's certificate covering only the 13 days the employee was under his observation satisfies the law 531 2. The fact that no physician was employed satisfactorily accounts for the nonproductlon of a physician's certificate ' 532 XXVI. " SHALL WITHIN A REASONABLE PERIOD." 1. Where a verbal claim for compensation was promptly made, but an affidavit of claim was not filed until nearly a year after the injury, owing to neglect of official superiors to furnish necessary forms, delay held not unreasonable , 535 2. What may be a reasonable time in which to file an affidavit of claim must be determined with reference to the circumstances of each case. Particular circumstances considered 536 XXVII. "a claim foe COMPENSATION IS ESTABLISHED." 1. A claim Is not barred by evidence of congenital weakness which may have contributed to cause an in.iury to result in Incapacity 53S 2. The fact of death established by a presumption from the facts 539 3. A claim may be approved where only circumstantial evidence of the injury can be adduced 541 4. The duty of determining whether a claim for compensation has been established involves a discretion on the part of the Secretary which can not be delegated to any other person 542 5. Review of evidence justifying the approval of a claim based upon an affection of the heart caused by a " sudden twisting of the body " 543 6. Review of evidence justifying the approval of a claim based upon an injury not reported until after several days' absence from work 545 7. To entitle an employee to continued compensation, the disability must be due In an appreciable measure to the original injury 546 8. Consideration of evidence justifying the approval of a claim based on injury causing hernia or aggravating old hernia 548 9. Consideration of evidence justifying approval of a claim on account of hernia which had existed several months before resulting in Incapacity 550 10. Consideration of evidence justifying the disapproval of a claim based upon death by suicide, alleged to have been committed in a fit of temporary Insanity caused by an accident received in the course of employment 551 11. Nothing in act to justify following a man after he has voluntarily severed the relation of employer and employee, so as to give him the benefits of the act in case he should afterwards become inca- pacitated 552 30 DIGEST OF OPIHTONS. PagB. 12. Consideration of evidence justifying the approval of a claim based on Injury to leg, though the employee had taken part in a parade__ 554 13. An injured emploRee is entitled to compensation no longer than bis incapacity Is due to his original Injury, and may not be paid be- cause, on account of old age or other bodily infirmity, he is unable to resume work within year 556 14. Cases in which the discharge of claimant from service held not to affect right to compensation 557 15. Cases in which the evidence was considered insufficient to establish the fact of an accident or injury in course of employment 569 16. Case of an Injury caused by a fall superinduced by vertigo 575 17. Cases in which the disability, though of a nature not obviously due to an accident or injury alleged, was held on the evidence to have been so caused 577 18. Cases in which compensation for disability denied because fact of an accident or injury in course of employment not shown 590 19. Consideration of evidence justifying the approval of a claim based on incapacity caused by hernia following ,'in injury, notwithstanding medical examination may have shown prior existence of hernia 594 20. Consideration of evidence justifying approval of claim made after employee had quit the service of the United States, but based on an Injury received while in the service, it appearing that he knew nothing of the compensation act and quit because he was unable to continue work 596 21. Cases in which the effect of claimant's resignation from service upon right to compensation is considered 599 22. Circumstances held to corroborate claimant's unsupported statement as to injury in the absence of proof to the contrary 600 23. Additional evidence sought by Department held to establish fact of injury as alleged 607 24. An employee who after an injury had resunied work pursuant to orders, being assigned to lighter duties and was again injured, resulting in immediate Incapacity, held to have established a new claim 610 XXVin. " SUBMIT TO MEDICAI, EXAMINATION." 1. The law requires an examination at least once in six months during Incapacity, and contemplates that payment of compensation be not authorized for a longer period than six months at a time, even though the disability is permanent in its nature 611 2. The duty of claimants to submit to medical examination at least once In six months is mandatory upon theni, but the obligation of the Secretary to provide such an examination is directory, so that a right to compensation is not lost by the latter's failure to act 612 3. If the Secretary so directs, an examination made by a naval surgeon designated by the Secretary of the Navy to examine an employee to determine his right to continued compensation would be a com- pliance with the act 615 4. In order to defeat a right to compensation for refusal to submit to an examination, it is necessary that such examination shall have been directed by the Secretary; that it be made without expense to the employee, and that the employee be advised that such examination is required by the- Secretary gig XXIX. DECISIONS OF THE COMPTEOLLEE OP THE TEEAStTET. 1. Miscellaneous decisions of the Comptroller not appearing elsewhere in this compilation 618 OPINIONS DEAimO WITH WORKMEN'S COMPENSA- TION UNDER ACT OF MAY 30, 1908. I. " ON OB AFTER AUGUST TIBST, NINETEEN HUNDRED AND EIGHT." 1. The accident or other cause of injury as well as the beginning of the result- ing incapacity must have occurred on or after the date fixed, [In re claim of A. B. Adolphus, Jan. 11, 1910; No. 2257.] It appears from the record in this case that in 1903 the claimant was employed in the Bureau of Engraving and Printing, and that a part of his duty consisted of cleaning window screens. While en- gaged in this work the dust and rust from the screens got in his eyes, so affecting them that he asked to be changed from that work. He was then assigned to other duties. But his eyes continued to grow worse until he became practically blind and unable to perfoi^m any duty, necessitating his discharge from the service on July 6, 1909. He obtained from the -Bureau of Labor a blank and necessary in- formation to enable him to make claim for compensation under the act of May -SO, 1908. The formal affidavit of claim was executed and the attending physician's certificate obtained. But the proper official superior refused to fill out and sign the blank certificate which is made a part of the claim form, and the claimant filed hi,s claim without such certificate directly with this Department. All the papers in the case are now submitted to this office with special refer- ence to the question whether the evidence submitted is sufficient to establish the claim. Section 4 of the act provides: In the case of incapacity for work lasting more than fifteen days, the injured party desiring to take the benefit of this a6t shall, within a reasonable period after the expiration of such time, file with his oflicial superior, to be forwarded through regular oflicial channels to the Secretary of Commerce and Labor, an affidavit setting forth the grounds of his claim for compensation, to be accom- panied by a certificate of the attending physician as to the cause and nature of the injury and probable duration of the incapacity, or the nonproductlon of the certificate shall be satisfactorily accounted for. It will be observed that the law does not require any certificate from the official superior. It does, however, require that the affidavit of claim shall be filed with the official superior " to be forwarded through regular official channels to the Secretary of Commerce and Labor." While I do not think that the refusal of a subordinate official in any department to fill out and sign the certificate of official su- perior, in accordance with the regulations of this Department, or even his refusal to receive and forward the affidavit of claim, ought to 31 32 workmen's compensation under act of may 30, 1908. prevent the consideration by the Secretary of Commerce and Labor of a claim arising under the compensation act, I think the cours indicated in the law as above quoted should be followed. It seems to be a wise provision, as it gives the officials of the department m which a claim arises an opportunity to present such material tacts as may have a bearing on the justice of the claim. While the claimant is entitled to file his claim in the method pre- scribed by the statute and to have it carefully considered on its merits after it shall have been so filed, it may be that a consideration at this time of the law likely to be involved will show the futility oT pursuing the matter any further. It appears that injury resulted in total disability in July last, although the primary cause occurred in 1903. The question involved appears to be, therefore, must the accident or primary cause of the incapacity as well as the incapacity itself have occurred after August 1, 1908, when the compensation act went into effect, in order to entitle an injured employee to compensation? In the case of Olin P. Wells (C 19, Bu. No. 135) it was held that in computing the 15 days during which an injury must continue in order to entitle to compensation, the days of incapacity, whether consecutive or in broken periods, should be added together. In the case of William Bowen (C 349, Bu. No. 1563) it was held that the injury contemplated by section 1 of the compensation act did not begin untU the accident or primary cause thereof had resulted in incapacity for work, and that the " one year thereafter " began to run with the first full day of incapacity. In this latter case it was said: We can not escape the conclusion that the only injury referred to is, as stated in the W^ells case, supra, such an injury as " shall result in incapacity for worlr." Until the injury shall have caused incapacity it is not such an injury as Is couteioplated by the statute. Logically, then, the injury which may entitle an employee to compensation under the act does not begin to exist until the accident or literal injury has resulted in incapacity for worls. When it has existed for more than 15 days, his right to compensation accrues. Practically the same view was expressed by the Attorney General in his opinion of May 17, 1909, in the Clark case (C 92, Bu. No. 628), as follows: The word " injury " is used comprehensively to embrace all the cases of in- capacity to continue the work of employment, unless the injury is due to the negligence or misconduct of the employee injured — and including all cases where as a result of the employee's occupation he, without any negligence or misconduct, becomes unable to carry on his work and this condition continues for more than 15 days. In each of the cases above referred to the accident or primary cause of the incapacity occurred after the compensation act had taken effect, and the question now presented was not considered. Section 1 of the act of May 30, 1908, reads in part as follows : That wlien on or after August first, nineteen hundred and eight, any person employed by the United States * * * is injured in the course of such em- ployment, such employee shall be entitled to receive," etc. It is clear that, in order to entitle an employee to compensation his injury must have occurred after August 1, 1908, and it must have occurred in the course of his employment. OPINIONS OF SOLICITOE, DEPARTMENT COMMEKCE AND LABOR. 33 If the beginning of the incapacity is the beginning of the injury which entitles an employee to compensation, and the incapacity did not begin' until after August 1, 1908, it might seem at first blush that this alone would determine the right to compensation. But it does not. The injury must occur in the course of employment. Though the incapacity may mark the beginning of the injury con- templated by the statute, it takes something more than the mere in- capacity to constitute such an injury. The incapacity must have a prior cause, some accident or event capable of being located in point of timOj and it is such accident or event, together with the incapacity, which constitutes the " injury " for which compensation may be paid. The statute says in effect that this " injury " must have occurred after August 1, 1908, and that it must have occurred in the course of employment, so we must determine which of the component parts of the injury — the accident or the incapacity — must have occurred in the course of employment and after August 1, 1908, or whether both such component parts must have occurred in the course of em- ployment and after August 1, 1908. It would be difficult to say in any case that incapacity occurred " in the course of employment." As the result of an accident while at work during the day incapacity may arise during the night while the employee is at home. Surely no one would contend that the injured employee was not entitled to compensation because the incapacity did not arise while the man was actually at work. But, on the other hand, suppose a man should meet with an accident while off duty, and that a day or two there- after, while he is at work, the resulting incapacity should develop. It is clear that in such a case the man would not be entitled to com- pensation, and for the obvious reason that the accident which caused his incapacity was in no way connected with his employment, so in order to produce such an injury as is contemplated by the act, there must be an accident or event capable of being located in point of time which results in incapacity for work, and the said accident or event must have occurred in the course of employment. Neither the accident alone nor the incapacity alone can entitle the employee to compensation. It takes both to constitute an injury within the meaning of the act. The act applies only to injuries sustained after August 1, 1908. If the accident occurred before August 1, 1908, and the resulting incapacity occurred after August 1, 1908, when did the "injury" occur? It did not occur before August 1, 1908, because there was no incapacity before that time, and it did not occur after August 1, because after that time no accident or event occurred in the course of the employment to produce the incapacity. As stated in the Bowen opinion, supra, any hurt may be considered as an " injury " within some meaning of the word, but until it has resulted in incapacity the injury contemplated by the statute is not complete. . . I reach the conclusion, therefore, that to constitute such an injury as will entitle an employee to compensation there must be an acci- dent or other cause which produces as an effect an incapacitj^, and that the cause must have occurred in the course of employment after August 1, 1908. 63051°— 12 3 34 workmen's compensation xjndee act of may 30, 1908. ii. " employed by the united states." 1. A plate printer in the Bureau of Engraving and Printing, paid by the piece, is an employee of the United States, and not a mere contractor. [In re claim of A. B. Clark, Dec. 17, 1908; No. 92.] In the letter of the Director of the Bureau, before referred to, the statement is made that the First Comptroller of the Treasury held that " plate printers are not persons in the civil service of the United States within the meaning of the joint resolution (Feb. 28, 1867), but contractors, receiving a certain stipulated price for each 100 sheets printed by them," and, in view of this ruling, the director suggests that the act of May 30, 1908, does not apply to the claimant herein. The resolution of February 28, 1867 (14 Stat., 569), above referred to, provides for the payment of additional compensation to certain persons " employed in the civil service of the United States at Wash- ingion." Upon inquiry at the comptroller's office, it appears that no record of Such a decision as is above described can be found. How- ever, it is doubtful if a decision applying the provisions of the joint resolution of 1867 could have any bearing upon the application of the act of May 30, 1908. The purpose and language of the act is very different from the purpose and language of the resolution. The act applies to " any person employed by the United States as an artisan or laborer " in certain branches of the Government service. A plate printer is a subordinate of one of the officers of the United States, and he received his pay direct from the United States. The fact that his pay is measured by the piece instead of by the day or month can not, in my opinion, affect his status as a " person employed by the United States." I am satisfied, therefore, that a plate printer who renders service to the United States and who is paid by the United States, whether by the piece or otherwise, is a '' person em- ployed by the United States " within the meaning of the act. That he is an artisan or laborer is not questioned. 8. A workman employed by a Government contractor is not employed by the Government. fin re claim of R. Lipscomb, Jan. 14, 1910; No. 2418.] The above matter is submitted to this office with special reference to the question whether the employees of a Government contractor are covered by the act of May 30, 1908. The papers in the case consist of a letter from the claimant sub- mitting for consideration the matter of his alleged claim, which is based upon the following circumstances: Lipscomb was in the employ of the McCord Co., which company was engaged, under contract with the Government, in the construc- tion of Lock and Dam No. 1. This work was being done under the supervision of an engineer of the Government, and while so engaged upon the work Lipscomb was injured on December 21, 1908. OPINIONS OF SOLICITOR, DEPARTMENT COMMERCE AND LABOR. 35 Under the foregoing state of facts the question arises as above set forth and the answer to the same is found in section 1 of the act of May 30, 1908, wherein the persons entitled to the benefits of the act are described as follows : That when, on or after August first, nineteen hundred and eight, any person employed hy the United States as an artisan or laborer * * * . The question herein presented is whether Mr. Lipscomb was employed by the United States within the meaning of the act. It would seem almost impossible to make the act any clearer than was done by the words as used therein, limiting the benefits thereof to " any person employed by the United States." Such wording was evidently intended to limit the application of the act to the classes mentioned therein in the immediate employ of the Government, or in other words those employees between whom and the Government some privity existed. This question has not apparently heretofore been raised in connection with the act of May 30, 1908, so there are no adjudicated cases to be found on this point. A similar question was raised in connection with the application of the provisions of section 3738, Revised Statutes of the United States, otherwise known as the eight-hour law. The wording of this statute was quite different from the wording of the compensation act, as will be observed from a perusal thereof, which is as follows: Eight tours shall constitute a day's work for all laborers, workmen, and mechanics who may be employed by or on behalf of the Government of the United States. The question was raised whether this statute applied to the em- ployees of a person who had contracted with the Government to fur- nish granite for the use of the United States. The matter was re- ferred to the Attorney General, who, in an opinion (14 Op., 37), quoting from the syllabus, held as follows : The provisions of the act of June 25, 1868, chapter 72, declaring that eight hours shall constitute a day's work for all laborers, workmen, or mechanics employed by or on behalf of the United States, are not applicable to mechanics, workmen, and laborers who are in the employment of a contractor with the United States. That act was not intended to extend to any others than the immediate employees of the Government. This case eventually reached the Supreme Court, which court, in 96 U. S., 421, sustained the opinion of the Attorney General, holding that there was no privity between the einployees of the contractor and the United States, and therefore the employees were not entitled to the benefit of the statute. From a comparison of the two statutes it will readily be seen that the eight-hour law permitted a question to be raised as to its appli- cability to employees of Government contractors because of the use of the words " or on hehalf of the Government of the United States," while the wording of the act of May 30, 1908, is restricted absolutely to " any person employed hy the United States.'''' As Mr. Lipscomb was not employed 'by the United States, I am therefore of the opinion that he is not such a person as would be en- titled to compensation under the act of May 30, 1908. 36 woekmen's compensation under act of may 30, 1908. 3. The owner of a power boat, chartered to the Government and operated by the owner in its service, is an independent contractor and not an employee of the United States, [In re claim of .Tohn Hanson, Mar. 27, 1912 ; No. 7586.] Claim for compensation has been filed by the widow and children of John Hanson, owner and engineer of a launch which was hired by the Engineer Office of the War Department at New York, N. Y., under an agreement between the officials in charge of river and harbor improvement work in East River and Mr. Hanson, copy of which, dated November 26, 1910, is as follows : You are requested to furnish the following as per your proposal to furnish launch : Power launch, with crew, all supplies and necessary fittings, ready for work, for the sum of $8 per day, exclusive of Sundays and legal holidays. The boat is to be returned to you when no longer needed, in as good condition as when received by the United States, loss and damage by fire, act of God, and ordinary wear and tear excepted, payment to be made as soon after the 1st day of each month as practicable. As it is not the Intent of the United States to use this boat outside the usually navigable waters of New York and vicinity, unless with the special consent of the owner in each case, and as the boat is to be handled by the owner or his agent, the United States is not to be held responsible for any damages due to any accident which may occur to the boat through no fault or negligence upon the part of the employees of this office. Bill should be rendered in duplicate and should be dated and signed by you or your authorized representative before transmitting to this oflElce, as follows: " I certify that the above account is correct and just, and payment therefor has not been received." The proposal referred to, copy of which has been secured from the Chief of Divison of Accounts of the War Department, gives a detailed description of the launch desired and states : This bid must include engineer's board and wages and all supplies and fittings necessary for the boat when in commission. Under these terms the launch was furnished by Mr. Hanson, who acted as the engineer referred to in the proposal, and while carrying a survey party engaged in operations at Hell Gate, East River, N. Y., his foot became entangled in a line and he was pulled overboard and drowned. The claim has been referred to this office with special reference to the question whether claimant's occupation comes within the scope of the act. Section 1 of the act of May 30, 1908, provides that " when, on or after August first, nineteen hundred and eight, any -person employed hy the United States, as an artisan or laborer is injured in the course of such employment, such employee shall be entitled to receive for one year thereafter, * * * the same pay as if he continued to be employed, * * *." The question, therefore, to be considered is whether decedent was, under the circumstances, an " employee of the United States " or an independent contractor. When the employment is covered by a written contract, the con- struction of such contract and the question as to what constitutes an independent employment thereunder is a question of law for the court (Singer Mfg. Co. v. Rohn, 132 U. S., 518.) Therefore, in looking to the contract in this case, above quoted, we find that what the Gov- ernment desired was the services of a launch, properly equipped and OPINIONS OF SOLICITOR, DEPAETMBNT COMMEBCE AND LABOR. 37 manned while in commission. Nothing was contained therein re- quiring any particular person or persons to handle it, and the Gov- ernment was not concerned with the personnel of the crew or with the identity of any member thereof. It was immaterial whether decedent handled the boat one day and one of his agents the following day, or still another person the next day. By the terms of the contract decedent was called upon to " furnish power launch, with crew, all supplies and necessary fittings, ready for work, for the siun of $8 per day." The proposal specifically provides that the " iid must include engineer's 'board, wages, etc." which signifies that the " engineer " referred to and the " crew " mentioned in the agreement merely meant some one competent to manage and operate the boat, and it is clearly intended by the wording of the contract that the $8 agreed to be paid by the Government for each day's service of the launch included the paynient of the wages of the owner or crew thereof, irrespective of whether it was handled by either the owner or agent. Defining an independent contractor, Harrison, J., in Richmond v. Sitterding (101 Va., 354 ; 99 Am. St. Eep., 882) , said : Where a person is employed to perform a certain kind of work which re- quires the exercise of skill and judgment as a mechanic, the execution of which is, because of his superior skill, left to his discretion, without restriction upon the means to be employed in doing the work, and employs his own labor, which is subject alone to his own control and direction, the work being executed either according to his own ideas or in accordance with plans furnished him by the person for whom the work is done, such a person is not a servant under the control of a master, but an independent contractor. Another case in which the court distinguishes between an inde- pendent contractor and an employee or servant is Linton v. Smith (8 Gray, Mass., 147), wherein it is said that: * * * the judicial conception of an independent contractor is simply that of a person who, being in' the exercise of a distinct and recognized trade, craft, or business, undertakes to do a certain work, without submitting himself to the control of the employer in respect of the details of that work. Considered from one point of view, the situation contemplated when such a person is engaged implies that the employer has nothing to do in regard to the work, except to see that it is done according to the terms of the contract, or that he has merely a right to see that the contract Is performed in pursuance of its terms, conditions, and- specifications. Considered from another point of view, that situation implies that he is to have the independent use of his own skill, judgment, means, and servants in the execution of the work, or that he is to have the execlusive direction and control of the manner in which the work is to be done, or that he is to have full control of the work and workmen, or that the execution of the work is to be left entirely to his discretion, or that he is to be free to exercise his own judgment and discretion as to the means and assistants that he may think proper to employ about the work, or that he is to be left entirely free to do the work as he pleases, or that the work is to be done according to his own methods, or that he is to procure labor and materials in his own way, provided they are such as the contract demands, and use such machinery and appliances as he deems proper, provided they do not unneces- sarily injure the subject matter of the contract or interfere with work done by others. The work required to navigate the boat necessitated the services of a man as engineer and pilot, and was therefore of a special nature, requiring the exercise of skill and judgment on the part of such person in the manner of its performance. The deta,ils of this work and the means employed in its execution were entirely within the discretion of decedent under the contract, as the right of supervision 38 workmen's compensation under act of may 30, 1908. or control by the representative of the Government was not reserved by it in the agreement. That the control of the launch was in the owner, and not in the Government, is further evidenced by the pro- vision in the contract that, " as it is not the intent of the United States to use this boat outside the usually navigable waters of New York and vicinity, unless with the special consent of the owner in each case, and as the 'boat is to he handled by the ownsr or his argent, the United States is not to be held responsible for any damages due to any acci- dent," etc. Under this contract the only authority the representative of the Government had was the right by implication to direct decedent, as master or pilot of the launch, where to go and when to increase or decrease its speed as occasion demanded in the accomplishment of the work for which the boat was hired. Mr. Hanson's position was, therefore, quite analogous to that of a drayman or one who owns a conveyance, furnishes a driver or operator, and lets the same for hire, as the nianner of performing his work, like driving a horse and car- riage and attending to the equipment, was a matter entirely within his discretion. In such cases the authorities agree in the view that the relationship of master and servant does not exist between the driver and the hirer, but that such driver is an independent con- tractor or the agent of one. In Little v'. Hackett (116 U. S., 379) the plaintiff hired a public hackney coach from a 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 injured. The de- fense set up was that the relationship of master and servant existed between plaintiff and driver. In a very exhaustive research and review of the authorities in point, English and American, Mr. Justice Field, speaking for the court, said: Those on a hack do not become responsible for the negligence of the driver if they exercise no control over Mm further than to indicate the route they wish to travel or the places to which they wish to go. If he is their agent so that Ms negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned, and responsibility to third parties would attach to tliem for injuries caused by his negligence in the course of his employment But, as we have already stated, responsibility can not, within any recognized rules of law, be fastened upon one who has in no way interfered with and con- trolled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. And in Jones v. Corporation of Liverpool (14 Q. B. D., 890), cited with approval by Justice Field in the above case, the corporation owned a water cart and contracted with a Mrs. Dean for a horse and driver that might be used in watering the streets. The horse be- longed to her, and the driver she employed was not under the control of the corporation otherwise than that its inspector directed him what streets or portions of streets to water. Such directions he was required to obey under the contract with Mrs. Dean for his employ- ment. The carriage of the plaintiff was injured by the negligent driving of the cart, and he recovered a verdict "^which was set aside upon the gTOund that the driver was the servant of Mrs. Dean, who had hired both him and the horse to the corporation. This is a case in which there vs^'as a contract between a private individual, the OPINIONS OF SOLICITOB, DEPARTMENT OOMMEHCE AND LABOK. 39 owner of a horse, who furnished a driver, and a municipal corpora- tion represented by its inspector, and in so far as the latter directed the driver what streets to water, it is almost identical with the case under consideration, wherein the junior engineer, as agent of the Government, had similar authority to direct decedent where to go, etc., in the performance of the survey work, the only distinction being that the owner of the horse was not performing the work herself. From these cases it is seen that the test generally applied in an- swering the question. Who are independent contractors ? is " inde- pendence of control in employing workmen and in selecting the means of doing the work." Moll, on Independent Contractors and Employ- ers' Liability, at page 30 of his work, citing numerous authorities in support, lays down the rule as follows: The proper criterion by whicli to determine whether in a given case the relation of master and servant exists is found in the right of the master to order and control the other in the performance of work. A master is one who not only prescribes to the worlimen the end of his work, hut directs, or at any moment may direct, the means also; or as it has been put " retained the power of controlling the work." Again it Is said the true test by which to determine whether one v^ho renders service for another does so as a contractor or as a servant is to ascertain whether he renders service in the course of an independ- ent occupation in which he represents the will of his employer only as to the result of the work and not as to the means by vchich it is accomplished. The accepted doctrine is that in eases vs^here the essential object of an agreement is the performance of work the relation of master and servant will not be predi- cated as between the party for whose benefit the worli; is to be done and the party who is to do the work unless the former has retained the right to emercise control over the latter in respect to the manner in which the irorlc is to 6e executed. * * * This attribute of the relation (i. e., control) supplies * * * the single and universally applicable test by wliich the servants are distinguished from independent contractors. The fact that the launch, in this instance, happened to be in the service of the United States and that the owner was himself perform- ing the work required to run it instead of an agent who would, un- doubtedly, not have been an employee of the Government (case of Lipscomb, C 2418^ Jan. 14, 1908), does not change decedent's status as owner and independent contractor. Moll, at page 70 of his work, in further considering who are independent contractors, and speak- ing with reference to the obligation of personal performance as a test, says that " if the terms of the contract are such as to indicate that the person employed may, if he so desires, perform the stipulated work by deputy, it will usually be inferred that he is not engaged as a servant," and in this case it is seen that the contract specifically provides that " the boat is to be handled by the owner or his agent," leaving it discretionary with the owner either to perform the work in person or by, deputy. Under this provision it might be stated, incidentally, that the tjnited States would not have been liable in damages to a third party in the event of a collision resulting while the boat was in its. service. In Sproul v. Hemmingway (14 Pick., Mass., 1 ; 25 Am. Doc, 350) , where a vessel in tow of a steamboat employed in the business of towage, through the negligence of tlie master and crew of such steamboat, came in collision with another vessel and the owner of the towed vessel was sued in damages, Shaw, C. J., said: The case most nearly resembling this, perhaps, is that of a vessel chartered, where for a certain time the whole use and benefit of the ship is transferred to 40 workmen's compensation undee act oe may 30, 1908. the charterers, but the officers are appointed and the crew engaged and sub- sisted by the owners, in which case it is held that the owners, and not the charterers, are responsible to third persons for any damage occasioned by the negligence of the officers and crew. The United States Supreme Court, citing this case in Sturgis v. Beyer (24 Howard, 123), said: By employing a tug to transport their vessel from one point to another the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug, or ship the crew ; nor can they displace either the one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the lug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in navigation. Th§ fact of ownership of the launch indicates that decedent was in business for himself — ^held himself out for hire to anyone requiring the services of a launch. He was in an independent business, ready and willing at all times to serve the public on the same basis as any other public licensed carrier for hire, which in itself is sufficient to justify the conclusion that it was not his intention to part with con- trol of his boat or his agent, had such agent been placed in charge and, under the terms of this agreement, been subsisted and paid by him. In this connection this office is advised informally by the Chief of the Division of Accounts of the War Department that the decedent was not carried upon the pay roll of the department in any capacity; that payment was made on vouchers for the use of the launch, re- gardless of the identity of the person or persons operating it, and that if an agent had been acting for the owner and the latter had failed to pay him his wages, he would not be considered, under the terms of the agreement, as having any claim against the Government for such unpaid wages for the reason that he would not be deemed an em- ployee of the department. If, therefore, such agent would not be an employee of the department, it is not seen how the owner could be considered as such since, under the terms of the contract, he would be in no better position than his agent. After a careful consideration of the facts of the case, in the light of the authorities referred to, I am inclined to the opinion that the decedent Avas an independent contractor and not an employee or servant, and for this reason he is not to be considered as having been "employed by the United States" as contemplated by section 1 of the act. III. "AS AN ARTISAN OR LABORER." 1. An employee designated a messenger but engaged in work of the lahoring class is a laborer. [In re claim of S. J. Mulllns, Oct. 5, 1908; No. 21.] It appears from the reports submitted that the claimant is em- ployed as a messenger at the Watervliet Arsenal, with compensation at the rate of $1.76 a day, and that on August 19, 1908, while caring for a horse in the stables connected with the arsenal, the horse kicked him, causing injuries which disabled him for a period of 15 days. OPINIONS OF SOLICITOK, DEPARTMENT COMMBKCE AND LABOR. 41 The question presented is as to whether the claimant's occupation brings him within the provisions of the injured employees' compensa- tion act. Among those enumerated in the first section of the act as being entitled to the benefits thereof are those employed- by the United States as artisans or laborers in any of its arsenals. The claimant's designation is that of "messenger." It is assumed that he was ap- pointed as a messenger and is on the pay rolls as a messenger. But at the time of the accident he was in the stables caring for a horse, and his superior officer, on Form C. A. 1, states that the accident arose in the course of his employment. The claimant also states, on Form C. A. 4, that the injury was received in the course of his employment. There appears to be no reason to doubt that it was a part of the claimant's duty to care for one or more horses; that he performed this duty under the direction of his superior officer; that it was while in the discharge of this duty that the injury was sus- tained, and that the injury, was not due to any negligence or mis- conduct on the part of the claimant. The work of caring for horses is the work of a laborer. The fact that the claimant was designated as a messenger is not material. The statute does not attempt to limit its operation to persons holding certain designated places or positions. It applies to artisans and laborers ; and whether they be appointed and paid as machinists, brass finishers, ordnance men, messengers, or what not, should not affect their right to compensa- tion under the act. I am of opinion, therefore, that the claimant is an " artisan or laborer " within the meaning of the act, and as such entitled to its benefits. [In re claim of Albert Donaldson, Jan. 31, 1911 ; No. 5704.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. The occupation of claimant is shown to be that of a messenger, and at the time of the injury he was driving a delivery wagon of the Printing Office. In the case of Blaine (C 164, Bu. 721) the Govern- ment Printing Office was held to be a manufacturing establishment ; in the cases of Mullins (C 21, Bu. 69) and Adler (C 232, Bu. 889) a messenger was held to be an " artisan or laborer," and in the Nicholas case (C 1636, Bu. 140) it was held that a laborer of the Philadelphia depot, who was. injured in loading a truck away from the depot at a wharf on the Delaware Eiver, was entitled to compensation. Under the rulings of the above-mentioned cases, and for the reasons therein stated, it appears to me that claimant is an artisan or laborer employed in a manufacturing establishment of the United States, and I am, therefore, of the opinion that his occupation comes within the scope of the compensation act, for which reason, the claim being otherwise proper, the same should be approved for payment. [In re claim of Jolin Jacligon, Feb. 4, 1911 ; No. 5298.] The above claim is submitted to this office with special reference to the following questions : Is the occupation of .the decedent within the scope of the act? Are the claimants dependent parents within the meaning of the act ? 42 workmen's compensation under act of may 30, 1908. The decedent was a boy, 14 years of age, employed as a messenger in the construction and engineering department in the Canal Zone and received $30 a month wages. While the question whether or not an employee is an artisan or laborer is to be determined independently of any special designation given to the position he holds, ordinarily the occupation of messenger is that of an artisan or laborer. (See MuUins case, C 21, Bu. 69.) That the case of this boy presents no exception to the general rule sufficiently appears from the duties required of him, He operated a telephone and worked as a mes- senger at a booth located near a junction of a certain dump track of the Canal Commission with the Panama Railroad line, and he re- ported to the dispatcher trains passing that point and delivered to the train crews such orders as were given him by the dispatcher or yardmaster. He was killed in crossing the tracks. Nor, it is thought, can there be any doubt as to the hazardous nature of his occupation. The claim is filed by the parents, and it appears that the property owned by them is valued at $2,200, and that their total income from all sources during the year preceding the death of their son amounted to $1,500. It further appears that $150 of this income was contrib- uted by the decedent, who regularly turned over a certain amount every month to his mother, who used it to help defray general house- hold expenses for a family consisting of the two parents, three daughters, and another son. As pointed out in the previous opinion in the Branch case (C 2091), "the fact of dependence is sufficiently established if a condition of only partial dependence is shown * * *. A person may have been no less dependent upon the de- ceased because of his dependence, in part, upon others * * *. The claimant's standard of living is not to be critically inquired into, to say whether, with the earnings of the deceased workman, the family was above or below the standard. Neither is it material to ascertain the minimum at which the claimant can be maintained * * * ^hat the family was, in fact, earning, what the family was, in fact, spending, is, however, a pertinent inquiry, and whether the contributions of the deceased constituted a part of the claimants' income or means of living has been held to be a test of dependence." In a House of Lords case, it was held that where a boy paid his wages to a common fund, which, after providing for his keep, left a surplus which went to the maintenance of his family, on his being killed, his father was entitled to. compensation as being in part de- pendent upon his earnings. (Davis v. Main Colliery Co., A. C, 358.) Whatever may be said as to the dependence of the father in the pres- ent case, it seems clear that the mother, at any rate, is a dependent parent within the meaning of the act, especially inasmuch as it ap- pears from the record that the mother has no income of her own. For these reasons, therefore, it is thought that the claim of the mother has been established and should be allowed. 2. A clerk engaged in office work is not an artisan or laborer. [In re claim ol E. V. Alcee.Oct. 26, 1908; No. 53.] I have examined the above claim, submitted to this office with special reference to the questions whether a clerk in the employ of the United States, under the Isthmian Canal Cotrnmission at Panama OPINIONS OF SOLICITOR, DEPARTMENT COMMERCE AND LABOR. 43 comes within the provisions of the act of May 30, 1908, and whether the negligence shown was sufficient to bar the"claim. The act applies only to artisans and laborers, and as to artisans and laborers under the Isthmian Canal Commission it applies only to such as are in hazardous employment. The claimant in this case was a clerk and not an artisan or laborer, and the report of the division engineer on Form C. A. 1 states that the accident did not arise out of or in the course of his employment. I am of opinion, therefore, that the act does not authorize compen- sation in this case. In view of the conclusion here reached, it is, of course, unnecessary to consider the question of negligence. [In re claim of G. K. La Mire, Nov. 23, 1908; No. 163.] I have examined the above claim submitted to this office with special reference to the question whether the claimant's occupation should be regarded as " hazardous employment," and falls within the scope of the act of May 30, 1908. The papers submitted, consisting of printed Forms C. A. 1 and C. A. 4, show that the claimant was a clerk acting as postmaster, and that while going for mail he was struck by a train. The act applies only to artisans and laborers. There is nothing in the record submitted to show that the claimant was employed as an artisan or laborer. Therefore, his occupation can not be regarded as falling within the scope of the act. In view of this conclusion it is not necessary to consider the question of " hazardous employment." [In ro claim of T. G. rrioleau, Jan. 19, 1911; No. 5016.] The above claim is submitted to this office with special reference to the question whether the decedent's occupation comes within the scope of the act of May 30, 1908. The occupation of decedent is shown to be that of a clerk (prop- erty), at a salary of $135 per month, and the, duties performed by him " consisted of visiting the various suboffices, work, and items of floating plant, inspecting, counting, and checking all public prop- erty." The provisions of the compensation act apply only to artisans or laborers, and in order to entitle a claimant to compensation on ac- count of injuries received in the course of employment it must be shown that the duties of the occupation are such as are performed by artisans or laborers. In this case, it is seen that the services performed consist of inspect- ing, counting, and checking all public property under the control of the river and harb.or works of the district where decedent was employed. So far as is apparent from the foregoing, there is nothing to indicate that the character of work comes within the classification of either an artisan or a laborer. Since there is nothing in the record in this case which indicates that decedent performed manual labor and as his duties were of a clerical nature I am of the opinion that the occupation does not come within the scope of the compensation act, for which reason the claim can not be approved. 44 workmen's compensation under act of may 30, 1908. [In re claim of J. J. Corrigan, jr., Apr. 30, 1912; No. 8227.] This case is submitted with the inquiry whether the occupation of claimant comes within the scope of the act of May 30, 1908, and the amendments thereto. It is observed from the record in the case that the occupation of claimant is given as " recorder," and from the statement of his superior officer, dated April 11, 1912, it is shown that his duties con- sist of " entering in a notebook notes of survey work of the party to which he is assigned, reducing soundings, and assisting occasionally in platting notes." From the foregoing description of the work performed by claim- ant, it is readily apparent that the character of his duties is purely clerical. The act of May 30, 1908, which has not been changed by subsequent amendments, so far as the present claim is concerned, ap- plies only in the case of injuries sustained by a person " employed * * * as an artisan or laborer." The question presented, there- fore, is whether a person employed as a recorder is a person employed as an artisan or laborer within the meaning of the act. The duties performed in this instance are in part largely of the same character as those performed by a transit man, which occupa- tion was given careful consideration in the case of John M. Grant (C 2613, Bu. 6160). In that case, in addition to operating a transit, it was necessary for the claimant in performing his duties to make notes of his measurements and, later on, to work out and compute the same, which latter work is technically known as platting. In this case, however, the only portion of that work performed by claimant is the clerical part, and as it was decided that the applicant in the Grant case was not an artisan or laborer within the meaning of the act, the same conclusion is applicable here with greater force, since no part of the work requires what is commonly called manual labor in its performance. In view of the foregoing, I am of the opinion that the occupation of claimant, as shown by the record, does not come within the terms of the act, for which reason the claim should be disapproved. 3. A sailor working on a dredge and assisting in dredge work is a laborer. [In re claim of L. T. Zacias, Nov. 28, 1908; No. 145.] This claim is based op the loss of a leg and injury to the other leg incurred on September 17, 1908, while working at La Boca, Canal Zone, as a sailor on the dredge Gopher. The head hoist chain parted on the top of the main winch and the bight of the chain struck the claimant, cutting off one leg and injuring the other to such an extent that it must be amputated. The accident was reported as occurring solely because of poor mate- rial in the chain, and in the course of claimant's employment, without negligence or misconduct on his part. The case is submitted with ref- erence to the question ^yhether the occupation of sailor in this case falls within the class of " artisans or laborers " under the act of May 30, 1908. The Standard Dictionary, as well as Webster's, makes the word sailor synonymous with seaman. A sailor or seaman is, generally speaking OPINIONS OF SOLICITOR, DEPAETMENT COMMEECE AND LABOR. 45 a man whose occupation is to assist in the management of ships at sea. A laborer, as defined by Webster, is one who works at a toil- some occupation. A laborer is one who labors with physical power, and under the direction of another, at fixed wages. (Kansas City v. McDonld, 80 Mo. App., 444, 448.) A laborer is one who performs manual labor. (In re Ho King, 14 Fed., 724, 725, and numerous State cases.) Measured by these definitions, seamen are certainly laborers. Moreover, this accident occurring on a dredge to a man assisting in its operation, makes claimant's employment at the time of the accident in the nature of a laborer's employment irrespective of the fact that he was rated and paid as a sailor. It is my opinion, therefore, that claimant is a laborer, under the act of May 30, 1908, and that his claim has been established. [In re claim of Marcus Vulicas, Dec. 11, 1908; No. 231.] It appears from the papers submitted in the above claim that the claimant was employed as a " sailor " on a dredge employed in the Isthmian Canal -work when he was injured by an accident which occurred on October 16, 1908, and the claim is submitted to this office with special reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. Following the reasoning indicated m my memorandum of Novem- ber 28, 1908, in the case of Leonidas T. Zacias (Bu. No. 433), which involved the same question, I have to advise that the claimant herein was a laborer within the meaning of the act, and that, as such, he is entitled to the benefits thereof. 4. An employee appointed as a special laborer-messenger engaged on laborer or messenger work except when detailed to clerical work is a laborer. [In re claim ot Frank Adler, Dec. 15, 1808 ; No. 232.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation brings him within the scope of the act of May 30, 1908. The occupation of the claimant is given as "special laborer-mes- senger." In the certificate of official superior the following state- ment is made : Mr. Adler was detailed to clerical duty in the office of the master steel maker, and, on the day of the accident, he went in the acetylene gas plant to get. a job order for a man on duty. The explosion occurred at the time he was in the acetylene gas plant and he received injuries as described herein. Thus it appears that while the claimant was employed as a laborer or messenger he was detailed to do clerical duty, but that at the moment of the accident he was doing the duty of a messenger, though it was a duty which might properly be performed by a clerk. In the case of Simon J. Mullins (Oct. 5, 1908; Bu. No. 69), it was held by this ofiice that the designation of an employee does not determine whether or not the act applies to him ; that the controlling factor is the character of the work performed. If a person is ap- pointed and paid as a laborer but is assigned to duties of a clerical nature, he is, to all intents and purposes, a clerk and not a laborer 46 workmen's compensation under act of may 30, 1908. while he is so engaged, and the act does not apply to him. But sup- pose a clerk be engaged, under the direction of his superior officer, in some duty -which properly belongs to the class of work usually performed by laborers, would the act then apply to him? I am in- clined to think it would, though no general rule to this effect could be laid down. Each case must be determined with reference to the circumstances attending it. In the present case the facts stated do not ma;ke it clear that the claimant's assignment took him out of the " laborer " class, to which he was appointed, and put him in the "clerk" class, (ioing "to get a job order for a man " is a duty which may be that of a clerk or that of a laborer or messenger. If the claimant's status was that of clerk, the fact that he went on an errand, even though it was pursuant to an order of his superior, would not, in my opinion, make him a laborer within the meaning of the law. But where a person is appointed and paid as a laborer or messenger and is assigned to do clerical work, but is, at the same time, expected and required to per- form duties usually and naturally belonging to a laborer or mes- senger, I do not think he should be regarded as having been removed from the " laborer " class to the " clerk " class so as to deprive him of the benefits of the act. I think we may reasonably indulge the pre- sumption that he was acting in the capacity as laborer except when he was actually engaged in clerical work. Whatever view is finally taken as to the application of the law to this claimant, the reasoning must appear to be highly technical, and I am free to say that I hesitate to recommend the disapproval of the claim unless compelled by the circumstances of the case to do so. The evidence submitted does not show with sufficient certainty the status of the claimant at the time of the accident. I have to sug- gest, therefore, that the Navy Department be asked for a definite statement as to the claimant's original appointment, when and by what authority he was detailed to do clerical duty, whether the pur- pose of the detail was permanent in character or merely temporary, whether the detail removed him from the immediate control or direc- tion of one superior and placed him under another, whether his duties after the detail were of a clerical character exclusively, in the same sense as are the duties of those who are employed as clerks, or whether he was still expected and required to do the work of a laborer or messenger. [In re claim of Frank Adler, Jan. 12, 1909; No. 232.] AVhen the above claim was presented to this office in December, 1908, I expressed the opinion, under date of December 15, 1908, that the facts disclosed were not sufficient to justify a conclusion as to whether the occupation of the claimant brought him within the provisions of the act of May 30, 1908, and suggested that the Navy Department be asked for certain additional information. In ac- cordance with this suggestion, a letter was addressed to the Secretary of the Navy, who replied under date of December 22, 1908. This reply did not give the specific information asked for, but merely stated "that Mr. Adler is a classified employee, appointed after examination and certification by the United States Civil Service OPINIONS OP SOLIOITOE, DEPARTMENT COMMEKCE AND LABOE. 47 Commission, and is not an artisan or laborer as referred to in the act of May 30, 1908," and expressed the opinion that he was not entitled to compensation for the injury sustained. While the conclusion of the Secretary of the Navy may be per- fectly correct, it does not satisfy the provisions of the law. Sec- tion 4 of the act provides, in effect, that the Secretary of Commerce and Labor shall determine from the facts submitted to him whether or not the claim has been established. Unless, therefore, the Secre- tary of Commerce and Labor has before him all the facts which he deems necessary to enable him to form a correct judgment inde- pendent of any other judgment, the claimant may feel that he has not been given that hearing which the law contemplates. Therefore I have to renew my suggestion* that the Secretary of the Navy be requested to submit to this Department all the facts which may be pertinent in the determination of the question whether the claimant was, at the time of the accident, employed in the capacity of a laborer or artisan within the meaning of the act. [In re claim of Frank Adier, Mar. 23, 1909 ; No. 232.] The above claim is resubmitted to this office with additional in- formation requested by the Secretary in his letters addressed to the Secretary of the Navy under date of December 18, 1908, and Jan- uary 18, 1909, respectively. In my opinion of December 15, 1908, submitted in this case, I said : In the present case the facts stated do not make it clear that the claimant's assignment took him out of the " laborer " class, to which he was appointed, and put him in the " clerk " class. Going " to get a job order for a man " is a duty which may be that of a clerk or that of a laborer or messenger. If the claimant's status was that of a clerk, the fact that he went on an errand, even though it was pursuant to an order of his superior, would not, in my opinion, make him a laborer within the meaning of the law. But where a person is appointed and paid as a laborer or messenger and Is assigned to do clerical work, but is. at the same time, expected and required to perform duties usually and naturally belonging to a laborer or messenger, I do not think he should be regarded as having been removed from the " laborer " class to the "clerk" class so as to deprive him of the benefits of the act. I think we may reasonably indulge the presumption that he was acting in his capacity as laborer except when he was actually engaged in clerical work. From the letter of the Assistant Secretary of the Navy, under date of February 18, 1909, it appears that the claimant was appointed as a special laborer-messenger boy, and that "upon authority of the United States Civil Service Commission, messenger boys at navy yards and stations are assigned clerical work in addition to their regular messenger duties with the idea that they will eventually he promoted to clerhships^ provided they pass the necessary tests pre- scribed by the Civil Service Commission." The claimant was not a clerk, then. He was still required to do the work of a laborer or messenger. He was given certain clerical duties to perform with the idea that he might eventually be pro- moted to a clerical position and in order to train him for such posi- tion. He had not, however, been promoted to such position, and it was not expected that he would be until after he should pass an examination. It is clear that he had not been removed from the laborer class to the clerk class. 48 woekmen's compensation undek act op may 30, 1908. I have to advise, therefore, that, in my opinion, the claimant was, at the time of the accident, a laborer within the meaning o± tue act of May 30, 1908. [In re claim of Frank Adler, May 27, 1909; No. 232.1 This claim was, under date of April 3, 1909, approved by the Sec- retary of Commerce and Labor. This approval was transmitted through regular official channels to the " paymaster of the yard, who, I assume, is the proper disbursing officer through Avhom the claimant receives his pay. The claimant, under date ot April 29, 1909, submitted a certificate of disability, which was also transmitted to the paymaster of the yard. This officer, under date of May 5, 1909, referred the certificate of disability to the commandant with the following indorsement: 1. The fact that the beneficiary of this certificate is a special laborer (mes- senger boy) raises a doubt in the mind of the paymaster of the yard upon the question of his being entitled to compensation under the act of May 30, 1908. 2. It is respectfully requested that an expression of opinion be obtained from the Bureau of Supplies and Accounts or, if the bureau deems it necessary, from the Comptroller of the Treasury upon this question. 3. It is to be noted that the law specifies artisans and laborers only as bene- ficiaries and that, while full power is given the Secretary of Commerce and Labor to adjust and approve claims of those who are covered hy the act, there does not seem to be any discretion allowed as to the class of employees to be benefited. In short, it must appear that the claimant Is an artisai. or laborer before his case can come before the Secretary of Commerce and Labor as a possible claim under the a-ct of May 30, 1908. If this condition is fulfilled, then the ease is to be handled under such regulation^ as the Secretary of Com- merce and Labor may prescribe. The claim is again submitted to this office with special reference to the suggestions contained in this indorsement, and the naval con- structor, in an indorsement dated May 11, 1909, invites special atten- tion to his indorsement of February 16, 1909, made in response to our Department letter of January 18, 1909. The indorsement of February 16, 1909, to which the naval constructor refers, was. incor- porated in the letter of the Assistant Secretary of the Navy addressed to this Department under date of February 18, 1909, and was given due consideration by the Secretary of Commerce and Labor when the claim was finally considered upon its merits. The Secretary of Commerce and Labor having passed upon the merits of the claim and having approved it in accordance with the provisions of section 4 of the act of May 30, 1908, if the disbursing officer to whom the claim is presented for payment is in doubt as to his authority to pay the same, it is his right to apply to the Comp- troller of the Treasury for a decision under section's of the act of July 31, 1894 (28 Stat., 208), which reads as follows: Disbursing oflicers, or the head of any Executive Department or other estab- lishment not under any of the Executive Departments, mav apply for and the Comptroller of the Treasury shall render his decision upon any qxfesHo/? ™iv Ing a payment to be made by them or under them, which decision Zhlr^^lr,' dered, shall govern the Auditor and the Comptroller of the Treasure • . upon the account containing said disbursement. ^ ^^ passmg Attention is also invited to 1 Comp. Dec, 349. I have the honor to recommend that the " certificate of disabTt " be returned to the Navy Department, with a letter invitino- att ^ \- to the act of July 31, 1894, and the decision above referred^o. '^ OPINIONS OF SOLICITOB, DEPARTMENT COMMERCE AND LABOR. 49 [In re claim of Prank Adler ; No. 232.] DECISION or THE COMPTROLLER OF THE TREASURY. [15 Comp. Dec, 845.] Treasury Department, Office of CoMPrROLLER of the Treasury, Washington, June 19, 1909. Sir: By your communication of the 10th instant you request my decision of the question whether Frank Adler, special laborer (mes- senger boy), manufacturing department, navy yard. New York, is entitled to compensation under the act of May 30, 1908 (35 Stat., 556) , while incapacitated from work by reason of injuries resulting from an accident occurring in the course of his employment from October 24, 1908, to November 14, 1908— 20J days. The claim for compensation appear* to have been approved for payment by the Secretary of Commerce and Labor, but you seem to doubt whether a special laborer (messenger boy) is a laborer within the meaning of the act of May 30, 1908, and as such entitled to the benefits of said act. Whether or not the said Frank Adler was " a laborer " within the meaning of that term as used in the act of May 30, 1908, was a question of law to be decided by the Secretary of Commerce and Labor in determining whether " a claim for compensation is estab- lished under this act." His decision in such case is within the rule stated by the Supreme Court in the case of Bates & Guild Co. v. Payne (194 U. S., 106, 109) , as follows : That where the decision of questions of fact is committed by Congress to the judgment and discretion of the head- of a department, his decision thereon is conclusive ; and that even upon mixed questions of law and fact, or law alone, his action will carry with it a strong presumption of its correctness, and the courts will not ordinarily review it, although they may have the power and will occasionally exercise the right of so doing. This claim has been approved for payment by the Secretary of Commerce and Labor after a full knowledge of all the facts that have been submitted to this oiRce, and a decision by me would amount to a review of his decision. It would seem that if the courts will not ordinarily review the decision of the head of a department on a question of law alone submitted to his judgment and discretion that this office ought not to do so, unless there has been a clear abuse of the discretion granted. Whether or not a special laborer (messenger boy) is a " laborer " within the meaning of the act of May 30, 1908, is an open question and one coming fairly within the discretion of the Secretary of Com- merce and Labor to decide, and one which he has decided. A de- cision by me on the same question could have no other effect than to review and reverse or affirm the decision made by the Secretary of Commerce and Labor on a question committed by Congress to his judgment and discretion to decide. The decision being one coming within the duties committed to the Secretary of Commerce and Labor requiring the exercise of judgment and discretion, his de- cision 'thereon is^conclusive on the accounting officers, unless he has 63051°— 12 4 5,0 workmen's compensation under act oj^^ may 30, 1908. exceeded his authority or his action is clearly wrong. (See case of Bates & Guild Co. v. Payne, supra, p. 109, and cases there cited.) In the absence of a statement showing the duties that Frank Adler, special laborer (messenger boy), was required to perform, I am not prepared to say that the Secretary of Commerce and Labor exceeded his authority in holding that he was a laborer within the meaning of the act of May 30, 1908, or that his decision is clearly wrong. As to the necessity for a clear statement of the duties performed, where they are not manifest from the official designation, in order to raise a question of law upon which I might question the decision of the Secretary of Commerce and Labor in any particular case. (See 26 Op. Att. Gen., GOJ:; id.. 605; id., 622; id., 623.) In the absence of any showing by you that the duties performed by the employee in question were not those of a laborer within the meaning of the act of May 30, 1908, it will be presumed that the finding of the Secretary of Commerce and Labor that they were was correct. If the claim is otherwise correct, you are authorized to pay it. Respectfully, R. J. Teacewell, Comptroller. The honorable the Secretary or the Navy. 5. A policeman or watchman falls within the laboring class, as distinguished from the leisure, professional, business, official, or clerical classes, and is a laborer. [In re claim of J. P. Golden, Jan. 5, 1909 ; No. 303.] The claimant is a policeman employed in the Canal Zone under the Isthmian Canal Commission. On October 17, 1908, while on duty, he attempted to remove a box from the sidewalk, when, with- out negligence or misconduct on his part, he slijiped off the sidewalk and fell a distance of about 8 feet, and was so injured as to prevent him from resuming his duties for a period of more than 15 days. The claim is presented to this office with special reference to the question, whether the occupation falls within the scope of the act of May 30, 1908. Two questions are involved in this : First, is a policeman a laborer within the meaning of the act? Second, is the occupation of a police- man hazardous within the meaning of the act? (As to whether a policeman's occupation is hazardous, see balance same opinion, p. 122.) Numerous statutes have been enacted in reference to laborers, and the courts have frequently been called upon to interpret the words " labor " and " laborer " as used in these statutes. The principal stat- utes of this character in this country are those relating to mechanics' liens, exemptions, garnishments, labor performed on Sunday, the Chinese exclusion acts, and the contract-labor laws. The aims and purposes of these various statutes are so widely different that it would be difficult to formulate from the decisions based thereon a definition of the word " laborer " which could be applied in all cases and which would satisfy the intent of the legislature in each case. Even in ap- plying statutes enacted for the same general purpose, as, for instance, the mechanics' lien laws, passed in the several States, the courts of these several States have held the word " laborer " to include in one State the classes excluded in another. OPINIONS OF SOLICITOR, DEPAETMENT COMMERCE AND LABOR. 51 As stated by Chief Justice Greene, of Washington, in the case of Lee Yip, reported in the Seattle Chronicle of January 4, 1883, and quoted hj Judge Deady, of the District Court of Oregon, in the case of Ho King (14 Fed. Rep., 724), referring to the word " laborer " : The term has been used in common English speech time out of mind, and in the statutes of English-speaking people from the first statute of laborers of 23 Edw. Ill till to-day to denote a comprehensive, varied, and varying class in society, rather difBcult accurately to define. * * * Etymologically, a laborer is one who labors. He may labor physically or mentally, gratuitously or for reward, for himself or for another, freely or under control. However he labors, he is in the broad sense n laborer. But that sense is never imputed in ordinary speech or writing unless there is something in the context or the circumstances to imply that it is intended. All that can be gathered from the various judicial decisions in re- sjaect to the word " laborer " is that it refers to a " varied and vary- ing class in society." What may be included within this class depends upon the connection in which the word laborer is used, and the pur- pose of the statute or instrument in which it appears as that purpose may appear to the court or officer whose duty it is to announce the meaning of such statute or instrument. Referring to the act of 1892, limiting the hours of service of " laborers and mechanics," and dis- cussing its application to the work being done in the construction of the Panama Canal, the Attorney General held (25 Op. At. Gen., 441) that the act did not apply to the office force of the Isthmian Canal Cominission stationed on the Isthmus of Panama, or to any of the employees of the Government who are not within the ordinary mean- ing of the words " laborers and mechanics." In an earlier opinion (20 Op. At. Gen.,. 487) it had been held that the determination of who were, and who were not " laborers " or " mechanics " within the meaning of the act did not, as a question of law, devolve upon the Attorney General, but that it was a Ttnatter of administration. The administration of the act of May 30, 1908, is placed in the hands of the Secretary of Commerce and Labor, and the question as to what persons and occupations are to be considered as coming within the description " artisans and laborers " is one to be determined by him. Under the Chinese exclusion laws, an actor, a Chinese merchant's daughter who did sewing but not for a living, and a proprietor of laundries who occasionally ironed a shirt, were held not to be laborers (in re Ho King, 14 Fed. Rep., 724; Yung Sing Hee, 36 Fed. Rep., 437; U. S. i-.'Kol Lee, 132 Fed. Rep., 136), while it was held that the term "laborer" was broad enough to include gamblers, highbinders, and prostitutes. (U. S. v. Ah Faun, 57 Fed. Rep., 691; Lee Ah Yin tj. U.S., 116 Fed. Rep., 614). Under the contract labor laws, a window draper or dresser for a dry goods store was held to be a " skilled laborer " and not within the meaning of the law as it stood in 1899. (U. S. v. Gay, 95 Fed. Rep., 226). In the Trinity Church case (143 U. S., 457), it was held that the contract labor laws did not apply to a clergyman, and the Solici- tor of the Treasury held (June 25, 1896) that they did not apply to a prostitute. In U. S. v. Thompson (41 Fed. Rep., 28-29), it was held that a milliner was a laborer and not an artist. The Attorney General held (23 Op. At. Gen., 381) that a draftsman described as a lace maker was a skilled laborer, and excluded. In T. D. No. 15276 it was held that a property man at a theater was a laborer. 52 workmen's compensation UNDEK act of may 30, 1908. Within the meaning of an exemption statute, the oiRcial services of the mayor of a city were held to be labor (Robinson v. Aiken, 39 N. H., 211), while public officers employed in a State penitentiary were held to be not laborers within an eight-hour law. (State v. Martindale, 47 Kan., 147.) Under mechanics' lien laws, it has generally been held that an archi- tect was not a laborer, though in a case where he not only made the plans but superintended the construction of a building he was held to be a laborer. (Notes on p. 72, vol. 18, A. & E. Ency. of Law, 2d ed.) Within a statute exempting the wages of a laborer from garnish- ment, it was held that a conductor was not a laborer (Miller v. Dugas, 77 Ga., 386), but a street car conductor was held to be "laboring" in violation of a law prohibiting labor on Sunday. (Day v. Highland St. E. Co., 135 Mass., 113). In construing the English employers' liability act of 1880, it was held that an omnibus conductor was not a laborer (Morgan v. The London Gen. Om. Co., 13 Q. B. D., 832). So, also in Cook v. No. Met. Trans. Co. (18 Q. B. D., 683) , it was held that a street car driver was not a laborer within the English em- ployers' liability act of 1880. Although it was held in the two English cases above cited that street car conductors and drivers were not laborers within the English employers' liability act of 1880, it is to be noted that this conclusion rested upon the particular language of that act. The act of 1880 was read in connection with the earlier act of 1875. The classes enumerated were, " laborer, servant in husbandry, journeyman, arti- ficer, handicraftsman, miner, or otherwise engaged in manual labor.'''' The court in effect held that the words " otherwise engaged in manual labor " showed that only those engaged in manual lahor wiere meant; that Tnanual labor means "labor performed by hand," and that as the conductor " did not lift the passengers into and out of the omnibus," he was not engaged in manual labor, and was not there- fore a laborer within the meaning of the act. The act of May 30, 1908, by its terms, applies to " artisans and laborers." There is no necessity of distinguishing between an artisan and a laborer. The act applies to one as well as the other. There is nothing to indicate that it applies only to those engaged in manual labor, as defined by the English court. In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two houses of Congress, I am of opinion that the words "artisans and laborers" were used to indicate a class of persons commonly referred to as the "laboring class," as distinguished from the leisure, professional, business, and official or clerical classes. The measure was urged by labor organizations generally. A policeman is not of the business or professional classes, nor can he be said to belong to the leisure class, as that term is usually employed. It is true that a policeman is called an officer, but not in the sense of having direction of any part of the work of the Government. The policy and work of the Government is directed by the Cabinet officers through the heads of the various bureaus and branches of the service and the clerks who make and keep the records of the directions under which the work is performed The occupation of a policeman seems to place him very naturally in that class of persons known as the " laboring class," and to which I think the act was intended to apply. In the case of James Nellis OPINIONS OF SOLICITOR, DEPAETMENT COMMEECE AND LABOK, 53 (Nov. 27, 1908; Bu. No. 597), I expressed the opinion that a member of the fire department under the civil administration of the Isthmian Canal Commission was within the scope of the act. This conclusion was not based upon the fact that the occupation of a fireman involves at times physical, exertion so much as upon the view that I entertain that he belongs to th-at class known as the laboring class. But whether we take the view that the physical exertion sometimes neces- sary to be employed or the status occupied in the structure of society should determine the application of the act, it. seems that it ought to apply to a policeman as well as a fireman, for a policeman must, at times, exert his physical powers. [In re claim of B. G. Pedrick, Jan. 20, 1909 ; No. 311.] I have examined the above claim which has been referred to this office with special reference to the question whether the claimant's occupation falls within the scope of the act. The record submitted shows that the claimant in this case was employed as a shipkeeper in the Charlestown Navy Yard. The act of May 30, 1908, embraces, among others, persons, em- ployed by the United States as artisans or laborers in navy yards, and the only question to be determined then is whether the claimant is an artisan or laborer within the meaning of the act. In my opinion, dated January 5, 1909 (C 303, Bu. No. 1324), in the case of J. P. Golden, a policeman, I said : In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, I am of opinion that the words " artisans and laborers " were used to indicate a class of persons commonly referred to as the " laboring class," as distinguished from the leisure, professional, business, and official or clerical classes. ******* The occupation of a policeman seems to place him very naturally in that class of persons known as the " laboring class," and to which I thinls; the act was intended to apply. In the case of James Nellis (Nov. 27, 1908; Bu. No. 597), I expressed the opinion that a member of the fire department under the civil administration of the Isthmian Canal Commission was within the scope of the act. This conclusion was not based upon the fact that the occupation of a fireman involves at times physical exertion so much as upon the view that I entertain that he belongs to that class known as the laboring class. But whether we take the view that the physical exertion sometimes necessary to be employed or the status occupied in the structure of society should determine the application of the act, it seems that it ought to apply to a policeman as well as a fireman, for a policeman must, at times, exert his physical powers. The term "shipkeeper" is defined by the Century Dictionary as " a watchman employed to take care of a ship." It is clear that the claimant is a workingman and a member of the laboring class. Following the line of reasoning pursued in the case of Golden, above referred to, I conclude that the act applies to a watchman in a navy yard. I am of opinion, therefore, that the question submitted in this case should be answered in the affirmative. [In re claim of Sam Peffer, Jan. 27, 1909; No. 314.] I have examined the above claim submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. 54 workmen's compensation under act of may 30, 1908. The record submitted shows that the chiimant was injured while in the course of his employment as a watchman on Government dredge No. Ji., engaged on river and hiirbor work at Bowman, Mo., and as a result has been incapacitated for more than 15 days, as certified by the attending physician. The act embraces, among others, by express terms, persons em- ployed by the United States as artisans or laborers on river and harbor work. As stated in my opinion of October 5, 1908 (Bu. No. 69), in the case of S. J. Muliins, a messenger at Watervliet Arsenal, N. Y., in- jured in the course of his employment while caring for horses: The work of cariug for horses is the work of a laborer. The fact that the dnimaiit wiis designated as a messenger Is not material. The statute does not attempt to limit its operations to persons holding certain designated places or positions. It applies to artisans and laborers, and whether they be appointed and paid as machinists, brass finishers, ordnance men, messengers, or what not, should not affect their right to compensation under the act. And in my opinion of November 28, 1908 (Bu. No. 433), in the case of Leonidas T. Zacias, sailor on a dredge : This accident occurring on a dredge to a man assisting In Its operation makes claimant's employment at the time of the accident In the nature of a laborer's employment irrespective of the fact that he was rated and paid as a sailor. In the case of J. P. Golden, policeman (opinion Jan. 5, 1909, Bu. No. 1324), it was held that the claimant's occupation placed him in that class of persons known as the " laboring class,'" and for that rea- son fell within the scope of the act. In that opinion I said : In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, I am of opinion that the words "artisans and laborers" were used to indicate a class of ijersons commonly referred to as the " laboring class," as distinguished from the leisure, professional, business, and official, or clerical classes. In my opinion dated January 20, 1909 (Bu. No. 1107), in the case of Benjamin G. Pedrick, a ship keeper on the U. S. S. Vesuvius at the Charlestown Navy Yard, I quoted from the Johnson case cited above and stated that the claimant being indeed a watchman was a member of the laboring class, the class to which the act in question is intended to apply, and that his occupation, therefore, fell within the scope of the act. The question presented here is similar to that upon which the Pedrick case turned, and, following the same line of reasoning here- tofore pursued, I conclude that the act applies to a watchman em- ployed on river and harbor work. 6. A draftsman, whose duties resemble those of a clerk or artist, is not of the laboring class, and not a laborer. [In i-e cliiim of A. F, noeTes, Feb. 24, 1900 ;- No. 607.] The claimant is a draftsman employed at the Puget Sound Navy Yard. On January .4, 1909, while on board the steamship St. Louis engaged in taking dimensions for drawings of certain parts of the ship he fell and broke three of his ribs, and was disabled more than 15 days. The claim is submitted to this office with special reference OPINIONS OF SOLICITOE, DEPABTMENT COMMERCE AND LABOR. 55 to the (jiisiion whether the occupation of the claimant In-ings him within the scope of the act of May 30, 1908. A clerk is not an artisan or laborer within the act. See opinions in the cases of Evan V. Alcee (Oct. 26, 1908. Bu. No. 420), George E. La Mire (Nov. 28, 1908, Bu. No. 1017), and John P. Golden (Jan. 5, 1909, Bn. No. 1324). A draftsman's duties are more like those of a clerk or artist than like those of an artisan or laborer. Clearly, then, a draftsman does not come within tlie class of employees to which the act applies, and the approval of this claim could only be justified on the ground that, notwithstisnding his designation as a draftsman, he was, as a matter of fact, employed as a laborer or artiniin. In the case of Simon J. Mullins (Oct. 5, 1908, Bu. No. 69) I held that the designation or title under which a man is employed does not control the application of the act. It is the character of the work performed which controls. In the case of Frank Adler (Dec. 15, 1908, Bu. No. 889) I ex- pressed the opinion that if a person, appointed and jjaid as a laborer, be assigned to do clerical work, he is, while so engaged, a clerk to all intents and purposes, but if he be engaged in some work which as properly belongs to the occupation of a laborer as to that of a clerk, the particular work would not take him out of the " laborer " class and put him in the " clerk " class. So, conversely, if a person is ap- pointed and paid as a clerk, or to do clerical work, the mere fact that he might be engaged in some work which might properly belong to the occupation of a laborer would not necessarily take him out of jthe " clerk " class and put him in the " laborer " class. If he were assigned to do laborer's work the aspect of the case would be quite different. In the Golden case (Jan. 5, 1909, Bu. No. 1324) I expressed the opinion that the words " arftsans and laborers," as used in the act, referred to a class of persons commonly referred to as the " laboring class," as distinguished from the leisure, professional, business, and official or clerical classes. Following the reasoning indicated in the cases above refer^-ed to, I conclude that the controlling factor is the status of the injured em- ployee at the time of the injury, and where his appointment or designation seems to put him in one class and the particular work on which he was engaged seems to put him in another class, his real status, for the purposes of the act, can only be determined by a con- sideration,of all the circumstances of the case. The claimant, employed as a draftsman, was taking measurements of certain parts of a ship. His work might properly belong to a laborer or artisan, but it as properly belongs to a draftsman, and in the present case the claimant was doing the work as a part of his duties as a draftsman. There is no circumstance connected with the case which would justify the conclusion that the claimant was, at the time of the accident, removed from the " clerk " class and put in the " laborer " class. In an opinion dated January 28, 1901 (23 Op. At. Gen., 382), the Attorney General held that a " draftsman " described as a " lace maker" was a skilled laborer within the meaning of the contract labor laws. But the reasoning there indicated does not apply here. The contraet-labor law, as it then stood, was directed against the im- 56 workmen's compensation undee act of may 30, 1908. portation of aliens under agreement " to perform labor or service of any kind in the United States, its Territories, or the District of Columbia," and certain classes of persons, as ministers, lecturers^ etc., were expressly excepted. A draftsman coming to the United States under contract did come here to perform labor or service, and he was not a member of any of the excepted classes. In view of the law as I find it, I have the honor to advise that a draftsman injured while taking measurements on a ship for the pur- pose of making drawings therefrom is not entitled to compensation under the act of May 30, 1908. [In re claim of W. G. Moore, Sept. 23, 1909 ; No. 1781.] The above claim is submitted to this office with special reference to the question as to whether the claimant's occupation comes within the scope of the act of May 30, 1908. The claimant was regTilarly employed as a draftsman, but at the time of the injury he was at work in a photograph gallery, and in his affidavit he states that he was a (pnotographer) copyist drafts- man and at work in the" photo gallery." In the immediate report of the injury the following description is given of the accident: At work with large vertical camera; to steady the camera stand a pig of lead weighing about 100 pounds is used; in adjusting this weight it slipped from its position, falling about 2 feet, and striking wrist of right arm, causing severe strain and contusions. It appears that at the time of the accident the injured em- ployee was not engaged in the usual duties pertaining to the work of a draftsman, but rather that of a photographer. The claimant does not give exactly the same designation or title to the position in which he was employed as the reporting officer, but this is not very material, as it is the character of the work performed which controls. In the case of Albert 'F. Eeeves (C. 607, Bu. No. 1880) , which was quite similar to the present case, it was said : A draftsman's duties are more like-those of a clerk or artist than those of an artisan or laborer. Clearly, then, a draftsman does not come within the class of employees to which the act applies, and the approval of this claim could only be justified on the ground that, notwithstanding his designation as a drafts- man, he was, as a matter of fact, employed as a laborer or artisan. Even if the claimant should be considered to be employed as a photog'rapher it does not seem that he would be an artisan or laborer any more than a draftsman would be. I am therefore of opinion that the claimant was neither an artisan nor a laborer within the meaning of the law, and that the claim should be disallowed. [In re claim of H. L. Meeker, Feb. 3, 1911 ; No. 5135.] The above claim was disallowed by the Secretary November 21, 1910, on the ground* that the claimant was not an artisan or laborer within the meaning of the act. The claim is submitted for recon- sideration at the instance of the president of the American Federation of Labor, who transmits an argument on behalf of the claimant by the secretary of a local union of the federation at Brooklyn N. Y. of which the claimant is a member, and at the instance, also, of Hon! Charles B. Law, M. C, who transmits a similar argument as well as OPINIONS OP SOLICITOE, DEPABTMENT COMMEBCB AND LABOR. 57 an additional statement on the part of the claimant. The contention is that the department erred in holding that the claimant was not an artisan or laborer, or, at least, that he was not an artisan. Since the compensation act of May 30, 1908, applies only in the case of injuries sustained by a person " employed * * * as an artisan or laborer," this office has been frequently called upon to consider whether individual claimants fell within the class of persons made beneficiaries under the act. In the case of Grant, C 2513, after a full examination of the authorities, it was concluded, with respect to the term laborer, that — The occupation of a laborer is distinguished from other occupations by the fact, (1) that his work is esseTjtially physical and toilsome; (2) that it maljes a demand primarily upon his physical or mechanical powers, and not upon his intellectual faculties, except in a minor degree; (3) that it requires on his part relatively little skill, except of a manual or mechanical sort, and relatively little training, except such as comes from example and experience; (4) that it calls for the exercise of little or no independent judgment or discretion ; and (5) that it is performed by rule of thumb, or under the immediate direction of a superior. With respect to the term artisan, it was said, "An artisan is defined by the Standard Dictionary to be : ' One who practices an industrial art ; a trained workman ; a superior mechanic,' and this definition is accepted by the courts (citing cases)." It was also pointed out that " The treatment of the subject matter of the present legislation when it was being considered by the two houses of Congress, as well as the report of the committee having the bill in charge, clearly indicate that the persons designed to be Jbenefited were those commonly known as persons of the laboring class, as distinguished from persons of the leisure, professional, business, official, or clerical classes; " that " sim- ilar acts in other countries are known as ' workmen's compensation acts ' ; " and that " it is fair to assume, therefore, that the term ' arti- san or laborer ' was used in the present act in a sense very nearly synonymous with ' workman.' " But these definitions can only be applied in the light of the facts and circumstances of each particular case and independently of any special designation given to the position which the claimant holds. It is therefore necessary in the present case to consider the character of work which the claimant was employed to perform in order to determine whether he is to be deemed an artisan or laborer, as above defined. The secretary of his union states that the claimant was injured when making a sketch of the rudder of the U. S. S. May- flower, the ship being in dry dock, while climbing around on the staging ; that such work was not out of the ordinary for a ship drafts- man, who at times " must wear overalls and go through the ship from top to bottom laying out work, also making sketches from finished work on ships, which takes him into danger constantly and extends over a period of at least half the time employed." In another argu- ment it is said : " When the accident occurred he was employed on work requiring a skilled draftsman, an artisan, there being no work- ing plan of the rudder of the Mayflon.oer on file, so it was necessary to have one so that in case of accident to the rudder a new one might be reproduced, even though the present rudder were lost," and, fur- ther, that " in order to be a good draftsman one must be a good artisan, skilled in mechanics, of artistic taste and skill, with ability 58 workmen's compensation xjndee act of may 30, 1908. to show by drawings the exact representation of- the machine to be built, the exact figures required to produce the same, no matter what this machine may be." The claimant himself offers the following definition of a ship draftsman : "A skilled mechanic acquainted with all trades pertaining to the hull of a vessel and trained in the theory of ship designing. His duties are to design woi'k and lay same out for the different tradesmen and see the work when complete." Conceding the accuracy of these statements, I am nevertheless of opinion that a ship draftsman can not properly be classed as an artisan or laborer within the meaning of the act. It is doubtless true that a ship draftsman, in addition to his qualifications as a draftsman in the strict sense of the term, must also be skilled as a mechanic or an artisan; but, plainly, a ship draftsman is not employed to do the work of a mechanic or an artisan, but to do the work of a draftsman, i. e., "one who prepares and draws plans and designs" (Standard Dictionary). As the claimant himself says, " his duties are to design work and lay same out for the different tradesmen and see the work when complete." It is also true that a ship draftsman is expected, at times, to wear overalls and go through the ship from top to bottom and, as in the present case, to climb about on staging. But a civil engineer, for example, doing work in the field, is often required to do work of a physical or mechanical sort and such as is ordinarily expected of an artisan or laborer. The performance of such tasks, however, is merely incidental to the proper work of a civil engineer, Avho would scarcely, on that account, be deemed an artisan or a laborer. Without going more at length into the various reasons which may be advanced in svipport of the same conclusion, it seems to me clear that a ship draftsman belongs more projjerly in the pro- fessional or clerical class than in the laboring class, to which alone the act applies. In reaching this conclusion it is not pretended that, in point of justice, a ship draftsman injured in the course of his employment, without misconduct or negligence on his part, is not as much entitled to compensation as an artisan or laborer injured in the same way. The benefits of the present act, however, are limited in terms to artisans or laborers; and while the act, in view of its beneficial nature, should be liberally construed, no construction is permissible which gives it a wider application than its words, understood in their ordi- nary and popular sense, permit. In my judgment, therefore, the previous decision of the department should be affirmed. 7. A packer in a navy-yard storeroom employed to handle, arrange, and list stock is a laborer. [In i-p claim •«! William G. CraudiiU, Mai-. 5, 1909; No. 654.] This is the case of AYilliam G. Crandall, a packer in the employ of the Mare Island Navy Yard, Cal., who Avas injured December 8 1908, by an elevator. It has been submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The question of nefli- gence appears also to be involved. ^ OPINIONS OF SOLICITOK, DEPARTMENT eOMMEECE AND LABOR. 59 The papers submitted show that tlie claimant was required, as a packer, to handle and arrange stock in the storeroom for the purpose of getting all the articles of one kind together and to check and list them._ It appears that while in the course of his employment on December 8, 1908, he required the elevator for the purpose of taking a load to the floor above. He pulled the rope and started the ele- vator downAvard, and ^s it neared the floor on which he was stand- ing he attempted to stop it by pulling on the "stop rope," which failed to work properly. During further efforts on the part of the claimant to stop the elevator his foot slipped under it and his toe was crushed. The fact that the claimant was designated as a packer is not material. We should be governed by the nature of his work in determining whether his occupation falls within the scope of the act. (See Op., Jan. 27, 1908, C 31-1, Bu. Xo. 1328, in re claim of Sam Peffer.) The evidence submitted shows that the claimant was re- quired to perform manual labor. The mere fact that he was required to check and list the goods he had to handle and airange can not operate to remove him from that class of persons commonly known as the laboring class, and thereby bar his right to compensation under the act. The name of J. H. Lyons, general helper, is given as an eyewitness to the accident, but the papers submitted do not contain any state- ment of the case over his signature, nor is he quoted. It is claimed that the injured man slipped under the elevator acci- dentally, and that the slipping was caused by the exertion of extra efforts on his part, made necessary by the failure of the " stop rope " to work properly. The claimant's immediate superior, the general storekeeper, is of the opinion that the accident was due to carelessness " in handling the elevator by standing too near the elevator while lowering same; also, by attempting to lower the elevator from the floor below, as it is known to be very much more difficult to handle an elevator from the floor than it is while standing on the elevator itself." While it may be more dangerous to handle an elevator from without than from within, the claimant is hardly to be charged with negligence for so handling it, if such Avas a usual or permissible cus- tom ; and the total absence in the record of any statement that such a manner of moving the elevator was either unusual or forbidden leads to the conclusion that it was a recognized practice. Obviously, if the claimant was not standing so close to the elevator he could not have gotten his foot over the edge of the floor. But before negligence or misconduct can be attributed it is necessary to consider how the claimant was occupied. In the present case the man was engrossed with his effort to stop the elevator. By inadvertence or accident his foot slipped under the descending elevator. In view of the nature and purpose of the compensation act, it would, in my judgment, be setting •too high a standard of care and prudence to hold that an injury incurred unde^: such circumstances was " due to negligence or misconduct of the employee injured," so as to deprive him of the benefits of the act. 60 woekmen's compensation undek act oe may 30, 1908. 8. A foreman or superintendent, who directs the work of others and whose work is mental and administrative or executive, is not a laborer. [In re claim tf Joseph Little, Mar. 22, 1909; No. 662.] This case is submitted with reference to the question whether claim- ant's occupation falls within the scope of the act of May 30, 1908, which provides for compensation to any person injured while " em- jjloyed by the United States as an artisan or laborer * _ * * in hazardous employment under the Isthmian Canal Commission." Claimant at the time of the injury was supervising the firing of doby shots. A powder foreman, with a gang of men, was setting off doby shots and had placed a number of shots to be fired. Thinking that all the shots had been fired, claimant approached the scene, and as he did so one shot, which had hung fire, was discharged, and he received a severe fracture of the skull. Claimant was a superintend- ent at a salary of $400 (gold) a month, and presumably was not required to do any of the actual labor which he directed. He had foremen under him who actually bossed the gangs of workmen, and thus was one more degree removed from the actual manual laborers. He was an official rather than a laborer. The cases generally decide that a superintendent is not a laborer within the meaning of any law, although foremen have been held to be laborers in several cases (Willamette Falls Transp. Co. v. Remick, 1 Oreg., 169; Short v. Medberry, 29 Hun., N. Y., 39; Flagstaff Silver Min. Co. V. CuUins, 104 U. S., 176; Capron Strout, 11 Nev., 304; Welch V. Ellis, 15 Can. L. T., 148), generally because they were re- quired to do, in the performance of their duties, considerable manual labor. A foreman of a gang of laborers may himself be a laborer ; he may occasionally lend a hand and in many instances of employment is required to do so. But, on the other hand, a foreman or superin- tendent of a large force, who merely directs the work of many labor- ers, perhaps of a whole factory, or a large undertaking, a man whose work is purely mental, administrative, or executive, can hardly be said to be an artisan or laborer. His work is certainly of a higher grade than that of a mere clerk or draftsman, which latter were held not to come under the act. That a superintendent is not a laborer was held in Mo., etc., R. Co. V. Baker, 14 Kans., 567; Nelson v. Withrow, 14 Mo. App., 276; Boyle V. Min. Co., 9 N. Mex., 237; Blakey v. Blakey, 27 Mo., 39; Cole V. McNeil, 99 Ga., 250; and in an English case (Osborne v. Jackson, 1883, 11 Q. B. D., 619) it was held that a superintendent who merely gives assistance to the men under him does not thereby become a person engaged in manual labor ; nor is a superintendent of a mine a laborer (Cocking v. Ward, 48 S. W. Rep., 287; Malcomson V. Wappoo Mills, 86 Fed. Rep., 192; Krauser v. Ruckel, 17 Hun., N. Y., 463) ; also overseers on farms have been held not to be laborers (Isabell V. Dunlop, 17 S. C, 581; Whitaker v. Smith, 81 N. C, 340). A "boss" or director of an entire department of a factory, employ- ing and discharging' the hands who work under him, who receives a monthly salary of $100, and who is not required to do manual labor but is expected from his skill and intellectual fitness to direct the work of the operators under him, is not regarded as a journeyman mechanic, or day laborer, within the meaning of a statute which OPINIONS OF SOLICITOR, DEPAETMENT COMMERCE AND LABOR. 61 exempts the wages of such persons from garnishment. (Kyle v. Montgomery, 73 Ga., 337.) There are, however, a few cases where it has been held that a superintendent is a laborer. In Pendergast v. Yandes (124 Ind., 159), under a statute which preferred debts due to laborers, it was held that a man employed by a gas company to have the sole superin- tendence of digging the trenches and of laying the pipes, and with full authority to hire and discharge employees, was a laborer. In Willamette Falls Transp. Co. v. Remick (1 Oreg., 169), an assistant superintendent was held to be a laborer. (See also Warner v. Hud- son Eiver Co., 5 How. Poe, N. Y., 454; Min. Co. v. Bouscher, 9 Colo., 385.) • It would seem, from a consideration of the foregoing cases, that the weight of authority supports the conclusion that the superin- tendent of a large undertaking or large branch of work, such as the claimant evidently was, as indicated by his large salary, is not an artisan or laborer witnin the meaning of any law, and I am of opinion that, a fortiori, he should not be so considered in a statute such as the act of May 30, 1908, which was made primarily for the benefit of the manual laborers of the Government alone and was never intended to apply to employees whose principal, if not entire, occupation is mental, administrative, or executive, and not physical. [In re claim of J. D. Black, Oct. 14, 1910; No. 4700.] , The above claim is forwarded to this office prepared for formal approval. The occupation of claimant is shown to be tha,t of a general fore- man, at the rate of $175 per month. The immediate report gives the following description of the accident: He was stauding in front of shovel No. 209, wbicb was loading a train of cars. As the dipper was raised, it pulled up a piece of pipe which was em- bedded in the bank, and the end of same struck him on the right leg below the knee, on head, arms, and back. In view of the fact that the occupation is shown to be that of a general foreman, the question arises whether the occupation comes within the terms of the act of May 30, 1908, providing for injuries to " artisans or laborers." The rate of pay and the character of the work being. performed at the time of the accident woxtld indicate i-hat the occupation was more in the nature of a general superin- tendent than that of a working foreman. If the former, it would come within the class to which the Little case (C 662, Bu. 2124) be- longs and if the latter, it would fall within the class described in the Kline case (C 3064, Bu. 6126). In order to determine to which class this case belongs it will be necessary to have further information which will show the general nature and character of the duties performed by claimant. I have the honor, therefore, to recommend that the papers be returned for that purpose. [In re claim of J. D. Black, Apr. 24, 1911 ; No. 4700.] The above claim reached this office under date of October 5, 1910, prepared for formal approval. An examination of the record at that time showed that the occupation of claimant was that of a 62 woekmen's compensation undee act of may 30, 1908, "general foreman," and the question therefore arose whether the occupation of claimant came within the terms " artisan or laborer " as used in the compensation act. On October 14, 1910, the papers were returned ^yith the recom- mendation that further information be obtained which would show the general nature and charaL'ter of duties performed by claimant. The papers were again received in this office on November 22, 1910, with a statement from the division engineer purporting to give the character of work performed. As this information failed to show specifically the general nature and character of the duties of claimant, it was impossible to reach a conclusion, so the matter was taken up personally with the assistant examiner of accounts of the Isthmian Canal Commission, and he was requested to secure the de- sired information. In response to that request there is now fur- nished a letter from the division engineer, dated April 11, 1911, and an' affidavit from claimant, dated April 8, 1911, from which it is observed that the title " general foreman " is a meaningless designa- tion and that the duties performed are the same duties which were performed by the claimant when he was designated as a " foreman." It appears that the designation of "general foreman" was given claimant by reason of the fact that his wages had been increased, and claimant had no knowledge of his change in designation until some time after the injury. The character of work performed by claim- ant is that of an ordinary foreman, which occupation has been con- sistently held to come within the terms of the compensation act, such foremen being engaged in performing at various times similar work to that performed by the men under them. In view of this additional information, the claim is now prepared for formal approval as originally prepared by the Bureau of Labor. 9. A saliitary inspector, Canal Zone, a laborer; considered. [In re claiir. of I. W. Pickett, Apr. 7, 1909 ; No. 769.] The above claim is submitted to this office with special reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. The claimant is designated as a "sanitary inspector," and the accident occurred while he " was inspecting canal cut for mosquito larvae." This rate of pny is $125 a month. The answer to the question submitted turns on the character of the work performed by the claimant. If he was employed prin- cipally on account of his expert or professional knowledge of dis- ease germs and the like, I am of opinion that he should be regarded as belonging to the professional class, and the fact that his duties required him to visit different parts of the canal cut would not bring him within the scope of the act. If, on the other hand, he was em- ployed on labor which was essentially physical, or at least manual, even though requiring skill in its performance, and if his duties required no more special knowledge or training than an ordinarily intelligent person might readily acquire after entering upon the discharge of the duties of the position, I am of opinion that he should OPINIONS OP SOLICITOR, DEPARTMENT COMMERCE AND LABOR. 63 be regarded as of the laboring class, to which the act applies. (See opinion in the case of John P. Golden, Jan. 5, 1909, Bu. No. 1324.) I think, therefore, the department should, before taking final action, have more definite information as to the character of the claimant's work. 10. A storeroom clerk, Canal Zone, is an artisan or laborer. [In re claim of Dudley Inniss, May 20, 1009; No. 1019.] This claim is submitted with reference to the question whether the claimant's occupation falls within the scope of the act of May 30, 1908. Was claimant an artisan or laborer? Was his occupation hazard- ous? Inniss was a clerk in a storeroom and was hurt by having his finger pierced by a nail while opening a barrel of coffee in the storeroom of the Isthmian Canal Commission hotel at Culebra. The compensation act provides for compensation to employees under the Isthmian Canal 'Commission if they are artisans and laborers engaged " in hazardous employment." [As to whether claimant's occupation was hazardous, see balance same opinion, p. 123.] " In view of the general purpose of the act and the treatment of the subject matter when it was being considered by the two Houses of Congress, I am of opinion that the words ' artisans and laborers ' were used to indicate a class of persons commonly referred to as the ' laboring class,' as distinguished from the leisure, professional, and official or clerical classes." (Case of Golden, Bu. No. 1324, Jan. 5, 1909.) Clerks and draftsmen have been held not to be artisans or laborers within the act. (See opinions in the cases of Alcee, Bu. No. 420, Oct. 26, 1908; La Mire, Bu. No. 1017, Nov. 28, 1908.) But in the case of Crandall (Bu. No. 1578, Mar. 5, 1909) a packer engaged in handling and arranging stock in a storeroom of a navy yard, he was held to be a laborer. The duties of a clerk in a storeroom are mainly manual and not " clerical " in its ordinary sense, which is further indicated by the particular work claimant was engaged in at the time of the accident, namely, opening of a barrel of coffee. I am of the opinion that claimant should be classed as an artisan or laborer. 11. A concrete inspector engaged in inspecting and directing work of others is not a laborer. [In re claim of J. C. Cunningham, July 16, 1909; No. 128.5.] This claim is submitted with special reference to the question whether the claimant's occupation comes within the scope of the act of May 30,' 1908. The claimant was engaged in hazardous employment on construc- tion work in the reclamation of arid lands. His official title is " con- crete inspector." His principal duty is to inspect certain classes of 64 workmen's compensation under act of may 30, 1908. construction work, which is done by laborers and artisans, and to see that the work has been done as required by the specifications. His duties sometimes require him to exercise his physical powers, but to a very limited extent. He does not do any of the actual construction work. The description of the claimant's occupation discloses nothing which will justify the conclusion that he is either an artisan or laborer, and I have to advise, therefore, that the act of May 30, 1908, does not apply to him. [In re claim of J. C. Cunningham, Jan. 18, 1910 ; No. 1285.] This claim was previously considered by this office, and under date of July 16, 1909, it was decided that the description of claimant's occupation did not justify the conclusion that he was either an arti- san or laborer. The claim is now resubmitted with special reference to. the follow- ing question: Is there sufficient evidence on which to base a recon- sideration of the Secretary's action of- July 24, 1909, disapproving this claim, attention being invited to the correspondence since that date attached to the^ papers ? The question as to whether claimant's occupation comes within the scope of the act of May 30, 1908, is now considered upon the entire record as presented. Claimant is shown to be a " concrete inspector " at the rate of $125 a month. In the immediate report the character of work being performed at" the time of the injury is described as follows : Concrete inspector on concrete turnout on equalizing reservoir, Canal A, Wil- llston proj. And in description of the accident is found the following: iParty was inspecting concrete work on small structure and in walking around forms slipped and fell * * *. In the affidavit of claimant he gives the following description of the accident and the circumstances attending the same : While retying a derrick guy line on false work of concrete turnout at north- west corner of equalizing reservoir at power plant, 2 by 6 strut gave way under right foot, throwing me Aowa backwards into manhole, landing horizontally across brace near bottom. Was assisted to my office by George Leroy, employed as foreman on above work. In a statement dated May 12, 1909, George O. Sanford, project engineer in charge of the work, in referring to the character of work claimant was engaged upon, says "that his services were largely supervisory * * * but not entirely so;" that his duties consisted of " inspection of the construction of the riveted Sidel smokestacks " and of " the steel trusses and iron work on the roof of the Williston power house." In addition to the foregoing, he says that " in con- nection with the construction of the Williston power house, Mr. Cun- ningham was on the ground seeing that things were done as required by the specifications governing the various contracts in force," and that "in connection with his work at the coal mine, which was largely of an engineering character, there can be no question that OPINIONS OP SOLICITOE, DEPABTMENT COMMERCE AND LABOK. 65 • his duties called for the exercise of physical power, but to a very limited extent." In concluding he states that " such duties would frequently call him into dangerous positions, side by side with the artisan and laborer, and while his duties would be largely super- vising their labors, he would also be at times actually engaged in labor himself. I think at the particular time Mr. Cunningham re- ceived his injury, his duties were of a supervisory character." In his own behalf, under date of December 12, 1909, Mr. Cunning- ham submits an additional statement, which consists mainly of an argument for the allowance of the claim, the only matter material to the point at issue being the following : Thfit my duties involved the actual performance of the work of an artisan, combined with those of a foreman, superintendent, and inspector. From a careful consideration of all the evidence in the record it appears that the general character of the work performed by Cun- ningham was of a supervisory natrre; that in addition he appeared to have general supervisory jurisdiction of the work under him and' that the immediate supervision of the various branches of the work was performed by foremen in charge of each gang. This latter in- formation is gained from the affidavit of claimant wherein he says : Was assisted to my office by Geo. Leroy, employed as foreman on above worli. The fact that at the time of the accident claimant was engaged in doing something requiring manual exertion would not justify placing him in the classification of " artisan or laborer." It does not appear that the work he was doing was any part of his regular duties, nor was he required to do such work. Frequently it happens that the necessity of the case will require the immediate foreman to lend a hand and assist in emergencies, but it is not customary nor usual for a general superintendent to do so. The question as to whether a superintendent or foreman came within the act of May 30, 1908, ipas decided in the Little case (No. 662), wherein it was held that: A foreman or superintendent of a large force, who merely directs the work of many laborers, perhaps of a whole factory, or a large undertalving, a man whose wovk is purely mental, administrative, or executive, can hardly be said to be an artisan or laborer. His work is certainly of a higher grade thun that of a mere clerk or draftsman, which latter were held not to come under the act. It was further said in that opinion, in speaking of a superin- tendent, that — He was an official rather than a laborer. The foregoing conclusion was reached after a careful consideration of the numerous adjudicated cases cited therein, some of which are the following: Mo., etc., R. Co. v. Baker, 14 Kan., 567; Nelson v. Withrow, 14 Mo. App., 276; Boyles v. Min. Co., 9 N. Mex., 237; Blakely v. Blakely, 27 Mo., 39; Cole v. McNeil, 99 Ga., 250; Malcom- son'y. Wappoo Mills, 86 F. R., 192; Krauser v. Euckel, 17 Hun., N. Y.,463. I am therefore of opinion that the occupation of Mr. Cunningham is not within the. scope of the act of May 30, 1908, and for that reason his claim can not be allowed. 63051°— 12 5 66 workmen's compensation tjndek act of may 30, 1908, 12. A telegrapher and shipping clerk engaged in work of a clerical nature Is not an artisan or laborer. [In re claim of P. M. Whlteman, July 22, 1909 ; No. 1374.] The above claim has been examined by this office, with special reference to the question whether a telegrapher and shipping clerk in the employ of the United States, under the Isthmian Canal Com- mission at Panama, comes within the provisions of the act of May 30, 1908. The act applies only to artisans and laborers, and, under the Isth- mian Canal Commission, it applies only to such as are in hazardous employment. The claimant in this case was engaged in work of a clerical nature, and not employed as an artisan or laborer. It, there- fore, clearly appears that the act does not authorize compensation in this case. In view of the conclusion here reached, it is, of course, unnecessary to consider the question of " hazardous employment." 13. Artisans or laborers only, among employees of the United States, are covered by the statute. [In re claim of Joseph Little, July 28, 1909 ; No. 662.] The above claim was first considered by this office under date of March 22, 1909, and the conclusion reached that the claimant was not entitled to compensation. This conclusion was based upon the" ground that he was not a laborer or artisan within the meaning of the statute. The claim was accordingly disallowed under date of April 3, 1909. Under date of May 28, 1909, the Secretary of War transmitted to the Secretary of Commerce and Labor a letter, dated . May 14, 1909, written by the Chairman of the Isthmian Canal Com- mission, explaining the duties of the claimant, showing their hazard- ous nature, and requesting that the claim be reconsidered. It was evident that both these letters had been written with the understanding that the claim had been disallowed on the ground that the occupation of the claimant was not hazardous. Under date of June 8, 1909, the case was reconsidered by this office, and it was pointed out that the claim had been disallowed on the ground that the claimant was not an artisan or laborer, and not that his occupa- tion was not hazardous. The claim is again submitted to this office with a letter from the Chairman of the Isthmian Canal Commission addressed to the Secretary of War, under date of June 29, 1909. In this letter it is suggested that Congress did not intend to limit the operation of the act of May 30, 1908, to artisans and laborers under the Isthmian Canal Commission,. but that it should be applied to all persons era- ployed by the Isthmian Canal Commission in hazardous employ- ment, that the limitation to artisans and laborers applied only to those persons, employed in manufacturing establishments, arsenals, navy yards, or in the construction of river and harbor or fortification ' work. It has been the view of this office as well as of the administrative offices of the Department of Commerce and Labor ever since the act OPINIONS OP SOLICITOB, DEPARTMENT COMMBEOB AND LABOE. 67 has been in operation that its provisions applied only to artisans and laborers employed by the United States, and as to these it ap- plied only to such as were employed in (a) manufacturing establish- ments, arsenals, or navy yards; (&) or in the construction of river and harbor or fortification work; (c) or in hazardous employment on construction work in the reclamation of arid lands or the manage- ment and control of the same; (d) or in hazardous employment under the Isthmian Canal Commission. (See opinion in the case of Michael J. Hogan. C 4, Sept. 15, 1908.) According to the letter of the act it applies to — any person employed by the United States as an artisan or laborer in any of its manufacturing establishments, arsenals, or navy yards, or in the construc- tion of river and harbor or fortiflcation work or in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission, * * * It seems to me clear that the word " or " connects each of the classes enumerated with the qualifying words " employed by the United States as an artisan or laborer." To place upon the act the construction suggested by the chairman of the commission would be equivalent to treating the law as if it read : That when, on or after August first, nineteen hundred and eight, any person employed by the United States as an artisan or laborer in any of its manu- facturing establishments, arsenals, or navy yards, or in the construction of river and harbor or fortiflcation work, or any person employed iy the United States in hazardous employment on construction work in the reclamation of arid lands or the management and control of the same, or in hazardous employment under the Isthmian Canal Commission," * * * If we should hold that the qualifying words " artisans and labor- ers " do not apply to the classes employed in the reclamation of arid lands or under the Isthmian Canal Commission, how can we apply the qualifying words "employed by the United States" to these classes ? As the bill was first introduced in the House on May 12, 1908, that part of it which defined the scope, read as follows : That when, after the passage of this act, any person employed by the United States in any of its manufacturing establishments, arsenals, or navy yards, or in hazardous employment under the Isthmian Canal Commission, as an artisan or laborer. Is injured * » * This indicates that it was the intention of the drafter of the bill to make it apply only to such employees under the Isthmian Canal Commission as were artisans or laborers engaged in hazardous em- ployment. But in that form it was not clear that the words " artisans or laborers " qualified any of the classes except those employed under the Isthmian Canal Commission. However, in the Judiciary Com- mittee, to whom the bill was referred, the words "as an artisan or laborer" were stricken out where they appeared immediately fol- lowing the words " Isthmian Canal Commission," and inserted im- mediately before the words " in any of its manufacturing establish- ments," etc. It may be inferred from this that the committee re- garded the language of the bill as applying to artisans and laborers wheresoever employed, and that the change was made to prevent any question being raised as to the limitation of the act to artisans and laborers in the manufacturing establishments, arsenals, navy 68 woekmen's compensatiok undee act of may 30, 1908. jards, etc., as well as to those employed under the Isthmian Canal Commission. . After a careful consideration of the suggestion made by the Chair- man of the Isthmian Canal Commission, I have the honor to advise that the act of May 30, 1908, in its application to the employees of the Isthmian Canal Commission, embraces only those who are arti- sans and laborers and are engaged in hazardous employment. 14. A master or pilot of a steamer used in river and harbor work is not a laborer. [In re claim of A. T. Jonss, Dec. 6, 1909 ; No. 2179.] The above claim has been submitted to this office with special ref- erence to the question whether the claimant's occupation comes within the scope of the act of May 30, 1908. The injured employee at the time of the accident was engaged in his regular duties as master and pilot of the steamer Titan, under the Engineer's Office, at a salary of $125 per month. He was engaged in the construction of river and harbor work. The following is the de- scription of the accident as given in the immediate report of the injury : While superintending the making fast of a coal digger to the steamer Titan the tackle block was broken, the line striking Capt. Jones on the left le^, break- ing it above the ankle and contusing his face snd ear. The injury was neither due to the negligence nor misconduct of the claimant, and continued for more than 15 days. The only question to be considered is whether the injured employee was an artisan or laborer within the meaning of the statute. The claimant when injured was superintending work that other empioyees were doin